The Defence No. XV1
[New York, September 12 and 14, 1795]
[It is the business of the seventh article2 of the treaty, to provide for two objects: one, compensation to our citizens for injuries to their property, by irregular or illegal captures or condemnations; the other, compensation to British citizens for captures of their property within the limits and jurisdiction of the United States, or elsewhere, by vessels originally armed in our ports, in the cases in which the captured property having come within our posts and power, there was a neglect to make restitution.
The first object is thus provided for: 1. It is agreed, that in all cases of irregular or illegal captures or condemnations of the vessels and other property of citizens of the United States, under colour of authority or commissions from his Britannic majesty, in which adequate compensation for the losses and damages sustained, cannot, for whatever reason, be actually obtained in the ordinary course of justice, full and complete compensation for the same will be made by the British government to the claimants; except where the loss or damage may have been occasioned by the manifest delay, or negligence, or wilful omission of those claimants. 2. The amount of the losses and damages to be compensated is to be ascertained by five commissioners, who are to be appointed in exactly the same manner as those for liquidating the compensation to British creditors.3 3. These commissioners are to take a similar oath, and to exercise similar powers for the investigation of claims with those other commissioners, and they are to decide according to the merits of the several cases and to justice, equity, and the laws of nations. 4. The same term of eighteen months is allowed for the reception of claims, with a like discretion to extend the term as in the case of British debts. 5. The award of these commissioners or of three of them, under the like guards as in that case, is to be final and conclusive, both as to the justice of the claim and the amount of the compensation. And, lastly, His Britannic majesty is to cause the compensation awarded to be paid to the claimants in specie, without deduction, at such times and places, and upon the condition of such releases or assignments, as the commissioners shall prescribe.
Mutually and dispassionately examined, it is impossible not to be convinced, that this provision is ample and ought to be satisfactory. The course of the discussion will exhibit various proofs of the disingenuousness of the clamours against it, but it will be pertinent to introduce here, one or two samples of it.
It has been alledged, that while the article preceding and this article provide effectually for every demand of Great Britain against the United States, the provision for this important and urgent claim of ours is neither explicit, nor efficient, nor co-extensive with the object, nor bears any proportion to the summary method, adopted for the satisfying of British claims.4
This suggestion is every way unfortunate. The plan for satisfying our claim, except as to the description of the subject which varies with it, is an exact copy of that for making compensation to British creditors. Whoever will take the pains to compare, will find, that in the leading points, literal conformity is studied, and that in others, the provisions are assimilated by direct references; and will discover also, this important distinction in favour of the efficiency and summariness of the provision for our claim—that while the commissioners are expressly restricted from awarding payment to British creditors, to be made sooner than one year after the exchange of ratifications of the treaty, they are free to award it, to be made the very day of their decision, for the spoliations of our property. As to compensation for British property, captured within our limits, or by vessels originally armed in our ports and not restored, which is the only other British claim that has been provided for, it happens that this, forming a part of the very article we are considering, is submitted to the identical mode of relief, which is instituted for making satisfaction to us.
So far then is it from being true, that a comparison of the modes of redress provided by the treaty, for the complaints of the respective parties, turns to our disadvantage, that the real state of the case exhibits a substantial similitude with only one material difference, and that in our favor; and, that a strong argument for the equity of the provisions on each side, is to be drawn from their close resemblance of each other.
The other suggestion alluded to, and which has been shamelessly reiterated, is, that Denmark and Sweden, by pursuing a more spirited conduct, had obtained better terms than the United States.5 It is even pretended, that one or both of them had actually received from Great Britain a gross sum on account—in anticipation of an ultimate liquidation. In my second number,6 the erroneousness of the supposition, that those powers had obtained more than the United States was intented, but the subsequent repetition of the idea, more covertly in point, and very openly and confidently in conversation, renders expedient an explicit and peremptory denial of the fact. There never has appeared a particle of evidence to support it, and after challenging the asserters of it to produce their proof, I aver, that careful enquiry at sources of information, at least as direct and authentic as their’s, has satisfied me, that the suggestion is wholly unfounded, and that at the time of the conclusion of our treaty with Great Britain, both Denmark and Sweden were behind as in the effect of their measures for obtaining reparation.
What are we think of attempts like these, to dupe and irritate the public mind? Will any prudent citizen still consent to follow such blind or such treacherous guides?
