Title: From Alexander Hamilton to Defence No. XX, [23 and 24 October 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, October 23 and 24, 1795]

The point next to be examined is the right of confiscation or sequestration, as depending on the opinions of Jurists and on usage.
To understand how far these ought to weigh, it is requisite to consider what are the elements, or ingredients, which compose what is called the laws of Nations.
The constituent parts of this system are, 1 The necessary or internal law, which is the law of Nature applied to Nations; or that system of rules for regulating the conduct of Nation to Nation which reason deduces from the principles of natural right as relative to political societies or States. 2 The voluntary law, which is a system of rules resulting from the equality and independence of nations, and which, in the administration of their affairs and the pursuit of their pretensions, proceeding on the principle of their having no common judge upon earth, attributes equal validity, as to external effects, to the measures or conduct of one as of another without regard to the intrinsic justice of those measures or that conduct. Thus captures in war are as valid when made by the party in the wrong as by the party in the right. 3 The Pactitious or Conventional law, or that law which results from a Treaty between two or more nations. This is evidently a particular not a general law; since a treaty or pact can only bind the contracting parties: Yet when we find a provision universally pervading the Treaties between nations for a length of time, as a kind of formula, it is high evidence of the general law of Nations. 4 The customary law, which consists of those rules of conduct that in practice are respected and observed among Nations. Its authority depends on usage implying a tacit consent and agreement. This also is a particular not a general law, obligatory only on those nations whose acquiescence has appeared or from circumstances may fairly be presumed. Thus the customary law of Europe may not be that of a different quarter of the Globe. The three last branches are sometimes aggregately denominated the positive law of Nations.
The two first are discoverable by reason; the two last depend on proof as matters of fact. Hence the opinions of Jurists though weighing, as the sentiments of judicious or learned men who have made the subject a particular study—are not conclusive as authorities. In regard to the necessary and voluntary law, especially, they may be freely disregarded, unless they are found to be adopted and sanctioned by the practice of Nations: For where Reason is the guide, it cannot properly be renounced for mere Opinion, however respectable. As Witnesses of the customary law, their testimony, the result of careful researches, is more particularly intitled to attention.
If then it has been satisfactorily proved, as the dictate of sound reason, that private debts and private property in public funds, are not justly liable to confiscation or sequestration, an opposite opinion of one or more jurists, could not controul the conclusion in point of principle. So far as it may attest a practice of nations which may have introduced a positive law on the subject, the consideration may be different. It will then remain to examine upon their own and other testimony whether that practice be so general as to be capable of varying a rule of reason by the force of usage, and whether it still continues to bear the same character, or has been weakened or done away by more recent or more modern usage.
I will not avail myself of a position advanced by Writers, that usage if derogating from the principles of natural Justice is null, further than to draw this inference, that a rule of right deducible from them cannot be deemed to be altered by usage, partially contradicted, and fluctuating.
With these guides, our further inquiries will serve to confirm us in the negative of the pretended right to confiscate or sequester in the cases supposed.
The Notion of this right is evidently derived from the Roman Law. It is seen there in this peculiar form—“Those things of an enemy which are among us belong not to the State but to the first occupant”
   Digest: L XLI Tit I Et qua res hostiles apud nos &c.
 which seems to mean that the things of an enemy at the commencement of a War found in our country may be seized by any citizen and will belong to him who first gets possession. It is known that the maxims of the Roman law, are extensively incorporated into the different codes of Europe; and particularly that the Writers on the law of Nations have borrowed liberally from them.
This source of the Notion does not stamp it with much authority. The history of Rome proves that War and Conquest were the great business of that People & that for the most part Commerce was little cultivated. Hence it was natural that the rights of War should be carried to an extreme, unmitigated by the softening and humanizing influence of Commerce. Indeed the world was yet too young—moral science too much in its cradle—to render the Roman jurisprudence a proper model for implicit imitation. Accordingly in this very particular of the rights of War, it seems to have been equally a rule of the Roman law, “that those who go into a foreign Country in time of peace, if war is suddenly kindled, are made the slaves of those among whom, now become enemies, by ill fortune, they are apprehended.”

   In pace qui pervenerunt ad alteros, si bellum subito exarcisset, eorum servi efficiuntur, apud quos iam hostes suo facto deprehenduntur. Digest L XLIX T XV 1 xii

 This right of capturing the property and of making slaves of the persons of enemies is referred, as we learn from Cicero, to the right of killing them, which was regarded as absolute and unqualified extending even to Women and Children. Thus it would seem that on the principle of the Roman Law, we might rightfully kill a foreigner who had come into our Country during peace and was there at the breaking out of a War with his Country. Can there be a position more horrible, more detestable?
The improvement of moral science in modern times restrains the right of killing an enemy to the time of battle or resistance, except by way of punishment for some enormous breach of the laws of nations, or for self preservation in a case of immediate and urgent danger, and rejects altogether the right of imposing slavery on captives.
Why should there have been a hesitation to reject other odious consequences of so exceptionable a principle? What respect is due to maxims which have so inhuman a foundation?
And yet a deference for those maxims has misled writers who have professedly undertaken to teach the principles of National Ethics; and the spirit of Rapine has continued to a late period to consecrate the relicts of ancient barbarism with too many precedents of imitation. Else it would not now be a question with any, whether the person or property of a foreigner, being in our country with permission of the laws of peace, could be liable to molestation or injury by the laws of War, merely on account of the War.
Turning from the ancients to the moderns we find that the learned Grotius quotes and adopts as the basis of his opinions the rules of the Roman law; though he in several particulars qualifies them by the humane innovations of later times.

