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.