James Madison Papers

To James Madison from Richard Rush, 29 September 1816

Washington, September 29. 1816.

Remarks upon Commodore Patterson’s letter to the secretary of the navy, dated New Orleans, August 15. 1816.

There is no ground for considering the property taken possession of by the naval or military officers of the United states, after the destruction of the fort on the Apalachicola, on the 27th of July 1816, as prize of war.

Prize of war must be the result of some lawful belligerent act. It implies a state of war duly declared, or existing, under national authority. Should war even exist, the right of prize cannot be enjoyed but under a grant from the sovereign. None of these ingredients being applicable to the present case, no prize interest can attach.

The first question to be made is, was the destruction of the fort, taking place in time of peace, justifiable. This will depend upon the degree of previous unlawful hostility, actual or probable, directed against the vessels ascending the river. If justifiable, it must be so as an act of necessary resistance. Viewing it in this light, it does not follow that those resisting are invested with the right to go further and appropriate to their use the property found in the fort. This may depend upon other circumstances.

A claim may be interposed from another quarter. From Spain, for example, as the fort stood upon Spanish territory. If not from Spain from some other quarter. It will be for this government to decide upon the merit of any such claim; and, if disallowed, or if none should be put in, the merit of its own naval and military officers will then come to be considered.

It will, undoubtedly, be competent to the government to reward them according to the importance attached to the service. It may distribute among them the whole, or a part, of the property brought off, in such proportions as may be judged proper. But this, I think, should be done by congress, the executive not having controul over a case so situated.

I should therefore suppose, that the following course ought to be pursued. The property having been brought off by the publick force of the United states, must be considered, for the present, as subject to their superintending authority. They should see that it is in safe keeping. An inventory and appraisement should take place, that the perishable articles may be sold, and any use made of others which the U. States may find convenient. The amount in value will thus be forthcoming to meet such order as congress may make, at a fit time, relative to it.

Richard Rush

A. G.


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