Levi Lincoln’s Opinion on the
[3 July 1801]
The prize Ship Betsy Cathcart, in June 1796, with a British cargo on board, in her passage from one British port to another, being captured by a French privateer duly commissioned, was in distress brought into an American port. liberty to sell on repeated applications, by the captors, was refused on the part of the U.S. For the purpose of necessary repairs the cargo was permitted to be landed,—placed in public stores.—in the joint custody of the Collector, and the Captors. The Ship, on a second survey; being condemned as unfitt to be repaired, entitled the captors to export her cargo in neutral vessels, by instructions from the Treasury Department. However it might have been improper to have condemned the vessel (to the purpose of giving permission to export in neutral bottoms her cargo) if she had become irreparable, from any delay, or fault on the part of the captors; in not repairing in season; yet it has been done in the cource of competent arrangments, and is now to be considered as regular, and that the prize came into the port in distress. The Ship then rightfully in our harbour.—unfit for repair.—useless.—and unsafe for sea, surely may be sold, and I should think even by the captors themselves, under a permit from our Government, and this notwithstanding the most unfavorable, and unlimited construction of these words in the treaty between the Americans and Britons, that “no refuge or shelter shall be given in their ports to such as have made a prize on the subjects or the citizens of either of the parties; but if found by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible.” This provision must necessarily apply1 to such ships only, as may be put to sea with safety, without repairs, or as capable of being repaired by reasonable expenditures.—It would be an abserdity if we were obliged, to subject a prize ship, by forcing her to sea, to the same danger she escapes2 by being allowed to come in; or, under the eydea3 of a treaty benefit to the British, to suffer their enemy in the shape of one worn out, to build her anew with the sales of her cargo. I should also doubt, on the idea that the provision applied only, to such privateers, or prize vessels as are capable of departing, or retiring from our harbours, whether the cargo as well as the vessel might not legally be permitted to be sold by the captors themselves, in the same manner as they were, before the making of the British treaty.—I have still a farther doubt on the construction or meaning of the 25th. Art. of the British treaty—It makes it lawful for—“British ships of war, and privateers to carry whithersoever they please ships and goods taken from their enemies, free from the payment of fees—of detentions—seizure—search—or cognizance of the validity of prizes; with liberty to heist sail and carry their prizes to such places as are mentioned in their commissions.”—It likewise provides that “no shelter shal be given to such as have made a prize on the subjects or citizens of the British dominions.”—To such what? to what dose the word such refer?—not to prizes,—not to prizes, subjects or citizens: but to ships of war or privateers, which have made a prize upon the citizens or subjects,—the prizes captured are not the objects of exclusion from port.—In making prizes they were not active; but passive in being made prizes. If the above construction is supportable, the U.S. had a right, however imprudent, or impolitic, it might have been, to have exercised it at the time they caused the cargo to be sold under its abandonment—to have permitted the captors to have sold it themselves, even if it had not been abandoned, and even if the prize ship had been sea-worthy, and capable of carrying it away.—and more certainly, we now have a right to admitt the French under their late treaty, equally with the British, to bring in and dispose of their prizes.—To pursue the effect of the British treaty still further, it provides that.—“It shall not be constructed, or operate contrary to former and exhisting publick treaties with other sovereigns or states.”—At the time of making this there was a treaty with France in force, the 17th. Article of which, on the subject of Ships of war, privateers, prizes &c , had the same provisions in favour of France, which the 25th. artl of the British treaty, has in favour of G. Britain. The latter was not to be construed so as to give G. Britain, any rights or prevelidges which were inconsistent with the rights or prevelidges secured to France by the former, and then exhisting treaty—The ratifying of the latter gave positive definite rights—the nullifying of the former abridged or abrogated the privelidges of France, but did not create any in favor of Great Britain. She did not hold originally any greater privelidges which were diminished by the French treaty, and which were reextended that treaty being annulled.—It is not like the repeal4 of a repealing law, which gives effect to the former provisions, contained in the original law. In the present case there were no prexisting privelidges to G. Britain. If the United States by their former treaty with France, by the very terms of it, had not secured to her the advantages of having British prizes excluded from being brought into our ports and sold, then (that treaty out of the way) the treaty with G. Britain expressed in similar terms, had not by the terms of it, secured to her the advantage of having French prizes excluded from being brought into our ports, and sold and of cource the U.S. (there being no exclusion) could permit France without treaty, or could secure to her the privelidge by treaty, at pleasure. If the terms used in the British treaty were sufficient to prevent the U.S. giving this privelidge to France, in her late treaty with us; then they were sufficient as used in the former treaty with France, to prevent the same privelidge passing to G. Britain. The principle therefore urged for the exclusion of France in favor of G. Britain, or for any exclusion at all, from the mere operation of treaties, would in fact exclude G. Britain and let in France. But on the idea that there is no treaty exclusion, the exhisting treaties leave the power of the United States at large; and as it respects the disposition of the Prizes of both nations, places them both precisly on the same footing. The inference is, that G. Britain could have had no treaty right to complain of the sale, had it been by the captors themselves, much less can she complain of the restoration of the proceeds of the sales, in the circumstances under which these sales were made.—