On the very question of the right to confiscate or sequester private debts, his opinion as far as it appears seems to be at variance with his premises steering a kind of middle course. His expressions (L III C: XX § XVI) are these “Those debts which are due to private persons at the beginning of the War are not to be accounted forgiven, (that is when peace is made) for these are not acquired by the right of War, but only forbidden to be demanded in time of War, therefore the impediment being removed, that is the War ended, they retain their full force.” His idea appears from this passage to be that the right of war is limited to the arresting of the payment of private debts during its continuance and not to the confiscation or annihilation of the debt. Nor is it clear whether he means that this arrestation is to be produced by a special act of prohibition, or by the operation of some rule of law which denies to an alien enemy a right of action. This feeble and heterogeneous opinion may be conceived to have proceeded from a conflict between a respect for ancient maxims and the impression of more enlightened views inculcated by the principles of Commerce and civilization.
Bynkershoeck is more consistent. Adopting with Grotius the rule of the Roman Law in its full rigor, he is not frightened at the consequences, but follows them throughout. Hence he bestows a chapter upon the defence of the proposition quoted in a former number (to wit) that
   Quæstionum Juris Public Liber I Caput VII. “Cum ea sit belli conditio ut hostes sint omni jure spoliati proscriptique rationis est quascunque res hostium apud hostes inventas, dominum matare et Fisco cedere.”
 “Since it is the condition of War that enemies may with full right be deposited and proscribed, it is reasonable that whatsoever things of an enemy are found among his enemies should change their Owner and go to the Treasury” and in several places he expressly applies the rule to things in action, or debts & credits as well as to things in possession.
In confirmation of his doctrine he adduces a variety of examples which embrace a period of something more than a century beginning in the year 1556 and ending in the year 1667 and which comprehend as actors on the principle he espouses, France Spain The States General Denmark the Bishops of Cologne and Munster. But he acknowleges that the right has been questioned, and notes particularly that when the King of France and the Bishops of Munster and Cologne in the year 1673 confiscated the debts which their subjects owed to the Confederated Belgians, the States General by an Edict of the 6th of July of that year censured the proceeding and decreed that those debts could not be paid but to the true Creditors and that the exaction of them whether by force or with consent was not to be esteemed valid.
If, from the great pains which appear to have been taken by this learned writer to collect examples in proof of his doctrine we are to conclude that the collection is tolerably complete—we are warranted in drawing this inference, that he has not cured any defect which reason may discern in his principle, by any thing like the evidence of such a general uniform and continued usage as is requisite to introduce a rule of the positive law of Nations in derogation from the natural.
A minority only of the powers of Europe are shewn to have been implicated in the practice, and among the majority not included are several of the most considerable and respectable. One of these, Great Britain, is represented as having acquiesced in it in the Treaties of peace, between her and some of the powers who went into the practice to her detriment by relinquishing the claim of restitution. But War must at length end in peace, and the sacrifices a nation makes to the latter is a slight argument of her consent to the principle of the injuries which she may have sustained. I have not been able to trace a single instance in which Great Britain has herself set the example of such a practice; nor could she do it, as has elsewhere appeared without contravening an article of Magna Charta, unless by way of reprisal for the same thing done towards her. The suggestion of an instance in the present war with France will be hereafter examined. In such a question the practice of a Nation which has for ages figured so preeminently in the Commercial Wor[l]d is intitled to particular notice.
It is not unworthy of remark that the Common law of England from its earliest dawnings contradicted the rule of the Roman Law. It exempted from seizure, by a subject of England, the property of a foreigner brought there before a war, but gave to the first seizer or occupant the property which came there after the breaking out of war. The noble principles of the Common law cannot cease to engage our respect while we have before our eyes so many monuments of the excellence, in our own jurisprudence.
It also merits to be dwelt upon, that the United Netherlands for some time the first and long only the second in Commercial consequence formally disputed the right and condemned the practice of confiscating private debts, though themselves in some instances guilty of it.
And it is likewise a material circumstance that Bynkershoeck who seems to have written in the year 1737 does not adduce any precedent later than the year 1667 seventy years before his publication.
The subsequent period will it is believed be found upon strict inquiry equally barren of similar precedents. The exceptions are so few,
   note *The case of Prussia & the Silesia loan is the only one I have found.
 that we may fairly assert that there is the negative usage of near a century and a half against the pretended right. This negative usage of a period the most enlightened as well as the most commercial in the annals of the world is of the highest authority. The former usage, as being partial and with numerous exceptions, was insufficient to establish a rule. The contrary usage, or the renunciation of the former usage, as being general, as attended with few or no exceptions, is sufficient even to work a change in the rigour of an ancient rule, if it could be supposed to have been established. Much more is it sufficient to confirm and enforce the lesson of reason, and to dissipate the clouds which error and some scattered instances of violence and rapine may have produced.
Of the theoretical Writers whom I have had an opportunity of consulting, Vatel is the only remaining one, who directly treats the point. His opinion has been said to favour the right to confiscate and sequester. But when carefully analized it will add to the proofs of the levity with which the opposers of the Treaty make assertions.
After stating among other things that “War gives the same right over any sum of money due by a neutral nation to our enemy as it can give over his other goods” he proceeds thus
   Book III Chap V § 77
 “When Alexander by conquest became absolute Master of Thebes he remitted to the Thessalians a hundred talents which they owed to the Thebans. The sovereign has naturally the same right over what his subjects may be indebted to his enemies. Therefore he may confiscate debts of this nature, if the term of payment happen in the time of War, or at least he may prohibit his subjects from paying while the War last[s]. But at present in regard to the advantage and safety of Commerce, all the sovereigns of Europe have departed from this Rigour. And as this Custom has been generally received, he who should act contrary to it would injure the public faith; for strangers trusted his subjects only from a firm persuasion that the General Custom would be observed. The State does not so much as touch the sums which it owes to the enemy. Every where, in case of a War funds creditted to the public are exempt from confiscation and seizure.”
The first proposition of the above passage amounts to this, that “A sovereign naturally that is, according to the law of Nature may confiscate debts, which his subjects owe to his enemies, if the term of payment happen in the time of War, or at least he may prohibit his subjects from paying while the War lasts.”
So far as this goes, it agrees with the principle, which I combat, that there is a natural right to confiscate or to sequester private debts in time of War: So far, Vatel accords with the Roman Law and with Bynkershoek.

But he annexes a whimsical limitation—“if the term of payment happens in the time of war”—and there is a marked uncertainty and hesitation—The sovereign may confiscate “or at least he may prohibit his subjects from paying while the War lasts.” ‘Tis evident that the circumstance of the time of payment can have no influence upon the right. If it reaches to confiscation which takes away the substance of the thing, the mere incident of the happening of payment must be immaterial. If it is confined to the arresting of payment during the war, the reason of the rule the object being to prevent supplies going to the enemy will apply it as well to debts which had become payable before the war as to those which became payable in the War. Whence this inaccuracy in so accurate a thinker? Whence the hesitation about so important a point, as whether the pretended right extends to confiscation or simply to sequestration? They must be accounted for as in another case by the conflict between respect for antient maxims and the impressions of juster views seconded by the more enlightened policy of modern times.
But while Vatel thus contenances in the first part of the passage the opinion that the natural law of Nations authorises the confiscation or sequestration of private debts, in what immediately follows he most explicitly and unequivocally informs us that the rule of that law in this respect has been abrogated by modern usage or custom—in other words that the modern customary law has changed in this particular the antient natural law. Let his own words be consulted.
“At present (says he) in regard to the advantage and safety of Commerce All The Sovereigns of europe have departed from this Rigor. And as this Custom has been generally received he who should act contrary to it would injure the public faith; for strangers trusted his subjects only from the firm persuasion that the General Custom would be observed.”
This testimony is full, that there is a General Custom received & adopted by all the sovereigns of Europe, which obviates the rigor of the antient rule, that is, alters the rule; the non observance of which Custom would violate the public faith of a Nation; as being a breach of an implied Contract by virtue of the Custom upon the strength of which foreigners trust his subjects.

