4th. If they give such a right, does it extend to all manner of armed

vessels, or to particular kinds only? If the latter, to what kinds does

it extend? Does it include an _augmentation_ of force, or does it only

extend to placing the vessel in _status quo_?

5th. Does the twenty-second article of the treaty of commerce, in the case

supposed, extend to vessels armed for war on account of the Government

of a power at war with France, or to merchant-armed vessels belonging

to the subjects or citizens of that power, (viz.) of the description of

those which, by the English, are called letters of Marque ships; by the

French, "batiments armes en marchandize et en guerre"?

6th. Do the treaties aforesaid prohibit the United States from permitting

in the case supposed, the armed vessels belonging to a power at war with

France, or to the citizens or subjects of such power to come within the

ports of the United States, there to remain as long as they may think fit,

except in the case of their coming in with prizes made of the subjects

or property of France?

7th. Do they prohibit the United States from permitting in the case

supposed, vessels armed on account of the government of a power at war

with France, or vessels armed for merchandise and war, with or without

commission, on account of the subjects or citizens of such power, or

any vessels, other than those commonly called privateers, to sell freely

whatever they may bring into the ports of the United States, and freely

to purchase in and carry from the ports of the United States, goods,

merchandise, and commodities, except as excepted in the last question?

8th. Do they oblige the United States to permit France in the case

supposed, to sell in their ports the prizes which she or her citizens

may have made, of any power at war with her, the citizens or subjects

of such powers, or exempt from the payment of the usual duties on ships

and merchandise, the prizes so made, in the case of their being to be

sold within the ports of the United States?

9th. Do those treaties, particularly the Consular Convention, authorize

France, as of right, to erect courts within the jurisdiction of the

United States, for the trial and condemnation of prizes made by armed

vessels in her service?

10th. Do the laws and usages of nations authorize her, as of right, to

erect such courts for such purposes?

11th. Do the laws of neutrality, considered relatively to the treaties

of the United States with foreign powers, or independently of those

treaties, permit the United States in the case supposed, to allow to

France or her citizens, the privilege of fitting out _originally_ in and

from the ports of the United States, vessels armed and commissioned for

war, either on account of the government, or of private persons, or both?

12th. Do those laws permit the United States to extend the like privilege

to a power at war with France?

13th. Do the laws of neutrality, considered as aforesaid, permit the

United States, in the case supposed, to allow to France or her citizens

the privilege of refitting, or arming anew, vessels which, before their

coming within the United States, were armed and commissioned for war?

May such privilege include an _augmentation_ of the force of such vessels?

14th. Do those laws permit the United States to extend the like privilege

to a power at war with France?

15th. Do those laws in the case supposed, permit merchant vessels of

either of the powers at war to arm in the ports of the United States

without being commissioned? May this privilege be rightfully refused?

16th. Does it make any difference in point of principle, whether a vessel

be armed for war, or the force of an armed vessel be augmented in the

ports of the United States with means procured in the United States, or

with means brought into them by the party who shall so arm or augment

the force of such vessels? If the first be unlawful, is the last lawful?

17th. Do the laws of neutrality, considered as aforesaid, authorize the

United States to permit France, her subjects, or citizens, the sale within

their ports of prizes made of the subjects or property of a power at war

with France, before they have been carried into some port of France and

there condemned, refusing the privilege to her enemy?

18th. Do those laws authorize the United States to permit to France

the erection of courts within their territory and jurisdiction, for the

trial and condemnations of prizes refusing that privilege to a power at

war with France?

19th. If any armed vessel of foreign power at war with another, with

whom the United States are at peace, shall make prize of the subjects

or property of its enemy within the territory or jurisdiction of the

United States, have not the United States a right to cause restitution

of such prize? Are they bound or not by the principles of neutrality so

to do, if such prize shall be within their power?

20th. To what distance, by the laws and usages of nations, may the United

States exercise the right of prohibiting the hostilities of foreign

powers at war with each other, within rivers, bays, and arms of the sea,

and upon the sea along the coast of the United States?

21st. Have vessels armed for war, under commission from a foreign power,

a right without the consent of the United States, to engage within their

jurisdiction seamen or soldiers, for the service of such vessels, being

citizens of that power or of another foreign power, or citizens of the

United States?

22d. What are the articles by name to be prohibited to both or either

party?

23d. To what extent does the reparation permitted in the nineteenth

article of the treaty with France, go?

24th. What may be done as to vessels armed in our ports before the

President's proclamation? And what as to the prizes they made _before_

and _after_?

25th. May we within our own ports sell ships to both parties prepared

merely for merchandise? May they be pierced for guns?

26th. May we carry either or both kinds to the ports of the belligerent

powers for sale?

27th. Is the principle that free bottoms make free goods, and enemies

bottoms make enemies goods, to be considered as now an established part

of the law of nations?

28th. If it is not, are nations with whom we have no treaties, authorized

by the law of nations to take out of our vessels enemy passengers, not

being soldiers, and their baggage?

29th. May an armed vessel belonging to any of the belligerent powers,

follow _immediately_ merchant vessels, enemies departing from our ports,

for the purpose of making prizes of them? If not, how long ought the

former to remain after the latter has sailed? And what shall be considered

as the place of departure, from which the time is to be counted? And

how are the facts to be ascertained?

The first twenty-one questions by Alexander Hamilton.

Twenty-two to twenty-eight, by Thomas Jefferson.

Twenty-ninth, by the President.

XVI.

_Heads of consideration on the conduct we are to observe in the war

between Spain and Great Britain, and particularly should the latter

attempt the conquest of Louisiana and the Floridas._

The dangers to us, should Great Britain possess herself of those

countries:--

She will possess a territory equal to half ours beyond the Mississippi.

She will reduce that half of ours which is on this side of the

Mississippi;--by her language, laws, religion, manners, government,

commerce, capital;--by the possession of New Orleans, which draws to

it the dependence of all the waters of the Mississippi;--by the markets

she can offer them in the Gulf of Mexico and elsewhere.

She will take from the remaining part of our States the markets they

now have for their produce;--by furnishing those markets cheaper with

the same articles, tobacco, rice, indigo, bread, lumber, arms, naval

stores, furs.

She will have then possessions double the size of ours, as good in soil

and climate.

She will encircle us completely, by these possessions on our land-board,

and her fleets on our sea-board. Instead of two neighbors balancing each

other, we shall have one with more than the strength of both.

Would the prevention of this be worth a war?

Consider our abilities to take part in a war. Our operations would be

by land only. How many men should we need to employ?--their cost? Our

resources of taxation and credit equal to this.

Weigh the evil of this new accumulation of debt against the loss of

markets, and eternal expense and danger from so overgrown a neighbor.

But this is on supposition that France, as well as Spain, shall be engaged

in the war; for, with Spain alone, the war would be unsuccessful, and

our situation rendered worse.

No need to take a part in the war as yet. We may choose our own time.

Delay gives us many chances to avoid it altogether.

In such a choice of objects, Great Britain may not single out Louisiana

and the Floridas. She may fail in her attempt on them. France and Spain

may recover them.

If all these chances fail, we should have to re-take them. The difference

between re-taking and preventing, overbalanced by the benefits of delay.

Delay enables us to be better prepared to obtain from the allies a price

for our assistance.

Suppose these our ultimate views, what is to be done at this time?

1. As to Spain:--

If she be as sensible as we are, that she cannot save

Louisiana and the Floridas, might she not prefer their

independence to their subjection to Great Britain? Does

not the proposition of the Count d'Estaing furnish us an

opening to communicate our ideas on this subject to the

court of France, and through them to that of Madrid? and

our readiness to join them in guaranteeing the independence

of those countries? This might save us from a war, if Great

Britain respected our weight in a war; and if she does

not, the object would place the war on popular ground with us.

2. As to England?--say to Beckwith,--

That as to a treaty of commerce, we would prefer amicable

to adversary arrangements, though the latter would be

infallible, and in our own power: that our ideas are, that

such a treaty should be founded in perfect reciprocity, and

would, therefore, be its own price: that as to an alliance,

we can say nothing till its object be shown, and that it is

not to be inconsistent with existing engagements: that in

the event of a war between Great Britain and Spain, we are

disposed to be strictly neutral: that, however, we should

view with extreme uneasiness any attempts of either power

to seize the possessions of the other on our frontier, as

we consider our own safety interested in a due balance

between our neighbors. [It might be deemed advantageous

to express this latter sentiment, because, if there be

any difference of opinion in their councils, whether to

bend their force against North or South America, or the

islands (and certainly there is room for difference), and

if these opinions be nearly balanced, that balance ought

to be determined by the prospect of having an enemy the

more or less, according to the object they should select.]

July 12th, 1790.

XVII.

_Heads of consideration on the Navigation of the Mississippi, for Mr.

Carmichael, Aug. 22d, 1790._

We have a _right_ to the navigation of the Mississippi--1, by Nature;

2, by Treaty.

It is _necessary_ to us. More than half the territory of the United States

is on the waters of that river. Two hundred thousand of our citizens are

settled on them, of whom forty thousand bear arms. These have no other

outlet for their tobacco, rice, corn, hemp, lumber, house timber, ship

timber.

We have hitherto respected the indecision of Spain, because we wish

peace;--because our western citizens have had vent at home for their

productions.

A surplus of production begins now to demand foreign markets. Whenever

they shall say, "We cannot, we will not, be longer shut up," the United

States will be reduced to the following dilemma: 1. To force them to

acquiescence. 2. To separate from them, rather than take part in a war

against Spain. 3. Or to preserve them in our Union, by joining them in

the war.

The 1st is neither in our principles, nor in our power. 2d. A multitude

of reasons decide against the second. It may suffice to speak out one:

were we to give up half our territory rather than engage in a just war

to preserve it, we should not keep the other half long. 3d. The third

is the alternative we must adopt.

How are we to obtain that navigation?

(A.) By _Force_.

I. Acting _separately_. That we can effect this with

certainty and promptitude, circumstances decide.

_Objection._ We cannot retain New Orleans, for instance,

were we to take it.

_Answer._ A moderate force may be so secured, as to hold

out till succored. Our succors can be prompt and effectual.

Suppose, after taking it, we withdraw our force. If

Spain retakes it by an expedition, we can recover it by

a counter-expedition, and so as often as the case shall

happen. Their expedition will be slow, expensive, and lead

to catastrophes. Ours sudden, economical, and a check can

have no consequences. We should associate the country to

our Union. The inhabitants wish this. They are not disposed

to be of the Spanish government. It is idle in Spain to

suppose our Western inhabitants will unite with them.

They could be quiet but a short time under a government

so repugnant to their feelings. Were they to come under

it for present purposes, it would be with a view to throw

it off soon. Should they remain, they would communicate a

spirit of independence to those with whom they should be

mixed.

II. Acting in _conjunction_ with Great Britain, and with

a view to partition. The Floridas (including New Orleans)

would be assigned to us. Louisiana (or all the Western

waters of the Mississippi) to them. We confess that such

an alliance is not what we would wish. Because it may

eventually lead us into embarrassing situations with

our best friend, and put the power of two neighbors into

the hands of one. L. Lansdowne has declared he gave the

Floridas to Spain rather than the United States as a bone

of discord with the House of Bourbon, and of re-union with

Great Britain. Connolly's attempt (as well as other facts)

proves they keep it in view.

(B.) By _Negotiation_.

I. What must Spain do of _necessity_? The conduct of

Spain has proved that the occlusion of the Mississippi is

system with her. If she opens it now, it will be because

forced by imperious circumstances. She will consequently

shut it again when these circumstances cease. Treaty

will be no obstacle. Irregularities, real or pretended,

in our navigators, will furnish color enough. Perpetual

broils, and finally war will ensue. Prudence, and even

necessity, imposes on us the law of settling the matter

now, _finally_, and not by _halves_. With experience of the

past and prospect of the future, it would be imbecility

in us to accept the naked navigation. With that, we must

have what is necessary to its use, and without which it

would be useless to secure its continuance; that is, a

port near the mouth to receive our vessels and protect the

navigation. But even this will not secure the Floridas and

Louisiana against Great Britain. If we are neutral, she

will wrest those possessions from Spain. The inhabitants

(French, English, Scotch, American) would prefer England

to Spain.

