Volume 9 / Part 6 — PART VI. MISCELLANEOUS PAPERS. (continued 6)

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.

8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes, and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, (not merely as the cases made federal, (casus fœderis,) but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.