James Madison Papers

To James Madison from Levi Lincoln, 17 June 1802

From Levi Lincoln

Washington June 17 1802


I have the honor, in compliance with your request,1 to submit to your consideration, my ideas respecting the case of the schooner Peggy.

This vessel, if the information I have been able to collect, abroad, is correct, for it does not appear from the papers I am furnished with, was captured in the neig[h]bourhood of a west India Island, and so near the shore, and so destitute of arms, as to render it doubtful whether she was on the high seas, or, an armed vessel, at the time of the capture, in the sense of the law which authorized the taking of french vessels. These are said to have been the questions, on which, the cause was placed, and the acquittal depended—& these are assumed as facts, in considering the cause. She was libelled in the District Court of Connecticut July 1800. and on an appeal to the Circuit Court on the 23d of Sept. following was condemned, as good prize to the Captors, one moiety to their use, & the other, to the use of the United States. The Clerk of the Court held the avails of the apprized value of this vessel, & her cargo amounting to $18,804.72 subject to the disposition of law, at the time of this condemnation.

Final decrees, and judgments, in civil actions &c. in a circuit court, the matter in dispute exceeding $2,000, may be reexamined, reversed or affirmed, by writ of Error brought to the Supreme court, within five years from the making of such a decree, the Plaintiff in Error giving to the adverse party, notice of such writ, thirty days previous, at least, to the setting of the Court to which it is made returnable, and giving also to the judge signing, the writ of error, or the citation, sufficient security for the prosecution of the writ to effect, & to answer all cost & damages, if he fail to make his plea good. Writ of Error stays Execution only in cases, where it is sued out & a copy thereof lodged in the clerks office for the adverse party within ten days from the rendition of judgt. &c. It does not appear, that this was done; It is certain, no citation was served on the adverse party—and I assume, as a fact, no bond for the prosecution of the writ of error, was ever given.

It appears tht. On the 15th of April 1801, by a representation of the Clerk to the Circuit Court which had decreed the condemnation of the Schooner Peggy & her cargo, as lawful prize, to the use of the captors & the U. S, in moieties—that the abovementioned money was in his hands; that a writ of Error had been issued dated Octr 2d., the determination of which was unknown—that the captors had requested the moiety which had accrued to them by the sd decree; and that the President of the United States, had ordered, so far as they were concerned, the property to be delivered to the Claimants. It also appears, from an application of Mr Livingston,2 who acted as Atty to the claimants, who were the Plaintiffs in Error, that proceedings on the sd writ in the Supreme Court were suspended for the want of a citation or notice to the adverse party, and that Mr. Edwards the Atty of the U. S for the same District, had acknowledged in writing a citation & a notice on him as atty to the U. S.

Under these circumstances the said Circuit Court on the 15th day of April 1801 order one moiety of the said avails, after deducting the cost expences &c, to be paid to the Captors, & the other, to be paid into the treasury of the U States. The Captors were paid accordingly, & the residue was lodged or deposited in the treasurer’s office.

The Supreme Court, in their last December term, try the cause on the writ of Error, and decree in the following words viz—”The Court having heard the arguments of counsel in this cause, and mutually3 considered the same do adjudge and decree, that the decree of the circuit court of the U. States in this cause be, and the same is hereby reversed, and that the Schooner Peggy & Cargo with her apparel, guns and appurtenances be restored to the sd Claimants, but without cost.” On this decree the sd. moiety lodged in the treasury, has been paid, to the claimants, without any further deductions of cost, or expence. The other Moiety, Mr. Pichon now claims, as their agent, from the U. S, under the treaty.

The 4th Art: provides, “that property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications, shall be mutually restored”—and further, “that this article shall take effect from the signature of the convention, and if from the date of the sd signature, any property shall be condemned contrary to the intent of the sd Convention, before the knowlege of this stipulation shall be obtained, the property so condemned shall without delay be restored, or paid for.”4 The only effect which this article can be construed, as designed to have from its signature, is a description of the property which is to be considered within its operation.

The treaty was signed Sept 30th 1800—Judgt in Circuit Court 23d of Sept. & in Supr. Court Decr 1801 previous to which, the treaty had been ratified. The principal questions are: First, Is Govt. obliged by the treaty to restore to the claimants, the property delivered to the Captors? 2d. If not, are they obliged to do it, by the law of nations, or the Judgment of the Court, the treaty being out of the way?

