Opinion on Compensation for Captured Vessels1
[Philadelphia, June 22, 1794]
I am not willing to give a pretext for not doing us justice by the appearance of carelessness or indifference as to the fulfilment of our engagements. I continue to think that the idea of a special instruction to Mr: Jay is proper, because it is an evidence of our being in earnest, because as Mr: Jay’s mission was produced by circumstances subsequent to the communication to Congress,2 that communication can be no objection to embracing the subject in his mission especially as bearing a near affinity to the primary objects of it—because though his general powers are competent it is proper he should know the sense and desire of the Government in this particular—and the specification as already observed has great value as a proof of sincerity.
I fear to be retrogade in our means of inspiring confidence in all the parties as to the sincerity of our original professions.
I think we have lately lost ground.3
Copy, RG 59, Miscellaneous Letters, 1790–1799, National Archives.
1. This document concerns captures by ships of belligerents contrary to the law of nations. H’s opinion was enclosed in a letter which Edmund Randolph wrote to George Washington on June 22, 1794. in which Randolph also gave his opinion.
On June 18, 1794, the British Minister to the United States, George Hammond, had written to Randolph concerning the William, the Lovely Lass, the Prince William Henry, the Jane of Dublin, and the Pilgrim. Hammond pointed out that the question of these British vessels “brought at different times as prizes into American ports, having been long under the deliberation of this government, I take the liberty of requesting you to inform me of its actual sentiment or determination relative to them respectively” (ALS, RG 59, Notes from the British Legation in the United States to the Department of State, Vol. 1, October 26, 1791–August 15, 1794, National Archives). On June 21, 1794, Randolph replied to Hammond’s letter as follows: “… I have the honor to inform you, that the proof adduced in behalf of the Ship William of Glasgow, has been duly considered, and it not being competent to establish the place of her capture to be within the particular protection of the United States, the captors will not meet with any farther interference from the Government.
“The case of the Pilgrim is truly conceived by you. It was not known, until after the 5th of April last, when the letter promising restitution was written that she had been sold to an American citizen. If the prosecution ordered by Government, for the purpose of capacitating it to make specific restitution of the vessel, shall not succeed, it has been and continues to be its determination to consider the Pilgrim, as standing upon an equal title to compensation, with any of the vessels illegally captured.
“The subject of compensation for vessels, illegally captured, was communicated by the President to Congress at the commencement of their last session, but it happened that no provision was then made by law to enable the executive to fulfil the expectation given. As your letter was received after his departure, I cannot ascertain what ulterior measure may be contemplated by him, to give efficacy to the opinion which he has already expressed in favor of compensation. But I will immediately transmit a copy of that letter to him, and hope to be able in a few days to acquaint you with his decision.” (LC, RG 59, Domestic Letters of the Department of State, Vol. 6, January 2–June 26, 1794, National Archives; 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.)
Randolph, in his letter of June 22, 1794, to Washington, stated: “It has since become necessary to decide the case of the Ship William of Glasgow. which was said to have been captured by a French cruizer, within the protection of our coast. But the evidence having been deemed by us all incompetent to establish the fact, both the French and English Ministers have been informed, that she will no longer be withheld by government from the captors.
“There has been the same unanimity, in promising to Mr. Hammond, that the Pilgrim, a british vessel, captured by an illegal privateer and purchased by an American citizen, shall be placed upon an equal footing of compensation with other prizes of the same kind, if a prosecution, ordered to be instituted against the present proprietor, shall not enable the government to restore her specifically.
“But Mr. Hammond also requested to know, what measures are to be adopted, upon the subject of compensation in general. Colo. Hamilton and General Knox are of opinion that Mr. Jay should be instructed to make this compensation an article in a treaty; and that Mr. Hammond be made acquainted with the instruction.” (ALS, Miscellaneous Letters, 1790–1799, National Archives.)
For information concerning compensation for unlawful captures, see “Cabinet Meeting. Proposed Rules Concerning Arming and Equipping of Vessels by Belligerents in the Ports of the United States,” July 29–30, 1793; “Cabinet Meeting. Opinion on the Fitting Out of Privateers in the Ports of the United States,” August 3, 1793; “Cabinet Meeting. Opinion Respecting Certain French Vessels and Their Prizes,” August 5, 1793; H to Thomas Jefferson, December 18, 1793. For the William, see H to Rufus King, June 15, 1793; Jefferson to H and Henry Knox, June 25, 1793, note 1; “Cabinet Meeting. Opinion on Vessels Arming and Arriving in United States Ports,” July 12, 1793; “Cabinet Meetings. Opinions Concerning Relations of the United States with Several European Countries,” November 1–22, 1793; Randolph to William Bradford, H, and Knox, April 5, 1794; Randolph to H and Knox, May 20, 1794; Randolph to H, June 9, 17, 1794. For the Pilgrim, see “Cabinet Meetings. Opinions Concerning the Relations of the United States with Several European Countries,” November 1–22, 1793; “Cabinet Meeting. Opinion on Restoring the Brigs Conyngham and Pilgrim to the British,” March 27, 1794.
2. H is referring to Washington’s message to Congress on December 5, 1793, which, among other matters, discussed the question of compensation for vessels captured unlawfully by belligerents and brought into American ports. In his message Washington had stated: “Rather than employ force for the restitution of certain vessels, which I deemed the United States bound to restore, I thought it more advisable to satisfy the parties by avowing it to be my opinion, that, if restitution were not made, it would be incumbent on the United States to make compensation” (GW description begins John C. Fitzpatrick, ed., The Writings of George Washington (Washington, 1931–1944). description ends , XXXIII, 172). On this point, Randolph in his opinion wrote: “This subject has been submitted to congress. Why they did not complete it is unknown to me; but they may take it up still. The proposition from the secretaries of the treasury and of war will, if it should succeed, establish a precedent entirely new. It will begin the practice, of providing by a treaty with a foreign nation for sums of money, which the Legislature shall hesitate about granting.”
3. Knox’s opinion agreed substantially with H’s. He wrote: “I conceive it to be for the real interest of the U. S. to reiterate our obligations to make compensation according to the sense of the original intimation. No relaxation ought to be admitted on this point. Mr. Jay’s negociations seem to promise the most speedy means to accomplish this end—and I therefore think he ought to be instructed accordingly” (copy, RG 59, Miscellaneous Letters, 1790–1799, National Archives).