II. What then had Spain better do of _choice_? Cede to us

all territory on our side of the Mississippi: on condition

that we guarantee all her possessions on the Western waters

of that river, she agreeing further, to subsidize us if

the guarantee brings us into the war.

Should Great Britain possess herself of the Floridas and

Louisiana, her governing principles are conquest, colonization,

commerce, monopoly. She will establish powerful colonies

in them. These can be poured into the Gulf of Mexico for

any sudden enterprise there, or invade Mexico, their next

neighbor, by land. Whilst a fleet co-operates along shore,

and cuts off relief. And proceed successively from colony

to colony.

With respect to us, if Great Britain establishes herself

on our whole land-board our lot will be bloody and eternal

war, or indissoluble confederacy. Which ought we to choose?

What will be the lot of the Spanish colonies in the jaws

of such a confederacy? What will secure the ocean against

the monopoly?

Safer for Spain that we should be her neighbor, than

England. Conquest not in our principles: inconsistent with

our government. Not our interest to cross the Mississippi

for ages. And will never be our interest to remain united

with these who do. Intermediate chances save the trouble

of calculating so far forward.

Consequences of this cession, and guarantee: 1. Every

subject of difference will be removed from between Spain

and the United States. 2. Our interest will be strongly

engaged in her retaining her American possessions. 3. Spain

will be quieted as to Louisiana, and her territories west

of that. 4. She may employ her whole force in defence of

her islands and Southern possessions. 5. If we preserve

our neutrality, it will be a very partial one to her. 6.

If we are forced into the war, it will be, as we wish, on

the side of the House of Bourbon. 7. Her privateers will

commit formidable depredation on the British trade, and

occupy much of their force. 8. By withholding supplies

of provision, as well as by concurring in expeditions,

the British islands will be in imminent danger. 9. Their

expenses of precaution, both for their continental and

insular possessions, will be so augmented as to give a

hope of running their credit down. In fine, for a narrow

slip of barren, detached, and expensive country, Spain

secures the rest of her territory, and makes an ally where

she might have a dangerous enemy.

XVIII.

_Questions to be considered of._

I. As to France.

Shall it be proposed to M. de Ternant to form a treaty ad referendum

to this effect: The citizens of the United States and of France, their

vessels, productions, and manufactures, shall be received and considered

each in all the dominions of the other as if they were the native

citizens, or the ships, productions, or manufactures of the other; and the

productions of the sea shall be received in all the dominions of each,

as if they were the productions of the country by the industry of whose

citizens they have been taken or produced from the sea. Saving only as

to the persons of their citizens, that they shall continue under those

in capacities for office, each with the other, which the constitution of

France, or of the United States, or any of them, have or shall establish

against foreigners of all nations, without exception?

If not, shall a treaty be proposed to him ad referendum, in which the

conditions shall be detailed on which the persons, ships, productions,

and manufactures of each shall be received with the other, and the

imports to which they shall be liable be formed into a tariff?

Shall the Senate be consulted in the beginning, in the middle, or only

at the close of this transaction?

II. As to England.

Shall Mr. Hammond be _now_ asked whether he is instructed to give us any

explanations of the intentions of his court, as to the detention of our

Western posts, and other infringements of our treaty with them?

Shall he be now asked whether he is authorized to conclude, or to

negotiate any commercial arrangements with us?

November 26, 1791.

XIX.

_Plan of a Bill concerning Consuls._

The matter of the bill will naturally divide as follows:

I. Foreign Consuls residing within the United States under a convention.

II. Consuls of the United States residing in foreign countries under a

convention.

III. Provision for future conventions, and cases where there is no

convention.

_Preliminary observations._--Nothing should be inserted in the bill

which is fully and adequately provided for by the convention with France,

because weak magistrates may infer from thence, that the parts omitted

were not meant by the Legislature to be enforced.

Are not the first, second and third sections of the printed bill

objectionable in this view? The instructions of the Executive to their

consuls will of course provide for the notification directed in the

second clause.

I. For carrying into full effect the convention between his most Christian

Majesty and the United States of America, entered into for the purpose

of defining and establishing the functions and privileges of their

respective Consuls and Vice-Consuls, Be it enacted by the Senate and

House of Representatives of the United States of America, that where, in

the seventh article of the said convention, it is agreed when there shall

be no Consul or Vice-Consul of his most Christian King to attend to the

saving of the wreck of any French vessel stranded on the coast of the

United States, or that the residence of the said Consul or Vice-Consul

(he not being at the place of the wreck) shall be more distant from the

same place than that of the competent judge of the country, the latter

shall immediately proceed to perform the office therein prescribed, the

nearest (here name the officer) shall be the competent judge designated

in the said article, and it shall be incumbent on him to perform the

office prescribed in the said article, and according to the tenor thereof.

Go on to direct who, in conjunction with the Consul or Vice-Consul, (if

there be one,) shall ascertain the abatement of duties on the damaged

goods stipulated in this article.

Article 9th allows the Consuls of the most Christian King to arrest and

imprison deserted captains, officers, mariners, seamen, and all others

being part of a ship's crew. For which purpose they are to address

themselves to the courts, judges, and officers competent, who are to

aid in arresting the deserter, and to confine him in the prisons of the

country. Say who are the competent courts, judges, and officers to whom

he is to apply, and what prisons they shall use.

This clause confines the terms of imprisonment to three months. The

French Consuls represent that in many ports of the United States, no

opportunity of re-conveying by a French ship occurs within that term, and

they ask a longer. Suppose it be referred to the Federal district judge

on application by the French Consul, and on his showing good cause, to

prolong the term from time to time, not exceeding three months additional

in the whole.

Article 12th. It is necessary to authorize some officer to execute

the sentences of the Consul, _not extending to life, limb or liberty_.

Will it be best to require the Marshal residing at the port to do it,

(and make it the duty, where none resides, to appoint a deputy residing

there,) or to allow the Consul to constitute some person of his nation an

officer for the purpose? If it should be thought indifferent to us, it

might be well to pay the French the compliment of asking their minister

here which he would prefer, and it would shield us from complaints of

delinquencies in the executing officer.

II. Article 12th. Say by what law the Consul of the United States,

residing in the French dominion, shall decide the cases whereof he has

jurisdiction, viz.: by the same law by which the proper federal court

would decide the same case.

Direct appeals from Consular sentences to the proper Federal court,

and save defects of formality in proceedings, where the matter is

substantially stated.

Article 4th. Declare what validity the authentication under the Consular

seal, of any instrument executed in foreign countries, shall have in

the courts of the United States.

[Duties not prescribed in the Convention.]

To subsist ship-wrecked or wandering seamen till an opportunity offers

of sending them back to some port of the United States, and to oblige

every master of an American vessel homeward bound, to receive and bring

them back in a certain proportion; they working, if able.

Where a ship is sold in a foreign port, oblige the master to send back

the crew, or furnish wherewithal to do it, on pain of an arrest by the

Consul on his ship, his goods, and his person, (if the laws of the land

permit it,) until he does it.

Oblige all American masters (on pain of arrest, till compliance, of

their vessel, cargo, or person, or such other pain as shall be thought

effectual) on their arrival in any foreign port within the jurisdiction

of a Consul or Vice-Consul of the United States, to report to him or

his agent in the port, their ship's name, and owners, burthen, crew,

cargo, and its owners, from what port of the United States they cleared,

and at what ports they have touched. Also to report to the Consul the

cargo they take in, and the port or ports of destination, and to take

his certificate that such report has been made, on like pain.

Allow certain fees to Consuls where none are already allowed, for the

same services, by the laws of the countries in which they reside.

Allow salaries not exceeding three thousand dollars to one Consul in

each of the Barbary States.

III. Where there are Consuls of the United States residing in foreign

countries, with which we have no convention, but whose governments indulge

our Consuls in the exercise of functions, extend the provisions of this

bill, or such of them as such government permits, to such Consuls of

the United States residing with them.

Also where any Consular Convention shall hereafter be removed with

the same, or entered into with any other nation, with stipulations

corresponding to those provided for in this bill, extend the provisions

of the bill respectively to the Consuls on both sides.

XX.

_Matters to be arranged between the Governments of England and United

States. December 12th, 1791._

The discussions which are opening between Mr. Hammond and our government,

have as yet looked towards no objects but those which depend on the treaty

of peace. There are, however, other matters to be arranged between the

two governments, some of which do not rest on that treaty. The following

is a statement of the whole of them:

1st. The Western ports.

2d. The negroes carried away.

3d. The debt of their bank to Maryland, and perhaps Rhode Island.

4th. Goods taken from the inhabitants of Boston, while the town was in

their possession, and compensation promised.

5th. Prizes taken after the dates at which hostilities were to cease.

6th. Subsistence of prisoners.

7th. The Eastern boundary.

Which of these shall be taken into the present discussion?

Which of them shall be left to arrangement through the ordinary channels

of our ministers, in order to avoid embarrassing the more important

points with matters of less consequence?

On the subject of commerce shall Mr. Hammond be desired to produce his

powers to treat, as is usual, before conferences are held on that subject?

XXI.

_Memorandum of communications made to a committee of the Senate on the

subject of the diplomatic nominations to Paris, London, and the Hague.

January 4th, 1792._

The Secretary of State having yesterday received a note from Mr. Strong,

as chairman of a committee of the Senate, asking a conference with him

on the subject of the late diplomatic nominations to Paris, London, and

the Hague, he met them in the Senate-chamber in the evening of the same

day, and stated to them in substance what follows:--

That he should on all occasions be ready to give to the Senate, or to

any other branch of the government, whatever information might properly

be communicated, and might be necessary to enable them to proceed in

the line of their respective offices: that on the present occasion,

particularly, _as the Senate had to decide on the fitness of certain

persons to act for the United States at certain courts, they would be

the better enabled to decide, if they were informed of the state of our

affairs at those courts, and what we had to do there_: that when the

bill for providing the means of intercourse with foreign nations was

before the legislature, he had met the committees of each House, and

had given them the ideas of the executive as to the courts with which

we should keep diplomatic characters, and the grades we should employ:

that there were two principles, which decided on the courts, viz., 1,

_vicinage_; and 2, _commerce_: that the first operated in the cases of

London and Madrid, and the second in the same cases, and also in those

of France and Portugal; perhaps, too, of Holland: that as to all other

countries, our commerce and connections were too unimportant to call

for the exchange of diplomatic residents: that he thought we should

adopt the lowest grades admissible, to wit, at Paris that of minister

plenipotentiary, because that grade was already established there; the

same at London, because of the pride of that court, and perhaps the sense

of our country and its interests, would require a sort of equality of

treatment to be observed towards them; and for Spain and Lisbon, that

of chargé des affaires only; the Hague uncertain: that at the moment of

this bill, there was a complete vacancy of appointments between us and

France and England, by the accidental translations of the ministers of

France and the United States to other offices, and none as yet appointed

to, or from England: that in this state of things, the legislature had

provided for the grade of minister plenipotentiary, as one that was

to be continued, and showed they had their eye on that grade only, and

that of chargé des affaires; and that by the sum allowed, they approved

of the views then communicated: that circumstances had obliged us to

change the grade at Lisbon to minister resident, and this of course would

force a change at Madrid and the Hague, as had been communicated at the

time to the Senate; but that no change was made in the salary, that of

resident being made the same as had been established for a chargé des

affaires.----He then added, the new circumstances which had supervened on

those general ones in favor of these establishments, to wit, with Paris,

the proposal on their part to make a liberal treaty, the present situation

of their colonies which might lead to a freer commerce with them, and the

arrival of a minister plenipotentiary here; with London, their sending

a minister here in consequence of notorious and repeated applications

from us, the powers given him to arrange the differences which had

arisen about the execution of the treaty, to wit, the posts, negroes,

&c., which was now in train, and perhaps some authority to talk on the

subject of arrangements of commerce, and also the circumstances which

had induced that minister to produce his commission; with Madrid, the

communication from the king, that he was ready to resume the negociations

on the navigation of the Mississippi, and to arrange that, and a port of

deposit on the most friendly footing, if we would send a proper person

to Madrid for that purpose: he explained the idea of joining one of the

ministers in Europe to Mr. Carmichael for that purpose; with Lisbon, that

we had to try to obtain a right of sending flour there, and mentioned Del

Pinta's former favorable opinion on that subject: he stated, also, the

interesting situation of Brazil, and the dispositions of the court of

Portugal with respect to our warfare with the Algerines; with Holland,

the negotiating loans for the transfer of the whole French debt there,

an operation which must be of some years, because there is but a given

sum of new money to be lent to any one nation. He then particularly

recapitulated the circumstances which justified the President's having

continued the grade of minister plenipotentiary; but added, that whenever

the biennial bill should come on, each House would have a constitutional

right to review the establishment again, and whenever it should appear

that either House thought any part of it might be reduced, on giving to

the executive time to avail themselves of the first convenient occasion

to reduce it, the executive could not but do it; but that it would be

extremely injurious now, or at any other time, to do it so abruptly as

to occasion the recall of ministers, or unfriendly sensations in any of

those countries with which our commerce is interesting.

