They possess a certain interest as exhibiting the humane policy of our
government towards the Indians, our efforts to civilize them, to make
them agriculturists, to keep them at peace with ourselves and with each
other, and the manner in which their lands were acquired from them, always
by purchase, with their own free consent. Some of the most important
have, therefore, been incorporated in the work.
PART I.
REPORTS AND OPINIONS WHILE SECRETARY OF STATE.
I.--_Report on the methods for obtaining Fresh Water from Salt._
The Secretary of State, to whom was referred by the House of
Representatives of the United States, the petition of Jacob Isaacs of
Newport in Rhode Island, has examined into the truth and importance of
the allegations therein set forth, and makes thereon the following report:
The petitioner sets forth, that by various experiments, with considerable
labor and expense, he has discovered a method of converting salt-water
into fresh, in the proportion of 8 parts out of 10, by a process so
simple that it may be performed on board of vessels at sea by the common
iron caboose, with small alterations, by the same fire, and in the same
time, which is used for cooking the ship's provisions, and offers to
convey to the government of the United States a faithful account of
his art or secret, to be used by, or within the United States, on their
giving to him a reward suitable to the importance of the discovery, and
in the opinion of government, adequate to his expenses and the time he
has devoted to the bringing it into effect.
In order to ascertain the merit of the petitioner's discovery, it becomes
necessary to examine the advances already made in the art of converting
salt-water into fresh.
Lord Bacon, to whom the world is indebted for the first germs of so
many branches of science, had observed, that with a heat sufficient for
distillation, salt will not rise in vapor, and that salt-water distilled
is fresh; and it would seem, that all mankind might have observed that
the earth is supplied with fresh water chiefly by exhalation from the
sea, which is, in fact, an insensible distillation effected by the heat
of the sun; yet this, although the most obvious, was not the first idea
in the essays for converting salt-water into fresh; filtration was tried
in vain, and congelation could be resorted to only in the coldest regions
and seasons. In all the earlier trials by distillation, some mixture was
thought necessary to aid the operation by a partial precipitation of the
salt, and other foreign matters contained in sea-water. Of this kind,
were the methods of Sir Richard Hawkins in the sixteenth century, of
Glauber, Hauton, and Lister, in the seventeenth, and of Hales, Appleby,
Butler, Chapman, Hoffman, and Dore, in the eighteenth; nor was there
anything in these methods worthy noting on the present occasion, except
the very simple still contrived extempore by Captain Chapman, and made
from such materials as are to be found on board every ship, great or
small; this was a common pot, with a wooded lid of the usual form; in
the centre of which a hole was bored to receive perpendicularly, a short
wooden tube made with an inch-and-a-half auger, which perpendicular
tube received at its top, and at an acute angle, another tube of wood
also, which descended until it joined a third of pewter made by rolling
up a dish and passing it obliquely through a cask of cold water; with
this simple machine he obtained two quarts of fresh water an hour, and
observed that the expense of fuel would be very trifling, if the still
was contrived to stand on the fire along with the ship's boiler.
In 1762, Doctor Lind, proposing to make experiment of several different
mixtures, first distilled rain-water, which he supposed would be the
purest, and then sea-water, without any mixture, which he expected
would be the least pure, in order to arrange between these two supposed
extremes, the degree of merit of the several ingredients he meant to
try; "to his great surprise," as he confesses, the sea-water distilled
without any mixture, was as pure as the rain-water; he pursued the
discovery and established the fact, that a pure and potable fresh water
may be obtained from salt-water by simple distillation, without the
aid of any mixture for fining or precipitating its foreign contents.
In 1767, he proposed an extempore still, which, in fact, was Chapman's,
only substituting a gun-barrel instead of Chapman's pewter tube, and the
hand-pump of the ship to be cut in two obliquely and joined again at an
acute angle, instead of Chapman's wooden tubes bored expressly; or instead
of the wooden lid and upright tube, he proposed a tea-kettle (without
its lid or handle) to be turned bottom upwards over the mouth of the
pot by way of still-head, and a wooden tube leading from the spout to a
gun-barrel passing through a cask of water, the whole luted with equal
parts of chalk and meal moistened with salt-water. With this apparatus
of a pot, tea-kettle, and gun-barrel, the Dolphin, a twenty-gun ship,
in her voyage around the world in 1768, from 56 gallons of sea-water
and with 9 lbs. of wood and 69 lbs. of pit-coal made 42 gallons of good
fresh water, at the rate of 8 gallons an hour. The Dorsetshire, in her
passage from Gibraltar to Mahon in 1769, made 19 quarts of pure water in
four hours with 10 lbs. of wood, and the Slambal in 1773, between Bombay
and Bengal, with the hand-pump, gun-barrel, and a pot of 6 gallons of
sea-water, made ten quarts of fresh water in three hours.
In 1771, Dr. Irvin putting together Lind's idea of distilling without
a mixture, Chapman's still, and Dr. Franklin's method of cooling by
evaporation, obtained a premium of five thousand pounds from the British
parliament. He wet his tube constantly with a mop instead of passing
it through a cask of water; he enlarged its bore also, in order to
give a free passage to the vapor, and thereby increase its quantity by
lessening the resistance or pressure on the evaporating surface. This
last improvement was his own; it doubtless contributed to the success
of his process; and we may suppose the enlargement of the tube to be
useful to that point at which the central parts of the vapor passing
through it would begin to escape condensation. Lord Mulgrave used his
method in his voyage towards the north pole in 1773, making from 34 to
40 gallons of fresh water a day, without any great addition of fuel, as
he says.
M. de Bougainville, in his voyage round the world, used very successfully
a still which had been contrived in 1763 by Poyssonier to guard against
the water being thrown over from the boiler into the pipe, by the
agitation of the ship. In this, one singularity was, that the furnace or
fire-box was in the middle of the boiler, so that the water surrounded
it in contact. This still, however, was expensive, and occupied much room.
Such was the advances already made in the art of obtaining fresh from
salt-water, when Mr. Isaacs, the petitioner, suggested his discovery. As
the merit of this could be ascertained by experiment only, the Secretary
of State asked the favor of Mr. Rittenhouse, President of the American
Philosophical Society, of Dr. Wistar, professor of chemistry in the
college at Philadelphia, and Dr. Hutchinson, professor of chemistry in
the University of Pennsylvania, to be present at the experiments. Mr.
Isaacs fixed the pot, a small caboose, with a tin cap and straight tube
of tin passing obliquely through a cask of cold water; he made use of a
mixture, the composition of which he did not explain, and from 24 pints
of sea-water, taken up about three miles out of the Capes of Delaware,
at flood-tide, he distilled 22 pints of fresh water in four hours with
20 lbs. of seasoned pine, which was a little wetted by having lain in
the rain.
In a second experiment of the 21st of March, performed in a furnace,
and five-gallon still at the college, from 32 pints of sea-water he
drew 31 pints of fresh water in 7 hours and 24 minutes, with 51 lbs. of
hickory, which had been cut about six months. In order to decide whether
Mr. Isaacs' mixture contributed in any and what degree to the success
of the operation, it was thought proper to repeat his experiment under
the same circumstances exactly, except the omission of the mixture.
Accordingly, on the next day, the same quantity of sea-water was put
into the same still, the same furnace was used, and fuel from the same
parcel; it yielded, as his had done, 31 pints fresh water in 11 minutes
more of time, and with 10 lbs. less of wood.
On the 24th of March, Mr. Isaacs performed a third experiment. For this,
a common iron pot of three and a half gallons was fixed in brick work,
and the fine from the hearth wound once around this pot spirally, and
then passed off up a chimney.
The cap was of tin, and a straight tin tube of about two inches diameter
passing obliquely through a barrel of water, served instead of a worm.
From sixteen pints of sea-water he drew off fifteen pints of fresh water,
in two hours fifty-five minutes, with 3 lbs. of dry hickory and 8 lbs. of
seasoned pine. This experiment was also repeated the next day, with the
same apparatus, and fuel from the same parcel; but without the mixture,
sixteen pints of sea-water yielded in like manner fifteen pints of fresh
in one minute more of time, and with ½ lb. less of wood. On the whole,
it was evident that Mr. Isaacs' mixture produced no advantage either in
the process or result of the distillation.
The distilled water in all these instances, was found on experiment to be
as pure as the best pump water of the city; its taste, indeed, was not
as agreeable, but it was not such as to produce any disgust. In fact,
we drink, in common life, in many places, and under many circumstances,
and almost always at sea, a worse tasted and probably a less wholesome
water.
The obtaining fresh from salt-water was for ages considered as an
important desideratum for the use of navigators. The process for doing
this by simple distillation is so efficacious, the erecting an extempore
still with such utensils as are found on board of every ship, is so
practicable, as to authorize the assertion that this desideratum is
satisfied to a very useful degree. But though this has been done for
upwards of thirty years, though its reality has been established by the
actual experience of several vessels which have had recourse to it,
yet neither the fact nor the process is known to the mass of seamen,
to whom it would be the most useful, and for whom it was principally
wanted. The Secretary of State is therefore of opinion that since the
subject has now been brought under observation, it should be made the
occasion of disseminating its knowledge generally and effectually among
the seafaring citizens of the United States. The following is one of the
many methods which might be proposed for doing this: Let the clearance
for every vessel sailing from the ports of the United States be printed
on a paper, in the back whereof shall be a printed account of the essays
which have been made for obtaining fresh from salt-water, mentioning
shortly those which have been unsuccessful, and more fully those which
have succeeded, describing the methods which have been found to answer
for constructing extempore stills of such implements as are generally
on board of every vessel, with a recommendation in all cases where they
shall have occasion to resort to this expedient for obtaining water,
to publish the result of their trial in some gazette on their return to
the United States, or to communicate it for publication to the office of
the Secretary of State, in order that others may, by their success, be
encouraged to make similar trials, and be benefited by any improvements
or new ideas which may occur to them in practice.
II. _Opinion on the proposition for establishing a Woollen Manufactory
in Virginia._
The House of Delegates of Virginia seemed disposed to adventure £2,500
for the encouragement of this undertaking, but the Senate did not concur.
By their returning to the subject, however, at a subsequent session, and
wishing more specific propositions, it is probable they might be induced
to concur, if they saw a certain provision that their money would not
be paid for nothing. Some unsuccessful experiments heretofore may have
suggested this caution.
