proper for carrying into execution the enumerated powers." But they can
all be carried into execution without a bank. A bank therefore is not
_necessary_, and consequently not authorized by this phrase.
It has been urged that a bank will give great facility or convenience
in the collection of taxes. Suppose this were true: yet the Constitution
allows only the means which are "_necessary_," not those which are merely
"convenient" for effecting the enumerated powers. If such a latitude of
construction be allowed to this phrase as to give any non-enumerated
power, it will go to every one, for there is not one which ingenuity
may not torture into a _convenience_ in some instance _or other_, to
_some one_ of so long a list of enumerated powers. It would swallow up
all the delegated powers, and reduce the whole to one power, as before
observed. Therefore it was that the Constitution restrained them to
the _necessary_ means, that is to say, to those means without which the
grant of power would be nugatory.
But let us examine this convenience and see what it is. The report on
this subject, page 3, states the only _general_ convenience to be, the
preventing the transportation and re-transportation of money between the
States and the treasury, (for I pass over the increase of circulating
medium, ascribed to it as a want, and which, according to my ideas of
paper money, is clearly a demerit.) Every State will have to pay a sum
of tax money into the treasury; and the treasury will have to pay, in
every State, a part of the interest on the public debt, and salaries
to the officers of government resident in that State. In most of the
States there will still be a surplus of tax money to come up to the
seat of government for the officers residing there. The payments of
interest and salary in each State may be made by treasury orders on the
State collector. This will take up the great export of the money he has
collected in his State, and consequently prevent the great mass of it
from being drawn out of the State. If there be a balance of commerce
in favor of that State against the one in which the government resides,
the surplus of taxes will be remitted by the bills of exchange drawn for
that commercial balance. And so it must be if there was a bank. But if
there be no balance of commerce, either direct or circuitous, all the
banks in the world could not bring up the surplus of taxes, but in the
form of money. Treasury orders then, and bills of exchange may prevent
the displacement of the main mass of the money collected, without the
aid of any bank; and where these fail, it cannot be prevented even with
that aid.
Perhaps, indeed, bank bills may be a more _convenient_ vehicle than
treasury orders. But a little _difference_ in the degree of _convenience_,
cannot constitute the necessity which the constitution makes the ground
for assuming any non-enumerated power.
Besides; the existing banks will, without a doubt, enter into arrangements
for lending their agency, and the more favorable, as there will be a
competition among them for it; whereas the bill delivers us up bound
to the national bank, who are free to refuse all arrangement, but on
their own terms, and the public not free, on such refusal, to employ any
other bank. That of Philadelphia, I believe, now does this business, by
their post-notes, which, by an arrangement with the treasury, are paid
by any State collector to whom they are presented. This expedient alone
suffices to prevent the existence of that _necessity_ which may justify
the assumption of a non-enumerated power as a means for carrying into
effect an enumerated one. The thing may be done, and has been done, and
well done, without this assumption; therefore, it does not stand on that
degree of _necessity_ which can honestly justify it.
It may be said that a bank whose bills would have a currency all over the
States, would be more convenient than one whose currency is limited to
a single State. So it would be still more convenient that there should
be a bank, whose bills should have a currency all over the world. But
it does not follow from this superior conveniency, that there exists
anywhere a power to establish such a bank; or that the world may not go
on very well without it.
Can it be thought that the Constitution intended that for a shade or two
of _convenience_, more or less, Congress should be authorized to break
down the most ancient and fundamental laws of the several States; such
as those against Mortmain, the laws of Alienage, the rules of descent,
the acts of distribution, the laws of escheat and forfeiture, the laws
of monopoly? Nothing but a necessity invincible by any other means, can
justify such a prostitution of laws, which constitute the pillars of our
whole system of jurisprudence. Will Congress be too straight-laced to
carry the constitution into honest effect, unless they may pass over the
foundation-laws of the State government for the slightest convenience
of theirs?
The negative of the President is the shield provided by the constitution
to protect against the invasions of the legislature: 1. The right of the
Executive. 2. Of the Judiciary. 3. Of the States and State legislatures.
The present is the case of a right remaining exclusively with the States,
and consequently one of those intended by the Constitution to be placed
under its protection.
It must be added, however, that unless the President's mind on a view of
everything which is urged for and against this bill, is tolerably clear
that it is unauthorised by the Constitution; if the pro and the con
hang so even as to balance his judgment, a just respect for the wisdom
of the legislature would naturally decide the balance in favor of their
opinion. It is chiefly for cases where they are clearly misled by error,
ambition, or interest, that the Constitution has placed a check in the
negative of the President.
FOOTNOTE:
[26] Though the Constitution controls the laws of Mortmain
so far as to permit Congress itself to hold land for
certain purposes, yet not so far as to permit them to
communicate a similar right to other corporate bodies.
XXII.--_Opinion relative to locating the Ten Mile Square for the Federal
Government, and building the Federal city._
March 11, 1791.
Objects which may merit the attention of the President, at Georgetown.
The commissioners to be called into action.
Deeds of cession to be taken from the land-holders.
Site of the capitol and President's house to be determined on.
Proclamation completing the location of the territory, and fixing the
site of the capitol.
Town to be laid off. Squares of reserve are to be decided on for the
capitol, President's house, offices of government, townhouse, prison,
market, and public walks.
Other squares for present sale designated.
Terms of sale to be settled. As there is not as yet a town legislature,
and things may be done before there is one to prevent them, which yet it
would be desirable to prevent, it would seem justifiable and expedient
that the President should form a capitulary of such regulations as he may
think necessary to be observed, until there shall be a town legislature
to undertake this office; such capitulary to be indented, signed, sealed,
and recorded, according to the laws of conveyance in Maryland. And to
be referred to in every deed for conveyance of the lots to purchasers,
so as to make a part thereof. The same thing might be effected, by
inserting special covenants for every regulation in every deed; but the
former method is the shortest. I cannot help again suggesting here one
regulation formerly suggested, to wit: To provide for the extinguishment
of fires, and the openness and convenience of the town, by prohibiting
houses of excessive height. And making it unlawful to build on any one's
purchase any house with more than two floors between the common level
of the earth and the eaves, nor with any other floor in the roof than
one at the eaves. To consider in what way the contracts for the public
buildings shall be made, and whether as many bricks should not be made
this summer as may employ brick-layers in the beginning of the season
of 1792, till more can be made in that season.
With respect to the amendment of the location so as to include
Bladensburgh. I am of opinion it may be done with the consent of the
legislature of Maryland, and that that consent may be so far counted
on, as to render it expedient to declare the location at once.
[Illustration]
The location A B C D A having been once made, I consider as obligatory
and unalterable, but by consent of parties, except so far as was
necessary to render it practicable by a correction of the beginning.
That correction might be lawfully made either by stopping at the river,
or at the spring of Hunting creek, or by lengthening the course from the
court-house so that the second course should strike the mouth of Hunting
creek. I am of opinion, therefore, that the beginning at the mouth of
Hunting creek, is legally justifiable. But I would advise the location
E F G H E to be hazarded so as to include Bladensburgh, because it is
a better location, and I think will certainly be confirmed by Maryland.
That State will necessarily have to pass another act confirming whatever
location shall be made, because her former act authorized the delegates
_then_ in office, to convey the lands. But as they were not located, no
conveyance has been made, and those persons are now out of office, and
dispersed. Suppose the non-concurrence of Maryland should defeat the
location E F G H E, it can only be done on this principle, that the first
location A B C D A was valid, and unalterable, but by mutual consent.
Then their non-concurrence will re-establish the first location A B C D
A, and the second location will be good for the part E I D K E without
their concurrence, and this will place us where we should be were we
now to complete the location E B C K E. Consequently, the experiment of
an amendment proposed can lose nothing, and may gain, and probably will
gain, the better location.
When I say it can lose nothing, I count as nothing, the triangle A I E,
which would be in neither of the locations. Perhaps this might be taken
in afterwards, either with or without the consent of Virginia.
XXIII.--_Report on the policy of securing particular marks to
Manufacturers, by law._
December 9, 1791.
The Secretary of State, to whom was referred by the House of
Representatives the petition of Samuel Breck and others, proprietors of a
sail-cloth manufactory in Boston, praying that they may have the exclusive
privilege of using particular marks for designating the sail-cloth of
their manufactory, has had the same under consideration, and thereupon
Reports, That it would, in his opinion, contribute to fidelity in the
execution of manufacturers, to secure to every manufactory an exclusive
right to some mark on its wares, proper to itself.
That this should be done by general laws, extending equal right to every
case to which the authority of the Legislature should be competent.
That these cases are of divided jurisdiction: Manufactures made and
consumed within a State being subject to State legislation, while those
which are exported to foreign nations, or to another State, or into
the Indian Territory, are alone within the legislation of the General
Government.
That it will, therefore, be reasonable for the General Government to
provide in this behalf by law for those cases of manufacture generally,
and those only which relate to commerce with foreign nations, and among
the several States, and with the Indian Tribes.
And that this may be done by permitting the owner of every manufactory, to
enter in the records of the court of the district wherein his manufactory
is, the name with which he chooses to mark or designate his wares, and
rendering it penal in others to put the same mark to any other wares.
XXIV.--_Opinion relative to the demolition of Mr. Carroll's house by
Major L'Enfant, in laying out the Federal City._
December 11, 1791.
Observations on Major L'Enfant's letter of December 7th, 1791, to the
President, justifying his demolition of the house of Mr. Carroll, of
Duddington.
He says that "Mr. Carroll erected his house partly on a main street,
and altogether on ground to which the public had a more immediate title
than himself could claim." When blaming Mr. Carroll, then, he considers
this as a street; but when justifying himself, he considers it not yet
as a street, for to account for his not having pointed out to Carroll
a situation where he might build, he says, "The President had not yet
sanctioned the plan for the distribution of the city, nor determined
if he would approve the situation of the several areas proposed to him
in that plan for public use, and that I would have been highly to be
blamed to have anticipated his opinion thereon." This latter exculpation
is solid; the first is without foundation. The plan of the city has not
yet been definitely determined by the President. Sale to individuals, or
partition decide the plan as far as these sales or partitions go. A deed
with the whole plan annexed, executed by the President, and recorded, will
ultimately fix it. But till a sale, or partition, or deed, it is open
to alteration. Consequently, there is as yet no such thing as a street,
except adjacent to the lots actually sold or divided; the erection of
a house in any part of the ground cannot as yet be a nuisance in law.
Mr. Carroll is tenant in common of the soil with the public, and the
erection of a house by a tenant in common on the common property, is no
nuisance. Mr. Carroll has acted imprudently, intemperately, foolishly;
but he has not acted illegally. There must be an establishment of the
streets, before his house can become a nuisance in the eye of the law.
Therefore, till that establishment, neither Major L'Enfant, nor the
commissioners, would have had a right to demolish his house, without
his consent.
The Major says he had as much right to pull down a house, as to cut down
a tree.
