To Oliver Wolcott, Junior
[New York, November 3, 1796]
I have more carefully examined our Treaty with G Britain & I return to the opinion given you from Albany.1 My hesitation yesterday2 arose from the terms of the 24th article3 which were confined to privateers, a word that has an appropriate sense, meaning ships of private persons commissioned to cruise. But the following article4 contains the equivalent one to that with France,5 upon which we refused all bringing in and sale of prizes by her enemies. The words are “no refuge &c.”; the major including the minor. And though France by our Treaty with her may bring in prizes; yet the Treaty gives her no right to sell.6 The clause in question in the English Treaty cannot take away the right she before had to bring in her prizes, but as she has not a positive right to sell, it will oblige her to depart with them—in other words, it will preclude her from whatever she has not a positive right to.7 This also is Mr. Jay’s opinion8 & it is certainly agreeable to the whole spirit of the Treaty.
ALS, Connecticut Historical Society, Hartford; copy, Hamilton Papers, Library of Congress.
5. H is referring to Article 22 (originally 24) of the Treaty of Amity and Commerce between the United States and France, February 6, 1778, which reads: “It shall not be lawful for any foreign Privateers, not belonging to Subjects of the most Christian King nor Citizens of the said United States, who have Commissions from any other Prince or State in enmity with either Nation to fit their Ships in the Ports of either the one or the other of the aforesaid Parties, to sell what they have taken or in any other manner whatsoever to exchange their Ships, Merchandizes or any other lading; neither shall they be allowed even to purchase victuals except such as shall be necessary for their going to the next Port of that Prince or State from which they have Commissions” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 19–20).
6. This is a reference to Article 17 (originally 19) of the Franco-American Treaty of Amity and Commerce, February 6, 1778, which reads: “It shall be lawful for the Ships of War of either Party & Privateers freely to carry whithersoever they please the Ships and Goods taken from their Enemies, without being obliged to pay any Duty to the Officers of the Admiralty or any other Judges; nor shall such Prizes be arrested or seized, when they come to and enter the Ports of either Party; nor shall the Searchers or other Officers of those Places search the same or make examination concerning the Lawfulness of such Prizes, but they may hoist Sail at any time and depart and carry their Prizes to the Places express’d in their Commissions, which the Commanders of such Ships of War shall be obliged to shew: On the contrary no Shelter or Refuge shall be given in their Ports to such as shall have made Prize of the Subjects, People or Property of either of the Parties; but if such shall come in, being forced by Stress of Weather or the Danger of the Sea, all proper means shall be vigorously used that they go out and retire from thence as soon as possible” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 16–17).
7. But see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, in which H pointed out that the right to sell French prizes in United States ports had previously been granted, not because the treaty of 1778 had expressly permitted it, but because there was no law against it.
8. In the margin opposite these words, H wrote: “Send the enclosed immediately.”