TERRITORIAL RIGHTS-FLORIDA.

It is an offence against the laws of nations for any persons, whether citizens or foreigners, to go into the territory of Spain with intent to recover their property by their own strength, or in any manner other than 's laws permit.

For the recovery of their property in Florida, and for redress of injuries done there, our citizens must apply to the tribunals of that province.

If a Spanish subject who has violated the territorial law of Florida shall he within the United States at the time of demand for him as a subject and fugitive from justice, he ought to be given up for trial and punishmen; yet there is no law directing the mode of proceeding. If the commandant of the island of Amelia were arrested in Georgia at the suit of an individual, the United States have no power to interfere; if, however, the suit be a public prosecution in the name of the State of Georgia, or of the United States, it is proper for the Executive to interfere.

The treaty with Spain does not extend the jurisdiction of our courts to offences committed in Spain, nor vice versa; and according to the common 'aw, the commandant of the island of Ameha is not able to any public prosecution before any of our courts for his transactions in Florida.

PHILADELPHIA, Jonuary 26, 1797.

SIR: The letter of the minister of Spain, of the 11th of this month, representing a violation of the territorial rights of his Catholic Majesty, by William Jones, and others his associates; and also complaining of the arrest and prosecution of Don Onofre Gutierrez y Rosa, commandant of the island of Amelia, has been, agreeably to your request, duly considered.

It is an offence against the laws of nations for any persons, whether citizens or foreigners, inhabiting within the limits of the United States, to go into the territory of Spain with intent to recover their property by their own strength, or in any other manner than its laws authorize and permit. If William Jones, a Spanish subject, had been apprehended in Florida, as he might lawfully have been, he might have been treated and punished for the transgression as a subject of Spain, according to the laws of that province. So, too, the Americans who joined, aided, and abetted him in the misdemeanor, were amenable to the laws of the province where they committed the offence, and might have been apprehended, tried, and punished there, according to those laws. William Jones, and the Americans who accompanied him, are less excusable when it is recollected that, by the 20th article of the treaty between Spain and the United States, free access to the courts of justice in each nation is stipulated and reciprocally granted to the inhabitants of the other; consequently, to the tribunals in Florida our citizens are bound to apply for recovery of their property in that province, as well as for the redress of injuries done them there; and more especially William Jones, a Spanish subject, ought to have applied to them respecting his runaway slaves.

The constitution gives to Congress, in express words, the power of pass. ing a law for punishing a violation of territorial rights, it being an offence against the law of nations, and of a nature very serious in its consequences. That the peace of mankind may be preserved, it is the interest as well as the duty of every government to punish with becoming severity all the individuals of the State who commit this offence. Congress has passed no act yet upon the subject, and Jones and his associates are only liable to be prosecuted in our courts at common law for the misdemeanor; and if convicted, to be fiued and imprisoned. The common law has adopted the law of nations in its fullest extent, and made it a part of the law of the land.

If a demand were formally made that William Jones, a subject and fugi

tive from justice, or any of our own citizens, heinous offenders within the dominion of Spain, should be delivered to their government for trial and punishment, the United States are in duty bound to comply; yet, having omitted to make a law directing the mode of proceeding, I know not how, according to the present system, a delivery of such offender could be ef fected. To refuse or neglect to comply with such a demand, may, under certain circumstances, afford to the foreign nation just cause for war; who may not be satisfied with the excuse, that we are not able to take and deliver up the offenders to them. This defect appears to me to require a particular law.