Let us now, under the influence of calm and candid temper, without which truth eludes our researches, by a close scrutiny of the provision, satisfy ourselves whether it be not really a reasonable and proper one. But previous to this it is requisite to advert to a collateral measure which was also a fruit of the mission to Great Britain, and which ought to be taken in conjunction with the stipulations of this article. I refer to the order of the British king in council, of the 6th of August, 1794, by which order, the door before shut by lapse of time, is opened to appeals from the British West India courts of Admiralty, to be brought at any time which shall be judged reasonable by the lords commissioners of appeals in prize causes.7 This of itself was no inconsiderable step towards the redress of our grievances, and it may be hoped, that with the aid which the government of the United States has given to facilitate appeals, much relief may ensue from this measure. It will not be wonderful if it should comport with the pride and policy of the British government by promoting justice in their courts, to leave as little as possible to be done by the commissioners.
I proceed now to examine the characteristics of the supplementary provision made by the article, in connection with the objection to it.
It admits fully and explicitly the principle, that compensation is to be made for the losses and damages sustained by our citizens, by irregular or illegal captures, or condemnations of their vessels and other property] under colour of authority (which includes Governmental orders and instructions) or of commissions from his Britannic Majesty. It is to be observed that the causes of the losses and damages are mentioned in the disjunctive, “captures or condemnations” so that damages by captures which were not followed by condemnations are provided for as well as those where condemnations did follow.
A cavil has been raised on the meaning of the word colour, which it is pretended would not reach the cases designed to be enbraced8 because the spoliations complained of were made not merely by colour but actually by virtue of instructions from the British Government.9
For the very reason that this subtil and artificial meaning ascribed to the term would tend to defeat the manifest general intent of the main provision of the Article, which is plainly to give reparation for irregular or illegal captures or condemnations of American property contrary to the laws of nations—that meaning must be deemed inadmissible.
But in fact, the expression is the most accurate that could have been used to signify the real intent of the article. When we say a thing was done by colour of an authority or commission, we mean one of three things—that it was done on the pretence of a sufficient authority or commission not validly imparted or on the pretence of such an authority or commission validly imparted, but abused or misapplied—or on the pretence of an insufficient authority or Commission regularly as to form imparted and exercised. It denotes a defect of rightful and just authority, whether emanating from a wrong source or improperly from a right source; whereas the phrase “by virtue of” is most properly applicable to the valid exercise of a valid authority. But the two phrases are not infrequently used as synonimous. Thus in a Proclamation of the British King of the 25 of May 1792, he among other things forbids all his subjects, by virtue or under colour of any foreign commission or Letters of Reprisals to disturb infest or damage the subjects of France.10
In whose mouths does the article put the expression? In those of citizens of the U States? What must they be presumed to have meant? Clearly this—that by colour of instructions or commissions of his Britannic Majesty either exercised erroneously, or issued erroneously as being contrary to the laws of Nations,11 the Citizens of the U States had suffered loss and damage by irregular or illegal captures or condemnations of their property. What is the standard appealed to to decide the irregularity or illegality to be redressed? Expressly the laws of Nations. The Commissioners are to decide “according to the merits of the several cases, to justice equity and the laws of Nations.” Wherever these laws as received and practiced among Nations pronounce a capture or condemnation of neutral property to have been irregular or illegal, though by color of an authority or commission of his Britannic Majesty, it will be the duty of the Commissioners to award compensation.
The criticism however fails on its own principle when tested by the fact. The great source of grievance intended to be redressed by the article proceeded from the instruction of the 6th of November 1793.12 That instruction directs the Commanders of Ships of War and Privateers to stop and detain all ships laden with goods the produce of any colony belonging to France or carrying provisions and other supplies for the use of such colony and to bring the same with their cargoes to legal adjudication in the British Courts of Admiralty. These terms “legal adjudication” were certainly not equivalent to any rational construction to condemnation. Adjudication means simply a judicial decision, which might be either to acquit or condemn. Yet the British West India Courts of Admiralty appear to have generally acted upon the term as synonimous with condemnation. In doing this they may be truly said, even in the sense of the objection, to have acted by colour, only of the instruction.
The British Cabinet have disavowed this construction of the West India Courts and have, as we have seen, by a special act of interference13 opened a door which was before shut to a reversal of their sentences by appeal to his Courts in England. We find also that the term adjudication is used in the XVIIth. article of our late Treaty as synonimous only with judicial decision, according to its true import.14 This, if any thing were wanting, would render it impossible for the Commissioners to refuse redress on the grounds of the condemnations, if otherwise illegal, being warranted by the pretended sense of the words legal adjudication. But in reality as before observed their commission will be to award compensation in all cases in which they are of opinion that according to the established laws of Nations captures or comdemnations were irregular or illegal, however otherwise authorised; and this in contempt of the quibbling criticism which has been so cunningly devised.