The design of the convention, was to provide for such cases as were not otherwise provided for, to secure, the restoration of such a description of property to the original owners, as the United States were not obliged to restore, by any preexisting laws, or obligation. As to such property, the treaty was alone necessary[;] to other[,] nugatory. It could have for its object, only, such property, which had not been finally condemned at the signing [of] the treaty, or such, as without its provisions, was liable to condemnation, & it can operate alone against captors, who, independent of the treaty stipulation, would have had a right to hold these captured articles, & who, by that, are obliged to restore them. There could be no need for extending its provisions further. In others [sic] instances of captures, there were other provisions; if for a breach of the laws of trade; if without any authority; if as a trespass, in violation of the rights of individuals, or of the nation; the remedies were under the laws applicable to such subjects, & by which, the courts could restore, with damages & cost. Indeed, the terms, ‘condemned,’ and which could have been, ‘condemned,’ had it not have been for the treaty, are used, in it, as descriptive, of what is to be restored, under it. The preamble states, as its object, the determination of the differences, which had arisen between the two States. The words in the 4th Art are, “property captured, & not yet definitively condemned,” or, “which may be captured before” &c—or, if any “property shall be condemned contrary to the intent of the sd convention, & before the knowledge of this stipulation shall be obtained; the property so condemned, shall without delay be restored, or paid for.” From which, it is evident, that the property on which the treaty was meant to operate, was not, such, as had been finally acquitted, or, by existing laws, as would in a course of regular judicial proceedings, be acquitted, but such, as a knowledge of the treaty stipulation, would prevent a condemnation of. A French vessel, therefore, taken, not on the high seas, &, unarmed, is not to be restored under the treaty—as property within its provisions—admitting there had never been any definitive condemnation, And the proceedings of the Supreme Court, seem to have been, on this idea.

But if the Peggy & her cargo are included in the terms, ‘property captured,’ in the sense of the treaty, were they not, definitively, condemned at the time of the signing of the Convention? A definitive, judgment, decree, or condemnation, are legal terms, and have a technical meaning, they are synonymous with final judgment, decree & condemnation. The word final, & definitive, in law, as in common parlance, have the same meaning. A final judgment, or decree, is that which puts an end to a suit, by declaring that the Plaintiff, or libellant, has, or has not, intitled himself to recover the object of his suit, and it is opposed to an interlocutory, or intermediate, judgment, or decree. In suits, in which, an appeal is given by law, it is true, the judgement is not considered as final, untill the time, allowed for the appeal, has elapsed. Within that time, no execution can issue. And the effect of the appeal, is, to suspend the judgment below. But a writ of Error, does not suspend, the judgment, even where it is a supercedeas of the Exon. In the present case, as the Exon. could issue, on the decree, in the circuit court, it is proof, that it was final, or definitive. Indeed, the very law, which gives this writ of Error, provides, that final decrees and judgements, in the circuit courts may be reexamined, reversed or affirmed, in the Supreme Court. It, therefore, has fixed the meaning of the word final, as applied to a decree of condemnation. The word definitive, is not used in our law, as applicable to the condemnation of captured property, but the treaty uses it, as descriptive of a judgment in our prize courts, of condemnation, of such property. It therefore can apply, only, to what our law, and the courts, consider, as their final judgements. The decree, on a writ of error, is a judgment, of reversal, or affirmation of a former Judgment of condemnation, not a judgment of condemnation itself. There is one further idea, on this subject. The makers of the treaty, are to be presumed to have understood the subject, about which they treated & the existing laws by which it was regulated. The sense, in which, they use the term definitively, is such, as not only admits of, but actually supposes some of the captured property, to have been definitively condemned. On the ground, that no judgement was to be considered as definitive, which was liable to be reexamined, by writ of error, there could [not] have been, nor can there be any definitive condemnation of French property in America under the treaty—The five years for the writ of error, not having elapsed. It is, to my mind very clear, that the owners of the captured Schooner & her cargo, cannot claim a restitution of her, under the treaty.

At law, the decision of the circuit court, determined and fixed the original owners claim to a restitution, at their own election. If they did not give bonds, the property was to be distributed. If notice of the writ of error was not given to the adverse party, they would not be bound by it. This was not done. Under these circumstances, on strict legal principles, the court below, I conceive, were justified in making distribution. They had condemned the schooner as taken, on the high seas, with arms. The treaty was not, then, ratified, & of course, not binding. And if it had been, they having rendered a definitive judgement, previous to the signature it could have no effect on the cause. There being no bonds, admitting there had been a citation, on the writ of Error, & the treaty out of they [sic] way, the captors were intitled to a moiety of the avails of their prize. This then, they have been put in the possession of, by judgement of law. If that judgement has been, regularly, reversed, on a writ of error, Those who took a benefit under it, are by law bound to make restoration, to those from whom they took it. The U S have done it, as it respects its moiety. By the judgement of the S. Court, U. S. are not answerable for the other half. This, is on the idea that I am right, in considering the circuit judgement, as definitive, or the reversal, as applying to a case, not within the provisions of the treaty.

How far the captors ought to have been, or are, bound by an acknowledgement of the service of a citation, on the attorney of the U. S., to give effect to a writ of Error, as against them; whether it ought to divest them of property, that the law had vested in them, without having an opportunity to defend it; or whether the claimants have not, by their own laches, lost their law & all remedy in not notifying them agreeably to law, thirty days before the return of the writ of Error, are questions which are for the parties to attend to, & which, as they do not involve the interest of Government, I have not looked into, & am not able to decide upon. I have been thus particular, that you might possess the reasons, on which the above opinions are formed. As the letter is lengthy, and I am my own copying clerk, you will be kind enough, to excuse the many interlineations, & rasures, which would require a transcriber to cure. I am Sir most respectfully your very obedient Sevt.

Levi Lincoln

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