It is to be observed that this reasoning concludes to another point, not now the subject of our consideration.—It remains to be enquired whether, on the best established principles of the law of nation—of the maratime law of our country—or of common law, the proceeds of the sale of the prize ship Bitsy Cathcart with her cargo can regularly, be paid to the captors, or their agent without an act of Congress for that purpose, and without giving any just cause of complaint to the original owner; or to the British Government.—By the maritime law of England as commonly received and practiced upon in their Admiralty Courts, the captured property is not considered as changed, in favor of vendeers, or recaptors untill there has been, on a regular process, a sentence of condemnation—As yet, we have no particular, settled regular code or system of maritime law, either from statutes—or from the adjudications, preceedents, or course of our courts—
The general principles commonly adopted and practised upon, by the European nations, as stated by their best writers, on the subject, have usually been resorted to, as applicable to the United States.—Therefore our maritime proceedings can not be placed on the footing of ancient and established usuages of our own—Yet our common law Courts, and prize courts, are tribunals, to which the individual subjects of foreign countries may resort with their complaints, and obtain redress of injuries—According to the law of nations, the decisions of these courts for great political reasons will be respected by other countries; so will be the exercise of any competent power on general principles, the country being two young to have many laws or customs on maritime matters. A young country must have a right to decide for itself, on general principles, in new cases.—in cases uncontroled and unregulated by particular statutes, or by customs. The case of the Betsy Cathcart, so far as it has gone, has been decided on by competent authority—The restoration of the proceeds of her sales, by the President, to the captors, will be finishing the case, on the idea of the property’s being theirs, agreeable to general principles and the law of nations.—In this G. Britain can find no reasonable grounds of complaint.—previous to her own Statute of 29th. Geor. 2. Cap. 34. if captured property went to sea and was retaken it would not go to the origional owners, but belong to the recaptors.—this proves independently of that act of Parliament, the effect of which is to restore captured property—that the property5 was in the captors—This is the general doctrine of the books on the law of nations; many arbitary rules have been stated by different authors, by which to determine when the captured property may be considered as transfered to the captors. The one most general and most rational is—where there is no just ground for hope of a recovery, or when there is reasonable and just dispair founded on the circumstances and situation of the captured property; then it becomes the property of the captors—Grotius, lib. 3. Cap. 6. page 814, and Burtemaque Vol 2. part. 4. Cap. 7. Sec. 15. 16. Martin. lib. 8. Cap. 3. Sec. 11th. & Vattel lib. 3. Cap. 13. Sec. 196. are very explicit—“The property” says this author, “if movable commodities belongs to the enemy is acquiri the very moment they come into his power; and if he sells them to the neutral nations, the first owner has no right of reclaiming them; but such things must be actually and truly in the enemy’s power and carried to a place of safety. thus, at sea a ship taken by the enemy while it has not been carried into some harbour, or into the midst of a fleet; may happen to be retaken and delivered by ships of the same party; it’s fate is not decided nor owners property irrecoverably lost untill the ship be in a place of safety, with regard to the enemy who has taken, and has it entirely in his power.”—
A prize’s being physically in the enemy’s power dose not depend on the actual condemnation—a mear civil transaction. She be carried in, and remain in a foreign country, and never be condemned. or her papers remitted to the country of the captors, and she be there condemned, as in the case of the Christopher taken by a French privateer and carried into a Spanish port, and remaining there was condemned in France on the remission of her papers there—Vide. Ropinson’s Adm. Repts. Vol. 2d. page 209. The abstract circumstances of a sentence of condemnation can put the prize neither more, nor less in the power of the enemy. It can be of no consequence on the question of property, as between the captors and the original owners.—
Between purchasers or recaptors by the rules of the British Admiralty courts, a condemnation might have an effect in case the property should by any means get back into a situation to be subjected to the cognizance of such courts. This can never be in the instance6 under consideration; the Ship and cargo being consumed. The property as against the British nation—or the original owners, was compleatly lost and gone by the capture; except in the cace of a recapture by them—or by some means there should be a repossession of the articles captured, and of cource the property of these articles was perfectly vested in the captors; liable to be taken from them by the enemy; as all their other property was if the enemy could get at it. The only difference is, by a regulation of their own, if they capture what had been previously captured from them; they give it back, on payment of salvage, if otherwise, they keep it themselves. This is done, even if the captured property had been previously, and regularly condemned.—
