James Madison Papers

To James Madison from Levi Lincoln, 25 June 1802

From Levi Lincoln

Washing[ton] June 25th 1802


Since I forwarded you the papers respecting the schooner Peggy, Mr Pichon has furnished me with the opinion of the supreme Court,1 on which, their decree was founded, and which, connects their decision with the treaty. Had I have seen this opinion before, I should [have] given my own, in defference to it, with less confidence, but still differing from it. Our convictions depend on the views, we have of a subject, and the force with which evidence & reasonings impress our minds. The Court give no opinion on the only questions which the record of the cause put in issue, between the parties. Was the Peggy armed? was she taken on the high seas? & was the decree of the circuit Court definitive, or final, in the sense of the treaty, were the questions argued at the Supreme Court. The negative of either of the two first, would in my opinion, have controuled the conclusion, which the court appear to have drawn from the negative of the last, and yet the court seem to infer, that the case was within the provisions of the treaty, merely, from considering the judgement which they reversed, as not being final. This could not be correct, but on the idea that the treaty was designed to embrace captures of all descriptions, & was not confined to those taken under the non intercourse laws. This construction would be injurious to sufferers who had been captured without probable cause, as it would deprive them of their claim of damages; and on the idea, of the circuits judgement’s being final, of the benefit of a writ of Error, which might restore the property, on the reversal of a final judgment. […]2 Going out of the meaning of the term definitive or final as fixed by its use in the law which gives a writ of error to reverse a final judgmt into the provisions of the treaty, and it appears to me to mean the same. The opinion of the Court says, “the terms used in the treaty seem to apply to the actual condition of the property, and to direct a restoration of that which is still in controversy between the parties. On any other construction the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence. An interlocutory order for sale is not a condemnation. A stipulation then for the restoration of Vessels not yet condemned, would on this construction, comprehend as many cases as a stipulation for the restoration of such as are not yet definitively condemned. Every condemnation is final as to the Court which pronounces it—and no other difference is perceived between a condemnation, and a final condemnation, than that the one terminates definitively the controversy between the parties, and the other leaves that controversy still pending.” It is necessary, to determine the exact force of this reasoning, to know the prize processes, and their incidents, in France as well as in this country. If in that country, there is any previous examination, which condemns, or exempts captured property, to, or from further trial it renders the distinction necessary. The opinion admits a judgment of an inferior court is final, if aquiesced in. But the foregoing construction excludes all proof of an acquiescence, if the right of bringing a writ of error militates with it, & proves it not to be final.

In cases w[h]ere there is no limitation for a writ of error there could be no definitive judgment. The present instance, is limited to five years on the judgt of the cir[c]uit court. But a writ of error, may be brought, on a writ of error, to correct an error, in the proceedings on the first writ of error—of course the judgment is not yet definitive, on legal principles, & on the above construction. If you look beyond that judgment, on which Exon. can, & does issue, & puts individuals into the possession of the property, which is adjudged to them, for a final judgment, it will be difficult to find it. To extend the treaty construction, beyound this, would be confounding all the distinctions which it seemed to make, in reference to us—and its operation, would restore the whole of the property, we had ever taken from France, however it might have been, before the making of the treaty, condemnied [sic], abandoned by its former owners, distributed, & spent. Surely our commissioners would not have stipulated to have given up all we had taken, & to have received but a part, of what had been taken from us, nor would our Government have ratified one so unequal, without the attempt, to amend it. This construction also confounds, & renders nugatory, the distinction made between national ships mentioned in the 3d., & the captured property, which is to be restored, by the 4th Article.3 The court I think are mistaken, in supposing there is no ground for a distinction on the construction which I contend for between a condemnation & a final condemnation. A libel decided upon in a district court, is liable to be carried to the circuit court, by an appeal, the judgt appealed from is final, in the first court, in reference to interlocutory Judgments—but not, as it respects the process—the same process goes to the circuit Court—no execution can issue—And the judgment which would have been final, had there have been no appeal, is as much suspended thereby, as if a new trial had been granted. Not so with a writ of error to the Supreme Court. There the judgt. is not suspended, & except in the case, of a bond’s being given, within ten days, execution may issue, & the judgt be carried into complete effect. How far a bond, which would suspend the Exon., would bind together the judgt in the circuit Court, and the writ of error, which is, quasi, a new process, so as to make them a continued one, is not now necessary to consider, as it is not our case.

But however this general principle may be determined It can have little, or no effect on the case of the schooner Peggy. The Supreme Court who were competent to decide this principle, have determined it, in her case. It must therefore be considered as binding in this particular instance. Altho, they have fixed the principle, for themselves, & thereby bound others, in reference to the case on which they have adjudicated—It can, I conceive, extend no farther. In all other cases, in which the executive, or other courts, are obliged to act, they must decide for themselves, paying a great defference to the opinions of a court of so high an authority as the supreme one of the United States, but still greater to their own convictions, of the meaning of the laws & constitution of the United States, and their oaths, to support them.

It appears by a certificate of the Clerk, that no bond was given by the Plaintiffs in error, and indeed the distribution of the property, is proof of it, by the circuit court. I have been informed, that Mesrs. Bayard and Griswold appeared in the S Court, and argued the cause, for the Captors, If so, it [illegible] the want of notice to them. Government, I conceive, are now immediately, or in the event, that the owners cannot recover, from the captors the other moiety of the avails of the Schooner Peggy & her cargo, liable for it. In strictness, I beleive with the court, their judgment divest the property, and entitles the owners to recover from them, their distributed shares. How far under the circumstances of the case, it is reasonable, for Government, to make them compensation, you are much more capable of determining, than myself. Accept Sir assurance of the high esteem with which I am most respectfully your most obt Sevt

Levi Lincoln

Be pleased to let Mr Pichon have the copies of the courts opinion after you have done with them.

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