Title: The Defence No. XV, [12 and 14 September 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, September 12 and 14, 1795]

[It is the business of the seventh article of the treaty, to provide for two objects: one, compensation to our citizens for injuries to their property, by irregular or illegal captures or condemnations; the other, compensation to British citizens for captures of their property within the limits and jurisdiction of the United States, or elsewhere, by vessels originally armed in our ports, in the cases in which the captured property having come within our posts and power, there was a neglect to make restitution.
The first object is thus provided for: 1. It is agreed, that in all cases of irregular or illegal captures or condemnations of the vessels and other property of citizens of the United States, under colour of authority or commissions from his Britannic majesty, in which adequate compensation for the losses and damages sustained, cannot, for whatever reason, be actually obtained in the ordinary course of justice, full and complete compensation for the same will be made by the British government to the claimants; except where the loss or damage may have been occasioned by the manifest delay, or negligence, or wilful omission of those claimants. 2. The amount of the losses and damages to be compensated is to be ascertained by five commissioners, who are to be appointed in exactly the same manner as those for liquidating the compensation to British creditors. 3. These commissioners are to take a similar oath, and to exercise similar powers for the investigation of claims with those other commissioners, and they are to decide according to the merits of the several cases and to justice, equity, and the laws of nations. 4. The same term of eighteen months is allowed for the reception of claims, with a like discretion to extend the term as in the case of British debts. 5. The award of these commissioners or of three of them, under the like guards as in that case, is to be final and conclusive, both as to the justice of the claim and the amount of the compensation. And, lastly, His Britannic majesty is to cause the compensation awarded to be paid to the claimants in specie, without deduction, at such times and places, and upon the condition of such releases or assignments, as the commissioners shall prescribe.
Mutually and dispassionately examined, it is impossible not to be convinced, that this provision is ample and ought to be satisfactory. The course of the discussion will exhibit various proofs of the disingenuousness of the clamours against it, but it will be pertinent to introduce here, one or two samples of it.
It has been alledged, that while the article preceding and this article provide effectually for every demand of Great Britain against the United States, the provision for this important and urgent claim of ours is neither explicit, nor efficient, nor co-extensive with the object, nor bears any proportion to the summary method, adopted for the satisfying of British claims.
This suggestion is every way unfortunate. The plan for satisfying our claim, except as to the description of the subject which varies with it, is an exact copy of that for making compensation to British creditors. Whoever will take the pains to compare, will find, that in the leading points, literal conformity is studied, and that in others, the provisions are assimilated by direct references; and will discover also, this important distinction in favour of the efficiency and summariness of the provision for our claim—that while the commissioners are expressly restricted from awarding payment to British creditors, to be made sooner than one year after the exchange of ratifications of the treaty, they are free to award it, to be made the very day of their decision, for the spoliations of our property. As to compensation for British property, captured within our limits, or by vessels originally armed in our ports and not restored, which is the only other British claim that has been provided for, it happens that this, forming a part of the very article we are considering, is submitted to the identical mode of relief, which is instituted for making satisfaction to us.
So far then is it from being true, that a comparison of the modes of redress provided by the treaty, for the complaints of the respective parties, turns to our disadvantage, that the real state of the case exhibits a substantial similitude with only one material difference, and that in our favor; and, that a strong argument for the equity of the provisions on each side, is to be drawn from their close resemblance of each other.
The other suggestion alluded to, and which has been shamelessly reiterated, is, that Denmark and Sweden, by pursuing a more spirited conduct, had obtained better terms than the United States. It is even pretended, that one or both of them had actually received from Great Britain a gross sum on account—in anticipation of an ultimate liquidation. In my second number, the erroneousness of the supposition, that those powers had obtained more than the United States was intented, but the subsequent repetition of the idea, more covertly in point, and very openly and confidently in conversation, renders expedient an explicit and peremptory denial of the fact. There never has appeared a particle of evidence to support it, and after challenging the asserters of it to produce their proof, I aver, that careful enquiry at sources of information, at least as direct and authentic as their’s, has satisfied me, that the suggestion is wholly unfounded, and that at the time of the conclusion of our treaty with Great Britain, both Denmark and Sweden were behind as in the effect of their measures for obtaining reparation.
What are we think of attempts like these, to dupe and irritate the public mind? Will any prudent citizen still consent to follow such blind or such treacherous guides?
Let us now, under the influence of calm and candid temper, without which truth eludes our researches, by a close scrutiny of the provision, satisfy ourselves whether it be not really a reasonable and proper one. But previous to this it is requisite to advert to a collateral measure which was also a fruit of the mission to Great Britain, and which ought to be taken in conjunction with the stipulations of this article. I refer to the order of the British king in council, of the 6th of August, 1794, by which order, the door before shut by lapse of time, is opened to appeals from the British West India courts of Admiralty, to be brought at any time which shall be judged reasonable by the lords commissioners of appeals in prize causes. This of itself was no inconsiderable step towards the redress of our grievances, and it may be hoped, that with the aid which the government of the United States has given to facilitate appeals, much relief may ensue from this measure. It will not be wonderful if it should comport with the pride and policy of the British government by promoting justice in their courts, to leave as little as possible to be done by the commissioners.
I proceed now to examine the characteristics of the supplementary provision made by the article, in connection with the objection to it.
It admits fully and explicitly the principle, that compensation is to be made for the losses and damages sustained by our citizens, by irregular or illegal captures, or condemnations of their vessels and other property] under colour of authority (which includes Governmental orders and instructions) or of commissions from his Britannic Majesty. It is to be observed that the causes of the losses and damages are mentioned in the disjunctive, “captures or condemnations” so that damages by captures which were not followed by condemnations are provided for as well as those where condemnations did follow.
A cavil has been raised on the meaning of the word colour, which it is pretended would not reach the cases designed to be enbraced because the spoliations complained of were made not merely by colour but actually by virtue of instructions from the British Government.
For the very reason that this subtil and artificial meaning ascribed to the term would tend to defeat the manifest general intent of the main provision of the Article, which is plainly to give reparation for irregular or illegal captures or condemnations of American property contrary to the laws of nations—that meaning must be deemed inadmissible.
But in fact, the expression is the most accurate that could have been used to signify the real intent of the article. When we say a thing was done by colour of an authority or commission, we mean one of three things—that it was done on the pretence of a sufficient authority or commission not validly imparted or on the pretence of such an authority or commission validly imparted, but abused or misapplied—or on the pretence of an insufficient authority or Commission regularly as to form imparted and exercised. It denotes a defect of rightful and just authority, whether emanating from a wrong source or improperly from a right source; whereas the phrase “by virtue of” is most properly applicable to the valid exercise of a valid authority. But the two phrases are not infrequently used as synonimous. Thus in a Proclamation of the British King of the 25 of May 1792, he among other things forbids all his subjects, by virtue or under colour of any foreign commission or Letters of Reprisals to disturb infest or damage the subjects of France.
In whose mouths does the article put the expression? In those of citizens of the U States? What must they be presumed to have meant? Clearly this—that by colour of instructions or commissions of his Britannic Majesty either exercised erroneously, or issued erroneously as being contrary to the laws of Nations, the Citizens of the U States had suffered loss and damage by irregular or illegal captures or condemnations of their property. What is the standard appealed to to decide the irregularity or illegality to be redressed? Expressly the laws of Nations. The Commissioners are to decide “according to the merits of the several cases, to justice equity and the laws of Nations.” Wherever these laws as received and practiced among Nations pronounce a capture or condemnation of neutral property to have been irregular or illegal, though by color of an authority or commission of his Britannic Majesty, it will be the duty of the Commissioners to award compensation.
The criticism however fails on its own principle when tested by the fact. The great source of grievance intended to be redressed by the article proceeded from the instruction of the 6th of November 1793. That instruction directs the Commanders of Ships of War and Privateers to stop and detain all ships laden with goods the produce of any colony belonging to France or carrying provisions and other supplies for the use of such colony and to bring the same with their cargoes to legal adjudication in the British Courts of Admiralty. These terms “legal adjudication” were certainly not equivalent to any rational construction to condemnation. Adjudication means simply a judicial decision, which might be either to acquit or condemn. Yet the British West India Courts of Admiralty appear to have generally acted upon the term as synonimous with condemnation. In doing this they may be truly said, even in the sense of the objection, to have acted by colour, only of the instruction.
The British Cabinet have disavowed this construction of the West India Courts and have, as we have seen, by a special act of interference opened a door which was before shut to a reversal of their sentences by appeal to his Courts in England. We find also that the term adjudication is used in the XVIIth. article of our late Treaty as synonimous only with judicial decision, according to its true import. This, if any thing were wanting, would render it impossible for the Commissioners to refuse redress on the grounds of the condemnations, if otherwise illegal, being warranted by the pretended sense of the words legal adjudication. But in reality as before observed their commission will be to award compensation in all cases in which they are of opinion that according to the established laws of Nations captures or comdemnations were irregular or illegal, however otherwise authorised; and this in contempt of the quibbling criticism which has been so cunningly devised.

