James Madison Papers

Memorandum from Thomas Jefferson, 15 July 1801

Memorandum from Thomas Jefferson

July 15. 1801.

Whether prizes & the proceeds of them taken after the date of the treaty with France can be restored by the Executive, or need an act of the legislature?

The constitution has authorised the ordinary legislature alone to declare war against any foreign nation. If they may enact a perfect, they may a qualified war, as was done against France. In this state of things they may modify the acts of war, & appropriate the proceeds of it. The act authorising the capture of French armed vessels & dividing & appropriating their proceeds, was of this kind.

The constitution has given to the President & Senate alone the power (with the consent of the foreign nation) of enacting peace. Their treaty for this purpose is an absolute repeal of the declaration of war, and of all laws authorising or modifying war measures. The treaty with France had this effect. From the moment it was signed all the acts legalising war-measures ceased ipso facto; and all subsequent captures became unlawful. Property wrongfully taken from a friend on the high sea is not thereby transferred to the captor. In whatever hands it is found, it remains the property of those from whom it was taken; and any person possessed of it private or public, has a right to restore it. If it comes to the hands of the Executive they may restore it: if into those of the legislature (as by formal paiment into the treasury) they may restore it. Whoever, private or public, undertakes to restore, takes on themselves the risk of proving that the goods were taken without the authority of law, & consequently that the captor had no right to them. The Executive, charged with our exterior relations, seems bound, if satisfied of the fact, to do right to the foreign nation, & take on itself the risque of justification. Submitted to mr. Madison’s consideration.

Th: J.


To the preceding observations it may be added that the stipulation to restore vessels taken after the treaty is only pro majori cautelâ;1 as, without that, the right to demand & the duty to restore, would equally exist.

Nor is the objection good that till ratificn. the treaty is not compleat: because when ratified, it is confirmed ab initio.

These observns. respect only vessels taken after the signature of the treaty. But it is said there is one vessel taken before the treaty but not yet condemned. I suspect this will stand on very different ground. By the law of nature, property is transferred by the act of capture, which act is compleat when the victory is absolute. The act of Congress July 9. 1798. says ‘all armed vessels captured shall accrue to the captors, & on due condemnation shall be distributed &c.’ This confirms the natural law. The property vests by the capture; the condemnation is only the declaration of a fact, to wit, that the capture was rightful, & a partitioning among the owners. If condemnation was an act of war, it would be made unlawful by the treaty: but it seems to be a mere municipal act or decision between inter-claiming citizens. If the property was definitively transferred by the capture under an existing act of the legislature who were competent to the passing that act, it may be doubted whether the Presidt. & Senate, can retrospectively annul that. The legislature can; and they ought in good faith to the foreign nation to make the restitution; but also to give indemnificn. to the captors, whose legal acquisition is taken from them for the purposes of public peace.

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