James Madison Papers

To James Madison from Levi Lincoln, 31 December 1804

From Levi Lincoln

Washington Decr. 31. 1804


I have the honor to submit to your consideration a summary result of my examination of the 3d Sec. of the law of Feby 28. 1803,1 respecting the three months pay of discharged seamen in a foreign country, which you requested.2 This Sec., in substance, requires, of the master of a vessel belonging to a citizen of the U S, on a sale of such vessel and a discharge of her company, in a foreign country, or on the discharge of our citizen seaman there, by his own consent, a payment of three months wages, beyound what may be due at the time of such discharge, for each person so discharged, two thirds of which to be paid to him, on his engagement on board of any vessel to return to the U S, the other third, to be applied, for returning other citizen seamen, from foreign ports, to the US, or supporting them there; which third, is to be accounted for, with the treasury, every six months, by the Person receiving the same. The words of this provision are general enough, and, in a literal construction, sufficiently broad, to embrace the “crew of a vessel, sold in consequence of her being stranded.” But the question is, if such a construction conforms to the meaning of the legislature, explained by principles of law and the subject matter. If there have been any legal decisions in point, I am ignorant of them, and, can therefore, only argue on principles. The law to which this is supplementary,3 provided in its 7th & 8th Secs. for the return or support of American seamen in five [sic] events: in case of shipwreck; sickness; captivety; and, lastly, in case of a discharge without consent or a contract therefor, on a sale of the vessel. In this last case, if the master refused to make reasonable provision for the return of such discharged seamen, the vessel might be arrested untill there should be a compliance. In this act the legislature consider’d the sailors who were to be provided for, on account of a wreck, as distinct from those who on account of the sale of their ship, might become distitute of the means of returning. There being, then, such a legislative construction in this act itself, as to confine its provisions for the return of a crew, in consequence of a sale, of the ship, to an ordinary voluntary sale, and to exclude a wreck sale, or a sale of necessity; It is but reasonable to consider the same terms, when copied into the supplementary law (as they nearly are copied, so far as they respect the description of the case intended to be provided for) as having, or being used in, the same sense, as they were in the original law; and of course as applicable, only, to sales in the ordinary course of merchandize—neither justice, policy, or equity, seem to require an appropriation of the proceeds of a sale for the support or return of a crew, which sale has been a lossing [sic] one; the result of a ruin’d voyage; & necessitated by a disasterous providence. It is difficult to beleive that the legislators, meant to charge shipowners, in addition to the loss of freight, and a considerable part of their ship, as the case may be, to a loss, of the amount of two month’s wages beyound what might be due for the benefit of the crew, and of one months wages, for the benefit of sailors at large, for this would be the effect of considering the act as embracing all sales: wreck sales; such a construction would be taxing property, not in the hands, of those who held it; but of those who had lost it; and as it respects one third of the three months pay, as a future provision for persons, with whom the assessed have had no connection.

There is another view of the subject. The laws of the U S do not describe the cases when seamen’s wages shall be considered as due, and when not; or when payable ‘pro rata,’ or when lost in toto from a destruction of the voyage & vessel; but have left these matters to be decided under the special circumstances of the particular cases according to the marine law, or the common law, as practiced on, in the several states. By these laws, freight is always considerd as the mother of wages, and so close is this legal connection that whenever the former can be claimed, the latter is demandable in the same proportion. If therefore the goods shall be saved & delivered at port and the vessel lost, both freight & wages would be due; but if the goods should be lost, then both freight & wages would be lost; and this, from a policy to stimulate from a principle of interest the sailor’s utmost exertion to save the ship & cargo, when in danger.

The law of 1803 must be so construed as to include all cases where there may be a sale of the vessel; or be considered as embracing those sales in the common course of merchandize only, where on the sale both freight and, wages have accrued. On the former construction: If a vessel, on her passage to her port of destination, should in distress, loss [sic] all her cargo, and of course her claim to freight; & yet arrive a mere wreck to a port, in which she from necessity should be sold & the crew discharged, they would be intitled to the two months extraordinary wages, or rather to the benefit of them; but not to one cent of the ordinary wages. This construction would not only be attended with the above unreasonable consequence but would also change the established principles of the marine & common law, by implication, which is never admissible, but from necessity. Considering the law as applying to the last description of sales only every word of it will have an operation, and in perfect consistency with equity, policy, and the established provisions of the marine & common law. Besides, there is a verbal argument from the law itself in favor of this last construction. The words are “three months pay over and above the wages which may then be due to such mariner or Seamen.” There is not then by this law a general provision for all sailors who may be discharged in a foreign country on the sale of their vessel but only for such to whom on such discharge wages may be due. The generality of the first member of the description of the persons to be provided for, is circumscribed by this last qualification, ‘wages due.’ The reasoning stands thus, The law of 1803 does not require the three months wages to be paid on account of that class of discharged sailors which may include those to whom, on a sale of their vessel, ordinary wages may not be due. Ordinary wages may not be due to the discharged sailors of a stranded vessel on the sale of her wreck. Therefore the law of 1803 does not require the payment of the three months wages on account of the discharged sailors of a stranded vessel, on the sale of her wreck.

On the whole, from the foregoing view of the subject, with deference to the opinions which may have been formed, or judgements given, I am constrained to beleive, that the legislators meant to provide only in cases of the voluntary sales of vessels & discharges of their crews, in the ordinary course of trade, and that such ought to be the construction of the act. I have the honor to be very respectfully your obt Sert

Levi Lincoln

RC (DNA: RG 59, LOAG). Docketed by Wagner, with his notation: “Whether three months wages are due in case of an involuntary sale of a vessel?”

1For the “Act supplementary to the ‘act concerning Consuls and Vice-Consuls, and for the further protection of American Seamen,’” see U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:203–5.

3For the 1792 “Act concerning Consuls and Vice-Consuls,” see U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:254–57.

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