2dly   The provision under consideration obliges the British Government, in all the cases of illegal captures or condemnations in which adequate compensation cannot for whatever reason be actually had in the ordinary course of Justice to make full and complete compensation to the Claimants which is to be paid in Specie to themselves without deduction at such times and places as shall be awarded.
They are not sent for redress to the Captors or obliged to take any circuitous course for their payment, when decreed, but are to receive it immediately from the Treasury of Great Britain.
3   The amount of the Compensation in each case is to be fixed by five Commissioners two appointed by the U States two by G Britain—the fifth by these four or in case of disagreement by lot. These Commissioners to meet and act in London.
It seems impossible, as has been observed and shewn in the analogous cases to imagine a plan for organising a Tribunal more completely equitable and impartial than this; while it is the exact counterpart of the one which is to decide on the claims of British Creditors. Could it have been believed, that so palpable an error could have been imposed on a Town Meeting in the face of so plain a provision as to induce it to charge against this article that in a national concern of the U States, redress was left to British Courts of Admiralty? Yet strange as it may appear, this did happen even in the truly enlightened Town of Boston.
The truth is that according to the common usage of Nations, the Courts of Admiralty of the belligerent parties are the channels through which the redress of injuries to neutrals is sought. But Great Britain has been brought to agree to refer all the cases in which justice cannot be obtained through those channels to an extraordinary Tribunal; in other words to Arbitrators mutually appointed.
It is here that we find the reparation of the national wrong which we had suffered. In admitting the principle of compensation by the Government itself, in agreeing to an extraordinary Tribunal in the constitution of which both parties have an equal voice to liquidate that compensation—Great Britain has virtually and effectually acknowleged the injury which had been done to our neutral rights and has consented to make satisfaction for it. This was an apology in fact, however it may be in form.
As it regards our honor, this is an adequate atonement and the only species usual in similar cases between nations. Pecuniary compensation is the true reparation in such cases. Governments are not apt to go upon their knees to ask pardon of other governments. Great Britain in the recent instance of the dispute with Spain about Nootka sound was glad to accept a like reparation. It merits an incidental remark that the instrument which settles this dispute expressly waves like our Treaty reference to the merits of the complaints & pretensions of the respective parties. Is our situation such as to authorise us to pretend to impose humiliating conditions on other Nations?
It is necessary to distinguish between injuries and insults which we are too apt to confound. The seizures and Spoliations of our property fall most truly under the former head. The acts which produced them embraced all the neutral powers—were not levelled particularly at us—bore no mark of an intention to humiliate us by any peculiar indignity or outrage.
These acts were of June [8th] and of November 6th 1793. The seizure of our vessels going with provisions to the dominions of France under the first was put on the double ground of a war extraordinary in its principle

   Note   *Though this country has viewed the principle of the War favourably—it is certain that Europe generally, the neutral powers not wholly excepted, has viewed it in a different light so that this was not a mere pretence.

