From Rufus King
London Ap. 29. 1797
Unless greater attention is given to the procuring of the requisite evidence in the Cases of Capture than has yet been done,1 we shall ultimately meet with serious Losses, and give occasion to much Complaint.
The Sufferers depend on the Government, and the Government on the Sufferers, and thus that wh. shd. be done is omitted. I inclose to you a copy of notes wh. Mr. Gore2 & I made this morning upon this subject—he has sent a Copy to the Secy. of State—perhaps some Public Notice shd. be given on this subject.
P.S. We are anxious to hear from Vienna—the last post brings intelligence to the 12. The armistice expired on the next day—if no treaty was concluded, a serious & decisive Battle must have been fought before this Date. Some people Suppose Buona Pane’s situation was critical, and very dangerous. The Check recd. by the French in the Tyrol has enabled a corps of Austrian to gain the Rear of Buona Parte’s Army.3
ALS, Hamilton Papers, Library of Congress.
1. King is referring to evidence presented to the mixed commission which was authorized by Article 7 of the Jay Treaty and which was at this time meeting in London. The commission was assigned the task of arbitrating United States claims growing out of the violation of neutral rights. For information on the members of the commission and its initial difficulties, see King to H, February 6, 1797.
2. Christopher Gore of Massachusetts was one of the American commissioners appointed to carry out the provisions of Article 7 of the Jay Treaty. On April 30, 1797, Gore and William Pinkney, also an American commissioner, wrote to Timothy Pickering that they had “conferred with Mr King on the subject” of these cases (LS, RG 76, Records of the Boundary and Claims Commissions and Arbitrations, National Archives), and they enclosed notes on the procedures to be followed in presenting claims to the board (copy, RG 76, Records of the Boundary and Claims Commissions and Arbitrations, National Archives). These may be the notes to which King is referring in the letter to H printed above. On April 29, 1797, King wrote to Pickering: “Mess. Gore and Pinckney will write to you on a subject on which I have had, and still suffer, much anxiety—unless a more systematic attention is given to the procuring of the seasonable and requisite Evidence in cases of Capture, I see little prospect in obtaining the reasonable satisfaction for our Losses, which with proper diligence & skill in the Agency, and with present views of this Government, we might rationally expect to receive” (King, The Life and Correspondence of Rufus King description begins Charles R. King, ed., The Life and Correspondence of Rufus King (New York, 1894–1900). description ends , II, 177). As a result of the commissioners’ complaints, the Department of State issued the following notice on September 7, 1797: “A Detail of the Proofs necessary to be exhibited before the Board of Commissioners appointed, under the 7th article of the Treaty of Amity, Commerce and Navigation, between the United States and Great Britain, to adjust the Claims of the Citizens of the United States on Account of illegal Captures and Condemnations of their vessels, or other Property.
“In all cases the proceess, that is, copies of the proceedings in the vice admiralty courts, or at least so much as is considered necessary before the Lords Commissioners, should be brought forward to accompany the claim preferred to the Board.
“It is advisable, that in all cases the affidavit of the party, his clerks and others knowing the transaction, also copies and extracts of entries in the books of the party, made at the time of and relating to the transaction, the truth of which should be sworn to by his clerks, should be furnished to show that the voyage and property were as the ship’s papers declare them to be.
“In many cases the party may hold letters and documents from the shippers and others, written at the time of and concerning the voyage, vessel and cargo, or either, which may be in question, and which letters may serve to confirm or elucidate other evidence. Should such be sent, accompanied by the testimony of the party and his clerks, that they are true, or if from any cause it may be inexpedient to send the originals, let the attestation be to the truth of the copy, and that the original contains nothing more as to that particular voyage or property. It will also be well to state the reason why the original is not sent.
“The foregoing will be highly useful in all cases, even in those cases where there was no act done by the master or by others to impair or lessen the force and weight of papers found on board at the time of capture, and where the papers were complete and genuine and the transaction on the face of it perfectly fair.
“In all cases where the ship’s papers were incomplete, where the transaction was in any degree suspicious from the want of papers ordinarily used and found on board vessels, or from any act of the master or others in destroying or concealing papers, or attempting to secrete property of the enemy, such extracts, correspondence and affidavits, as aforementioned, will be indispensable to show fully and clearly to whom the property belonged and to remove all suspicions and doubts as to the truth and fairness of the transaction.
“There are several classes of cases in which a charge may be brought forward of wilful omission and neglect, and which charge it will be necessary to remove.