This is true, if he has received no authority to do either, but still
there will be this difference: To cut down a tree or to demolish a house
in the soil of another, is a trespass; but the cutting a tree, in this
country, is so slight a trespass, that a man would be thought litigious
who should prosecute it; if he prosecuted civilly, a jury would give
small damages; if criminally, the judge would not inflict imprisonment,
nor impose but a small fine. But the demolition of a house is so gross
a trespass, that any man would prosecute it; if civilly, a jury would
give great damages; if criminally, the judge would punish heavily by
fine and imprisonment. In the present case, if Carroll was to bring a
civil action, the jury would probably punish his folly by small damages;
but if he were to prosecute criminally, the judge would as probably
vindicate the insult on the laws, and the breach of the peace, by heavy
fines and imprisonment. So that if Major L'Enfant is right in saying he
had as much authority to pull down a house as to cut down a tree, still
he would feel a difference in the punishment of the law.
But is he right in saying he had as much authority to pull down a house
as to cut down a tree? I do not know what have been the authorities
given him expressly or by _implication_, but I can very readily conceive
that the authorities which he has received, whether from the President
or from the commissioners, whether verbal or written, may have gone to
the demolition of trees, and not houses. I am sure he has received no
authority, either from the President or commissioners, either expressly
or by implication, to pull down houses. An order to him to mark on the
ground the lines of the streets and lots, might imply an order to remove
trees or _small_ obstructions, _where they insuperably prevented his
operations_; but a person must know little of geometry who could not,
in an open field, designate streets and lots, even where a line passed
through a house, without pulling the house down.
In truth, the blame on Major L'Enfant, is for having pulled down the
house, of his own authority, and when he had reason to believe he was
in opposition, to the sentiments of the President; and his fault is
aggravated by its having been done to gratify private resentment against
Mr. Carroll, and most probably not because it was necessary; and the
style in which he writes the justification of his act, shows that a
continuation of the same resentment renders him still unable to acquiesce
under the authority from which he has been reproved.
He desires a line of demarcation between his office, and that of the
commissioners.
What should be this line? and who is to draw it? If we consider the
matter under the _act of Congress_ only, the President has authority
only to name the commissioners, and to approve or disapprove certain
proceedings of theirs. They have the whole executive power, and stand
between the President and the subordinate agents. In this view, they may
employ or dismiss, order and countermand, take on themselves such parts
of the execution as they please, and assign other parts to subordinate
agents. Consequently, under the _act of Congress_, their will is the
line of demarcation between subordinate agents, while no such line
can exist between themselves and their agents. Under the deed from the
proprietors to the President, his powers are much more ample. I do not
accurately recollect the tenor of the deed; but I am pretty sure it was
such as to put much more ample power into the hands of the President,
and to commit to him the whole execution of whatever is to be done under
the deed; and this goes particularly to the laying out the town: so
that as to this, the President is certainly authorized to draw the line
of demarcation between L'Enfant and the commissioners. But I believe
there is no necessity for it, as far as I have been able to judge, from
conversations and consultations with the commissioners. I think they
are disposed to follow implicitly the will of the President, whenever
they can find it out; but L'Enfant's letters do not breathe the same
moderation or acquiescence; and I think it would be much safer to say
to him, "the orders of the commissioners are your line of demarcation,"
than by attempting to define his powers, to give him a line where he
may meet with the commissioners foot to foot, and chicane and raise
opposition to their orders whenever he thinks they pass his line. I
confess, that on a view of L'Enfant's proceedings and letters latterly,
I am thoroughly persuaded that, to render him useful, his temper must
be subdued; and that the only means of preventing his giving constant
trouble to the President, is to submit him to the unlimited control of
the commissioners; we know the discretion and forbearance with which
they will exercise it.
XXV.--_Opinion relative to certain lands on Lake Erie, sold by the United
States to Pennsylvania._
December 19, 1791.
The Secretary of State, to whom was referred, by the President of the
United States, a letter from the Governor of Pennsylvania, with the
documents therein mentioned, on the subject of certain lands on Lake
Erie, having had the same under consideration, thereupon Reports:--
That Congress, by their resolution of June 6th, 1788, directed the
Geographer General of the United States to ascertain the quantity of
land belonging to the United States between Pennsylvania and Lake Erie,
and authorized a sale thereof.
That a sale was accordingly made to the commonwealth of Pennsylvania.
That Congress, by their resolution of September 4th, 1788, relinquished to
the said commonwealth all their right to the government and jurisdiction
of the said tract of land; but the right of soil was not transferred by
the resolution.
That a survey of the said tract has been since made, and the amount of
the purchase money been settled between the comptrollers of the United
States and of the said commonwealth, and that the Governor of Pennsylvania
declares in the said letter, to the President of the United States, that
he is ready to close the transaction on behalf of the said commonwealth.
That there is no person at present authorized, by law, to convey to the
said commonwealth the right of soil, in the said tract of land.
And the Secretary of State is therefore of opinion that the said letter
and documents should be laid before the legislature of the United States
to make such provision by law for conveying the said right of soil, as
they in their wisdom shall think fit.
XXVI.--_Report relative to negotiations with Spain to secure the free
navigation of the Mississippi, and a port on the same._
December 22, 1791.
The Secretary of State reports to the President of the United States,
that one of the commissioners of Spain, in the name of both, has lately
communicated to him verbally, by order of his court, that his Catholic
Majesty, apprized of our solicitude to have some arrangement made
respecting our free navigation of the river Mississippi, and the use of
a port thereon, is ready to enter into treaty thereon at Madrid.
The Secretary of State is of opinion that this overture should be attended
to without delay, and that the proposal of treating at Madrid, though not
what might have been desired, should yet be accepted, and a commission
plenipotentiary made out for the purpose.
That Mr. Carmichael, the present chargé de affaires of the United States
at Madrid, from the local acquaintance which he must have acquired with
persons and circumstances, would be an useful and proper member of the
commission; but that it would be useful also to join with him some person
more particularly acquainted with the circumstances of the navigation
to be treated of.
That the fund appropriated by the act providing the means of intercourse
between the United States and foreign nations, will insufficiently furnish
the ordinary and regular demands on it, and is consequently inadequate
to the mission of an additional commissioner express from hence.
That, therefore, it will be advisable, on this account, as well as for
the sake of despatch, to constitute some one of the ministers of the
United States in Europe, jointly with Mr. Carmichael, commissioners
plenipotentiary for the special purpose of negotiating and concluding,
with any person or persons duly authorized by his Catholic Majesty, a
convention or treaty for the free navigation of the river Mississippi by
the citizens of the United States, under such accommodations with respect
to a port, and other circumstances, as may render the said navigation
practicable, useful, and free from dispute; saving to the President and
Senate their respective rights as to their ratification of the same; and
that the said negotiation be at Madrid, or such other place in Spain,
as shall be desired by his Catholic Majesty.
March 18, 1792.
The appointment of Mr. Carmichael and Mr. Short, as commissioners to
negotiate, with the court of Spain, a treaty or convention relative to
the navigation of the Mississippi, and which perhaps may be extended to
other interests, rendering it necessary that the subjects to be treated
of should be developed, and the conditions of arrangement explained:
The Secretary of State reports to the President of the United States
the following observations on the subjects of negotiation between the
United States of America and the court of Spain, to be communicated by
way of instruction to the commissioners of the United States, appointed
as before mentioned, to manage that negotiation.
These subjects are,
I. Boundary.
II. The navigation of the Mississippi.
III. Commerce.
I. As to boundary, that between Georgia and Florida is the only one which
will need any explanation. Spain sets up a claim to possessions within
the State of Georgia, founded on her having rescued them by force from
the British during the late war. The following view of the subject seems
to admit no reply:
The several States now comprising the United States of America, were, from
their first establishment, separate and distinct societies, dependent on
no other society of men whatever. They continued at the head of their
respective governments the executive magistrate who presided over the
one they had left, and thereby secured, in effect, a constant amity with
the nation. In this stage of their government their several boundaries
were fixed; and particularly the southern boundary of Georgia, the only
one now in question, was established at the 31st degree of latitude
from the Apalachicola westwardly; and the western boundary, originally
the Pacific ocean, was, by the treaty of Paris, reduced to the middle
of the Mississippi. The part which our chief magistrate took in a war,
waged against us by the nation among whom he resided, obliged us to
discontinue him, and to name one within every State. In the course of
this war we were joined by France as an ally, and by Spain and Holland
as associates; having a common enemy, each sought that common enemy
wherever they could find him. France, on our invitation, landed a large
army within our territories, continued it with us two years, and aided
us in recovering sundry places from the possession of the enemy. But she
did not pretend to keep possession of the places rescued. Spain entered
into the remote western part of our territory, dislodged the common
enemy from several of the posts they held therein, to the annoyance
of Spain; and perhaps thought it necessary to remain in some of them,
as the only means of preventing their return. We, in like manner,
dislodged them from several posts in the same western territory, to wit:
Vincennes, Cahokia, Kaskaskia, &c., rescued the inhabitants, and retained
constantly afterwards both them and the territory under our possession
and government. At the conclusion of the war, Great Britain, on the
30th of November, 1782, by treaty acknowledged our independence, and
our boundary, to wit: the Mississippi to the west, and the completion of
the 31st degree, &c. to the south. In her treaty with Spain, concluded
seven weeks afterwards, to wit, January 20th, 1783, she ceded to her
the two Floridas, which had been defined in the proclamation of 1763,
and Minorca; and by the eighth article of the treaty, Spain agreed
to restore, _without compensation_, all the territories conquered by
her, and not included in the treaty, either under the head of cessions
or restitutions, that is to say, all except Minorca and the Floridas.
According to this stipulation, Spain was expressly bound to have delivered
up the possessions she had taken within the limits of Georgia, to Great
Britain, if they were conquests on Great Britain, who was to deliver
them over to the United States; or rather, she should have delivered
them to the United States themselves, as standing _quoad hoc_ in the
place of Great Britain. And she was bound by natural rights to deliver
them to the same United States on a much stronger ground, as the real
and only proprietors of those places which she had taken possession
of in a moment of danger, without having had any cause of war with the
United States, to whom they belonged, and without having declared any;
but, on the contrary, conducting herself in other respects as a friend
and associate. _Vattel_, 1. 3, 122.
It is an established principle, that conquest gives only an inchoate
treaty of peace, which does not become perfect till confirmed by the
treaty of peace, and by a renunciation or abandonment by the former
proprietor. Had Great Britain been that former proprietor, she was so far
from confirming to Spain the right to the territory of Georgia, invaded
by Spain, that she expressly relinquished to the United States any right
that might remain in her; and afterwards completed that relinquishment,
by procuring and consolidating with it the agreement of Spain herself to
restore such territory without compensation. It is still more palpable,
that a war existing between two nations, as Spain and Great Britain,
could give to neither the right to seize and appropriate the territory
of a third, which is even neutral, much less which is an associate in
the war, as the United States were with Spain. See, on this subject,
_Grotius_, 1. 3, c. 6, § 26. _Puffendorf_, 1. 8, c. 17, § 23. _Vattel_,
1. 3, § 197, 198.
On the conclusion of the general peace, the United States lost no time
in requiring from Spain an evacuation of their territory This has been
hitherto delayed by means which we need not explain to that court, but
which have been equally contrary to our right and to our consent.
