James Madison Papers

To James Madison from Levi Lincoln, 3 July 1802

From Levi Lincoln

Washington July 3d 1802.


I have the honor to submit to your consideration my Ideas, generally, on the questions which arise, in the case of the Brig Los Amigos, without being able finally, to form an opinion, satisfactory to myself, on all of them.

It appears from the papers,1 that this Brig was owned by a Spanish subject, and in the prosecution of a voyage, from Jamaica to Cabello, was captured by Capt Maly of the public armed schooner Experiment, carried in to Cape Francois, and afterwards sent to America, for adjudication, In july 1800, she was libelled, in the District Court of Pennsylvania, as a vessel owned, hired & imployed, wholly, or in part, by some person resident in the United States, in a trade against the non intercourse laws. It appears, she had been purchased, not long before her capture, of an American citizen; and that the judge, finding no grounds for the capture & seisure, under the acts of Congress mentioned in the libel, and finding the alligations therein not supported, decreed, a restoration of the vessel & cargo, to the owner, with cost.

The owner, states that he has sustained great damages by the capture, but, made no claim of them, at the district Court, and he now claims them, from the U. S.2

The question is, if they a[re] bound, by the law of nations, to recompense the owner for these damages.

Vessels rightfully captured, under the non intercourse law, are to be distributed, one half, to the U. S, the other, to the captors. Public armed vessels are by law, directed & authorized, to seise every vessel, which there is reason to suspect is engaged, contrary to this law in commerce, and on examination, it appearing that she is so engaged to send her to the nearest convenient Port, of the U. S to be there prosecuted &c &c.

The libel, as it ought, appears, to be a prosecution in behalf of the United States, & the captors, in the shape of a qui tam,3 in which, Govt., in case of failure, in ordinary cases, never pays cost, or damages.

To secure peace between nations not involved in an existing wa⟨r,⟩ and to guard against frauds in the collection of duties, & to enforce commer⟨cial⟩ regulations, it seems to be admitted, that a ship of war, or other authorized vessel, may bring to, an unarmed vessel, & examine her, and if she appears to be liable to capture & condemnation, to send her in. All nations, especially, commercial, have an interest in the admission of, & support of these principles, however individuals of their subjects may, in some instances, suffer by their operation.

The Ship experiment, was authorized by the Govt, to capture & send in for prosecution such vessels only, as, on examination, were engaged in a traffick, in violation of the non intercou[r]se law, It is the fault, or misfortune, of any vessel, to place herself under circumstances, to furnish reasonable presumptions of her being thus engaged when in fact, she is not. In such a case, the captured vessel ought to suffer the damages resulting from her own acts, or omissions, & not the captors, or their Govt. who have done, or caused to be done, only what they had a right to do. If there is a capture when there is not an apparent probable cause, the captor is the wrong doer. He captures at his peril; no blame can attach to the Nation. They have neither directed, nor authorized such a capture, as is made. The captor has violated this trust, reposed in him, by his Govt. as well, as the rights of individuals; and is liable for all the consequent loss, or damage, for which he may be assessed, by the decree on a libel, or, by an action at law.

In the present case, It does not appear there was probable cause, nor, clearly, that there was not, no claim in the district court, on the part of the owners, no damages, and it is certain, the Brig was not long before her capture, an American vessel, and had she in fact continued American & been covered, her papers would have probably been, as they were.

But the question still is, admitting the owner is entitled to Dam[a]ges, are the U. S. held to pay them—the captor having refused, or being unable.

I can find, neither principle, or precedent, which will support this position as a matter of rigid right. Nations may, in some instances, have practiced on this principle from national policy, when it, has been, demanded, by the Goverment of a suffering subject—or, in conformity to the practice, of some particular country. But never, I beleive, as a matter of national justice. The usages & customs of nations, seem to go no further, in ordinary cases of suffering neutrals, than to secure to them, fairly, the benefit of resorting to competent courts, and that remedy & redress of injuries, which can be obtained, in the ordinary course of justice. These usages, I conceive, no more recognize the principle, or obligation, to indemnify, a suffering subject of a foreign nation, against the insolvency of their own subjects, than they do, one individual of their own subjects, against the insolvency of another. If foreigners have the same measure of justice, and the same remidies, as citizens, ought they to complain? It, may be said, It is more reasonable, that a Government should suffer, from the misconduct of One of its subjects, than that the subjects of foreign Governt should. Perhaps, the idea, of the subjects of all Governments, which are subject, to a common principle, or to one code of national laws, forming one great society, will furnish an answer to the remark. It is beleived, when one nation, makes compensations, for such injuries as are done by its subjects to the subjects of another & which involve no insult to the nation; it is always done in pursuance of some treaty, or on mere principles of policy; and not, as demanded, by the law of nations.

This law, seems to be satisfied, by the punishment, or the giving up, for punishment, offenders against it; By a nation’s not conniving at the injuries of its subjects; by taking every seasonable measure, & making reasonable provisions, to prevent them, or to redress them, in a regular course of judicial proceedings.

These, are my general impressions, on the subject, & as to the strict principles of the law of nations from the investigation I have been abble to make—I am sensible, yours are, in some respects different, I therefore express mine, with reluctance, & great diffidence. I had gone into a more lengthy disquisition, But was not satisfied with it, on reflection—I reviewd it, revised it, disapproved of it, and burnt it. I am Sir with the Greatest respect your most Obt. Sevt

Levi Lincoln

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