 and of a construction of the laws of Nations which it was said permitted it—a construction not destitute of colour, and apparently supported by the authority of Vatel, though in my opinion ill founded. It was accompanied also by compensation for what was taken and other circumstances that evinced a desire to smooth the act. The indiscriminate confiscation of our property upon the order of the 6th of November which was the truly flagrant injury was certainly unwarranted by that order (and no secret one has appeared)—and the matter has been so explained by the British Government. It is clear that the evils suffered under acts thus circumstanced are injuries rather than insults, and are so much the more manageable as to the species and measure of redress. It would be quixotism to assert that we might not honorably accept in such a case the pecuniary reparation which has been stipulated.
But it is alleged that in point of interest it is unsatisfactory—tedious in the process—uncertain in the event—that there ought to have been actual and immediate indemnifaction or at least a payment upon account.
A little calm reflection will convince us that neither of the two last things was to be expected. There was absolutely no criterion either for a full indemnification or for an advance upon account. The value of the property seized and condemned (laying out of the case damages upon captures where condemnations had not ensued) was not ascertained even to our own government with any tolerable accuracy. Every well informed man will think it probable that of this a proportion not inconsiderable was covered French property. There were therefore no adequate data upon which our government could demand or the British Government pay a determinate sum. Both governments must have acted essentially by guess. Ours could not in honor or conscience have made even an estimate but upon evidence. It might have happened that a sum which appeared upon the evidence that had been collected sufficient might have proved on further evidence insufficient. Too little as well as too much might have been demanded & paid. But it will perhaps be said that some gross estimate might have been formed, and that of this such part might have been advanced upon account as was within the narrowest probable limit liable to eventual adjustment. Let us for a moment suppose this done. What good end would it have answered? How could the U States have distributed this money among the sufferers till it was ascertained which of them were truly intitled and to how much? Is it not evident that if they had made any distribution before the final and perfect investigation of the right of each claimant it would be at the risk of making mispayments and of being obliged to replace the sums mispaid, perhaps at a loss to the U States, for the benefit of those who should be found to be better intitled? Would it have been expedient for our Government to have incurred this risk to its constituents? And if the money was to be held undistributed till an investigation of claims was completed to what purpose the haste about an advance?
On the other hand—Is it in this loose gross way, that nations transact affairs with each other? Do even individuals make indemnifications to each other in so lumping a manner? Could it be expected of Great Britain that she would pay till it was fairly ascertained what was to be paid—especially when she had too much cause to suspect that a material proportion of the property claimed might turn out to be French? Would it have been justifiable on our part to make her compliance with such a demand the sine qua non of accommodation and peace? Whoever will believe that she would have complied with so humiliating a requisition must be persuaded that we were in a condition to dictate and she in a condition to be obliged to receive any terms that we might think fit to prescribe? The person who can believe this must be in my opinion under the influence of a delirium, for which there is no cure in the resources of reason and argument. Unhappy the Country that should take him as a guide!
If it must be admitted that it was matter of necessity that investigation should precede payment, then I see not what more summary mode could have been devised. Who more capable of proceeding with dispatch than Arbitrators untrammelled with legal forms—vested with powers to examine parties and others on oath and to command and receive all evidence in their own way? Here are all the means of expedition, divested of every clog.
Eighteen months are allowed for preferring claims, but the Commissioners are at liberty to adjust them as fast as they are preferred. In every case in which it appears to them bona fide that the ordinary course of Justice is inadequate to relief, they may forthwith proceed to examine and decide. There is no impediment, no necessary cause of delay whatever, more than the nature of a due investigation always requires.
The meeting of the Commissioners at London was recommended by the circumstance that the Admiralty Courts were likely to concenter there a considerable part of the evidence on which they were to proceed—which upon the whole might favour dispatch as well as more complete justice. In many cases the decisions of those Courts may come under their review.
As to uncertainty of the event, this, as far as it may be true, was inseperable from any plan bottommed on the idea of a previous investigation of claims. And it has been shewn that some such plan was reasonable and inevitable.
It may be also added that the plan affords a moral certainty of substantial justice, which is all that can rationally be expected in similar affairs. Compensation where due is explicitly stipulated. A fair and adequate mode of deciding and liquidating it has been settled. All the arguments which were adduced to prove the probability of good faith in regard to the posts apply equally to this subject. The interest which every nation has in the preservation of character and which the most profligate nations dare not intirely disregard—the consideration of defeating the fulfilment of the stipulations on our part—the size of the object, certainly not of great magnitude—the very discouraging situation for replunging suddenly into a new war in which the present war will in every event leave Great Britain—These are reasons which afford solid ground of assurance that there will be no evasion of performance.
As to the Commissioners, two of the five will certainly be of our choice, a third may be so likewise, but should it prove otherwise it will be surprising if one of the other three all acting under oath and having character at stake shall not be disposed to do us reasonable justice.
3dly.   While their power is coextensive with all losses and damages from irregular or illegal captures or condemnations, their sentence in each case is to be conclusive, and the rules which are to govern it as prescribed by the article are the merits of each case, justice equity and the laws of Nations. What greater latitude could have been desired to be given? What greater latitude could have been given? What else in the case was there to have been provided for? What is meant by the assertion that the provision is not commensurate with the object?
The general and unqualified reference to the laws of Nations dismisses all pretence to substitute arbitrary regulations of Great Britain as rules of decision. Her instructions or orders, if incompatible with those laws are nullities. Thus The Treaty unfetters the questions between us and her from the commencement of the War, and with her own consent commits them at large to a Tribunal to be constituted by mutual choice.
Will any man of candour and Equity say that a better provision ought to have been expected than has been accomplished?
The alternative was Immediate Indemnification by actual payment in whole or in part without examination of the extent or justice of the claims—or future indemnification after a due investigation of both in some equitable and effectual mode. The first was attended with difficulties on our side and with solid objections on the other side. The last was therefore the truly reasonable course, and it has been pursued on a very proper plan. The causes of loss and damage are fully embraced—they are referred to the decision of an unexceptionable Tribunal to be guided by unexceptional rules and the indemnification which may be awarded is to be paid fully immediately and without detour by the British Government itself. Say Ye impartial and enlightened if all this be not as it ought to have been!

Camillus


Title: To Alexander Hamilton from Ezekiel Gilbert, 18 September 1795
From: Gilbert, Ezekiel
To: Hamilton, Alexander

Hudson [New York] September 18, 1795. “The appointment of a new Sheriff for Columbia will take place at the meeting of the Council next week. As I consider the Office of Sheriff, decidedly, the most influential of any other in the County, and feel the Importance of placing it in proper hands … permit me to suggest my Sentiment.… Among the Competitors for the Office I do most Sincerely hope Capt Peter B Ten Broeck may have it.… If you consider this Appointment, civilly, and politically, of as much Consequence as I do … you will not fail bringing into the View of the President of the Council my Judgt. upon this point….”


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 20 September 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

[New York] Sepr. 20. 1795
My Dear Sir
A slight indisposition prevented my meeting you at E Town which I should otherwise have done with great pleasure.
It is wished for a particular purpose to know who are the Writers of Valerius Hancock Bellisarius Atticus. If any thing about them is known in a manner that can be depended upon I will thank you for it in confidence.
The fever in this Town has become serious. The alarm however exceeds the quantum of disease & danger. It is not ascertained that the fever is contagious. It is clearly traced to local causes—but it is sufficiently mortal. Bleeding is found fatal. Most of our physicians purge more or less some with Calomel—I fear more than does good Bark Wine &c plentifully used and with good effect. They however all behave well and shrink not from their duty.
Adieu   Yrs.

A Hamilton

Shew the last paragraph of this letter to Doctor Stevens from whom though I have written to him I have not received a line since I came to NYork.


Title: The Defence No. XVII, [22 September 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, September 22, 1795]

The VIII article provides merely that the Commissioners to be appointed in the three preceding articles shall be paid in such manner as shall be agreed between the parties at the time of the exchange of the “Ratification of the Treaty, and that all other expenses attendingthe Commissions shall be defrayed jointly by the two parties the same being previously ascertained and allowed by a Majority of the Commissioners, and that in case of death sickness or necessary absence of a Commissioner, his place shall be supplied in the same manner as he was first appointed, the new Commissioner to take the same oath or affirmation and to perform the same duties as his predecessor.
Could it have been imagined that even this simple & equitable provision was destined not to escape uncensured? As if it was predetermined that not a single line of the Treaty should pass as guiltless—nothing less than an infraction of the constitution of the U States has been charged upon this article. It attempts we are told a disposition of public money unwarranted by and contrary [to] the Constitution. The examination of this wonderfully sagacious objection with others of a similar complexion must be reserved for the separate discussion which has been promised of the constitutionality of the Treaty.
Let us proceed for the present to the IXth. article.

