Adams Papers

To John Adams from John Marshall, 6 September 1800

Washington Septr. 6th 1800


I receivd a few days past: a letter from the chevallier de Yrujo complaining that the Marshal for the district of New York, says he has no authority to deliver up the vessel capturd by Capt. Talbot in the Puerto Plata.

I have taken measures which will I presume occasion the delivery of this vessel, unless, under the idea that the government has no right to interpose, so far as the captors are interested, Capt. Talbot shoud refuse (as I conjecture his agent must already have done), to submit to the decision of the executive.

I cannot beleive that Capt. Talbot will act so indiscreetly: but as in this I may be disappointed, it becomes necessary to consider the situation in which his refusal will place the subject, & to decide provisionally on the course which, in that event, it will be proper to pursue.

If the Executive of the United States cannot restore a vessel capturd by a national ship, in violation of the law of nations, it is easy to perceive how much inconvenience may result from such defect of power. Cause of war may be given by those who, of all others, are, perhaps, most apt to give it, & that department of the government, under whose orders they are placd, will be unable to correct the mischief.

On the other hand, as there is an inchoate interest in the captors, there is some doubt concerning the right of the executive to affect this interest, & much delicacy in exercising it. It is only in plain cases such as I take this to be, that the exercise of such a right, was ever unquestionable, woud be recommended.

Sir William Scott, I observe lays it down as law that, in England, there is a right in the captors to proceed with the prosecution of the vessel, against the will of the crown. He does not however state any case in which such proceedings have been had.

Shoud this point be contested, I must request your instructions in the case. To me it seems inadviseable that the executive shoud decide absolutely on the question, & that it woud be proper to submit it to the court. To obtain their judgement respecting it I know of no mode more proper than to request the attorney for the district to enter immediately on the record the directions given him from this department to dismiss the prosecution, & the claim of the captors to proceed leaving it to the court to decide, whether, in such a state of things, further proceedings can or cannot be maintaind. Shoud the court determine to proceed & the capture shoud afterwards be decided to have been unlawful, and without probable cause, I presume Capt. Talbot will have no pretext for applying to the United States to be reimbursd any damages which may be awarded against him.

I cannot doubt Sir the acquiescence of Capt. Talbot under the decision made by the executive, but it is necessary to prepare for a state of things which, tho not probable, is entirely possible.

I am Sir with the most perfect respect & attachment / Your obedt. Servt.

J Marshall

MHi: Adams Papers.

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