From Oliver Wolcott, Junior
Phila. Oct. 6. 1795
Dear Sir (Private)
I will in a few days inform you of the facts upon which my former Letter1 was predicated.
The inclosed case of the Betsey2 Capt. Furlong3 excites much alarm here & I think with reason: the same principles will extirpate nine tenths of our claims for spoliations & lead to new assaults upon our Commerce.
I wish to know your opinion of the mode of proceeding under the 7th. Article of our Treaty with England.4 Must all cases go through a process of litigation before the English Courts, before they are submitted to Commissioners? If so, for what purpose? Is the “legality or illegality the regularity or irregularity”5 of a capture to be determined solely in those Courts? Or will the Commissioners take up claims de novo. This is an interesting question for there is now little doubt, but that the Commissioners of Appeals, will affirm most of the judgments of condemnation.
My doubt on this subject principally arises, from finding, that the 6th. article6 provides for the British debts in the same manner as the 7th. provides for the spoliation cases & moreover defines the cases to be those where relief cannot be had in the ordinary course of judicial proceedings. Now it appears to me that it would be a very dilatory expensive & unnecessary process to compel an Englishman to travel through our Courts merely to ascertain that they could not do him justice, & to prepare his case for the Commissioners. The same objections exist against a similar operation in the British Courts of Admiralty. Is it not therefore the meaning of the Treaty, that Commissioners shall settle both descriptions of claims & award compensation according to principles of equity? And if this is the case, why is Mr. Bayard trying questions which are decided against him, at an expence which he estimates may amount to 75.000 £ Sterling.
I must own I do not see through this business, & though you may think it strange, I beg you to remember that I knew nothing concerning the Treaty ’till lately, & cannot devote much time to it without sacraficing objects more immediately in the line of my duty.
The fact is, that the old doctrines of inalienable allegiance,7 & that Neutrals may not in time of War carry on a Commerce inhibited in time of Peace,* 8 are to be advanced against the United States, & from present appearances, they will govern the Courts of Admiralty. The effects which these principles will have, I need not state to you—if all this subject cannot be taken up by Commissioners & compromised equitably, the discussion of the Claims, will work infinite mischief. I wish therefore to see some way in which Mr. Bayards agency at the British Courts might be arrested.
Mr. Fauchet made no overtures relative to a Treaty of any kind. Mr. Adet says he is authorised to digest a new Treaty of Commerce & a new Consular Convention but not to conclude. Mr. Randolph agreed to meet him on this ground, but nothing has been done that I know of.10
I know nothing of dispatches;11 the French Minister is reserved; he thinks more than he expresses, & his expressions breath something of disatisfaction. We are I think in no very good way, but must make the best of circumstances. What you say of efficiency is true,12 but there are no materials to be efficient with. Colonel Pickering & myself are perfectly agreed & he is as firm industrious & intelligent as any body could wish—there is however a mass of business, & few of that class of men in the public service who understand details & endeavour to keep things in order. Even our able Clerks cannot be retained—several have actually gone.
Be pleased to present my respects to Mrs. Hamilton & believe me ever yours
Col A. Hamilton
N B. I have found your Ordinnance de la Marine, but have no way to send it.13
ALS, Hamilton Papers, Library of Congress; copy, Connecticut Historical Society, Hartford.
2. On October 3, 1795, Timothy Pickering, Acting Secretary of State, received a “packet” describing the outcome of the case of the Betsey from Samuel Bayard, who was the United States agent representing the claims of United States citizens before the prize courts in England (Pickering to George Washington, October 5, 1795 [LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives]).
John Bassett Moore has summarized the facts in this case as follows: “The claimants in this case were William and George Patterson, citizens of the United States and partners in trade, resident and carrying on business at Baltimore, in the State of Maryland. The Brigantine Betsey, an American vessel and the sole property of George Patterson, sailed on December 19, 1793, from Baltimore to the French island of Guadeloupe, in the West Indies, with a cargo belonging jointly to the two partners and consisting chiefly of provisions. George Patterson was aboard as supercargo. The Betsey arrived at Guadeloupe on January 8, 1794, and soon afterwards the administration of the island took the provisions by force, but with a promise to pay for them. George Patterson then loaded the vessel with a return cargo of produce of the island, but remained at Guadeloupe for the purpose of obtaining payment for the first cargo. The vessel was captured two days out from Guadeloupe by a British privateer, and was taken to Bermuda and condemned” (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, 1920–1936). description ends , IV, 179). In the summer of 1795 the High Court of Admiralty in London upheld the condemnation of the Betsey by the Vice Admiralty Court in Bermuda (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, 1920–1936). description ends , IV, 182).
For an extensive discussion of the issues which were raised by this case and which are discussed by Wolcott in the above letter, see H to Washington, April 25, 1794; Pickering to William Lewis and William Rawle, October 6, 1795; and Pickering to John Jay, October 10, 1795 (LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives).
3. William Furlong.
4. For the text of Article 7 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 39.
5. The first sentence of Article 7 refers to “irregular or illegal Captures or Condemnations of … vessels.”
6. For the text of Article 6, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 13.
8. This is a reference to the British Rule of 1756, or the Rule of the War of 1756, which was applied for the first time in the Seven Years’ War by British prize courts.
9. For example, see the British order in council of June 8, 1793 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington 1832–1861). description ends , Foreign Relations, I, 240). A slightly different version of this document is printed in 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, 1920–1936). description ends , IV, 14–15. See “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 66.
10. The statements in this paragraph consist of answers to questions which H asked Wolcott in his letter of October 3, 1795. On October 6, 1795, Pickering wrote to Wolcott: “Mr. [George] Taylor informs me that Mr. [Jean Antoine Joseph] Fauchet never, to his knowledge, made even any overtures relative to a treaty of any kind. I have cast my eye over those of Mr. [Pierre Auguste] Adet, by which it appears that he is authorized to ‘digest’ with the American Government a new treaty of commerce & a new consular convention; but not to conclude any thing. Mr. Randolph agreed to meet him on this ground. If the articles digested should meet the approbation of the respective governments, they might give full powers to constitute of those articles the proposed new treaties” (ALS, Connecticut Historical Society, Hartford). See H to Wolcott, October 3, 1795, note 4.
13. See Wolcott to H, July 10, 1795. This is presumably a reference to the famous “Ordonnance de la Marine” issued by Louis XIV in August, 1681. According to Andreas Lange, an edition of the “Ordonnance” was published in Paris in 1687 (Brevis Introductio in Notitiam Legum Nauticarum et Scriptorum Juris Reique Maritimae [Lübeck, 1713], 73–74). It is also included in Isambert, Recueil Général des Anciennes Lois Françaises description begins Recueil Général des Anciennes Lois Françaises, Depuis L’An 420 Jusqu’à La Révolution de 1789, par MM. Jourdan, Docteur en droit, Avocat à la Cour royale de Paris; Isambert, Avocat aux Cornells du Rot et à la Cour de Cassation; Decrusy, ancien Avocat à la Cour royale de Paris (Paris, 1821–1833). description ends , XIX, 282–366.