Cabinet Meeting. Opinion on Restoring
the Brigs Conyngham and Pilgrim to the British1
[Philadelphia, March 27, 1794]
At a meeting of the heads of departments and Attorney general. March 27. 1794.
The Secretary of War, the attorney general and the Secretary of State advise, that the Conyngham be not delivered up to the British owners; the secretary of the treasury dissenting.
The Secretary of the treasury, the Secretary of war, and the attorney general advise, that the Pilgrim be delivered up to the British owners; the Secretary of State dissenting.2
DS, in the handwriting of Edmund Randolph, George Washington Papers, Library of Congress.
1. For background to this document, see “Cabinet Meetings. Opinions Concerning the Relations of the United States with Several European Countries,” November 1–22, 1793.
2. The British claimed the Pilgrim and the Conyngham, both of which had been captured by the French privateer Sans Culotte, because the ships had been taken within United States territorial waters. In his “Treasury Department Circular to the Collectors of the Customs,” August 4, 1793, H had instructed the collectors to send information concerning disputed prizes to the governors of the states and to the district attorneys. If the parties to the dispute refused to select arbiters, depositions to be taken by the district attorneys were to be forwarded to the Secretary of State for cabinet decision. On November 11, 1793, Thomas Jefferson had written to the United States district attorneys: “The war at present prevailing among the European powers producing sometimes captures of vessels in the neighborhood of our seacoast, and the laws of nations admitting as a common convenience that every nation inhabiting the sea coast may extend its jurisdiction and protection some distance into the sea, the President has been frequently appealed to by the subjects of the belligerent powers for the benefit of that protection. To what distance from the sea coast this may be extended is not precisely ascertained either by the practice or consent of nations or the opinions of the jurists who have written on the subject.… However … the President has thought it best, so far as shall concern the exercise of the Executive powers, to take the distance of a sea league, which being settled by treaty between some of the belligerent powers, and as little as any of them claim on their own coasts, can admit of no reasonable opposition on their part. The executive officers are therefore instructed to consider a margin of one sea league on our coast as that within which all hostilities are interdicted for the present, until it shall be otherwise signified to them.…
“As the question whether a capture has been made within these limits is a question of fact to be decided by witnesses, it becomes necessary to take measures for the examination of these witnesses in the different States where captures may happen, and the laws of the union having as yet made no provision for the purpose, the President considers the Attornies of the several districts as the persons the most capable of discharging the office with knowledge, with impartiality, and with that extreme discretion which is essential to all matters wherein foreign nations are concerned. I have the honor therefore, Sir, to inclose you a paper expressing the desire of the President on this subject. You will see by that that whenever a capture is suggested to have been made within the limits above mentioned, so far as they are within your State, the Governor to whom the first application will be made is desired to give you notice thereof, whereupon it is hoped you will proceed as the paper points out. The Representatives here of the different powers are informed of this arrangement, and desired to instruct their Consuls to facilitate the proceedings as far as shall depend on them, and it is unnecessary for me to suggest what your own judgment and disposition would dictate that the same object will be promoted by a certain degree of respect to which the Consuls are entitled, and a just and friendly attention to their convenience.
“I have the honor to be with sentiments of respect, Sir &c Th. Jefferson
“That the Governors be requested to give to the District attornies information of any arrest made of vessels captured within the limits of the United States, or of their jurisdiction as provisionally declared by the President for the government of the executive officers. That the attornies be instructed, immediately upon the receipt of such information to apply to the principal agent of both parties who may have come in with the prize and to the Consuls of the nations interested, where any such are at the port or within convenient distance, and ascertain whether they will name Arbiters for deciding whether the capture were made within the limits aforesaid. That the Governors be authorized to restore in case the arbiters should report in favor of the captured vessel, or to remove the arrest if they should report against her. That in case the parties or Consuls should not agree to appoint Referees, the attornies shall give notice to them of the time and place when and where he will be in order to take the depositions of such witnesses as they may cause to come before him, and that he transmit to the Executive the depositions so taken.
