INTRODUCTORY TO BOOK III.

This division of the work embraces all the important official papers of Thomas Jefferson, from the time at which he entered upon the duties of the Secretaryship of State to the end of his Presidential term, with the exception of his official letters, a part of which will be found printed in Book II., devoted to his general correspondence, both official and private. It being the wish of the Library committee, under whose supervision this work has been prepared, that it should be compressed within as few volumes as was consistent with justice to the reputation of the author, and the great body of Mr. Jefferson's official letters having been already published among the American State Papers and Sparks' Diplomatic Correspondence, the most interesting and valuable only have been selected for re-publication in this work, as specimens of the author's manner in the preparation of such papers. All omitted here will be found in the publications just referred to.

The official papers embraced in this division of the work, have been classified, for the purposes of easy reference, under the following heads:

Part I.—Reports and Opinions while Secretary of State.—Under this head are included Jefferson's Reports to Congress, which have been published before; also, his Reports to the President, and his Cabinet Opinions, both of which were private, and are now for the first time given to the public. It seems to have been the practice of Washington, to take the written opinions of his Secretaries upon important points arising during his administration, and the opinions of Jefferson, here published, were given in reply to questions propounded and points submitted to him by the President, in conformity with this practice. They relate to a great variety of matters connected with the early history of our government, and the principles of interpretation to be applied to the Federal Constitution, and will be found interesting and valuable.

Part II.—Inaugural Address and Messages.—During the administration of Washington and Adams, it was the custom of the President, at the opening of each session of Congress, to meet both Houses in person, and deliver a written speech, to which, in the course of a few days, each House would return an answer through a committee appointed to wait upon him, he, at the same time, returning a brief reply. Mr. Jefferson, at the beginning of his Presidential term, changed this system. Instead of meeting the Houses of Congress in person, and addressing to them a speech, he sent them a written message, thus substituting messages for speeches. His reasons for this change were the greater convenience of messages over speeches, the economy of time, and the relief of Congress from the necessity of answering on subjects in regard to which they were often very imperfectly informed. The general opinion of the country at the time seems to have approved the change; and the mode of communicating with Congress by messages in preference to speeches, has been invariably adopted by the Presidents ever since.

This division of the work contains Jefferson's Inaugural Address and regular and special messages.

Part III.—Replies to Public Addresses.—The public addresses received by Mr. Jefferson, and answered by him, were very numerous. This was particularly the case at the time of the Embargo, the attack on the Chesapeake, and the termination of his Presidential service. The plan of this work does not admit the publication of the whole of these Addresses and Replies; nor, indeed, is there any necessity for it. It is only necessary that a few of the Replies should be published, as specimens of the rest. This has been done, selecting such as have the highest claim, and omitting none which possess any historical value.

Part IV.—Indian Addresses.—There is a number of these Addresses. They possess a certain interest as exhibiting the humane policy of our government towards the Indians, our efforts to civilize them, to make them agriculturists, to keep them at peace with ourselves and with each other, and the manner in which their lands were acquired from them, always by purchase, with their own free consent. Some of the most important have, therefore, been incorporated in the work.

PART I.
REPORTS AND OPINIONS WHILE SECRETARY OF STATE.

I.—Report on the methods for obtaining Fresh Water from Salt.

The Secretary of State, to whom was referred by the House of Representatives of the United States, the petition of Jacob Isaacs of Newport in Rhode Island, has examined into the truth and importance of the allegations therein set forth, and makes thereon the following report:

The petitioner sets forth, that by various experiments, with considerable labor and expense, he has discovered a method of converting salt-water into fresh, in the proportion of 8 parts out of 10, by a process so simple that it may be performed on board of vessels at sea by the common iron caboose, with small alterations, by the same fire, and in the same time, which is used for cooking the ship's provisions, and offers to convey to the government of the United States a faithful account of his art or secret, to be used by, or within the United States, on their giving to him a reward suitable to the importance of the discovery, and in the opinion of government, adequate to his expenses and the time he has devoted to the bringing it into effect.

In order to ascertain the merit of the petitioner's discovery, it becomes necessary to examine the advances already made in the art of converting salt-water into fresh.