That a circumstance, recalled to the recollection of the Secretary of

State this morning, induced him immediately to add to the preceding

verbal communication a letter addressed to Mr. Strong in the following

words:--

PHILADELPHIA, January 4th, 1792.

"SIR,--I am just now made to recollect a mistake in one

of the answers I gave last night in the committee of the

Senate, and which, therefore, I beg leave to correct. After

calling to their minds the footing on which Mr. Morris

had left matters at the court of London, and informing

them of what had passed between the British minister here

and myself, I was asked whether this was all that had

taken place? Whether there had been no other or further

engagement? I paused, you may remember, to recollect. I

knew nothing more had passed on the other side the water,

because Mr. Morris' powers there had been determined,

and I endeavored to recollect whether anything else had

passed with Mr. Hammond and myself. I answered that this

was all, and added in proof, that I was sure nothing had

passed between the President and Mr. Hammond, personally,

and so I might safely say this was all. It escaped me that

there had been an informal agent here, (Colonel Beckwith,)

and so informal that it was thought proper that I should

never speak on business with him, and that on a particular

occasion, the question having been asked whether if a

British minister should be sent here, we would send one

in exchange? It was said, through another channel, that

one would doubtless be sent. Having only been present when

it was concluded to give the answer, and not having been

myself the person who communicated it, nor having otherwise

had any conversation with Colonel Beckwith on the subject,

it absolutely escaped my recollection at the moment the

committee put the question, and I now correct the error

I committed in my answer, with the same good faith with

which I committed the error in the first moment. Permit me

to ask the favor of you, sir, to communicate this to the

other members of the committee, and to consider this as

a part of the information I have had the honor of giving

the committee on the subject.

I am with the most perfect esteem, sir, Your most obedient

and most humble servant."

Which letter, with the preceding statement, contains the substance of

what the Secretary of State has communicated to the committee, as far

as his memory enables him to recollect.

XXII.

_Considerations on the subjects of Ransom, and Peace with the Algerines.

April 1st, 1792._

I. The Ransom of our captive citizens, being fourteen in number.

For facts on this subject refer to the Reports of December 28th, 1790,

on the same ransom, and on the Mediterranean trade, and to Mr. Short's

letter of August 21st, 1791, sent to the Senate.

The probable cost will be one thousand five hundred dollars for the

common men, and half as much more for officers: adding presents, duties,

and other expenses, it will be little short of forty thousand dollars.

This must be ready money, and consequently requires a joint, but secret

vote of both houses. An agent must be sent for the purpose.

II. Peace, how best to be obtained?

1st. By war; that is to say, by constant cruises in the Mediterranean.

This proved practicable by the experiment of M. de Massiac, by the

Portuguese cruise. The co-operation of Portugal, Naples, Genoa, and Malta,

could possibly be obtained, but the expense would be considerable. Vessels

mounting one hundred guns in the whole, would probably be wanting on our

part. These would cost in the outset four hundred thousand dollars, and

annually afterwards one hundred and twenty-five thousand dollars. It may

be doubted if this expense could be met during the present Indian war.

If it could, it is the most honorable and efficacious way of having peace.

2d. By paying a gross sum for a peace of fifty years. Respectable

opinions vary from three hundred thousand to one million dollars, as

to the first cost. Then are to follow frequent occasional presents; and

with all this, the peace will not be respected unless we appear able to

enforce it; and if able to enforce it, why not rely on that solely? The

same question arises here, to wit: are we able to meet this expense at

present?

3d. By tribute annually.

The Dutch, Danes, Swedes, and Venetians, pay about twenty-four thousand

dollars a year. We might, perhaps, obtain it for something less. If for

ten or fifteen thousand dollars, it might be eligible. And by a tariff

for the ransom of the captives they shall take from us. If low, this

might do for the present. The agent to be sent for the purpose of ransom

might be authorized to treat; but should also make himself acquainted

with their coast, harbor, vessels, manner of fighting, &c. On either of

these plans a vote of the Senate will be requisite.

On the 1st or 2d the Representatives should be consulted, and perhaps

on the 3d or 4th. It will be best to bring it on by a message from the

President.

XXIII.

_Notes of a conversation with Mr. Hammond. June 3d, 1792._

Having received Mr. Hammond's letter of June 2d, informing me that my

letter of May 29th should be sent to his court for their instructions,

I immediately went to his house. He was not at home. I wrote him a

note, inviting him to come and dine with me alone, that we might confer

together in a familiar way on the subject of our letters, and consider

what was to be done. He was engaged, but said he would call on me any

hour the next day. I invited him to take a solo dinner the next day.

He accepted and came. After the cloth was taken off, and the servants

retired, I introduced the conversation by adverting to that part of his

letter wherein he disavowed any intentional deception, if he had been

misinformed, and had misstated any facts, assuring him that I acquitted

him of every suspicion of that kind: that he had been here too short a

time to be acquainted with facts himself, or to know the best sources

for getting at them: that I had found great difficulty myself in the

investigation of facts, and with respect to the proceedings of the

courts particularly, had been indebted to the circumstance of Congress

being in session, so that I could apply to the members of the different

States for information respecting their States. I told him that each

party having now stated the matters between the two nations in the point

of view in which they appeared to each, had hoped that we might by the

way of free conversation abridge what remained: that I expected we were

to take for our basis, that the treaty was to be fully executed: that,

on our part, we had pronounced our demands explicitly, to have the

upper posts delivered up, and the negroes paid for: that they objected

infractions on our part, which we denied: that we ought to proceed to

investigate the facts on which we differed: that this was the country

in which they could alone be investigated; and if it should be found

we had _unjustifiably_ broken the treaty, the case was of a nature to

admit of a proper compromise.

He said that he believed the question had never been understood by his

court;--admitted they had as yet heard only one side of it, and that

from a party which entertained strong feelings against us (I think he

said the Refugees): that the idea would be quite new to his court, of

their having committed the first infraction, and of the proceedings

on the subject of their debts here being on the ground of retaliation:

that this gave the case a complexion so entirely new and different from

what had been contemplated, that he should not be justified in taking a

single step: that he should send my letter to the ministers--that they

would be able to consider facts and dates, see if they had really been

the first infractors, and say what ground they would take on this new

state of the case: that the matter was now for the first time carried

into mutual discussion: that the close of my letter contained specific

propositions, to which they would of course give specific answers

adapted to the new statement of things brought forward. I replied, that

as to the fact of their committing the first infraction, it could not

be questioned: confessed that I believe the ministers which signed the

treaty, meant to execute it: that Lord Shelburne's plan was to produce

a new coalescence by a liberal conduct towards us: that the ministry

which succeeded thought the treaty too liberal, and wished to curtail

its effect in the course of executing it; but that if every move and

counter-move was to cross the Atlantic, it would be a long game indeed.

He said, no: that he thought they could take their ultimate ground at

once, on having before them a full view of the facts, and he thought it

fortunate that Mr. Bord, from whom he got most of his information, and

Lord Dorchester, would be on the spot to bring things to rights, and he

imagined he could receive his instructions before November.

I told him that I apprehended that Lord Dorchester would not feel a

disposition to promote conciliation, seeing himself marked personally as

an infractor; and mentioned to him the opinions entertained here of the

unfriendliness of Mr. Bord's mind towards us. He justified Mr. Bord. He

had received information from their other consuls, and the factors of the

merchants, who assured him that they could furnish proofs of the facts

they communicated to him, and which he had advanced on their authority,

and that he should now write to them to produce their authority. He

admitted that the debt to British subjects might be considered as

liquidated from the Potomac northward: that South Carolina was making

a laudable effort to pay hers; and that the only important object now

was, that of Virginia, amounting by his list to two millions sterling:

that the attention of the British merchants from North to South was

turned to the decision of the case of Jones and Walker, which he hoped

would take place at the present session, and let them see what they had

to depend on. I told him that I was sorry to learn that but two judges

had arrived in Richmond, and that unless the third arrived they would

not take it up. I desired him to observe that the question in that case

related only to that description of debts which had been paid into

the treasury: that without pretending to know with any accuracy what

proportion of the whole debt of Virginia had been paid into the treasury,

I believed it was a small one; but the case of Jones and Walker would

be a precedent for those debts only: that as to the great residuary

mass, there were precedents enough, as it appeared they were in a full

course of recovery, and that there was no obstacle, real or apparent.

He did not appear to have adverted to the distinction, and showed marks

of satisfaction on understanding that the question was confined to

the other portion of the debts only. He thought that the collection,

there being one under a hopeful way, would of itself change the ground

on which our difference stands. He observed that the treaty was of

itself so vague and inconsistent in many of its parts, as to require an

explanatory convention. He instanced the two articles, one of which gave

them the navigation of the Mississippi, and the other bounded them by a

due west line from the Lake of the Woods, which being now understood to

pass beyond the most northern sources of the Mississippi, intercepted

all access to that river: that to reconcile these articles, that line

should be so run as to give them access to the navigable waters of the

Mississippi, and that it would even be for our interest to introduce a

third power between us and the Spaniards. He asked my idea of the line

from the Lake of the Woods, and of now settling it. I told him I knew

of no objection to the settlement of it: that my idea of it was, that

if it was an impassable line, as proposed in the treaty, it should be

rendered passable by as small and unimportant an alteration as might

be, which I thought would be to throw in a line running due north from

the northernmost source of the Mississippi, till it should strike the

western line from the Lake of the Woods: that the article giving them

a navigation in the Mississippi did not relate at all to this northern

boundary, but to the southern one, and to the secret article respecting

that: that he knew that our Provisional Treaty was made seven weeks

before that with Spain: that at the date of ours, their ministers had

still a hope of retaining Florida, in which case they were to come up

to the thirty-second degree, and in which case also the navigation of

the Mississippi would have been important; but that they had not been

able, in event, to retain the country to which the navigation was to

be an appendage. (It was evident to me that they had it in view to

claim a slice on our north-western quarter, that they may get into the

Mississippi; indeed, I thought it presented as a sort of make-weight with

the posts to compensate the great losses their citizens had sustained

by the infractions charged on us.)

I had hinted that I had not been without a hope, that an early possession

of the posts might have been given us as a commencement of full execution

of the treaty.

He asked me if I had conceived that he was authorized to write to the

Governor of Canada to deliver us the posts? I said I had. He smiled

at that idea, and assured me he had by no means any such authority. I

mentioned what I had understood to have passed between him and General

Dickinson, which was related to me by Mr. Hawkins, to wit: that the posts

might be delivered upon the assurance of the recovery of their debts in

Virginia. He said, that if any such thing as that had dropped from him,

it must have been merely as a private and unauthorized opinion, for that

the opinion of his court was, that the retention of the posts was but a

short compensation for the losses which their citizens had sustained, and

would sustain by the delay of their admission into our courts. (Putting

together this expression and his frequent declarations that the face of

the controversy was now so totally changed from what it was understood

to be at his court, that no instructions of his could be applicable to

it, I concluded that his court had entertained no thought of ever giving

up the posts, and had framed their instructions to him on a totally

different hypothesis.) He asked what we understood to be the boundary

between us and the Indians? I told him he would see by recurring to my

report on the North Western Territory, and by tracing the line there

described on Hutchins' map. What did I understand to be our right in the

Indian soil? 1st. A right of preëmption of their lands; that is to say,

the sole and exclusive right of purchasing from them whenever they should

be willing to sell. 2d. A right of regulating the commerce between them

and the whites. Did I suppose that the right of preëmption prohibited

any individual of another nation from purchasing lands which the Indians

should be willing to sell? Certainly. We consider it as established by

the usage of different nations into a kind of Jus gentium for America,

that a white nation settling down and declaring that such and such are

their limits, makes an invasion of those limits by any other white nation

an act of war, but gives no right of soil against the native possessors.

