time of a patent's being granted. Where there are interfering grants, and the question is which was first made, or when they were respectively made, and there is no reigstry or record to decide it by, nor any statute mode of ascertaining the matter, the greatest latitude should be given for the admission of evidence, and especially in suppression of fraud.

If it should be necessary to procure evidence in possession of the Spanish government, I should suppose an application by a party interested, or by the governor of the Territory, would be abundantly sufficient for that purpose. A line from the Spanish minister at this place, on the subject, may be useful. This government will not hesitate to aid in the detection of fraud. And none will pretend that a Spanish grant of land, after their right to it ceased, or a subsequent deed with a prior date, can be good against a person claiming under a prior deed or a rightful grant.

Mention is made of an action being brought by one Green against the United States for the recovery of public lands and buildings, and in which, after a verdict for the demandant, a new trial has been granted. It is not perceived how an action could be brought against the United States. It may have been against an individual possessing, or claiming to possess, under them. As no case is stated, I do not see how govern. ment can be bound by any verdict which may be given in the case, nor can I give any opinion on the subject.

I am, &c., &c.,

To the SECRETARY OF STATE.

LEVI LINCOLN.

PATENTS FOR INVENTIONS.

Patents for inventions are confined, by law, to citizens of the United States.

WASHINGTON, May 26, 1802.

SIR: The authority given by law to grant patents is unquestionably confined to the citizens of the United States. The privilege is a monopoly in derogation of common right, and, as it is not, ought not to be extended to foreigners. Were it to be, it would be subject to endless abuses, privations, and embarrassments to our citizens. I have no doubt on the question.

To Mr. DANIEL Brent.

LEVI LINCOLN.

RECAPTURE OF A PORTUGUESE BRIG.

Where a Portuguese brig had been captured by a French schooner, and thirteen days afterwards recaptured by an American vessel and taken to St. Kitts, where she was adjudged to be restored on payment of salvage, and the vessel or salvage subsequently demanded of the United States by the French minister as being provided for in the treaty with France, and not condemned at the signing thereof, it was decided that the treaty did not authorize the French government to make any demands on the United States for property thus recaptured from it, and which they are obliged to restore to the original owners on payment of salvage. WASHINGTON, May 26, 1802.

SIR: The case of the Portuguese brig, which you did me the honor of submitting to my consideration, appears to be this:

On the 28th of July, 1800, she was recaptured by Captain Rogers, in the ship Maryland, having guns and a cargo on board.

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She had been captured by a private armed schooner from Bordeaux, ordered to Cayenne, and had been in the possession of the French thir teen days.

Captain Rogers arrived with her at St. Kitts on the 20th of August. The court of admiralty of that island claiming a right, under the law of nations, of determining the cause between the parties in interest, refuse to let her be carried to America for adjudication, assume the jurisdiction of the cause as one respecting the ship of an ally captured from a common enemy by an ally, cause her to be libelled, and adjudge her to be restored on the payment of salvage.

The jurisdiction of the court seems to be submitted to by the agent for the captors, and its judgment acquiesced in; at least there was no appeal. The minister of the French government demands this vessel, or the sal vage, of the United States, as being a vessel within the description of ves sels provided for in their treaty with France, and as not being finally condemned at the signing of that treaty.

The brig is admitted to be Portuguese, recaptured, and to have been proceeded with as above stated.

In my view of the cause, it is not necessary to determine how far the court of admiralty is justified by the laws of nations in its proceedings, as they respect the United States or the Portuguese owners of the brig.

The words of the treaty are, "property captured and not yet definitively condemned, or which may be captured before the exchange of ratifications, shall be mutually restored on the following proofs of ownership:" with respect to cargo, certificates; and in case of the destruction of these documents, other proof.

The property which is to be restored is designated by the descriptive term "captured," and is such as was capable of being condemned as French property, to the use of the captors, &c., and such as America could rightfully restore, in rem, without violating the laws of nations, and the rights of other nations under these laws, or under particular treaties with them. Besides,

The word captured, as a technical and a descriptive term, does not include the meaning, and ought not to be construed to have the effect of the term recaptured in the sense of the treaty. Also,

The property of an ally recaptured is incapable of being condemned, in the sense in which this term is used in the treaty; it of course is acquit ted, and the judgment of acquittal is of itself an act of restoration. In no event could there be a judgment of condemnation. Further:

The described property is such that a title to restoration is capable of being proved, either by the passport of the ship or a certificate of her cargo. These documents could have an operation as proof of a right to claim restoration under the treaty, only as applicable to original French ships. In the present case, these documents prove nothing more concerning a right of demand in France than in England or in Turkey. Again:

The treaty was signed the 8th of October, 1800; previous to which, judgment had been rendered, and the property restored to the former owners, on the payment of salvage. The owners of the brig and cargo are now repossessed of their property. The act is final, as it respects parties. Their rights are executed; there is nothing which either the party or further process can operate upon.

all

The French schooner took or captured the brig, subject to the chances

of a recapture by its own crew, or another ship of the same nation, or by any other power at war with France. The moment that a recapture took place, the first captors lost all claims on the captured property, and are in the same situation as though they had never made the capture. If it had been taken a third time by another French ship, and had been carried in and condemned, these first captors would not have been considered as owners, and would not have had any claim for salvage; of course, as 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 cap. tured 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 captors; 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 considered 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.

RESTORATION UNDER TREATY WITH FRANCE.

Where a French vessel, captured and condemned as lawful prize to the captors and to the United States prior to the treaty of September 30, 1800, in moieties, and the avails of the appraised vessel and cargo were in the hands of the clerk at the date of the treaty, and one moiety paid to the captors and the other paid into the United States treasury, after the signing of the treaty, and, upon a hearing before the Supreme Court on writ of error, no bond having been given, the decree of the circuit court was reversed, and the vessel, apparel, guns, &c., ordered to be restored; and, pursuant thereto, the moiety in the United States treasury was paid over; and a claim being made for the other moiety that had been paid to the captors, it was decided that the United States are not liable for such moiety.

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 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 condem

nation.

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 affirmed, 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 prose cution 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 ever 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 above mentioned 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 consider.

ed 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 appurte nances, 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 obtained, 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 be. fore 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