Language cannot describe more clearly a rule of the customary law of Nations, the essence of which we have seen is general usage implying a tacit agreement to conform to the rule. The one alleged is denominated a custom generally received a general custom; all the sovereigns of Europe are stated to be parties to it, and it is represented as obligatory on the public faith, since this would be injured by a departure from it. The consequence is that if the right pretended did exist by the natural law it has given way to the customary law; for tis a contradiction to call that a right which cannot be exercised without breach of faith. The result is that by the present customary law of Nations, within the sphere of its action, there is no right to confiscate or sequester private Debts in time of War. The reason or motive of which law is the advantage and safety of commerce.
As to private property in public funds, the right to meddle with them is still more emphatically negatived—”The State does not so much as touch the sums it owes to the enemy. Every where in case of a War funds creditted to the Public are exempt from confiscation and seizure.” These terms manifestly exclude sequestration as well as confiscation.
In another place the Author gives the reason of this position—Book II Chapt XVIII “In reprisals, the goods of a subject are seized in the same manner as those of the State or the Sovereign. Every thing that belongs to the nation is liable to reprisals as soon as it can be seized provided it be not a deposit trusted to the public faith. This Deposit is found in our hands only in consequence of the confidence which the proprietor has put in our good faith, and it ought to be respected even in case of open War. Thus it is usual to behave in France England and elsewhere with respect to the money which foreigners have placed in the public funds.” The same principle if he had reflected without byas, would have taught him that reprisals could rightfully extend to nothing that had been committed with their permission to the custody and guardianship of our laws during a state of peace; and consequently that no property of our enemy which was in our Country before the breaking out of war is justly liable to them. For is not all such property equally a deposit trusted to the public faith? What foreigner would acquire property in our country or bring and lodge it there but in the confidence that in case of war it would not become an object of reprisals? Why then resort to Custom for a denial of the right to confiscate or sequester private debts? Why not trace it to the natural injustice and perfidy of taking away in war what a foreigner is permitted to own and have among us in peace? Why ever have considered that as a natural right which was contrary to good faith tacitly pledged? Tis evidently the effect of too much deference to ferocious maxims of antiquity, of undue complaisance to some precedents of modern rapacity.
He had avoided the error by weighing maturely the consequences of his own principle in another case. “He who declares war (says he) does not confiscate the immoveable goods possessed in his Country by his enemy’s subjects. In permitting them to purchase and possess those goods he has in this respect admitted them into the number of his subjects.” That is, he has admitted them to a like privilege with his subjects as to the real property they were permitted to acquire & hold. But Why should a less privilege attend the license to purchase possess or have other kinds of property in his Country? The reason, which is the permission of the sovereign, must extend to the protection of one kind of property as well as another, if the permission extends to both.
Vatel advances in this and in the passage quoted immediately before it the true principles which ought to govern the question, though he does not pursue them into their consequences; else he would not have deduced the exemption of private debts from confiscation or sequestration from the customary law of Nations but would have traced it to the natural or necessary law; as founded upon the obligations of good faith; upon the tacit promise of security connected with the permission to acquire property within or bring property into our Country; upon the protection which every government owes to a property of which it legalizes the acquisition or the deposit within its jursidiction—and in the case of immoveable goods, or real estate, of which he admits a right to sequester the income to prevent its being remitted to the enemy, he would have perceived the necessity of leaving this effect to be produced by the obstructions intrinsically incident to a State of War; since there is no reason why the Income should be less privileged than the substance of the thing.
It appears then that the doctrine of Vatel collectively taken amounts to this, that there is a natural right of War in certain cases to confiscate or sequester enemy’s property found within our Country; but that on motives relative to Commerce and Public Credit, the Customary Law of Europe has restrained that right as to private debts and private property in public funds. His opinion therefore favours the principle of the article of the Treaty under examination, as consonant with the present European Law of Nations. And it is an opinion of greater weight than any that can be cited; as well on account of the capacity diligence information and the precision of ideas which characterise the work in which it is contained as on account of the recency of that work.
   note *It appears to have been written about the year 1760.

A question may be raised. Does this customary law of Nations as established in Europe bind the UStates? An affirmative answer to this is warranted by conclusive reasons.
I The U States when a member of the British Empire were in this capacity a party to that law, and not having dissented from it when they became independent they are to be considered as having continued a party to it. II The common law of England which was & is in force in each of these states adopts the law of Nations, the positive equally with the natural, as a part of itself. III Ever since we have been an Independent nation we have appealed to and acted upon the modern law of Nations as understood in Europe. Various resolutions of Congress during our revolution—the correspondencies of Executive officers—the decisions of our Courts of Admiralty, all recognised this standard. IV Executive and legislative Acts and the proceedings of our Courts under the present government speak a similar language. The President’s Proclamation of Neutrality refers expressly to the modern law of Nations, which must necessarily be understood of that prevailing in Europe and acceded to by this Country. And the general voice of our Nation, together with the very arguments used against the Treaty accord in the same point. ’Tis indubitable that the customary law of European Nations is as a part of the common law and by adoption that of the U States.
But let it not be forgotten, that I derive the vindication of the article from a higher source; from the natural or necessary law of nations, from the eternal principles of morality & good faith.
There is one more authority which I shall cite in reference to a part of the question—property in the public funds. It is a Report to the British King in the year 1753, from Sir George Lee Judge of the Prerogative Court Doctor Paul Advocate General in the Courts of Civil Law Sir Dudley Ryder and Mr. Murray Attorney & Solicitor General
   Sir George Lee was afterwards the very celebrated Chief Justice & Mr. Murray was the late Lord Mansfield.
 on the subject of the Silesia loan sequestered by the King of Prussia by way of reprisal for the capture and condemnation of some Prussian Vessels. This Report merits all the respect which can be derived from consummate knowlege and ability in the Reporters, but it would lose much of its weight from the want of impartiality which might fairly be imputed to the Officers of one of the Governments interested in the Contest—had it not since received the eulogies and concurrence of impartial and celebrated foreign Writers. Among these, Vatel calls it an excellent piece on the law of Nations.
The following is an extract—“The King of Prussia has pleged his Royal word to pay the Silesia Debt to private men. It is negotiable and many parts of it have been assigned to the subjects of other powers. It will not be easy to find an instance, where a Prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a Prince upon an engagement of honor, because a prince cannot be compelled like other men in an adversary way by a Court of Justice. So scrupulously did England and France adhere to this public faith, that even during the War, they suffered no inquiry to be made whether any part of the public Debt was due to the subjects of the enemy, though it is certain many English had money in the French Funds and many French had money in our’s.”
The universal obligation of good faith is thus reenforced on a special ground by the point of honor; to confirm the position that money which a sovereign or State owes to private men is not a proper object of Reprisals.

