TO THE SECRETARY OF WAR.
New York, August 26, 1790.
Dear Sir,—On the hasty view which the shortness of time permits me to take of the treaty of Hopewell, the act of cession of North Carolina and the act of acceptance by Congress, I hazard the following sentiments:
Were the treaty of Hopewell, and the act of acceptance of Congress to stand in any point in direct opposition to each other, I should consider the act of acceptance as void in that point; because the treaty is a law made by two parties, and not revocable by one of them either acting alone or in conjunction with a third party. If we consider the acceptance as a legislative act of Congress, it is the act of one party only; if we consider it as a treaty between Congress and North Carolina, it is but a subsequent treaty with another power, and cannot make void a preceding one with a different power.
But I see no such opposition between these two instruments. The Cherokees were entitled to the sole occupation of the lands within the limits guaranteed to them. The State of North Carolina, according to the jus gentium established for America by universal usage, had only a right of pre-emption of these lands against all other nations. It could convey, then, to its citizens only this right of pre-emption, and the right of occupation could not be united to it till obtained by the United States from the Cherokees. The act of cession of North Carolina only preserves the rights of its citizens in the same state as they would have been, had that act never been passed. It does not make imperfect titles perfect; but only prevents their being made worse. Congress, by their act, accept on these conditions. The claimants of North Carolina, then, and also the Cherokees, are exactly where they would have been, had neither the act of cession, nor that of acceptance, been ever made; that is, the latter possess the right of occupation, and the former the right of pre-emption.
Though these deductions seem clear enough, yet the question would be a disagreeable one between the general government, a particular government, and individuals, and it would seem very desirable to draw all the claims of pre-emption within a certain limit, by commuting for those out of it, and then to purchase of the Cherokees the right of occupation.
I have the honor to be, my dear Sir, yours respectfully and affectionately.
TO M. LA FOREST, Consul of France.
New York, August 30, 1790.
Sir,—I asked the favor of the Secretary of the Treasury to consider the fourth article of the consular convention, and to let me know whether he should conclude that consuls not exercising commerce, were exempt from paying duties on things imported for their own use. I furnished him no explanation whatever, of what had passed on the subject at the time of forming the convention, because I thought it should be decided on the words of the convention, as they are offered to all the world, and that it would only be where these are equivocal, that explanations might be adduced from other circumstances. He considered the naked words of the article, and delivered me as his opinion, that, according to these, the first paragraph, "The consuls, and vice-consuls, &c., as the natives are," subjected all their property, in whatever form and under whatever circumstances it existed, to the same duties and taxes to which the property of other individuals is liable, and exempts them only from taxes on their persons, as poll taxes, head rates for the poor, for town charges, &c.; and that the second paragraph, "Those of the said consuls, &c., or other merchants," subjected such of them as exercised commerce, even to the same personal taxes as other merchants are: that the second paragraph is an abridgment of the first, not an enlargement of it; and that the exemption of those, not merchants, which seemed implied in the words of the second paragraph, could not be admitted against the contrary meaning, directly and unequivocally expressed in the first.
Such, Sir, was his opinion, and it is exactly conformable to what the negotiators had in view in forming this article. I have turned to the papers which passed on that occasion, and I find that the first paragraph was proposed in the first project given in by myself, by which the distinction between taxes on their property and taxes on their persons, is clearly enounced, and was agreed to; but as our merchants exercising commerce in France, would have enjoyed a much greater benefit from the personal exemption, than those of France do here, M. de Reyneval, in his first counter-project, inserted the second paragraph, to which I agreed. So that the object was, in the first paragraph, to put consuls, not being merchants, on the same footing with citizens, not being merchants; and in the second, to put consuls, merchants, on the same footing with citizens, merchants.
This, Sir, we suppose to be the sense of the convention, which has become a part of the law of the land, and the law, you know, in this country, is not under the control of the executive, either in its meaning or course. We must reserve, therefore, for more favorable occasions, our dispositions to render the situation of the consuls of his Majesty as easy as possible, by indulgences depending more on us; and of proving the sentiments of esteem and attachment to yourself personally, with which I have the honor to be, Sir, your most obedient, and most humble servant.