2dly The provision under consideration obliges the British Government, in all the cases of illegal captures or condemnations in which adequate compensation cannot for whatever reason be actually had in the ordinary course of Justice to make full and complete compensation to the Claimants which is to be paid in Specie to themselves without deduction at such times and places as shall be awarded.
They are not sent for redress to the Captors or obliged to take any circuitous course for their payment, when decreed, but are to receive it immediately from the Treasury of Great Britain.
3 The amount of the Compensation in each case is to be fixed by five Commissioners two appointed by the U States two by G Britain—the fifth by these four or in case of disagreement by lot. These Commissioners to meet and act in London.
It seems impossible, as has been observed and shewn in the analogous cases to imagine a plan for organising a Tribunal more completely equitable and impartial than this;15 while it is the exact counterpart of the one which is to decide on the claims of British Creditors. Could it have been believed, that so palpable an error could have been imposed on a Town Meeting in the face of so plain a provision as to induce it to charge against this article that in a national concern of the U States, redress was left to British Courts of Admiralty? Yet strange as it may appear, this did happen even in the truly enlightened Town of Boston.16
The truth is that according to the common usage of Nations, the Courts of Admiralty of the belligerent parties are the channels through which the redress of injuries to neutrals is sought. But Great Britain has been brought to agree to refer all the cases in which justice cannot be obtained through those channels to an extraordinary Tribunal; in other words to Arbitrators mutually appointed.
It is here that we find the reparation of the national wrong which we had suffered. In admitting the principle of compensation by the Government itself, in agreeing to an extraordinary Tribunal in the constitution of which both parties have an equal voice to liquidate that compensation—Great Britain has virtually and effectually acknowleged the injury which had been done to our neutral rights and has consented to make satisfaction for it. This was an apology in fact, however it may be in form.
As it regards our honor, this is an adequate atonement and the only species usual in similar cases between nations. Pecuniary compensation is the true reparation in such cases. Governments are not apt to go upon their knees to ask pardon of other governments. Great Britain in the recent instance of the dispute with Spain about Nootka sound was glad to accept a like reparation.17 It merits an incidental remark that the instrument which settles this dispute expressly waves like our Treaty reference to the merits of the complaints & pretensions of the respective parties. Is our situation such as to authorise us to pretend to impose humiliating conditions on other Nations?
It is necessary to distinguish between injuries and insults which we are too apt to confound. The seizures and Spoliations of our property fall most truly under the former head. The acts which produced them embraced all the neutral powers—were not levelled particularly at us—bore no mark of an intention to humiliate us by any peculiar indignity or outrage.
These acts were of June [8th]18 and of November 6th 1793.19 The seizure of our vessels going with provisions to the dominions of France under the first was put on the double ground of a war extraordinary in its principle* and of a construction of the laws of Nations which it was said permitted it—a construction not destitute of colour, and apparently supported by the authority of Vatel,20 though in my opinion ill founded. It was accompanied also by compensation for what was taken and other circumstances that evinced a desire to smooth the act. The indiscriminate confiscation of our property upon the order of the 6th of November which was the truly flagrant injury was certainly unwarranted by that order (and no secret one has appeared)—and the matter has been so explained by the British Government. It is clear that the evils suffered under acts thus circumstanced are injuries rather than insults, and are so much the more manageable as to the species and measure of redress. It would be quixotism to assert that we might not honorably accept in such a case the pecuniary reparation which has been stipulated.
But it is alleged that in point of interest it is unsatisfactory—tedious in the process—uncertain in the event—that there ought to have been actual and immediate indemnifaction or at least a payment upon account.21
A little calm reflection will convince us that neither of the two last things was to be expected. There was absolutely no criterion either for a full indemnification or for an advance upon account. The value of the property seized and condemned (laying out of the case damages upon captures where condemnations had not ensued) was not ascertained even to our own government with any tolerable accuracy. Every well informed man will think it probable that of this a proportion not inconsiderable was covered French property. There were therefore no adequate data upon which our government could demand or the British Government pay a determinate sum. Both governments must have acted essentially by guess. Ours could not in honor or conscience have made even an estimate but upon evidence. It might have happened that a sum which appeared upon the evidence that had been collected sufficient might have proved on further evidence insufficient. Too little as well as too much might have been demanded & paid. But it will perhaps be said that some gross estimate might have been formed, and that of this such part might have been advanced upon account as was within the narrowest probable limit liable to eventual adjustment. Let us for a moment suppose this done. What good end would it have answered? How could the U States have distributed this money among the sufferers till it was ascertained which of them were truly intitled and to how much? Is it not evident that if they had made any distribution before the final and perfect investigation of the right of each claimant it would be at the risk of making mispayments and of being obliged to replace the sums mispaid, perhaps at a loss to the U States, for the benefit of those who should be found to be better intitled? Would it have been expedient for our Government to have incurred this risk to its constituents? And if the money was to be held undistributed till an investigation of claims was completed to what purpose the haste about an advance?