Suppose the propositions brought into some such shape as this: The
undertaker is to contribute £1,000, the State £2,500, viz.: the undertaker
having laid out his £1,000 in the necessary implements to be brought
from Europe, and these being landed in Virginia as a security that he
will proceed, let the State pay for
the first necessary purposes then to occur £1,000
Let it pay him a stipend of £100 a year for the first three
years 300
Let it give him a bounty (suppose one-third) on every
yard of woollen cloth equal to good plains, which he
shall weave for five years, not exceeding £250 a year
(20,000 yards) the four first years, and £200 the fifth 1,200
------
£2,500
To every workman whom he shall import, let them give, after he shall
have worked in the manufactory five years, warrants for ---- acres of
land, and pay the expenses of survey, patents, &c. [This last article
is to meet the proposition of the undertaker. I do not like it, because
it tends to draw off the manufacturer from his trade. I should better
like a premium to him on his continuance in it; as, for instance, that
he should be free from State taxes as long as he should carry on his
trade.]
The President's intervention seems necessary till the contracts shall be
concluded. It is presumed he would not like to be embarrassed afterwards
with the details of superintendence. Suppose, in his answer to the
Governor of Virginia, he should say that the undertaker being in Europe,
more specific propositions cannot be obtained from him in time to be laid
before this assembly; that in order to secure to the State the benefits
of the establishment, and yet guard them against an unproductive grant
of money, he thinks some plan like the preceding one might be proposed
to the undertaker.
That as it is not known whether he would accept it exactly in that form,
it might disappoint the views of the State were they to prescribe that
or any other form rigorously, consequently that a discretionary power
must be given to a certain extent.
That he would willingly coöperate with their executive in effecting the
contract, and certainly would not conclude it on any terms worse for
the State than those before explained, and that the contracts being once
concluded, his distance and other occupations would oblige him to leave
the execution open to the Executive of the State.
III. _The Report on Copper Coinage, communicated to the House of
Representatives, April 15th, 1790._
April 14, 1790.
The Secretary of State, to whom was referred, by the House
of Representatives, the letter of John H. Mitchell, reciting
certain proposals for supplying the United States with copper
coinage, has had the same under consideration, according to
instructions, and begs leave to report thereon as follows:
The person who wishes to undertake the supply of a copper coinage, sets
forth, that the superiority of his apparatus and process for coining,
enables him to furnish a coinage better and cheaper than can be done by
any country or person whatever; that his dies are engraved by the first
artist in that line in Europe; that his apparatus for striking the edge
at the same blow with the faces, is new, and singularly ingenious; that
he coins by a press on a new principle, and worked by a fire-engine, more
regularly than can be done by hand; that he will deliver any quantity
of coin, of any size and device, of pure, unalloyed copper, wrapped
in paper and packed in casks, ready for shipping, for fourteen pence
sterling the pound.
The Secretary of State has before been apprized, from other sources
of information, of the great improvements made by this undertaker, in
sundry arts; he is acquainted with the artist who invented the method of
striking the edge, and both faces of the coin at one blow; he has seen
his process and coins, and sent to the former Congress some specimens of
them, with certain offers from him, before he entered into the service
of the present undertaker, (which specimens he takes the liberty of now
submitting to the inspection of the House, as proofs of the superiority
of this method of coinage, in gold and silver as well as copper.)
He is, therefore, of opinion, that the undertaker, aided by that artist,
and by his own excellent machines, is truly in a condition to furnish
coin in a state of higher perfection than has ever yet been issued
by any nation; that perfection in the engraving is among the greatest
safeguards against counterfeits, because engravers of the first class
are few, and elevated by their rank in their art, far above the base
and dangerous business of counterfeiting. That the perfection of coins
will indeed disappear, after they are for some time worn among other
pieces, and especially where the figures are rather faintly relieved,
as on those of this artist; yet, their high finishing, while new, is
not the less a guard against counterfeits, because these, if carried to
any extent, may be ushered into circulation new, also, and consequently,
may be compared with genuine coins in the same state; that, therefore,
whenever the United States shall be disposed to have a coin of their
own, it will be desirable to aim at this kind of perfection. That this
cannot be better effected, than by availing themselves, if possible,
of the services of the undertaker, and of this artist, whose excellent
methods and machines are said to have abridged, as well as perfected,
the operations of coinage. These operations, however, and their expense,
being new, and unknown here, he is unable to say whether the price
proposed be reasonable or not. He is also uncertain whether, instead of
the larger copper coin, the Legislature might not prefer a lighter one
of billon, or mixed metal, as is practised, with convenience, by several
other nations--a specimen of which kind of coinage is submitted to their
inspection.
But the propositions under consideration suppose that the work is to be
carried on in a foreign country, and that the implements are to remain
the property of the undertaker; which conditions, in his opinion, render
them inadmissible, for these reasons:
Coinage is peculiarly an attribute of sovereignty. To transfer its
exercise into another country, is to submit it to another sovereign.
Its transportation across the ocean, besides the ordinary dangers of the
sea, would expose it to acts of piracy, by the crews to whom it would
be confided, as well as by others apprized of its passage.
In time of war, it would offer to the enterprises of an enemy, what have
been emphatically called the sinews of war.
If the war were with the nation within whose territory the coinage is,
the first act of war, or reprisal, might be to arrest this operation,
with the implements and materials coined and uncoined, to be used at
their discretion.
The reputation and principles of the present undertaker are safeguards
against the abuses of a coinage, carried on in a foreign country, where
no checks could be provided by the proper sovereign, no regulations
established, no police, no guard exercised; in short, none of the numerous
cautions hitherto thought essential at every mint; but in hands less
entitled to confidence, these will become dangers. We may be secured,
indeed, by proper experiments as to the purity of the coin delivered
us according to contract, but we cannot be secured against that which,
though less pure, shall be struck in the genuine die, and protected
against the vigilance of Government, till it shall have entered into
circulation.
We lose the opportunity of calling in and re-coining the clipped money
in circulation, or we double our risk by a double transportation.
We lose, in like manner, the resource of coining up our household plate
in the instant of great distress.
We lose the means of forming artists to continue the works, when the
common accidents of mortality shall have deprived us of those who began
them.
In fine, the carrying on a coinage in a foreign country, as far as the
Secretary knows, is without example; and general example is weighty
authority.
He is, therefore, of opinion, on the whole, that a mint, whenever
established, should be established at home; that the superiority, the
merit, and means of the undertaker, will suggest him as the proper person
to be engaged in the establishment and conduct of a mint, on a scale
which, relinquishing nothing in the perfection of the coin, shall be
duly proportioned to our purposes.
And, in the meanwhile, he is of opinion the present proposals should be
declined.
IV.--_Opinion on the question whether the Senate has the right to negative
the grade of persons appointed by the Executive to fill Foreign Missions._
NEW YORK, April 24, 1790.
The constitution having declared that the President shall _nominate_
and, by and with the advice and consent of the Senate, shall _appoint_
ambassadors, other public ministers, and consuls, the President desired
my opinion whether the Senate has a right to negative the _grade_ he may
think it expedient to use in a foreign mission as well as the _person_
to be appointed.
I think the Senate has no right to negative the _grade_.
The constitution has divided the powers of government into three branches,
Legislative, Executive and Judiciary, lodging each with a distinct
magistracy. The Legislative it has given completely to the Senate and
House of Representatives. It has declared that the Executive powers
shall be vested in the President, submitting special articles of it to
a negative by the Senate, and it has vested the Judiciary power in the
courts of justice, with certain exceptions also in favor of the Senate.
The transaction of business with foreign nations is Executive altogether.
It belongs, then, to the head of that department, except as to such
portions of it as are specially submitted to the Senate. Exceptions are
to be construed strictly.
The constitution itself indeed has taken care to circumscribe this one
within very strict limits; for it gives the _nomination_ of the foreign
agents to the President, the _appointments_ to him and the Senate jointly,
and the _commissioning_ to the President.
This analysis calls our attention the strict import of each term. To
_nominate_ must be to _propose_. _Appointment_ seems that act of the will
which constitutes or makes the agent, and the _commission_ is the public
evidence of it. But there are still other acts previous to these not
specially enumerated in the constitution, to wit: 1st. The destination
of a mission to the particular country where the public service calls
for it, and second the character or grade to be employed in it. The
natural order of all these is first, destination; second, grade; third,
nomination; fourth, appointment; fifth, commission. If _appointment_ does
not comprehend the neighboring acts of _nomination_ or _commission_,
(and the constitution says it shall not, by giving them exclusively to
the President,) still less can it pretend to comprehend those previous
and more remote, of _destination_ and _grade_.
The constitution, analyzing the three last, shows they do not comprehend
the two first. The fourth is the only one it submits to the Senate,
shaping it into a right to say that "A or B is unfit to be appointed."
Now, this cannot comprehend a right to say that "A or B is indeed fit
to be appointed," but the grade fixed on is not the fit one to employ,
or, "our connections with the country of his destination are not such
as to call for any mission."
The Senate is not supposed by the constitution to be acquainted with
the concerns of the Executive department. It was not intended that these
should be communicated to them, nor can they therefore be qualified to
judge of the necessity which calls for a mission to any particular place,
or of the particular grade, more or less marked, which special and secret
circumstances may call for. All this is left to the President. They are
only to see that no unfit person be employed.
It may be objected that the Senate may by continual negatives on
the _person_, do what amounts to a negative on the _grade_, and so,
indirectly, defeat this right of the President. But this would be a
breach of trust; an abuse of power confided to the Senate, of which that
body cannot be supposed capable. So the President has a power to convoke
the Legislature, and the Senate might defeat that power by refusing
to come. This equally amounts to a negative on the power of convoking.
Yet nobody will say they possess such a negative, or would be capable
of usurping it by such oblique means. If the constitution had meant to
give the Senate a negative on the grade or destination, as well as the
person, it would have said so in direct terms, and not left it to be
effected by a sidewind. It could never mean to give them the use of one
power through the abuse of another.
V.--_Opinion upon the validity of a grant made by the State of Georgia
to certain companies of individuals, of a tract of country whereof the
Indian right had never been extinguished, with power to such individuals
to extinguish the Indian right._
May 3d, 1790.
The State of Georgia, having granted to certain individuals a tract of
country, within their chartered limits, whereof the Indian right has
never yet been acquired; with a proviso in the grants, which implies
that those individuals may take measures for extinguishing the Indian
rights under the authority of that Government, it becomes a question
how far this grant is good?
A society, taking possession of a vacant country, and declaring they mean
to occupy it, does thereby appropriate to themselves as prime occupants
what was before common. A practice introduced since the discovery of
America, authorizes them to go further, and to fix the limits which they
assume to themselves; and it seems, for the common good, to admit this
right to a moderate and reasonable extent.
