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

to oliver wolcott - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 10 [1774]

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. 10.

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

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to oliver wolcott

  • New York,

Oct. 3, 1795.

Dear Sir:

I have received your letter of the 6th instant.

I am of opinion that the commissioners to be appointed under the seventh article are competent to grant relief, in all cases of captures and 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:

Firstly.—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. Condemnation 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 recognized by the article itself, in that part which authorizes the commissioners to decide according to the merits of the several cases, to justice, equity, and the law of nations.

Secondly.—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.

Thirdly.—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 commissioners. 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 willful omission, confirm the extensive interpretation.

Fourthly.—The commissioners are not restricted in the description of 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 seemed formed on purpose to overrule any technical difficulties, with regard to local tribunals, or positive rules of decision in those tribunals.

Fifthly.—The nature of the circumstance which led to the article, and which involved a controversy between the 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 Messrs. Lewis 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 and a neutral nation.

This maxim is true, but how can it be deemed to apply to the instance of a controversy between two nations about the interpretation of the laws of nations, and about the 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 definitely 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 and 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 and award damages.

I confess that the opinion referred to appears to me destitute of color; contrary to the antecedent course of the transaction, 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 and 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 course as well from the obstructions of positive regulations of the belligerent parties controlling the courts, and 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 course for any of these reasons. As the tribunals of both parties, they are necessarily superior to the tribunals of either. And they are the judges, in their own way, and upon their own grounds, of the question whether and when justice can or cannot be obtained in the ordinary course.

But they ought to exercise their discretion reasonably—not to abuse it, 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 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.

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