On the other hand—Is it in this loose gross way, that nations transact affairs with each other? Do even individuals make indemnifications to each other in so lumping a manner? Could it be expected of Great Britain that she would pay till it was fairly ascertained what was to be paid—especially when she had too much cause to suspect that a material proportion of the property claimed might turn out to be French? Would it have been justifiable on our part to make her compliance with such a demand the sine qua non of accommodation and peace? Whoever will believe that she would have complied with so humiliating a requisition must be persuaded that we were in a condition to dictate and she in a condition to be obliged to receive any terms that we might think fit to prescribe? The person who can believe this must be in my opinion under the influence of a delirium, for which there is no cure in the resources of reason and argument. Unhappy the Country that should take him as a guide!
If it must be admitted that it was matter of necessity that investigation should precede payment, then I see not what more summary mode could have been devised. Who more capable of proceeding with dispatch than Arbitrators untrammelled with legal forms—vested with powers to examine parties and others on oath and to command and receive all evidence in their own way? Here are all the means of expedition, divested of every clog.
Eighteen months are allowed for preferring claims, but the Commissioners are at liberty to adjust them as fast as they are preferred. In every case in which it appears to them bona fide that the ordinary course of Justice is inadequate to relief, they may forthwith proceed to examine and decide. There is no impediment, no necessary cause of delay whatever, more than the nature of a due investigation always requires.
The meeting of the Commissioners at London was recommended by the circumstance that the Admiralty Courts were likely to concenter there a considerable part of the evidence on which they were to proceed—which upon the whole might favour dispatch as well as more complete justice. In many cases the decisions of those Courts may come under their review.
As to uncertainty of the event, this, as far as it may be true, was inseperable from any plan bottommed on the idea of a previous investigation of claims. And it has been shewn that some such plan was reasonable and inevitable.
It may be also added that the plan affords a moral certainty of substantial justice, which is all that can rationally be expected in similar affairs. Compensation where due is explicitly stipulated. A fair and adequate mode of deciding and liquidating it has been settled. All the arguments which were adduced to prove the probability of good faith in regard to the posts22 apply equally to this subject. The interest which every nation has in the preservation of character and which the most profligate nations dare not intirely disregard—the consideration of defeating the fulfilment of the stipulations on our part—the size of the object, certainly not of great magnitude—the very discouraging situation for replunging suddenly into a new war in which the present war will in every event leave Great Britain—These are reasons which afford solid ground of assurance that there will be no evasion of performance.
As to the Commissioners, two of the five will certainly be of our choice, a third may be so likewise, but should it prove otherwise it will be surprising if one of the other three all acting under oath and having character at stake shall not be disposed to do us reasonable justice.
3dly. While their power is coextensive with all losses and damages from irregular or illegal captures or condemnations, their sentence in each case is to be conclusive, and the rules which are to govern it as prescribed by the article are the merits of each case, justice equity and the laws of Nations. What greater latitude could have been desired to be given? What greater latitude could have been given? What else in the case was there to have been provided for? What is meant by the assertion that the provision is not commensurate with the object?
The general and unqualified reference to the laws of Nations dismisses all pretence to substitute arbitrary regulations of Great Britain as rules of decision. Her instructions or orders, if incompatible with those laws are nullities. Thus The Treaty unfetters the questions between us and her from the commencement of the War, and with her own consent commits them at large to a Tribunal to be constituted by mutual choice.
Will any man of candour and Equity say that a better provision ought to have been expected than has been accomplished?
The alternative was Immediate Indemnification by actual payment in whole or in part without examination of the extent or justice of the claims—or future indemnification after a due investigation of both in some equitable and effectual mode. The first was attended with difficulties on our side and with solid objections on the other side. The last was therefore the truly reasonable course, and it has been pursued on a very proper plan. The causes of loss and damage are fully embraced—they are referred to the decision of an unexceptionable Tribunal to be guided by unexceptional rules and the indemnification which may be awarded is to be paid fully immediately and without detour by the British Government itself. Say Ye impartial and enlightened if all this be not as it ought to have been!