Should Spain pretend, as has been intimated, that there was a secret
article of treaty between the United States and Great Britain, agreeing,
if at the close of the war the latter should retain the Floridas, that
then the southern boundary of Georgia should be the completion of the
32d degree of latitude, the commissioners may safely deny all knowledge
of the fact, and refuse conference on any such postulatum. Or, should
they find it necessary to enter into any argument on the subject, they
will of course do it hypothetically; and in that way may justly say, on
the part of the United States; suppose that the United States, exhausted
by a bloody and expensive war with Great Britain, might have been
willing to have purchased peace by relinquishing, under a particular
contingency, a small part of their territory, it does not follow that
the same United States, recruited and better organized, must relinquish
the same territory to Spain without striking a blow. The United States,
too, have irrevocably put it out of their power to do it, by a new
constitution, which guarantees every State against the invasion of its
territory. A disastrous war, indeed, might, by necessity, supersede this
stipulation, (as necessity is above all law,) and oblige them to abandon
a part of a State; but nothing short of this can justify or obtain such
an abandonment.
The southern limits of Georgia depend chiefly on,
1. The charter of Carolina to the lords proprietors, in 1663, extending
southwardly to the river Matheo, now called St. John, supposed in the
charter to be in latitude 31, and so west in a direct line as far as
the South Sea. See the charter in 4th[27] Memoires de l'Amerique, 554.
2. On the proclamation of the British King, in 1763, establishing the
boundary between Georgia and the two Floridas to begin on the Mississippi,
in thirty-one degrees of latitude north of the equator, and running
eastwardly to the Appalachicola; thence, along the said river to the
mouth of the Flint; thence, in a direct line, to the source of St. Mary's
river, and down the same to the ocean. This proclamation will be found
in Postlethwayte voce "British America."
3. On the treaties between the United States and Great Britain, of
November 30, 1782, and September 3, 1783, repeating and confirming these
ancient boundaries,--
There was an intermediate transaction, to wit: a convention concluded at
the Pardo, in 1739, whereby it was agreed that Ministers Plenipotentiary
should be immediately appointed by Spain and Great Britain for settling
the limits of Florida and Carolina. The convention is to be found in the
collections of treaties. But the proceedings of the Plenipotentiaries
are unknown here. _Qu._ If it was on that occasion that the southern
boundary of Carolina was transferred from the latitude of Matheo or St.
John's river further north to the St. Mary's? Or was it the proclamation
of 1763, which first removed this boundary? [If the commissioners can
procure in Spain a copy of whatever was agreed on in consequence of the
convention of the Pardo, it is a desirable State paper here.]
To this demonstration of our rights may be added the explicit declaration
of the court of Spain, that she would accede to them. This took place
in conversations and correspondence thereon between Mr. Jay, Minister
Plenipotentiary for the United States at the court at Madrid, the Marquis
de La Fayette, and the Count de Florida Blanca. Monsieur de La Fayette,
in his letter of February 19, 1783, to the Count de Florida Blanca,
states the result of their conversations on limits in these words:
"With respect to limits, his Catholic Majesty has adopted those that
are determined by the preliminaries of the 30th of November, between the
United States and the court of London." The Count de Florida Blanca, in
his answer of February 22d, to M. de La Fayette, says, "although it is his
Majesty's intention to abide for the present by the limits established
by the treaty of the 30th of November, 1782, between the English and
the Americans, the King intends to inform himself particularly whether
it can be in any ways inconvenient or prejudicial to settle that affair
amicably with the United States;" and M. de La Fayette, in his letter of
the same day to Mr. Jay, wherein he had inserted the preceding, says,
"on receiving the answer of the Count de Florida Blanca, (to wit: his
answer, before mentioned, to M. de La Fayette,) I desired an explanation
respecting the addition that relates to the limits. I was answered, that
it was a fixed principle to abide by the limits established by the treaty
between the English and the Americans; that his remark related only to
mere unimportant details, which he wished to receive from the Spanish
commandants, which would be amicably regulated, and _would by no means
oppose the general principle_. I asked him, before the Ambassador of
France, [M. de Montmorin,] whether he would give me his word of honor
for it; he assured me he would, and that I might engage it to the United
States." See the report sent herewith.
II.--The navigation of the Mississippi.
Our right to navigate that river, from its source to where our southern
boundary strikes it, is not questioned. It is from that point downwards,
only, that the exclusive navigation is claimed by Spain; that is to
say, where she holds the country on both sides, to wit: Louisiana on
the west, and Florida on the east.
Our right to participate in the navigation of that part of the river,
also, is to be considered, under
1. The Treaty of Paris of 1763,
2. The Revolution Treaty of 1782-3.
3. The law of nature and nations.
1. The war of 1755-1763, was carried on jointly by Great Britain and
the thirteen colonies, now the United States of America, against France
and Spain. At the peace which was negotiated by our common magistrate, a
right was secured to the subjects of Great Britain (the common designation
of all those under his government) to navigate the Mississippi in its
whole breadth and length, from its source to the sea, and expressly
that part which is between the island of New Orleans and the right bank
of the river, as well as the passage both in and out of its mouth;
and that the vessels should not be stopped, visited, or subjected to
the payment of any duty whatsoever. These are the words of the treaty,
article VII. Florida was at the same time ceded by Spain, and its extent
westwardly was fixed to the lakes Pontchartrain and Maurepas, and the
river Mississippi; and Spain received soon after from France a cession
of the island of New Orleans, and all the country she held westward of
the Mississippi, subject of course to our right of navigating between
that country and the island previously granted to us by France. This
right was not parcelled out to us in severalty, that is to say, to each
the exclusive navigation of so much of the river as was adjacent to our
several shores--in which way it would have been useless to all--but it
was placed on that footing on which alone it could be worth anything,
to wit: as a right to all to navigate the whole length of the river in
common. The import of the terms and the reason of the thing prove it
was a right of common in the whole, and not a several right to each of a
particular part. To which may be added the evidence of the stipulation
itself, that we should navigate between New Orleans and the western
bank, which, being adjacent to none of our States, could be held by us
only as a right of common. Such was the nature of our right to navigate
the Mississippi, as far as established by the treaty of Paris.
2. In the course of the Revolutionary war, in which the thirteen colonies,
Spain, and France, were opposed to Great Britain, Spain took possession
of several posts held by the British in Florida. It is unnecessary to
inquire whether the possession of half a dozen posts scattered through
a country of seven or eight hundred miles extent, could be considered
as the possession and conquest of that country. If it was, it gave
still but an inchoate right, as was before explained, which could not
be perfected but by the relinquishment of the former possession at the
close of the war; but certainly it could not be considered as a conquest
_of the river_, even against Great Britain, since the possession of
the shores, to wit, of the island of New Orleans on the one side, and
Louisiana on the other, having undergone no change, the right in the water
would remain the same, if considered only in its relation to them; and
if considered as a distinct right, independent of the shores, then no
naval victories obtained by Spain over Great Britain, in the course of
the war, gave her the color of conquest over any water which the British
fleet could enter. Still less can she be considered as having conquered
the river, as against the United States, with whom she was not at war.
We had a common right of navigation in the part of the river between
Florida, the island of New Orleans, and the western bank, and nothing
which passed between Spain and Great Britain, either during the war, or
at its conclusion, could lessen that right. Accordingly, at the treaty
of November, 1782, Great Britain confirmed the rights of the United
States to the navigation of the river, from its source to its mouth,
and in January, 1783, completed the right of Spain to the territory of
Florida, by an absolute relinquishment of all her rights in it. This
relinquishment could not include the navigation held by the United States
in their own right, because this right existed in themselves only, and
was not in Great Britain. If it added anything to the rights of Spain
respecting the river between the eastern and western banks, it could only
be that portion of right which Great Britain had retained to herself in
the treaty with the United States, held seven weeks before, to wit, a
right of using it in common with the United States.
So that as by the treaty of 1763, the United States had obtained a common
right of navigating the whole river from its source to its mouth, so
by the treaty of 1782, that common right was confirmed to them by the
only power who could pretend claims against them, founded on the state
of war; nor has that common right been transferred to Spain by either
conquest or cession.
But our right is built on ground still broader and more unquestionable,
to wit:
3. On the law of nature and nations.
If we appeal to this, as we feel it written on the heart of man, what
sentiment is written in deeper characters than that the ocean is free
to all men, and their rivers to all their inhabitants? Is there a man,
savage or civilized, unbiased by habit, who does not feel and attest
this truth? Accordingly, in all tracts of country united under the same
political society, we find this natural right universally acknowledged and
protected by laying the navigable rivers open to all their inhabitants.
When their rivers enter the limits of another society, if the right of
the upper inhabitants to descend the stream is in any case obstructed,
it is an act of force by a stronger society against a weaker, condemned
by the judgment of mankind. The late case of Antwerp and the Scheldt
was a striking proof a general union of sentiment on this point; as it
is believed that Amsterdam had scarcely an advocate out of Holland, and
even there its pretensions were advocated on the ground of treaties,
and not of natural right. (The commissioners would do well to examine
thoroughly what was written on this occasion.) The commissioners will
be able perhaps to find, either in the practice or the pretensions of
Spain, as to the Dauro, Tagus, and Guadiana, some acknowledgments of
this principle on the part of that nation. This sentiment of right in
favor of the upper inhabitants must become stronger in the proportion
which their extent of country bears to the lower. The United States
hold 600,000 square miles of habitable territory on the Mississippi and
its branches, and this river and its branches afford many thousands of
miles of navigable waters penetrating this territory in all its parts.
The inhabitable grounds of Spain below our boundary and bordering on
the river, which alone can pretend any fear of being incommoded by our
use of the river, are not the thousandth part of that extent. This vast
portion of the territory of the United States has no other outlet for
its productions, and these productions are of the bulkiest kind. And in
truth, their passage down the river may not only be innocent, as to the
Spanish subjects on the river, but cannot fail to enrich them far beyond
their present condition. The real interests then of all the inhabitants,
upper and lower, concur in fact with their rights.
If we appeal to the law of nature and nations, as expressed by writers
on the subject, it is agreed by them, that, were the river, where it
passes between Florida and Louisiana, the exclusive right of Spain, still
an innocent passage along it is a natural right in those inhabiting its
borders above. It would indeed be what those writers call an imperfect
right, because the modification of its exercise depends in a considerable
degree on the conveniency of the nation through which they are to pass.
But it is still a right as real as any other right, however well-defined;
and were it to be refused, or to be so shackled by regulations, not
necessary for the peace or safety of its inhabitants, as to render its
use impracticable to us, it would then be an injury, of which we should
bee entitled to demand redress. The right of the upper inhabitants to
use this navigation is the counterpart to that of those possessing the
shore below, and founded in the same natural relations with the soil
and water. And the line at which their rights meet is to be advanced
or withdrawn, so as to equalize the inconveniences resulting to each
party from the exercise of the right by the other. This estimate is to
be fairly made with a mutual disposition to make equal sacrifices, and
the numbers on each side are to have their due weight in the estimate.
Spain holds so very small a tract of habitable land on either side below
our boundary, that it may in fact be considered as a strait of the sea;
for though it is eighty leagues from our boundary to the mouth of the
river, yet it is only here and there in spots and slips that the land
rises above the level of the water in times of inundation. There are,
then, and ever must be, so few inhabitants on her part of the river,
that the freest use of its navigation may be admitted to us without
their annoyance. For authorities on this subject, see Grot. 1. 2. c. 2
§ 11, 12, 13, c. 3. § 7, 8, 12. Puffendorf, 1. 3. c. 3. § 3, 4, 5, 6.