If the country, instead of being altogether vacant, is thinly occupied
by another nation, the right of the native forms an exception to that of
the new comers; that is to say, these will only have a right against all
other nations except the natives. Consequently, they have the exclusive
privilege of acquiring the native right by purchase or other just means.
This is called the right of preëmption, and is become a principle of
the law of nations, fundamental with respect to America. There are but
two means of acquiring the native title. First, war; for even war may,
sometimes, give a just title. Second, contracts or treaty.
The States of America before their present union possessed completely,
each within its own limits, the exclusive right to use these two means
of acquiring the native title, and, by their act of union, they have as
completely ceded both to the general government. Art. 2d, Section 1st.
"The President shall have power, by and with the advice of the Senate,
to make treaties, provided two thirds of the Senators present concur."
Art. 1st, Section 8th, "The Congress shall have power to declare war, to
raise and support armies." Section 10th, "No State shall enter into any
treaty, alliance or confederation. No State shall, without the consent
of Congress, keep troops or ships of war in time of peace, enter into
any agreement or compact with another State or with a foreign power,
or engage in war, unless actually invaded or in such imminent danger as
will not admit of delay."
These paragraphs of the constitution, declaring that the general
government shall have, and that the particular ones shall not have, the
right of war and treaty, are so explicit that no commentary can explain
them further, nor can any explain them away. Consequently, Georgia,
_possessing the exclusive right to acquire the native title_, but having
relinquished the _means_ of doing it to the general government, can only
have put her grantee into her own condition. She could convey to them
the exclusive right to acquire; but she could not convey what she had
not herself, that is, the means of acquiring.
For these they must come to the general government, in whose hands they
have been wisely deposited for the purposes both of peace and justice.
What is to be done? The right of the general government is, in my
opinion, to be maintained. The case is sound, and the means of doing it
as practicable as can ever occur. But respect and friendship should, I
think, mark the conduct of the general towards the particular government,
and explanations should be asked and time and color given them to tread
back their steps before coercion is held up to their view. I am told
there is already a strong party in Georgia opposed to the act of their
government.
I should think it better then that the first measures, while firm, be
yet so temperate as to secure their alliance and aid to the general
government.
Might not the eclat of a proclamation revolt their pride and passion,
and throw them hastily into the opposite scale? It will be proper indeed
to require from the government of Georgia, in the first moment, that
while the general government shall be expecting and considering her
explanations, things shall remain in _statu quo_, and not a move be made
towards carrying what they have begun into execution.
Perhaps it might not be superfluous to send some person to the Indians
interested, to explain to them the views of government and to watch with
their aid the territory in question.
VI.--_Opinion in favor of the resolutions of May 21st, 1790 directing
that, in all cases where payment had not been already made, the debts
due to the soldiers of Virginia and North Carolina, should be paid to
the original claimants or their attorneys, and not to their assignees._
June 3d, 1790.
The accounts of the soldiers of Virginia and North Carolina, having
been examined by the proper officer of government, the balances due
to each individual ascertained, and a list of these balances made out,
this list became known to certain persons before the soldiers themselves
had information of it, and those persons, by unfair means, as is said,
and for very inadequate considerations, obtained assignments from many
of the soldiers of whatever sum should be due to them from the public,
without specifying the amount.
The legislature, to defeat this fraud, passed resolutions on the 21st
of May, 1796, directing that where payment had not been made to the
original claimant in person or his representatives, it shall be made
to him or them personally, or to their attorney, producing a power for
that purpose, attested by two justices of the county where he resides,
and specifying the certain sum he is to receive.
It has been objected to these resolutions that they annul transfers of
property which were good by the laws under which they were made; that
they take from the assignees their lawful property; are contrary to the
principles of the constitution, which condemn retrospective laws; and
are, therefore, not worthy of the President's approbation.
I agree in an almost unlimited condemnation of retrospective laws. The
few instances of wrong which they redress are so overweighed by the
insecurity they draw over all property and even over life itself, and
by the atrocious violations of both to which they lead that it is better
to live under the evil than the remedy.
The only question I shall make is, whether these resolutions annul acts
which were valid when they were done?
This question respects the laws of Virginia and North Carolina only.
On the latter I am not qualified to decide, and therefore beg leave to
confine myself to the former.
By the common law of England (adopted in Virginia) the conveyance of a
right to a debt or other thing whereof the party is not in possession,
is not only void, but severely punishable under the names of Maintenance
and Champerty. The Law-merchants, however, which is permitted to have
course between merchants, allows the assignment of a _bill of exchange_
for the convenience of commerce. This, therefore, forms one exception to
the general rule, that a mere right or thing in action is not assignable.
A second exception has been formed by an English statute (copied into the
laws of Virginia) permitting _promissory notes_ to be assigned. The laws
of Virginia have gone yet further than the statute, and have allowed,
as a third exception, that a _bond_ should be assigned, which cannot
be done even at this day in England. So that, in Virginia, when a debt
has been settled between the parties and put into the form of a bill of
exchange, promissory note or bond, the law admits it to be transferred
by assignment. In all other cases the assignment of a debt is void.
The debts from the United States to the soldiers of Virginia, not having
been put into either of these forms, the assignments of them were void
in law.
A creditor may give an order on his debtor in favor of another, but if
the debtor does not accept it, he must be sued in the creditor's name;
which shows that the _order_ does not transfer the property of the
debts. The creditor may appoint another to be his attorney to receive
and recover his debt, and he may covenant that when received the attorney
may apply it to his own use. But he must sue as attorney to the original
proprietor, and not in his own right.
This proves that a _power of attorney_, with such a _covenant_, does
not transfer the property of the debt. A further proof in both cases is,
that the original creditor may at any time before payment or acceptance
revoke either his order or his power of attorney.
In that event the person in whose favor they were given has recourse to
a court of equity. When there, the judge examines whether he has done
equity. If he finds his transaction has been a fair one, he gives him
aid. If he finds it has been otherwise, not permitting his court to be
made a handmaid to fraud, he leaves him without remedy in equity as he
was in law. The assignments in the present case, therefore, if unfairly
obtained, as seems to be admitted, are void in equity as they are in law.
And they derive their nullity from the laws under which they were made,
not from the new resolutions of Congress. These are not retrospective.
They only direct their treasurer not to give validity to an assignment
which had it not before, by payments to the assignee until he in whom
the legal property still is, shall order it in such a form as to show
he is apprized of the sum he is to part with, and its readiness to be
paid into his or any other hands, and that he chooses, notwithstanding,
to acquiesce under the fraud which has been practised on him. In that
case he has only to execute before two justices a power of attorney to
the same person, expressing the specific sum of his demand, and it is to
be complied with. Actual payment, in this case, is an important act. If
made to the assignee, it would put the burthen of proof and process on
the original owner. If made to that owner, it puts it on the assignee,
who must then come forward and show that his transaction has been that
of an honest man.
Government seems to be doing in this what every individual, I think,
would feel himself bound to do in the case of his own debt. For, being
free in the law, to pay to the one or the other, he would certainly give
the advantage to the party who has suffered wrong rather than to him
who has committed it.
It is not honorable to take a mere legal advantage, when it happens to
be contrary to justice.
But it is honorable to embrace a salutary principle of law when a
relinquishment of it is solicited only to support a fraud.
I think the resolutions, therefore, merit approbation. I have before
professed my incompetence to say what are the laws of North Carolina
on this subject. They, like Virginia, adopted the English laws in the
gross. These laws forbid in general the buying and selling of debts, and
their policy in this is so wise that I presume they had not changed it
till the contrary be shown.
VII.--_Plan for establishing uniformity in the Coinage, Weights,
and Measures of the United States. Communicated to the House of
Representatives, July 13, 1790._
NEW YORK, July 4, 1790.
SIR:--In obedience to the order of the House of Representatives of
January 15th, I have now the honor to enclose you a report on the subject
of measures, weights, and coins. The length of time which intervened
between the date of the order and my arrival in this city, prevented my
receiving it till the 15th of April; and an illness which followed soon
after added, unavoidably, some weeks to the delay; so that it was not
till about the 20th May that I was able to finish the report. A desire
to lessen the number of its imperfections induced me still to withhold
it awhile, till, on the 15th of June, came to my hands, from Paris, a
printed copy of a proposition made by the Bishop of Autun, to the National
Assembly of France, on the subject of weights and measures; and three
days afterwards I received, through the channel of the public papers,
the speech of Sir John Riggs Miller, of April 13th, in the British House
of Commons, on the same subject. In the report which I had prepared, and
was then about to give in, I had proposed the latitude of 38°, as that
which should fix our standard, because it was the medium latitude of
the United States; but the proposition before the National Assembly of
France, to take that of 45° as being a middle term between the equator
and both poles, and a term which consequently might unite the nations of
both hemispheres, appeared to me so well chosen, and so just, that I did
not hesitate a moment to prefer it to that of 38°. It became necessary,
of course, to conform all my calculations to that standard--an operation
which has been retarded by my other occupations.
These circumstances will, I hope, apologize for the delay which has
attended the execution of the order of the House; and, perhaps, a
disposition on their part to have due regard for the proceedings of other
nations, engaged on the same subject, may induce them still to defer
deciding ultimately on it till their next session. Should this be the
case, and should any new matter occur in the meantime, I shall think it
my duty to communicate it to the House, as supplemental to the present
report.
I have the honor to be, with sentiments of the most profound respect,
Sir, your most obedient and most humble servant.
The Secretary of State, to whom was referred, by the House of
Representatives, to prepare and report a proper plan or plans for
establishing uniformity in the currency, weights, and measures of the
United States, in obedience thereto, makes the following report:--
To obtain uniformity in measures, weights, and coins, it is necessary
to find some measure of invariable length, with which, as a standard,
they may be compared.
There exists not in nature, as far as has been hitherto observed, a
single subject or species of subject, accessible to man, which presents
one constant and uniform dimension.
The globe of the earth itself, indeed, might be considered as invariable
in all its dimensions, and that its circumference would furnish an
invariable measure; but no one of its circles, great or small, is
accessible to admeasurement through all its parts, and the various trials
to measure definite portions of them, have been of such various result
as to show there is no dependence on that operation for certainty.
Matter, then, by its mere extension, furnishing nothing invariable, its
motion is the only remaining resource.
The motion of the earth round its axis, though not absolutely uniform
and invariable, may be considered as such for every human purpose. It is
measured obviously, but unequally, by the departure of a given meridian
from the sun, and its return to it, constituting a solar day. Throwing
together the inequalities of solar days, a mean interval, or day, has
been found, and divided, by very general consent, into 86,400 equal parts.