Lord Bacon, to whom the world is indebted for the first germs of so many branches of science, had observed, that with a heat sufficient for distillation, salt will not rise in vapor, and that salt-water distilled is fresh; and it would seem, that all mankind might have observed that the earth is supplied with fresh water chiefly by exhalation from the sea, which is, in fact, an insensible distillation effected by the heat of the sun; yet this, although the most obvious, was not the first idea in the essays for converting salt-water into fresh; filtration was tried in vain, and congelation could be resorted to only in the coldest regions and seasons. In all the earlier trials by distillation, some mixture was thought necessary to aid the operation by a partial precipitation of the salt, and other foreign matters contained in sea-water. Of this kind, were the methods of Sir Richard Hawkins in the sixteenth century, of Glauber, Hauton, and Lister, in the seventeenth, and of Hales, Appleby, Butler, Chapman, Hoffman, and Dore, in the eighteenth; nor was there anything in these methods worthy noting on the present occasion, except the very simple still contrived extempore by Captain Chapman, and made from such materials as are to be found on board every ship, great or small; this was a common pot, with a wooded lid of the usual form; in the centre of which a hole was bored to receive perpendicularly, a short wooden tube made with an inch-and-a-half auger, which perpendicular tube received at its top, and at an acute angle, another tube of wood also, which descended until it joined a third of pewter made by rolling up a dish and passing it obliquely through a cask of cold water; with this simple machine he obtained two quarts of fresh water an hour, and observed that the expense of fuel would be very trifling, if the still was contrived to stand on the fire along with the ship's boiler.

In 1762, Doctor Lind, proposing to make experiment of several different mixtures, first distilled rain-water, which he supposed would be the purest, and then sea-water, without any mixture, which he expected would be the least pure, in order to arrange between these two supposed extremes, the degree of merit of the several ingredients he meant to try; "to his great surprise," as he confesses, the sea-water distilled without any mixture, was as pure as the rain-water; he pursued the discovery and established the fact, that a pure and potable fresh water may be obtained from salt-water by simple distillation, without the aid of any mixture for fining or precipitating its foreign contents. In 1767, he proposed an extempore still, which, in fact, was Chapman's, only substituting a gun-barrel instead of Chapman's pewter tube, and the hand-pump of the ship to be cut in two obliquely and joined again at an acute angle, instead of Chapman's wooden tubes bored expressly; or instead of the wooden lid and upright tube, he proposed a tea-kettle (without its lid or handle) to be turned bottom upwards over the mouth of the pot by way of still-head, and a wooden tube leading from the spout to a gun-barrel passing through a cask of water, the whole luted with equal parts of chalk and meal moistened with salt-water. With this apparatus of a pot, tea-kettle, and gun-barrel, the Dolphin, a twenty-gun ship, in her voyage around the world in 1768, from 56 gallons of sea-water and with 9 lbs. of wood and 69 lbs. of pit-coal made 42 gallons of good fresh water, at the rate of 8 gallons an hour. The Dorsetshire, in her passage from Gibraltar to Mahon in 1769, made 19 quarts of pure water in four hours with 10 lbs. of wood, and the Slambal in 1773, between Bombay and Bengal, with the hand-pump, gun-barrel, and a pot of 6 gallons of sea-water, made ten quarts of fresh water in three hours.

In 1771, Dr. Irvin putting together Lind's idea of distilling without a mixture, Chapman's still, and Dr. Franklin's method of cooling by evaporation, obtained a premium of five thousand pounds from the British parliament. He wet his tube constantly with a mop instead of passing it through a cask of water; he enlarged its bore also, in order to give a free passage to the vapor, and thereby increase its quantity by lessening the resistance or pressure on the evaporating surface. This last improvement was his own; it doubtless contributed to the success of his process; and we may suppose the enlargement of the tube to be useful to that point at which the central parts of the vapor passing through it would begin to escape condensation. Lord Mulgrave used his method in his voyage towards the north pole in 1773, making from 34 to 40 gallons of fresh water a day, without any great addition of fuel, as he says.

M. de Bougainville, in his voyage round the world, used very successfully a still which had been contrived in 1763 by Poyssonier to guard against the water being thrown over from the boiler into the pipe, by the agitation of the ship. In this, one singularity was, that the furnace or fire-box was in the middle of the boiler, so that the water surrounded it in contact. This still, however, was expensive, and occupied much room.