Wolff's Inst. § 310, 311, 312. Vattel, 1. 1. § 292. 1. 2. § 123 to 139.
[Illustration]
It is essential to the interests of both parties that the navigation
of the river be free to both, on the footing on which it was defined by
the treaty of Paris, viz.: through its whole breadth. The channel of the
Mississippi is remarkably winding, crossing and recrossing perpetually
from one side to the other of the general bed of the river. Within the
elbows thus made by the channel, there is generally an eddy setting
upwards, and it is by taking advantage of these eddies, and constantly
crossing from one to another of them, that boats are enabled to ascend
the river. Without this right the whole river would be impracticable
both to the Americans and Spaniards.
It is a principle that the right to a thing gives a right to the means,
without which it could not be used, that is to say, that the means follow
their end. Thus, a right to navigate a river, draws to it a right to
moor vessels to its shores, to land on them in cases of distress, or
for other necessary purposes, &c. This principle is founded in natural
reason, is evidenced by the common sense of mankind, and declared by
the writers before quoted. See Grot. 1. 2. c. 2. § 15. Puffend. 1. 3.
c. 3. § 8. Vattel, 1. 2. § 129.
The Roman law, which, like other municipal laws, placed the navigation
of their rivers on the footing of nature, as to their own citizens,
by declaring them public,[28] (flumina publica sunt, hoc est populi
Romani, Inst. 2. t. 1. § 2,) declared also that the right to the use
of the shores was incident to that of the water. Ibid, § 1, 3, 4, 5.
The laws of every country probably do the same. This must have been so
understood between France and Great Britain, at the treaty of Paris, when
a right was ceded to British subjects to navigate the whole river, and
expressly that part between the island of New Orleans and the western
bank, without stipulating a word about the use of the shores, though
both of them belonged then to France, and were to belong immediately
to Spain. Had not the use of the shores been considered as incident to
that of the water, it would have been expressly stipulated; since its
necessity was too obvious to have escaped either party. Accordingly, all
British subjects used the shores habitually for the purposes necessary
to the navigation of the river; and when a Spanish Governor undertook
at one time to forbid this, and even cut loose the vessels fastening
to their shores, a British frigate went immediately, moored itself to
the shore opposite to the town of New Orleans, and set out guards with
orders to fire on such as might attempt to disturb her moorings. The
Governor acquiesced, the right was constantly exercised afterwards, and
no interruption ever offered.
This incidental right extends even beyond the shores, where circumstances
render it necessary to the exercise of the principal right; as, in the
case of a vessel damaged, where the mere shore could not be a safe deposit
for her cargo till she could be repaired, she may remove it into safe
ground off the river. The Roman law shall be quoted here too, because it
gives a good idea both of the extent and the limitations of this right.
Ins. 1. 2. t. 1. § 4. [29]Riparum quoque usus publicus est, ut volunt
jura gentium, sicut et ipsius fluminis usus publicus est. Itaque et
navigium ad ripes appellere, et funes de arboribus ibi natis religare,
et navis onera in his locis reponere, liberum quique est sicuti nec per
flumen ipsum navigare quisquam prohibetur. And again, §5, [30]littorum
quoque usus publicus, sive juri gentium est, ut et ipsius maris et
ob id data est facultas volentibus, casas ibi sibi componere, in quas
se recipere possint, &c. Again, § 1. [31]Nemo igitur ad littora maris
accedere prohibitur; veluti deambulare aut navem appellere, sic tamen ut
a villis, id est domiciliis monumentisque ibi positis, et ab edificiis
abstineat, nec iis damnum inferat.
Among incidental rights are those of having pilots, buoys, beacons,
landmarks, light-houses, &c., to guide the navigators. The establishment
of these at joint expense, and under joint regulations, may be the
subject of a future convention. In the meantime, both should be free to
have their own, and refuse those of the other, both as to use and expense.
Very peculiar circumstances attending the river Mississippi, require
that the incidental right of accommodation on the shore, which needs only
occasional exercise on other rivers, should be habitual and constant on
this. Sea vessels cannot navigate that river, nor the river vessels go
to sea. The navigation would be useless then without an entrepôt where
these vessels might safely deposit their own cargoes, and take those
left by the others; and where warehouses and keepers might be constantly
established for the safeguard of the cargoes. It is admitted, indeed, that
the incidental right thus extended into the territory of the bordering
inhabitants, is liable to stricter modifications in proportion as it
interferes with their territorial right. But the inconveniences of both
parties are still to have their weight, and reason and moderation on
both sides are to draw the line between them. As to this, we count much
on the liberality of Spain, on her concurrence in opinion with us, that
it is for the interest of both parties to remove completely this germ of
discord from between us, and draw our friendship as close as circumstances
proclaim that it should be, and on the considerations which make it
palpable that a convenient spot placed under our exclusive occupation,
and exempted from the jurisdiction and police of their government, is
far more likely to preserve peace than a mere free port, where eternal
altercations would keep us in eternal ill humor with each other. The
policy of this measure, and indeed of a much larger concession, having
been formerly sketched in a paper of July 12th, 1790, sent to the
commissioners severally, they are now referred to that.
If this be agreed to, the manner of fixing on that extra territorial
spot becomes highly interesting. The most desirable to us, would be a
permission to send commissioners to choose such spot, below the town of
New Orleans, as they should find most convenient.
If this be refused, it would be better now to fix on the spot. Our
information is, that the whole country below the town, and for sixty
miles above it, on the western shore, is low, marshy, and subject to
such deep inundation for many miles from the river, that if capable
of being reclaimed at all by banking, it would still never afford an
entrepôt sufficiently safe; that on the eastern side the only lands below
the town, not subject to inundation, are at the Detour aux Anglais, or
English Turn, the highest part of which, is that whereon the fort St.
Marie formerly stood. Even this is said to have been raised by art, and
to be very little above the level of the inundations. This spot then
is what we would fix on, if obliged now to decide, with from one to
as many square miles of the circumjacent lands as can be obtained, and
comprehending expressly the shores above and below the site of the fort as
far as possible. But as to the spot itself, the limits, and even whether
it shall be extra territorial, or only a free port, and what regulations
it shall be laid under, the convenience of that Government is entitled
to so much respect and attention on our part, that the arrangement must
be left to the management of the commissioners, who will doubtless use
their best efforts to obtain all they can for us.
The worst footing on which the determination of the ground could be
placed, would be a reference to joint commissioners; because their
disagreement, a very probable, nay, a certain event, would undo the
whole convention, and leave us exactly where we now are. Unless indeed
they will engage to us, in case of such disagreement, the highest ground
at the Detour aux Anglais, of convenient extent, including the landings
and harbor thereto adjacent. This would ensure us that ground, unless
better could be found and mutually preferred, and close the delay of
right under which we have so long labored for peace-sake.
It will probably be urged, because it was urged on a former occasion,
that, if Spain _grants_ to us the right of navigating the Mississippi,
other nations will become entitled to it by virtue of treaties giving
them the rights of the _most favored nation_.
Two answers may be given to this:
1. When those treaties were made, no nations could be under contemplation
but those then existing, or those at most who might exist under
similar circumstances. America did not then exist as a nation; and the
circumstances of her position and commerce, are so totally dissimilar to
everything then known, that the treaties of that day were not adapted
to any such being. They would better fit even China than America;
because, as a manufacturing nation, China resembles Europe more. When
we solicited France to admit our whale oils into her ports, though she
had excluded all foreign whale oils, her minister made the objection
now under consideration, and the foregoing answer was given. It was
found to be solid; and the whale oils of the United States are in
consequence admitted, though those of Portugal and the Hanse towns, and
of all other nations, are excluded. Again, when France and England were
negotiating their late treaty of commerce, the great dissimilitude of
our commerce (which furnishes raw materials to employ the industry of
others, in exchange for articles whereon industry has been exhausted)
from the commerce of the European nations (which furnishes things ready
wrought only) was suggested to the attention of both negotiators, and
that they should keep their nations free to make particular arrangements
with ours, by communicating to each other only the rights of the most
favored European nation. Each was separately sensible of the importance
of the distinction; and as soon as it was proposed by the one, it was
acceded to by the other, and the word _European_ was inserted in their
treaty. It may fairly be considered then as the rational and received
interpretation of the diplomatic term, "gentis amicissimæ"[32] that it
has not in view a nation unknown in many cases at the time of using the
term, and so dissimilar in all cases as to furnish no ground of just
reclamation to any nation.
But the decisive answer is, that Spain does not grant us the navigation
of the river. We have an inherent right to it; and she may repel the
demand of any other nation by candidly stating her act to have been,
what in truth it is, a recognition only, and not a grant.
If Spain apprehends that other nations may claim access to our ports in
the Mississippi, under their treaties with us, giving them a right to
come and trade in all our ports, though we would not choose to insert an
express stipulation against them, yet we shall think ourselves justified
to acquiesce in fact, under any regulations Spain may from time to time
establish against their admission.
Should Spain renew another objection, which she relied much on before
that the English at the Revolution treaty could not cede to us what
Spain had taken from them by conquest, and what of course they did not
possess themselves, the preceding observations furnish sufficient matter
for refutation.
To conclude the subjects of boundary and navigation, each of the following
conditions is to be considered by the commissioners as a _sine quâ non_.
1. That our southern boundary remain established at the completion of
thirty-one degrees of latitude on the Mississippi, and so on to the
ocean, as has been before described, and our western one along the middle
of the channel of the Mississippi, however that channel may vary, as
it is constantly varying, and that Spain cease to occupy or to exercise
jurisdiction in any part northward or eastward of these boundaries.
2. That our right be acknowledged of navigating the Mississippi, in its
whole breadth and length, from its source to the sea, as established by
the treaty of 1763.
3. That neither the vessels, cargoes, or the persons on board, be stopped,
visited, or subjected to the payment of any duty whatsoever; or, if a
visit must be permitted, that it be under such restrictions as to produce
the least possible inconvenience. But it should be altogether avoided,
if possible, as the parent of perpetual broils.
4. That such conveniences be allowed us ashore, as may render our right
of navigation practicable and under such regulations as may _bonâ fide_
respect the preservation of peace and order alone, and may not have in
object to embarrass our navigation, or raise a revenue on it. While the
substance of this article is made a _sine quâ non_, the modifications
of it are left altogether to the discretion and management of the
commissioners.
We might add, as a fifth _sine quâ non_, that no phrase should be admitted
in the treaty which could express or imply that we take the navigation
of the Mississippi as a _grant_ from Spain. But, however disagreeable it
would be to subscribe to such a sentiment, yet, were the conclusion of a
treaty to hang on that single objection, it would be expedient to waive
it, and to meet, at a future day, the consequences of any resumption
they may pretend to make, rather than at present, those of a separation
without coming to any agreement.
We know not whether Spain has it in idea to ask a compensation for the
ascertainment of our right.
1. In the first place, she cannot in reason ask a compensation for
yielding what we have a right to, that is to say, the navigation of the
river, and the conveniences incident to it of natural right.
