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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

November 9, 1796.

Dear Sir:

I received yesterday your letter of the 6th, and immediately wrote some additional letters to the eastward, enforcing what I had before written. Pennsylvania does not surprise me.

I have reconsidered the opinion given to you on the third, and see no reason to change it. The reasoning which leads me to the conclusion, has not been sufficiently explained, I will therefore be more particular.

The articles in our treaty with France, which respect the subject, are the seventeenth and twenty-second.

The seventeenth consists of two parts.

First.—It grants asylum in our ports for French ships of war and privateers, with their prizes; and with liberty to carry them freely thence to their own ports.

Secondly.—It prohibits the giving refuge, in our ports, to such as shall have made prize of the subjects, or property, of the French. It grants no right to sell prizes in our ports, neither does the letter of the article prohibit prizes, made of the French, from coming into our ports. It only prohibits the instrument of making the prizes. But the construction justly adopted by the President was, that the prohibition, in its true spirit, excluded the bringing in of prizes, whether coming with, or without, the capturing vessels. ’T is upon this part of the treaty, alone, that prizes made by national vessels of Great Britain, were excluded from our ports. For,—

The twenty-second article with France is wholly confined to privateers; prohibiting those of other nations to fit or to sell their prizes in our ports.

This article, had it stood alone, would have left us as free to admit British national ships, with their prizes, into our ports, as our twenty-fourth article with Great Britain leaves us free to admit French national ships, with their prizes. For these articles are the exact equivalents of each other. So that, as before remarked, the prohibition of the coming in, or sale in, our ports, of prizes made upon the French by British national ships, was derived, by construction and implication, from the seventeenth article of our treaty with France.

It follows, that this article was considered as competent to prevent the coming in and sale of prizes.

If so, the same, or equivalent, terms in the British treaty, must be competent to the same thing.

Now the twenty-fifth article of our treaty with Great Britain has equivalent terms. We there read, that “no shelter or refuge shall be given in their ports to such as have made a prize upon the subjects, or citizens, of either of the contracting parties; but if forced, by stress of weather or the danger of the sea, to enter therein, particular care shall be taken to hasten their departure; and to cause them to retire as soon as possible.” This prohibition includes here, as in the seventeenth article of our treaty with France, a prohibition to sell prizes in our ports; not the prizes of privateers only, but prizes generally.

But France, it is answered, had a prior right, by the seventeenth article of our treaty with her, “to come and bring prizes into our ports.”

True, she had this right, and must have it still, notwithstanding the twenty-fifth article of our treaty with Great Britain: but she had no prior right, by treaty, to sell prizes in our ports; and consequently, as the twenty-fifth article of our treaty with Great Britain excludes, as the minor of a major, the selling of prizes in our ports, the exclusion, so far, is in force, because it contravenes no prior right of France. As far as the treaty with France gives a right, inconsistent with the above twenty-fifth article, that right forms an exception; but the exception must be only co-extensive with the right. The conclusion is that France retains the right of asylum, but is excluded from the right of selling. This gives effect to the twenty-fifth article with Great Britain, so far as the treaty-right of France does not require an exception.

And this construction ought to be favored, because it best comports with the rule of neutrality.

It will also best agree with the President’s former decisions. He permitted France to sell prizes; not because treaty gave her a right, but because he did not see clearly any law of the country, or of nations, that forbids it. But consistency does not require that this permission shall continue, if there be any thing in the treaty with Great Britain against it. Consistency, however, does require that the same latitude of construction should be given to the twenty-fifth article of our treaty with Great Britain, as was before given to the seventeenth article of our treaty with France. The same latitude will, as I apprehend, exclude the sale of prizes, by France, in the case in question.

I regret extremely the publication of the reply to Adet, otherwise than through the channel of Congress. The sooner the Executive gets out of the newspapers the better. What may now be in its power, will depend on circumstances which are to occur.