To John Jay from John Trumbull, 3 June 1799
From John Trumbull
72. Welbeck Street London June 3d 1799
Dear Sir
I wrote to you on the 25th. March last,1 since when I am not honored with any of your Favors.
The British Government has received official information of the Suspended State of the Commission in America, in consequence of the secession of the two American Gentlemen on the Question respecting the Claim of Dr: Inglis.2
I have seen the printed case, & I think that Gentlemen there carry certain Doctrines to a much greater length, than we have done here:—3 We have always understood that an Attempt to recover in the ordinary course of Judicial Proceeding, was necessary to establish a Claim before the Board:— and that such Attempt must not only be made in the lower Courts, but pursued to that of Dernier Resort:— (except in that Class called Provision Cases, where the whole Proceedings were so extrajudicial, and appeared to us to be so much under the immediate direction of the Executive Government, that a further pursuit of Legal remedy could have answered no other purpose than to encrease Costs & Delay,)— and, accordingly we have dismissed several Claims, merely on that ground of “manifest negligence, & Wilfull omission.”— What is understood on your side, to be the meaning of that Clause of Exception, I am at a Loss to comprehend.
As it may now be more interesting to you to see what have been our Principles & mode of proceeding, I send you Copies of the Opinions which I have given in Three Cases, where by the difference of the Commissioners of the Two Nations, the Decision of the Questions has been left to me.4 This has been an arduous Situation to a Man unaccustomed to Business of such a Nature:— I have endeavoured to do my Duty in it and shall be very highly gratified, if these writings should in any degree receive your Approbation.
One thing we have carefully, and I think wisely, avoided— Printing & Publishing.— by this means our Disputes when they arise, as they necessarily must,—are confined within the walls of our Office, and cannot, by getting abroad, tend to produce a pernicious inflammation of the Minds of those who are interested in similar questions, and of the Public at large.
Our Proceedings must be expected to suffer some interruption from this State of the Commission in Philadelphia.
The Events of the Campaign have thus far been most unexpectedly successfull to the Allies:— The French have lost ground on all sides & particularly in Italy, where their Affairs have suffered the most rapid & complete reverse; so that it appears reasonable to hope that in the course of the Campaign they may lose most if not all their Conquests. Their Fleet which sailed from Brest on the 27th. April, consisting of 25 Sail of the Line, & Frigates, has eluded the Vigilance of the British, and even now, we have no intelligence respecting it, which can be relied on;—We are anxiously expecting the Tempest, which must soon burst somewhere—
However, an Enemy so adroit in Intrigue— so enthusiastic at times, so substantially powerfull,—& capable of such sudden & immense exertions, as we have often seen that Nation make, is terrible even in Misfortune: And we must not suffer ourselves to be lulled into Security by her Reverses:—For whether France sinks under the might of Hostile Nations, or again rises triumphant, in my opinion America has no Security but in Arms;— Should France fall, I have as little faith in the moderation and good will to us, of Her Enemies, as of hers:—& should She recover her preponderance, such a Triumph will not diminish her Ambition or Insolence. I very much dislike the temporising Policy which seems to be pursued in the U.S. and which, after so many Insults as we have received, leaves the World still in doubt Who we consider as Enemies or whether we have National Character & Pride enough to resent and repel any Affront. The Object of So[uth]. Am[eric]a. on which I touched in my last Letter, appears to me the only great & wise one for us to pursue;— but my opinions are perhaps erroneous, & certainly can have no weight—
I beg to be remembered respectfully to Mrs. Jay—to Mr. Benson, & other friends And am Dear Sir, with the highest Respects, Your faithful & obliged Servant & friend
Jno: Trumbull
1. See JT to JJ, 25 Mar. 1799, above.
2. On the collapse of the debt commission in Philadelphia over the claims of Charles Inglis, former Loyalist rector of New York’s Trinity Church, and at this time Bishop of Nova Scotia, for debts due him on bonds, see Moore, International Arbitrations, 2: 283–94. The two American commissioners, Thomas Fitzsimons and Samuel Sitgreaves, had withdrawn from the commission meetings when the commission deadlocked over the question of the duty of the claimant to pursue judicial remedies first. In response, the British suspended the claims commission, which was not resumed until a new convention superseded Article 6 of the Jay Treaty regarding the debts in 1802. On the two commissions, see the editorial note “Aftermath of the Jay Treaty: Responses, Ratification, and Implementation,” , 6: 287, 291n44.
3. For the published records of the Inglis case, see Commissioners office, 19th February, 1799. Present Mr. MacDonald, Mr. Rich, Mr. Fitzsimons, Mr. Sitgreaves, Mr. Guillernard. In the case of the Right Reverend Charles Inglis ([Philadelphia, 1799]; Early Am. Imprints, series 1, no. 48822); and The Claim and answer with the subsequent proceedings, in the case of the Right Reverend Charles Inglis, against the United States (Philadelphia, 1799; Early Am. Imprints, series 1, no. 36504). Included in the arguments were quotations from JJ’s opinion and his charge to the jury in the Georgia v. Brailsford case, on which, see , 5: 182–83, 596-98.
4. The enclosed case records have not been found. JT submitted in writing his opinions on cases for which he was the deciding vote, the British and American commissioners having failed to agree. Copies of these opinions can be found in his letter books. Six fell in the period prior to this letter. JT considered one of these cases, that of the Neptune, Captain Jeffries, [26 July 1797], so significant that he included it in full in his Autobiography, 198–216. The case dealt with the legal aspects of the right of blockade, and whether and when provisions could be considered as contraband. According to JT, the case turned on two questions: 1. “Whether the neutral claimant sustained loss or damages, by reason of an irregular or illegal capture and condemnation of his property”; and 2. “could the claimant have obtained full and adequate compensation in the ordinary course of judicial procedures.” Under the law of nations, provisions could only be considered contraband where a blockage was actually in effect [a definition the Britain did not accept]. Under the Jay Treaty in other cases, the provisions could be seized, but a just compensation must be paid for them, and the ship carrying them released and the owners paid freight and damages. In the case of the Neptune, no true blockade was in effect, but the claimant was paid only the value of the goods as given in the invoice plus ten percent, the value established by a decree of the British government. The claimant considered this payment inadequate since it was much lower than the current market value for the provisions either in France, the intended destination, or in England. However, the claimant believed he could not obtain justice in the admiralty courts, since his agent reported that the British judges were not permitted to challenge the ruling of the British government. JT concluded that the claimant had neither the power nor obligation to have recourse through the ordinary course of judicial procedures in Britain, and, therefore, that the commissioners were “bound carefully to examine his case, and to give therein such award, as shall appear to us to be consistent with equity, justice, and the law of nations.” Trumbull, Autobiography, 201, 216.
The other five possible cases recorded were those for the Fame, Osborne, master [20 Mar. 1797]; Betsey, Furlong, master [11 Apr. 1797]; Diana, Gardener, master [12 Apr. 1797]; Fanny, Pile, master [16 Oct. 1798]; and Elizabeth, Ross, master [31 Oct. 1798], for which opinions, see the NHi: JT Lbks. On the case of the Betsey, see JJ to Samuel Bayard, 5 Jan. 1795 (Second Letter); TP to JJ, 10 Oct. 1795; JT to JJ, 16 Dec. 1796; and RK to JJ, 6 Feb. 1797, all , 6: 254–56, 384–86, 513–14, 525–26. For JJ’s response, see JJ to JT, 6 June 1800, ALS, Harlan Crow Library.