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 captured, 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 original owners' claim to a restitution at their own election. If they did not give bonds, the property was to be distributed; it 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 princi. ples, the court below, I conceive, were justified in making distribu tion. 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 interest 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.

RESTITUTION UNDER TREATY WITH FRANCE.

On a reconsideration of the case referred to in the preceding opinion and examination of the opinion delivered by the Supreme Court, giving a judicial interpretation of the treaty of September 30, 1800, with France, the preceding opinion is substantially reaffirmed.

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 questions 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, burt 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 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 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 acquiesced in; but the foregoing construction excludes all proof of an acquiescence, if the right of bringing a writ of error militates with it, and proves it not to be final. In cases where 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 judgment of the circuit 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 and on the above construction. If you look beyond that judgment, on which execution can and does issue, and 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 beyond 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, condemned, abandoned by its former owners, distributed, and spent. Surely our commissioners would not have stipulated to have given up all we had taken, and 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 and renders nugatory the distinction made between national ships mentioued in the third, and the captured property which is to be restored by the fourth article. 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 and a final condemnation. A libel decided upon in a different court is liable to be carried to the circuit court by an appeal; the judgment appealed from is final in the first court in reference to interlocutory judgments, but not so 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 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 judgment is not suspended, and, except in the case of a bond being given within ten days, execution may issue, and the judgment be carried into complete effect. How far a bond, which would suspend the execution, would bind together the judgment 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. Although they have fixed the principle for themselves, and thereby bound others, in reference to the case on which they have adjudicated, it can, I conceive, extend no further. In all other cases in which the Executive or other courts are obliged to act, they must decide for themselves; paying a great deference 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 and 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 plaintiff's in error; and indeed the distribution of the property is proof of it, by the circuit court. I have been informed that Messrs. Bayard and Griswold appeared in the Supreme Court and argued the cause for the captors; if so, it saves the want of notice to them. Government, I conceive, are not immediately, or in the event that the owners cannot recover from the captors the other moiety of the avails of the schooner Peggy and her cargo, liable for it. In strictness, I believe with the court-their judgment divests the property, and entitles the owners to recover from them their distributive 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.

I am, &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

BARRATRY ON PRIVATE PROPERTY IN EUROPE.

The authority of the general government to take, forcibly detain in custody, and bring to this country, from Europe, a person charged with barratry on private property, is doubtful. The offender, if he were here, would be amenable to our courts.

WORCESTER, October 29, 1802.

SIR: I have considered, with all the attention I am capable of, the case of Captain Clifton, which you did me the honor to ask my opinion concerning. It is believed no law recognised by nations, enacted or adopted

by the United States, is particularly applicable to this case, or will render it proper for the United States to interpose. I doubt very much the authority of the general government to take, forcibly detain in custody, and bring to this country, from Europe, a person charged with barratry 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 barratry in every successive place to which the vessel was carried. If, therefore, it was a criminal offence, I conceive he would be triable by our courts; although, had such an offence taken place in a situation 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 (from the papers) appears to me a deep-marked instance of barratry. Still it may be otherwise; and the United States are not authorized to examine into and decide on the evidence, but in regular process, exhibited to proper tribunals by the injured party. Clifton's imprisonment by the Spanish government is not adverse to the rights of the United States, or of their citizens, of which they complain against that government, and the actual wishes of the owners. As the United States have nothing to complain of, or to 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 a remedy to the injured owners, they are at liberty to pursue it there; if not, they will take their own means to obtain it elsewhere. If the owners are unlawfully detaining their master in prison, they are liable to his action. The controversy ap pears to be of a civil nature, between private persons; and, like all such cases, to be left to their own course, on the ordinary principles of law: a master 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, addressed to the humanity or charity of the United States, 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 United States cannot with propriety interfere; and that, therefore, they will pursue such measures for the redress of their injuries, in conformity to law, as they may judge expedient. I am, &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

CONFIRMATIONS AND GRANTS IN THE NORTHWESTERN TERRITORY. Under the act of March 3d, 1791, entitling heads of families who had removed without the limits of the Territory, and occupied certain lands, within five years, to the donation lands spe cified in said act, those persons who returned to their respective districts only within five years are entitled to the benefit of said provision.

WASHINGTON, March 14, 1803.

SIR: I have the honor to state my ideas on the questions contained in Governor Harrison's letter, which was addressed to yourself, and handed