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Subject Area: Political Theory
Topic: The American Revolution and Constitution

questions proposed to be submitted to the judges of the supreme court of the united states - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 5 [1793]

Edition used:

The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 5.

Part of: The Works of Alexander Hamilton, (Federal Edition), 12 vols.

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questions proposed to be submitted to the judges of the supreme court of the united states

Draft by Hamilton.

July, 1793.

  • I.—Do the treaties between the United States and France give to France or her citizens a right, when at war with a Power with whom the United States are at peace, to fit out originally in and from the ports of the United States, vessels armed for war, with or without commissions?
  • II.—If they give such a right, does it extend to all manner of armed vessels, or to particular kinds only? If the latter, to what kinds does it extend?
  • III.—Do they give to France or her citizens, in the case supposed, a right to refit; or arm anew, vessels which, before their coming within any port of the United States, were armed for war, with or without commissions?
  • IV.—If they give such a right, does it extend to all manner of armed vessels, or to particular kinds only? If the latter, to what kinds does it extend? Does it include an augmentation of force, or does it only extend to replacing the vessel in statu quo?
  • V.—Does the 22d Article of the Treaty of Commerce, in the case supposed, extend to vessels armed for war, on account of the government of a Power at war with France, or to merchant armed vessels belonging to the subjects or citizens of that Power, (viz.:) of the description of those which by the English are called letter-of-marque ships—by the French “batiments armés en marchandise et en guerre”?
  • VI.—Do the treaties aforesaid prohibit the United States from permitting, in the case aforesaid, the armed vessels belonging to a Power at war with France, or to the citizens or subjects of such Power, to come within the ports of the United States, there to remain as long as they may think fit, except in the case of their coming in with prizes made of the subjects or property of France?
  • VII.—Do they prohibit the United States from permitting, in the case supposed, vessels armed, on account of the government of a Power at war with France, or vessels armed for merchandise and war, with or without commission, on account of the subjects or citizens of such Power, or any vessels other than those commonly called privateers, to sell freely whatsoever they may bring into the ports of the United States, and freely to purchase in and carry from the ports of the United States, goods, merchandise, and commodities, except as excepted in the last question.
  • VIII.—Do they oblige the United States to permit France, in the case supposed, to sell in their ports the prizes which she or her citizens may have made of any Power at war with her, or of the citizens or subjects of such Power; or exempt from the payment of the usual duties on ships and merchandise, the prizes so made, in the case of their being to be sold within the ports of the United States?
  • IX.—Do those treaties, particularly the Consular Convention, authorize France, as of right, to erect courts within the jurisdiction of the United States for the trial and condemnation of prizes made by armed vessels in her service?
  • X.—Do the laws and usages of nations authorize her, as of right, to erect such courts for such purposes?
  • XI.—Do the laws of neutrality, considered relatively to the treaties of the United States with foreign Powers, or independently of those treaties, permit the United States, in the case supposed, to allow to France or her citizens the privilege of fitting out originally in and from the ports of the United States, vessels armed and commissioned for war, either on account of the government or of private persons, or both?
  • XII.—Do those laws permit the United States to extend the like privilege to a Power at war with France?
  • XIII.—Do the laws of neutrality, considered as aforesaid, permit the United States, in the case supposed, to allow to France or her citizens the privilege of refitting or arming anew vessels which, before their coming within the United States, were armed and commissioned for war? May such privilege include an augmentation of the force of such vessels?
  • XIV.—Do those laws permit the United States to extend the like privilege to a Power at war with France?
  • XV.—Do those laws, in the case supposed, permit merchant vessels of either of the Powers at war, to arm in the ports of the United States, without being commissioned? May this privilege be rightfully refused?
  • XVI.—Does it make any difference, in point of principle, whether a vessel be armed for war, or the force of an armed vessel be augmented, in the ports of the United States, with means procured in the United States, or with means brought into them by the party who shall so arm or augment the force of such vessel? If the first be unlawful, is the second lawful?
  • XVII.—Do the laws of neutrality, considered as aforesaid, authorize the United States to permit to France, her subjects, or citizens, the sale within her ports of prizes made of the subjects or property of a Power at war with France, before they have been carried into some port of France and there condemned, refusing the like privilege to her enemy?
  • XVIII.—Do those laws authorize the United States to permit to France the erection of courts within their territory and jurisdiction, for the trial and condemnation of prizes—refusing that privilege to a Power at war with France?
  • XIX.—If any armed vessel of a Power at war with another with whom the United States are at peace, shall make prize of the subjects or property of its enemy within the territory or jurisdiction of the United States, have not the United States a right to cause restitution of such prize? Are they bound or not by the principles of neutrality so to do, if such prize shall be within their power?
  • XX.—To what distance, by the laws and usages of nations, may the United States exercise the right of prohibiting the hostilities of foreign Powers at war with each other within rivers, bays, and arms of the sea, and upon the sea along the coasts of the United States?
  • XXI.—Have vessels armed for war, under commission from a foreign Power, a right, without the consent of the United States, to engage within their jurisdiction seamen and soldiers, for the service of such vessels, being citizens of that Power, or of another foreign Power, or citizens of the United States?
  • XXII.—Is it lawful for the citizens of such Power, or citizens of the United States, so to engage, being within the jurisdiction of the United States?1

[1]Hamilton objected to a reference to the judges on the ground that the matter was not within the province of the judiciary. Washington, however, in deference to the wishes of Jefferson, decided to make the reference, and so Hamilton framed the series of questions given above. The judges declined to answer, alleging that these were questions of national policy and international relations which could not properly come before them except in the course of the administration of justice.