OPINIONS

OF

CHARLES LEE, OF VIRGINIA:

APPOINTED DECEMBER 10, 1795.

NEUTRALITY.

It is the right of an enemy to purchase goods and instruments of war of a neutral nation, but it may be denied by a law passed; yet, if the reason of its passage were to impede the military operations of either belligerent power, and to favor the other, such conduct would be a breach of neutrality. A citizen of a neutral State who, for hire, serves on a neutral ship employed in contraband commerce with either of the beligerent powers, is not liable to any prosecution for so doing, by the municipal laws of his own State; nor is he punishable personally, though taken in the act, by that belligerent nation to whose detriment the prohibited trade would operate.

PHILADELPHIA, January 20, 1796.

THAT an enemy may come into the territory of a neutral nation, and there purchase and thence remove any article whatsoever, even instruments of war, is a law of nations, long and universally established. Horses are, and for a long time have been, an article of commerce from the United States; and, though they are by certain treaties an article of contraband, as by the treaty with France, yet, according to the above principle, they may be purchased and exported by the enemies of France. To deny a right to either of the belligerent powers to carry on this trade, without denying it to both, would be a departure from that line of perfect neutrality which the United States have invariably observed. It is true, this right may be denied to all nations, by a law to be passed for that pur pose at this time; but, if the reason for passing such a law be to impede the military operations of either belligerent power, and to favor the other, it is manifest that such conduct would be a breach of neutrality; consequently, while the French and the British are equally permitted to purchase horses, and export them from any of the States, as they heretofore have been and now are permitted, neither have any just cause of complaint. Indeed, I may add here, that, if the individual citizens of the United States carry on a contraband commerce with either of the bellige. rent powers, neither can charge it upon the government of the neutral nation as a departure from neutrality. Forfeiture of the goods and ship, is the penalty annexed to such acts by the law of nations; and if this were not so, it would be in the power of individuals to involve the neutral nation in war, against its will.

It is not considered as a duty imposed upon a nation by a state of neu trality to prevent its seamen from employing themselves in contraband trade. Nor are there to be shown any instances where a neutral nation has exercised, or attempted to exercise, its authority in restraining prac. tices or employments of this kind; and the reason is, that it would be found very embarrassing to the executive power, and at the same time

very oppressive to the liberty of the citizen, and generally nugatory. If a citizen of a neutral State, for hire, serves as a mariner on board of a neutral ship employed in contraband commerce with either of the belligerent powers, he is not liable to any prosecution or punishment for so doing, by the municipal laws of his own State; nor is he punishable personally, according to the laws of nations, though taken in the fact, by that belligerent nation to whose detriment the prohibited trade would operate. In such a case, the contraband merchandise, and the vessel too, (unless excepted by treaty,) may be seized and confiscated; and thus the owner of the property is punished by the loss of it; but the mariner, rendering persqual service, suffers no penalty or loss whatever-unless, perhaps, a loss of his wages shall ensue from a disappointment in the freight. But it is not prohibited to a neutral vessel to carry provisions to the fleets or armies of either enemy, except to a besieged place, for its relief under exigent circumstances; and, according to this rule, it is lawful for the citizens of the United States to carry in their own vessels flour and other provisions from their own country to the fleets and armies of Britain, as well as France, which are expected at St. Domingo.