Such was the advances already made in the art of obtaining fresh from salt-water, when Mr. Isaacs, the petitioner, suggested his discovery. As the merit of this could be ascertained by experiment only, the Secretary of State asked the favor of Mr. Rittenhouse, President of the American Philosophical Society, of Dr. Wistar, professor of chemistry in the college at Philadelphia, and Dr. Hutchinson, professor of chemistry in the University of Pennsylvania, to be present at the experiments. Mr. Isaacs fixed the pot, a small caboose, with a tin cap and straight tube of tin passing obliquely through a cask of cold water; he made use of a mixture, the composition of which he did not explain, and from 24 pints of sea-water, taken up about three miles out of the Capes of Delaware, at flood-tide, he distilled 22 pints of fresh water in four hours with 20 lbs. of seasoned pine, which was a little wetted by having lain in the rain.

In a second experiment of the 21st of March, performed in a furnace, and five-gallon still at the college, from 32 pints of sea-water he drew 31 pints of fresh water in 7 hours and 24 minutes, with 51 lbs. of hickory, which had been cut about six months. In order to decide whether Mr. Isaacs' mixture contributed in any and what degree to the success of the operation, it was thought proper to repeat his experiment under the same circumstances exactly, except the omission of the mixture. Accordingly, on the next day, the same quantity of sea-water was put into the same still, the same furnace was used, and fuel from the same parcel; it yielded, as his had done, 31 pints fresh water in 11 minutes more of time, and with 10 lbs. less of wood.

On the 24th of March, Mr. Isaacs performed a third experiment. For this, a common iron pot of three and a half gallons was fixed in brick work, and the fine from the hearth wound once around this pot spirally, and then passed off up a chimney.

The cap was of tin, and a straight tin tube of about two inches diameter passing obliquely through a barrel of water, served instead of a worm. From sixteen pints of sea-water he drew off fifteen pints of fresh water, in two hours fifty-five minutes, with 3 lbs. of dry hickory and 8 lbs. of seasoned pine. This experiment was also repeated the next day, with the same apparatus, and fuel from the same parcel; but without the mixture, sixteen pints of sea-water yielded in like manner fifteen pints of fresh in one minute more of time, and with ½ lb. less of wood. On the whole, it was evident that Mr. Isaacs' mixture produced no advantage either in the process or result of the distillation.

The distilled water in all these instances, was found on experiment to be as pure as the best pump water of the city; its taste, indeed, was not as agreeable, but it was not such as to produce any disgust. In fact, we drink, in common life, in many places, and under many circumstances, and almost always at sea, a worse tasted and probably a less wholesome water.

The obtaining fresh from salt-water was for ages considered as an important desideratum for the use of navigators. The process for doing this by simple distillation is so efficacious, the erecting an extempore still with such utensils as are found on board of every ship, is so practicable, as to authorize the assertion that this desideratum is satisfied to a very useful degree. But though this has been done for upwards of thirty years, though its reality has been established by the actual experience of several vessels which have had recourse to it, yet neither the fact nor the process is known to the mass of seamen, to whom it would be the most useful, and for whom it was principally wanted. The Secretary of State is therefore of opinion that since the subject has now been brought under observation, it should be made the occasion of disseminating its knowledge generally and effectually among the seafaring citizens of the United States. The following is one of the many methods which might be proposed for doing this: Let the clearance for every vessel sailing from the ports of the United States be printed on a paper, in the back whereof shall be a printed account of the essays which have been made for obtaining fresh from salt-water, mentioning shortly those which have been unsuccessful, and more fully those which have succeeded, describing the methods which have been found to answer for constructing extempore stills of such implements as are generally on board of every vessel, with a recommendation in all cases where they shall have occasion to resort to this expedient for obtaining water, to publish the result of their trial in some gazette on their return to the United States, or to communicate it for publication to the office of the Secretary of State, in order that others may, by their success, be encouraged to make similar trials, and be benefited by any improvements or new ideas which may occur to them in practice.

II. Opinion on the proposition for establishing a Woollen Manufactory in Virginia.

The House of Delegates of Virginia seemed disposed to adventure £2,500 for the encouragement of this undertaking, but the Senate did not concur. By their returning to the subject, however, at a subsequent session, and wishing more specific propositions, it is probable they might be induced to concur, if they saw a certain provision that their money would not be paid for nothing. Some unsuccessful experiments heretofore may have suggested this caution.

