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10

11, Tazewell arg. ; Bee's Rep. n. 227, 8; Const. Art. 3.  [section]3. See also, Mr. Forsyth's letters to the Spanish Minister, Dec. 12, 1839; Doc. 185, H. R. 1840, p. 27; Senate Doc. 179, 1841, p. 12, 29. See also, Chief Justice Taney's opinion, when Attorney General, Aug. 4, 1831; Doc. 199, H. R. 1850, p. 70.

     So far as the Africans were concerned, all the parties in interest were before the Court, when the United States intervened with their claim or suggestion; for it is not pretended that the Africans, if they were property, belonged to any other Spanish subjects than Ruiz and Montez. If it was the duty of the United States, by reason of any provision in the treaty, to deliver the Africans as property to their Spanish claimants, it was a duty which the Court was obliged by the treaty to perform,  after the property was placed in its custody, at the suit of the claimants, if they succeeded in establishing their title. There was no necessity for the intervention of the Executive to stimulate the Court to the performance of its duty. And if, under such circumstances, the Spanish minister had invoked the aid of the Executive in the manner suggested by the District Attorney, it would seem only to have been necessary for the Executive to reply, that the parties in interest were pursuing their claims before a judicial tribunal, in whose custody the subject of litigation had been placed, and by whose decision alone it could be controlled. 

No sovereign rights of a foreign government were here in question, to oust the Court of its jurisdiction over the property, as in the case of the Exchange, (7 Cranch, 116,) where a public armed ship in the service of a foreign government, having entered the port of Philadelphia, under an implied promise of exemption from the jurisdiction of the country, was libelled as the property of an American citizen, and seized under process of the District Court. A foreign sovereign could not of course appear before our judicial tribunals to vindicate his public rights; and it was therefore very properly holden that a necessity existed for allowing the fact, which deprived the Court of its jurisdiction, to be disclosed by the suggestion of the Attorney for the United States. 

But in this case the District Attorney suggests that the Africans are demanded by the Spanish minister merely as private property, to be delivered to their owners. And, instead of denying, as in the case of the Exchange, the jurisdiction of the Court, he expressly admits it in his suggestion of the 19th of November, and applies for the issuing of its process, although the Africans were already in custody on the libels of Gedney, and of Ruiz and Montez.