To George Washington from Edmund Randolph, 22 June 1794
From Edmund Randolph
Philadelphia June 22. 1794.
Sir
I did myself the honor of writing to you yesterday and the day before.
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 witheld by government from the captors.1
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.2
But Mr Hammond has 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; Their reasons are set forth in the inclosed paper. I am no less strong in favor of compensation, than they are; but differ from them, as to the nature of the stipulation, which is now to come from the President; the following being my view of the matter.
When compensation was first talked of, it was thought adviseable, that the President should declare it to be his opinion, that it was incumbent on the United States to make it.3 Beyond this, he has at no time gone, either in the communication, which he directed to Mr Hammond, or in that, which he sent to congress on the 5th of december 1793. Nor ought he, in my judgment, ever to go further, than to repeat his opinion, and again to urge congress.
1. For, the constitution forbids money to be drawn from the treasury, but in consequence of appropriations by law.4 If therefore the President had undertaken to bind the U.S. absolutely, it would have departed from the spirit at least of that instrument.
2. This subject has been submitted to congress.5 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. It is unnecessary to begin such a practice on this occasion by a particular instruction; because Mr Jay’s general instructions are full enough for the object, if he should find it expedient to enter into the arrangement.6
4. If it should be asked, what is the inconvenience of repeating expressly a power, already vested virtually in Mr Jay; it may be asked in turn, what is to be the benefit? It is said, that it will be a fresh proof of the sincerity of our professions to Great Britain. But even in this view, it will be at least as good a proof of sincerity, when it is delivered from the lips of Mr Jay to Lord Grenville, as if it were written by me to Mr Hammond. There is besides a positive inconvenience. When Mr Jay’s powers were drawn, it was not decided, that Congress would not grant compensation, and therefore the leaving of the business to his discretion was in no respect improper. But now to give an instruction, in order to do by the President and Senate, what was omitted to be done by the whole legislature, will be exposed to this construction: that the President first recommends a thing to be done by both branches of congress, and when it appears, that the house of representatives will not originate a bill for the purpose, measures are adopted to accomplish the end by excluding them.
5. Why need the President increase his engagements for compensation; when the failure to do so cannot be imputed by way of blame?
It is therefore submitted to his consideration, whether it may not be sufficient to say to Mr Hammond, that as it happened, that no provision was created by congress for the compensation required, the President will again impress upon them his opinion, that it is obligatory on the U.S. to make it, and to grant funds, adequate to the case.
Mr Bradford is not at hand for consultation. I have the honor, sir, to be, with the highest respect yr mo. ob. serv.
Edm: Randolph
ALS, DNA: RG 59, Miscellaneous Letters; LB, DNA: RG 59, GW’s Correspondence with His Secretaries of State; LB, DNA: RG 59, Domestic Letters.
1. British minister George Hammond had renewed his request for decisions in the cases of several captured British vessels in a letter to Randolph of 18 June (DNA: RG 59, Notes from the British Legation). For the case of the ship William, captured in May 1793 by the Citoyen Genet, see GW to Henry Knox, 23 June 1793, and n.4 to that document; Cabinet Opinion, 5 Aug. 1793, and n.5 to that document; and Thomas Jefferson to GW, 3 Oct. 1793 (fourth letter), and n.5 to that document. Randolph’s letters reporting this decision to Hammond and to French minister Jean-Antoine-Joseph Fauchet are dated 21 June (DNA: RG 59, Domestic Letters). On 25 June, Pierre (Peter) Barriere advertised that the William would be sold at auction on 3 July (General Advertiser [Philadelphia], 27 June).
2. For the case of the brigantine Pilgrim, captured in October 1793 by the privateer Sans Culottes de Marseilles, see Thomas Sim Lee to GW, 18 Oct. 1793, and n.1 to that document; Record of Cabinet Opinions, 22 Nov. 1793, and n.5 to that document; and Cabinet to GW, 27 March. Randolph wrote on this date to the federal district attorney for Maryland, Zebulon Hollingsworth, explaining that at the time of the decision to promise compensation it was not known that the Pilgrim had been sold to an American citizen. Hollingsworth was directed "immediately and without the smallest delay to endeavour by proper process to get the vessel into the hands of government or the original owner. Perhaps you may have a writ of Replevin, which is resorted to in such cases here" (DNA: RG 59, Domestic Letters). On 3 July, Randolph wrote Fauchet to ask that he order that the Pilgrim be delivered up "to the person, to whom she belonged before the capture" (DNA: RG 59, Domestic Letters), and the ship was restored, although in Hammond’s view "in a condition almost irreparable" (Hammond to Lord Grenville, 3 Aug., P.R.O.: Foreign Office, 5/5).
3. Randolph is referring to the recommendations made in cabinet opinions of 3 and 5 Aug. 1793 and communicated in letters of 7 Aug. 1793 from Jefferson to Edmond Genet, then French minister, and Hammond (Jefferson Papers, 26:633-35).
4. This provision is in Article I, section 9, of the Constitution.
5. Randolph evidently considered GW’s message to Congress of 5 Dec. 1793 as a submission of the question of compensation.
6. For Randolph’s general instructions to John Jay of 6 May, see , 1:472-74.