This article agrees that British subjects who now hold lands in the territories of the UStates and American Citizens who now hold lands in the dominions of his Britannic Majesty shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant sell or devise the same to whom they please in like manner as if they were natives; and that neither they nor their heirs or assigns so far as may respect the said lands and the legal remedies incident thereto be regarded as aliens.
The misapprehension of this article which was first ushered into public view in a very incorrect and insidious shape and was conceived to amount to the grant of an indefinite and permanent right to British subjects to hold lands in the U States did more, it is believed, to excite prejudices against the Treaty, than any thing that is really contained in it. And yet when rightly understood it is found to be nothing more than a confirmation of those rights to lands, which prior to the Treaty the laws of the several states allowed British subjects to hold; with this inconsiderable addition perhaps, that the heirs and assigns of those persons, though aliens, may hold the same lands: But no right whatever is given to any lands of which our laws did not permit and legalise the acquisition.
These propositions will now be elucidated.
The term hold in the legal code of Great Britain & of these states has the same and that a precise technical sense. It imports a capacity legally and rightfully to have and enjoy real estate and is contradistinguished from the mere capacity of taking or purchasing, which is sometimes applicable to the acquisition of a thing that is forfieted by the very act of acquisition. Thus an alien may take real estate by purchase but he cannot hold it. Holding is synonymous with tenure which in the feudal system implies fealty of which an alien is inincapable. Land therefore is forfieted to The Government the instant it passes to an alien. The Roman law nullifies the contract intirely, so that nothing passes by the grant of land to an alien but our law derived from that of England permits the land to pass for the purpose of forfieture to the State. This is not the case with regard to descent, because the succession or transmission there being an act of law, and the alien being disqualified to hold, the law consistent with itself casts no estate upon him.
The following legal authorities selected from an infinite number of similar import establish the above positions.
Coke on Lyttleton Page 2. 3. “Some men have capacity to purchase but not ability to hold. Some capacity to purchase and ability to hold or not to hold, at the election of themselves and others. Some capacity to take and to hold. Some neither capacity to take nor to hold. And some specially disabled to take some particular thing. If an alien Christian or Infidel purchase houses lands tenements or hereditaments to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee simple but not to hold.” The same, Page 8 “If a man seized of lands in fee hath issue an alien he cannot be heir propter defectum subjectionis.” Blackstones Commentaries Book II Ch: 18 § 2 No. 2 “Alienation to an alien is a cause of forfieture to the crown of the lands so alienated, not only on account of his incapacity to hold them but likewise on account of his presumption in attempting by an act of his own to acquire real property.” Idem Ch 19 § 1 “The case of an alien born is also peculiar. For he may purchase a thing but after purchase he can hold nothing except a lease for years of a house for the convenience of merchandize.”
Thus it is evident, that by the laws of England which it will not be denied agree in principle with ours, an alien may take but cannot hold lands.
It is equally clear, that the laws of both countries agreeing in this particular the word hold used in the article under consideration must be understood according to those laws and therefore can only apply to those cases in which there was a legal capacity to hold, those in which our laws permitted the subjects and citizens of the two parties to hold lands in the territories of each other.

Whatever lands therefore may have been purchased by any British subject since the Treaty of Peace which the laws of the State wherein they were purchased did not permit him to acquire and hold are intirely out of the protection of the article under consideration. The purchase will not avail him. The forfieture which was incurred by it is still in full force. As to those lands which the laws of a State allowed him to purchase & hold he owes his title to them not to the Treaty.
Let us recur to the words of the article. “British subjects who now hold lands shall continue to hold them according to the nature and tenure of their respective estates and titles therein.” But it has been seen that to hold lands is to own them in a legal and competent capacity and that an alien has no such capacity. The lands therefore which by reason of the alienage of a British subject he could not prior to the Treaty legally purchase and hold, he cannot under the Treaty continue to hold.
As if it was designed to render this conclusion palpable the provision goes on to say “according to the nature and tenure of their respective estates and titles therein.” This is equivalent to saying, they shall continue to hold as they before held. If they had no valid estate or title before they will of course continue to have none. The expressions neither give any new nor enlarge any old estate.
The succeeding clauses relate only to descents or alienations of the land originally legally holden. Here the disability of alienage is taken away from the heirs and assigns of the primitive proprietors.
While this will conduce to private justice by enabling the families and friends of the individuals to enjoy their property by descent or devise, which it is presumeable was the main object of the provision, there is no consideration of national policy that weighs against it. If we admit the whole force of the argument which opposes the expediency of permitting aliens to hold lands, (& concerning which I shall barely remark here that it is contrary to the practice of several of the states and to a practice from which some of them have hitherto derived material advantages) the extent to which the princeple is affected by the present Treaty is too limitted to be felt: and in the rapid mutations of property it will every day dimish. Every alienation of a parcel of the privileged land to a citizen of the U States will as to that land put an end to the future operation of the privilege, and the lapse of no great number of years may be expected to make an intire revolution in the property, so as to divest the whole of the privilege.
To manifest the unreasonableness of the loud and virulent clamour which was raised against this article, it has been observed by the friends of the Instrument that Our Treaty with France not only grants a much larger privilege to the citizens of France but goes the full length of removing universally and perpetually from them the disability of alienism as to the ownership of lands. This position has been flatly denied by some of the writers on the other side. Decius in particular after taking pains to shew that it is erroneous, that the terms “goods moveable and immoveable” in the article of our Treaty with France mean only Chattels real and personal in the sense of our law, and exclude a right to the freehold or inheritance of lands, triumphantly plumes himself on the detection of a fallacy of the Writer of certain “Candid Remarks on the Treaty” who gives the interpre[t]ation above stated to that article.
The error of Decius’s interpretation proceeds from a misunderstanding of the term goods in the English translation of the article, to which he annexes the meaning assigned to that term in our law, instead of resorting as he ought to have done to the French laws for the true meaning of the correspondent term “biens” which is that used in the French original. Goods in our law no doubt mean chattel —interests—but goods or “biens” in the French law mean all kinds of property real as well as personal. It is equivalent to and derived from the term bona in the Roman law answering most nearly to “estates” in our law & embracing inheritances in land, corporeal and incorporeal hereditaments as well as property in moveable things. When it is necessary to distinguish one species from another it is done by the adjective “biens meubles et immeubles” answering to bona or res mobilia et immobilia, things moveable and immoveable, estates real and personal. The authorities at foot·

   Justinians Institutes Lib III Tit: X. XI. XII. XIII Lib IV Tit: II Domats’ Civil & Public Law Prel: Book  Tit: III Sect: I. II Book IV Sect I

 will shew the analogy of these different terms in the three languages. But for fixing the precise sense of those used in the Treaty, I have selected and shall quote two authorities from French books which are clear and conclusive on the point. One will be found in the work of a French Lawyer intitled Collections De Decisions Nouvelles Et De Notions Relatives A La Jurisprudence Actuelle under the Article Biens—and is in these words (viz) “The word bien has a general signification and comprehends all sorts of possessions, as moveables, immoveables, purchases, acquisitions by marriage inheritances &c. It is distinguished into these particulars, moveables and immoveables purchases and inheritances, subdividing inheritances into paternal and maternal old and new. Moveable biens are those which may be moved and transported from one place to another as wares merchandizes and current mony, plate, beasts household utensils &c. Immoveable biens are those which cannot be moved from one place to another as inheritances houses &c. Biens are distinguished again into corporeal and incorporeal” Another is drawn from the celebrated institutes of the French law by Mr. Argou & is in these words “Biens—This is in general whatever composes our riches. There are two sorts of biens, moveable and immoveable—Moveable, all that may be transported from one place to another—Immoveable, lands or what are presumed to have the nature of lands. They are distinguished into two kinds real and fictitious. Real are not only the substance of the earth, which is called Fonds, but all that adheres to its surface, whether from nature, as Trees, or from the hand of man, as houses and other buildings. The others are called fictitious, because they are only real by fiction, as offices which are vendible & subject to fiscal reversions rent charges &c.” The signification of bona in the Roman law corresponds as was observed above with that of biens in the French. ““Bonorum appellatio universitatem quandam et non singulas res demonstrat” which may be thus rendered “The appellation bona designates the totality of property or estate, and not particular things” and hence it is that the cessio bonorum of a debtor is the surrender of his whole fortune.
Both these terms “bona” and “biens” are indiscriminately translated “goods”, estates effects property.

   See authorities before cited.

   See also Puffendorf Book VIII Ch V § VIII. Grotius Book III Chap V § XI. XII Vatel Book I Chap XX § 245 246. 247.