This case of the Silesia debt is the only example within the present Century prior to the existing War, which I have been able to trace, violating the immunity of private debts or private property in public funds. ’Tis a precedent that can have little weight not only from its singularity but from the character of its author. Frederickwas a consummate general, a profound Statesman, but he was far from being a severe moralist. This is not the only instance in which he tarnished his faith, and the friends of his fame must regret that he could not plead on the occasion those mighty and dazzling reasons of State which are the specious apologies for his other aberrations.
It is asserted that the present war of Europe affords examples of the practice which I reprobate and that Great Britain herself has given one.
The present War of Europe is of so extraordinary a complexion and has been conducted in all respects upon such extraordinary principles, that it may truly be regarded as an exception to all general rules as a precedent for nothing. Tis rather a beacon warning mankind to shun the pernicious examples which it sets, than a model inviting to imitation. The human passions on all sides appear to have been wrought up to a pitch of phrenzy, which has set Reason justice and humanity at defiance.
Those who have nevertheless thought fit to appeal to the examples of this very anomalous War have not detailed to us the precise nature or course of the transactions to which they refer, nor do I know that sufficient documents have appeared in this Country to guide us in the inquiry.
The imperfect evidence which has fallen under my observation respects France and Great Britain, and seems to exhibit these facts.
France past a decree sequestering the property of the powers at War with her, and in the same or another decree obliged all those of her Citizens who had monies owing to them in foreign Countries to draw bills upon their Debtors and to furnish those bills to the Government by way of loan or upon certain terms of payment.
The Government of Great Britain in consequence of this proceeding passed two different acts, the objects of which were to prevent the payment of those bills and to secure the sums due for the benefit of the original Creditors. These acts appoint certain Commissioners to whom reports are to be made of all French property in the hands of British subjects, and who are empowered to receive and sell goods and other effects, to collect debts, and to deposit the proceeds in the Bank of London, or in other safekeeping, if preferred & requested by parties interested. The monies deposited are to be invested in the purchase of public stock, together with the interest or dividends arising from time to time, to be eventually accounted for to the proprietors. The Commissioners have likewise a discretion upon demand to deliver over their effects and monies to such of the proprietors as do not reside within the French Dominions.
I shall not enter into a discussion of the propriety of these acts of Great Britain. It is sufficient to observe that they are attended with circumstances which very essentially discriminate them from the thing for which they are quoted. The act of the French Government was in substance, a compulsory assumption of all the property of its citizens in foreign countries. This extraordinary measure presented two options to the Government of these countries—one to consider the transfer as virtually effected and to confiscate the property as being no longer that of the individuals but that of the Government of France—the other to defeat the effect of her plan by tying up the property for the benefit of the Original Creditors in exclusion of the drafts which they were compelled to draw. Great Britain appears to have elected the latter course. If we suppose her sincere in the motive and there is fairness and fidelity in the execution, the issue will be favourable rather than detrimental to the rights of private property.
I have said that there was an option to confiscate. A government may rightfully confiscate the property of an adversary Government. No principle of justice or policy occurs to forbid reprisals upon the public or national property of an enemy. That case is foreign in every view to the principles which protect private property. The exemption stipulated by the 10th article of the Treaty is accordingly restricted to the latter.
It appears that the Government of France convinced by the effect of the experiment that the sequestration of the property of the subjects of her enemies was impolitic thought fit to rescind it. Hence on the 29th of December 1794 the Convention decreed as follows—
“The decrees concerning the sequestration of the property of the subjects of the powers at War with the Republic are annulled. Such sums as have been paid by French Citizens into the Treasury in consequence of those Decrees will be reimbursed.”
In the course of the debates upon this decree, it was declared that the decrees which it was to repeal had prepared the ruin of Commerce and had severed, against the right of Nations, the obligations of Merchants in different states. This is a direct admission that the sequestration was contrary to the law of Nations.
As far as respects France, then, the precedent upon the whole is a strong condemnation of the pretended right to confiscate or sequester. This formal renunciation of the ground which was at first taken is a very emphatical protest against the principle of the measure. It ought to serve us too as an instructive warning against the employment of so mischievous and disgraceful an expedient.
Thus we perceive that opinion and usage, far from supporting the right to confiscate or sequester private property on account of National Wars, when referred to the modern standard, turn against that right and coincide with the principle of the article of the Treaty under examination.
What remains to be offered will further illustrate its propriety and reconcile to it all reflecting men.

Camillus


Title: From Alexander Hamilton to John Stevens, 26 October 1795
From: Hamilton, Alexander
To: Stevens, John

New York, October 26, 1795. “Lady Sterling has consulted me on the subject of the enclosed letter but without more facts than she is possessed of, I cannot judge with certainty in whom the right to the certificates is. Prima facie it is not in Mr. Dayton. But I shall write to that Gentleman to know precisely the grounds of his claim. This information obtained I shall be able to form a final opinion on the right. It will be adviseable for you in the mean time to defer a compliance with Mr. Dayton’s demand.…”


Title: From Alexander Hamilton to George Washington, 26 October 1795
From: Hamilton, Alexander
To: Washington, George

Sir
New York October 261795

I have noticed a piece in the Aurora under the signature of the Calm Observer which I think requires explanation and I mean to give one with my name. I have written to Mr. Wolcott for materials from the Books of the Treasury.
Should you think it proper to meet the vile insinuation in the close of it by furnishing for one year the account of expenditure of the salary, I will with pleasure add what may be proper on that point. If there be any such account signed by Mr. Lear it may be useful.
I wrote to you some days since directed to you at Philadelphia chiefly on the subject of Young La Fayette. I mention it merely that you may have knowlege that there is such a letter in case it has not yet come to hand.
I touched in it upon a certain intercepted Letter. The more I have reflected, the more I am of opinion that it is inadviseable the whole should speedily appear. With affection & respect
I have the honor to be Sir Yr. Obed serv

The President of The U States
A Hamilton


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 27 October 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

Dr. Sir
New York October 271795

I wish the statements requested in my letter of yesterday may contain each particular payment not aggregates for periods. It runs in my mind that once there being no appropriation I procured an informal advance for The President from the bank—if this is so let me know the time & particulars. If the Account has been wound up to an exact adjustment since the period noticed by the calm observer, it may be useful to carry it down to that period.
I should like to have a note of other instances of advances on account of salaries.
Yrs.

A Hamilton
Oliver Wolcott Esq


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 28 October 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

Dr. Sir.
New York Oct. 28. 1795

I have seen with pleasure your reply to the calm observer. I believe it is as far as you ought to go but more particular explanation will be useful & from me now a private man intirely proper. I therefore hope to receive as soon as may be the statements I requested.
Yrs.

A Hamilton
Oliver Wolcott Esq


Title: To Alexander Hamilton from George Washington, 29 October 1795
From: Washington, George
To: Hamilton, Alexander

My dear Sir,
Philadelphia 29th. Oct 1795.

(Private)
Two or three days ago I wrote you a few lines in haste, and promised one more lengthy when I was more at leisure. For this purpose I am now seated.
The letters from young Fayette and Mr. Frestal; my letter to Mr. Cabot; and his answer (all of which are herewith enclosed for your perusal—mine in the rough state it was first drawn and to be returned when read) will give you a full view of what I have already done in this affair, up to the present moment. I have, unavailingly, owing to accidents, been endeavouring through indirect means, to learn Mr. Adets sentiments relative to the coming over of this young gentleman. But if you, after the information now given; and the reiterated assurance of what I have expressed in my letter to Mr. Cabot, and which I authorise you to repeat to him again, in the very strongest terms you can conceive, should be of opinion that I ought to go further at this time, I will do so at all events: for to be in the place of a father and friend to him I am resolved, under any circumstances. If therefore, as I have just said, you should think that good would come from it; or even consolation flow therefrom to young Fayette and his Tutor; I pray you to send them hither incog, without delay, that some plan may be fixed upon: in settling of which, I pray you to give me your ideas of that which shall appear most eligable either by them, or previous to their arrival here.
Other matters which I have to communicate, shall become the subject of another letter.
I am ever and Affectionately Yours

Go: Washington
Colo. Hamilton.


Title: To Alexander Hamilton from George Washington, 29 October 1795
From: Washington, George
To: Hamilton, Alexander

(Private & confidential)
My dear Sir,
Philadelphia 29th. Oct. 1795.

