I. Alexander Hamilton’s Questions for the Supreme Court
[ca. 18 July 1793]
I Do the Treaties1 between the United States and France2 give to France or her Citizens3 a right, when at War with a Power with whom the UStates are at peace, to fit out originally, in and from the4 Ports of the UStates, vessels armed for War,5 with or without commission?º
|III||Do they give to France or her Citizens,7 in the case supposed, a right to refit or arm anew vessels, which before their coming within any port of the UStates were armed for war—with or without commission?º|
|IV||If they give such a right; does it extend to all manner of armed vessels or to particular kinds only? If the latter, to what kinds does it extend? Does it include an augmentation of force, or does it only extend to replacing the vessel in statu quo?º|
|V||Does8 the XXII Article of the Treaty of Commerce in the case supposed,9 extend to Vessels armed for War, on account of the Government of a Power at War with [France],10 or to Merchant-armed vessels belonging to the subjects or citizens of that Power (viz.) of the description of those which by the English are called Letter of Marque-Ships by the French “Batiments armé en marchandize et en guerre”?º|
VI Do the Treaties aforesaid prohibit the UStates from permitting in the case supposed, the armed vessels belonging to a Power at War with France—or to the citizens or subjects of such Power to come within the ports of the UStates there to remain as long as they may think fit except in the case of their coming in with Prizes made of the subjects or property of France?º
VII Do they prohibit the UStates from permitting in the case supposed, vessels armed on account of the Government of a Power at War with France or vessels armed for merchandize and war, with or without Commission on account of the subjects or citizens of such Power or any vessels other than those commonly called Privateers11 to sell freely whatsoever they may bring into the Ports of the UStates and freely to purchase in and carry from the ports of the U States goods merchandize and commodities; except as excepted in the last question?º
VIII Do they oblige the United States to permit France in the case supposed to sell in their ports the prizes which she or her citizens may have made of12 any Power at War with her, the Citizens or subjects of such Power; or exempt from the payment of the usual duties, on ships and merchandize, the prizes so made, in the case of their being to be sold within the Ports of the UStates?º
IX Do those Treaties particularly the Consular13 Convention14 authorize France as of right to erect Courts within the Jurisdiction of the UStates for the trial and condemnation of Prizes made by armed vessels in her service?º
X Do the laws and usages of Nations authorize her as of right to erect such Courts for such purpose?º
XI Do the laws of neutrality considered relatively to the Treaties of the UStates with Foreign Powers or Independently of those Treaties permit the UStates, in the case supposed, to allow to France or her citizens,15 the privilege of fitting out originally in and from the Ports of the UStates16 vessels armed and Commissioned for War17 either on account of the Government or of private persons or both? XII Do those laws permit the UStates to extend the like Privilege to a Power at War with France?º
XII Do the laws of Neutrality considered as aforesaid permit the UStates in the case supposed to allow to France or her Citizens the privilege of refitting or arming anew vessels which before their coming within the UStates were armed and commissioned for war. May such privilege include an augmentation of the force of such vessels?18º
XIII Do those laws permit the UStates to extend the like privilege to a Power at War with France?
XIV Do those laws, in the case supposed, permit Merchant vessels of either of the powers at War to arm in the Ports of the UStates, without being commissioned? May this privilege be rightfully19 refused?º
XV Does it make any difference in point of principle, whether a vessel be armed for War or the force of an armed vessel be augmented in the ports of the UStates, with means procured in the UStates or with means brought into them,º by the party20 who shall so arm or augment the force of such Vessel? If the first be unlawful is the last lawful?21
XVI Do the laws of neutrality considered as aforesaid authorise the U States to permit to France her subjects or Citizens the sale within their Ports22 of Prizes made of the subjects or property of a power at War with France before they have been carried into some Port23 of France and there condemned,24 refusing the like privilege to her enemy?º
XVII Do those Laws authorise the UStates to permit to France the erection of Courts within their territory and jurisdiction for the trial and condemnation of Prizes; refusing that privilege to a Power at War with France?º
XVIII If any armed vessel of a foreign25 power at War with another, with whom the UStates are at Peace, shall make prize of the subjects or property of its enemy within the territory or jurisdiction of the UStates—have not the UStates a right to cause restitution of such prize? Are they bound or not by the principles of neutrality so to do, if such prize shall be within their power?º
XIX To what distance, by the laws and26 usages of Nations, may the UStates exercise the right of prohibiting the hostilities of foreign Powers at War with each other27—within rivers, bays and arms of the sea,28 and upon the sea along the Coasts of the UStates?
