James Madison Papers

To James Madison from Richard Rush, 24 November 1816

November 24. 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, as 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

crimes punishable by existing laws of the U. States with death.

1. Treason.

2 Murder

3 Robbery

4. Piratically running away with, or yielding up (to a pirate)a ship or vessel; or goods to the value of fifty dollars.

5 Seaman laying violent hands upon his commander to hinder his fighting in defence of the ship or goods’ committed to his charge;

6. Seaman making a revolt in the ship.

7. Piracy

8 Accessory before the fact to murder.

9 The same of Robbery.

10 The same of piracy.

11. Forgery of any indent, certificate, or other publick security of the U. States.

12. Setting at liberty or rescuing any person convicted of treason.

13. The same of murder, or any other capital crime.

14. The wilful destruction of a vessel at sea, with intention to prejudice the owner, or underwriter.

In running through the statute book this morning, I find the foregoing list of offences punishable capitally. It is possible I may have passed some over; but most probably the list presents the whole.

It is a long one. Considering the very few offences known to the laws of the U. States, those punished with death exist, in a greater proportion, than in England. Neither rapes, nor arsons, nor burglaries, nor many others of a high grade, are, as yet, at all provided for. In short, as far as we have gone, we have copied, closely enough, the bloody code of England; and as the admitted absence of the common law will enlarge, tenfold, the field of our Labors, if we go on in the same spirit, Draco will be the best model of all for our legislators. The offences I have underscored seem not to call for so heavy a doom, which also looses sight of just discriminations in guilt.

If so much severity be right in itself, it certainly does not conform to the analogy of the mitigated codes of, I believe, nearly all the states of the union; a mitigation agreed, I also believe, to have been productive of good effects. Why should the two systems, operating in the same community, so differ, merely because a citizen may happen to be upon one side, or the other, of an ideal jurisdictional line?

Perhaps some explanation of the greater harshness of that of the U. States may be found in this: that most of its capital crimes, (from the search I have made since last evening I should say all but one) were made so by the old act of April 30. 1790. Now, it is since this epoch, that, both in Europe and in our own country, but especially in the latter, the progress of humane and enlightened reform has been so considerable.

In consonance with the above remarks, I have ventured to throw out an idea for consideration at the close of the other paper. The expression "other deficiencies" in the same place, may cover those known to be applicable to the revenue system, so fully brought into view last winter by Mr. Dallas in his report upon the means of enforcing the new tariff.

R. R.

If the propriety of some modification of the Judiciary be adverted to in the message, an allusion to the following points, might, perhaps, advantageously close the same head.

If the federal government, in its corporate capacity, draw not to itself the common law, as applicable to criminal matters, a chasm would seem to exist in this part of our system. All offences, not specially provided for by statute, must be left without punishment in places, of which the number is not inconsiderable,* where the U. States possess an exclusive jurisdiction. If, moreover, there be any offences already known to the statute, without a penalty being annexed, a necessity arises, under the same hypothesis, of defining the punishment as well as the crime. It is right that an attention should be awakened to these topicks commensurate with their urgency; and how far a more general revision of our penal jurisprudence would be expedient, with a view to the remedying of other deficiencies, as well as an increase of its scope, and also with a view to examine whether it might, in some particulars, be rendered, with due wisdom, less sanguinary, are considerations worthy to engage the deliberations of those who will know how to estimate such important duties of legislation.

* All arsenals, dock yards, navy yards, forts, light houses &c. &c. Hundreds of families, or individuals, may perhaps be found living within the limits of these places, thus become sanctuaries for offenders.


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