was that of "the vexations and spoliations committed on our commerce by the authority of instructions from the British Government." For injuries committed under the order in council of the 8th of June 1793, Mr. Jay was instructed that one of the principles on which he was to demand compensation was "that provisions, except in the instance of a siege, blockade, or investment, are not to be ranked among contraband." The order of November 6 "filled up the measure of depredation." "Compensation for all the injuries sustained, and captures, will," said Mr. Randolph. "be strenuously pressed by you."1

tiations.

Mr. Jay made his first formal representation Jay-Grenville Nego- to Lord Grenville on the 30th of July 1794. In this representation he abstained from particularizing or entering into the merits of cases, but proceeded on the general ground that "under color of His Majesty's authority and commissions," "great and extensive injuries" had been done to American merchants, for which reparation could be

"Compensation for all the injuries sustained, and captures, will be strenuously pressed by you. The documents which the agent in the West Indies is directed to transmit to London will place these matters in the proper legal train, to be heard on appeal. It can not be doubted that the British ministry will insist that, before we complain to them, their tribunals, in the last resort, must have refused justice. This is true in general; but peculiarities distinguish the present from past cases. Where the error complained of consists solely in the misapplication of the law, it may be corrected by a superior court; but where the error consists in the law itself, it can be corrected only by the lawmaker, who, in this instance, was the King, or it must be compensated by the Government. The principle, therefore, may be discussed and settled without delay; and, even if you should be told to wait until the result of the appeals shall appear, it may be safely said to be almost certain that some one judgment in the West Indies will be confirmed; and this will be sufficient to bring the principle in question with the British ministry.

"Should the principle be adjusted, as we wish and have a right to expect, it may be advisable to employ some person to examine the proper offices in London, for such vessels as may have been originally tried or appealed upon, and finally condemned. You will also reserve an opportunity for new claims, of which we may all be ignorant for some time to come; and if you should be compelled to leave the business in its legal course, you are at liberty to procure professional aid at the expense of the United States.

"Whenever matters shall be brought to such a point as that nothing remains for settlement but the items of compensation, this may be entrusted to any skillful and confidential person whom you may appoint.

"You will mention, with due stress, the general irritation of the United States at the vexations, spoliations, captures, &c. And being on the field

obtained only through "the justice, authority, and interposition of His Majesty." In some cases, as where property had been condemned and sold and the proceeds scattered, it was impracticable to obtain a remedy by civil process; and it was neces sary to "confide in His Majesty's justice and magnanimity to cause such compensation to be made to the innocent sufferers as may be consistent with equity." In other cases it might be "expedient and necessary, as well as just, that the sentences of the courts of vice-admiralty should be revised and corrected by the court of appeals" in London. In such cases it was hoped that it would appear reasonable to His Majesty to order that the claimants, who had not already done so, should be admitted to enter there both their appeals and their claims; and, as the expenses and delays attending litigated suits were grievous, it was desirable that a mode of proceeding as summary and inexpensive as possible might be devised.'

Lord Grenville answered that it was "His Majesty's wish that the most complete and impartial justice should be done to all the citizens of America, who may, in fact, have been injured by any of the proceedings above mentioned." As to cases where the parties had omitted to prefer claims, it was apprehended that the regular course of law was still open to them, and that by preferring appeals to the commissioners of prize in London against the sentences of the courts below, "the whole merits of those cases may be brought forward, and the most complete justice obtained." In cases where no appeal had been taken from the sentence of condemnation in the first instance, His Majesty had referred it to the proper officers to consider a mode of enlarging the time for receiving the appeals. In this manner Lord Grenville said he had no doubt "a very considerable part of the injuries alleged to have been suffered by the Americans may, if the complaints are well founded, be redressed in the usual course of judicial proceedings, at a very

of negotiation you will be more able to judge, than can be prescribed now, how far you may state the difficulty which may occur in restraining the violence of some of our exasperated citizens." (Mr. Randolph to Mr. Jay, May 6, 1794, Am. State Papers, For. Rel. I. 472.)

The "agent in the West Indies," referred to in the foregoing extract was Mr. N. C. Higginson, who was sent by the Government of the United States to the British West India Islands to attend to the cases of American vessels brought in under the orders in council.