Suppose the propositions brought into some such shape as this: The undertaker is to contribute £1,000, the State £2,500, viz.: the undertaker having laid out his £1,000 in the necessary implements to be brought from Europe, and these being landed in Virginia as a security that he will proceed,

let the State pay for the first necessary purposes then to occur£1,000
Let it pay him a stipend of £100 a year for the first three years300
Let it give him a bounty (suppose one-third) on every yard of woollen cloth equal to good plains, which he shall weave for five years, not exceeding £250 a year (20,000 yards) the four first years, and £200 the fifth1,200
£2,500

To every workman whom he shall import, let them give, after he shall have worked in the manufactory five years, warrants for —— acres of land, and pay the expenses of survey, patents, &c. [This last article is to meet the proposition of the undertaker. I do not like it, because it tends to draw off the manufacturer from his trade. I should better like a premium to him on his continuance in it; as, for instance, that he should be free from State taxes as long as he should carry on his trade.]

The President's intervention seems necessary till the contracts shall be concluded. It is presumed he would not like to be embarrassed afterwards with the details of superintendence. Suppose, in his answer to the Governor of Virginia, he should say that the undertaker being in Europe, more specific propositions cannot be obtained from him in time to be laid before this assembly; that in order to secure to the State the benefits of the establishment, and yet guard them against an unproductive grant of money, he thinks some plan like the preceding one might be proposed to the undertaker.

That as it is not known whether he would accept it exactly in that form, it might disappoint the views of the State were they to prescribe that or any other form rigorously, consequently that a discretionary power must be given to a certain extent.

That he would willingly coöperate with their executive in effecting the contract, and certainly would not conclude it on any terms worse for the State than those before explained, and that the contracts being once concluded, his distance and other occupations would oblige him to leave the execution open to the Executive of the State.

III. The Report on Copper Coinage, communicated to the House of Representatives, April 15th, 1790.

April 14, 1790.

The Secretary of State, to whom was referred, by the House of Representatives, the letter of John H. Mitchell, reciting certain proposals for supplying the United States with copper coinage, has had the same under consideration, according to instructions, and begs leave to report thereon as follows:

The person who wishes to undertake the supply of a copper coinage, sets forth, that the superiority of his apparatus and process for coining, enables him to furnish a coinage better and cheaper than can be done by any country or person whatever; that his dies are engraved by the first artist in that line in Europe; that his apparatus for striking the edge at the same blow with the faces, is new, and singularly ingenious; that he coins by a press on a new principle, and worked by a fire-engine, more regularly than can be done by hand; that he will deliver any quantity of coin, of any size and device, of pure, unalloyed copper, wrapped in paper and packed in casks, ready for shipping, for fourteen pence sterling the pound.

The Secretary of State has before been apprized, from other sources of information, of the great improvements made by this undertaker, in sundry arts; he is acquainted with the artist who invented the method of striking the edge, and both faces of the coin at one blow; he has seen his process and coins, and sent to the former Congress some specimens of them, with certain offers from him, before he entered into the service of the present undertaker, (which specimens he takes the liberty of now submitting to the inspection of the House, as proofs of the superiority of this method of coinage, in gold and silver as well as copper.)

He is, therefore, of opinion, that the undertaker, aided by that artist, and by his own excellent machines, is truly in a condition to furnish coin in a state of higher perfection than has ever yet been issued by any nation; that perfection in the engraving is among the greatest safeguards against counterfeits, because engravers of the first class are few, and elevated by their rank in their art, far above the base and dangerous business of counterfeiting. That the perfection of coins will indeed disappear, after they are for some time worn among other pieces, and especially where the figures are rather faintly relieved, as on those of this artist; yet, their high finishing, while new, is not the less a guard against counterfeits, because these, if carried to any extent, may be ushered into circulation new, also, and consequently, may be compared with genuine coins in the same state; that, therefore, whenever the United States shall be disposed to have a coin of their own, it will be desirable to aim at this kind of perfection. That this cannot be better effected, than by availing themselves, if possible, of the services of the undertaker, and of this artist, whose excellent methods and machines are said to have abridged, as well as perfected, the operations of coinage. These operations, however, and their expense, being new, and unknown here, he is unable to say whether the price proposed be reasonable or not. He is also uncertain whether, instead of the larger copper coin, the Legislature might not prefer a lighter one of billon, or mixed metal, as is practised, with convenience, by several other nations—a specimen of which kind of coinage is submitted to their inspection.