XX Have Vessels armed for War under commission from a foreign Power29 a right, without the consent of the UStates, to engage within their jurisdiction seamen or soldiers for the service of30 such vessels being31 Citizens of that Power or of another foreign Power32—or Citizens of the UStates?º
XXI Is it lawful for the Citizens of such Power or citizens of the States so to engage being within the jurisdiction of the UStates?
Dft (DLC: Washington Papers); undated and heavily emended text entirely in Hamilton’s hand prepared for Cabinet meeting of 18 July 1793, only the most significant revisions being recorded below; two questions added in the margin and remainder renumbered (see note 21 below), with numbering error at question XII resulting in total of 22 questions; marginal notations of assent and a few minor revisions added at Cabinet meeting; bracketed passages torn away supplied from Document IV below. Enclosed in Document V below.
The Treaties between The United States and France were the treaties of alliance and commerce of 1778 and the consular convention of 1788 (Miller, Treaties description begins Hunter Miller, ed., Treaties and other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , ii, 3–47, 228–44). The xxii Article of the Treaty of Commerce provided that privateers of nations at war with France or the United States could not be fitted out in the ports of the other or sell their prizes there, and could purchase only enough supplies to get to the nearest port of their own country (same, 19–20).
1. Hamilton here canceled “of alliance and of Amity and Commerce.”
2. Hamilton here canceled “both or either of them.”
3. Preceding three words interlined, with last word substituted for “subjects or.”
4. Preceding eight words interlined in place of “to equip armed vessels in the.”
5. Preceding four words interlined in place of “armed vessels, either on account of the Government or of private persons or both […].”
6. Word interlined in place of “<they> those Treaties or either of them.” Hamilton made similar substitutions in questions iii-iv and vi-viii; see also notes 8 and 13 below.
7. Hamilton first wrote “France, her Citizens or subjects,” before altering the phrase to read as above. He made similar substitutions in questions VIII, XI, and in the second question XII.
8. Hamilton initially began this question with “Do the Treaties or either of them prohibit.”
9. Preceding four words interlined. Hamilton made similar insertions in questions VI and XI.
10. Hamilton here canceled “one of the contracting parties, the other being at Peace with such Power.”
11. Preceding nine words added in the margin.
12. Hamilton here canceled “her enemies.”
13. Preceding five words interlined in place of “those Treaties or either of them <either> or the Laws.”
14. Hamilton here canceled “made with France or the laws and.”
15. Preceding three words interlined in place of “the privilege in the case supposed.”
16. Preceding eight words interlined.
17. Hamilton here canceled “or armed and not commissioned for war &ca.”
18. Hamilton here canceled “What is to be un.”
19. Word interlined.
20. Hamilton first wrote “with the means of the UStates or with the means of the […] party” before altering the phrase to read as above.
21. Hamilton added this and the preceding question in the left margin, positioning question XIV below question XV, and then renumbered the remaining questions. He subsequently recorded Cabinet assent to the right of them.
22. Preceding three words interlined.
23. Word interlined in place of “Court.”
24. Preceding thirteen words interlined.
25. Preceding five words interlined.
26. Hamilton here canceled “jurisdiction.”
27. Preceding fifteen words interlined in place of “claim jurisdiction.”
28. Hamilton originally wrote “rivers, within bays and such arms of the sea, as make flow between” before altering the phrase to read as above.
29. Preceding six words interlined in place of “and commissioned.”
30. Preceding ten words interlined in place of “seamen for manning.”
31. Word interlined in place of “within the U States whether <the?>.”
32. Hamilton first wrote “Citizens of the Power to which they belong” before altering the phrase to read as above.