Did I think the right of regulating the commerce went to prohibit the

British traders from coming into the Indian territory? That has been

the idea. He said this would be hard on the Indians. I observed that

whichever way the principle was established, it would work equally on

both sides the line. I did not know whether we would gain or lose by

mutual admission or exclusion. He said they apprehended our intention

was to exterminate the Indians and take the lands. I assured him that,

on the contrary, our system was to protect them, even against our own

citizens: that we wish to get lines established with all of them, and

have no views even of purchasing any more lands of them for a long time.

We consider them as a maze chaussee, or police, for scouring the woods

on our borders, and preventing their being a cover for rovers and robbers.

He wished the treaty had established an independent nation between us

to keep us apart. He was under great apprehensions that it would become

a matter of bidding as it were, between the British and us, who should

have the greatest army there, and who should have the greatest force on

the lakes: that we, holding posts on this side the water, and they on

the other, soldiers looking constantly at one another, would get into

broils and commit the two nations in war. I told him we might perhaps

regulate by agreement the force to be kept on each side.

He asked what was our view in keeping a force there: that he apprehended

if we had these posts, we should be able to hinder vessels from passing.

I answered that I did not know whether the position of the present posts

was such as that no vessel could pass but within their gun-shot; but

that each party must have a plenty of such positions on the opposite

sides, exclusively of the present posts: that our view in possessing

these posts was to awe the Indians, to participate in the fur trade,

to protect that trade. Protect it against whom? Against the Indians.

He asked what I imagined to be their motives for keeping the posts? To

influence the Indians, to keep off a rival nation and the appearance of

having a rival nation, to monopolize the fur trade. He said he was not

afraid of rivals if the traders would have fair play. He thought it would

be better that neither party should have any military posts, but only

trading houses. I told him that the idea of having no military posts on

either side was new to me: that it had never been mentioned among the

members of the executive: that therefore I could only speak for myself

and say that, _primâ facie_, it accorded well with two favorite ideas

of mine, of leaving commerce free, and never keeping an unnecessary

soldier; but when he spoke of having no military posts on either side,

there might be difficulty in fixing the distance of the nearest posts.

He said that though his opinion on this subject was only a private one,

and he understood mine to be so also, yet he was much pleased that we

two seemed to think nearly alike, as it might lead to something. He said

that their principal object in the fur trade was the consumption of the

goods they gave in exchange for the furs. I answered that whether the

trade was carried on by English or Americans, it would be with English

goods, and the route would be, not through Canada, but by the shorter

channels of the Hudson or Potomac.

It is not pretended that the above is in the exact order, or the exact

words of the conversation. This was often desultory, and I can only answer

for having given generally the expression, and always the substance of

what passed.

XXIV.

_Extempore thoughts and doubts, on very superficially running over the

Bankrupt Bill._

The British statute excepts expressly farmers, graziers, drovers, as

such, though they buy to sell again. This bill has no exception.

The British adjudications exempt the buyers and sellers of bank-stock,

government papers, &c. What feelings guided the draughtsman in adhering

to his original in this case, and departing from it in the other?

The British courts adjudge that any artists may be bankrupts if the

materials of their art are bought, such as shoemakers, blacksmiths,

carpenters, &c. Will the body of our artists desire to be brought within

the vortex of this law? It will follow as a consequence that the master

who has an artist of this kind in his family, whether hired, indentured,

or a slave, to serve the purposes of his farm or family, but who may at

leisure times do something for his neighbors also, may be a bankrupt.

The British law makes a departure from the realm, i. e. out of the

mediation of British law, an act of bankruptcy. This bill makes a

departure from the _State wherein he resides_, (though into a neighboring

one where the laws of the United States run equally,) an act of

bankruptcy.

The commissioners may open houses, break open doors, chests, &c. Are

we really ripe for this? Is that spirit of independence and sovereignty

which a man feels in his own house, and which Englishmen felt when they

denominated their houses their castles, to be absolutely subdued? and

is it expedient that it should be subdued?

The lands of the bankrupt are to be taken, sold, &c. Is not this a

predominant question between the general and State Legislatures?

Is commerce so much the basis of the existence of the United States as

to call for a bankrupt law? On the contrary, are we not almost merely

agricultural? Should not all laws be made with a view essentially to

the poor husbandmen? When laws are wanting for particular descriptions

of other callings, should not the husbandmen be carefully excused from

their operation, and preserved under that of the general system only;

which general system is fitted to the condition of husbandmen?

XXV.

_Heads of conversation with Mr. Hammond._

That I communicated to the President his information of the consent of

the Western Indians to hold conferences of peace with us, in the presence

of Governor Simcoe:--took care to apprize him of the informality of

the conversation;--that it was accidental;--private;--the present to be

considered equally so:--unnecessary to note to him that nothing like a

mediation was suggested. 1st. Because so informal a conversation could

not include so formal a thing as a mediation. 2d. Because, an established

principle of public law among the white nations of America, that while

the Indians included within their limits retain all other national

rights, no other white nations can become their patrons, protectors, or

mediators, nor in any shape intermeddle between them and those within

whose limits they are. That Great Britain would not propose an example

which would authorize us to cross our boundary, and take under our

protection the Indians within her limits. 3d. Because, should the treaty

prove ineffectual, it would singularly commit the friendship of the two

nations.

That the idea of Governor Simcoe's attendance was presented only as a

thing desired by the Indians: that the consequences of this had been

considered. It is not necessary in order to effect a peace. Our views

so just, so moderate, that we have no fear of effecting peace if left to

ourselves. If it cannot be effected, it is much better that nobody on the

part of England should have been present;--for however our government is

persuaded of the sincerity of your assurances that you have not excited

the Indians, yet our citizens in general are not so. It will be impossible

to persuade them the negotiations were not defeated by British agents:

that, therefore, we do not pretend to make the exclusion of Governor

Simcoe a _sine quâ non_, provided he be there as a spectator, not as

a _party_, yet we should consider his declining to attend, either by

himself or any other person, as an instance of their friendship, and

as an evidence of it particularly calculated to make due impression on

the minds of our citizens. That the place fixed on by the Indians is

extremely inconvenient to us, because of the distance and difficulty

of transporting provisions there. Three hundred thousand rations will

probably be requisite, if three thousand Indians attend. That if we had

time, we would have proposed some other place, for example the Maumee

towns; but there not being time, we shall do our best to make provision.

1st. We shall collect and carry as much as possible through the Miami

channel. 2d. We shall hope for their permission to have purchases made

in Upper Canada, and brought along the lake.

XXVI.

_Instructions to Andrew Michaud for exploring the Western Boundary.

January, 1793._

Sundry persons having subscribed certain sums of money for your

encouragement to explore the country along the Missouri, and thence

westwardly to the Pacific ocean, having submitted the plan of the

enterprise to the directors of the American Philosophical society, and

the society having accepted of the trust, they proceed to give you the

following instructions:

They observe to you that the chief objects of your journey are to find

the shortest and most convenient route of communication between the

United States and the Pacific ocean, within the temperate latitudes,

and to learn such particulars as can be obtained of the country through

which it passes, its productions, inhabitants, and other interesting

circumstances. As a channel of communication between these States and

the Pacific ocean, the Missouri, so far as it extends, presents itself

under circumstances of unquestioned preference. It has, therefore, been

declared as a fundamental object of the subscription (not to be dispensed

with) that this river shall be considered and explored as a part of the

communication sought for. To the neighborhood of this river, therefore,

that is to say, to the town of Kaskaskia, the society will procure you

a conveyance in company with the Indians of that town now in Philadelphia.

From thence you will cross the Mississippi and pass by land to the nearest

part of the Missouri above the Spanish settlements, that you may avoid

the risk of being stopped.

You will then pursue such of the largest streams of that river as shall

lead by the shortest way and the lowest latitudes to the Pacific ocean.

When, pursuing those streams, you shall find yourself at the point

from whence you may get by the shortest and most convenient route to

some principal river of the Pacific ocean, you are to proceed to such

river, and pursue its course to the ocean. It would seem by the latest

maps as if a river called Oregon, interlocked with the Missouri for a

considerable distance, and entered the Pacific ocean not far southward

of Nootka Sound. But the society are aware that these maps are not to be

trusted so far as to be the ground of any positive instruction to you.

They therefore only mention the fact, leaving to yourself to verify it,

or to follow such other as you shall find to be the real truth.

You will in the course of your journey, take notice of the country

you pass through, its general face, soil, rivers, mountains, its

productions--animal, vegetable, and mineral--so far as they may be new

to us, and may also be useful or very curious; the latitudes of places

or material for calculating it by such simple methods as your situation

may admit you to practice, the names, members, and dwellings of the

inhabitants, and such particulars as you can learn of their history,

connection with each other, languages, manners, state of society, and

of the arts and commerce among them.

Under the head of animal history, that of the mammoth is particularly

recommended to your inquiries, as it is also to learn whether the Lama

or Paca of Peru, is found in those parts of this continent, or how far

north they come.

The method of preserving your observations is left to yourself, according

to the means which shall be in your power. It is only suggested that

the noting them on the skin might be best for such as may be the most

important, and that further details may be committed to the bark of

the paper-birch, a substance which may not excite suspicions among the

Indians, and little liable to injury from wet or other common accidents.

By the means of the same substance you may perhaps find opportunities,

from time to time, of communicating to the society information of your

progress, and of the particulars you shall have noted.

When you shall have reached the Pacific ocean, if you find yourself

within convenient distance of any settlement of Europeans, go to them,

commit to writing a narrative of your journey and observations, and take

the best measure you can for conveying it thence to the society by sea.

Return by the same, or some other route, as you shall think likely to

fulfil with most satisfaction and certainty the objects of your mission,

furnishing yourself with the best proofs the nature of the case will

admit of the reality and extent of your progress. Whether this shall be

by certificates from Europeans settled on the western coast of America,

or by what other means, must depend on circumstances. Ignorance of the

country through which you are to pass, and confidence in your judgment,

zeal, and discretion, prevent the society from attempting more minute

instructions, and even from exacting rigorous observance of those already

given, except, indeed, what is the first of all objects, that you seek for

and pursue that route which shall form the shortest and most convenient

communication between the higher parts of the Missouri and the Pacific

ocean.

It is strongly recommended to you to expose yourself in no case to

unnecessary dangers, whether such as might affect your health or your

personal safety, and to consider this not merely as your personal

concern, but as the injunction of science in general, which expects its

enlargement from your inquiries, and of the inhabitants of the United

States in particular, to whom your report will open new fields and

subjects of commerce, intercourse, and observation.

If you reach the Pacific ocean and return, the society assign to you

all the benefits of the subscription before mentioned. If you reach the

waters only which run into that ocean, the society reserve to themselves

the apportionment of the reward according to the conditions expressed

in the subscription. If you do not reach even those waters they refuse

all reward, and reclaim the money you may have received here under the

subscription.

They will expect you to return to the city of Philadelphia to give in to

them a full narrative of your journey and observations, and to answer

the inquiries they shall make of you, still reserving to yourself the

benefit arising from the publication of such parts of them as are in

the said subscription reserved to you.

XXVII.

_Memorandum relative to commissioners for laying off the federal city.

March 11th, 1793._

_Question 1st._--What sacrifice may be made to retain Mr. Johnson in

the office of commissioner for the federal territory?

_Answer._--For such an object, it is worth while to give up the plan

of an allowance per diem; to give, instead of that, a sum in gross, and

to extend that sum to five hundred dollars per annum, and expenses; the

latter to be rendered in account.

If Mr. Johnson persists in resigning, as it is evident Dr. Stewart will

not continue even for the above allowance, and Mr. Carroll does not

appear to make any conditions, the President will be free as to Mr.

Carroll and two new associates, to adhere to the allowance per diem

already proposed, or to substitute a sum in gross.

_Question 2d._--May new commissioners be chosen in the town?

_Answer._--It is strongly desirable that the commissioners should not

be of the town, nor interested in it; and this objection is thought a

counterpoise for a sensible difference in talents; but if persons of

adequate talents and qualifications cannot be found in the country,

it will be better to take them from the town, than to appoint men of

inadequate talents from the country.

_Question 3d._--How compensate them?