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, September 12 and 14, 1795.
1. The first part of the draft of this document has not been found. The material within brackets has been taken from the newspaper.
For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. For the text of Article 7 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 39.
4. This charge was made by several opponents of the Jay Treaty, but H is presumably referring to a statement made by Alexander J. Dallas in his “Features of Jay’s Treaty”: “The 6th and 7th articles provide for satisfying every demand which Great Britain has been able, at any time, to make against the United States (the payment of the British debts due before the war, and the indemnification for vessels captured within our territorial jurisdiction) but the provision made for the American claims upon Great Britain, is not equally explicit or efficient in its terms, nor is it co extensive with the object” (Dunlap and Claypoole’s [Philadelphia] American Daily Advertiser, July 18, 1795).
8. In the newspaper this word is “entraced.”
9. This is a reference to a statement by “Cato” (Robert R. Livingston), who wrote: “They [the commissioners appointed under the seventh article of the Jay Treaty] are not to relieve against captures under the order of April, November or January, 1st because neither of these are complained of, and the preamble of the article expressly relates to the injuries ‘divers merchants and others’ complain of having sustained by irregular captures or condemnations of their vessels and other property under colour of authority and commission, &c. Now it would be absurd to suppose that this can have any reference to what is done by the express order of the sovereign, or to any act but such as is an abuse of that order and authority; but these abuses make but a small part of our cause of complaint (which goes to the order itself) and are besides necessarily relievable in a court of appeals without the intervention of a minister extraordinary; and were so before the treaty. The great cause of complaint, the instructions, which are the laws of the court of admiralty not being complained of, all condemnations fairly made under them, must be confirmed by the treaty” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 22, 1795). For the authorship of the “Cato” essays, see the introductory note to “The Defence No. I,” July 22, 1795.
10. The section of the proclamation of George III to which H is referring reads: “… his Majesty doth hereby strictly forbid all his subjects to receive any commission for arming and acting at sea as privateers, or letters of reprisals, from any enemy of the Most Christian King; or, by virtue or under colour of such commissions or reprisals, to disturb, infest, or anywise damage his subjects …” (The Annual Register, or a View of the History, Politics, and Literature for the Year 1792 [London, 1821], 177).
12. H is referring to the “Additional instructions to the commanders of all our ships of war and privateers that have, or may have, letters of marque against France” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 430). See “The Defence No. II,” July 25, 1795, note 8.
13. This is a reference to the order in council of August 6, 1794. See note 7.
14. For the text of Article 17 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 59.
16. This is a reference to a statement in support of a resolution condemning the ratification of the Jay Treaty adopted “At a meeting of the Inhabitants of the Town of Boston, duly & legally warned & convened, by adjournment at Faneuil Hall on Monday the thirteenth day of July, One thousand Seven hundred and ninety five” (copy, George Washington Papers, Library of Congress). This statement reads: “Because the capture of Vessells, & property of Citizens of the United States, during the present war, made under the authority of the Government of Great Britain, is a National Concern, and claims arising from such captures, ought not to have been submitted to the decision of their Admiralty Courts, as the United States are thereby precluded from having a voice in the final determination of such cases.…”
17. For the Nootka Sound dispute, see George Washington to H, August 27, 1790; H to Washington, September 21, 29, 1790; “Conversation with George Beckwith,” September 26–30, 1790; and “The Defence No. X,” August 26, 1795, note 21.
18. Space left blank in MS. The date within brackets has been taken from the newspaper.
For the principal provision of the British order in council of June 8, 1793, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 66.
19. See note 12.
20. Vattel wrote: “On the other hand, whenever I am at war with a nation, both my safety and welfare prompt me to deprive it, as far as possible, of every thing which may enable it to resist or hurt me. Here the law of necessity shews its force. If this law warrants me on occasion, to seize what belongs to another, shall it not likewise warrant me to stop every thing relative to war, which neutral nations are carrying to my enemy. Even if I should by taking such measure render all these neutral nations my enemies, I had better run the hazard than suffer him who is actually at war with me, to be thus freely supplied to the great increase of his power. It is therefore very proper and very suitable to the law of nations, which disapproves of multiplying the causes of war, not to consider those seizures of the goods of neutral nations as acts of hostility” (Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , Book III, Ch. VII, Sec. iii).
21. See “Cato No. 3” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 22, 1795).