2. In the second place, we have a claim on Spain for indemnification
for nine years' exclusion from that navigation, and a reimbursement
of the heavy duties (not less for the most part than 15 per cent. on
extravagant valuations) levied on the commodities she has permitted
to pass to New Orleans. The relinquishment of this will be no unworthy
equivalent for any accommodations she may indulge us with, beyond the
line of our strict right. And this claim is to be brought into view
in proper time and manner, merely to be abandoned in consideration of
such accommodations. We have nothing else to give in exchange. For as
to territory, we have neither the right nor the disposition to alienate
an inch of what belongs to any member of our Union. Such a proposition,
therefore, is totally inadmissible, and not to be treated of for a moment.
3. On the former conferences on the navigation of the Mississippi,
Spain chose to blend with it the subject of commerce; and, accordingly,
specific propositions thereon passed between the negotiators. Her object,
then, was to obtain our renunciation of the navigation, and to hold out
commercial arrangements, perhaps as a lure to us; perhaps, however, she
might then, and may now, really set a value on commercial arrangements
with us, and may receive them as a consideration for accommodating us in
the navigation; or, may wish for them, to have the appearance of receiving
a consideration. Commercial arrangements, if acceptable in themselves,
will not be the less so if coupled with those relating to navigation and
boundary. We have only to take care that they be acceptable in themselves.
There are two principles which may be proposed as the basis of a
commercial treaty: 1. That of exchanging the privileges of _native
citizens_; or,
2. Those of _the most favored nation_.
1. With the nations holding important possessions in America, we are ready
to exchange the rights of native citizens, provided they be extended
through the whole possessions of both parties, but the propositions of
Spain, made on the former occasion, (a copy of which accompanies this,)
were, that we should give their merchants, vessels, and productions,
the privilege of native merchants, vessels, and productions, through
the whole of our possessions, and they give the same to ours only in
Spain and the Canaries. This is inadmissible, because unequal; and, as
we believe that Spain is not ripe for an equal exchange on this basis,
we avoid proposing it.
2. Though treaties, which merely exchange the rights of the most
favored nations, are not without all inconvenience, yet they have
their conveniences also. It is an important one, that they leave each
party free to make what internal regulations they please, and to give
what preferences they find expedient to native merchants, vessels, and
productions. And as we already have treaties on this basis, with France,
Holland, Sweden, and Prussia, the two former of which are perpetual, it
will be but small additional embarrassment to extend it to Spain. On the
contrary, we are sensible it is right to place that nation on the most
favored footing, whether we have a treaty with them or not, and it can
do us no harm to secure by treaty a reciprocation of the right.
Of the four treaties before mentioned, either the French or the Prussian
might be taken as a model. But it would be useless to propose the
Prussian; because we have already supposed that Spain would never consent
to those articles which give to each party access to all the dominions
of the other; and, without this equivalent, we would not agree to tie
our own hands so materially in war, as would be done by the 23d article,
which renounces the right of fitting out privateers, or of capturing
merchant vessels. The French treaty, therefore, is proposed as the model.
In this, however, the following changes are to be made.
We should be admitted to all the dominions of Spain, to which any other
foreign nation is, or may be admitted.
Article 5 being an exemption from a particular duty in France, will of
course be omitted, as inapplicable to Spain.
Article 8 to be omitted, as unnecessary with Morocco, and inefficacious,
and little honorable with any of the Barbary powers. But it may furnish
occasion to sound Spain on the project of a convention of the powers
at war with the Barbary States, to keep up, by rotation, a constant
cruise of a given force on their coasts, till they shall be compelled
to renounce forever, and against all nations, their predatory practices.
Perhaps the infidelities of the Algerines to their treaty of peace with
Spain, though the latter does not choose to break openly, may induce
her to subsidize _us_ to cruise against them with a given force.
Article 9 and 10, concerning fisheries, to be omitted, as inapplicable.
Article 11. The first paragraph of this article, respecting the _droit
d'aubaine_, to be omitted; that law being supposed peculiar to France.
Article 17, giving asylum in the ports of either to the armed vessels
of the other, with the prizes taken from the enemies of that other,
must be qualified as it is in the 19th article of the Prussian treaty;
as the stipulation in the latter part of the article, "that no shelter
or refuge shall be given in the ports of the one to such as shall have
made prize on the subjects of the other of the parties," would forbid us
in case of a war between France and Spain, to give shelter in our ports
to prizes made by the latter on the former, while the first part of
the article would oblige us to shelter those made by the former on the
latter--a very dangerous covenant, and which ought never to be repeated
in any other instance.
Article 29. Consuls should be received in all the ports at which the
vessels of either party may be received.
Article 30, concerning free ports in Europe and America. Free ports in
the Spanish possessions in America, and particularly at the Havana, San
Domingo, in the island of that name, and St. John of Porto Rico, are
more to be desired than expected. It can, therefore, only be recommended
to the best endeavors of the commissioners to obtain them. It will be
something to obtain for our vessels, flour, &c., admission to those ports
during their pleasure. In like manner, if they could be prevailed on
to re-establish our right of cutting log-wood in the bay of Campeachy,
on the footing on which it stood before the treaty of 1763, it would be
desirable, and not endanger, to us, any contest with the English, who,
by the Revolution treaty, are restrained to the south-eastern parts of
Yucatan.
Article 31. The _act_ of ratification, on our part, may require a
twelvemonth from the date of the treaty, as the Senate meets regularly
but once a year; and to return it to Madrid, for exchange, may require
four months more. It would be better, indeed, if Spain would send her
ratification to be exchanged by her representative here.
The treaty must not exceed twelve or fifteen years' duration, except
the clauses relating to boundary, and the navigation of the Mississippi,
which must be perpetual and final. Indeed, these two subjects had better
be in a separate instrument.
There might have been mentioned a third species of arrangement, that
of making special agreements on every special subject of commerce,
and of setting a tariff of duty to be paid on each side, on every
particular article; but this would require in our commissioners a very
minute knowledge of our commerce, as it is impossible to foresee every
proposition of this kind which might be brought into discussion, and
to prepare them for it by information and instruction from hence. Our
commerce, too, is, as yet, rather in a course of experiment, and the
channels in which it will ultimately flow, are not sufficiently known to
enable us to provide for it by special agreement. Nor have the exigencies
of our new government, as yet, so far developed themselves, as that we
can know to what degree we may or must have recourse to commerce for
the purposes of revenue. No common consideration, therefore, ought to
induce us, as yet, to arrangements of this kind. Perhaps nothing should
do it with any nation, short of the privileges of natives in all their
possessions, foreign and domestic.
It were to be wished, indeed, that some positively favorable stipulations
respecting our grain, flour, and fish, could be obtained, even on our
giving reciprocal advantages to some other commodities of Spain, say
her wines and brandies.
But, 1st. If we quit the ground of the _most favored nation_, as to
certain articles for our convenience, Spain may insist on doing the same
for other articles for her convenience, and thus our commissioners will
get themselves on the ground of a treaty of _detail_, for which they
will not be prepared.
2d. If we grant favor to the wines and brandies of Spain, then Portugal
and Spain will demand the same; and in order to create an equivalent,
Portugal may lay a duty on our fish and grain, and France, a prohibition
on our whale oils, the removal of which will be proposed as an equivalent.
This much, however, as to grain and flour, may be attempted. There has,
not long since, been a considerable duty laid on them in Spain. This
was while a treaty on the subject of commerce was pending between us and
Spain, as that court considers the matter. It is not generally thought
right to change the state of things pending a treaty concerning them.
On this consideration, and on the motive of cultivating our friendship,
perhaps the commissioners may induce them to restore this commodity
to the footing on which it was, on opening the conferences with Mr.
Gardoqui, on the 26th day of July, 1785. If Spain says, "do the same by
your tonnage on our vessels," the answer may be, that our foreign tonnage
affects Spain very little, and other nations very much; whereas the duty
on flour in Spain affects us very much, and other nations very little.
Consequently, there would be no equality in reciprocal relinquishment,
as there had been none in the reciprocal innovation; and Spain, by
insisting on this, would, in fact, only be aiding the interests of her
rival nations, to whom we should be forced to extend the same indulgence.
At the time of opening the conferences, too, we had, as yet, not erected
any system; our government itself being not yet erected. Innovation then
was unavoidable on our part, if it be innovation to establish a system.
We did it on fair and general ground; on ground favorable to Spain. But
they had a system, and, therefore, innovation was avoidable on their part.
It is known to the commissioners that we found it expedient to ask
the interposition of France, lately, to bring on this settlement of
our boundary, and the navigation of the Mississippi. How far that
interposition has contributed to produce it, is uncertain. But we have
reason to believe that her further interference would not produce an
agreeable effect on Spain. The commissioners, therefore, are to avoid
all further communications on the subject with the ministers of France,
giving them such explanations as may preserve their good dispositions.
But if, ultimately, they shall find themselves unable to bring Spain to
agreement on the subject of the navigation and boundary, the interposition
of France, as a mutual friend, and the guarantee of our limits, is then
to be asked, in whatever light Spain may choose to consider it.
Should the negotiations on the subject of navigation and boundary
assume, at any time, an unhopeful aspect, it may be proper that Spain
should be given to understand, that, if they are discontinued without
coming to any agreement, the Government of the United States cannot be
responsible for the longer forbearance of their western inhabitants. At
the same time the abandonment of the negotiation should be so managed
as that, without engaging us to a further suspension of the exercise of
our rights, we may not be committed to resume them on the instant. The
present turbid situation of Europe cannot leave us long without a safe
occasion of resuming our territory and navigation, and of carving for
ourselves those conveniences, on the shores, which may facilitate and
protect the latter effectually and permanently.
We had a right to expect that, pending a negotiation, all things would
have remained in _statu quo_, and that Spain would not have proceeded
to possess herself of other parts of our territory. But she has lately
taken and fortified a new post on the Walnut hills, above the mouth
of the Yazoo river, and far above the 31st degree. This garrison ought
to have been instantly dislodged; but for our wish to be in friendship
with Spain, and our confidence in her assurances "to bide by the limits
established in our treaty with England," complaints of this unfriendly
and uncandid procedure may be brought forward or not, as the commissioners
shall see expedient.
FOOTNOTES:
[27] Mr. Short is desired to purchase this book at
Amsterdam, or Paris, as he may not find it at Madrid, and
when it shall have answered the purposes of this mission,
let it be sent here for the use of the Secretary of State's
office.
[28] Rivers belong to the public, that is to say to the
Roman people.
[29] "The use of the banks belong also to the public by
the laws of nations, as the use of the river itself does.
Therefore, every one is free to moor his vessel to the
bank, to fasten his cables to the trees growing on it, to
deposit the cargo of his vessel in those places in like
manner as every one is free to navigate the river itself."
[30] "The use of the shores also belongs to the public, or
is under the law of nations, as is that of the sea itself.
Therefore it is, that those who choose, have a right to
build huts there, into which they may betake themselves."
[31] "Nobody, therefore, is prohibited from landing on the
sea shore, walking there, or mooring their vessel there,
so nevertheless that they keep out of the villas, that is,
the habitations, monuments, and public buildings, erected
there, and do them no injury."
[32] "The most favored nation."
XXVII.--_Report on the case of Charles Russell and others, claiming
certain lands._
January 21, 1792.