_Answer._--If they come from the country, the per diem allowance is

thought best; if from the town, a sum in gross will be best, and this

might be as far as three hundred dollars a year, and no allowance for

expenses. If partly from the town, and partly from the country, then

three hundred dollars a year to the former, and the same, with allowance

of expenses, to the latter.

Mr. Madison, Mr. Randolph and Thomas Jefferson having consulted together

on the preceding questions, with some shades of difference of opinion in

the beginning, concurred ultimately and unanimously in the above answers.

XXVIII.

_Note given to the President relative to Genet._

Mr. Genet's declaration to the President at his reception, that France

did not wish to engage the United States in the present war by the clause

of guarantee, but left her free to pursue her own happiness in peace,

has been repeated to myself in conversation, and to others, and even in

a public answer, so as to place it beyond question.

Some days after the reception of Mr. Genet (which was May 17th), I went to

his house on business. The Attorney General went with me to pay his first

visit. After he withdrew, Mr. Genet told me Mr. Fornant had delivered

him my letter of May 15th on the four memorials of Mr. Hammond. He said

something first of the case of the Grange, and then of the vessels armed

at Charleston. He said that on his arrival there, he was surrounded

suddenly by Frenchmen full of zeal for their country, pressing for

authority to arm with their own means for its assistance: that they would

fit out their own vessels, provide everything, man them, and only ask a

commission from him: that he asked the opinion of Governor Moultrie on

the subject, who said he knew no law to the contrary, but begged that

whatever was to be done, might be done without consulting him: that he

must know nothing of it, &c.: that hereupon he gave commission to the

vessels: that he was of opinion that he was justified, not only by the

opinions at Charleston, but by our treaties. I told him the President

had taken full advice on the subject, had very maturely considered it,

and had come to the decision expressed in my letter. He said he hoped

the President had not so absolutely decided it, but that he would hear

what was to be said against it. I told him I had no doubt but that

the President, out of respect to him and his country, would receive

whatever he should have to urge on the subject, and would reconsider

it with candor. He said he would make it his business to write me a

letter on the subject: that he thought the arming the privateers was

justifiable; but that if the President should finally decide otherwise

(though he could not think it would be right), yet he must submit; for

that assuredly his instructions were to do whatever would be agreeable

to us. He showed, indeed, by his countenance, his manner, and words,

that such an acquiescence would be with reluctance; but I was and am

persuaded he then meant it.

Mr. Genet called at my office on Tuesday sennight, or fortnight, say

(July 16th or 9th), but I think it was Tuesday sennight; and knew it was

on a Tuesday, because he went from thence to the President's. He was

summing up to me the strength of the French naval force now arrived.

I took that occasion to observe to him, that having such great means

in his hands, I thought he ought not to hesitate in abandoning to the

orders of the government the little pickeroons which had been armed

here unauthorized by them, and which occasioned so much embarrassment

and uneasiness: that certainly their good dispositions must be worth

more than the trifling services these little vessels could render. He

immediately declared, that having such a force in his hands, he had

abandoned every idea of further armament in our ports: that these small

objects were now beneath his notice, and he had accordingly written to

the consuls to stop everything further of that kind; but that as to those

which had been fitted out before, their honor would not permit them to

give them up, but he wished an oblivion of everything which had passed,

and that in future the measure so disagreeable to the government should

not be pursued, though he thought it clearly justifiable by the treaty.

I told him the government was of a different opinion: that both parties

indeed had equal right to construe the treaty: that, consequently, he

had done his duty in remonstrating against our construction, but that

since the government remained finally persuaded of the solidity of its

own construction, and had a right to act accordingly within their own

limits, it was now his duty, as a diplomatic man, to state the matter

to his government, to ask and await their orders, and in the meantime

to acquiesce, and by no means to proceed in opposition within our limits.

It was at the same time, he informed me, that he had sent out the Little

Democrat, July 26th, 1793, to obtain intelligence of the state of the

coast, and whether it was safe for the fleet to proceed round from

Norfolk to New York.

XXIX.

_Rules for the regulation of our conduct towards the belligerent Powers

recommended to the President for his adoption._

1st. The original arming and equipping of vessels in the ports of the

United States by any of the belligerent powers for military service,

offensive or defensive, is deemed unlawful.

2d. Equipments of merchant vessels by either of the belligerent parties

in the ports of the United States, purely for the accommodation of them

as such, is deemed lawful.

3d. Equipments in the ports of the United States of vessels of war in the

immediate service of the government of any of the belligerent parties,

which, if done to other vessels, would be of a doubtful nature, as

being applicable either to commerce or war, are deemed lawful, except

those which shall have made prize of the subjects, people or property

of France, coming with their prizes into the ports of the United States,

pursuant to the seventeenth article of our treaty of amity and commerce

with France.

4th. Equipments in the ports of the United States by any of the parties

at war with France, of vessels fitted for merchandise and war, whether

with or without commissions, which are doubtful in their nature, as

being applicable either to commerce or war, are deemed lawful, except

those which shall have made prize, &c.

5th. Equipments of any of the vessels of France in the ports of the

United States, which are doubtful in their nature, as being applicable

to commerce or war, are deemed lawful.

6th. Equipments of every kind in the ports of the United States of

privateers of the powers at war with France, are deemed unlawful.

7th. Equipments of vessels in the ports of the United States which are

of a nature solely adapted to war, are deemed unlawful; except those

stranded or wrecked, as mentioned in the eighteenth article of our treaty

with France, the sixteenth of our treaty with the United Netherlands,

the ninth of our treaty with Prussia, and except those mentioned in the

nineteenth article of our treaty with France, the seventeenth of our

treaty with the United Netherlands, the eighteenth of our treaty with

Prussia.

8th. Vessels of either of the parties not armed, or armed previous to

their coming into the ports of the United States, which shall not have

infringed any of the foregoing rules, may lawfully engage or enlist

therein their own subjects, or aliens not being inhabitants of the United

States, except privateers of the powers at war with France, and except

those vessels which shall have made prize, &c.

August 3, 1793. The foregoing rules having been considered by us at

several meetings, and being now unanimously approved, they are submitted

to the President of the United States.

TH: JEFFERSON. ALEXANDER HAMILTON.

H. KNOX. EDW: RANDOLPH.

XXX.

_Opinion relative to the propriety of convening the Legislature at an

earlier period than that fixed by law. August 4th, 1793._

The President having been pleased to propose for consideration, the

question whether it be proper or not to convene the Legislature at an

earlier period than that at which it is to meet by law, and at what

time? I am of opinion it will be proper.

1st. Because the protection of our southern frontiers seems to render

indispensable a war with the Creeks, which cannot be declared nor provided

for but by the Legislature, nor prudently undertaken by the Executive

on account of the consequences it may involve with respect to Spain.

2d. Because several Legislative provisions are wanting to enable the

government to steer steadily through the difficulties daily produced

by the war of Europe, and to prevent our being involved in it by the

incidents and perplexities to which it is constantly giving birth.

3d. Because, should we be involved in it, which is every day possible,

however anxiously we endeavor to avoid it, the Legislature, meeting a

month earlier, will place them a month forwarder in their provisions

for that state of things.

I think the first Monday in November would be a proper time for convening

them, because, while it would gain a month in making provisions to prevent

or prepare for war, it leaves such a space of time for their assembling

as will avoid exciting alarm either at home or abroad.

XXXI.

_Communication relative to our French relations. August 22d, 1793._

Thomas Jefferson has the honor to enclose to the President the letter of

the National Assembly to him, of December 22d, 1792. Its most distinct

object seems to have been to thank the United States for their measures

to St. Domingo. It glances blindly, however, at commercial arrangements,

and on the 19th of February, the same Assembly passed the decree putting

our commerce in their dominions on the footing of natives, and directing

their executive council to treat with us on the subject. On this the

following questions arise:

1st. Would the President choose to answer the letter, acknowledging

its receipt, thanking them in turn for the favors to our commerce,

and promising to consult the constitutional powers (the Senate) on the

subject of the treaty proposed?

2d. Would he rather choose to make no reply to the letter, but that Mr.

Morris be instructed to negotiate a renewal of Mr. Genet's powers to

treat, to his successor?

3d. Or would he choose that nothing be said on the subject to anybody?

If the President would in his judgment be for a treaty on the principles

of the decree, or any modification of them, the 1st or 2d measure will

be well to be adopted.

If he is against a treaty on those principles or any modification of

them, the 3d measure seems to be the proper one.

XXXII.

_Explanation of the origin of the principle that "free bottoms make free

goods." Dec. 20th, 1793._

A doubt being entertained whether the use of the word _modern_, as

applied to the _law of nations_ in the President's proclamation, be not

inconsistent with ground afterwards taken in a letter to Genet, I will

state the matter while it is fresh in my mind,--beginning it from an

early period.

It cannot be denied that according to the general law of nations, the

goods of an enemy are lawful prize in the bottom of a friend, and the

goods of a friend privileged in the bottom of an enemy; or in other

words, that _the goods follow the owner_. The inconvenience of this

principle in subjecting neutral vessels to vexatious searches at sea,

has for more than a century rendered it usual for nations to substitute

a _conventional_ principle _that the goods shall follow the bottom_,

instead of the _natural_ one before mentioned. France has done it in all

her treaties; so I believe had Spain, before the American Revolution.

Britain had not done it. When that war had involved those powers, Russia,

foreseeing that her commerce would be much harassed by the British ships,

engaged Denmark, Sweden, and Portugal to arm, and to declare that the

conventional principle should be observed by the powers at war, towards

neutrals, and that they would make common cause against the party who

should violate it; declaring expressly, at the same time, that that

Convention should be in force only during the war then existing. Holland

acceded to the Convention, and Britain instantly attacked her. But the

other neutral powers did not think proper to comply with their stipulation

of making common cause. France declared at once that she would conform

to the conventional principle. This in fact imposed no new obligation on

her, for she was already bound by her treaties with all those powers to

observe that principle. Spain made the same declaration. Congress gave

similar orders to their vessels; but Congress afterwards gave instructions

to their ministers abroad not to engage them in any future combination

of powers for the general enforcement of the conventional principle

that goods should follow the bottom, as this might at some time or other

engage them in a war for other nations; but to introduce the principle

separately with every nation by the treaties they were authorized to make

with each. It had been already done with France and Holland, and it was

afterwards done with Prussia, and made a regular part in every treaty they

proposed to others. After the war, Great Britain established it between

herself and France. When she engaged in the present war with France, it

was thought extremely desirable for us to get this principle admitted by

her, and hoping that as she had acceded to it in one instance, she might

be induced to admit it as a principle now settled by the common consent

of nations, (for every nation, belligerent or neutral, had stipulated

it on one or more occasions,) that she might be induced to consider it

as now become a _conventional_ law of nations, I proposed to insert the

word _modern_ in the proclamation, to open upon her the idea that we

should require the acquiescence in that principle as the condition of

our remaining in peace. It was thought desirable by the other gentlemen;

but having no expectation of any effect from it, they acquiesced in the

insertion of the word, merely to gratify me. I had another view, which

I did not mention to them, because I apprehended it would occasion the

loss of the word.

By the ancient law of nations, _e. g._ in the time of the Romans, the

furnishing a limited aid of troops, though stipulated, was deemed a

cause of war. In latter times, it is admitted not to be a cause of war.

This is one of the improvements in the law of nations. I thought we

might conclude, by parity of reasoning, that the guaranteeing a limited

portion of territory, in a stipulated case, might not, by the modern law

of nations, be a cause of war. I therefore meant by the introduction of

that word, to lay the foundation of the execution of our guarantee, by

way of negotiation with England. The word was, therefore, introduced,

and a strong letter was written to Mr. Pinckney to observe to Great

Britain that we were bound by our treaties with the other belligerent

powers to observe certain principles during this war: that we were

willing to observe the same principles towards her; and indeed, that

we considered it as essential to proceed by the same rule to all, and

to propose to her to select those articles concerning our conduct in a

case of our neutrality from any one of our treaties which she pleased;

or that we would take those from her own treaty with France, and make

a temporary Convention of them for the term of the present war; and he

was instructed to press this strongly. I told Genet that we had done

this; but instead of giving us time to work our principles into effect

by negotiation, he immediately took occasion in a letter, to threaten

that if we did not resent the conduct of the British in taking French

property in American bottoms, and protect their goods by _effectual

measures_ (meaning by arms), he would give direction that the principle

of our treaty of goods following the bottom, should be disregarded.