 In our treaty with France they are translated “goods.” But it is evidently a great mistake to understand the expression in the limitted sense of our law. Being a mere word of translation, it must be understood according to the meaning of the French text. For it is declared in the conclusion of the Treaty, that it was originally composed and concluded in the French tongue. Moreover the term goods, when used in our language as the equivalent of the term bona or biens is always understood in the large sense of the original terms; in other words as comprehending real and personal estate, inheritances as well as chattel interests.
Having now established the true meaning of the terms “goods moveable and immoveable” let us proceed with this guide to a review of the article.
Its first and principal feature is “that the subjects and inhabitants of the United States or of any of them shall not be reputed aubains in France.”
This is the same as if it had been said “they shall not be reputed aliens”— For the definition of aubains as given in the work before first cited is this “aubains are persons who are not born under the dominion of the King”—the exact equivalent of the definition of alien in the English law. If our citizens are not to be reputed aliens in France, it follows that they must be exempt from alien disabilities and must have the same rights with natives as to acquiring conveying and succeeding to real and other estate.
Accordingly the Article having pronounced that our citizens shall not be reputed aliens in France proceeds to draw certain consequences. The first is that they shall not be subject to the droit d’aubaine. The droit d’aubaine was under the monarchy one of the regalia—it was the right of the Prince to succeed to all estates or property, situate in the kingdom, belonging to foreigners who died without legitimate children born in the Kingdom.
It is to be observed that the laws of France permitted foreigners to acquire and hold even real estate, subject to this right of the sovereign in case of demise without issue born under his allegiance. But this right of the sovereign as to American Citizens is abrogated by the Treaty, so that their legal representatives wherever born, may succeed to all the property real or personal, which they may have acquired in France.
And in conformity with this, it is further declared that they may by testament donation or otherwise dispose of their goods moveable and immoveable (that is as we have seen their estates real and personal) in favour of such persons as to them shall seem good and that their heirs, subjects of the U States, whether residing in France or elsewhere may succeed to them ab intestato without being obliged to obtain letters of naturalization &c.
These are the stipulations on the part of France, and they amount to a removal from the citizens of the U States of alien disabilities as to property. I say as to property, because as to civil and ecclesiastical employments it seems to have been a principle of the French law that the incapacity of foreigners could only be removed by special dispensations directed to the particular object.
What are the correlative stipulations on the part of the U States. They are in these terms. “The subjects of the most Christian King shall enjoy on their part in all the dominions of the said States an entire and perfect reciprocity relative to the stipulations contained in this article, but it is at the same time agreed that its contents shall not affect the laws made or that may be made hereafter in France against emigrations, which shall remain in all their force and vigour, and the U States on their part or any of them shall be at liberty to enact such laws relative to that matter as to them shall seem proper.”
Since then the article removes from our citizens the disabilities of aliens as to property in France, and stipulates for her citizens an intire and perfect reciprocity in the UStates, it follows that Frenchmen are equally exempt in the U States from the like disabilities. They may therefore hold, succeed to, and dispose of real estates.
It appears that the sense both of the French and of the American Government has corresponded with this construction.
In the year 1786, the Marquis Bellegarde & The Chevalier Meziere sons of the two sisters of General Oglethorpe, who claimed the lands of the General in Georgia, represented to the Count De Vergennes, the French Minister for foreign affairs, that they met with impediments to their claims from the laws of Georgia prohibiting aliens to hold lands. Mr. Vergennes communicated their complaint to Mr. Jefferson our then Minister in France, observing that the alien disabilities of the complainants having in common with those of all Frenchmen been removed by the Treaty between the two Countries, they ought to experience no impediment on that account—in the succession to the estate of their uncle, and that the interfering laws of Georgia ought to be repealed so as to agree with the Treaty.
Mr. Jefferson in reply states the case of the complainants, proving that they are precluded from the succession for other reasons than that of alienism; and then adds, that as the Treaty with France has placed the subjects of France in the U States on a footing with natives as to conveyances and descents of property, there is no necessity for the assemblies to pass laws on the subject, the Treaty being a law, as he conceives, superior to those of particular assemblies and repealing them when they stand in the way of its operation.

Where now Decius is thy mighty Triumph? Where the trophies of thy fancied Victory? Learn that in political as in other science

“Shallow draughts intoxicate the brain—
And drinking largely sobers us again.”

The fixing the true sense of the article in the Treaty with Great Britain is alone a refutation of most of the objections which have been made to it by shewing that they apply not to what really exists but to a quite different thing. It may be useful however to pass them briefly in review with some cursory remarks.
The article, it is said, infringes the rights of the states & impairs the obligation of private contracts, permits aliens to hold real estates against the fundamental policy of our laws, and at the hazard of introducing a dangerous foreign influence—is unequal, because no American has been hardy enough since the peace to purchase land in England, while millions of acres have been purchased by British subjects in our country with knowlege of the risk—is not warranted by the example of any other Treaty we have made, for if even that of France should contain a similar provision (which is denied) still the difference of circumstances would make it an inapposite precedent, since this was a Treaty made flagrante bello, in a situation which justified sacrifices.
These objections have been formally and explicitly urged. One writer afraid of risking a direct assertion but insidiously endeavouring to insinuate misconception, contents himself with putting a question. What (says he) will be the effect of this article as to the revival of the claims of British subjects, traitors or exiles?
As to the infraction of the rights of the states, this it is presumed must relate to the depriving them of forfietures of alien property. But as the article gives no right to a British subject to hold any lands, which the laws of a state did not previously authorise him to hold, it prevents no forfieture to which he was subject by them, and consequently deprives no state of the benefit of any such forfieture. With regard to escheats, for want of qualified heirs, it depended on every proprietor to avoid them by alienation to citizens.

As to impairing the obligation of private contracts it is difficult to understand what is meant. Since land purchased by an alien passes from the former proprietor & becomes forfieted to the State can it be afterwards the subject of a valid private contract? If the effect of the article was to confirm a defective title derived from the alien how could this impair the obligation of any other private contract concerning it? But whatever may be intended, it is enough to say that the article does not confirm the title to any land which was not before good, so that the ground of the objection fails.
As to permitting aliens to hold land contrary to the policy of our laws; it has been shewn that on a true construction it only applies to the very limitted case of the alien heirs and assigns of persons who before rightfully held lands, and is confined to the identical lands so previously holden, that its greatest effect must be insignificant, and that this effect will continually decrease.
As to the millions of acres said to have been purchased by British subjects, since the peace; it has been shewn that if by the laws of the States in which the purchases were made, they were illegally acquired, they still remain in the situation in which they were before the Treaty.
As to there being no precedent of a similar stipulation with any other country; it has been proved that with France we have one much broader. The idea that this was a sacrifice to the necessity of our situation flagrante bello, is new. Are we then to understand that we in this instance gave to France as the price of her assistance a privilege in our Country which leads to the introduction of a foreign influence dangerous to our independence and prosperity? For to this result, tends the argument concerning the policy of the exclusion of aliens. Or is it that no privilege granted to France can be dangerous?
Those who are not orthodox enough to adopt this last position may nevertheless tranquillise themselves about the consequences. This is not the channel through which a dangerous foreign influence can assail us. Notwithstanding all that has been said, it may perhaps bear a serious argument whether the permission to foreigners to hold lands in our country might not by the operation of private interest give us more influence upon foreign countries than they will ever acquire upon us from the holding of those lands. Be this as it may, could we not appeal to some good patriots, as they stile themselves by way of eminence for the truth of the observation that foreign Governments have more direct and powerful means of influence than can ever result from the right in question?
Moreover there was a peculiar reason for the provision which has been made in our last treaty not applicable to any Treaty with another Country. The former relative situation of the U States and Great Britain led to the possession of lands by the citizens of each in the respective territories. It was natural & just to secure by Treaty their free transmission to the heirs & assigns of the parties.
As to the revival of the claims of traitors or exiles; if property confiscated and taken away, is property holden by those who have been deprived of it, then may there be ground for alarm on this score. How painful is it to behold such gross attempts to deceive a whole people on so momentous a question! How afflicting that imposture and fraud should be so often able to assume with success the garb of Patriotism! And that this sublime virtue should be so frequently discredited by the usurpation & abuse of its name.