The Secretary of State, to whom was referred, by the President of the
United States, the letter of the Governor of Virginia of January 7th,
1792, with the report of a committee of the House of Delegates of that
commonwealth, of December 12th, 1791, and resolution of the General
Assembly thereon, of December 17th, on the case of Charles Russell,
late an officer in the service of the said commonwealth, stating that a
considerable part of the tract of country allotted for the officers and
soldiers having fallen into the State of North Carolina on the extension
of their common boundary, the legislature of the said State had, in
1781, passed an act substituting in lieu thereof the tract of country
between the said boundary and the rivers Mississippi, Ohio, Tennessee,
and subjecting the same to the claims of their officers and soldiers.
That the said Charles Russell had in consequence thereof, directed
warrants for two thousand six hundred and sixty-six and two-thirds acres
of land to be located within the said tract of country; but that the
same belonging to the Chickasaws, he is unable to obtain a right thereto,
and that there are other officers and soldiers of the said commonwealth
under like circumstances:
Reports, That the tract of country before described, is within the
boundaries of the Chickasaw nation as established by the treaty of
Hopewell, the 16th day of January 1786.
That the right of occupancy of the said lands, therefore, being vested
in the said nation, the case of the said Charles Russell, and other
officers and soldiers of the said commonwealth, becomes proper to be
referred to the legislature of the United States for their consideration.
XXVIII.--_Report relative to negotiations at Madrid._
March 7, 1792.
The Secretary of State having understood, from communications with
the commissioners of his Catholic Majesty, subsequent to that which
he reported to the President on the 22d of December last, that though
they considered the navigation of the Mississippi as the principal
object of negotiation between the two countries, yet it was expected by
their court that the conferences would extend to all the matters which
were under negotiation on the former occasion with Mr. Gardoqui, and
particularly to some arrangements of commerce, is of opinion, that,
to renew the conferences on this subject also, since they desire it,
will be but friendly and respectful, and can lead to nothing without
our own consent; and that, to refuse it, might obstruct the settlement
of the questions of navigation and boundary; and, therefore, reports
to the President of the United States, the following observations and
instructions to the commissioners of the United States, appointed to
negotiate with the court of Spain a treaty or convention relative to the
navigation of the Mississippi; which observations and instructions, he
is of opinion, should be laid before the Senate of the United States,
and their decision be desired, whether they will advise and consent that
a treaty be entered into by the commissioners of the United States with
Spain conformable thereto.
After stating to our commissioners the foundation of our rights to
navigate the Mississippi, and to hold our southern boundary at the 31st
degree of latitude, and that each of these is to be a _sine quâ non_,
it is proposed to add as follows:
On the former conferences on the navigation of the Mississippi, Spain
chose to blend with it the subject of commerce; and, accordingly,
specific propositions thereon passed between the negotiators. Her object
then was to obtain our renunciation of the navigation, and to hold out
commercial arrangements perhaps as a lure to us. Perhaps, however, she
might then, and may now, really set a value on commercial arrangements
with us, and may receive them as a consideration for accommodating us in
the navigation, or may wish for them to have the appearance of receiving
a consideration. Commercial arrangements, if acceptable in themselves,
will not be the less so, if coupled with those relating to navigation and
boundary. We have only to take care that they be acceptable in themselves.
* * * * *
XXIX.--_Opinion on the Bill apportioning Representation._
April 4, 1792.
The Constitution has declared that representatives and direct taxes shall
be apportioned among the several States according to their respective
numbers. That the number of representatives shall not exceed one for
every 30,000, but each State shall have at least one representative, and
until such enumeration shall be made, the State of New Hampshire shall
be entitled to choose 3, Massachusetts 2.
The bill for apportioning representatives among the several States,
without explaining any principle at all, which may show its conformity
with the constitution, to guide future apportionments, says, that New
Hampshire shall have 3 members, Massachusetts 16, &c. We are, therefore,
to find by experiment what has been the principle of the bill; to do
which, it is proper to state the federal or representable numbers of
each State, and the numbers allotted to them by the bill. They are as
follows:--
Members.
Vermont 85,532 3
New Hampshire 141,823 5
Massachusetts 475,327 16
Rhode Island 68,444 2
Connecticut 285,941 8
New York 352,915 11
New Jersey 179,556 6
Pennsylvania 432,880 14
Delaware 55,538 2
Maryland 278,513 9
Virginia 630,558 21
Kentucky 68,705 2
North Carolina 353,521 11
South Carolina 206,236 6
Georgia 70,843 2
--------- ---
3,636,312 120
It happens that this representation, whether tried as between great and
small States, or as between north and south, yields, in the present
instance, a tolerably just result; and, consequently, could not be
objected to on that ground, if it were obtained by the process prescribed
in the Constitution; but if obtained by any process out of that, it
becomes arbitrary and inadmissible.
The 1st member of the clause of the Constitution above cited is express,
that representatives shall be apportioned among the several States
according to their _respective numbers_. That is to say, they shall
be apportioned by some common ratio--for proportion, and ratio, are
equivalent words; and, in the definition of _proportion among numbers_,
that they have a ratio common to all, or in other words, a common divisor.
Now, trial will show that there is no common ratio, or divisor, which,
applied to the numbers of each State, will give to them the number of
representatives allotted in this bill. For trying the several ratios of
29, 30, 31, 32, 33, the allotments would be as follows:--
29 30 31 32 33 The Bill
-- -- -- -- -- --------
Vermont 2 2 2 2 2 3
New Hampshire 4 4 4 4 4 5
Massachusetts 16 15 15 14 14 16
Rhode Island 2 2 2 2 2 2
Connecticut 8 7 7 7 7 8
New York 12 11 11 11 10 11
New Jersey 6 5 5 5 5 6
Pennsylvania 14 14 13 13 13 14
Delaware 1 1 1 1 1 2
Maryland 9 9 8 8 8 9
Virginia 21 21 20 19 19 21
Kentucky 2 2 2 2 2 2
North Carolina 12 11 11 11 10 12
South Carolina 7 6 6 6 6 7
Georgia 2 2 2 2 2 2
--- --- --- --- --- ---
118 112 109 107 105 120
Then the bill reverses the constitutional precept, because, by it,
representatives are _not_ apportioned among the several States, according
to their respective numbers.
It will be said that, though, for taxes, there may always be found a
divisor which will apportion them among the States according to numbers
exactly, without leaving any remainder, yet, for _representatives_, there
can be no such common ratio, or divisor, which, applied to the several
numbers, will divide them exactly, without a remainder or fraction. I
answer, then, that taxes must be divided _exactly_, and representatives
_as nearly_ as the _nearest ratio_ will admit; and the fractions must
be neglected, because the Constitution calls absolutely that there be
an _apportionment or common ratio_, and if any fractions result from
the operation, it has left them unprovided for. In fact it could not
but foresee that such fractions would result, and it meant to submit
to them. It knew they would be in favor of one part of the Union at one
time, and of another at another, so as, in the end, to balance occasional
irregularities. But instead of such a _single_ common ratio, or uniform
divisor, as prescribed by the Constitution, the bill has applied _two
ratios_, at least, to the different States, to wit, that of 30,026 to
the seven following: Rhode Island, New York, Pennsylvania, Maryland,
Virginia, Kentucky and Georgia; and that of 27,770 to the eight others,
namely: Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey,
Delaware, North Carolina, and South Carolina, as follows:--
Rhode Island 68,444 divided by 30,026 gives 2
New York 352,915 " " " 11
Pennsylvania 432,880 " " " 14
Maryland 278,513 " " " 9
Virginia 630,558 " " " 21
Kentucky 58,705 " " " 2
Georgia 70,843 " " " 2
Vermont 85,532 divided by 27,770 gives 3
New Hampshire 141,823 " " " 5
Massachusetts 475,327 " " " 16
Connecticut 235,941 " " " 8
New Jersey 179,556 " " " 6
Delaware 55,538 " " " 2
North Carolina 353,521 " " " 12
South Carolina 206,236 " " " 7
And if _two_ ratios be applied, then _fifteen_ may, and the distribution
become arbitrary, instead of being apportioned to numbers. Another member
of the clause of the Constitution which has been cited, says "the number
of representatives shall not exceed one for every 30,000, but each State
shall have at least one representative." This last phrase proves that
it had no contemplation that all fractions, or _numbers below the common
ratio_ were to be unrepresented; and it provides especially that in the
case of a State whose whole number shall be below the common ratio, one
representative shall be given to it. This is the single instance where
it allows representation to any smaller number than the common ratio,
and by providing especially for it in this, shews it was understood
that, without special provision, the smaller number would in this case,
be involved in the general principle. The first phrase of the above
citations, that "the number of representatives shall not exceed one for
every 30,000," is violated by this bill which has given to eight States
a number exceeding one for every 30,000, to wit, one for every 27,770.
In answer to this, it is said that this phrase may mean either the 30,000
_in each State_, or the 30,000 _in the whole Union_, and that in the
latter case it serves only to find the amount of the whole representation;
which, in the present state of population, is 120 members. Suppose the
phrase might bear both meanings, which will common sense apply to it?
Which did the universal understanding of our country apply to it? Which
did the Senate and Representatives apply to it during the pendency of the
first bill, and even till an advanced stage of this second bill, when
an ingenious gentleman found out the doctrine of fractions, a doctrine
so difficult and inobvious, as to be rejected at first sight by the very
persons who afterwards became its most zealous advocates?
The phrase stands in the midst of a number of others, every one of which
relates to States in their separate capacity. Will not plain common sense
then, understand it, like the rest of its context, to relate to States
in their separate capacities?
But if the phrase of one for 30,000 is only meant to give the aggregate
of representatives, and not at all to influence their apportionment
among the States, then the 120 being once found, in order to apportion
them, we must recur to the former rule which does it according to the
numbers of _the respective States_; and we must take the _nearest common
divisor_, as the ratio of distribution, that is to say, that divisor
which, applied to every State, gives to them such numbers as, added
together, come nearest to 120. This nearest common ratio will be found
to be 28,658, and will distribute 119 of the 120 members, leaving only
a single residuary one. It will be found too to place 96,648 fractional
numbers in the eight northernmost States, and 106,582 in the seven
southernmost. The following table shows it:
Ratio, 28,658 Fraction.
------
Vermont 85,832 2 27,816
New Hampshire 141,823 4 26,391
Massachusetts 475,327 16 13,599
Rhode Island 68,444 2 10,728
Connecticut 235,941 8 5,077
New York 352,915 12 6,619
New Jersey 119,856 6 6,408
Pennsylvania 432,880 15 10 96,648
Delaware 55,538 1 26,680
Maryland 278,503 9 18,191
Virginia 630,558 21 24,540
Kentucky 68,705 2 10,989
North Carolina 353,521 12 7,225
South Carolina 206,236 7 4,230
Virginia 70,843 2 23,137 105,582
--------- ---- ------- -------
3,636,312 119 202,230 202,230
Whatever may have been the intention, the effect of neglecting the
nearest divisor, (which leaves but one residuary member,) and adopting
a distant one (which leaves eight), is merely to take a member from New
York and Pennsylvania, each, and give them to Vermont and New Hampshire.
But it will be said, this is giving more than one for 30,000. True, but
has it not been just said that the one for 30,000 is prescribed only to
fix the aggregate number, and that we are not to mind it when we come
to apportion them among the States? That for this we must recur to the
former rule which distributes them according to the numbers in each
State? Besides does not the bill itself apportion among seven of the
States by the ratio of 27,770? which is much more than one for 30,000.