He was, at the same time, in the habit of keeping our goods taken in

British bottoms; so that they were to take the gaining alternative of

each principle, and give us the losing one. It became necessary to oppose

this in the answer to his letter, and it was impossible to do it soundly,

but by placing it on its true ground, to wit: that the law of nations

established as a general rule that _goods should follow the owner_, and

that the making them _follow the vessel_ was an exception depending on

special conventions only in those cases where the Convention had been

made: that the exception had been established by us in our treaties with

France, Holland, and Prussia, and that we should endeavor to extend it

to England, Spain, and other powers; but that till it was done, we had

no right to make war for the enforcement of it. He thus obliged us to

abandon in the first moment the ground we were endeavoring to gain, that

is to say, his ground against England and Spain, and to take the very

ground of England and Spain against him. This was my private reason for

proposing the term _modern_ in the proclamation; that it might reserve

us a ground to obtain the very things he wanted. But the world, who knew

nothing of these private reasons, were to understand by the expression

the _modern law of nations_, that law with all the improvements and

mollifications of it which an advancement of civilization in _modern_

times had introduced. It does not mean strictly anything which is not a

part of the _law of nations_ in _modern_ times, and therefore could not

be inconsistent with the ground taken in the letter to Genet, which was

that of the _law of nations_, and by no means could be equivalent to

a declaration by the President of the specific principle, that _goods

should follow the bottom_.

XXXIII.

_An account of the Capitol in Virginia._

The Capitol in the city of Richmond, in Virginia, is the model of the

Temples of Erectheus at Athens, of Balbec, and of the Maison quarrée of

Nismes. All of which are nearly of the same form and proportions, and

are considered as the most perfect examples of cubic architecture, as

the Pantheon of Rome is of the spherical. Their dimensions not being

sufficient for the purposes of the capitol, they were enlarged, but their

proportions rigorously observed. The capitol is of brick, one hundred

thirty-four feet long, seventy feet wide, and forty-five feet high,

exclusive of the basement. Twenty-eight feet of its length is occupied

by a portico of the whole breadth of the house, showing six columns in

front, and two intercolonnations in flank. It is of a single order,

which is Ionic; its columns four feet two inches diameter, and their

entablature running round the whole building. The portico is crowned by

a pediment, the height of which is two ninths of its span.

Within the body of the building, which is one hundred and six feet

long, are two tier of rooms twenty-one feet high each. In the lower,

at one end, is the room in which the Supreme court sets, thirty feet by

sixty-four feet with a vestibule fourteen feet by twenty-two feet, and

an office for their clerk, fourteen feet by thirteen feet. In the other

end is the room for the House of Delegates, thirty feet by sixty-four

feet, with a lobby fourteen feet by thirty-six feet. In the middle is

a room thirty-six feet square, of the whole height of the building, and

receiving its light from above. In the centre of this room is a marble

statue of General Washington, made at Paris, by Houdon, who came over

to Virginia for the express purpose of taking his form. The statue is

made accurately of the size of life. A peristile of columns in the same

room, six feet from the wall, and twenty-two and a half feet high with

their entablature, support a corridor above, serving as a communication

for all the upper apartments, the stairs landing in it. In the upper

tier is a Senate chamber thirty feet square, an office for their clerk,

five rooms for committees and juries, an office for the clerk of the

House of Delegates, a chamber for the Governor and Council, and a room

for their clerk. In the basement of the building are the Land office,

Auditor's office, and Treasury.

The drawings of the Façade and other elevations, were done by Clarissault,

one of the most correct architects of France, and author of the

antiquities of Nismes, among which was the Maison quarrée. The model in

stucco was made under his direction, by an artist who had been employed

many years in Greece, by the Count de Choiseul, ambassador of France

at Constantinople, in making models of the most celebrated remains of

ancient architecture in that country.

XXXIV.

_To the Speaker and House of Delegates of the Commonwealth of Virginia,

being a Protest against interference of Judiciary between Representative

and Constituent.--1797._

The petition of the subscribers, inhabitants of the counties of Amherst,

Albemarle, Fluvanna, and Coochland, sheweth:

That by the constitution of this State, established from its earliest

settlement, the people thereof have professed the right of being

governed by laws to which they have consented by representatives chosen

by themselves immediately: that in order to give to the will of the

people the influence it ought to have, and the information which may

enable them to exercise it usefully, it was a part of the common law,

adopted as the law of this land, that their representatives, in the

discharge of their functions, should be free from the cognizance or

coercion of the co-ordinate branches, Judiciary and Executive; and

that their communications with their constituents should of right, as

of duty also, be free, full, and unawed by any: that so necessary has

this intercourse been deemed in the country from which they derive

principally their descent and laws, that the correspondence between

the representative and constituent is privileged there to pass free of

expense through the channel of the public post, and that the proceedings

of the legislature have been known to be arrested and suspended at times

until the Representatives could go home to their several counties and

confer with their constituents.

That when, at the epoch of Independence, the constitution was formed

under which we are now governed as a commonwealth, so high were the

principles of representative government esteemed, that the legislature

was made to consist of two branches, both of them chosen immediately

by the citizens; and that general system of laws was continued which

protected the relations between the representative and constituent, and

guarded the functions of the former from the control of the Judiciary

and Executive branches.

That when circumstances required that the ancient confederation of this

with the sister States, for the government of their common concerns,

should be improved into a more regular and effective form of general

government, the same representative principle was preserved in the

new legislature, one branch of which was to be chosen directly by the

citizens of each State, and the laws and principles remained unaltered

which privilege the representative functions, whether to be exercised

in the State or General Government, against the cognizance and notice

of the co-ordinate branches, Executive and Judiciary; and for its safe

and convenient exercise, the inter-communication of the representative

and constituent has been sanctioned and provided for through the channel

of the public post, at the public expense.

That at the general partition of this commonwealth into districts, each of

which was to choose a representative to Congress, the counties of Amherst,

Albemarle, Fluvanna, and Coochland, were laid off into one district:

that at the elections held for the said district, in the month of April,

in the years 1795 and 1797, the electors thereof made choice of Samuel

Jordan Cabell, of the county of Amherst, to be their representative in

the legislature of the general government; that the said Samuel Jordan

Cabell accepted the office, repaired at the due periods to the legislature

of the General Government, exercised his functions there as became a

worthy member, and as a good and dutiful representative was in the habit

of corresponding with many of his constituents, and communicating to us,

by way of letter, information of the public proceedings, of asking and

receiving our opinions and advice, and of contributing, as far as might

be with right, to preserve the transactions of the general government

in unison with the principles and sentiments of his constituents: that

while the said Samuel J. Cabell was in the exercise of his functions

as a representative from this district, and was in the course of that

correspondence which his duty and the will of his constituents imposed

on him, the right of thus communicating with them, deemed sacred under

all the forms in which our government has hitherto existed, never

questioned or infringed even by Royal judges or governors, was openly

and directly violated at a Circuit court of the General Government, held

at the city of Richmond, for the district of Virginia, in the month of

May of this present year, 1790: that at the said court, A, B, &c., some

of whom were foreigners, having been called upon to serve in the office

of grand jurors before the said court, were sworn to the duties of said

office in the usual forms of the law, the known limits of which duties

are to make presentment of those acts of individuals which the laws have

declared to be crimes or misdemeanors: that departing out of the legal

limits of their said office, and availing themselves of the sanction of

its cover, wickedly and contrary to their fidelity to destroy the rights

of the people of this commonwealth, and the fundamental principles of

representative government, they made a presentment of the act of the

said Samuel J. Cabell, in writing letters to his constituents in the

following words, to wit: "We, of the grand jury of the United States, for

the district of Virginia, present as a real evil, the circular letters

of several members of the late Congress, and particularly letters with

the signature of Samuel J. Cabell, endeavoring, at a time of real public

danger, to disseminate unfounded calumnies against the happy government

of the United States, and thereby to separate the people therefrom;

and to increase or produce a foreign influence, ruinous to the peace,

happiness, and independence of these United States."

That the grand jury is a part of the Judiciary, not permanent indeed,

but in office, _pro hac vice_ and responsible as other judges are for

their actings and doings while in office: that for the Judiciary to

interpose in the legislative department between the constituent and his

representative, to control them in the exercise of their functions or

duties towards each other, to overawe the free correspondence which exists

and ought to exist between them, to dictate what communications may pass

between them, and to punish all others, to put the representative into

jeopardy of criminal prosecution, of vexation, expense, and punishment

before the Judiciary, if his communications, public or private, do

not exactly square with their ideas of fact or right, or with their

designs of wrong, is to put the legislative department under the feet

of the Judiciary, is to leave us, indeed, the shadow, but to take away

the substance of representation, which requires essentially that the

representative be as free as his constituents would be, that the same

interchange of sentiment be lawful between him and them as would be

lawful among themselves were they in the personal transaction of their own

business; is to do away the influence of the people over the proceedings

of their representatives by excluding from their knowledge, by the terror

of punishment, all but such information or misinformation as may suit

their own views; and is the more vitally dangerous when it is considered

that grand jurors are selected by officers nominated and holding their

places at the will of the Executive: that they are exposed to influence

from the judges who are nominated immediately by the Executive, and who,

although holding permanently their commissions as judges, yet from the

career of additional office and emolument _actually_ opened to them of

late, whether _constitutionally_ or not, are under all those motives

which interest or ambition inspire, of courting the favor of that branch

from which appointments flow: that grand juries are frequently composed

in part of bystanders, often foreigners, of foreign attachments and

interests, and little knowledge of the laws they are most improperly

called to decide on; and finally, is to give to the Judiciary, and through

them to the Executive, a complete preponderance over the legislature,

rendering ineffectual that wise and cautious distribution of powers made

by the constitution between the three branches, and subordinating to

the other two that branch which most immediately depends on the people

themselves, and is responsible to them at short periods.

That independently of these considerations of a constitutional nature, the

right of free correspondence between citizen and citizen on their joint

interests, public or private, and under whatsoever laws these interests

arise, is a natural right of every individual citizen, not the gift of

municipal law, but among the objects for the protection of which municipal

laws are instituted: that so far as the attempt to take away this natural

right of free correspondence is an offence against the privileges of

the legislative house, of which the said Samuel J. Cabell is a member,

it is left to that house, entrusted with the preservation of its own

privileges, to vindicate its immunities against the encroachments and

usurpations of a co-ordinate branch; but so far as it is an infraction of

our individual rights as citizens by other citizens of our own State, the

judicature of this commonwealth is solely competent to its cognizance,

no other possessing any powers of redress: that the commonwealth retains

all its judiciary cognizances not expressly alienated in the grant of

powers to the United States as expressed in their constitution: that

that constitution alienates only those enumerated in itself, or arising

under laws or treaties of the United States made in conformity with its

own tenor; but the right of free correspondence is not claimed under

that constitution nor the laws or treaties derived from it, but as a

natural right, placed originally under the protection of our municipal

laws, and retained under the cognizance of our own courts.

Your petitioners further observe that though this crime may not be

specifically defined and denominated by any particular statute, yet

it is a crime, and of the highest and most alarming nature; that the

constitution of this commonwealth, aware it would sometimes happen that

deep and dangerous crimes, pronounced as such in the heart of every

friend to his country and its free constitution, would often escape the

definitions of the law, and yet ought not to escape its punishments,

fearing at the same time to entrust such undescribed offences to

the discretion of ordinary juries and judges, has reserved the same

to the cognizance of the body of the commonwealth acting by their

representatives in general assembly, for which purpose provision is made

by the constitution in the following words, to wit: "The Governor, when

he is out of office, and _others_ offending against the State, either

by mal-administration, corruption, _or other means_ by which the safety

of the State may be endangered, shall be impeachable by the House of

Delegates. Such impeachment to be prosecuted by the Attorney General or

such other person or persons as the house may appoint in the general

court, according to the laws of the land. If found guilty, he or they

shall be either forever disabled to hold any office under government,

or removed from such offices _pro tempore_, or subjected to such pains

or penalties as the law shall direct."