A voluminous publication is daily expected from Mr. R——. The paper alluded to in the extract of his letter to me, of the 8th. instt. and inserted in all the Gazettes, is a letter of my own, to him; from which he intends (as far as I can collect from a combination of circumstances) to prove an inconsistency in my conduct, in ratifying the Treaty with G. Britain, without making a rescinding (by the British government) of what is commonly called the Provision order, equally with the exception of the 12th. article, by the Senate, a condition of that ratification. Intending thereby to shew, that my final decision thereon, was the result of party-advice; and that that party was under British influence. It being a letter of my own which he asked for, I did not hesitate a moment to furnish him therewith; and to authorise him to publish every private letter I ever wrote, and every word I ever uttered to him, if he thought they wd. contribute to his vindication: But the paper he asked for, is but a mite of the volume that is to appear; for without any previous knowledge of mine, he had compiled every official paper (before this was asked) for publication; the knowledge of which can subserve the purposes he has in view; and why they have not made their appearance before this, I know not, as it was intimated in the published extract of his letter to me, that nothing retarded it but the want of the paper then applied for, which was furnished the day after my arrival in this city—where (on the 20th. instt) I found his letter, after it had gone to Alexandria & had returned.
I shall now touch upon another subject, as unpleasant as the one I have just quitted. What am I to do for a Secretary of State? I ask frankly, & with solicitude; and shall receive kindly, any sentiments you may express on the occasion. That there may be no concealment; & that the non-occupancy of the office until this time may be accounted for (I tell you in confidence that) Mr. Paterson of New-Jersey; Mr. Thos. Johnson of Maryland; Genl Pinckney of So. Carolina; and Mr Patrick Henry of Virginia; in the order they are mentioned, have all been applied to and refused. Would Mr King accept it? You know the objections I have had to the nomination, to office, any person from either branch of the Legislature; and you will be at no loss to perceive, that at the present crisis, another reason might be adduced against this appointment. But maugre all objections, if Mr. King wd. accept, I would look no further. Can you sound, and let me know soon, his sentiments on this occasion. If he should seem disposed to listen to the proposition—tell him candidly, all that I have done in this matter; that neither he, nor I, may be made uneasy thereafter from the discovery of it; he will, I am confident perceive the ground upon which I have acted in making these essays; and will, I am persuaded, appreciate my motives. If he should decline also, pray learn with precision from him, what the qualifications of Mr. Potts. the Senator are—and be as diffusive as you can with respect to others, and I will decide on nothing until I hear from you—pressing as the case is.
To enable you to judge of this matter with more lights still; I add, that Mr Marshall of Virginia has declined the Office of Attorney General, and I am pretty certain would accept of no other: And I know that Colo. Carrington would not come into the War department (if a vacancy should happen therein). Mr. Dexter, it is said, would accept the Office of Attorney General. No person is yet absolutely fixed on for that office. Mr. Smith of So. Carolina would, sometime ago, have had no objection to filling a respectable office under the Genl. government; but what his views might lead to, or his abilities particularly fit him for, I am an incompetent judge: and besides, on the ground of popularity, his pretensions would, I fear, be small. Mr. Chase of Maryland is, unquestionably, a man of abilities; and it is supposed by some, that he wd. accept the appointment of Attorney General. Though opposed to the adoption of the Constitution, it is said he has been a steady friend to the general government since it has been in operation. But he is violently opposed in his own State by a party, and is besides, or to speak more correctly has been; accused of some impurity in his conduct. I might add to this catalogue, that Colo Innis is among the number of those who have passed in review; but his extreme indolence renders his abilities (great as they are said to be) of little use. In short, what with the non-acceptances of some; the known deriliction of those who are most fit; the exceptionable draw backs from others; and a wish (if it were practicable) to make a geographical distribution of the great officers of the Administration, I find the selection of proper characters an arduous duty.

The period is approaching, indeed is already come, for selecting the proper subjects for my communications to Congress at the opening of the next Session—and the manner of treating them merits more than the consideration of a moment. The crisis, and the incomplete state in which most of the important affairs of this country are, at present, make the first more difficult and the latter more delicate than usual.
The Treaty with G. Britain is not yet concluded. After every consideration, however, I could bestow on it (and after entertaining very serious doubts of the propriety of doing it, on account of the Provision order) it has been ratified by me: what has been, or will be done by the governmt. of G. Britain relative to it, is not now and probably will not be known by the meeting of Congress: Yet, such perhaps is the state of that business, as to make a communication thereof to the Legislature necessary: whether in the conciser form, or to accompany it with some expression of my sense of the thing itself, & the manner in which it has been treated, merits deep reflection. If good would flow from the latter, by a just & temperate communication of my ideas to the community at large, through this medium; guarded so as not to add fuel to passions prepared to blaze—and at the same time so expressed as not to excite the criticisms, or animadversions of European Powers, I would readily embrace it. But I would, decidedly, avoid every expression which could be construed a deriliction of the powers of the President with the advice and consent of the Senate to make Treaties; or into a shrinking from any act of mine relative to it. In a word, if a conciliatory plan can be assimilated with a firm, manly & dignified conduct in this business, it would be desirable; but the latter I will never yield. On this head it may not be amiss to add, that no official (nor indeed other) account have been received from France of the reception of the Treaty with G. Britain, by the National Convention. Perhaps it is too soon to expect any.
Our negociations with Spain, as far as accts. have been recd. from Mr Pinckney (soon after his arrival there, but after a conference with the Duke de la Alcudia on the subject, before, however, the Peace between France & that Country was publicly known) stands upon the same procrastinating—trifling—undignified (as it respects that government)—and insulting as it relates to this country ground as they did at the commencement of them. Under circumstances like these, I shall be at a loss (if nothing more decisive shall arrive between this and the Assemblying of Congress) what to say on this subject, especially as this procrastination & trifling, has been accompanied by encroachments on our territorial rights. There is no doubt of this fact, but persons have, nevertheless, been sent both by Govr. Blount & Genl. Wayne, to know by what authority it is done. The conduct of Spain (after having herself, invited this negotiation, and throughout the whole of its progress) has been such that I have, at times, thought it best to express this sentiment at once in the Speech, and refer to the proceedings. At other times, to say only, that matters are in the same inconclusive state they have been; and that if no alteration for the better, or a conclusion of it should take place before the Session is drawing to a close, that the proceedings will be laid fully before Congress.
From Algiers no late accts. have been received; and little favorable, it is to be feared, is to be expected from that quarter.

From Morocco, the first communications, after our Agent arrived there, none were pleasing, but the final result, if any has taken place is yet unknown and are more clouded.
Our concerns with the Indians will tell well. I hope, & believe, the Peace with the Western Indians will be permanent; unless renewd difficulties with G. Britain shd. produce (as it very likely would do) a change in their conduct. But whether this matter can be mentioned in the Speech with propriety before it is advised & consented to by the Senate, is questionable.—and nothing, I am sure, that is so, & is susceptible of caval or criticism, will escape the annonymous writers (if it should go unnoticed elsewhere). It will be denominated by these gentry a bolster. All the hostile Indians to the Southward have renewed the treaties of Amity & friendship with the United States; & have given the best proof, in their power of their sincerity—to wit—a return of Prisoners & property; and Peace prevails from one end of our frontier to the other. Peace also had been produced between the Creeks & Chickasaws by the intervention of this government, but something untoward & unknown here, has occasioned a renewal of hostilities on the part of the Creeks.
The Military establishment is of sufficient importance to claim a place in the general communication, at the opening of the Session; and my opinion is, that circumstanced as things are at present, & the uncertainty of what they may be next year, it would be impolitic to reduce it, but whether to express any opinion thereupon, or leave it entirely to their own decision may be considered.
Whether a report from the Secretary of the Treasury relative to Fiscal matters, particularly on the loans of money—and another from the Secretary of War respecting the Frigates—Arsenals—Military Stores directed to be provided; and the train, in wch. the Trade with the Indians is, agreeably to the several Acts of Legislature may not be proper—and to be referred to in the Speech.
Having desired the late Secretary of State to note down every matter as it occurred, proper either for the speech at the opening of the Session or for messages afterwards—the enclosed paper contains every thing I could extract from that Office. Aid me I pray you with your sentiments on these points & such others as may have occurred to you relative to my communications to Congress.
With affectionate regard I am always Yours

