Memorandum on Restitution of Prizes
Whether prizes & the proceeds of them taken after the date of the treaty with France can be restored by the Executive, or need an act of the legislature?
The constitution has authorised1 the ordinary legislature alone to declare war against any foreign nation. if they may enact a perfect, they may a qualified war, as was done against France. in this state of things they may modify the acts of war, & appropriate the proceeds of it. the act authorising the capture of French armed vessels & dividing & appropriating their proceeds, was of this kind.
The constitution has given to the President & Senate alone the power (with the consent of the foreign nation) of enacting peace. their treaty for this purpose is an absolute repeal of the declaration of war, and of all laws authorising or modifying war measures. the treaty with France had this effect. from the moment it was signed all the acts legalising war-measures ceased ipso facto; and all subsequent captures became unlawful. property wrongfully taken from a friend on the high sea is not thereby transferred to the captor. in whatever hands it is found, it remains the property of those from whom it was taken; and any person possessd of it2 private or public, has a right to restore it. if it comes to the hands of the Executive they may restore it: if into those of the legislature (as by formal paiment into the treasury) they may restore it. whoever, private or public, undertakes to restore, takes on themselves the risk of proving that the goods were taken without the authority of law, & consequently that the captor had no right to them. the Executive, charged with our exterior relations, seems bound, if satisfied of the fact, to do right to the foreign nation, & take on itself the risque of justification. —submitted to mr Madison’s consideration.
to the preceding observations it may be added that the stipulation to restore vessels taken after the treaty is only pro major cautelâ; as, without that, the right to demand & the duty to restore, would equally exist.
Nor is the objection good that till ratificn the treaty is not compleat: because when ratified, it is confirmed ab initio.
These observns respect only vessels taken after the signature of the treaty. but it is said there is one vessel taken before the treaty but not yet condemned. I suspect this will stand on very different ground. by the law of nature, property is transferred by the act of capture, which act is compleat when the victory is absolute. the act of Congress July 9. 1798. says ‘all armed vessels captured shall accrue to the captors, & on due condemnation shall be distributed &c.’ this confirms the natural law. the property vests by the capture; the condemnation is only the declaration of a fact, to wit, that the capture was rightful, & a partitioning among the owners. if condemnation was an act of war, it would be made unlawful3 by the treaty: but it seems to be a mere municipal act or decision between inter-claiming citizens. if the property was definitively transferred by the capture4 under an existing act of the legislature who were competent to the passing that act, it may be doubted whether the Presidt. & Senate, can retrospectively annul that.—the legislature can; and they ought in good faith to the foreign nation to make the restitution; but also to give indemnificn to the captors, whose legal acquisition is taken from them for the purposes of public peace.
MS (DLC: Madison Papers); entirely in TJ’s hand, ends with his signature and date. MS (same); contains the text printed below the date; undated, but before Madison’s response, printed at 17 July below; entirely in TJ’s hand; addressed on verso: “The Secretary of State.” PrC (DLC: TJ Papers, 114:19641); pressed copy of first MS. PrC (same, 119:20539); pressed copy of second MS; with beginning portion of TJ’s Memorandum on Restitution of Prizes, [on or after 17 July 1801], pressed at foot of same sheet.
Pro major cautelâ: pro majori cautela “for greater caution; by way of additional security.” This term usually “applies to an act done, or to a clause put in an instrument as a precaution” (Bryan A. Garner, ed. in chief, Black’s Law Dictionary, 8th ed. [St. Paul, Minn., 2004], 1248–9).
The text printed below TJ’s signature and date is on a separate sheet. It appears to be an addendum to the dated memorandum, but whether TJ conveyed the two components to Madison together or separately is unclear. TJ must have given the undated addendum to Madison no later than 17 July, since on that day TJ received a communication from Madison (printed at that date below) that mentions TJ’s reference to the act of congress of 9 July 1798 (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:578–80). TJ responded with what was effectively another supplement to the memorandum printed above. His reference in that response to a March 1800 act of Congress cited by Madison establishes the sequencing of the memorandums (see Memorandum on Restitution of Prizes, [on or after 17 July 1801]).
On 11 July, Madison received a memorandum from Louis André Pichon, dated 10 July, that enumerated “unanswered” issues of restitution of property and prizes remaining after the treaty between the United States and France. In the margins of the document, TJ made notations in response to some of the points raised by Pichon. Next to a query from Pichon about the “meaning of the american Government on the clauses of the last treaty which relate to the admission of privateers & prises,” TJ wrote: “we have too much occupation with actual cases to have time to consider what we would do in those which may possibly happen and which possibly also may not happen.” Pichon, acknowledging that France had “restored many vessels,” inquired about the president’s course of action in restoring property under the Convention of 1800. He asked if “legislative cooperation” would be necessary, and TJ commented alongside: “we have restored the Berceau without legislative interference: when another case of restoration is proposed, the circumstances of the case will enable us to say what is to be done. but should we not have official information of the French restitutions?” To a statement by Pichon about consuls’ authority to take possession of private individuals’ restored property, TJ observed that “there being no Consular convention, the Consuls of France have no powers but as far as voluntary submission yields it. they can do nothing coercive.” Noting that the U.S. government had received half the proceeds of sales of prizes, Pichon asked if restitution would require “legislative concurrence.” TJ noted: “the opinion seems to be that the Executive can restore the public moiety provided it has not got into the treasury.” Finally, to Pichon’s expectation that restitution for the Insurgente might still be pending, TJ responded that “a contract to do what is impossible, is null. the Insurgente did not exist when we contracted to redeliver her.” Madison, drawing on TJ’s comments, replied to Pichon’s memorandum on 16 July (MS in DNA: RG 59, NL, in a clerk’s hand, with TJ’s notations in margin in pencil; 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 , 1:398–400; 422).
TJ also made a notation in the margin of a letter that Pichon wrote, apparently to the secretary of state, on 21 Apr. Forwarding a copy of instructions to colonial officials from the French government to implement the Convention of 1800, Pichon referred to documents that would demonstrate the cooperation of officials at Guadeloupe. TJ wrote in the margin: “none of these papers are now with the letter. they should be sought & translated” (RC in DNA: RG 59, NL; endorsed by a clerk as received 21 Apr.; TJ’s notation in pencil).
1. TJ here canceled “Congress.”
2. Preceding three words interlined.
3. Preceding two words interlined in place of “repealed.”
4. TJ here canceled “still.”