risk, that of their being subject to capture, and under the obligation only to use all due endeavours to avoid an enemy or capture; here the obligation of the neutral ends, for she is not permitted, if taken, to recover the goods by recapture, the nation only to whose citizens or subjects they belonged (or the parties at war with the captors) possessing that right.

By the law of nations, a neutral vessel met at sea is liable to be seized by a vessel of war, as the case may be, of either of the belligerent powers. This law gives the additional right, if the belligerent vessel is not satisfied with his search, to carry the neutral vessel into the country of the captors, there to be examined, tried and condemned (if she has violated the neutrality) in its courts, established for the inquiry into the subject, and to compel by force the neutral to submit to search, and also to be carried into the country of the captors.

If such ships shall be attacked in order to an examination, and shall refuse, they may be assaulted like a house supposed to have thieves or pirates in it, refuses to yield up their persons, may be broken up by the officer, and the persons resisters may be slain.-Malloy de Jure Mar. et Nav. L. I. C. 3, S. xiii.

It also appears to the Secretary, that if a neutral vessel found at sea refuses, and resists by force to be searched, she, for such conduct, is liable to be condemned as lawful prize. If the law of nations gives a right to search, it cannot allow a right to resist a search by force. The two rights cannot exist. They are perfectly inconsistent. If the first is lawful the latter must be unlawful, consequently liable to some punishment, or the right would be nugatory. If the law of nations gives also a right to carry the neutral vessel into the country of the captors' courts, this right also cannot be resisted or opposed by force without violating the law. It would seem to the Secretary, that the persons who resist the search by force, or resist or prevent by force the neutral vessel being carried into the captors' country for trial, must by such conduct be guilty of a breach of the law of nations, and if so they must be liable to some punishment, and if the nation to which they belong does not punish them, on application to that effect, it thereby becomes a party to the

wrong. The Secretary cannot think that either the right of search, or of carrying the neutral into the country of the captors, is founded on superiority of force, but on the law of nations. This opinion the Secretary rests upon Vattel, L. 3, C. 7, S. 114; Marten's law of nations, N. 323; Lee on captures; the report on the Silesia loan, &c.

The Secretary, however, cannot venture to disapprove of the answer proposed to be given by the Secretary of State. He does not know of any precedent of a neutral nation exerting its power in any similar case of recapture in aid of the right of the belligerent power, but, unquestionably there is reason so to do, if the idea he has presented of the law of nations is accurate. He thinks it probable also, without pretending to be positive, that instances of recapture like the present are few.

In some future time America may stand in relation to other powers as Great Britain stands at this time, and may wish to make the same claim that she does now. The Secretary greatly doubts, but with great deference, whether the cases in question, of recaptures, are cogniza ble before our courts of justice; the subject seems rather to belong to the Executive. Peculiar caution may be proper, for fear at some future period our proceeding may be urged against us to our detriment. If it appears necessary to reconsider the subject, the Secretary would beg leave to suggest the propriety of adding, that as there is no provision by treaty or apposite law of the United States on the subject, it might be advisable to make some stipulation by treaty.

The Secretary is inclined to believe, that, if any, there is not sufficient remedy for the delivery of deserters from British vessels. He has understood that some of our courts had determined, that the law of Congress concern ing seamen relates to American seamen only. The claim for British seamen who have or may desert is just, and ought to be reciprocal. The Secretary thinks the project of Mr. Liston may be substantially accepted, except the 7th article, which seems to provide that the United States shall not demand the delivery of any sailors, although their citizens, if they have been employed on board British vessels, and who have, in time of war or threatened

hostilities, voluntarily entered into the British service, or have been compelled to enter therein, according to the law and practice prevailing in Great Britain. This article is very inaccurately expressed; for it says, "employed or entered into the service of their own sovereign or nation, or compelled to enter therein," &c. If this article means what it is apprehended it does, it is wholly inadmissible. It establishes a principle reprobated by this country. The counter project of the Secretary of State, in substance, meets the Secretary's approbation; but it is submitted, whether the adoption of part of the draught by the Secretary of the Treasury will not improve it.

All which is respectfully submitted.

War Department, April 18, 1800.

JAMES M'HENRY.

Mr. Stoddert, Secretary of the Navy, to the President.