A pendulum, vibrating freely, in small and equal arcs, may be so adjusted
in its length, as, by its vibrations, to make this division of the
earth's motion into 86,400 equal parts, called seconds of mean time.
Such a pendulum, then, becomes itself a measure of determinate length,
to which all others may be referred to as to a standard.
But even a pendulum is not without its uncertainties.
1. The difficulty of ascertaining, in practice, its centre of oscillation,
as depending on the form of the bob, and its distance from the point
of suspension; the effect of the weight of the suspending wire towards
displacing the centre of oscillation; that centre being seated within
the body of the bob, and therefore inaccessible to the measure, are
sources of considerable uncertainty.
2. Both theory and experience prove that, to preserve its isochronism,
it must be shorter towards the equator, and longer towards the poles.
3. The height of the situation above the common level, as being an
increment to the radius of the earth, diminishes the length of the
pendulum.
4. The pendulum being made of metal, as is best, it varies its length
with the variations in the temperature of the atmosphere.
5. To continue small and equal vibrations, through a sufficient length
of time, and to count these vibrations, machinery and a power are
necessary, which may exert a small but constant effort to renew the
waste of motion; and the difficulty is so to apply these, as that they
shall neither retard or accelerate the vibrations.
1. In order to avoid the uncertainties which respect the centre of
oscillation, it has been proposed by Mr. Leslie, an ingenious artist
of Philadelphia, to substitute, for the pendulum, a uniform cylindrical
rod, without a bob.
Could the diameter of such a rod be infinitely small, the centre of
oscillation would be exactly at two-thirds of the whole length, measured
from the point of suspension. Giving it a diameter which shall render it
sufficiently inflexible, the centre will be displaced, indeed; but, in
a second rod not the (1) six hundred thousandth part of its length, and
not the hundredth part as much as in a second pendulum with a spherical
bob of proper diameter. This displacement is so infinitely minute,
then, that we may consider the centre of oscillation, for all practical
purposes, as residing at two-thirds of the length from the centre of
suspension. The distance between these two centres might be easily and
accurately ascertained in practice. But the whole rod is better for a
standard than any portion of it, because sensibly defined at both its
extremities.
2. The uncertainty arising from the difference of length requisite for
the second pendulum, or the second rod, in different latitudes, may
be avoided by fixing on some one latitude, to which our standard shall
refer. That of 38°, as being the middle latitude of the United States,
might seem the most convenient, were we to consider ourselves alone; but
connected with other nations by commerce and science, it is better to
fix on that parallel which bids fairest to be adopted by them also. The
45th, as being the middle term between the equator and pole, has been
heretofore proposed in Europe, and the proposition has been lately renewed
there under circumstances which may very possibly give it some effect.
This parallel is distinguished with us also as forming our principal
northern boundary. Let the completion of the 45th degree, then, give
the standard for our union, with the hope that it may become a line of
union with the rest of the world.
The difference between the second rod for 45° of latitude, and that for
31°, our other extreme, is to be examined.
The second _pendulum_ for 45° of latitude, according to Sir Isaac Newton's
computation, must be of (2) 39.14912 inches English measure; and a
_rod_, to vibrate in the same time, must be of the same length between
the centres of suspension and oscillation; and, consequently, its whole
length 58.7 (or, more exactly, 58.72368) inches. This is longer than
the rod which shall vibrate seconds in the 31° of latitude, by about
1/679 part of its whole length; a difference so minute, that it might
be neglected, as insensible, for the common purposes of life, but, in
cases requiring perfect exactness, the second rod, found by trial of
its vibrations in any part of the United States, may be corrected by
computation for the (3) latitude of the place, and so brought exactly
to the standard of 45°.
3. By making the experiment in the level of the ocean, the difference
will be avoided, which a higher position might occasion.
4. The expansion and contraction of the rod with the change of
temperature, is the fourth source of uncertainty before mentioned.
According to the high authority so often quoted, an iron rod, of given
length, may vary, between summer and winter, in temperate latitudes,
and in the common exposure of house clocks, from 1/1728 to 1/2592 of
its whole length, which, in a rod of 58.7 inches, will be from about
two to three hundredths of an inch. This may be avoided by adjusting and
preserving the standard in a cellar, or other place, the temperature of
which never varies. Iron is named for this purpose, because the least
expansible of the metals.
5. The practical difficulty resulting from the effect of the machinery
and moving power is very inconsiderable in the present state of the arts;
and, in their progress towards perfection, will become less and less.
To estimate and obviate this, will be the artist's province. It is as
nothing when compared with the sources of inaccuracy hitherto attending
measures.
Before quitting the subject of the inconveniences, some of which attend
the pendulum alone, others both the pendulum and rod, it must be added
that the rod would have an accidental but very precious advantage over
the pendulum in this country, in the event of our fixing the foot at the
nearest aliquot part of either; for the difference between the common
foot, and those so to be deduced, would be three times greater in the
case of the pendulum than in that of the rod.
Let the standard of measure, then, be a uniform cylindrical rod of iron,
of such length as, in latitude 45°, in the level of the ocean, and in a
cellar, or other place, the temperature of which does not vary through
the year, shall perform its vibrations in small and equal arcs, in one
second of mean time.
A standard of invariable length being thus obtained, we may proceed
to identify, by that, the measures, weights and coins of the United
States; but here a doubt presents itself as to the extent of the
reformation meditated by the House of Representatives. The experiment
made by Congress in the year one thousand seven hundred and eighty-six,
by declaring that there should be one money of account and payment
through the United States, and that its parts and multiples should be
in a decimal ratio,[23] has obtained such general approbation, both at
home and abroad, that nothing seems wanting but the actual coinage, to
banish the discordant pounds, shillings, pence, and farthings of the
different States, and to establish in their stead the new denominations.
Is it in contemplation with the House of Representatives to extend a
like improvement to our measures and weights, and to arrange them also
in a decimal ratio? The facility which this would introduce into the
vulgar arithmetic would, unquestionably, be soon and sensibly felt by
the whole mass of the people, who would thereby be enabled to compute
for themselves whatever they should have occasion to buy, to sell, or
to measure, which the present complicated and difficult ratios place
beyond their computation for the most part. Or, is it the opinion of the
Representatives that the difficulty of changing the established habits
of a whole nation opposes an insuperable bar to this improvement? Under
this uncertainty, the Secretary of State thinks it his duty to submit
alternative plans, that the House may, at their will, adopt either the
one or the other, exclusively, or the one for the present and the other
for a future time, when the public mind may be supposed to have become
familiarized to it.
I. And first, on the supposition that the present measures and weights
are to be retained but to be rendered uniform and invariable, by bringing
them to the same invariable standard.
The first settlers of these States, having come chiefly from England,
brought with them the measures and weights of that country. These alone
are generally established among us, either by law or usage; and these,
therefore, are alone to be retained and fixed. We must resort to that
country for information of what they are, or ought to be.
This rests, principally, on the evidence of certain standard measures and
weights, which have been preserved, of long time, in different deposits.
But differences among these having been known to exist, the House of
Commons, in the years 1757 and 1758, appointed committees to inquire into
the original standards of their weights and measures. These committees,
assisted by able mathematicians and artists, examined and compared with
each other the several standard measures and weights, and made reports
on them in the years 1758 and 1759. The circumstances under which these
reports were made entitle them to be considered, as far as they go, as
the best written testimony existing of the standard measures and weights
of England; and as such, they will be relied on in the progress of this
report.
MEASURES OF LENGTH.
The measures of length in use among us are:
The league of 3 miles, The fathom of 2 yards,
The mile of 8 furlongs, The ell of a yard and quarter,
The furlong of 40 poles or perches, The yard of 3 feet,
The foot of 12 inches, and
The pole or perch of 5½ yards, The inch of 10 lines.
On this branch of their subject, the committee of 1757-1758, says that
the standard measures of length at the receipt of the exchequer, are
a yard, supposed to be of the time of Henry VII., and a yard and ell
supposed to have been made about the year 1601; that they are brass
rods, very coarsely made, their divisions not exact, and the rods bent;
and that in the year 1742, some members of the Royal Society had been
at great pains in taking an exact measure of these standards, by very
curious instruments, prepared by the ingenious Mr. Graham; that the
Royal Society had had a brass rod made pursuant to their experiments,
which was made so accurately, and by persons so skilful and exact, that
it was thought not easy to obtain a more exact one; and the committee,
in fact, found it to agree with the standards at the exchequer, as near
as it was possible. They furnish no means, to persons at a distance, of
knowing what this standard is. This, however, is supplied by the evidence
of the second pendulum, which, according to the authority before quoted,
is, at London, 39.1682 English inches, and, consequently, the second
rod there is of 58.7523 of the same inches. When we shall have found,
then, by actual trial, the second rod for 45° by adding the difference
of their computed length, to wit: 287/10000 of an inch, or rather 3/10
of a line (which in practice will endanger less error than an attempt
at so minute a fraction as the ten thousandth parts of an inch) we shall
have the second rod of London, or a true measure of 58¾ English inches.
Or, to shorten the operation, without varying the result,
Let the standard rod of 45° be divided into 587⅕ equal parts, and
let each of these parts be declared a line.
10 lines an inch, 5½ yards a perch or pole,
12 inches a foot, 40 poles or perches a furlong,
3 feet a yard, 8 furlongs a mile,
3 feet 9 inches an ell, 3 miles a league.
6 feet a fathom,
SUPERFICIAL MEASURES
Our measures of surface are, the acre of 4 roods and the rood of 40
square poles; so established by a statute of 33 Edw. 1. Let them remain
the same.
MEASURES OF CAPACITY.
The measures of capacity in use among us are of the following names and
proportions:
The gill, four of which make a pint.
Two pints make a quart.
Two quarts a pottle.
Two pottles a gallon.
Two gallons a peck, dry measure.
Eight gallons make a measure called a firkin, in liquid substances, and
a bushel, dry.
Two firkins, or bushels, make a measure called a rundlet or kilderkin,
liquid, and a strike, dry.
Two kilderkins, or strikes, make a measure called a barrel, liquid, and
a coomb, dry; this last term being ancient and little used.
Two barrels, or coombs, make a measure called a hogshead, liquid, or a
quarter, dry; each being the quarter of a ton.
A hogshead and a third make a tierce, or third of a ton.
Two hogsheads make a pipe, butt, or puncheon; and
Two pipes make a ton.
But no one of these measures is of a determinate capacity. The report
of the committee of 1757-8, shows that the gallon is of very various
content; and that being the unit, all the others must vary with it.