Considering then the House of Delegates as the standing inquest of

the whole commonwealth so established by the constitution, that its

jurisdiction as such extends over all persons within its limits, and

that no pale, no sanctuary has been erected against their jurisdiction

to protect offenders who have committed crimes against the laws of the

commonwealth and rights of its citizens: that the crime committed by the

said grand jurors is of that high and extraordinary character for which

the constitution has provided extraordinary procedure: that though the

violation of right falls in the first instance on us, your petitioners

and the representative chosen immediately by us, yet in principle and

consequence it extends to all our fellow-citizens, whose safety is

passed away whenever their representatives are placed, in the exercise

of their functions, under the direction and coercion of either of the

other departments of government, and one of their most interesting rights

is lost when that of a free communication of sentiment by speaking or

writing is suppressed: We, your petitioners, therefore pray that you

will be pleased to take your constitutional cognizance of the premises,

and institute such proceedings for impeaching and punishing the said

A, B, &c., as may secure to the citizens of this commonwealth their

constitutional right: that their representatives shall in the exercise

of their functions be free and independent of the other departments

of government, may guard that full intercourse between them and their

constituents which the nature of their relations and the laws of the

land establish, may save to them the natural right of communicating

their sentiments to one another by speaking and writing, and may serve

as a terror to others attempting hereafter to subvert those rights and

the fundamental principles of our constitution, to exclude the people

from all direct influence over the government they have established by

reducing that branch of the legislature which they choose directly, to a

subordination under those over whom they have but an indirect, distant,

and feeble control.

And your petitioners further submit to the wisdom of the two houses of

assembly whether the safety of the citizens of this commonwealth in their

persons, their property, their laws, and government, does not require

that the capacity to act in the important office of a juror, grand

or petty, civil or criminal, should be restrained in future to native

citizens of the United States, or such as were citizens at the date of

the treaty of peace which closed our revolutionary war, and whether the

ignorance of our laws and natural partiality to the countries of their

birth are not reasonable causes for declaring this to be one of the

rights incommunicable in future to adoptive citizens.

We, therefore, your petitioners, relying with entire confidence on

the wisdom and patriotism of our representatives in General assembly,

clothed preëminently with all the powers of the people which have not

been reserved to themselves, or enumerated in the grant to the General

Government delegated to maintain all their rights and relations not

expressly and exclusively transferred to other jurisdictions, and

stationed as sentinels to observe with watchfulness and oppose with

firmness all movements tending to destroy the equilibrium of our excellent

but complicated machine of government, invoke from you that redress of

our violated rights which the freedom and safety of our common country

calls for. We denounce to you a great crime, wicked in its purpose, and

mortal in its consequences unless prevented, committed by citizens of

this commonwealth against the body of their country. If we have erred

in conceiving the redress provided by the law, we commit the subject to

the superior wisdom of this house to devise and pursue such proceedings

as they shall think best; and we, as in duty bound, shall ever pray, &c.

XXXV.

_Etiquette._

[Endorsed in Mr. Jefferson's hand: "This rough paper

contains what was agreed upon."]

I. In order to bring the members of society together in the first

instance, the custom of the country has established that residents shall

pay the first visit to strangers, and, among strangers, first comers to

later comers, foreign and domestic; the character of stranger ceasing

after the first visits. To this rule there is a single exception. Foreign

ministers, from the necessity of making themselves known, pay the first

visit to the ministers of the nation, which is returned.

II. When brought together in society, all are perfectly equal, whether

foreign or domestic, titled or untitled, in or out of office.

All other observances are but exemplifications of these two principles.

I. 1st. The families of foreign ministers, arriving at the seat of

government, receive the first visit from those of the national ministers,

as from all other residents.

2d. Members of the Legislature and of the Judiciary, independent of

their offices, have a right as strangers to receive the first visit.

II. 1st. No title being admitted here, those of foreigners give no

precedence.

2d. Differences of grade among the diplomatic members, gives no precedence.

3d. At public ceremonies, to which the government invites the presence

of foreign ministers and their families, a convenient seat or station

will be provided for them, with any other strangers invited and the

families of the national ministers, each taking place as they arrive,

and without any precedence.

4th. To maintain the principle of equality, or of _pêle mêla_, and prevent

the growth of precedence out of courtesy, the members of the Executive

will practice at their own houses, and recommend an adherence to the

ancient usage of the country, of gentlemen in mass giving precedence

to the ladies in mass, in passing from one apartment where they are

assembled into another.

XXXVI.

_Charges exhibited to the President of the United States against the

Honorable Arthur Sinclair, as Governor of the territory of the United

States north-west of the river Ohio._

1st. He has usurped legislative powers by the erection of counties

and location of the seats of justice, by proclamation, on his own sole

authority.

2d. He has misused the power of negativing legislative acts, by putting

his negative on laws useful and necessary for the territory.

3d. He has refused to perform the duties of his office but on the payment

of arbitrary fees not established by any lawful authority.

4th. He has negatived an act of the Legislature abolishing those fees, and

passed their act giving him five hundred dollars--meant as a compensation

for that abolition, thereby holding both the fees and the compensation.

5th. He has attempted to effect the dismemberment of the territory,

and to destroy its constitutional boundaries, in order to prevent its

advancement to those rights of self-government to which its numbers

would entitle it.

6th. He has granted commissions generally during pleasure; but that of

Attorney General to his own son during good behavior.

7th. He has endeavored arbitrarily to influence and control the

proceedings of the Judiciary, and has revoked or effected a surrender

of the commissions of those who have refused to bend to his will,

(acknowledged, p. 22; revoked three commissions, p. 32.)

8th. He has appointed persons residing out of a county to offices,

the duties of which were to be habitually performed within them.

(Acknowledged, p. 20, in the case of Robb, his son-in-law, made Recorder

of Clermont though living in Hamilton--executed by deputy.)

9th. He has obstructed the organization and disciplining of a militia

for the defence of the territory, by withholding the appointment of

officers years after a law had passed establishing them.

10th. He has avowed his hostility to the form and substance of republican

government.

1st. The ordinance in the paragraph respecting counties, speaks of laws

adopted or made, which must refer both to the first and second stage of

government; it then gives the Governor power to lay out counties from

time to time, reserving a right to the Legislature thereafter to alter

them. This may mean that the Governor is always to lay out first, and

the Legislature thereafter to alter; or it may mean that the Governor is

to lay out during the first stage of government, and the Legislature to

do it in the second, _reddendo singula singulis_. The first construction

renders the power reserved the Legislature null, because the Governor

having a negative will not permit the other branches to act against his

opinion manifested in the original laying out. The second construction

gives it full effect, and must therefore be understood to be that intended

by Congress, who certainly meant to reserve a practicable right to the

Legislature--not a nugatory one, and the rather as the forming counties

is an act of law-making, not of the execution of a law. The place of

dispensing justice may not seem essentially legislative at first view,

but to rest naturally with those who are to dispense it; yet when we

consider it in all its relations to public convenience as well as justice,

at how early a date it was deemed a grievance in England, and fixed by

law, and how universally so in these States, this gives a sure practical

construction of what Congress must have intended.

2d. The policy of giving a negative on laws to the Executive seems to

be: 1st, to provide protection against the Legislature for the other

independent departments. 2d. To protect such portions of the citizens as

might be oppressed by a local or partial interest happening to predominate

in the Legislature at the moment. But not to set up the judgment of a

single individual in cases of ordinary legislation against the collected

wisdom of the nation. If these ideas be just, Governor Sinclair is guilty

on the second charge.

5th. The ordinance permits the whole territory north-west of the Ohio

to be divided by Congress into three or five States, and says, whenever

any of the said _States_ shall have sixty thousand inhabitants it shall

be received in Congress. The change of boundary proposed by the late

act of the north-west Legislature did divide the population into two

parts, so that both would have been much longer reaching sixty thousand

than if the boundaries remained fixed by the ordinance. That the act

dismembered that portion of territory which claimed to be a State, is

certain. That Governor Sinclair assented to it at least is certain. That

he promoted it by his influence, and with a view to continue himself and

friends the longer in place and power, is suggested by many, and will

be judged of by every one according to the opinion entertained of his

attachment to his office, or his power of preserving his mind unbiassed

by that attachment or any other particular views. See Sinclair's letter

to Harrison, printed State papers, March 14th, 1800.

6th. The censure implied in this charge seems to be not so much in the

Governor's giving commissions during pleasure in the judiciary line,

though a tenure for life there is familiar, as the making the Attorney

General an officer for life, a thing unprecedented, and its being in the

case of his own son. The reason assigned by the Governor that he gave him

this fixed tenure, because he at that time proposed himself to retire

from office, and meant thus to protect his son against his successor,

admits the fact charged, and is far from justifying it.

7th. Admitting the tenure of every commission, without any special

limitation, to be during the will of him who grants it, the conduct of

the three justices whose commission was revoked, and that of Mr. Finlay

whose resignation was not accepted, is not sufficiently clear of blame to

fix the charge of arbitrarily influencing and controlling the judiciary.

8th. This charge is admitted to be true by Governor Sinclair, in the

case of his son-in-law, made Recorder of Clermont, while he lived in

Hamilton. See pp. 20. He urges some matters in justification. Several

other instances are stated by Worthington and Meigs. Will's case, p. 46.

9th. This cannot be decided but on a view of the laws.

4th. That one of these acts was meant as a compensation for the other,

is not proved. See p. 24, 43.

3d. The real charge here is that the Governor and judges selected laws

from the codes of the States to give themselves fees. I was a member of

Congress, and I believe of the committee which prepared the first plan

for the organization of the new States. A Legislature to be composed

of the Governor and judges was a measure of necessity in the earliest

stages of those territorial governments; yet we were sensible it was

fundamentally wrong to submit freemen to laws made by officers of the

Executive. It was determined, then, they should not make laws themselves,

but adopt from the codes of the States, which being passed by freemen for

their own government, it was supposed would never be oppressive. But no

one dreamt of their selecting laws to give themselves fees. For to what

a length might not this be carried by entitling themselves to fees for

every act which was allowed a fee in any single State. Their salaries

were certainly understood to be in lieu of all emoluments; yet they early

began this abuse. Governor Sinclair and his associates set the example.

It was not unnoticed. But as every one had rather another should pass

personal censures than himself, the first laws for this purpose were

laid by myself before Congress with the other laws, without comment, the

power of repealing being in them. Partly from much business, partly from

no individual member being willing to come forward as the denunciator,

the thing went on till the arbitrary and intolerable temper of Governor

Sarjeant urged it on the notice of Congress. On the 12th of February,

1795, this among other legislative practices, had been disapproved by

the House of Representatives, (report, p. 8, 9, February 19, 1801,) and

lost in the Senate. But February 19, 1801, a committee of friends to

Sarjeant, appointed by his friend Sedgwick, reported it an abuse, but

not proceeding from criminal intentions, and therefore resolved that

there ought to be no further proceedings for mal-administration against

him, to which resolution the House disagreed by a vote of fifty against

thirty-eight, though a federal house; but this being late in the day of

the 3d of March, 1801, on which day they were to rise, nothing further

could be done. But Governor Sarjeant's time expiring soon after, his

commission was not renewed for this among other reasons.

XXXVII.

_Hints on the subject of Indian boundaries, suggested for consideration.

December 29th, 1802._

An object, becoming one of great importance, is the establishment of

a strong front on our western boundary, the Mississippi, securing us

on that side, as our front on the Atlantic does towards the East. Our

proceedings with the Indians should tend systematically to that object,

leaving the extinguishment of title in the interior country to fall in

as occasions may arise. The Indians being once closed in between strong

settled countries on the Mississippi and Atlantic, will, for want of game,

be forced to agriculture, will find that small portions of land, well

improved, will be worth more to them than extensive forests unemployed,

and will continually be parting with portions of them for money to buy

stock, utensils, and necessaries for their farms and families.

On the Mississippi, we hold at present from our southern boundary to

the Yazoo. From the Yazoo to the Ohio is the property of the Chickasaw,

a tribe the most friendly to us, and at the same time the most adverse

to the diminution of their lands. The portion of their territory of

first importance to us, would be the slip between the Mississippi on the

west, and on the east the Yazoo and the ridge dividing the waters of the

Mississippi and Tennessee. Their main settlements are eastward of this.