“If from peculiar circumstances, the Attornies cannot attend for the above purpose, he may substitute some other gentleman of the law, in whose impartiality he has absolute confidence, or if no Gentleman of the law be convenient, then such other person most competent as may be had.” (LC, RG 59, Domestic Letters of the Department of State, Vol. 4, February 4, 1792–December 31, 1793, National Archives; letterpress copy, Thomas Jefferson Papers, Library of Congress.) Henry Knox sent a similar letter to the governors of the states (Knox to Henry Lee, November 12, 1793 [Sherwin McRae, ed., Calendar of Virginia State Papers and Other Manuscripts, from August 11, 1792, to December 31, 1793, Preserved in the Capitol at Richmond [Richmond, 1886], VI, 634–35]), and on November 10 Jefferson sent a circular letter to the British, French, and Spanish ministers to the United States, which was approved by H, Henry Knox, and Edmund Randolph, informing them of these procedures (ADf, Thomas Jefferson Papers, Library of Congress).
On November 14 and December 5, 1793, Jefferson had written to Zebulon Hollingsworth, United States attorney for the District of Maryland, requesting him to obtain depositions concerning the capture of the Pilgrim, even though F. Moissonnier, the French consul at Baltimore, had already sold the ship (letterpress copy, Thomas Jefferson Papers, Library of Congress; ADf, Thomas Jefferson Papers, Library of Congress). On November 14, 1793, Jefferson had requested Hollingsworth to obtain similar depositions concerning the Conyngham (ADf, Thomas Jefferson Papers, Library of Congress; LC, Domestic Letters of the Department of State, Vol. 4, February 4, 1792–December 31, 1793, National Archives).
On February 6, 1794, Alexander Campbell, United States attorney for the District of Virginia, wrote the following letter concerning the Conyngham to Edmund Randolph: “On the 18th. of last month, I received thro’ the Executive Council of this State, a request from the British Consul at Norfolk [John Hamilton] that I would appoint Commissioners to take the depositions of Witnesses respecting the capture of a British vessel call’d the Cunningham, suggested to have been made within the marine limits of the United States. The instructions, from the Executive of the United States, which were transmitted to me by Mr Jefferson, not permitting me to substitute any one in my place, to transact business of this Sort, except in particular cases; I notified to the British and French Consuls that I would attend at Norfolk on the 27th of the month, to take the Depositions of such Witnesses as they or the parties concerned, should cause to come before me, and I also requested them to communicate that appointment to such individuals of their respective nations, interested in the Enquiry, as it might be practicable to notify. On the 27th I, accordingly, met the Consuls at Norfolk, but found that tho’ they had received my letters, there were no Witnesses attending, owing to an inability in them to compel or procure their attendance. I was forced therefore, at the desire of the British Consul to write to the Witnesses a letter, requesting them to attend at Norfolk on the 30th of the month, and another letter, having made an arrangement to that end with the Claimant of the British vessel, I assured them that they would receive as a satisfaction for their trouble & expence the same which is allow to Witnesses in the District Courts of this Commonwealth. In consequence of this letter, they attended on the day appointed, when their Depositions were taken in the presence of the French and British Consuls. These Depositions I now enclose to you.
“The French Consul [Martin Oster] remarked that he had been totally uninformed as to the design of the British Claimant to take depositions in this State ‘til he received my letter of notification, and that it was then too late, either to communicate with French Consul at Baltimore [F. Moissonnier], where, it seems, the Cunningham is, or to learn any thing concerning the nature of the controversy respecting her capture. It seem’d to me that there was reason in the remark, which the Consul made, somewhat in the form of an objection, and therefore, in order to take away all just cause of dissatisfaction I undertook to assure him that the enclosed depositions would not have the force of testimony ‘til after the expiration of forty days from the time when they were taken. These proceedings, I hope will meet the approbation of the Executive of the United States, before whom, in conformity with it’s direction, I beg you to lay the Depositions and this letter.
“I think it proper to observe that as the laws of the United States are improvident in cases of this kind, and the instructions of the Executive did not, as most probably, they could not prescribe the means by which I was to attain the end which they proposed; I was forced to exercise some degree of discretion, and if in this I shall be thought to have exceeded the limits which those instructions marked out for me in such cases, I beg that it may be ascribed to the injunction contained in the instructions, or rather in the letter which enclosed them, that I should consult as much as possible the Convenience of the Consuls in all cases in which I might have any business of this kind to transact with them.” (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives.)
On April 5, 1794, Randolph wrote to George Hammond, the British Minister to the United States: “The President of the United States having taken into consideration the cases of the Brig Pilgrim and Conyngham has instructed the Secretary of war to cause the former to be restored to her former British Owners. The latter not being proved to have been taken within the protection of our coasts will no longer be detained from the Captors” (copy, PRO: F.O. description begins Transcripts or photostats from the Public Record Office of Great Britain deposited in the Library of Congress. description ends [Great Britain], 5/5).