THE Secretary of the Navy, in obedience to the order of the President, respectfully submits the following observations, on the matters of reference to the heads of departments.

The proposed letter of the Secretary of State, in answer to Mr. Liston's notes of the 2d and 4th February, demanding the restitution of American vessels captured by British ships and rescued by their own crews, appears to the Secretary of the Navy, entirely proper. He believes the demand is neither sanctioned by precedent, nor the law of nations. Should it be otherwise, Mr. Liston, as invited by the Secretary of State, will show it.

Mr. Liston's project of an article on the subject of deserters, secures to his nation every thing it could require, but affords no security to the United States in a point of equal interest with them, that their merchant vessels will not be interrupted on the high seas, in order to impress from them their crews, under pretence of being de

serters.

It is certainly just that the United States should afford to Great Britain all the reasonable security they have a right to expect from a friendly nation, against the loss of their seamen a loss of all others the most serious to a na

tion depending on maritime strength for its power-perhaps for its safety. But it is equally just that the United States should be secured against the impressment of their seamen on the high seas, and the interruption of their merchant vessels. The project of the Secretary of the Treasury meets the full approbation of the Secretary of the Navy it seems to comprehend every thing that ought to be required on either side. But it is so desirable to have a right understanding on a subject so likely to produce ill blood, that rather than not agree, the Secretary of the Navy thinks the word hereafter, if positively insisted on, may be struck out of that project—and submits, whether, for the sake of accommodation, the limitation of time in which deserters may be claimed, if strenuously urged by Mr. Liston, may not be extended to three years. The Secretary is clearly of opinion, that it is better to have no article, and to meet all consequences, than not to enumerate merchant vessels, on the high seas, among the things not to be forcibly entered in search of deserters. All which is respectfully submitted.

BEN. STODDERT.
TODDE

Navy Department, April 23, 1800.

The Attorney General of the United States to the President. Philadelphia, February 26, 1800.

SIR,-In obedience to your direction, to report my opinion upon the matters contained in the two letters of his Britannick majesty's minister to the Secretary of State, dated 2d and 4th instant, the following is respectfully submitted to your consideration.

In the first mentioned letter, a claim is made, by the express order of his Britannick majesty, that three American merchant vessels, namely, the brigantine Experience, the ship Lucy, and the brigantine Fair Columbian, which had been stopped and detained upon the high sea by several British ships of war under a suspicion of having enemies' property on board, and afterwards taken out of the hands of the prize masters, the two first by force, and the last without force, and brought into the United States, should be delivered up to the minister, together

with the British seamen and deserters who assisted in those rescues, that they may be sent by him to some one of the British colonies, to be there dealt with according to law. This claim is to be considered as it relates to the American ships, and as it relates to the British seamen.

THE AMERICAN SHIPS.

No stipulation in the treaties between the two nations authorizes the demand for restitution of the American ships. It is therefore to be decided by the practice of friendly nations, which, upon this subject, is the only law.

It is not denied that a belligerent has a right to stop a neutral ship on the high sea suspected to have on board either contraband merchandise, destined to an enemy's port, or enemies' goods, and a right to send such neutral ship to a competent court for examination and trial and it is equally true that this right is recognized in the President's instructions to the American ships of war. But while the right of searching neutral ships is acknowledged, it is not acknowledged that the sovereign of the neutral nation is under any obligation, by active measures, to aid and assist the sovereign of the belligerent nation in the exercise of this right. It is a right derived from war, which the belligerent nation is suffered to exercise in consequence of its superior force, upon condition that reasonable satisfaction be made, in all cases of unjust detention, to the neutral ship; and all that is expected of the Sovereign of the neutral nation is to remain passive.

The practice of searching and detaining neutral ships being grounded on the right which one enemy has of injuring and weakening the other, the neutral nation permits her merchant ships, under certain circumstances, to be stopped, treated and held as an enemy by the bellige rent, but the belligerent in so doing must depend on his own strength and means, and may not call upon the sovereign of the neutral to aid him in enforcing the rights of war against his own neutral subjects, in those cases where no positive stipulations have been made by treaty. Hence arises the practice of putting on board a neutral ship, when detained and sent for adjudication, a prize master and a suf