From Robert Liston1
Philadelphia 30th September 1796
Mr Bond has communicated to me a letter written by you to him on the 15th of this month, on the Subject of the Ship Eliza, captured by Captain Cochrane, and afterwards retaken by the Master and carried into New York.
The letter signed by Captain Cochrane and enclosing a declaration of David Wilson and Thomas Marshall, which you received under a Blank Cover, was in fact intended for you, though not addressed, and was forwarded by me at his desire.
Mr. Cochrane had previously made an application to me on that business, and transmitted to me copies of a letter of Captain Barney to Mr. George G. Hussey, dated at Ostend the 8th of April, and of a receipt of the said Barney for the value of the Ship Eliza, said to have been purchased in the port of Flushing; requesting that I would take such steps as I might think proper in a case which appeared to him to be of national importance.2
I accordingly presented a memorial to the American Secretary of State (on the 12th inst.)3 claiming the restitution of the Eliza to the British Captors, on the ground that the original capture by an armament fitted out by an American citizen must have been illegal and that no regular trial, and consequently no legitimate sale, could take place in a port of Holland, into which it appeared that the vessel had been carried. I urged that these circumstances at least created a suspicion of the fair neutrality of the property, and of course justified the detention of the Ship, with a view to a discussion of the question in a Competent Court of Justice; that the violent recapture by the Captain became therefore a breach of the Law of Nations, which called for redress.
I had judged however from the two abovementioned documents alone. You, Sir, appear to have had other information; since you state as a fact that the Eliza was condemned by the Sentence of a Court of Admiralty in Dunkirk. If this is the case, the question is essentially altered; and though I cannot admit of the regularity or propriety of the conduct of Captain Hussey, yet I agree with you in thinking it inadvisable to endeavour to obtain redress in a Court of Law in New York: at all events, as a friend of Captain Cochrane’s, I frankly give it is as my opinion that no step should be taken in the matter till you are expressly authorized by some person acting on his behalf.
I am, with perfect truth and regard, Sir, Your most obedient humble servant,
Alexander Hamilton Esqe
LS, Hamilton Papers, Library of Congress.
2. Copies of the documents mentioned in this paragraph may be found in RG 59, Notes from the British Legation in the United States to the Department of State, 1791–1906, Vol. 2, January 10, 1796–November 19, 1803, National Archives.
3. AL, RG 59, Notes from the British Legation in the United States to the Department of State, 1791–1906, Vol. 2, January 10, 1796–November 19, 1803, National Archives.
Timothy Pickering referred Liston’s memorial of September 12 to William Rawle, United States attorney for the District of Pennsylvania. On September 24, 1796, Pickering wrote to Rawle: “I request you to read the enclosed papers relative to the capture & recapture of the ship Eliza, George G. Hussey, master, and to favor me as early as you can with your opinion on the question submitted by the British Minister, Mr. Liston, ‘Whether a strict regard to justice, and a faithful observance of the law of nations, does not require that she should be re-delivered to the British captors?’ And if the government of the United States is under any obligation to interpose, whether it must not be by the judiciary not the executive department? …” (LC, Massachusetts Historical Society, Boston).
Rawle replied to Pickering on September 28, 1796, that “… the point of view in which the question strikes me forbids the application of the Executive to the Judicial authority and leaves it to the British captor in his own person and founded on his own right to represent his case to the District court of New York and to procure that redress which if he is entitled to it will be imparted as freely and as fully on his application as on that of the Executive authority of the union” (LS, RG 59, Miscellaneous Letters, 1790–1799, National Archives). On October 1, 1796, Rawle sent to Pickering the opinion of William Lewis “on the subject of the Elizabeth on my requesting him … to favor me with his sentiments on the question stated abstractedly.
“As he gives a more enlarged construction to a clause in the treaty than I can bring myself to do it is proper to lay it before you. But admitting it to be according to his construction I cannot discover the right of Executive interference.” (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives.) See also Lewis to Rawle, September 29, 1796 (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives).
After receiving the two opinions, Pickering wrote to Liston on October 5, 1796: “That there exists no constitutional power in the Executive branch of the Government, to effectuate a delivery of the ship, without intervention of the judiciary; and that if resort be had to the judiciary, the British captors must themselves represent their case to the District court of New York, from which they may expect a just decision on their claim” (LC, Massachusetts Historical Society, Boston).