The gallon and bushel contain--
224 and 1792 cubic inches, according to the standard wine
gallon preserved at Guildhall.
231 and 1848, according to the statute of 5th of Anne. 264.8
and 2118.4, according to the ancient Rumford quart, of 1228,
examined by the committee.
265.5 and 2124, according to three standard bushels preserved
in the Exchequer, to wit: one of Henry VII., without a rim;
one dated 1091, supposed for 1591, or 1601, and one dated 1601.
266.25 and 2130, according to the ancient Rumford gallon of
1228, examined by the committee.
268.75 and 2150, according to the Winchester bushel, as declared
by statute 13, 14, William III., which has been the model for
some of the grain States.
271, less 2 spoonfuls, and 2168, less 16 spoonfuls, according
to a standard gallon of Henry VII., and another dated 1601,
marked E. E., both in the Exchequer.
271 and 2168, according to a standard gallon in the Exchequer,
dated 1601, marked E., and called the corn gallon.
272 and 2176, according to the three standard corn gallons
last mentioned, as measured in 1688, by an artist for the
Commissioners of the Excise, generally used in the seaport
towns, and by mercantile people, and thence introduced into
some of the grain States.
277.18 and 2217.44, as established for the measure of coal by
the statute 12 Anne.
278 and 2224, according to the standard bushel of Henry VII.,
with a copper rim, in the Exchequer.
278.4 and 2227.2 according to two standard pints of 1601 and
1602, in the Exchequer.
280 and 2240, according to the standard quart of 1601, in the
Exchequer.
282 and 2256, according to the standard gallon for beer and
ale in the Treasury.
There are, moreover, varieties on these varieties, from the barrel to
the ton, inclusive; for, if the barrel be of herrings, it must contain
28 gallons by the statute 13 Eliz. c. 11. If of wine, it must contain
31½ gallons by the statute 2 Henry VI. c. 11, and 1 Rich. III. c. 15.
If of beer or ale, it must contain 34 gallons by the statute 1 William
and Mary, c. 24, and the higher measures in proportion.
In those of the United States which have not adopted the statutes of
William and Mary, and of Anne before cited, nor their substance, the wine
gallon of 231 cubic inches rests on the authority of very long usage,
before the 5th of Anne, the origin and foundation of which are unknown;
the bushel is the Winchester bushel, by the 11 Henry VII. undefined; and
the barrel of ale 32 gallons, and of beer 36 gallons, by the statute 23
Henry VIII c. 4.
The Secretary of State is not informed whether there have been any, and
what, alterations of these measures by the laws of the particular States.
It is proposed to retain this series of measures, but to fix the gallon
to one determinate capacity, as the unit of measure, both wet and dry;
for convenience is in favor of abolishing the distinction between wet
and dry measures.
The wine gallon, whether of 224 or 231 cubic inches, may be altogether
disregarded, as concerning, principally, the mercantile and the wealthy,
the least numerous part of the society, and the most capable of reducing
one measure to another by calculation. This gallon is little used among
the mass of farmers, whose chief habits and interests are in the size
of the corn bushel.
Of the standard measures before stated, two are principally distinguished
in authority and practice. The statute bushel of 2150 cubic inches, which
gives a gallon of 268.75 cubic inches, and the standard gallon of 1601,
called the corn gallon of 271 or 272 cubic inches, which has introduced
the mercantile bushel of 2276 inches. The former of these is most used
in some of the grain States, the latter in others. The middle term of
270 cubic inches may be taken as a mutual compromise of convenience,
and as offering this general advantage: that the bushel being of 2160
cubic inches, is exactly a cubic foot and a quarter, and so facilitates
the conversion of wet and dry measures into solid contents and tonnage,
and simplifies the connection of measures and weights, as will be shown
hereafter. It may be added, in favor of this, as a medium measure, that
eight of the standard, or statute measures before enumerated, are below
this term, and nine above it.
The measures to be made for use, being four sided, with
rectangular sides and bottom.
The pint will be 3 inches square, and 3¾ inches deep;
The quart 3 inches square, and 7½ inches deep;
The pottle 3 inches square, and 15 inches deep, or 4½, 5, and
6 inches;
The gallon 6 inches square, and 7½ inches deep, or 5, 6, and
9 inches;
The peck 6, 9, and 10 inches;
The half bushel 12 inches square, and 7½ inches deep; and
The bushel 12 inches square, and 15 inches deep, or 9, 15,
and 16 inches.
Cylindrical measures have the advantage of superior strength, but square
ones have the greater advantage of enabling every one who has a rule
in his pocket, to verify their contents by measuring them. Moreover,
till the circle can be squared, the cylinder cannot be cubed, nor its
contents exactly expressed in figures.
Let the measures of capacity, then, for the United States be--
A gallon of 270 cubic inches;
The gallon to contain 2 pottles;
The pottle 2 quarts;
The quart 2 pints;
The pint 4 gills;
Two gallons to make a peck;
Eight gallons a bushel or firkin;
Two bushels, or firkin, a strike or kilderkin;
Two strikes, or kilderkins, a coomb or barrel;
Two coombs, or barrels, a quarter or hogshead;
A hogshead and a third one tierce;
Two hogsheads a pipe, butt, or puncheon; and
Two pipes a ton.
And let all measures of capacity of dry subjects be stricken
with a straight strike.
WEIGHTS.
There are two series of weights in use among us; the one called
avoirdupois, the other troy.
_In the Avoirdupois series_:
The pound is divided into 16 ounces;
The ounce into 16 drachms;
The drachm into 4 quarters.
_In the Troy series_:
The pound is divided into 12 ounces;
The ounce (according to the subdivision of the apothecaries)
into 8 drachms;
The drachm into 3 scruples;
The scruple into 20 grains.
According to the subdivision for gold and silver, the ounce is divided
into twenty pennyweights, and the pennyweight into twenty-four grains.
So that the pound troy contains 5760 grains, of which 7000 are requisite
to make the pound avoirdupois; of course the weight of the pound troy
is to that of the 7000, or as 144 to 175.
It is remarkable that this is exactly the proportion of the ancient
liquid gallon of Guildhall of 224 cubic inches, to the corn gallon of
272; for 224 are to 272 as 144 to 175. (4.)
It is further remarkable still, that this is also the exact proportion
between the specific weight of any measure of wheat, and of the same
measure of water: for the statute bushel is of 64 pounds of wheat. Now
as 144 to 175, so are 64 pounds to 77.7 pounds; but 77.7 pounds is known
to be the weight of (5.) 2150.4 cubic inches of pure water, which is
exactly the content of the Winchester bushel, as declared by the statute
13, 14, Will. 3. That statute determined the bushel to be a cylinder of
18½ inches diameter, and 8 inches depth. Such a cylinder, as nearly as it
can be cubed, and expressed in figures, contains 2150.425 cubic inches;
a result which reflects authority on the declaration of Parliament, and
induces a favorable opinion of the care with which they investigated
the contents of the ancient bushel, and also a belief that there might
exist evidence of it at that day, unknown to the committees of 1758 and
1759.
We find, then, in a continued proportion 64 to 77.7 as 224 to 272, and as
144 to 175, that is to say, the specific weight of a measure of wheat,
to that of the same measure of water, as the cubic contents of the wet
gallon, to those of the dry; and as the weight of a pound troy to that
of a pound avoirdupois.
This seems to have been so combined as to render it indifferent whether
a thing were dealt out by weight or measure; for the dry gallon of wheat,
and the liquid one of wine, were of the same weight; and the avoirdupois
pound of wheat, and the troy pound of wine, were of the same measure.
Water and the vinous liquors, which enter most into commerce, are so
nearly of a weight, that the difference, in moderate quantities, would
be neglected by both buyer and seller; some of the wines being a little
heavier, and some a little lighter, than water.
Another remarkable correspondence is that between weights and measures.
For 1000 ounces avoirdupois of pure water fill a cubic foot, with
mathematical exactness.
What circumstances of the times, or purposes of barter or commerce, called
for this combination of weights and measures, with the subjects to be
exchanged or purchased, are not now to be ascertained. But a triple set
of exact proportionals representing weights, measures, and the things
to be weighed and measured, and a relation so integral between weights
and solid measures, must have been the result of design and scientific
calculation, and not a mere coincidence of hazard. It proves that the dry
and wet measures, the heavy and light weights, must have been original
parts of the system they compose--contrary to the opinion of the committee
of 1757, 1758, who thought that the avoirdupois weight was not an ancient
weight of the kingdom, nor ever even a legal weight, but during a single
year of the reign of Henry VIII.; and, therefore, concluded, otherwise
than will be here proposed, to suppress it altogether. Their opinion was
founded chiefly on the silence of the laws as to this weight. But the
harmony here developed in the system of weights and measures, of which
the avoirdupois makes an essential member, corroborated by a general
use, from very high antiquity, of that, or of a nearly similar weight
under another (6.) name, seem stronger proofs that this is legal weight,
than the mere silence of the written laws is of the contrary.
Be this as it may, it is in such general use with us, that, on the
principle of popular convenience, its higher denominations, at least, must
be preserved. It is by the avoirdupois pound and ounce that our citizens
have been used to buy and sell. But the smaller subdivisions of drachms
and quarters are not in use with them. On the other hand, they have been
used to weigh their money and medicine with the pennyweights and grains
troy weight, and are not in the habit of using the pounds and ounces
of that series. It would be for their convenience, then, to suppress
the pound and ounce troy, and the drachm and quarter avoirdupois; and
to form into one series the avoirdupois pound and ounce, and the troy
pennyweight and grain. The avoirdupois ounce contains 18 pennyweights
5½ grains troy weight. Divide it, then, into 18 pennyweights, and the
pennyweight, as heretofore, into 24 grains, and the new pennyweight will
contain between a third and a quarter of a grain more than the present
troy pennyweight; or, more accurately, it will be to that as 875 to
864--a difference not to be noticed, either in money or medicine, below
the denomination of an ounce.
But it will be necessary to refer these weights to a determinate mass of
some substance, the specific gravity of which is invariable. Rain water
is such a substance, and may be referred to everywhere, and through
all time. It has been found by accurate experiments that a cubic foot
of rain water weighs 1000 ounces avoirdupois, standard weights of the
exchequer. It is true that among these standard weights the committee
report small variations; but this experiment must decide in favor of
those particular weights, between which, and an integral mass of water,
so remarkable a coincidence has been found. To render this standard more
exact, the water should be weighed always in the same temperature of
air; as heat, by increasing its volume, lessens its specific gravity.