The U.S. previous to the sale of the ship and cargo could certainly, not possessing them in her own right, have restored them to her rightfull owners—rightfull owners against herself—the captors from whom they had been received—The U.S. could have no right to retain to her own uce—could not have known who the former owners were—could not have determined on the validity of the capture— could not have known that the papers had not been remitted to France, and that the ship had not been condemned, by a regular process, or that it was not then in doing, or that it would not be done at some future time.—Under these circumstances could she have taken property captured in a course of war, from one nation and have given it back to its enemy? If she could not have restored the articles to the enemy, much less ought she to deliver to them, the proceeds of a sale, on an abandonment made with a design to make her liable to the abandoners.—
By accepting of the articles abandoned the U.S. impliedly acknoledged themselves responsible in some degree and to some purposes; certainly not responsible to those who neither had the general nor the special property of the articles sold—If the United States were suable no action could be supported on common law principles in favor of the former owners for the proceeds of the sales. It would be no defence if sued by the captors, to say—the articles sold were prize goods, taken from their enemy, which had never been condemned. The prize may yet be libelled in France, and the captors ordered by the admiralty Court there, to bring the proceeds of the sales into Court to be delivered to those, to whom they may be adjudged.—
Tr (DLC); undated; in Meriwether Lewis’s hand; endorsed by TJ: “Mr. Lincoln’s opinion”; also endorsed by TJ “at what moment property taken vests in the Captor” and “on the right of bringing prizes into our ports.” MS not found, but referred to in Lincoln’s letter of 5 July. Recorded in SJL as a letter of 3 July received from Lincoln at Worcester on the 11th, with notation “the Betsy Cathcart.”
According to Levi Lincoln’s letter of 5 July, he sent this opinion to TJ in the form of a letter. That document has not been found, but TJ apparently asked Meriwether Lewis to make a fair copy, probably because of the many emendations that Lincoln mentioned on 5 July.
The Betsy Cathcart (or Betty Cathcart in some documents) had been sold by the collector for the district of Wilmington, North Carolina (NDQW description begins Dudley W. Knox, ed., Naval Documents Related to the Quasi-War between the United States and France, Naval Operations, Washington, D.C., 1935–38, 7 vols. (cited by years) description ends , Dec. 1800–Dec. 1801, 272).
Words in the Treaty between the Americans and Britons: Article 25 of the Jay Treaty (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:262).
Treaty with France in Force: the 1778 Treaty of Amity and Commerce between the United States and France. The article referred to by Lincoln, Article 19 when the treaty was negotiated, became Article 17 after other articles were deleted during the ratification process (same, 2:16–17, 32–3).
The quoted passage following the four references to authorities on international law contains extracts from the section of Emmerich de vattel, Le Droit des Gens (published in English as The Law of Nations) that Lincoln cited. His other citations in that series were to Hugo Grotius’s De Jure Belli ac Pacis, Jean Jacques Burlamaqui’s Principes du Droit Politique, and the Summary of the Law of Nations of Georg Friedrich von Martens.
The case of the prize ship Christopher came before the British High Court of Admiralty in 1799 and was reported in Christopher Robinson, Reports of Cases Argued and Determined in the High Court of Admiralty; Commencing with the Judgments of The Right Hon. Sir William Scott, Michaelmas Term 1798, 6 vols. (1799–1808), 2:209–10.
On 13 July TJ received the following note from Albert Gallatin: “As soon as the President shall have transmitted his decision in the case of the Ship ‘Betty Cathcart’ the agent for the captors will receive information & may apply for the nett proceeds of sale—The Attorney General’s report is conclusive as to the main points. But it decides much more than the question submitted to him” (RC in DLC; undated and unsigned, in Gallatin’s hand; addressed: “The President of the United States”; endorsed by TJ as received from the Department of the Treasury on 13 July, pertaining to “the Betsy Cathcart,” and so recorded in SJL). TJ decided on 14 July that the proceeds of the sale, $34,035.48, should go to the captors (NDQW description begins Dudley W. Knox, ed., Naval Documents Related to the Quasi-War between the United States and France, Naval Operations, Washington, D.C., 1935–38, 7 vols. (cited by years) description ends , Dec. 1800–Dec. 1801, 272).
Lincoln’s opinion on the Betsy Cathcart is not included in the first volume of the Official Opinions of the Attorneys General of the United States (Washington, D.C., 1852) or in the opinions printed in 1841 as House of Representatives Document 123, 26th Congress, 2d session (see Cunningham, Process of Government description begins Noble E. Cunningham, Jr., The Process of Government under Jefferson, Princeton, 1978 description ends , 138–9).
1. MS: “appy.”
2. MS: “escapapes.”
4. MS: “repeat.”
5. MS: “poperty.”
6. MS: “instace.”