Go: Washington
Colo. A. Hamilton


Title: To Alexander Hamilton from Oliver Wolcott, Junior, 29 October 1795
From: Wolcott, Oliver, Jr.
To: Hamilton, Alexander

Dr. Sir
Phila. Oct. 29. 1795

I send you abstracts of all the payments to the President to the present time. It is a fact that more money has been at times advanced than was due for service, but never a Dollar for which there was no Appropriation.
The villany of the suggestion against the President has induced me to reply to the Calm Observer on the 26th. & 28th. You will see what I have said & the inclosed papers will enable you to add anything which you think proper. I have not time to day to ascertain whether any advance by the Bank was ever granted. You know that the Compensation to both Houses of Congress has been paid in advance frequently.
Yrs truly

Oliv. Wolcott Jr.
A. Hamilton Esqr


Title: The Defence No. XXI, [30 October 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, October 30, 1795]

Since the closing of my last number, I have accidentally turned to a passage of Vatel, which is so pertinent to the immediate subject of that paper, that I cannot refrain from interrupting the progress of the discussion to quote it. It is in these words (B 3 C 4 § 63) “The Sovereign declaring War can neither detain those subjects of the enemy, who are within his dominions at the time of the Declaration, nor their effects. They came into his country on the public faith. By permitting them to enter his territories and continue there, he tacitly promised them liberty and security for their return” This passage contains explicitly the principle which is the general basis of my argument; namely that The permission to a foreigner to come with his effects into and acquire others within our Country in time of peace virtually pledges the public faith for the security of his person and property in the event of War. How can this be reconciled with the natural right (controuled only by the customary law of Nations) which this writer admits, to confiscate the debts due by the subjects of a State to its enemies? I ask once more, can there be a natural right to do that which includes a breach of the public faith?
Tis plain, to a demonstration, that the rule laid down in this passage, which is so just and perspicuous as to speak conviction to the heart & understanding, unites the natural with the customary law of Nations in a condemnation of the pretension to confiscate or sequester the private property of our enemy found in our Country at the breaking out of a War.
Let us now proceed to examine the policy and expediency of such a pretension.