The cellar of uniform temperature is best for this also.
Let it, then, be established that an ounce is of the weight of a cube
of rain water, of one-tenth of a foot; or, rather, that it is the
thousandth part of the weight of a cubic foot of rain water, weighed
in the standard temperature; that the series of weights of the United
States shall consist of pounds, ounces, pennyweights, and grains; whereof
24 grains shall be one pennyweight;
18 pennyweights one ounce;
16 ounces one pound.
COINS.
Congress, in 1786, established the money unit at 375.64 troy grains
of pure silver. It is proposed to enlarge this by about the third of a
grain in weight, or a mill in value; that is to say, to establish it at
376 (or, more exactly, 375.989343) instead of 375.64 grains; because it
will be shown that this, as the unit of coin, will link in system with
the units of length, surface, capacity, and weight, whenever it shall be
thought proper to extend the decimal ratio through all these branches.
It is to preserve the possibility of doing this, that this very minute
alteration is proposed.
We have this proportion, then, 875 to 864, as 375.989343 grains troy to
371.2626277; the expression of the unit in the new grains.
Let it be declared, therefore, that the money unit, or dollar of the
United States, shall contain 371.262 American grains of pure silver.
If nothing more, then, is proposed, than to render uniform and stable
the system we already possess, this may be effected on the plan herein
detailed; the sum of which is: 1st. That the present measures of length
be retained, and fixed by an invariable standard. 2d. That the measures
of surface remain as they are, and be invariable also as the measures of
length to which they are to refer. 3d. That the unit of capacity, now so
equivocal, be settled at a medium and convenient term, and defined by
the same invariable measures of length. 4th. That the more known terms
in the two kinds of weights be retained, and reduced to one series, and
that they be referred to a definite mass of some substance, the specific
gravity of which never changes. And 5th. That the quantity of pure silver
in the money unit be expressed in parts of the weights so defined.
In the whole of this no change is proposed, except an insensible one in
the troy grain and pennyweight, and the very minute one in the money unit.
II. But if it be thought that, either now, or at any future time, the
citizens of the United States may be induced to undertake a thorough
reformation of their whole system of measures, weights and coins,
reducing every branch to the same decimal ratio already established in
their coins, and thus bringing the calculation of the principal affairs
of life within the arithmetic of every man who can multiply and divide
plain numbers, greater changes will be necessary.
The unit of measure is still that which must give law through the whole
system; and from whatever unit we set out, the coincidences between the
old and new ratios will be rare. All that can be done, will be to choose
such a unit as will produce the most of these. In this respect the second
rod has been found, on trial, to be far preferable to the second pendulum.
MEASURES OF LENGTH.
Let the second rod, then, as before described, be the standard of measure;
and let it be divided into five equal parts, each of which shall be
called a foot; for, perhaps, it may be better generally to retain the
name of the nearest present measure, where there is one tolerably near.
It will be about one quarter of an inch shorter than the present foot.
Let the foot be divided into 10 inches;
The inch into 10 lines;
The line into 10 points;
Let 10 feet make a decad;
10 decads one rood;
10 roods a furlong;
10 furlongs a mile.
SUPERFICIAL MEASURES.
Superficial measures have been estimated, and so may continue to be, in
squares of the measures of length, except in the case of lands, which
have been estimated by squares, called roods and acres. Let the rood be
equal to a square, every side of which is 100 feet. This will be 6.483
English feet less than the English (7.) rood every way, and 1311 square
feet less in its whole contents; that is to say, about one-eighth; in
which proportion, also, 4 roods will be less than the present acre.
MEASURES OF CAPACITY.
Let the unit of capacity be the cubic foot, to be called a bushel. It
will contain 1620.05506862 cubic inches, English; be about one-fourth
less than that before proposed to be adopted as a medium; one-tenth less
than the bushel made from 8 of the Guildhall gallons; and one-fourteenth
less than the bushel made from 8 Irish gallons of 217.6 cubic inches.
Let the bushel be divided into 10 pottles;
Each pottle into 10 demi-pints;
Each demi-pint into 10 metres, which will be of a cubic inch each.
Let 10 bushels be a quarter, and
10 quarters a last, or double ton.
The measures for use being four-sided, and the sides and bottoms
rectangular, the bushel will be a foot cube.
The pottle 5 inches square and four inches deep;
The demi-pint 2 inches square, and 2½ inches deep;
The metre, an inch cube.
WEIGHTS.
Let the weight of a cubic inch of rain water, or the thousandth part of
a cubic foot, be called an ounce; and let the ounce be divided into 10
double scruples:
The double scruple into 10 carats;
The carat into 10 minims or demi-grains;
The minim into 10 mites.
Let 10 ounces make a pound;
10 pounds a stone;
16 stones a kental;
10 kentals a hogshead.
COINS.
Let the money unit, or dollar, contain eleventh-twelfths of an ounce of
pure silver. This will be 376 troy grains, (or more exactly, 375.959343
troy grains,) which will be about a third of a grain, (or more exactly,
.349343 of a grain,) more than the present unit. This, with the twelfth
of alloy already established, will make the dollar or unit, of the weight
of an ounce, or of a cubic inch of rain water, exactly. The series of
mills, cents, dimes, dollars, and eagles, to remain as already established
(8.)
The second rod, or the second pendulum, expressed in the measures of
other countries, will give the proportion between their measures and
those of the United States.
Measures, weights and coins, thus referred to standards unchangeable
in their nature, (as is the length of a rod vibrating seconds, and the
weight of a definite mass of rain water,) will themselves be unchangeable.
These standards, too, are such as to be accessible to all persons, in all
times and places. The measures and weights derived from them fall in so
nearly with some of those now in use, as to facilitate their introduction;
and being arranged in decimal ratio, they are within the calculation of
every one who possesses the first elements of arithmetic, and of easy
comparison, both for foreigners and citizens, with the measures, weights,
and coins of other countries.
A gradual introduction would lessen the inconveniences which might attend
too sudden a substitution, even of an easier for a more difficult system.
After a given term, for instance, it might begin in the custom-houses,
where the merchants would become familiarized to it. After a further
term, it might be introduced into all legal proceedings, and merchants
and traders in foreign commodities might be required to use it in
their dealings with one another. After a still further term, all other
descriptions of people might receive it into common use. Too long a
postponement, on the other hand, would increase the difficulties of its
reception with the increase of our population.
_Appendix, containing illustrations and developments of some passages
of the preceding report._
(1.) In the second pendulum with a spherical bob, call the distance
between the centres of suspension and of the bob, 2x19.575, or 2d, and
the radius of the bob = _r_; then 2d:r::r: rr/2d and ⅖ of this last
proportional expresses the displacement of the centre of oscillation, to
wit: 2rr/5x2d=rr/5d. Two inches have been proposed as a proper diameter
for such a bob. In that case r will be = 1. inch, and _rr_/5d = 1/9787
inches.
In the cylindrical second rod, call the length of the rod, 3 x 19.575.
or 3d, and its radius = _r_ and _rr_/2x3d=_rr_/6d will express the
displacement of the centre of oscillation. It is thought the rod will
be sufficiently inflexible if it be ⅕ of an inch in diameter. Then _r_
will be = .1 inch, and _rr_/6d = 1/11745 inches, which is but the 120th
part of the displacement in the case of the pendulum with a spherical
bob, and but the 689,710th part of the whole length of the rod. If the
rod be even of half an inch diameter, the displacement will be but 1/1879
of an inch, or 1/110356 of the length of the rod.
(2.) Sir Isaac Newton computes the pendulum for 45° to be 36 pouces
8.428 lignes. Picard made the English foot 11 pouces 2.6 lignes, and
Dr. Maskelyne 11 pouces 3.11 lignes. D'Alembert states it at 11 pouces
3 lignes, which has been used in these calculations as a middle term,
and gives us 36 pouces 8.428 lignes = 39.1491 inches. This length for
the pendulum of 45° had been adopted in this report before the Bishop
of Autun's proposition was known here. He relies on Mairan's ratio for
the length of the pendulum in the latitude of Paris, to wit: 504:257::72
pouces to a 4th proportional, which will be 36.71428 pouces=39.1619
inches, the length of the pendulum for latitude 48° 50'. The difference
between this and the pendulum for 45° is .0113 of an inch; so that
the pendulum for 45° would be estimated, according to Mairan, at
39.1619--.0113 = 39.1506 inches, almost precisely the same with Newton's
computation herein adopted.
(3.) Sir Isaac Newton's computations for the different degrees of
latitude, from 30° to 45°, are as follows:
Pieds. Lignes.
30° 3 7.948
35 3 8.099
40 3 8.261
41 3 8.294
42 3 8.327
43 3 8.361
44 3 8.394
45 3 8.428
(4.) Or, more exactly, 144:175::224:272.2.
(5.) Or, more exactly, 62.5:1728::77.7:2150.39.
(6.) The merchant's weight.
(7.) The Eng. rood contains 10,890 sq. feet = 104.355 feet sq.
(8.) _The Measures, Weights, and Coins of the Decimal System, estimated
in those of England, now used in the United States_.
1. MEASURES OF LENGTH.
Feet. Equivalent in English measure.
The point, .001 .011 inch.
The line, .01 .117
The inch, .1 1.174, about 1/7 more than the Eng. inch.
The foot, 1. } 11.744736 } about 1/48 less than the
} .978728 feet, } English foot.
The decad, 10. 9.787, about 1/48 less than the 10 feet
rod of the carpenters.
The rood, 100. 97.872, about 1/16 less than the side of
an English square rood.
The furlong, 1000. 978.728, about ⅓ more than the Eng. fur.
The mile, 10000. 9787.28, about 1-6/7 English mile, nearly
the Scotch and Irish mile, and ½
the German mile.
2. SUPERFICIAL MEASURE.
Roods.
The hundredth, .01 95.69 square feet English.
The tenth, .1 957.9
The rood, 1. 9579.085
The double acre, 10. 2.199, or say 2.2 acres English.
The square furlong, 100. 22.
3. MEASURE OF CAPACITY.
Bushels. Cub. Inches
The metre, .001 1.62
The demi-pint, .01 16.2, about 1/24 less than the English
half-pint.
The pottle, .1 162.005, about ⅙ more than the English
pottle.
The bushel, 1. { 1620.05506862 }
{ .937531868414884352 cub feet. }
about ¼ less than the middle sized
English bushel.
The quarter, 10. 9.375, about ⅕ less than the Eng. qr.
The last, 100. 93.753, about 1/7 more than the Eng. last.
4. WEIGHTS.
Pounds. Avoirdupois. Troy.