Camillus


Title: To Alexander Hamilton from Oliver Wolcott, Junior, 26 September 1795
From: Wolcott, Oliver, Jr.
To: Hamilton, Alexander

Private
Phila. Sepr. 26. 1795
My dear Sir

I have recd. you Letter of the 20th. and regret the cause which deprived me of the pleasure of seeing you.
Nothing is known of the authors to which you allude. The “Features of the Treaty” were doubtless painted by Dallas. Doctrs. Logan & Leib, Bache, Beckley, T. L. Shippen, are much suspected—S. Sayre of New Jersey is I understand very violent—perhaps the avowed intemperance of these men against the government is the only evidence against them. I can furnish no direct proof.
Mr. Randolph has published a preface which you have seen, this is the opening of a new & very extraordinary campaign—perhaps you know something of the cause of his hostility. I consider Mr. R. as perfectly desperate & malignant. He will do all the mischief in his power. His long acquaintance with our affairs—the predominating influence which he has possessed in those which concerned his own Department & his skill in misrepresentation furnish him with important advantages. Dallas is Councillor in all his Councils, and will of course prune away many indiscretions & render a bad cause as plausible as the nature of it will admit. I rely however upon the sense & virtue of the public, & trust that the truth will prevail.
The public affairs are certainly in a critical state. I do not clearly see how those of the Treasury are to be managed. Our foreign resources are dried up—our domestic are deeply anticipated at least as respects the Bank. Banks are multiplying like mushrooms—the prices of all our Exports are enhanced by paper negociations, and unfounded projects so that, no foreign market will indemnify the Shippers—our Commerce is harrased by the war & our internal resources unproductive of the expected sums, owing to prejudice, combination, & the want of competent officers. Usury absorbs much of that Capital, which might be calculated upon as a resource if visionary speculations could be destroyed.
You know however that I shall do the best in my power, & that intimations from you will always be thankfully recd.
I am assuredly yrs.

Oliv Wolcott Jr.
Colo. Hamilton


Title: From Alexander Hamilton to Robert Morris, 6 October 1795
From: Hamilton, Alexander
To: Morris, Robert

[New York, October 6, 1795. On October 8, 1795, Morris wrote to Hamilton: “I have received your letter of the 6th.” Letter not found.]


Title: To Alexander Hamilton from Oliver Wolcott, Junior, 6 October 1795
From: Wolcott, Oliver, Jr.
To: Hamilton, Alexander

Dear Sir (Private)
Phila. Oct. 6. 1795

I will in a few days inform you of the facts upon which my former Letter was predicated.
The inclosed case of the Betsey Capt. Furlong excites much alarm here & I think with reason: the same principles will extirpate nine tenths of our claims for spoliations & lead to new assaults upon our Commerce.
I wish to know your opinion of the mode of proceeding under the 7th. Article of our Treaty with England. Must all cases go through a process of litigation before the English Courts, before they are submitted to Commissioners? If so, for what purpose? Is the “legality or illegality the regularity or irregularity” of a capture to be determined solely in those Courts? Or will the Commissioners take up claims de novo. This is an interesting question for there is now little doubt, but that the Commissioners of Appeals, will affirm most of the judgments of condemnation.
My doubt on this subject principally arises, from finding, that the 6th. article provides for the British debts in the same manner as the 7th. provides for the spoliation cases & moreover defines the cases to be those where relief cannot be had in the ordinary course of judicial proceedings. Now it appears to me that it would be a very dilatory expensive & unnecessary process to compel an Englishman to travel through our Courts merely to ascertain that they could not do him justice, & to prepare his case for the Commissioners. The same objections exist against a similar operation in the British Courts of Admiralty. Is it not therefore the meaning of the Treaty, that Commissioners shall settle both descriptions of claims & award compensation according to principles of equity? And if this is the case, why is Mr. Bayard trying questions which are decided against him, at an expence which he estimates may amount to 75.000 £ Sterling.
I must own I do not see through this business, & though you may think it strange, I beg you to remember that I knew nothing concerning the Treaty ’till lately, & cannot devote much time to it without sacraficing objects more immediately in the line of my duty.
The fact is, that the old doctrines of inalienable allegiance, & that Neutrals may not in time of War carry on a Commerce inhibited in time of Peace,
   also the new doctrine that places can be blockaded by proclamation.
  are to be advanced against the United States, & from present appearances, they will govern the Courts of Admiralty. The effects which these principles will have, I need not state to you—if all this subject cannot be taken up by Commissioners & compromised equitably, the discussion of the Claims, will work infinite mischief. I wish therefore to see some way in which Mr. Bayards agency at the British Courts might be arrested.
Mr. Fauchet made no overtures relative to a Treaty of any kind. Mr. Adet says he is authorised to digest a new Treaty of Commerce & a new Consular Convention but not to conclude. Mr. Randolph agreed to meet him on this ground, but nothing has been done that I know of.
I know nothing of dispatches; the French Minister is reserved; he thinks more than he expresses, & his expressions breath something of disatisfaction. We are I think in no very good way, but must make the best of circumstances. What you say of efficiency is true, but there are no materials to be efficient with. Colonel Pickering & myself are perfectly agreed & he is as firm industrious & intelligent as any body could wish—there is however a mass of business, & few of that class of men in the public service who understand details & endeavour to keep things in order. Even our able Clerks cannot be retained—several have actually gone.
Be pleased to present my respects to Mrs. Hamilton & believe me ever yours
Oliv. Wolcott.
Col A. Hamilton

N B. I have found your Ordinnance de la Marine, but have no way to send it.


Title: To Alexander Hamilton from Robert Morris, 8 October 1795
From: Morris, Robert
To: Hamilton, Alexander

Phila 8 Octo. 1795
Alexander Hamilton EsqreNew York
Dear Sir

I have received your letter of the 6th at a moment when I am extreamly hurried in preparing letters Papers &ca. &ca. for the Dispatch of my Son in Law James Marshall Esqr for Europe. My Daughter goes with him and they expect to Sail on Sunday. I must therefore pray your Excuse untill they are gone when I will take up the Subject of your letter I expect to your satisfaction notwithstanding the pressure of the times.
Yrs.