Where a phrase is susceptible of two meanings, we ought certainly to
adopt that which will bring upon us the fewest inconveniences. Let us
weigh those resulting from both constructions.
From that giving to each State a member for every 30,000 in that State
results the single inconvenience that there may be large portions
unrepresented, but it being a mere hazard on which State this will
fall, hazard will equalize it in the long run. From the others result
exactly the same inconvenience. A thousand cases may be imagined to
prove it. Take one. Suppose eight of the States had 45,000 inhabitants
each, and the other seven 44,999 each, that is to say each one less than
each of the others. The aggregate would be 674,993, and the number of
representatives at one for 30,000 of the aggregate, would be 22. Then,
after giving one member to each State, distribute the seven residuary
members among the seven highest fractions, and though the difference of
population be only an unit, the representation would be the double.
Fractions.
1st. 45,000 2 15,000
2d. 45,000 2 15,000
3d. 45,000 2 15,000
4th. 45,000 2 15,000
5th. 45,000 2 15,000
6th. 45,000 2 15,000
7th. 45,000 2 15,000
8th. 45,000 1 15,000
9th. 44,999 1 14,999
10th. 44,999 1 14,999
11th. 44,999 1 14,999
12th. 44,999 1 14,999
13th. 44,999 1 14,999
14th. 44,999 1 14,999
15th. 14,999
------- --
674,993 22
Here a single inhabitant the more would count as 30,000. Nor is this case
imaginable, only it will resemble the real one whenever the fractions
happen to be pretty equal through the whole States. The numbers of our
census happen by accident to give the fractions all very small, or very
great, so as to produce the strongest case of inequality that could
possibly have occurred, and which may never occur again. The probability
is that the fractions will generally descend gradually from 29,999 to
1. The inconvenience then of large unrepresented fractions attends both
constructions; and while the most obvious construction is liable to no
other, that of the bill incurs many and grievous ones.
1. If you permit the large fraction in one State to choose a
representative for one of the small fractions in another State, you take
from the latter its election, which constitutes real representation,
and substitute a virtual representation of the disfranchised fractions,
and the tendency of the doctrine of virtual representation has been too
well discussed and appreciated by reasoning and resistance on a former
great occasion to need development now.
2. The bill does not say that it has given the residuary representatives
_to the greatest fraction_; though in fact it has done so. It seems to
have avoided establishing that into a rule, lest it might not suit on
another occasion. Perhaps it may be found the next time more convenient
to distribute them _among the smaller States_; at another time _among
the larger States_; at other times according to any other crotchet which
ingenuity may invent, and the combinations of the day give strength to
carry; or they may do it arbitrarily by open bargains and cabal. In short
this construction introduces into Congress a scramble, or a vendue for
the surplus members. It generates waste of time, hot blood, and may at
some time, when the passions are high, extend a disagreement between
the two Houses, to the perpetual loss of the thing, as happens now in
the Pennsylvania assembly; whereas the other construction reduces the
apportionment always to an arithmetical operation, about which no two
men can ever possibly differ.
3. It leaves in full force the violation of the precept which declares
that representatives shall be _apportioned_ among the States according
to their numbers, _i. e._, by some common ratio.
Viewing this bill either as a _violation of the constitution_, or as
giving an _inconvenient exposition of its words_, is it a case wherein
the President ought to interpose his negative? I think it is.
1. The non-user of his negative begins already to excite a belief that no
President will ever venture to use it; and has, consequently, begotten a
desire to raise up barriers in the State legislatures against Congress,
throwing off the control of the constitution.
2. It can never be used more pleasingly to the public, than in the
protection of the constitution.
3. No invasions of the constitution are fundamentally so dangerous as the
tricks played on their own numbers, apportionment, and other circumstances
respecting themselves, and affecting their legal qualifications to
legislate for the union.
4. The majorities by which this bill has been carried (to wit: of one in
the Senate and two in the Representatives) show how divided the opinions
were there.
5. The whole of both houses admit the constitution will bear the other
exposition, whereas the minorities in both deny it will bear that of
the bill.
6. The application of any one ratio is intelligible to the people, and
will, therefore be approved, whereas the complex operations of this bill
will never be comprehended by them, and though they may acquiesce, they
cannot approve what they do not understand.
XXX.--_Opinion relative to a case of recapture, by citizens of the
United States, of slaves escaped into Florida, and of an American captain
enticing French slaves from St. Domingo._
December 3, 1792.
Complaint has been made by the Representatives of Spain that certain
individuals of Georgia entered the State of Florida, and without any
application to the Government, seized and carried into Georgia, certain
persons, whom they claimed to be their slaves. This aggression was thought
the more of, as there exists a convention between that government and
the United States against receiving fugitive slaves.
The minister of France has complained that the master of an American
vessel, while lying within a harbor of St. Domingo, having enticed some
negroes on board his vessel, under pretext of employment, bought them
off, and sold them in Georgia as slaves.
1. Has the general government cognizance of these offences? 2. If it
has, is any law already provided for trying and punishing them?
1. The Constitution says "Congress shall have power to lay and collect
taxes, duties, imposts, and excises, to pay the debts &c., provide for
the common defence and _general welfare_ of the United States." I do
not consider this clause as reaching the point. I suppose its meaning
to be, that Congress may collect taxes for the purpose of providing for
the _general welfare_, in those cases wherein the Constitution empowers
them to act for the general welfare. To suppose that it was meant to give
them a distinct substantive power, to do _any act_ which might tend to
the _general welfare_, is to render all the enumerations useless, and to
make their powers unlimited. We must seek the power therefore in some
other clause of the Constitution. It says further, that Congress shall
have power to "define and punish piracies and felonies committed on
the high seas, and offences against the law of nations." These offences
were not committed on the high seas, and consequently not within that
branch of the clause. Are they against the law of nations, taken as it
may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d,
convention? So much may be said in the affirmative, that the legislators
ought to send the case before the judiciary for discussion; and the
rather, when it is considered that unless the offenders can be punished
under this clause, there is no other which goes directly to their case,
and consequently our peace with foreign nations will be constantly at
the discretion of individuals.
2. Have the legislators sent this question before the Courts by any
law already provided? The act of 1789, chapter 20, section 9, says the
district courts shall have cognizance concurrent with the courts of the
several States, or the circuit courts, of all causes, where an _alien
sues for a tort only_, in violation of the law of nations: but what if
there be no alien whose interest is such as to support an action for
the tort?--which is precisely the case of the aggression on Florida. If
the act in describing the jurisdiction of the Courts, had given them
cognizance of proceedings by way of indictment or information against
offenders under the law of nations, for the public wrong, and on the
public behalf, as well as to an individual for the special tort, it
would have been the thing desired.
The same act, section 13, says, the "Supreme Court shall have exclusively
all such jurisdiction of suits or proceedings against ambassadors,
or other public ministers, or their domestics or domestic servants,
as a court of law can have or exercise consistently, with the law of
nations."--Still this is not the case, no ambassador, &c., being concerned
here. I find nothing else in the law applicable to this question, and
therefore presume the case is still to be provided for, and that this
may be done by enlarging the jurisdiction of the courts, so that they may
sustain indictments and informations on the public behalf, for offences
against the law of nations.
[_A note added by Mr. Jefferson at a later period._]
On further examination it does appear that the 11th section of the
judiciary act above cited gives to the circuit courts exclusively,
cognizance of all crimes and offences cognizable under the authority
of the United States, and not otherwise provided for. This removes the
difficulty, however, but one step further;--for questions then arise,
1st. What is the peculiar character of the offence in question; to wit,
treason, felony, misdemeanor, or trespass? 2d. What is its specific
punishment--capital or what? 3d. Whence is the venue to come?
XXXI.--_Report on Assays at the Mint, communicated to the House of
Representatives, January 8, 1793._
The Secretary of State, to whom was referred, by the President of the
United States, the resolution of the House of Representatives of the
29th of November, 1792, on the subject of experiments of France, England,
Spain, and Portugal, reports:
That assays and experiments have been, accordingly, made at the mint,
by the director, and under his care and inspection, of sundry gold and
silver coins of France, England, Spain, and Portugal, and of the quantity
of fine gold and alloy in each of them, and the specific gravities of
those of gold given in by the director, a copy of which, and of the
letter covering it, are contained in the papers marked A and B.
A.
January 7, 1793.
SIR:--I have, herewith, enclosed the result of our assays, &c., of
the coins of France, England, Spain, and Portugal. In the course of the
experiments, a very small source of error was detected, too late for the
present occasion, but which will be carefully guarded against in future.
I am, with the most perfect esteem, your most obedient humble servant,
DAVID RITTENHOUSE, _Director of the Mint_.
THOMAS JEFFERSON, _Secretary of State_.
_B._
_Assay of gold coins._
=======================+==============================+==========
| In 24 grains. |
Date +--------------+---------------+ Specific
| Fine gold. | Alloy. | gravity.
-----------------------+--------------+---------------+----------
| grs. 32 pts.| grs. 32 pts.|
{1726| 21 16 | 2 16 | 17.48
{1734| 21 19 | 2 13 | 17.38
French guineas, {1742| 21 26 | 2 06 | 17.58
{1753| 21 03 | 2 29 | 17.23
{1775| 21 22 | 2 10 | 17.57
{1786| 21 22 | 2 10 | 17.51
Double do. {1789| 21 22 | 2 10 | 17.50
{1790| 21 25 | 2 07 | 17.57
{1776| 21 21 | 2 11 | 17.53
{1780| 21 00 | 3 00 | 17.57
Spanish pistoles, {1786| 21 18 | 2 14 | 17.63
{1788| 21 02 | 2 30 | 17.00
{1755| 21 28 | 2 04 | 17.78
{1777| 21 31 | 2 01 | 17.75
{1785| 21 30 | 2 02 | 17.78
English guineas, {1788| 21 31 | 2 01 | 17.79
{1789| 22 03 | 1 29 | 17.78
{1791| 22 01 | 1 31 | 17.74
-----------------------+--------------+---------------+---------
{1739| 21 31 | 2 01 | 17.63
{1770| 22 05 | 1 27 | 17.78
Half johannes of {1776| 22 05 | 1 27 | 17.87
Portugal, {1785| 21 30 | 2 02 | 17.68
{1788| 21 31 | 2 01 | 17.78
=======================+==============+===============+=========
_Silver coins._
=================================+=================================
| In 12 ounces.
Date. +----------------+----------------
| Fine silver. | Alloy.
---------------------------------+----------------+----------------
| oz. dwts. grs. | oz. dwts. grs.
English half-crown of William | |
III. | 10 19 09½ | 1 00 14½
English shilling, 1787| 11 00 02½ | 0 19 21½
French crown, 1791| 10 16 00 | 1 04 00
Do. half-crown, 1739| 10 17 00 | 1 03 00
Do. 1792| 10 16 19 | 1 03 05
{ 1772| 10 15 05 | 1 04 19
Spanish dollar of { 1782| 10 14 02½ | 1 05 21½
{ 1790| 10 14 00 | 1 06 00
{ 1791| 10 14 21½ | 1 05 02½
=================================+================+================
MINT, January 7, 1793.