Mite, .00001 .041 grains, about ⅕
less than the English
mite.
Minim, or } .0001 .4101, about ⅕ less
demi-grain, } than half-grain troy.
Carat, .001 .4101, about 1/40 more
than the carat troy.
Double } .01 41.017, about 1/40
scruple, } more than 2 scruples
troy.
Ounce, .1 { 9375318684148 } { 410.170192431
{ 84352 oz. } { .85452 oz.
about 1/16 less than the ounce avoirdupois.
Pound, 1. { 9.375 } .712101 lb., about ¼
{ .585957417759 lb. } less than the pound troy.
Stone, 10. { 93.753 oz. } 7.121 about ¼ less
{ 5.8595 lb. } than the English stone
of 8 lbs. avoirdupois.
Kental, 100. { 937.531 oz. } 71.21 about 4/10 less
{ 58.5957 lb. } than the English kental
of 100 lbs. avoirdupois.
Hogshead, 1000. { 9375.318 oz. } 712.101
{ 585.9574 lb. }
5. COINS.
Dollars.
The mill, .001
The cent, .01
The dime, .1
Troy grains.
Dollar, 1. {375.98934306 pure silver.
{ 34.18084937 alloy.
------------
Eagle, 10. 410.17019243
_Postscript._
January 10, 1791.
It is scarcely necessary to observe that the measures, weights, and
coins, proposed in the preceding report, will be derived altogether from
mechanical operations, viz.: A rod, vibrating seconds, divided into five
equal parts, one of these subdivided, and multiplied decimally, for every
measure of length, surface, and capacity, and these last filled with
water, to determine the weights and coins. The arithmetical estimates in
the report were intended only to give an idea of what the new measures,
weights, and coins, would be nearly, when compared with the old. The
length of the standard or second rod, therefore, was assumed from that of
the pendulum; and as there has been small differences in the estimates
of the pendulum by different persons, that of Sir Isaac Newton was
taken, the highest authority the world has yet known. But, if even he
has erred, the measures, weights, and coins proposed, will not be an atom
the more or less. In cubing the new foot, which was estimated at .978728
of an English foot, or 11.744736 English inches, an arithmetical error
of an unit happened in the fourth column of decimals, and was repeated
in another line in the sixth column, so as to make the result one ten
thousandth and one millionth of a foot too much. The thousandth part of
this error (about one ten millionth of a foot) consequently fell on the
metre of measure, the ounce weight, and the unit of money. In the last
it made a difference of about the twenty-fifth part of a grain Troy, in
weight, or the ninety-third of a cent in value. As it happened, this error
was on the favorable side, so that the detection of it approximates our
estimate of the new unit exactly that much nearer to the old, and reduces
the difference between them to 34, instead of 38 hundredths of a grain
Troy; that is to say, the money unit instead of 375.64 Troy grains of
pure silver, as established heretofore, will now be 375.98934306 grains,
as far as our knowledge of the length of the second pendulum enables us
to judge; and the current of authorities since Sir Isaac Newton's time,
gives reason to believe that his estimate is more probably above than
below the truth, consequently future corrections of it will bring the
estimate of the new unit still nearer to the old.
The numbers in which the arithmetical error before mentioned showed
itself in the table, at the end of the report, have been rectified, and
the table re-printed.
The head of superficial measures in the last part of the report, is
thought to be not sufficiently developed. It is proposed that the rood
of land, being 100 feet square, (and nearly a quarter of the present
acre,) shall be the unit of land measure. This will naturally be divided
into tenths and hundredths, the latter of which will be a square decad.
Its multiples will also, of course, be tens, which may be called double
acres, and hundreds, which will be equal to a square furlong each. The
surveyor's chain should be composed of 100 links of one foot each.
FOOTNOTE:
[23] See Vol. I. p. 162.
VIII.--_Opinion upon the question whether the President should veto the
Bill, declaring that the seat of government shall be transferred to the
Potomac, in the year 1790._
July 15, 1790.
A bill having passed both houses of Congress, and being now before the
President, declaring that the seat of the federal government shall be
transferred to the Potomac in the year 1790, that the session of Congress
next ensuing the present shall be held in Philadelphia, to which place
the offices shall be transferred before the 1st of December next, a
writer in a public paper of July 13, has urged on the consideration
of the President, that the constitution has given to the two houses
of Congress the exclusive right to adjourn themselves; that the will
of the President mixed with theirs in a decision of this kind, would
be an inoperative ingredient, repugnant to the constitution, and that
he ought not to permit them to part, in a single instance, with their
constitutional rights; consequently, that he ought to negative the bill.
That is now to be considered.
Every man, and every body of men on earth, possesses the right of
self-government. They receive it with their being from the hand of nature.
Individuals exercise it by their single will; collections of men by that
of their majority; for the law of the _majority_ is the natural law of
every society of men. When a certain description of men are to transact
together a particular business, the times and places of their meeting and
separating, depend on their own will; they make a part of the natural
right of self-government. This, like all other natural rights, may be
abridged or modified in its exercise by their own consent, or by the
law of those who depute them, if they meet in the right of others; but
as far as it is not abridged or modified, they retain it as a natural
right, and may exercise them in what form they please, either exclusively
by themselves, or in association with others, or by others altogether,
as they shall agree.
Each house of Congress possesses this natural right of governing itself,
and, consequently, of fixing its own times and places of meeting, so
far as it has not been abridged by the law of those who employ them,
that is to say, by the Constitution. This act manifestly considers them
as possessing this right of course, and therefore has nowhere given it
to them. In the several different passages where it touches this right,
it treats it as an existing thing, not as one called into existence by
them. To evince this, every passage of the constitution shall be quoted,
where the right of adjournment is touched; and it will be seen that no
one of them pretends to give that right; that, on the contrary, every
one is evidently introduced either to enlarge the right where it would
be too narrow, to restrain it where, in its natural and full exercise,
it might be too large, and lead to inconvenience, to defend it from the
latitude of its own phrases, where these were not meant to comprehend
it, or to provide for its exercise by others, when they cannot exercise
it themselves.
"A majority of each house shall constitute a quorum to do business; but
a smaller number may adjourn from day to day, and may be authorized to
compel the attendance of absent members." Art. 1. Sec. 5. A majority
of every collection of men being naturally necessary to constitute its
will, and it being frequently to happen that a majority is not assembled,
it was necessary to enlarge the natural right by giving to "a smaller
number than a majority" a right to compel the attendance of the absent
members, and, in the meantime, to adjourn from day to day. This clause,
then, does not pretend to give to a majority a right which it knew that
majority would have of themselves, but to a number _less than a majority_,
a right to which it knew that lesser number could not have of themselves.
"Neither house, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days, nor to any other
place than that in which the two houses shall be sitting." Ibid. Each
house exercising separately its natural right to meet when and where it
should think best, it might happen that the two houses would separate
either in time or place, which would be inconvenient. It was necessary,
therefore, to keep them together by restraining their natural right of
deciding on separate times and places, and by requiring a concurrence
of will.
But, as it might happen that obstinacy, or a difference of object, might
prevent this concurrence, it goes on to take from them, in that instance,
the right of adjournment altogether, and to transfer it to another, by
declaring, Art. 2, Sec. 3, that "in case of disagreement between the
two houses, with respect to the time of adjournment, the President may
adjourn them to such time as he shall think proper."
These clauses, then, do not import a gift, to the two houses, of a general
right of adjournment, which it was known they would have without that
gift, but to restrain or abrogate the right it was known they would have,
in an instance where, exercised in its full extent, it might lead to
inconvenience, and to give that right to another who would not naturally
have had it. It also gives to the President a right, which he otherwise
would not have had, "to convene both houses, or either of them, on
extraordinary occasions." Thus substituting the will of another, where
they are not in a situation to exercise their own.
"Every order, resolution, or vote, to which the concurrence of the Senate
and House of Representatives may be necessary (except on a question of
adjournment), shall be presented to the President for his approbation,
&c." Art. 1, Sec. 7. The latitude of the general words here used would
have subjected the natural right of adjournment of the two houses to the
will of the President, which was not intended. They therefore expressly
"except questions of adjournment" out of their operation. They do not
here give a right of adjournment, which it was known would exist without
their gift, but they defend the existing right against the latitude of
their own phrases, in a case where there was no good reason to abridge
it. The exception admits they will have the right of adjournment, without
pointing out the source from which they will derive it.
These are all the passages of the constitution (one only excepted, which
shall be presently cited) where the right of adjournment is touched;
and it is evident that none of these are introduced to give that right;
but every one supposes it to be existing, and provides some specific
modification for cases where either a defeat in the natural right, or
a too full use of it, would occasion inconvenience.
The right of adjournment, then, is not given by the constitution, and
consequently it may be modified by law without interfering with that
instrument. It is a natural right, and, like all other natural rights,
may be abridged or regulated in its exercise by law; and the concurrence
of the third branch in any law regulating its exercise is so efficient
an ingredient in that law, that the right cannot be otherwise exercised
but after a repeal by a new law. The express terms of the constitution
itself show that this right may be modified _by law_, when, in Art. 1,
Sec. 4. (the only remaining passage on the subject not yet quoted) it
says, "The Congress shall assemble at least once in every year, and such
meeting shall be the first Monday in December, unless they shall, _by
law_, appoint a different day." Then another day may be appointed _by
law_; and the President's assent is an efficient ingredient in that law.
Nay further, they cannot adjourn over the first Monday of December but
by _a law_. This is another constitutional abridgment of their natural
right of adjournment; and completing our review of all the clauses in
the constitution which touch that right, authorizes us to say no part
of that instrument gives it; and that the houses hold it, not from the
constitution, but from nature.
A consequence of this is, that the houses may, by a joint resolution,
remove themselves from place to place, because it is a part of their
right of self-government; but that as the right of self-government does
not comprehend the government of others, the two houses cannot, by a
joint resolution of their majorities only, remove the executive and
judiciary from place to place. These branches possessing also the rights
of self-government from nature, cannot be controlled in the exercise of
them but by a law, passed in the forms of the constitution. The clause
of the bill in question, therefore, was necessary to be put into the form
of a law, and to be submitted to the President, so far as it proposes to
effect the removal of the Executive and Judiciary to Philadelphia. So far
as respects the removal of the present houses of legislation thither, it
was not necessary to be submitted to the President; but such a submission
is not repugnant to the constitution. On the contrary, if he concurs,
it will so far fix the next session of Congress at Philadelphia that it
cannot be changed but by a regular law.