Mariners may be said to be citizens of the world; and it is usual for them, of all countries, to serve on board of any merchant ship that will take them into pay; and this practice, from the manner of their liveli hood, seems, for obvious reasons, founded on convenience, and, in many instances, on necessity. A citizen of a neutral nation has a right to render his personal service as a sailor on board of any vessel whatever employed in mere commerce, though owned by either of the belligerent powers, or the subjects or citizens of either. Nothing hostile can be imputed to such conduct, which, consequently, must be deemed consistent with neutrality. If such conduct be lawful, no restrictions can be warranted tending to interfere with the occupations that individuals may pursue for their emolument or livelihood. In the acts of Congress passed for the punishment of crimes against the United States, it is observable that mariners are forbidden to serve on board of a foreign ship-of war, letter of marque, or privateer, but are left at liberty to serve on board a vessel merely commercially engaged. (Laws United States, vol. 3, p. 97.) I have not found any stipulation in any treaty which prohibits such occupation on board a foreign merchant ship, either in war or peace. If the French government or British government, or any other sovereign power, will, by their agents, purchase ships in the United States, and load them with provisions for the use of their fleets or armies, those ships are to be considered as commercially employed. If they be not attached to the naval or military expeditions, as part thereof, in accompanying the fleet, or closely following the army from place to place, for the purpose of furnishing supplies, there can be no pretext for restraining the American sailors from hiring on board of them, for the purpose of gaining a support in their customary way of occupation. Should a question arise, whether a foreign vessel, carrying supplies of provisions, be attached to an armament or not, it must be decided from the circumstances of each case, which it is impossible to enumerate. It may be noted, that the receiving and obeying orders issued under the authority of the commander of any expedition, might be deemed decisive proof of such vessel being attached thereto. If a citizen of a neutral nation were to go on board a merchant vessel of the enemy thus certainly attached to a military enterprise,

knowing the object, and with intent to further it as a mariner, it ought to be deemed irregular, and ought to be prosecuted and punished; and such doings may properly be interdicted and prevented. However, this is not alleged to have been committed; nor is there reason to believe it will be committed by American citizens, in favor of the British nation.

If a neutral mariner, who renders service in a neutral ship carrying on unlawful and contraband trade with a belligerent power, cannot be punished for so doing, it may be inferred with certainty that such neutral mariner, rendering the like service in an enemy-ship employed in lawful commerce with the neutral country, ought not to be punished, unless the service be rendered in a ship attached to, and making a part of, the hostile armament, with intent to aid the hostility.

The vessels in Virginia which it is said have been lately purchased by British agents, and loaded with provisions, and manned with American seamen, though they are to transport the provisions to the fleet in the West Indies, are not, in consequence thereof, to be considered as attached to, or making a part of, that fleet to which they are to go, so as to make it unlawful for American seamen to navigate them.

I need scarcely to add that this doctrine is to be applied alike to all nations, under similar circumstances; and I believe has been practised during the present war by American seamen, with respect to both France and Great Britain.

CHARLES LEE.

PATENTS FOR INVENTIONS.

Specifications for inventions should be such as to convey to all the world the nature of the in

vention.

PHILADELPHIA, February 10, 1796. SIR: Upon examining the specification of Elisha Perkins, of his method of removing pains and inflammations from the human body by the application of metallic substances, I doubt whether it be so distinct, intelligible, and certain, as it ought to be before a patent is granted. In all cases, the object of the law is to acquire and distribute useful knowledge; which in no case wi be obtainable, unless the invention be so explained that other persons besides the author may understand and use it; more especially, when the alleviation of human misery is intended, care should be taken to have a plain and thorough exposition of the art.

Mr. Perkins has not specified in express language—

1st. Whether all metals will produce the like effect; and if not, he should describe what sort only will produce it; and how it is to be composed, if it be a compound of metallic substances.

2d. What shape and size the instrument ought to have, to be most operative; and whether the point ought to be very sharp, and whether it be the better for being the more sharp.

3d. The words," applying a pointed piece of metal to the part affected, and drawing it across and from the part to some of the muscular," &c., so vaguely describe the manner of using it, that there is danger of misunderstanding the directions; and if misused, the instruments may be very

mischievous. I think it a good general rule, that a thing capable of doing good if judiciously used, may be very pernicious if misapplied. I wish Dr. Perkins to remove these doubts by a more full and particular speci

fication.

To the SECRETARY OF STATE.

I am, &c.,

CHARLES LEE.

POWERS OF THE EXECUTIVE.

The President cannot appoint a commissioner to make a treaty with Indians, for the purpose of extinguishing their title to lands within the United States, without the advice of the Senate.

PHILADELPHIA, May 26, 1796.

