James Madison Papers

To James Madison from Levi Lincoln, 29 October 1802 (Abstract)

§ From Levi Lincoln

29 October 1802, Worcester. Has considered the case of Captain Clifton,1 on which JM asked his opinion. “It is believed no law recognized by nations, enacted, or adopted by the U States is particularly applicable to this case, or will render it proper for the US to interpose. I doubt very much the authority of the general Govt to take, forcibly detain in custody, and bring to this country from Europe a person charged with barretry on private property. He being here, it appears to me clear he would be amenable to our courts. The tortious act must have originated on the high seas, or at least must have been so continued as to have existed on the high seas, and constituted a new act of barretry in every successive place, to which the vessel was carried.” If the act were a criminal offense, Clifton would be triable by U.S. courts, although had the offense occurred “within the territory and exclusive jurisdiction of a foreign nation it might be questioned. This being a civil offence, a breach of trust, there can I think be no doubt.”

“The case … appears to me, a deep marked instance of barretry. Still, it may be otherwise, and the US are not authorized to examine into & decide on the evidence, but in regular process, exhibited to proper tribunals, by the injured party. Cliftons imprisonment by the Spanish Govt. is not adverse to the rights of the US or of their citizens of which they complain as against that Govt., but in aid and in conformity to the supposed wishes of this Govt. and the actual wishes of the owners. As the US having nothing to complain of or ask for, from the Spanish Government, I can see no necessity for their interference. If Clifton has violated the laws of Spain; or if its laws will give remedy to the injured owners, they are at liberty to pursue it there; if not, they will take their own measures to obtain it, elsewhere. If the owners are unlawfully detaining their master in prison, they are liable to his action. The controversy appears to be of a civil nature, between private persons, and like all such cases, to be left to take their course, on the ordinary principles of law. A master’s defrauding and cheating his owners, by embezzling their ship and goods on board being triable by a court of Admiralty and not differing in principle from any other fraud, or breach of trust.”

“The sufferings of Clifton, as a citizen imprisoned in a foreign country,… are objects of attention. He certainly ought to be brought to trial, or to be released. My opinion is, that it would be best for Mr. Pinckney, considering what has already taken place, to inform the owners or their agents that it is a matter involving private rights and with which the US cannot with propriety interfere and that therefore they will pursue such measures for redress of their injuries in conformity to law, as they may judge expedient.”

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