To John Jay from Timothy Pickering, 10 October 1795
From Timothy Pickering
Department of State Octr. 10. 1795.
Sir,
The inclosed copy of my letter of the 6th instant to William Lewis & William Rawle Esquires1 will apprize you of the object of this address. Their answer, which is also inclosed, does not, I confess, correspond with my ideas of the meaning of the seventh article of the treaty which you negotiated with Lord Grenville. I always conceived that the principal ground of our complaints of spoliations was, the capture of our vessels under the orders of the Privy Council of Great Britain, especially the order of the sixth of November 1793, as being repugnant to the laws of nations: but one opinion expressed by those gentlemen amounts to an abandonment of this ground, and an admission of consequences beyond even the present claims of the British admiralty courts: it would put an end to our commerce with the French West India Islands, by subjecting all our vessels, in the present course of that Trade, to legal captures, by the British on one hand & by the French on the other. To admit that opinion would be to renounce, as it strikes me, the great object which was the immediate cause of your extraordinary mission: Hence I cannot but conclude that the opinion mentioned requires a review.
Again, if the business of the Commissioners to be appointed under the seventh article, applies merely to ascertain the amount of compensations in cases of insolvency of the captors, in the very few instances in which, upon their principles, restoration is to be expected, the provision for effecting it seems to me vastly disproportioned to the object. And where are they to apply, if their powers are so circumscribed, “the law of nations”; and with what pertinency can their decisions be mentioned as “in all cases final & conclusive, both as to the justice of the claim, and the amount of the sum to be paid to the claimant”?
In the case of the Betsey, lately decided in the High Court of Appeals (of which you will have seen some account in the news-papers) it would seem, from Mr. Bayard’s information, that the chief ground for affirming the sentence of the Vice-Admiralty Court in Bermuda was, that George Patterson, the owner of the vessel, and partner with his brother William in the property of the cargo, had taken his residence in Guadaloupe. This appeared by G. Patterson’s letter to his brother, found on board the Betsey: for although he went to Guadaloupe in her, & she was taken when returning from that first voyage, yet he remains at Guadaloupe, and proposes that his brother should send her to him there with another cargo.2
Further, Mr. FitzSimons3 informs me, that an American ship loaded at Guadaloupe with sugar &c. and bound to Amsterdam, having been taken, and tried by ^a^ British admiralty court, was acquitted.
This and other cases show that the British do not mean now to take the broad ground assumed in the order of the sixth of November; but which the opinion referred to would allow them to repossess.
But I will not trouble you with any further observations. You see, Sir, what are my views in addressing you: they are expressed in my letter to Mr. Lewis & Mr. Rawle. Your explanation of this subject, to which no one is so competent will be gratefully received by me; and cannot fail to afford much satisfaction to the President.4 I hope you will find time to write next week; the President I think will be here on Friday. I am with very great respect Sir, your obedt. servant
Timothy Pickering
His Excellency Governor Jay
1. TP to Lewis and Rawle, 6 Oct. 1795, C, NNC (EJ: 09482); LbkC, , 8: 430–31. The copies of the opinion sent by Lewis and Rawle on the role of the spoliation commission to be established under the Jay Treaty have not been found.
2. Accounts derived from the London newspapers of the verdict of the High Court of Appeals in London of 25 July 1795 affirming the verdict of the Bermuda admiralty court on the seizure of the ship Betsey, Capt. William Furlong, owned by George and William Patterson of Baltimore, appeared in several American newspapers in October 1795. See, for example, Philadelphia Gazette, 3 Oct. 1795.
In his letter to Lewis and Rawles cited in note 1 above, TP stated that the report of the case and a letter of 29 July 1795 from Samuel Bayard regarding it were to be laid before the committee of merchants in Philadelphia at a meeting to be held the following week. He was therefore seeking legal opinions on the applicability of the 6th and 7th articles of the Jay Treaty on the course on which claims under those articles must proceed. He queried whether cases must first be brought to the British court of appeals, or whether they could be appealed directly from the vice-admiralty courts. If the first was affirmed, TP contended that every decision of the Court of Appeals could be examined by the commissioners on the spoliation commission if the American claimants were dissatisfied. He argued that as an independent nation the United States had a right to contest the principles or rules of law guiding British courts, and that the commissioners could negotiate on the differences between the two parties. On the spoliation commission, see the editorial note “Aftermath of the Jay Treaty: Responses, Ratification, and Implementation,” above. For the dispute over the power of the spoliations commission to question decisions of the High Court of Appeals, see , 1: 324–28.
3. Philadelphia merchant and former congressman Thomas FitzSimons was chairman of the merchants’ committee in Philadelphia. On 2 Oct. TP sent FitzSimons a copy of Bayard’s letter and the report on the decision on the Betsey case seeking the committee’s suggestions for advice to send Bayard. He wrote again on 14 Oct. sending FitzSimons information on British handling of Danish captures that he said countered the interpretations given by Rawle and Lewis. See TP to FitzSimons, 2 and 14 Oct. 1795, LbkCs, , 8: 427; 9: 2.
4. For the reply, see JJ to TP, 14 Oct. 1795, below. Bayard submitted the Betsey case to the spoliation commissioners when they first met in October 1796. See Bayard to JJ, 11 Oct. 1796, ALS, NNC (EJ: 12840).