THE Attorney General is of opinion that the President alone, and without the advice of the Senate, cannot appoint a commissioner to hold or make a treaty with an Indian tribe, for the purpose of purchasing and extinguishing their title to land within the limits of the United States. The 12th section of the act to regulate trade with the Indians, passed the 19th instant, prohibits every person, who is not employed under the authority of the United States, froni negotiating any such treaty or convention, directly or indirectly.

The expression under the authority of the United States cannot mean any other thing than the constitutional authority of the United States, which it is considered cannot be bestowed on any person but by the President, with the advice of the Senate.

To the SECRetary of State.

CHARLES LEE.

EXECUTION OF TREATIES.

Commissioners to execute a treaty must all agree to the same, subscribe thei. names, and attack their seals thereto.

ALEXANDRIA, July 3, 1796.

SIR: I take the earliest opportunity of acknowledging your letter of the 19th, and of communicating my opinion upon the questions propounded by Mr. Howell.

1st. The authority of the commissioners appointed in pursuance of the 5th article of the treaty with Great Britain cannot be duly and legally executed by a majority of them; but they must all agree in their decisions, which must be signed and sealed by them all.

2d. If the two commissioners appointed on the part of Great Britain and the United States disagree in the choice of the third, each is to propose one person; and of the two names so proposed, one shail be drawn by lot. Neither of the original commissioners has a discretionary power to withhold his nominee, or to refuse to draw by lot for the third commissioner, according to the terms of the article. For either to refuse to per

form this act, would be a breach of the trust and an abuse of the power committed to them.

I am, &c., &c.,

CHARLES LEE,

Attorney General United States.

To the SECRETARY OF STATE.

REPARATION-REPRISALS.

It is reasonable, as applicable to all nations, to permit a portion of a prize cargo to be sold under the superintendence of the public officers for reparation of the ship: as to France it is within the 19th article of the treaty of 1778.

As to the sailing, the prize-ship should be permitted to sail whenever the captors wish: deception of collector and naval officer affords no ground for detaining it.

PHILADELPHIA, November 15, 1796.

SIR: The four questions propounded to you by the minister of the republic of France, in his letter of the 12th October, are severally answered in your letter of the 24th of the same month, agreeably to the opinions I have formed on those subjects.

I will barely observe, relative to one of the questions, which at first sight seems doubtful, that to permit a part of a prize cargo to be sold for the necessary reparation of the prize ship, under the actual superintendence of our public officers, is reasonable in itself, as applicable to all nations; and as to France, seems to be within the provision of the 19th article of our treaty of 1778 with that nation; the benefits of which cannot be, and never were intended to be, impaired by anything in our treaty of 1794 with Great Britain. Therefore, the 24th article of the last mentioned treaty may be considered as inoperative upon this question. But if it were to be considered as operative upon it, I think the article should receive rather a liberal than a literal interpretation; and cases of necessity and distress. ought to be deemed out of the meaning and intent of it.

The prize ship should be permitted to sail whenever the captors wish, though their conduct has been illegal, and though the French consul at Charleston has highly misbehaved in holding a court within the United States for condemning the capture as prize, and in causing a sale to be made under his authority. If a deception has been practised with success, on the collector and naval officer, as to the goods, yet this affords no ground for detaining the ship. These officers appear to have acted honestly and honorably in this affair; and if they have been mistaken in believing it their duty to detain the prize-ship, under the particular circumstances which had occurred, until they should receive explicit instructions from the higher authorities, they are not liable to any censure; nor ought the United States to be responsible to the captors for the loss which happened to a part of the goods by the conflagration in Charleston. If the captors had acted legally and fairly, no difference would have taken place between them and the public officers at that city; and they have been fortunate in obtaining an exportation of any of the goods in neutral bottoms, when the captured ship is actually repaired and fitted for sea; which alone would have been authorized to export these goods, if the collector of the customs had been duly and truly informed of the condition of the prize-ship. I am, &c., &c.,

CHARLES LEE.

To the SECRETARY OF STATE.