To Oliver Wolcott, Junior1
New York October 13. 1795.
I have received your letter of the 6 instant.
I am of opinion that the Commissioners to be appointed under the 7th article2 are competent to grant relief, in all cases of captures or condemnations of our property, during the present war and antecedent to the Treaty, which were contrary to the laws of Nations and in which there is adequate evidence (of which they are to judge bona fide) that compensation could not at the time of the Treaty for whatever reason be actually obtained. I think their power competent to relief after a decision in the last resort, that is by the Lords Commissioners of Appeals, and, if the proper steps have been taken to ascertain that justice cannot be had in the ordinary course of justice, before and without such decision.
This opinion is founded upon the following reasons—1 The subject of complaint to be redressed is irregular or illegal captures or condemnations. The word “condemnations” is general—it is not restricted to condemnations in the inferior courts or in the final court of appeals. It may then apply to either—condemnations in the last resort may have been had prior to the Treaty. There being no restriction they like those in inferior tribunals were equally within the terms of complaint. But could they be illegal? Yes in controversies between Nations, respecting the application of the rules of the laws of Nations, decisions of the highest court of one of the parties, if contrary to those rules are illegal—in other words they are contrary to that law which is the standard of legality and illegality between Nations and if manifestly so are a cause of War. Moreover, this rule of legality or illegality is recognised by the article itself, in that part which authorises the Commissioners to decide according to the merits of the several cases, to justice equity and the laws of Nations. 2 The article contemplates that “various circumstances” may obstruct compensation in the ordinary course of Justice. These terms would not be fully satisfied by tying the article down, as has been attempted, to cases of insolvency and absconding. 3 The article expressly declares that when compensation cannot, “for whatever reason” be had in the ordinary course of justice it shall be made by the British Government upon the award of the commissions. It is inadmissible to narrow down these very comprehensive terms to the two cases of insolvency or absconding—they are commensurate with every cause of irregularity or illegality pronounced such by the laws of Nations. The exceptions of manifest delay or negligence or wilful omission confirm the extensive interpretation. 4th The Commissioners are not restricted in the description of the cases they are to take up and they are to decide them according to their merits to justice equity and the laws of Nations. These terms are as latitudinary as they could be made. They seem framed on purpose to overrule any technical difficulties with regard to local tribunals or positive rules of decision in those tribunals. 5 The nature of the circumstances which led to the article and which involved a controversy between two nations respecting the rules of the laws of Nations as well as the application of those rules—The natural presumption is that it was meant to refer this controversy, in all its latitude to the extraordinary tribunal created—to transfer the right of judgment of each nation, which being exercised differently might have ended in war, to that tribunal. Any thing less than this would be inadequate to the origin of the business, to the solemnity of the provision, or to the views which from the facts must be conceived to have governed the parties.
All this appears so clear to me that I confess I am confounded at an opinion which I have seen of Messieurs Louis and Rawle.3 They seem to pare away the object of the articles to the two cases mentioned above, founding their opinion upon the maxim that the Courts of the belligerent power are the competent tribunals to decide similar questions between that power & a neutral Nation.
This maxim is true, but how can be deemed to apply to the instance of a controversy between two nations about the interpretation of the laws of Nations—and about decisions of Courts founded upon an interpretation concerning which they disagreed—and this when an extraordinary Tribunal has been constituted by the joint acts of the two parties to decide their differences plainly as a substitute for a controversy by arms. Is not the constitution of such a tribunal by the two parties a manifest abandonment of the pretension of one to administer justice definitively through its tribunals? How can it be presumed after such a proceeding that the neutral power meant to be concluded by the decisions of those tribunals? Is not the reverse the obvious presumption? Why else was it not left to the British Courts of Admiralty to liquidate the damages in the admitted cases of insolvency & absconding to be paid by the Government. These circumstances could call for a substitute only in the person to pay—not in the person or tribunal which was to liquidate. There was no need on the principle set up for an extraordinary Tribunal to liquidate & award damages.
