the French Government demands now, in right of its citizens, it can have no claim. The Portuguese had a right to get the repossession of their vessel, as against France, by any means in their power-by force, by ransom, or stratagem. 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; and it created a new right in favor of the Portuguese to have their recaptured property restored on payment of salvage, and devolved an obligation on the recaptors to restore; and this they may do without salvage, if they please.

If the 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 Portuguese; and the United States, being bound to restore her to them on their payment of salvage, could not stipulate, in violation of this obligation. and of the Portuguese right, 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 cap. tors; 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 consid ered as having had.

I am, upon the whole, decidedly of the opinion that the treaty does not authorize the French Government to make any demands on the United States for property recaptured from it, and which they were obliged to restore to its original owners on the payment of salvage.

I have the honor, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

WASHINGTON, June 17, 1802.

SIR: I have the honor, in compliance with your request, 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 neighborhood 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 her 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; and 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 September following, was condemned, as good prize to the captors; one moiety to their use, and the other to the use of the United States. The clerk of the court held the avails of the appraised value of this vessel and 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 re-examined, reversed, or af

firmed, by writ of error brought to the Supreme Court, within five years from the making of such a decree; the plaintiffs in error giving to the adverse party notice of such writ at least thirty days previous to the sitting 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, and to answer all costs and damages if he fail to make his plea good. Writ of error stays execution only in cases where it is sued out, and a copy thereof lodged in the clerk's office for the adverse party, within ten days from the rendition of the judgment, &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 even given.

It appears, 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 and her cargo as lawful prize to the use of the captors and the United States, in moieties, that the abovementioned money was in his hands that a writ of error had been issued, dated October 2, the determination of which was unknown; that the captors had requested their moiety which had accrued to them by the said 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, who acted as attorney to the claimants, who were the plaintiffs in error, that proceedings on the said writ in the Supreme Court were suspended for the want of a citation or notice to the adverse party; and that Mr. Edwards, the attorney of the United States for the same district, had acknowledged, in writing, a notice on him as attorney to the United States.

Under these circumstances, the said circuit court, on the 15th day of April, 1801, order one moiety of the said avails, after deducting the costs, expenses, &c., to be paid to the captors, and the other to be paid into the Treasury of the United States. The captors were paid accordingly, and the residue was lodged or deposited in the Treasurer's office.

The Supreme Court, at 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 the counsel in this cause, and mutually considered the same, do adjudge and decree, that the decree of the circuit court of the United States in this cause be, and the same is hereby, reversed; and that the schooner Peggy and cargo, with her apparel, guns, and appurtenances, be restored to the said claimants; but without costs." On this decree, the said moiety lodged in the Treasury has been paid to the claimants, without any further deduction of cost or expense. The other moiety Mr. Pichon now claims, as their agent, from the United States, under the treaty.

Its 4th article 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 said signature, any property shall be condemned, contrary to the intent of the said convention, before the knowledge of this stipulation shall be ob tained, the property so condemned shall, without delay, be restored or paid for." 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 September 30, 1800; judgment in circuit court 23d of September; and in Supreme Court December, 1801; previous to which, the treaty had been ratified.

The principal questions are-1st, Is Government obliged by the treaty to restore to the claimants the property delivered to the captors? 2d. If not, is it obliged to do so 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 pre-existing 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; and it can operate alone against captors who, independent of the treaty stipulation, would have had a right to hold their captured articles, and who, by that, are obliged to restore them. There could be no need for extending its provisions further. In other 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, and by which the courts could restore without damages and costs. Indeed, the terms condemned, and which could have been condemned had it not 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 article are, "property captured and not yet definitively condemned;" or, "which may be captured before," &c.; or, "if any property shall be condemned contrary to the intent of the said convention, and 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, and 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 and her cargo are included in the terms property cap. tured, in the sense of the treaty, were they not definitively condemned at the time of signing the convention? A definitive judgment, decree, or condemnation, are legal terms, and have a technical meaning; they are synonymous with final judgment, decree, and condemnation. The words final and definitive, in law, or 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 entitled 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 judgment is not considered as final until 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 supersedeas of the execution. In the present case, as the execution could issue on the decree in the circuit court, it is proof that it was final or definitive. Indeed, the very law which gave this writ of error provides that final decrees and judgments, in the circuit courts, may be re-examined, 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 definitive 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 judgments. 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, and the existing laws by which it was regulated. The sense in which they used 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 judgment was to be considered as definitive, which was liable to be re-examined 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 and her cargo cannot claim a restitution of her under the treaty.

At law, the decision of the circuit court determined and fixed the origi nal 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 should 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, and of course not binding. And if it had been, they having rendered a definitive judgment 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, and the treaty out of the way, the captors were entitled to a moiety of the avails of their prize. This, then, they have been put into the possession of, by the judgment of law. If that judgment 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 United States have done it, as it respects its moiety. By the judgment of the Supreme Court, the United States are not answerable for the other half. This is on the idea that I am right in considering the circuit judgment as definitive; or the reversal applying to a case not within the provisions of the treaty.

How far the captors ought to have been, or are, bound by an acknowledgment of the service of a citation on the attorney of the United States, 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 and 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, and which, as they do not involve the in

terest of Government, I have not looked into, and 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 this letter is lengthy, and I am my own copying clerk, you will be kind enough to excuse the many interlineations and erasures, which would require a transcriber to cure.

I am, sir, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

WASHINGTON, June 25, 1802.

SIR: Since I forwarded you the papers respecting the schooner Peggy, Mr. Pichon has furnished me with the opinion of the Supreme Court, on which their decree was founded, and which connects their decision with the treaty. Had I seen this opinion before, I should have given my own (in deference 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 and 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 schooner Peggy armed? was she taken on the high seas? and was the decree of the circuit court definitive or final in the sense of the treaty? were the question's argued at the Supreme Court. The negative of either of the two first would, in my opinion, have controlled 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 judgment 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, and 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 circuit judgment being final, of the benefit of a writ of error, which might restore the property on the reversal of a final judgment.

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 judgment, 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 precise processes and their incidents in