It is not distinctly stated by the minister, whether the commandant of the island of Amelia was arrested in Georgia at the suit of an individual prosecuting for himself, or at the suit of the State of Georgia, or of the United States. If the suit be of the first description, the United States have no power to interfere, but the laws are to have their course. Though the commandant went from Florida into Georgia, by the orders of the governor, he remained, according to the laws of nations, liable to be arrested at the suit of an individual; the immunities or privileges such as an ambassador is permitted to enjoy not being attached to him, by reason of that particular function which he was sent to perform. However uncivil the treatment he has received may appear, neither the law of nations, nor any law of the United States, forbids such a functionary from being sued by an individual, even though the suit be without sufficient cause, or otherwise not maintainable. Supposing, in the present case, the action to have been brought by the individual for a tort committed out of the jurisdiction of the United States, in a foreign country, by a foreign officer, under the orders of the sovereign authority: in my opinion, it cannot be sustained. Yet, I do not admit that any right exists in the government of the United States to interpose; and the bail cannot be discharged, but in the ordinary forms, according to the laws of Georgia. But, if the suit be a public prosecution, in the name of the State of Georgia, or of the United States, it is proper for the Executive to interfere;-in the former case, by writing to the governor of that State, requesting him to cause the necessary steps to be taken for dismissing it; or, in the latter, by directing the district attorney of the United States to the same purport.

The 20th article of the treaty is not construed to extend the jurisdiction of our courts to offences committed in Spain, or vice versa; and it is well established, that, according to the doctrine of the common law, the commandant is not liable to any public prosecution before any of our courts for his transactions in Florida.

Though some inconveniences may occasionally occur to foreign officers, such as the commandant of a fort or district, who come into the United States upon public business, unless they are exempt from arrests at the suit of individuals, by some special law to be made for that purpose; yet I am not satisfied that the subject is of so much concern that legal provision of that import ought to be made.

Probably the instances will rarely happen when any inconvenience shall be experienced from the law as it now stands. It might, however, serve to satisfy the minister and his nation, with whom the most sincere friendship is desired, if such a law were to be passed, in consequence of the remonstrance he has thought proper to make on this occasion; and in other respects it might be found conducive to an harmonious intercours be

tween the public officers along our frontiers. But a similar exemption should prevail in the Spanish dominions as to our officers who go there on public missions.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE,

Attorney General.

LIBELLOUS PUBLICATIONS.

Certain letters addressed to Philip Fatio, and published, concerning the King of Spain and his minister plenipotentiary here, are libellous, and the editor is indictable.

A malicious defamation of any person, and especially a magistrate, by printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule, is a libel.

If a foreign ambassador commit an offence in our country, it belongs to the President, not to an individual citizen, to take notice of it.

PHILADELPHIA, July 27, 1797.

SIR: I have examined the complaints of the minister of Spain against William Cobbett, editor of Porcupine's Gazette, which he has made to you in his letter of the 21st instant. The several letters addressed to Philip Fatio, published on the 14th, 15th, and 19th of July, to which he has referred, do, in my opinion, contain libellous matter against his Catholic Majesty, and against Carlos Martinez de Yrujo, his minister plenipotentiary here; for which the editor is indictable in the circuit court of the United States for the district of Pennsylvania. The prosecution is, consequently, to be committed to Mr. Rawle, the attorney of the United States for this district; to whom you will please to write, and send a copy of this letter.

That it may appear upon what ground this opinion has been formed, I will make a few remarks.

A libel is defined to be a malicious defamation of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.-4 Bl. Com. 150.

According to this definition, it is manifest that each of those letters may be deemed libellous. As yet, in the United States, the line between the freedom and the licentiousness of the press has not been distinctly drawn by judicial decision. With respect to national concerns among ourselves, as well as with respect to foreign nations, our presses have been unlimited and unrestrained. If on those subjects the liberty of the press can be excessive, or carried to licentiousness, it must be admitted that, in many instances, licentiousness of the press has prevailed in our country. It is important that this subject should be understood, when it is considered that the public mind is in a great degree formed by the press, and that the public opinion is in a great measure directed by the press.

Lord Mansfield has said "that the liberty of the press consists in printing without any previous license, subject to the consequence of law;" and in this definition I concur with the learned judge. It will, then, be no infringement of the liberty of the press to bring a printer before the tribunal of justice to answer for his publications:-if innocent in them

selves, he will not be punished; if otherwise, the injury should be redressed.

An an.bassador, or other representative of one foreign nation residing in another, is entitled to be treated with respect, so long as he is permitted to continue in the country to which he is sent, and especially ought not to be libelled by any of the citizens. If he commits any offence, it belongs, in our country, to the President of the United States to take notice of it, and not to any individual citizen. The President may dismiss him, or desire his recall; or complain to his sovereign, and require satisfaction.

