To Levi Lincoln
Washington June 12. 1801.
I inclose you for your consideration the case of the Betsy Cathcart, a prize brought into the US. some years ago, sold, & the money deposited in the treasury for safety. had the only question been between us and the captors, we should have delivered up the money without troubling you. but a doubt has been suggested whether, as the prize was never condemned, the original proprietor may not claim hereafter. I recollect some years ago to have had occasion to turn to a case in 2d. Burrows wherein Ld. Mansfield laid down the law of nations on this question, truly as I thought. I have not the book to turn to, but it will be worth your looking at. his doctrine was that the property of captured goods is transferred to the captor by the victory which acquires them: that the circumstances of being carried infra praesidia at land, or of the pernoctation, or 24. hours possession, at sea, were merely arbitrary1 set up by nations who found an interest in lessening the advantages of neutrality, now exploded by other nations, and practised on only in the English courts of admiralty. this is the general idea I have retained in my mind, but citing by memory. I may not be correct. the subject is referred to your consideration. no claim has been made, or thought of probably by the original proprietor. if we must refer the case to Congress the discussion there by giving it publicity will doubtless bring forward the claim, and force the decision on us in a national form, which may go off silently if the Executive are authorised to make restitution. Accept assurances of my affectionate esteem & respect.
RC (David J. Melamed, Hastings-on-Hudson, New York, 1987); at foot of text: “Levi Lincoln esq.” PrC (DLC). Enclosure not found.
In 1758, an opinion by the British jurist Lord Mansfield—whose decisions in the Court of King’s Bench were compiled by Sir James Burrow—touched on the question of when a captured ship became the property of its captor (Madison, Papers, Sec. of State Ser. description begins J. C. A. Stagg, ed., The Papers of James Madison, Secretary of State Series, Charlottesville, 1986–, 8 vols. description ends , 1:424; Sowerby description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, Washington, D.C., 1952–59, 5 vols. description ends , No. 2085).
Infra praesidia: “within the defenses”; that is, a captor’s assertion of ownership of captured property, such as a prize ship, by bringing it fully under control (Bryan A. Garner, ed. in chief, Black’s Law Dictionary, 8th ed. [St. Paul, Minn., 2004], 796).
1. TJ here canceled “circumstances.”