RM


Title: From Alexander Hamilton to James Greenleaf, 9 October 1795
From: Hamilton, Alexander
To: Greenleaf, James

Sir
New York October 9. 1795

You request my opinion of your title to the lands lately purchased by you of James Gunn and his Associates called the Georgia Company. I wish it was more in my power than it is to give you one embracing the whole subject, but never having had an opportunity of examining the title of the state of Georgia, I can pronounce nothing on that head. I can only say that from all that came under my observation, in the course of the transaction between you and Messrs. Prime and Ward, acting as their counsel—I have drawn this conclusion, that if Georgia at the time of the grant to Messieurs Gun & Company; was in capacity to make a valid title to them, your title to the lands you have purchased from them is then also valid. In saying this, I take for granted the execution of the measures, which I was informed were in train for completing the payment of the consideration money to Georgia and cancelling the mortgage; and I must be understood as only speaking of the right of preemption, with regard to all such lands as may not have been regularly acquired from the Indians, of which alone Georgia could have power to dispose
With esteem I am Sir   Your Obed servant
James Greenleaf Esq


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 13 October 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

New York October 13. 1795.
Dr. Sir

I have received your letter of the 6 instant.
I am of opinion that the Commissioners to be appointed under the 7th article 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. 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 Agent be instructed to lay all the cases, with the evidence, before our Counsel; 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

A Hamilton
Oliver Wolcott Esq

In a consultation on insurance case between our district attorney Mr Burr B: Livingston & myself the above points incidentally occurred—and I understood all these Gentlemen as agreeing the opinion I have stated. You are at liberty to communicate this to Mr. Pickering.


Title: The Defence No. XIX, [14 October 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, October 14, 1795]

The objects protected by the 10th. article are classed under four heads,   1   debts of individuals to individuals   2   property of individuals in the public funds   3   property of individuals in public banks   4   property of individuals in private banks. These, if analised, resolve themselves, in principle, into two discriminations—(viz) private debts & private property in public funds. The character of private property prevails throughout. No property of either Government is protected from confiscation or sequestration by the other. This last circumstance merits attention, because it marks the true boundary.
The propriety of the stipulation will be examined under these several aspects—the right to confiscate or sequester private debts or private property in public funds on the ground of reason and principle—the right, as depending on the opinions of jurists and on usage—the policy and expediency of the practice—the analogy of the stipulation with stipulations in our other treaties—and in treaties between other Nations.
First, as to the right on the ground of reason and principle.
The general proposition on which it is supported is this—“That every individual of a nation with whom we are at war wheresoever he may be is our enemy and his property of every kind and in every place liable to capture by right of War.”
The only exception admitted to this rule respects property within the jurisdiction of a Neutral State; but the exemption is referred to the right of the neutral nation not to any privilege which the situation gives to the enemy Proprietor.
Reason, if consulted, will dictate another exception. This regards all such property as the laws of a country permit foreigners to acquire within it, or to bring into it. The right of holding or having property in a country always implies a duty on the part of its Government to protect that property and to secure to the owner the full enjoyment of it. Whenever therefore a Government grants permission to foreigners to acquire property within its territories or to bring & deposit it there, it tacitly promises protection and security. It must be understood to engage, that the foreign proprietor, as to what he shall have acquired or deposited, shall enjoy the rights privileges and immunities of a native proprietor—without any other exceptions than those which the established laws may have previously declared. How can any thing else be understood? Every state, when it has entered into no contrary engagement, is free to permit or not to permit foreigners to acquire or bring property within its jurisdiction, but if it grant the right, what is there to make the tenure of the foreigner different from that of the native, if antecedent laws have not pronounced a difference? Property as it exists in civilized Society, if not a creature of, is at least regulated and defined by, the laws. They prescribe the manner in which it shall be used, alienated, or transmitted—the conditions upon which it may be held preserved or forfieted. Tis to them we are to look for its rights limitations and conditions. No condition of enjoyment, no cause of forfieture, which they have not specified can be presumed to exist. An extraordinary discretion to resume or take away the thing, without any personal fault of the proprietor is inconsistent with the notion of property. This seems always to imply a contract between the Society and the individual, that he shall retain and be protected in the possession and use of his property so long as he shall observe and perform the condition, which the laws have annexed to the tenure. It is neither natural nor equitable to consider him as subject to be deprived of it for a cause foreign to himself especially for one which may depend on the volition or pleasure even of the very government to whose protection it has been confided: For the proposition, which affirms the right to confiscate or sequester, does not distinguish between offensive or defensive war, between a war of ambition on the part of the power which exercises the right or a war of self preservation against the assaults of another.
The property of a foreigner placed in another country by permission of its laws may justly be regarded as a deposit, of which the Society is the Trustee. How can it be reconciled with the idea of a trust to take the property from him when he has personally given no cause for the deprivation?
Suppose two families in a state of nature, and that a member of one of them had by permission of the head of the other placed in his custody some article belonging to himself—and suppose a quarrel to ensue between the two heads of famil⟨ies⟩ in which the member had not participated by his immediate counsel or consent. Would not natural Equity declare the seizure and confiscation of the deposited property to be an act of perfidious rapacity?
Again—Suppose two neighbouring nations, which had not had intercourse with each other, and that one of them opens its ports and territories for the purpose of commerce to the Citizens of the other, proclaiming free and safe ingress and egress—suppose afterwards a war to break out between the two nations and the one, which had granted that permission to seize and convert to its own use the goods and credits of the Merchants of the other within its dominion. What sentence would Natural Reason, unwarped by particular dogmas, pronounce on such conduct? If we abstract ourselves from extraneous impressions, and consult a genuine moral feeling, we shall not doubt that the sentence would inflict all the opprobrium and infamy of violated faith?
Nor can we distinguish either case in principle from that which constantly takes place between nations that permit a commercial intercourse with each other whether with or without national compact. They equally grant a right to bring into and carry out of their territories the property which is the subject of the intercourse, a right of free and secure ingress and egress, and in doing this they make their territories a sanctuary or asylum which ought to be inviolable, and which the spirit of plunder only could have ever violated.
There is no parity between the case of the persons and goods of enemies found in our own country, and that of the persons and goods of enemies found elsewhere. In the former, there is a reliance upon our hospitality and justice, there is an express or an implied safe conduct, the individuals and their property are in the custody of our faith, they have no power to resist our will—they can lawfully make no defence against our violence—they are deemed to owe a temporary allegiance, and for endeavouring resistance would be punished as criminals; ⟨a cha⟩racter inconsistent with that of [an] enemy. To make them a prey is therefore to infringe every rule of generosity and equity—it is to add cowardice to treachery. In the latter case, there is no confidence whatever reposed in us—no claim upon our hospitality, justice, or good faith—there is the simple character of enemy, with intire liberty to oppose force to force. The right of war consequently to attack and seize whether to obtain indemnification for an injury received—to disable our enemy from doing us further harm—to force him to reasonable terms of accommodation—or to repress an overbearing ambition—exists in full vigour—unrestrained and unqualfieid by any trust or duty on our part. In pursuing it though we may inflict hardships, we do not commit injustice.
Moreover: the property of the foreigner within our country may be regarded as having paid a valuable consideration for its protection and exemption from forfieture. That which is brought in commonly enriches the Revenue by a duty of entry. All that is within our territory, whether acquired there or brought there, is liable to contributions to the Treasury in common with other similar property. Does there not result an obligation to protect that which contributes to the expence of its protection? Will Justice sanction, upon the breaking out of a War, the confiscation of a property, which during peace serves to augment the resources and nourish the prosperity of a State?
The principle of the proposition gives an equal right to subject the person as the property of the foreigner to the rigours of War. But What would be thought of a Government which should seize all the subjects of its enemy found within its territory and commit them to durance as prisoners of War? Would not all agree that it had violated an asylum which ought to have been sacred, that it had trampled upon the laws of hospitality and civilization that it had disgraced itself by an act of cruelty and barbarism?
   Note All that [can] rightfully be done is to oblige the foreigners who are subjects of our enemy to quit our country.
 Why would it not be equally reprehensible to violate the asylum which had been given to the property of those foreigners?
Reason left to its own lights would answer all these questions in one way, and would severely condemn the molestation on account of a national Contest as well of the property as person of a foreigner found in our country, under the permission and guarantee of the laws of previous amity.
The case of property in the public funds is still stronger than that of private debts. To all the sanctions which apply to the latter it adds that of an express pledge of the public faith to the foreign holder of Stock. The constituting of a public debt or fund, transferrable without limitation or distinction, amounts to a promise to all the world, that whoever, foreigner or citizen, may acquire a title to it, shall enjoy the benefit of what is stipulated. Every transferree becomes by the act of transfer the immediate proprietor of the promise. It enures directly to his use, and the foreign promisee no more than the native can be deprived of that benefit, except in consequence of some act of his own, without the infraction of a positive engagement.
Public debt has been truly defined “A property subsisting in the faith of Government.” Its essence is promise. To confiscate or sequester it is emphatically to rescind the promise given, to revoke the faith plighted. It is impossible to separate the two ideas of a breach of faith, and the confiscation or sequestration of a property subsisting only in the faith of the Government by which it is made.
When it is considered that the promise made to the foreigner is not made to him in the capacity of member of another Society, but in that of citizen of the world, or of an individual in a state of nature—the infraction of it towards him, on account of the fault real or pretended of the Society to which he belongs, is the more obviously destitute of colour. There is no real affinity between the motive and the consequence. There is a confounding of relations. The obligation of a contract can only be avoided by the breach of a condition express or implied, which appears or can be presumed to have been within the contemplation of both parties or by the personal fault or crime of him to whom it is to be performed. Can it be supposed that a citizen of one Country would lend his money to the Government of another, in the expectation that a war between the two countries, which without or against his will might break out the next day, could be deemed a sufficient cause of forfieture?
The principle may be tested in another way. Suppose one Government indebted to another in a certain sum of money and Suppose the creditor Government to borrow of a citizen of the other a less sum of money. When he came to demand payment, would justice, would good faith permit the opposing to his claim by way of set off the debt due from his Government? Who would not revolt at such an attempt? Could not the individual Creditor answer with conclusive force that in a matter of contract he was not responsible for the Society of which he was a member and that the debts of the Society were not a proper set off against his private claim?
With what greater reason could his claim be refused on account of an injury which was a cause of War received from his sovereign, and which had created on the part of the sovereign a debt of reparation? It were certainly more natural and just to set off a debt due by contract to the citizen of a foreign Country against a debt due by contract from the sovereign of that country—than to set it off against a claim of indemnification for an injury or aggression of which we complain, and of which the reality or justice is seldom undisputed on the other side.

