Department of State Philaa. May 15. 1799.
Mr. Liston informs me, that on information recd. by Admiral Sir Hyde Parker, of one of the mutineers and murderers of the officers of the British Frigate Hermione being at Charleston So. Carolina, the Admiral sent thither a vessel on purpose to receive and carry the culprit to the fleet to be tried: but that the district judge had not deemed it proper to deliver him up.
This question has occurred before, respecting the crew of the Hermione, in consequence of some of them being apprehended in New Jersey, where they were tried and acquitted. One only was detained some time longer, on a suggestion or expectation of decisive evidence against him: but it appeared afterwards that this man was not involved in the offence; and at Mr. Liston’s request he was discharged.
The only legal question was, Whether an offence committed on board a public ship of war, on the high seas, was “committed within the jurisdiction” of the party demanding the offender, on a just construction of the 27th article of the treaty. Upon a further consideration of the subject, I am incline to answer in the affirmative. I suppose the offence committed on board the Hermione to have been a most atrocious act of piracy accompanied with murder: that all nations having jurisdiction in this case, if the pirates be found within their dominions, any of them may try & punish them: but wanting the full evidence for that purpose, it would seem reasonable, and essential to the due administration of justice, that the culprits be delivered up to the government of the country to which they belong; all nations being interested in the punishment of such pests to society.—On the point above mentioned about the “jurisdiction,” it may be observed, that besides the general, concurrent jurisdiction held by Great Britain on the high-seas, her officers have and exercise a particular jurisdiction on board of their own ships.—For these reasons, and as the 27th article of the treaty especially requires the delivering up of murderers, I respectfully submit my opinion, that the Judge of the District of South-Carolina should be directed to deliver up the offender in question, on the demand of the British Government, by its Minister.
I have this moment received your favour of the 8th instant, and will make out Governor Davie’s commission. But for the very reason that he is the Governor of North-Carolina, and it is important to that state and to the Union, that such a man should hold the reins of government there, I beg leave to suggest the expediency of not requiring his immediate acceptance of the commission, because it would vacate his office of governor, while it remained uncertain whether he would be ever called to proceed on his mission to France. Perfect silence on the subject, at present, appearing to me most eligible, I further beg leave to ask whether it will not be eligible to suspend the publication of Governor Henry’s letter, until it shall be necessary to make public Governor Davie’s appointment. I with the more confidence present these ideas to your consideration, seeing an adoption of them cannot affect the decision of the French Government upon the overtures which Mr. Murray has been already instructed to make. If its answer should be such as to require, or warrant, the two envoys still at home to cross the Atlantic, then Governor Davie’s appointment would become operative, and he would not be ousted of one important office until he could assume the exercise and receive the compensation of another.—The law of No. Carolina respecting the incompatibility of a state and continental office, is so rigid, that it does not even permit the concurrent exercise of those of the least possible consequence.
With the greatest deference I submit these remarks; and remain / most respectfully, / sir, your obt. servant,
MHi: Adams Papers.