In this investigation, I shall assume as a basis of argument the following position—That it is advantageous to Nations to have Commerce with each other.
Commerce, it is manifest, like any other object of enterprize or industry will prosper in proportion as it is secure. Its security consequently promoting its prosperity will extend its advantages. It is indeed essential to its having a due & regular course.
The pretension of a right to confiscate or sequester the effects of foreign merchants in the case in question is in its principle fatal to that necessary security. Its free exercise would destroy external Commerce; or which is nearly the same thing reduce it within the contracted limits of a game of hazard, where the chance of large profits accompanied with great risks would tempt alone the adventurous and the desperate. Those enterprises which, from circuitous or long voyages, slowness of sales incident to the nature of certain commodities, the necessity of credit or from other causes, demand considerable time for their completion must be renounced. Credit indeed must be banished from all the operations of foreign Commerce; an engine the importance of which to its vigorous and successful prosecution will be doubted by none who will be guided by experience or observation.
It cannot need amplification to elucidate the truth of these positions. The storms of war occur so suddenly and so often as to forbid the supposition that the Merchants of one Country would trust their property to any extent or for any duration in another Country, which was in the practice of confiscating or sequestering the effects of its enemies found within its territories at the commencement of a War. That practice therefore would necessarily paralize and wither the Commerce of the Country in which it obtained. Accordingly Nations attentive to the cultivation of commerce, which formerly were betrayed by temporary considerations into particular instances of that atrocious practice have been lead by the experience of its mischiefs to abstain from it in later times. They saw that to have persisted in it would have been to abandon a competition on equal terms in the lucrative and beneficial field of Commerce.
It is no answer to this to say—that the exercise of the right might be ordinarily suspended, though the right itself might be maintained for extraordinary and great emergencies.
In the first place, as the ordinary forbearance of its exercise would be taken by foreigners as evidence of an intention never to exercise it, by which they would be enticed into extensive deposits that would not otherwise have taken place, a departure from the general course would always involve an act of treachery and cruelty.
In the second place, the possibility of the occasional exercise of such a right, if conceived to exist, would be at least a slow poison conducing to a sickly habit of Commerce; and in a series of time would be productive of much more evil than could be counterballanced by any good that could possibly be obtained in the contemplated emergency—by the use of the expedient.
Let experience decide. Examples of confiscation and sequestration have been given. When did the dread of them prevent a War? When did it cripple an enemy so as to disable him from exertion or force him into peace or into a submission to the views of his adversary? When did it even sensibly conspire to either of these ends? If it has ever had any such effect, the evidence of it has not come within my knowlege.
It is true, that as between Great Britain and the U States the expectation of such effects is better warranted than perhaps in any other cases that have existed; because we commonly owe a larger debt to that Country than is usual between nations and there is a relative state of things which tends to a continuance of this situation.
But how has the matter operated hitherto? In the late war between the two Countries, certain states confiscated the debts due from their citizens to British Creditors; and these Creditors had actually suffered great losses. The British Cabinet must have known that it was possible the same thing might happen in another War on a more general scale. And yet the appearances were extremely strong at a particular juncture that it was their plan, either from ill will, from the belief that popular opinion would ultimately drag our Government into the war, from the union of these two or from other causes, to force us into hostilities with them. Hence it appears that the apprehension of acts of confiscation or sequestration, was not sufficient to deter from hostile views or to ensure pacific dispositions.
It may be pretended that the menace of this measure had a restraining influence on the subsequent conduct of Great Britain. But if we ascribe nothing to the measures which our government actually pursued, under the pressure of the provocations received; we at least find in the course of European events a better solution of a change of policy in the Cabinet of Great Britain than from the dread of a legislative piracy on the debts due to their Merchants.
The truth unfortunately is that the passions of men stifle calculation that Nations the most attentive to pecuniary consideration easily surrender them to ambition to jealousy to anger or to revenge.
For the same reason, the actual experiment of an exercise of the pretended Right to confiscate or sequester, by way of reprisal for an injury complained of, would commonly be as inefficacious as the menace of it, to arrest general hostilities. Pride is roused, resentment kindled, and where there is ever no previous disposition to those hostilities, the probability is that they follow. Nations like individuals ill brook the idea of receding from their pretensions under the Rod or of admitting the justice of an act of retaliation or reprisal by submitting to it. Thus we learn from the King of Prussia himself, that the sequestering of the Silesia Debt, instead of procuring the reparation for which it was designed, was on the point of occasioning an open rupture between him & Great Britain, when the supervention of a quarrel with France diverted the storm by rendering him necessary as an ally.
Perhaps it may be imagined that the practice of confiscation or sequestration would be more efficacious to wound and disable Great Britain in case of War than to prevent it. But this also is a vain chimera. A nation that can at pleasure raise by loan twenty Millions Sterling would be in little danger of being disconcerted or enfeebled in her Military enterprizes by the taking away or arresting three or four Millions due to her Merchants. Did it produce distress and disorder among those whom it affected and their connections? If that disorder was sufficient to threaten a general derangemt of mercantile credit and with it of the public finances, the pending War affords us an example that the public purse or credit could be brought successfully into action for the support of the sufferers. Three or four Millions of Exchequer Bills applied in loans would suffice to prevent the partial evil from growing into a national calamity.
But we forget that as far as the interruption of the payment of the debts due to her Merchants could be supposed to operate upon Great Britain, war itself would essentially answer the purposes of confiscation or sequestration. By interrupting trade and intercourse, it is in fact a virtual sequestration. Remittances to any extent become impracticable. There would be few ways, in which on account of the state of War, it would be lawful to make them, and debtors are for the most part enough disposed to embrace pretexts of procrastination.
The inconvenience of deferred payment would therefore be felt by Great Britain, with little mitigation from the bare existence of War, without the necessity of our Government incurring the discredit & responsibility of a special intereference.
Indeed, as far as dread of eventual loss can operate, it ought in a great degree to have its effect exclusive of the idea of confiscation. Great Britain must want reflection not to be sensible that in making war upon us, she makes war upon her own merchants; by the depredations upon our Trade, destroying those resources from which they are to be paid. If she be indifferent to this consideration, ’twill be because she is governed by some motive or passion powerful enough to dispose her to run the risk of the entire loss—in the reliance of obtaining indemnification in the acquisitions of War or in the terms of Peace.
Will it be said that the seizure of the debts would put in the hands of our Government a valuable resource for carrying on the War? This upon trial would prove as fallacious as all the rest. Various inducements would prevent Debtors from paying into the Treasury. Some would decline it from conscientious scruples, from a doubt of the rectitude of the thing—others with intent to make a merit with their Creditors of the concealment and to favour their own future credit and advantage—others from a desire to retain the money in their own employment—and a great number from the apprehension that the Treaty of peace might revive their responsibility to the Creditors with the embarrassment to them of getting back as well as they could the monies which they had paid into the Treasury. Of this our last Treaty of peace, in the opinion of able judges, gave an example. These causes and others which do not as readily occur would oppose great obstacles to the execution of the measure.
But severe laws inflicting heavy penalties might compel it. Experience does not warrant a sanguine reliance upon this expedient, in a case in which great opportunity of concealment is united with strong motives of inclination or interest. It would require an inquisition justly intolerable to a free people—penalties which would confound the due proportion between crime and punishment; to detect or to deter from concealment and evasion and to execute the law. Probably no means less efficacious than a revolutionary tribunal and a guillotine would go near to answer the end. There are but few, I trust, to whom these would be welcome means.
We may conclude therefore, that the law would be evaded to an extent which would disappoint the expectations from it as a resource. Some monies would no doubt be collected, but the probability is that the amount would be insignificant even in the scale of a single campaign. But Should the collection prove as complete as it ordinarily is between creditor and debtor, it would little if [at] all exceed the expence of one Campaign.
Hence we perceive that regarding the measure either as a mean of disabling our enemy or as a resource to ourselves—its consequence dwindles upon a close survey. It cannot pretend to a magnitude which would apologise either for a sacrifice of national honor or candour, or for a deviation from the true principles of Commerce and Credit.
Let us now take a closer view of its disadvantages.
A nation, in case of war, is under no responsibility for the delinquencies or frauds of its citizens who are debtors to those of its enemy, if it does not specially interfere with the payment of the debts which they owe. But if it interposes its authority to prevent the payment it gives a claim of indemnification to its adversary for the intervening losses which those delinquencies or frauds may occasion. Whether on the making of peace this would be insisted upon or waved might depend much on the good or ill success of the War; but every thing which adds to the catalogue of our enemy’s just pretensions, especially when the fortune of War has been pretty equal, is an evil, either as an additional obstacle to speedy peace or as an ingredient to render the terms of it less advantageous to us. And it is therefore unwise in a government to increase the list of such pretensions by a measure which without utility to itself administers to the indolence of negligent, and to the avidity of fraudulent Individuals.
Further. Every species of reprisal or annoyance which a power at War employs, contrary to liberality or justice, of doubtful propriety in the estimation of the law of Nations, departing from that moderation which in latter times serves to mitigate the serverities of War, by furnishing a pretext and a provocation to the other side to resort to extremities, serves to embitter the spirit of hostility and to extend its ravages. War is then apt to become more sanguinary, more wasting and every way more destructive. This is a ground of serious reflection to every nation, both as it regards humanity and policy—to this country it presents itself accompanied with considerations of peculiar force. A vastly extended sea coast overspread with defenceless towns would offer an abundant prey to an incensed and malignant enemy having the power to command the sea. The usages of modern war forbid hostilities of this kind and though they are not always respected, they are never violated, unless by way of retaliation for breaches of those usages on the other side, without exciting the reprobation of the impartial part of mankind sullying the glory and blasting the reputation of the party which has recourse to them. But the confiscation or sequestration of private debts or private property in public funds, now generaly regarded as an odious and unwarrantable measure, would as between us and Great Britain contain a poignant sting. Its effect to exasperate in an extreme degree both the nation and government of that Country cannot be doubted. A disposition to retaliate is a natural consequence, and it would not be difficult for us to be made to suffer beyond any possible degree of advantage to be derived from the occasion of the retaliation. It were much wiser to leave the property of British subjects an untouched pledge for the moderation of its government in the mode of prosecuting the war.
Besides, (as if requisite might be proved from the records of history) in national controversies, it is of real importance to conciliate the good opinion of mankind, and it is even useful to preserve or gain that of our enemy. The latter facilitates accommodation and peace—the former attracts good offices, friendly interventions, sometimes direct support from others. The exemplary conduct, in general, of our country in our contest for independence was probably not a little serviceable to us in this way. It secured to the intrinsic goodness of our cause every collateral advantage, and gave it a popularity among nations unalloyed and unimpaired, which even stole into the Cabinets of Princes. A contrary policy tends to contrary consequences. Though nations in the main are governed by what they suppose their interest, he must be imperfectly versed in human nature who thinks it indifferent whether the maxims of a State tend to excite in others kind or unkind dispositions, or that these dispositions may not insensibly affect the views of self-interest. This were to suppose that Rulers only reason do not feel, in other words are not men.
Moreover, the measures of War ought ever to look forward to peace. The confiscation, or sequestration of the private property of an enemy must always be a point of serious discussion when interest or necessity leads to negotiations for peace. Unless when absolutely prostrate by the war, restitution is likely to constitute an ultimatum of the suffering party. It must be agreed to, or the war protracted, and at last it is probable it must still be agreed to. Should a refusal of restitution prolong the war for only one year, the chance is that more will be lost than was gained by the confiscation. Should it be necessary finally to make it, after prolonging the war, the disadvantage will preponderate in a ratio to the prolongation. Should it be in the first instance assented to, what will have been gained? the temporary use of a fund of inconsiderable moment in the general issue of the War, at the expence of justice character credit and perhaps of having sharpened the evils of war. How infinitely preferable to have drawn an equal fund from our own resources, which with good management is always practicable! If the restitution includes damages on account of the interference, for the failures of individuals, the loan will have been the most costly that could have been made. Our Treaty of Peace with Great Britain is an example of restitution. The late one between France & Prussia is another. This must become every day more and more a matter of course because the immunity of mercantile Debts becomes every day more important to commerce, better understood to be so and more clearly considered as enjoined by the principles of the law of Nations.
Thus we see that in reference to the simple question of war and peace the measure of confiscation or sequestration is marked with every feature of impolicy.
We have before seen that the pretension of a right to do the one or the other has a most inimical aspect towards Commerce and Credit.
Let us resume this view of the subject. The credit which our Merchants have been able to obtain abroad, essentially in Great Britain, has from the first settlement of our Country to this day been the animating principle of our foreign Commerce. This every Merchant knows and feels—and every intelligent merchant is sensible that for many years to come the case must continue to be the same. This in our situation is a peculiar reason of the utmost force for renouncing the pretension in question.
The exercise of it or the serious apprehension of its exercise would necessarily have one of two effects. It would deprive our merchants of the credit so important to them, or it would oblige them to pay a premium for it proportioned to the opinion of the risk. Or to speak more truly, it would combine the two effects; it would cramp credit and subject what was given to a high premium. The most obvious and familiar principles of human action establish that the consideration for money or property lent or creditted is moderate or otherwise according to the opinion of security or hazard; and that the quantity of either to be obtained on loan or credit is in a great degree controuled or enlarged by the same rule.
Thus should we in the operations of our Trade pay severely and exorbitantly for a pretension which is of little value, or rather which is pernicious even in the relations pretended to constitute its utility. What folly to contend for it? How much greater the folly ever to think of exercising it? It never can be exercised hereafter in our Country without great & lasting mischiefs.
Instead of cherishing so odious a pretension as our “best our only weapon of defence” wisdom admonishes us to be eager to cast it from us as a weapon most dangerous to the wearer proscribed by the laws of Nations by the laws of honor and by every principle of true policy.
Every Merchant ought to desire that the most perfect tranquillity on this point in foreign Countries should facilitate to him on the best & cheapest terms the credit for which he has occasion. And every other Citizen ought to desire that he may be thus freed from a continual contribution, in the enhanced price of every imported commodity he consumes, towards defraying the premium which the want of that tranquilty is calculated to generate. Camillus