The true Rule which results from what has been said, and which reason sanctions, with regard to the right of capture is this “It may be exercised every where except within a neutral jurisdiction
   There are exceptions to this exception; but they depend on special circumstances which admit the principal exception, and need not be particularized.
 or where the property is under the protection of our own laws” and it may perhaps be added that it always supposes the possibility of rightful combat—of attack and defence—These exceptions involve [no refinement—they depend on obvious considerations, and are agreeable to common sense and to nature—the spontaneous feelings of equity accord with them. It is indeed astonishing that a contrary rule should have been countenanced by the opinion of any jurist, or by the practice of any civilized nation.
We shall see in the next number how far either has been the case, and what influence it ought to have upon the question. Camillus.]


Title: From Alexander Hamilton to George Washington, 16 October 1795
From: Hamilton, Alexander
To: Washington, George

Sir
New York October 16. 1795

About a fortnight since arrived here Mr. Fristel with G W. Fayette son of the Marquis. The former, who is in capacity of Tutor to the latter, requested me to mention their arrival to you, and that they meant to retire to some place in the neighbouring country ’till they should receive some direction from you. Thus at least I understood him—and accordingly they are gone to a house between Hackensack & Ramapough in the Jerseys to which may be conveyed any letter you may confide to me for them. They are incog.
Having been informed you were speedily expected from Philadelphia & being oppressed with occupation I delayed writing till this time.
Mr. Fristel, who appears a very sedate discreet man, informs me that they left France with permission, though not in their real characters, but in fact with the privity of some members of the Committee of safety who were disposed to shut their eyes and facilitate their departure.
The young Fayette also appears to me very advantageously, modest, of very good manners, and expressing himself with intelligence and propriety.
Shall I trespass on your indulgence in hazarding a sentiment upon the subject of this young Gentleman? If I do let it be ascribed to the double interest I take in a son of the Marquis and in whatever interests the good fame and satisfaction of him to whom I write.
On mature reflecti⟨on⟩ and on sounding opinions, as far as opportunity & the nature of the case have permitted, I fully believe that the President need be under no embarrassment as to any good offices his heart may lead him to perform towards this young man. It will not, I am persuaded, displease those in possession of the power of the Country from which he comes, and in ours it will be singularly and generally grateful. I am even convinced that the personal and political enemies of the President would be gratified should his ideas of the policy of the case restrain him from that conduct which his friendship to the Marquis and his feelings otherwise would dictate. The Youth of this person joined to the standing of his father make the way easy.
I even venture to think it possible that the time is not very remote when the Marquis will again recover the confidence and esteem of his Country when perhaps the men in power may be glad to fortify themselves and their cause with his alliance. This however is supposition merely to be indulged as a reflection not to be counted upon as a fact.
There is another subject upon which I will hazard a few words. It is that of Mr. Randolph. I have seen the intercepted letter, which I presume led to his resignation. I read it with regret, but without much surprise for I never had confidence in Mr. Randolph, and I thought there were very suspicious appearances about him on the occasion to which the letter particularly refers.
I perceive that rendered desperate himself he meditates as much mischief as he can. The letter he calls for I presume is that above alluded to. His object is, if he obtains it, to prejudice others—if any part is kept back, to derive advantage to his cause from the idea, that there may be something reserved which would tend to his exculpation and to produce suspicion that there is something which you are interested to keep from the light.
Though from this state of public prejudices I shall probably for one be a sufferer by the publication; yet upon the whole I incline to the opinion that it is most adviseable the whole should come before the public. I acknowlege that I do not express this opinion without hesitation and therefore it will deserve as it will no doubt engage your mature reflection but such is the present byass of my judgment. I am the more inclined to the opinion as I presume that the subject being in part before the public, the whole letter will finally come out through the quarter by which it was written, and then it would have additional weight to produce ill impressions.
With great respect & Affectionate attachment I have the honor to be Sir Yr. very obed ser

A Hamilton
The President of The UStates


Title: From Alexander Hamilton to Abraham Van Vechten, 22 October 1795
From: Hamilton, Alexander
To: Vechten, Abraham Van

New York, October 22, 1795. “In a letter by the last Post I mentioned that I should take the liberty to send you the papers for levying a fine Leonard Ganseevort against Gerrit Boon. They are now herewith sent….”