Memorandum on Restitution of Prizes
[on or after 17 July 1801]
It is objected that the act of Congress Mar. 3. 1800. c. 14. sect. 1.2. entitles a citizen owner of a vessel to restitution until the vessel has been condemned by competent authority on paying salvage to the captor. every man, by the law of nature, and every fellow citizen by compact, is bound to assist another against violence to his person or property. tho’ therefore by the law of nature the property of the sufferer has past to his enemy by capture, yet if it be retaken, most states, if it belong to their own citizen, & is retaken by their own citizen, oblige him to restore it, on recieving paiment for the risk & trouble of recapture. this is done by the 1st. & 2d. sections of the act.1 in like manner if the property taken belonged to a friend, & was retaken by their citizen, they compel restitution, provided the laws of the friend would in the like case have compelled restitution to them. this is the object of the 3d. section of the act beforemend.2 as some limit however is necessary to the claim3 of restitution, some nations have determined it when the property was carried infra presidia of the enemy: or into their fleet, or after a pernoctatio, or 24 hours; some not till condemnation in a competent court. the latter is the English rule, and Congress in the act beforementioned has adopted it for the US. but the circumstance of condemnation is thereby made4 material only in the case of goods taken by an enemy from a fellow-citizen or friend & retaken and restitution claimed, or in the case of enemy’s property taken, and an inter-claim of partition among the captors. and the intervention of a court is made necessary in these cases, only on behalf of the rights of the friend or citizen; not out of any tenderness to the rights of the enemy whose property has been taken; not to save that to him in any case. suppose a citizen of the US. had sole5 taken a French armed vessel, & without carrying her into court at all, a treaty of pacification had been made containing no provision for restitution. the law of nature says the property was transferred by the capture, and no law of the US. has made it necessary for a sole-owner to go into any court. surely, after the peace, the former French owner, could not recover the property in our courts. the result of this is that adjudication is not necessary to secure the property in the captor but in the cases of recapture, or of contending parceners: that the transfer is compleat without it, by the mere act of capture.
But while it is clear enough that an enemy cannot claim the benefit of these acts requiring adjudication in certain cases, because not made for him, yet the doubt remains whether the treaty made by the president & Senate was not competent to render adjudication a necessary circumstance, even in favor of the enemy. the treaty has certainly done this, & retro-actively. their competence depends on the extent we give to the words of the constitution empowering them ‘to make treaties.’ these words are very indefinite: but surely we must never admit them to be of universal comprehension: and if we must of necessity give them some definite extent,6 I do not know a more rational one than ‘to those things usually settled by treaty.’ the question then assumes this shape. Is the restitution of property rightfully taken in war, among the usual subjects of treaty?
MS (DLC: Madison Papers); undated, but written in response to Madison’s communication printed at 17 July above; entirely in TJ’s hand; written on both sides of one sheet, TJ beginning low on the recto side as if he anticipated pressing a portion of the text on the same sheet as the addendum to his memorandum of 15 July. PrC (DLC: TJ Papers, 119:20539–40); with recto of MS pressed to bottom of PrC of addendum to Memorandum on Restitution of Prizes, 15 July (see note 2 below).
1. Preceding sentence interlined.
2. In PrC, text through this word is pressed to the same sheet as the addendum to the 15 July memorandum. Remaining text pressed on second sheet of PrC.
3. Preceding two words interlined in place of “this right.”
4. Preceding two words interlined.
5. Word interlined.
6. Preceding word interlined in place of “construction.”