I believe they have few within this and towards the Mississippi. The

method by which we may advance towards our object will be, 1, to press

the encouragements to agriculture, by which they may see how little land

will maintain them much better, and the advantage of exchanging useless

deserts to improve their farms. 2. To establish among them a factory or

factories for furnishing them with all the necessaries and comforts they

may wish (spirituous liquors excepted), encouraging these, and especially

their leading men, to run in debt for these beyond their individual

means of paying; and whenever in that situation, they will always cede

lands to rid themselves of debt. A factory about the Chickasaw bluffs,

would be tolerably central, and they might admit us to tend corn for

feeding the factory and themselves when at it, and even to fix some

persons for the protection of the factory from the Indians west of the

Mississippi, and others. After awhile we might purchase these, and add

to it from time to time. 3. We should continue to increase and nourish

their friendship and confidence by every act of justice and of favor

which we can possibly render them. What we know in favor of the other

Indians, should not constitute the measure of what we do for these, our

views as to these being so much more important. This tribe is very poor,

and they want necessaries with which we abound. We want lands with which

they abound; and these natural wants seem to offer fair ground of mutual

supply.

The country between the Mississippi and Illinois on one side, and the

Ohio and Wabash on the other, is also peculiarly desirable to us, and

is in a situation this moment which renders it particularly easy for

us to acquire a considerable portion of it. It has belonged to the

Kaskaskias, Cahokias and Piorias. The Cahokias (of whom the Michiganris

were a part) have been anticipated by the Sacs, the Piorias driven off,

and the Kaskaskias decreased to a few families. Governor Harrison, in

his letter of November 28th, 1802, says the Pioria chief has offered

the right of his nation to these lands for a trifle. We should not fail

to purchase it immediately. The Cahokias being extirpated, we have a

right to their lands in preference to any Indian tribe, in virtue of our

permanent sovereignty over it. He also says that Deloigne, the Kaskaskia

chief, would make easy terms with us. I think we should be liberal in

our offers to the Kaskaskians. They are now but a few families, exposed

to numerous enemies, and unable to defend themselves, and would cede

lands in exchange for protection. We might agree to their laying off

one hundred acres of the best soil for every person, young and old, of

their tribe, we might enclose it well for them in one general inclosure,

give to every family utensils and stock sufficient for their portion

of it, and give them an annuity in necessaries, on their ceding to us

their whole country, on retaining for themselves only a moderate range

around their farms for their stock to range in; and we might undertake

to protect them from their enemies. Having thus established ourselves

in the rights of the Kaskaskias, Cahokias and Piorias, we should have to

settle the boundaries between them and the Kickapoos, Powtawatamies and

Weaws. We should press again the good will of these tribes by friendly

acts, and of their chiefs by largesses, and then propose to run the line

between us, to claim whatever can be said to be doubtful, offering them

a liberal price for their pretensions, and even endeavoring to obtain

from them a cession of so much of their acknowledged territory as they

can be induced to part with.

As to the country on the Mississippi above the mouth of the Illinois,

its acquisition is not pressing in the present state of things. It might

be well to be inquiring into titles, and to claim whatever may have

been abandoned or lost by its native owners, so as to prevent usurpation

by tribes having no right; as also to purchase such portions as may be

found in the occupation of small remnants of tribes nearly extinct and

disposed to emigrate.

For the present, it is submitted to the consideration of the Secretary

of War, whether instructions should not be immediately given to Governor

Harrison to treat with the Piorias and Kaskaskias chiefs; as to the

latter, which is most important, it would be easy to solicit and bring

over by presents every individual of mature age.

XXXVIII.

_Notes on the subject of the consular convention between the United

States and France. May 3d, 1803._

In 1784 a convention was entered into between Dr. Franklin and the Count

de Vergennes concerning consuls. It contained many things absolutely

inadmissible by the laws of the several States, and inconsistent with

their genius and character. Dr. Franklin, not being a lawyer, and

the project offered by the Count de Vergennes being a copy of the

conventions which were established between France and the despotic

States on the continent (for with England they never had one), he seems

to have supposed it a formula established by universal experience, and

not to have suspected that it might contain matters inconsistent with

the principles of a free people. He returned to America soon after the

signature of it. Congress received it with the deepest concern. They

honored Dr. Franklin, they were attached to the French nation; but they

could not relinquish fundamental principles. They declined ratifying it,

and sent it back with new powers and instructions to Mr. Jefferson, who

succeeded Dr. Franklin at Paris. The most objectionable matters were

the privileges and exemptions given to the consuls, and their powers

over persons of the nation, establishing a jurisdiction independent

of that of the nation in which it was exercised, and uncontrollable by

it. The French government valued these, because they then apprehended a

very extensive emigration from France to the United States, which this

convention enabled them to control. It was, therefore, with the utmost

reluctance, and inch by inch, that they could be induced to relinquish

these conditions. The following changes, however, were effected by the

convention of 1788:

The clauses of the convention of 1784, clothing consuls with the

privileges of the laws of nations, were struck out, and they were

expressly subjected, in their persons and property, to the laws of the

land.

The giving the right of sanctuary to their houses, was reduced to a

protection of their chancery room and its papers.

Their coercive powers over passengers were taken away; and those whom

they might have termed deserters of their nation, were restrained to

deserted seamen only.

The clause allowing them to arrest and send back vessels, was struck

out, and instead of it they were allowed to exercise a police over the

ships of their nation generally.

So was that which declared the indelibility of the character of subject,

and the explanation and extension of the eleventh article of the treaty

of amity.

The innovations in the laws of evidence were done away; and the

convention, from being perpetual, was limited to twelve years.

Although strong endeavors were made to do away some other disagreeable

articles, yet it was found that more could not be done without disturbing

the good humor which Congress wished so much to preserve, and the

limitation obtained for the continuance of the constitution insured our

getting finally rid of the whole. Congress, therefore, satisfied with

having so far amended their situation, ratified the convention of 1788

without hesitation.

To Mr. Wingate.

XXXIX.

_Resolutions relative to the alien and sedition laws._[20]

1. _Resolved_, That the several States composing the United States of

America, are not united on the principle of unlimited submission to

their general government; but that, by a compact under the style and

title of a Constitution for the United States, and of amendments thereto,

they constituted a general government for special purposes,--delegated

to that government certain definite powers, reserving, each State to

itself, the residuary mass of right to their own self-government; and

that whensoever the general government assumes undelegated powers, its

acts are unauthoritative, void, and of no force: that to this compact

each State acceded as a State, and is an integral party, its co-States

forming, as to itself, the other party: that the government created by

this compact was not made the exclusive or final judge of the extent of

the powers delegated to itself; since that would have made its discretion,

and not the Constitution, the measure of its powers; but that, as in all

other cases of compact among powers having no common judge, each party

has an equal right to judge for itself, as well of infractions as of

the mode and measure of redress.

2. _Resolved_, That the Constitution of the United States, having

delegated to Congress a power to punish treason, counterfeiting the

securities and current coin of the United States, piracies, and felonies

committed on the high seas, and offences against the law of nations, and

no other crimes whatsoever; and it being true as a general principle,

and one of the amendments to the Constitution having also declared, that

"the powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively,

or to the people," therefore the act of Congress, passed on the 14th day

of July, 1798, and intituled "An Act in addition to the act intituled An

Act for the punishment of certain crimes against the United States," as

also the act passed by them on the ---- day of June, 1798, intituled "An

Act to punish frauds committed on the bank of the United States," (and

all their other acts which assume to create, define, or punish crimes,

other than those so enumerated in the Constitution,) are altogether

void, and of no force; and that the power to create, define, and punish

such other crimes is reserved, and, of right, appertains solely and

exclusively to the respective States, each within its own territory.

3. _Resolved_, That it is true as a general principle, and is also

expressly declared by one of the amendments to the Constitution, that

"the powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively,

or to the people;" and that no power over the freedom of religion, freedom

of speech, or freedom of the press being delegated to the United States

by the Constitution, nor prohibited by it to the States, all lawful

powers respecting the same did of right remain, and were reserved to the

States or the people: that thus was manifested their determination to

retain to themselves the right of judging how far the licentiousness of

speech and of the press may be abridged without lessening their useful

freedom, and how far those abuses which cannot be separated from their

use should be tolerated, rather than the use be destroyed. And thus

also they guarded against all abridgment by the United States of the

freedom of religious opinions and exercises, and retained to themselves

the right of protecting the same, as this State, by a law passed on

the general demand of its citizens, had already protected them from all

human restraint or interference. And that in addition to this general

principle and express declaration, another and more special provision has

been made by one of the amendments to the Constitution, which expressly

declares, that "Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof, or abridging

the freedom of speech or of the press:" thereby guarding in the same

sentence, and under the same words, the freedom of religion, of speech,

and of the press: insomuch, that whatever violated either, throws down

the sanctuary which covers the others, and that libels, falsehood, and

defamation, equally with heresy and false religion, are withheld from the

cognizance of federal tribunals. That, therefore, the act of Congress

of the United States, passed on the 14th day of July, 1798, intituled

"An Act in addition to the act intituled An Act for the punishment of

certain crimes against the United States," which does abridge the freedom

of the press, is not law, but is altogether void, and of no force.

4. _Resolved_, That alien friends are under the jurisdiction and

protection of the laws of the State wherein they are: that no power

over them has been delegated to the United States, nor prohibited to

the individual States, distinct from their power over citizens. And

it being true as a general principle, and one of the amendments to the

Constitution having also declared, that "the powers not delegated to the

United States by the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the people," the act of

the Congress of the United States, passed on the -- day of July, 1798,

intituled "An Act concerning aliens," which assumes powers over alien

friends, not delegated by the Constitution, is not law, but is altogether

void, and of no force.

5. _Resolved_, That in addition to the general principle, as well as

the express declaration, that powers not delegated are reserved, another

and more special provision, inserted in the Constitution from abundant

caution, has declared that "the migration or importation of such persons

as any of the States now existing shall think proper to admit, shall

not be prohibited by the Congress prior to the year 1808:" that this

commonwealth does admit the migration of alien friends, described as

the subject of the said act concerning aliens: that a provision against

prohibiting their migration, is a provision against all acts equivalent

thereto, or it would be nugatory: that to remove them when migrated,

is equivalent to a prohibition of their migration, and is, therefore,

contrary to the said provision of the Constitution, and void.

6. _Resolved_, That the imprisonment of a person under the protection of

the laws of this commonwealth, on his failure to obey the simple _order_

of the President to depart out of the United States, as is undertaken

by said act intituled "An Act concerning aliens," is contrary to the

Constitution, one amendment to which has provided that "no person shall

be deprived of liberty without due progress of law;" and that another

having provided that "in all criminal prosecutions the accused shall

enjoy the right to public trial by an impartial jury, to be informed

of the nature and cause of the accusation, to be confronted with the

witnesses against him, to have compulsory process for obtaining witnesses

in his favor, and to have the assistance of counsel for his defence,"

the same act, undertaking to authorize the President to remove a person

out of the United States, who is under the protection of the law, on

his own suspicion, without accusation, without jury, without public

trial, without confrontation of the witnesses against him, without

hearing witnesses in his favor, without defence, without counsel, is

contrary to the provision also of the Constitution, is therefore not

law, but utterly void, and of no force: that transferring the power of

judging any person, who is under the protection of the laws, from the

courts to the President of the United States, as is undertaken by the

same act concerning aliens, is against the article of the Constitution

which provides that "the judicial power of the United States shall be

vested in courts, the judges of which shall hold their offices during

good behavior;" and that the said act is void for that reason also. And

it is further to be noted, that this transfer of judiciary power is to

that magistrate of the general government who already possesses all the

Executive, and a negative on all Legislative powers.

7. _Resolved_, That the construction applied by the General Government

(as is evidenced by sundry of their proceedings) to those parts of the

Constitution of the United States which delegate to Congress a power "to

lay and collect taxes, duties, imports, and excises, to pay the debts,

and provide for the common defence and general welfare of the United

States," and "to make all laws which shall be necessary and proper

for carrying into execution the powers vested by the Constitution in

the government of the United States, or in any department or officer

thereof," goes to the destruction of all limits prescribed to their power

by the Constitution: that words meant by the instrument to be subsidiary

only to the execution of limited powers, ought not to be so construed

as themselves to give unlimited powers, nor a part to be so taken as

to destroy the whole residue of that instrument: that the proceedings

of the General Government under color of these articles, will be a fit

and necessary subject of revisal and correction, at a time of greater

tranquillity, while those specified in the preceding resolutions call

for immediate redress.

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