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 30 October[–12 November] 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

Dr Sir
New York October 30. [–November 12] 1795

I wrote you yesterday for a statement of the advances & appropriations for the Department of State.
I am very anxious that Fauchet’s whole letter should appear just as it is—strange whispers are in circulation of a nature foreign to Truth & implicating honest men with Rascals. Is it to come out? Can’t you send me a copy? I will observe any conditions you annex.
The secret Journals & other files of the Department of State will disclose the following facts—that during the War a Commission to negotiate a Treaty of Commerce with G Britain was given to Mr Adams and afterwards revoked—that our Commissioners for making peace were instructed to take no step whatever without a previous consultation with the French Ministry; though there was at the time reason to believe that France wished us to make peace or truce with GBritain without an acknowlegement of our independence—that she favoured a sacrifice to Spain of our pretensions to the navigation of the Missippi & the relinquishment of a participation in the fisheries.
It will appear that instructions were actually given to Mr. Jay to yield the navigation of the Mississippi to Spain, in consideration of an acknowlegement of our Independence—that Mr. Jay made a proposal accordingly but clogged with some condition or qualification to bring it back to Congress before a final conclusion & expostulated with Congress against the measure.
It will appear that this was effected by a Southern party who would also have excluded the fisheries from being ultimatum in which they were opposed by the north who equally contended for Mississippi & Fisheries.
It will appear that Chancellor Livingston as Secy of State reported a censure on our Commissioners for breaking their instructions in the negotiations for peace.
It will appear that shortly after the arrival in this Country of the preliminary articles I made a motion in Congress to renew the Commission to negotiate a Treaty of Commerce with G Britain —that a Committee was appointed to prepare one with instructions of which Mr Madison was one & that the Committee never reported. Thus stand the facts in my memory. It is very desirable, now that a free access to the files of the Department can give the evidence, to examine them accurately, noting times places circumstances actors &c. I want this very much for a public use in my opinion essential.
It would also be useful to have a copy of Mr. Jefferson’s letter to Congress concerning the transfer of the French Debt to private money lenders on which the Report of the Board of Treasury is founded.
Yrs. truly

A. Hamilton
O Wolcott Esq

Nov 12
This letter by accident has lain on my desk since it was written. I send it still.
Beaches paper of the 11 has a Valerius wh⟨ich⟩ I think gives an opportunity of oversetti⟨ng⟩ him. The leading ideas may be—
1   He discloses the object of the party to place Mr Jefferson in contrast with the President.
2   He discloses the further object—an intimate & close alliance with France subject[ing] us to the vortex European politics & attributes it to Mr. Jefferson.
3   He misrepresents totally Mr. Jeffersons returning from France. A solid answer to this paper with facts would do great good.


Title: To Alexander Hamilton from Oliver Wolcott, Junior, 2 November 1795
From: Wolcott, Oliver, Jr.
To: Hamilton, Alexander

My Dear Sir
Phila: Nov 2d. 1795

I enclose a statement of the Presidents account quarterly, which shews that he has not been in advance a quarters salary at any time.
You will see that the Aurora denies that the members of Congress have ever recd. monies which were not earned & refers to a Letter of mine to prove the fact. I never wrote a Letter on the subject except to the Speakers Muhlenbergh & Trumbull in answer to an application from them on this point Whether any advances that had been made to Members of the House of Representatives beyond their real pay had been afterwards accounted for in their subsequent accounts in a succeeding session?”
To this I answered to the following effect
“It is certain that the Speakers of the House have in no instance advanced monies beyond the compensation claimed by the Members as actually due, of course it does not appear to have been designed in any case that monies advanced in one session, should be accounted for by services to be rendered in another.”
“In the accounts of the second Session, of the first Congress two errors were discovered of six Dollars each and one other of Eighty four Dollars, which sums were overpaid in consequence of miscalculations these sums were credited by the members who recd. the monies, in the succeeding session, in consequence of Notes which were placed in the Pay Books, by the Clerks who made the examination.”
“A few other errors of a trivial nature have at different times been noted as errors by the Clerks, but whether they have been explained by the members, or accounted for, does not appear from the pay Books. The foregoing three cases are all that I can find, which fall within the enquiry contained in your Letter.”
The plain meaning of my Letter is that it was not the practice to advance during a session more than was earned in that session—further I never meant or examined the books to ascertain. I shall do it now.
The reference to this Letter proves either that Muhlenbergh is party to this business or what is more likely that my Letter was lodged in the Clerks Office, & that Beckley & Randolph are the authors of this attack.
Nothing to the purpose can be gained from the accounts of the Secy of State, but you will find them enclosed. It is not best to use them in my opinion.
Yrs. truly.

Oliv. Wolcott Jr.

N.B. What I say of my own Letter to M & T. is for your information. I shall use the affair here.
The Clerks have disappointed me & I cannot send the Statement for the Dept. of State Salaries till tomorrow.