I confess that the opinion referred to appears to me destitute of colour—contrary to the antecedent course of the transaction contrary to the positive expressions of the article and to what can reasonably be presumed to be the intention of the parties. It fritters away to nothing a very solemn & important act between two contending Nations.
The exception of the cases in which justice might be obtained in the ordinary course appears to me to decide nothing. It might be unobtainable in that court, as well from the obstructions of positive regulations of the belligerent parties controuling the courts—& from false principles adopted by the Courts as from the inability or default of the Captors. The Commissioners, who are the Court of the two nations are to pronounce whether justice is unobtainable in the ordinary court for any of these reasons. As the Tribunal of both parties they are necessarily superior to the Tribunals of either. And they are the Judges in their own way & upon their own grounds of the question whether & when justice can or cannot be obtained in the ordinary course.
But they ought to exercise their discretion reasonably not to abuse otherwise they may release the party injured from the obligation to perform.
Hence though it is not necessary that every individual case of capture should be prosecuted to a decision in the last resort—it appears to me proper that by such prosecution of some one case of the several classes of cases, it may be ascertained by a final decision on the principle of each class, that redress cannot be obtained: Else the Commissioners may object that there has been a neglect to procure for them satisfactory evidence that justice could not be had in the ordinary course.
I would advise then that our Agent4 be instructed to lay all the cases, with the evidence, before our Counsel;5 and to desire them to make a selection of one of each class, in which a defence can be made with probability of success, on some difference of principle—to have these cases prosecuted to an ultimate decision and to leave all the rest pending if possible undecided in a course of Appeal. This will give reasonable evidence to the Commissioners strengthened, in the view of those appointed by the other party, by the character of our Counsel, who I learn are every way men of respectability.
The other points in your letter I shall pursue hereafter.
Yrs. with esteem & regard
Oliver Wolcott Esq
ALS, Connecticut Historical Society, Hartford; copy, Hamilton Papers, Library of Congress.
2. 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.
3. On October 6, 1795, Timothy Pickering, Acting Secretary of State, had written to William Lewis, a distinguished lawyer in Philadelphia, and William Rawle, United States attorney for the District of Pennsylvania, asking them for an opinion on the same questions which Wolcott had submitted to H on October 6, 1795 (LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives; copy, Massachusetts Historical Society, Boston). On October 10, 1795, Pickering wrote to John Jay, enclosing copies of his letter to Lewis and Rawle and of their replies. These copies have not been found, but Pickering wrote: “Their answer … does not, I confess, correspond with my ideas of the meaning of the seventh article of the treaty which you negociated with Lord Grenville. I always conceived that the principal ground of our complaints of spoliations was the capture of our vessels under the orders of the Privy Council of Great Britain, especially the order of the sixth of November 1793, as being repugnant to the laws of nations: but one opinion expressed by those Gentlemen amounts to an abandonment of this ground, and an admission of consequences beyond even the present claims of the British Admiralty Courts: it would put an end to our commerce with the French West India Islands, by subjecting all our vessels, in the present course of that trade, to legal captures, by the British on one hand and by the French on the other” (LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives; LC, Massachusetts Historical Society, Boston; LC, Columbia University Libraries). See also H to Rufus King, June 15, 1793.
5. Sir William Scott and Dr. John Nicholl. See 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, 30–34.
6. Richard Harison.
7. Aaron Burr.
8. Brockholst Livingston.
9. This may be a reference to Le Guen v Gouverneur and Kemble. At some date before November, 1795, Louis Le Guen had retained H, Richard Harison, and Aaron Burr. Martin S. Wilkins, Brockholst Livingston, and John Cozine were the attorneys for Isaac Gouverneur and Peter Kemble. For this case and related cases involving Le Guen, see Goebel, Law Practice description begins Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964–). description ends , II, 48–164.