An affront to an ambassador is just cause for national displeasure, and, if offered by an individual citizen, satisfaction is demandable of his nation. It is not usual for nations to take serious notice of publications in one nation containing injurious and defamatory observations upon the other; but it is usual to complain of insults to their ambassadors, and to require the parties to be brought to punishment. I shall not anticipate the defence which Mr. Cobbett may make, but mean only to say that he should be prosecuted; leaving the event to the proper tribunal.

It was considered by me whether the trial could be had in the Supreme Court, and I think it cannot.

By the constitution, it is declared that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress from time to time may establish, and shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made or to be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls, &c. &c. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction; in all other cases, appellate jurisdiction, &c.3d art., 1st and 2d sections.

The act to establish the judicial courts of the United States, passed on the 24th September, 1789, gives to the Supreme Court exclusive jurisdiction of suits and proceedings against ambassadors or other public ministers, so far as is consistent with the law of nations. It also gives original, but not exclusive, "jurisdiction of suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. Section 13.

Thus it appears that the constitution has given to the Supreme Court a capacity to hold criminal jurisdiction in all cases affecting ambassadors, which expressions comprehend a libel of an ambassador; but that no law exists calling into action this constitutional capacity. A criminal prosecution for a libel upon an ambassador is not a suit brought by him, but is a proceeding of the United States; and therefore it is not within the 13th section of the act which has been mentioned. At the August term, (1796,) after mature consideration, it was determined by four judges of the Supreme Court, that, with regard to the judicial power of the United States, granted by the constitution, it remains inactive and unexerciseable until by law it is drawn into action.

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I am also of opinion that an ambassador is not liable in any case, cording to the law of nations, to answer either criminally or civilly before any court of the foreign nation to which he is sent. Comformable to this principle is the 25th section of the act for the punishment of certain crimes, passed on the 30th April, 1790.-Vol. 1, p. 111.

Hence it seems evident that the Supreme Court has not an original criminal jurisdiction in any case whatever, though it is capable of having such jurisdiction in cases affecting ambassadors-such as an assault or libel, or other crime done to an ambassador-whenever a law shall be passed for such purposes.

I am, &c., &c.,

To the SECRETARY OF STATE.

CHARLES LEE.

DIPLOMACY.

A foreign minister should correspond with the Secretary of State on matters which interest his nation, and not through the press of our country. He has no authority to communicate his sentiments to the people of the United States, by publications in manuscript or print.

PHILADELPHIA, July 27, 1797.

SIR: You will observe that my letter of this date contains an answer to yours of the 24th instant upon one of the subjects which you submitted to my consideration; and I shall now give my opinion on the other.

The Chevalier de Yrujo, in sending a translation of his letter to you of the 11th instant, to Benjamin Franklin Bache and William Cobbett, and directing it to be printed, deviated from propriety. A foreign minister here is to correspond with the Secretary of State on matters which interest his nation, and ought not to be permitted to do it through the press in our country. He has no authority to communicate his sentiments to the people of the United States, by publications either in manuscript or print which he shall write and circulate while resident among us; but his intercourse is to be with the Executive of the United States only, upon matters that concern his mission or trust. His conduct in this instance I deem a contempt of the government, for which he is repre. hensible by the President.

I cannot discover that this letter is libellous on the government or any public officer, though it may be charged with a degree of indecency and insoleuce.

The publication of it by Mr. Bache first, and Mr. Cobbett afterwards, cannot be considered as criminal, unless in the light of a contempt to the government of the United States; for they ought not to have joined the minister in the act. I am of opinion, therefore, that no prosecution of either of the editors can be maintained, for a libel in this instance, and that no legal prosecution of either of them is advisable.

To the SECRETARY OF STATE.

I am, &c., &c.,

CHARLES LEE.

MISDEMEANOR.

It is a misdemeanor to plot and combine to disturb the peace and tranquillity of the United States, and to draw them into a war with a foreign nation.

PHILADELPHIA, July 28, 1797.

SIR: Being informed that William Blount was lately met on the road, a few miles beyond Staunton, in Virginia, and that some of the citizens