Mr. Jay to Lord Grenville, July 30, 1794. (Am. State Papers, For. Rel. 1. 481.)

small expense to the parties, and without any other interposition of His Majesty's Government than is above stated. Until the result and effect of these proceedings shall be known, no definitive judgment can," continued Lord Grenville," be formed respecting the nature and extent of those cases (if any such shall ultimately be found to exist), where it shall not have been practicable to obtain substantial redress in this mode. But he does not hesitate to say, beforehand, that, if cases shall then be found to exist to such an extent as properly to call for the interposition of Government, where, without the fault of the parties complaining, they shall be unable, from whatever circumstances, to procure such redress, in the ordinary course of law, as the justice of their cases may entitle them to expect, His Majesty will be anxious that justice should, at all events, be done, and will readily enter into the discussion of the measures to be adopted, and the principles to be established for that purpose."1

On the basis of this declaration the plenipotentiaries succeeded in agreeing on a measure of redress without entering into a discussion of the particular principles on which relief should be granted. On the 6th of August Mr. Jay proposed that commissioners should be appointed for the purpose of affording satisfaction for vessels and property illegally captured and condemned. On the 30th Lord Grenville responded, accepting the proposal to appoint commissioners, and offering, for the definition of their functions and jurisdiction, an article based on his previous note and couched in substantially the same language as the article finally adopted.

Article VII.

This article forms the seventh of the treaty concluded by Mr. Jay and Lord Grenville on the 19th of November 1794. Reciting that "complaints have been made by divers merchants and others, citizens of the United States, that during the course of the war in which His Majesty is now engaged, they have sustained considerable losses and damage, by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from His Majesty, and that from various circumstances belonging to the said cases, adequate compensation for the losses and

1 Lord Grenville to Mr. Jay, August 1, 1794. (Am. State Papers, For. Rel. I. 481.)

Am. State Papers, For. Rel. I. 481.

damages so sustained cannot now be actually obtained, had, and received by the ordinary course of judicial proceedings; it is agreed, that in all such cases, where adequate compensation cannot, for whatever reason, be now actually obtained, had, and received by the said merchants and others, in the ordinary course of justice, full and complete compensation for the same will be made by the British Government to the said complainants. But it is distinctly understood that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant."

Prospective Operation.

It was also agreed that not only all existing cases, but also all such as should exist at the time of the exchange of the ratifications of the treaty should be considered as being within the provisions, intent, and meaning of the article.

Order in Council,
April 1795.

This stipulation enabled the commission under Article VII. to take cognizance of cases that arose under an order in council, issued in April 1795, about five months after the treaty was signed and six months before the exchange of ratifications, which was effected in London on October 28, 1795. The text of this order was not published, but it was gathered from the cases that arose under it that it directed His Majesty's ships of war and privateers to stop and detain all vessels laden wholly or in part with corn, flour, meal, or other articles of provisions and bound to any port in France and to send them to such ports as might be most convenient, in order that such corn or other articles might be purchased in behalf of the government. Not long afterward the order was revoked, and compensation for the seizures which it occasioned was obtained under Article VII. When Lord Grenville on the 30th of August 1794 submitted to Mr. Jay a draft of an article to provide for compensation for captures under the orders in council, he included in it a stipulation to this effect: "And it is further agreed that, if it shall appear that, in the course of the war, loss and damage has been sustained by His Majesty's subjects, by reason of the capture of their vessels and merchandise, such capture having been made, either within the limits of the jurisdiction of the said States, or by vessels armed in the ports of the said States, or by vessels commanded or owned by the citizens of the said States, the United States

Neutrality of United
States.

will make full satisfaction for such loss or damage, the same to be ascertained by commissioners, in the manner already mentioned in this article."1

This proposal involved the interesting quesCourse of Genet. tion of the enforcement by the United States of its neutral policy in the pending war, as announced in President Washington's proclamation of April 22, 1793. By this proclamation it was declared that in the "state of war" that existed "between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France on the other," "the duty and interest of the United States require, that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial toward the bellig. erent powers." On the other hand, the Government of France expected from the United States friendly aid, if not an open alliance. This expectation filled the thoughts and governed the course of the Citizen Genet, who was sent out in 1793 to succeed M. Ternant as French minister to the United States. Genet, having arrived in Charleston, South Carolina, in April, the Government of the United States soon learned "that he was undertaking to authorize the fitting and arming of vessels in that port, enlisting men, foreigners and citizens, and giving them commissions to cruise and commit hostilities on nations at peace with us; that these vessels were taking and bringing prizes into our ports; that the consuls of France were assuming to hold courts of admiralty on them; to try, condemn, and authorize their sale as legal prize; and all this before Mr. Genet had presented himself or his credentials to the President, before he was received by him, without his consent or consultation, and directly in contravention of the state of peace existing, and declared to exist in the President's proclamation, and incumbent on him to preserve, till the constitutional authority should otherwise declare."3

The British minister, Mr. Hammond, complained of these proceedings, and on the 15th of May Mr. Jefferson addressed a remonstrance on the subject to the French minister. On

1 Am. State Papers, For. Rel. I. 488.

2 Am. State Papers, For. Rel. I. 140. At this place will also be found Hamilton's instructions to collectors of customs of August 4, 1793, in which the acts understood to be forbidden by a state of neutrality were defined. 3 Mr. Jefferson, Sec. of State, to Mr. Morris, minister to France, August 16, 1793. (Am. State Papers, For. Rel. I. 167.)