Assayed by Mr. David Ott, under my inspection, at the mint, in pursuance
of a resolution of Congress of November 29, 1792. I have added the
specific gravity of each piece of gold coin.
DAVID RITTENHOUSE, _Director of the Mint_.
XXXII.----_Report on the petition of John Rogers, relative to certain
lands on the north-east side of the Tennessee._
February 16, 1793.
The Secretary of State, to whom was referred, by the House of
Representatives of the United States, the petition of John Rogers, setting
forth, that as an officer of the State of Virginia, during the last war,
he became entitled to two thousand acres of lands on the north-east side
of the Tennessee, at its confluence with the Ohio, and to two thousand
four hundred acres in different parcels, between the same river and
the Mississippi, all of them within the former limit of Virginia, which
lands were allotted to him under an act of the Legislature of Virginia,
before its deed of cession to the United States; that by the treaty of
Hopewell, in 1786, the part of the country comprehending these lands
was ceded to the Chickasaw Indians; and praying compensation for the same,
Reports, That the portion of country comprehending the said parcels of
land, has been ever understood to be claimed, and has certainly been
used, by the Chickasaw and Cherokee Indians for their hunting grounds.
The Chickasaws holding exclusively from the Mississippi to the Tennessee,
and extending their claim across that river, eastwardly, into the claims
of the Cherokees, their conterminous neighbors.
That the government of Virginia was so well apprized of the rights of
the Chickasaws to a portion of country within the limit of that State,
that about the year 1780, they instructed their agent, residing with the
southern Indians, to avail himself of the first opportunity which should
offer, to purchase the same from them, and that, therefore, any act of
that Legislature allotting these lands to their officers and soldiers
must probably have been passed on the supposition, that a purchase of
the Indian right could be made, which purchase, however, has never been
made.
That, at the treaty of Hopewell, the true boundary between the United
States on the one part, and the Cherokees and Chickasaws on the other,
was examined into and acknowledged, and by consent of all parties, the
unsettled limits between the Cherokees and Chickasaws were at the same
time ascertained, and in that part particularly, were declared to be the
highlands dividing the waters of the Cumberland and Tennessee, whereby
the whole of the petitioner's locations were found to be in the Chickasaw
country.
That the right of occupation of the Cherokees and Chickasaws in this
portion of the country, having never been obtained by the United States,
or those under whom they claim it, cannot be said to have been ceded by
them at the treaty of Hopewell, but only recognized as belonging to the
Chickasaws, and retained to them.
That the country south of the Ohio was formerly contested between the
Six Nations and the southern Indians for hunting grounds.
That the Six Nations sold for a valuable consideration to the then
government their right to that country, describing it as extending from
the mouth of the Tennessee upwards. That no evidence can at this time
and place be procured, as to the right of the southern Indians, that
is to say, the Cherokees and Chickasaws, to the same country; but it is
believed that they voluntarily withdrew their claims within the Cumberland
river, retaining their right so far, which consequently could not be
conveyed from them, or to us, by the act of the Six Nations, unless it be
proved that the Six Nations had acquired a right to the country between
the Cumberland and Tennessee rivers by conquest over the Cherokees and
Chickasaws, which it is believed cannot be proved.
That, therefore, the locations of the petitioner must be considered as
made within the Indian territory, and insusceptible of being reduced
into his possession, till the Indian right be purchased.
That this places him on the same footing with Charles Russell and others,
officers of the same State, who had located their bounty lands in like
manner, within the Chickasaw lines, whose case was laid before the House
of Representatives of the United States at the last session, and remains
undecided on; and that the same and no other measure should be dealt to
this petitioner which shall be provided for them.
XXXIII.--_Report relative to the Boundaries of the Lands between the
Ohio and the Lakes acquired by treaties from the Indians._
March 10, 1793.
The Secretary of State, according to instructions received from the
President of the United States,
Reports, That, for the information of the commissioners appointed to
treat with the western Indians, he has examined the several treaties
entered into with them subsequent to the declaration of Independence,
and relating to the lands between the Ohio and the lakes, and also the
extent of the grants, reservations, and appropriations of the same lands,
made either by the United States, or by individual States within the
same period, and finds that the lands obtained by the said treaties, and
not so granted, reserved, or appropriated, are bounded by the following
lines, to wit:
Northwardly. By a line running from the fork of the Tuscarora's branch
of the Muskingum, at the crossing-place above Fort Lawrence. Westwardly
(towards the portage of the Big-Miami) to the main branch of that river,
then down the Miami, to the fork of that river next below the old fort,
which was taken by the French in 1752, thence due west to the river De la
Panse, and down that river to the Wabash; which lines were established
with the Wiandots, Delawares, Chippawas, and Ottawas, by the treaty of
Fort McIntosh, and with the Shawanese by that of the Great Miami.
Westwardly. By the bounds of the Wabash Indians.
Eastwardly. By the million of acres appropriated to military claimants,
by the resolution of Congress of October 23, 1787, and lying in the
angle between the seventh range of townships counted westwardly, from
the Pennsylvania boundary, and the tenth range counted from the Ohio
northwardly along the said seventh, which million of acres may perhaps
extend westwardly, so as to comprehend the twelfth range of townships,
counted in that direction from the Pennsylvania boundary, under which
view the said twelfth range may be assumed for the eastern boundary of
the territory now under consideration, from the said tenth range to the
Indian line.
Southwardly. By the northern boundary of the said tenth range of townships
to the Sioto river, and along the said river to what shall be the
northern limits of the appropriations for the Virginia line; (which two
last lines are those of the lands granted to the Sioto company,) thence
along what shall be the _northern_ limits of the said appropriations
of the Virginia line to the little Miami, and along the same to what
shall be the northern limit of one million of acres of land purchased
by John C. Symmes; thence due west along the said northern limit of
the said John C. Symmes, to the Great Miami, and down the same to its
mouth, then along the Ohio to General Clark's lands, and round the said
lands to the Ohio again, and down the same to the Wabash, or the lands
of the Indians inhabiting it. Which several lines are delineated on
the copy of Hutchins' map accompanying this report; the dotted parts of
the delineation denoting that they are conjectural. And it is further
necessary to apprize the commissioners that though the points at which
these several lines touches the Ohio, are taken from actual surveys,
yet the country included by the said lines, not being laid down from
actual survey, their lengths and intersections with each other, and
with the watercourses, as appearing in the maps, are not at all to be
relied on. No notice is here taken of the lands at the mouth of the Ohio
appropriated for military bounties by the same resolution of Congress
of October 22, 1787, nor of the settlement of Cahokea, Kaskaskia, Post
Vincennes, &c., because these can concern no Indians but those of the
Illinois and Wabash, whose interests should be transacted with themselves
separately, and not be permitted to be placed under the patronage of
the western Indians.
XXXIV.--_Report on the proceedings of the Secretary of State to transfer
to Europe the annual fund of $40,000, appropriated to that Department._
April 18, 1793.
The Secretary of State thinking it his duty to communicate to the
President his proceedings of the present year for transferring to Europe
the annual fund of $40,000 appropriated to the Department of State, (a
report whereof, was unnecessary the two former years, as monies already
in the hands of our bankers in Europe were put under his orders,)
Reports, That in consequence of the President's order of March 23d, he
received from the Secretary of the Treasury, March 31st, a warrant on
the Treasurer for $39,500; that it being necessary to purchase private
bills of exchange to transfer the money to Europe, he consulted with
persons acquainted with that business, who advised him not to let it
be known that he was to purchase bills at all, as it would raise the
exchange; and to defer the purchase a few days until the British packet
should be gone, on which event bills generally sunk some few per cent.
He therefore deferred the purchase, or giving any orders for it till
April 10th, when he engaged Mr. Vaughan (whose line of business enabled
him to do it without suspicion,) to make the purchase for him. He then
delivered the warrant to the Treasurer, and received a credit at the
Bank of the United States for $39,500, whereon he had an account opened
between "The Department of State and the Bank of the United States."
That Mr. Vaughan procured for him the next day the following bills:
Willing, Morris, and Swanwich, on John and Francis Baring & Co., London,
£3,000=$13,000.
Walter Stewart on Joseph Birch, March, Liverpool, £400=$1,733 33.
Robert Gilmer & Co., on James Strachan and James Mackenzie, London,
endorsed by Mordecai Lewis.
£200 }
150 } £600 $2,600
250 } --------------------
£4,000 = $17,333 33.
Averaging 4s. 7-38/100d. the dollar, or about 2½ per cent. above par,
which added to the one per cent loss heretofore always sustained on
the government bills (which allowed but 99 florins, instead of 100 do.
for every $40) will render the fund somewhat larger this year than
heretofore; that these bills being drawn on London, (for none could
be got on Amsterdam but to considerable loss, added to the risk of the
present possible situation of that place), he had them made payable to
Mr. Pinckney, and enclosed them to him by Captain Cutting, in the letter
of April 12th, now communicated to the President, and at the same time
wrote the letters of the same date to our bankers at Amsterdam and to
Col. Humphreys, now also communicated to the President, which will place
under his view the footing on which this business is put, and which is
still subject to any change he may think proper to direct, as neither
the letters, nor bills are yet gone.
The Secretary of State proposes, hereafter, to remit in the course of
each quarter $10,000 for the ensuing quarter, as that will enable him
to take advantage of the times when exchange is low. He proposes to
direct, at this time, a further purchase of $12,166 66, (which with the
$500 formerly obtained and $17,333 33 now remitted, will make $30,000
of this year's fund,) at long sight, which circumstance with the present
low rate of exchange, will enable him to remit it to advantage.
He has only further to add that he delivered to Mr. Vaughan orders on
the bank of the United States in favor of the persons themselves from
whom the bills were purchased, for their respective sums.
XXXV.--_Opinion on the question whether the United States have a right
to renounce their treaties with France, or to hold them suspended till
the government of that country shall be established._
April 28, 1793.
I proceed in compliance with the requisition of the President to give an
opinion in writing on the general question, whether the United States
have a right to renounce their treaties with France, or to hold them
suspended till the government of that country shall be established?
In the consultation at the President's on the 19th inst., the Secretary
of the Treasury took the following positions and consequences. France
was a monarchy when we entered into treaties with it; but it has declared
itself a republic, and is preparing a republican form of government. As
it may issue in a republic or a military despotism, or something else
which may possibly render our alliance with it dangerous to ourselves,
we have a right of election to renounce the treaty altogether, or to
declare it suspended till their government shall be settled in the form
it is ultimately to take; and then we may judge whether we will call
the treaties into operation again, or declare them forever null. Having
that right of election, now, if we receive their minister without any
qualifications, it will amount to an act of election to continue the
treaties; and if the change they are undergoing should issue in a form
which should bring danger on us, we shall not be then free to renounce
them. To elect to continue them is equivalent to the making a new
treaty, at this time, in the same form, that is to say, with a clause
of guarantee; but to make a treaty with a clause of guarantee, during
a war, is a departure from neutrality, and would make us associates in
the war. To renounce or suspend the treaties, therefore, is a necessary
act of neutrality.
If I do not subscribe to the soundness of this reasoning, I do most fully
to its ingenuity. I shall now lay down the principles which, according
to my understanding, govern the case.