But the propositions under consideration suppose that the work is to be carried on in a foreign country, and that the implements are to remain the property of the undertaker; which conditions, in his opinion, render them inadmissible, for these reasons:

Coinage is peculiarly an attribute of sovereignty. To transfer its exercise into another country, is to submit it to another sovereign.

Its transportation across the ocean, besides the ordinary dangers of the sea, would expose it to acts of piracy, by the crews to whom it would be confided, as well as by others apprized of its passage.

In time of war, it would offer to the enterprises of an enemy, what have been emphatically called the sinews of war.

If the war were with the nation within whose territory the coinage is, the first act of war, or reprisal, might be to arrest this operation, with the implements and materials coined and uncoined, to be used at their discretion.

The reputation and principles of the present undertaker are safeguards against the abuses of a coinage, carried on in a foreign country, where no checks could be provided by the proper sovereign, no regulations established, no police, no guard exercised; in short, none of the numerous cautions hitherto thought essential at every mint; but in hands less entitled to confidence, these will become dangers. We may be secured, indeed, by proper experiments as to the purity of the coin delivered us according to contract, but we cannot be secured against that which, though less pure, shall be struck in the genuine die, and protected against the vigilance of Government, till it shall have entered into circulation.

We lose the opportunity of calling in and re-coining the clipped money in circulation, or we double our risk by a double transportation.

We lose, in like manner, the resource of coining up our household plate in the instant of great distress.

We lose the means of forming artists to continue the works, when the common accidents of mortality shall have deprived us of those who began them.

In fine, the carrying on a coinage in a foreign country, as far as the Secretary knows, is without example; and general example is weighty authority.

He is, therefore, of opinion, on the whole, that a mint, whenever established, should be established at home; that the superiority, the merit, and means of the undertaker, will suggest him as the proper person to be engaged in the establishment and conduct of a mint, on a scale which, relinquishing nothing in the perfection of the coin, shall be duly proportioned to our purposes.

And, in the meanwhile, he is of opinion the present proposals should be declined.

IV.—Opinion on the question whether the Senate has the right to negative the grade of persons appointed by the Executive to fill Foreign Missions.

New York, April 24, 1790.

The constitution having declared that the President shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, the President desired my opinion whether the Senate has a right to negative the grade he may think it expedient to use in a foreign mission as well as the person to be appointed.

I think the Senate has no right to negative the grade.

The constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of Representatives. It has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate, and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.

The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.

The constitution itself indeed has taken care to circumscribe this one within very strict limits; for it gives the nomination of the foreign agents to the President, the appointments to him and the Senate jointly, and the commissioning to the President.

This analysis calls our attention the strict import of each term. To nominate must be to propose. Appointment seems that act of the will which constitutes or makes the agent, and the commission is the public evidence of it. But there are still other acts previous to these not specially enumerated in the constitution, to wit: 1st. The destination of a mission to the particular country where the public service calls for it, and second the character or grade to be employed in it. The natural order of all these is first, destination; second, grade; third, nomination; fourth, appointment; fifth, commission. If appointment does not comprehend the neighboring acts of nomination or commission, (and the constitution says it shall not, by giving them exclusively to the President,) still less can it pretend to comprehend those previous and more remote, of destination and grade.

The constitution, analyzing the three last, shows they do not comprehend the two first. The fourth is the only one it submits to the Senate, shaping it into a right to say that "A or B is unfit to be appointed." Now, this cannot comprehend a right to say that "A or B is indeed fit to be appointed," but the grade fixed on is not the fit one to employ, or, "our connections with the country of his destination are not such as to call for any mission."

The Senate is not supposed by the constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them, nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.

It may be objected that the Senate may by continual negatives on the person, do what amounts to a negative on the grade, and so, indirectly, defeat this right of the President. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.

V.—Opinion upon the validity of a grant made by the State of Georgia to certain companies of individuals, of a tract of country whereof the Indian right had never been extinguished, with power to such individuals to extinguish the Indian right.

May 3d, 1790.