The sense of Congress itself is always respectable authority. It has been
given very remarkably on the present subject. The address to the President
in the paper of the 13th is a complete digest of all the arguments urged
on the floor of the Representatives against the constitutionality of the
bill now before the President; and they were overruled by a majority of
that house, comprehending the delegation of all the States south of the
Hudson, except South Carolina. At the last session of Congress, when
the bill for remaining a certain term at New York, and then removing
to Susquehanna or Germantown was objected to on the same ground, the
objection was overruled by a majority comprehending the delegations of
the northern half of the union with that of South Carolina. So that the
sense of every State in the union has been expressed, by its delegation,
against this objection South Carolina excepted, and excepting also Rhode
Island, which has never yet had a delegation in place to vote on the
question. In both these instances, the Senate concurred with the majority
of the Representatives. The sense of the two houses is stronger authority
in this case, as it is given against their own supposed privilege.
It would be as tedious, as it is unnecessary, to take up and discuss one
by one, the objections proposed in the paper of July 13. Every one of
them is founded on the supposition that the two houses hold their right
of adjournment from the constitution. This error being corrected, the
objections founded on it fall of themselves.
It would also be work of mere supererogation to show that, granting
what this writer takes for granted (that the President's assent would
be an inoperative ingredient, because excluded by the constitution, as
he says), yet the particular views of the writer would be frustrated,
for on every hypothesis of what the President may do, Congress must go
to Philadelphia. 1. If he assents to the bill, that assent makes good
law of the part relative to the Patomac; and the part for holding the
next session at Philadelphia is good, either as an ordinance, or a vote
of the two houses, containing a complete declaration of their will in
a case where it is competent to the object; so that they must go to
Philadelphia in that case. 2. If he dissents from the bill it annuls
the part relative to the Patomac; but as to the clause for adjourning
to Philadelphia, his dissent being as inefficient as his assent, it
remains a good ordinance or vote, of the two houses for going thither,
and consequently they must go in this case also. 3. If the President
withholds his will out of the bill altogether, by a ten days' silence,
then the part relative to the Potomac becomes a good law without his
will, and that relative to Philadelphia is good also, either as a law,
or an ordinance, or a vote of the two houses; and consequently in this
case also they go to Philadelphia.
IX.--_Opinion respecting the expenses and salaries of foreign Ministers._
July 17, 1790.
The bill on the intercourse with foreign nations restrains the President
from allowing to Ministers Plenipotentiary, or to Congress, more than
$9,000, and $4,500 for their "personal services, and other expenses."
This definition of the objects for which the allowance is provided
appearing vague, the Secretary of State thought it his duty to confer
with the gentlemen heretofore employed as ministers in Europe, to
obtain from them, in aid of his own information, an enumeration of the
expenses incident to these offices, and their opinion which of them
would be included within the fixed salary, and which would be entitled
to be charged separately. He, therefore, asked a conference with the
Vice-President, who was acquainted with the residences of London and the
Hague, and the Chief Justice, who was acquainted with that of Madrid,
which took place yesterday.
The Vice-President, Chief Justice, and Secretary of State, concurred in
the opinion that the salaries named by the act are much below those of
the same grade at the courts of Europe, and less than the public good
requires they should be. Consequently, that the expenses not included
within the definition of the law, should be allowed as an additional
charge.
1. _Couriers, Gazettes, Translating necessary papers, Printing necessary
papers, Aids to poor Americans._--All three agreed that these ought to
be allowed as additional charges, not included within the meaning of
the phrase, "his personal services, and other expenses."
2. _Postage, Stationary, Court-fees._--One of the gentlemen being of
opinion that the phrase "personal services, and other expenses," was
meant to comprehend all the _ordinary expenses_ of the office, considered
this second class of expenses as _ordinary_, and therefore included in
the fixed salary. The first class before mentioned, he had viewed as
_extraordinary_. The other two gentlemen were of opinion this second
class was also out of the definition, and might be allowed in addition to
the salary. One of them, particularly, considered the phrase as meaning
"personal services and personal expenses," that is, expenses for his
personal accommodation, comforts, and maintenance. This second class of
expenses is not within that description.
3. _Ceremonies;_ such as diplomatic and public dinners, galas, and
illuminations. One gentleman only was of opinion these might be allowed.
The expenses of the first class may probably amount to about fifty dollars
a year. Those of the second, to about four or five hundred dollars. Those
of the third are so different at different courts, and so indefinite in
all of them, that no general estimate can be proposed.
The Secretary of State thought it his duty to lay this information before
the President, supposing it might be satisfactory to himself, as well
as to the diplomatic gentlemen, to leave nothing uncertain as to their
allowances; and because, too, a previous determination is in some degree
necessary to the forming an estimate which may not exceed the whole sum
appropriated.
The Secretary of State has also consulted on the subject of the Morocco
consulship, with Mr. Barclay, who furnished him with the note, of which
a copy accompanies this. Considering all circumstances, Mr. Barclay is
of opinion, we had better have only a consul there, and that he should be
the one now residing at Morocco, because, as secretary to the Emperor, he
sees him every day, and possesses his ear. He is of opinion six hundred
dollars a year might suffice for him, and that it should be proposed to
him not as a salary, but as a sum in gross intended to cover his expenses,
and to save the trouble of keeping accounts. That this consul should be
authorized to appoint agents in the seaports, who would be sufficiently
paid by the consignments of vessels. He thinks the consul at Morocco
would most conveniently receive his allowance through the channel of
our Chargé at Madrid, on whom, also, this consulate had better be made
dependent for instructions, information, and correspondence, because of
the daily intercourse between Morocco and Cadiz.
The Secretary of State, on a view of Mr. Barclay's note, very much
doubts the sufficiency of the sum of six hundred dollars; he supposes a
little money there may save a great deal; but he is unable to propose any
specific augmentation till a view of the whole diplomatic establishments
and its expenses, may furnish better grounds for it.
[Appended to this note, were the following estimate of the expenses
of foreign ministers, and of the probable calls on our foreign fund,
from July 1, 1790, to July 1, 1791.--ED.]
_Estimate of the Expenses of a Minister Plenipotentiary._
July 19, 1790.
Minister Plenipotentiary, his salary $9,000
His outfit, suppose it to happen once in seven years,
will average 1,285
His return at a quarter's salary will average 321
Extras, viz.: Gazettes, Translating, Printing, Aids to poor
American sailors, Couriers, and Postage, about 350
His Secretary 1,350
-------
$12,396
_Estimate for a Chargé des Affaires._
Chargé des Affaires, his salary $4,500
His outfit, once in seven years, equal to an annual sum of 643
His return at a quarter's salary, do 161
Extras, as above 350
------
$5,654
The Agent at the Hague, his salary $1,300
Extras 100
-----
$1,400
_Estimate of the Annual Expenses of the Establishment proposed._
France, a Minister Plenipotentiary $12,306
London, do. do. 12,306
Madrid, a Chargé des Affaires 5,654
Lisbon, do. do. do. 5,654
Hague, an agent 1,400
Morocco, a consul 1,800
Presents to foreign ministers on taking leave, at $1,000
each, more or less, according to their favor and time.
There will be five of them. If exchanged once in seven
years, it will be annually 715
-----
$39,835
_Estimate of the probable calls on our foreign fund from July 1, 1790,
when the act for foreign intercourse passed, to July 1, 1791._
France, a Minister Plenipotentiary, his outfit $9,000
His salary, suppose it to commence August 1st 8,250
Extras 320
Secretary 1,237.5 - $18,807.5
Chargé, suppose him to remain till November 1st. Salary 1,500
Extras 117
His return, a quarter's salary 1,125 - 2,742
Madrid, a Chargé, his salary 4,500
Extras 350 - 4,850
Lisbon, a Chargé, (or Resident,) his outfit 4,500
His salary, suppose it to commence January 1, 1791 2,250
Extras 175 - 6,925
London, an Agent, suppose to commence October 1st, at
$1,350 salary 1,012.5
Extras, (at $100 a year) 75 - 1,087.5
Hague, an Agent 1,400
Morocco, Consul 1,800 - 3,200
Presents to foreign Ministers. The dye about 500
Two medals and chains 2,000 - 2,500
---------
$40,112
X.--_Opinion in regard to the continuance of the monopoly of the commerce
of the Creek nation, enjoyed by Col. McGillivray_:
July 29th, 1790.
Colonel McGillivray, with a company of British merchants, having hitherto
enjoyed a monopoly of the commerce of the Creek nation, with a right
of importing their goods duty free, and considering these privileges
as the principal sources of his power over that nation, is unwilling to
enter into treaty with us, unless they can be continued to him. And the
question is how this may be done consistently with our laws, and so as
to avoid just complaints from those of our citizens who would wish to
participate of the trade?
Our citizens, at this time, are not permitted to trade in that nation.
The nation has a right to give us their peace, and to withhold their
commerce, to place it under whatever monopolies or regulations they
please. If they insist that only Colonel McGillivray and his company
shall be permitted to trade among them, we have no right to say the
contrary. We shall even gain some advantage in substituting citizens of
the United States instead of British subjects, as associates of Colonel
McGillivray, and excluding both British and Spaniards from the country.
Suppose, then, it be expressly stipulated by treaty, that no person
be permitted to trade in the Creek country, without a license from the
President, that but a fixed number shall be permitted to trade there at
all, and that the goods imported for and sent to the Creek nation, shall
be duty free. It may further be either expressed that the person licensed
shall be approved by the leader or leaders of the nation, or without
this, it may be understood between the President and McGillivray that the
stipulated number of licenses shall be sent to him blank, to fill up. A
treaty made by the President, with the concurrence of two-thirds of the
Senate, is a law of the land, and a law of superior order, because it not
only repeals past laws, but cannot itself be repealed by future ones.[24]
The treaty, then, will legally control the duty acts, and the acts for
licensing traders, in this particular instance. When a citizen applies
for a license, who is not of McGillivray's partnership, he will be told
that but a given number could be licensed by the treaty, and that the
number is full. It seems that in this way no law will be violated, and
no just cause of complaint will be given; on the contrary, the treaty
will have bettered our situation, though not in the full degree which
might have been wished.
FOOTNOTE:
[24] [At a later period, upon reviewing this opinion, the
following note was appended by Mr. Jefferson.--Ed.--viz.]
"Unless with the consent or default of the other
contracting party. It may well be doubted, too, and perhaps
denied, that the treaty power can control a law. The
question here proposed was then of the first impression.
Subsequent investigations have proved that the contrary
position is the more general truth."
XI.--_Opinion respecting our foreign debt._
August 26, 1790.