“It should be understood in the United States, that in some cases the party captured neglected to make a claim for his property in the vice admiralty courts; that in some, after having made such claim there, he abandoned it; that in some after having prosecuted in the vice admiralty, he failed to claim an appeal there, or give security for prosecuting his appeal; in some, the party neglected to claim or enter his appeal in the courts of appeal within the time limited by law, which time, in cases where there was a claim filed in the vice admiralty court, is limited to nine months from the date of the sentence of the vice admiralty, and in cases where there was no claim in the vice admiralty, the time is limited to one year from the date of the sentence. There was at the request of Mr. Jay, a prolongation of the ordinary time for claiming appeals by special order of his Britannic Majesty. There are others where the party after having made his appeal neglected to take out the usual process or to serve the same on the captors; and others where the party did not bring forward copies of the proceedings in the court of vice admiralty.
“Testimony should be furnished satisfactorily accounting for the neglect or abandonment in the particular case, where it happened, and such as will remove the presumption of ‘wilful omission and neglect’; where there has been an omission to claim in the vice admiralty, or an abandonment of the claim after being duly preferred, or a neglect to claim an appeal in due season of law, or within the time allowed under the particular order of his Britannic Majesty, or to prosecute such an appeal by not taking out and serving the usual process on the captors, or by not bringing forward copies of the proceedings in the court of vice admiralty.
“In cases where money has been expended in prosecuting for the property in the vice admiralty courts in the West Indies or elsewhere, it is necessary that evidence should be furnished, showing the amount expended and that it was of necessity. The affidavit of the person paying or receiving the money, or of those who were present at the payment, or knew of its being paid, would be satisfactory. In cases where the vessel has been hypothecated or property sold to provide the security demanded for prosecuting appeals from the vice admiralty courts, evidence should be furnished that such hypothecation or sale was necessary, the amount sold, the loss and damage which accrued to the party from such sale or hypothecation. Evidence of the price at which the property was sold, and that at which it would have sold at the place of destination, when the vessel would have probably arrived, had she not been stopped, will show the loss sustained by the sale.
“In cases of demurrage, the loss may be proved by showing what that vessel, or such a vessel, could have earned during the detention. This may be the testimony of those who hired or let vessels at the time, by the expenses incurred in victualling the crew, by the hazard to the vessel from the nature and waters of the harbor or ports where she was detained.
“In cases where a claim is preferred to the Board for compensation, for a loss sustained by capture and condemnation, the value of the property at the place of destination at the probable time of its arrival, had it not been prevented by capture, may be proved by the affidavits of auctioneers, brokers and others disinterested in the particular case, or in any cases under the commission: prices current published at such times and places, will afford very satisfactory evidence as to value. Evidence should be obtained from all the considerable seaports in the United States of the premium paid for insurance from the various foreign ports, especially in the West Indies or other foreign ports; and where the party has insured his property, he should prove the rate of premium at which he insured it.” (Moore, International Adjudications description begins John Bassett Moore, ed., International Adjudications; Ancient and Modern, History and Documents, Together with Mediatorial Reports, Advisory Opinions, and the Decisions of Domestic Commissions, on International Claims (New York, 1929–1936). description ends , IV, 93–95.)
3. At the Battle of Rivoli on January 13–14, 1797, Napoleon overwhelmingly defeated the Austrians, who retreated into the Alps. On February 2, Mantua capitulated. Napoleon then marched into the Alps on a campaign which resulted in the collapse of the Austrian defense and which brought Austria to the verge of military disaster. On April 7, Napoleon and the Austrians agreed to an armistice which was to expire on April 13 (Réimpression de L’Ancien Moniteur description begins Réimpression de L’Ancien Moniteur, Seule Histoire Authentique et Inaltérée de la Révolution Française (Paris, 1847). description ends , XXVIII, 669–70). On April 18 the preliminaries of peace were signed near Leoben (Martens, Recûeil description begins Georg Friedrich von Martens, Recûeil des principaux Traités d’Alliance, de Paix, de Trêve, de Neutralité, de Commerce, de Limites, d’Echange etc. conclus par les puissances de l’Europe tant entre elles qu’avec les puissances et etats dans d’autres parties du monde depuis 1761 jusqu’à présent, 2nd edition (Göttingen, 1817–1829), III, V, VI. description ends , VI, 385–90). Napoleon was willing to agree to the preliminaries of peace because of the widespread rising of the Tyrolese, increased opposition by the Venetians, and his fear that he would soon be confronted by a much larger force of Austrians.