The State of Georgia, having granted to certain individuals a tract of country, within their chartered limits, whereof the Indian right has never yet been acquired; with a proviso in the grants, which implies that those individuals may take measures for extinguishing the Indian rights under the authority of that Government, it becomes a question how far this grant is good?

A society, taking possession of a vacant country, and declaring they mean to occupy it, does thereby appropriate to themselves as prime occupants what was before common. A practice introduced since the discovery of America, authorizes them to go further, and to fix the limits which they assume to themselves; and it seems, for the common good, to admit this right to a moderate and reasonable extent.

If the country, instead of being altogether vacant, is thinly occupied by another nation, the right of the native forms an exception to that of the new comers; that is to say, these will only have a right against all other nations except the natives. Consequently, they have the exclusive privilege of acquiring the native right by purchase or other just means. This is called the right of preëmption, and is become a principle of the law of nations, fundamental with respect to America. There are but two means of acquiring the native title. First, war; for even war may, sometimes, give a just title. Second, contracts or treaty.

The States of America before their present union possessed completely, each within its own limits, the exclusive right to use these two means of acquiring the native title, and, by their act of union, they have as completely ceded both to the general government. Art. 2d, Section 1st. "The President shall have power, by and with the advice of the Senate, to make treaties, provided two thirds of the Senators present concur." Art. 1st, Section 8th, "The Congress shall have power to declare war, to raise and support armies." Section 10th, "No State shall enter into any treaty, alliance or confederation. No State shall, without the consent of Congress, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay."

These paragraphs of the constitution, declaring that the general government shall have, and that the particular ones shall not have, the right of war and treaty, are so explicit that no commentary can explain them further, nor can any explain them away. Consequently, Georgia, possessing the exclusive right to acquire the native title, but having relinquished the means of doing it to the general government, can only have put her grantee into her own condition. She could convey to them the exclusive right to acquire; but she could not convey what she had not herself, that is, the means of acquiring.

For these they must come to the general government, in whose hands they have been wisely deposited for the purposes both of peace and justice.

What is to be done? The right of the general government is, in my opinion, to be maintained. The case is sound, and the means of doing it as practicable as can ever occur. But respect and friendship should, I think, mark the conduct of the general towards the particular government, and explanations should be asked and time and color given them to tread back their steps before coercion is held up to their view. I am told there is already a strong party in Georgia opposed to the act of their government.

I should think it better then that the first measures, while firm, be yet so temperate as to secure their alliance and aid to the general government.

Might not the eclat of a proclamation revolt their pride and passion, and throw them hastily into the opposite scale? It will be proper indeed to require from the government of Georgia, in the first moment, that while the general government shall be expecting and considering her explanations, things shall remain in statu quo, and not a move be made towards carrying what they have begun into execution.

Perhaps it might not be superfluous to send some person to the Indians interested, to explain to them the views of government and to watch with their aid the territory in question.

VI.—Opinion in favor of the resolutions of May 21st, 1790 directing that, in all cases where payment had not been already made, the debts due to the soldiers of Virginia and North Carolina, should be paid to the original claimants or their attorneys, and not to their assignees.

June 3d, 1790.

The accounts of the soldiers of Virginia and North Carolina, having been examined by the proper officer of government, the balances due to each individual ascertained, and a list of these balances made out, this list became known to certain persons before the soldiers themselves had information of it, and those persons, by unfair means, as is said, and for very inadequate considerations, obtained assignments from many of the soldiers of whatever sum should be due to them from the public, without specifying the amount.

The legislature, to defeat this fraud, passed resolutions on the 21st of May, 1796, directing that where payment had not been made to the original claimant in person or his representatives, it shall be made to him or them personally, or to their attorney, producing a power for that purpose, attested by two justices of the county where he resides, and specifying the certain sum he is to receive.

It has been objected to these resolutions that they annul transfers of property which were good by the laws under which they were made; that they take from the assignees their lawful property; are contrary to the principles of the constitution, which condemn retrospective laws; and are, therefore, not worthy of the President's approbation.

I agree in an almost unlimited condemnation of retrospective laws. The few instances of wrong which they redress are so overweighed by the insecurity they draw over all property and even over life itself, and by the atrocious violations of both to which they lead that it is better to live under the evil than the remedy.

The only question I shall make is, whether these resolutions annul acts which were valid when they were done?

