James Madison Papers

To James Madison from Levi Lincoln, 26 May 1802 (Abstract)

§ From Levi Lincoln

26 May 1802, Washington. Gives opinion on the case of a Portuguese brig “which you did me the honor of submitting to my consideration.” On 28 July 1800 the brig was recaptured by Captain Rodgers of the ship Maryland after having been captured thirteen days earlier by a private armed schooner from Bordeaux. Rodgers arrived at St. Kitts on 20 Aug. with the brig. The admiralty court there refused to let the brig be taken to the U.S. for adjudication, assuming jurisdiction of the case “as one, respecting the ship of an ally captured from a common enemy, by an ally.” The court ordered the brig to be “restored, on the payment of salvage.” There was no appeal by the agent for the captors. “The minister for the french Govt. demand[s] this vessel,1 or the salvage of the U. S. as being a vessel within the description of vessels, provided for in their treaty with France, & as not being finally condemned at signing of that treaty.”

“In my view of the cause, it is not necessary to determine how far the Court of Admiralty is justified, by the laws of nations, in its proceedings, as they respect the U. S. or the Portuguise owners of the Brig.

“The words of the treaty are, ‘property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications, shall be mutually restored; on the following proofs of ownership’: viz—with respect to merchandize, passports; with respect to cargo, certificates; and in case of the destruction of these documents, other proof.

“The property which is to be restored, is designated by the descriptive term ‘captured’ and is such as was capable of being condemned as french property to the use of the Captors &c. and such as America could rightfully restore.… Besides—

“The word captured, as a technical & a descriptive term, does not include the meaning, and ought not to be construed, to have the effect, of the term recaptured, in the sense of the treaty. Also—

“The property of an ally recaptured, is incapable of being condemned, in the sense in which this term is used in the treaty; it of course, is acquitted, and the judgment of acquittal, is of itself an act of restoration. In no event could there be a judgment of condemnation. Further—

“The described Property is such, as a tittle to restoration, is capable of being proved, either by the passport of the ship, or a certificate of her Cargo. These documents, could have an operation as proof … only as applicable to original french ships. In the present case, these documents prove nothing more concerning a right of demand, in France than, in England, or, in Turkey. Again—

“The treaty was signed the 8th. of October 1800; previous to which, Judgement had been rendered & the property restored to the former owners, on the payment of salvage. The owners of the brig and cargo, are now repossessed of their property. The act is final as it respects all parties. Their rights are executed. There is nothing which, either the treaty, or further process, can operate upon.

“The French S[c]hooner took, or captured the Brig subject to the chances of a recapture, by its own crew, or another ship of the same nation, or by any other power, at war with France. The moment that a recapture took place, the first captors lost all claims on the recaptured property—and are, in the same situation, as tho’ they had never made the capture. If it had been taken a third time, by another French ship,… these first captors would have not been considered as owners & would not have had any claims for salvage.… The portuguise, had a right, to get the repossession of their vessel, as against France, by any means in their power.… This right could not be abridged, in favor of France, by the American recapture. This event, extinguished the right of the first captors, in toto.…

“If they [sic] Brig had been in the possession of the American captors unproceeded against in law at the time the treaty was signed, still the case would have been the same. She would have been the property of Portuguise, and the United States, being bound to restore her to them on their payment of salvage, could not stipulate … to deliver her to France. Nor can they, be any more bound to pay the salvage over to France, than they would be, in case the Brig had been owned originally by Americans, and being captured by the French, had been recaptured by other Americans. Indeed the term, salvage, or a right to it, has no meaning, as applied to first captors—nor can the term restore, which implies a previous possession, which in the present case, the french in no sense of the word can be considered as having had.

“I am, upon the whole, decide[d]ly of the opinion, that the treaty does not authorize the French Govt. to make any demands on the United States for property recaptured from it, & which, they were obliged to restore to its original owners, on the payment of salvage.”

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