to phineas bond - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 10 [1774]
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The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 10.
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to phineas bond
Sept. 15, 1796.
Sir:
Two days since a letter was delivered to me with a declaration of the bearer that it came from Mr. Lyston. On opening the cover I found nothing except a letter from Captain Cochran (which, though not addressed, would appear to have been written to some public agent of Great Britain) and a declaration of David Wilson and Thomas Marshall respecting the ship Eliza. The superscription of the packet resembling your handwriting, I concluded that it might have come from you, and that by some mistake the letter you had written me had been omitted, and that on discovery of omission it would have been forwarded by another opportunity. Finding after two days’ waiting that the expectation has not been realized, I have determined to write to you on the subject.
Mr. Charles Wilkes had previously applied to me concerning this affair, and had submitted to my consideration various papers. The result was that I discouraged a judicial prosecution. My reasons are these:
Taking it to be true, as stated, that Captain Huffey brought from the shore within our territory persons who, by force, aided him to rescue the captured vessel, I am of opinion that this circumstance would give jurisdiction of the case to our courts on the application of the capturing party.
But when on such application any of our courts should hold jurisdiction, it would in my judgment go into the merits and examine the validity of the capture.
Here these facts occur: that the Eliza, being a transport vessel in the service of Great Britain, was captured by a French privateer fitted out of some port of France by Barney, an American citizen, in quality of armateur—Levelle, probably a Frenchman, captain by commission, and was afterwards condemned as prize by the sentence of a Court of Admiralty at Dunkirk; and, as far as the direct proof goes, purchased in virtue of that sentence by an American citizen.
It is conjectured that two thirds of the vessel may have belonged to a French house—Messrs. De Baques—because it appears that Huffey paid two thirds of the purchase-money in a bill drawn by that house. But this is evidently a mere circumstance of suspicion, and wholly inconclusive. Why may not the De Baques have been factors or agents for Huffey? Why may not Huffey have purchased their draft towards the payment? One or the other of the two latter suppositions would no doubt prevail with the court if there was no collateral proof to the contrary.
It is also conjectured that the Eliza may have continued the property of Barney, but all the documents now in the power of the captor speak a contrary language. This suspicion, then, however just it may be in fact, cannot be supported.
The question then is, would the equipment of the privateer by Barney be sufficient to invalidate the purchase by a neutral citizen under the sentence of a court of the capturing power?
No opinion of any theoretic writer, nor, as I believe, any usage of any nation, nor the decisions of courts of admiralty, will authorize, in my judgment, an affirmative answer to that question.
If Mr. Barney comes within the 21st article of our treaty with Great Britain, it would make him liable, if taken by Great Britain, to be punished as a pirate. But it will be observed that the stipulation would not oblige the United States to treat him as such. And the article being confined to personal punishment, may be supposed not to contemplate the confiscation of property captured by such a person.
But it would be to go an unheard-of length to pronounce null the prize made under such circumstances by a vessel fitted out of the ports of the belligerent power, and regularly commissioned, and after a sentence of condemnation.
Therefore, and as the property in question is of little value, and as smart damages would be likely to attend a failure of the prosecution, I advised against it, as I now still do.
Yet, if Captain Cochran, or any person acting on his behalf, shall desire the experiment to be made, however unpromising in my view. I shall esteem it a professional duty, and due to justice to a foreign power, to put the affair in a course of judicial investigation.
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