This question respects the laws of Virginia and North Carolina only. On the latter I am not qualified to decide, and therefore beg leave to confine myself to the former.

By the common law of England (adopted in Virginia) the conveyance of a right to a debt or other thing whereof the party is not in possession, is not only void, but severely punishable under the names of Maintenance and Champerty. The Law-merchants, however, which is permitted to have course between merchants, allows the assignment of a bill of exchange for the convenience of commerce. This, therefore, forms one exception to the general rule, that a mere right or thing in action is not assignable. A second exception has been formed by an English statute (copied into the laws of Virginia) permitting promissory notes to be assigned. The laws of Virginia have gone yet further than the statute, and have allowed, as a third exception, that a bond should be assigned, which cannot be done even at this day in England. So that, in Virginia, when a debt has been settled between the parties and put into the form of a bill of exchange, promissory note or bond, the law admits it to be transferred by assignment. In all other cases the assignment of a debt is void.

The debts from the United States to the soldiers of Virginia, not having been put into either of these forms, the assignments of them were void in law.

A creditor may give an order on his debtor in favor of another, but if the debtor does not accept it, he must be sued in the creditor's name; which shows that the order does not transfer the property of the debts. The creditor may appoint another to be his attorney to receive and recover his debt, and he may covenant that when received the attorney may apply it to his own use. But he must sue as attorney to the original proprietor, and not in his own right.

This proves that a power of attorney, with such a covenant, does not transfer the property of the debt. A further proof in both cases is, that the original creditor may at any time before payment or acceptance revoke either his order or his power of attorney.

In that event the person in whose favor they were given has recourse to a court of equity. When there, the judge examines whether he has done equity. If he finds his transaction has been a fair one, he gives him aid. If he finds it has been otherwise, not permitting his court to be made a handmaid to fraud, he leaves him without remedy in equity as he was in law. The assignments in the present case, therefore, if unfairly obtained, as seems to be admitted, are void in equity as they are in law. And they derive their nullity from the laws under which they were made, not from the new resolutions of Congress. These are not retrospective. They only direct their treasurer not to give validity to an assignment which had it not before, by payments to the assignee until he in whom the legal property still is, shall order it in such a form as to show he is apprized of the sum he is to part with, and its readiness to be paid into his or any other hands, and that he chooses, notwithstanding, to acquiesce under the fraud which has been practised on him. In that case he has only to execute before two justices a power of attorney to the same person, expressing the specific sum of his demand, and it is to be complied with. Actual payment, in this case, is an important act. If made to the assignee, it would put the burthen of proof and process on the original owner. If made to that owner, it puts it on the assignee, who must then come forward and show that his transaction has been that of an honest man.

Government seems to be doing in this what every individual, I think, would feel himself bound to do in the case of his own debt. For, being free in the law, to pay to the one or the other, he would certainly give the advantage to the party who has suffered wrong rather than to him who has committed it.

It is not honorable to take a mere legal advantage, when it happens to be contrary to justice.

But it is honorable to embrace a salutary principle of law when a relinquishment of it is solicited only to support a fraud.

I think the resolutions, therefore, merit approbation. I have before professed my incompetence to say what are the laws of North Carolina on this subject. They, like Virginia, adopted the English laws in the gross. These laws forbid in general the buying and selling of debts, and their policy in this is so wise that I presume they had not changed it till the contrary be shown.

VII.—Plan for establishing uniformity in the Coinage, Weights, and Measures of the United States. Communicated to the House of Representatives, July 13, 1790.

New York, July 4, 1790.

Sir:—In obedience to the order of the House of Representatives of January 15th, I have now the honor to enclose you a report on the subject of measures, weights, and coins. The length of time which intervened between the date of the order and my arrival in this city, prevented my receiving it till the 15th of April; and an illness which followed soon after added, unavoidably, some weeks to the delay; so that it was not till about the 20th May that I was able to finish the report. A desire to lessen the number of its imperfections induced me still to withhold it awhile, till, on the 15th of June, came to my hands, from Paris, a printed copy of a proposition made by the Bishop of Autun, to the National Assembly of France, on the subject of weights and measures; and three days afterwards I received, through the channel of the public papers, the speech of Sir John Riggs Miller, of April 13th, in the British House of Commons, on the same subject. In the report which I had prepared, and was then about to give in, I had proposed the latitude of 38°, as that which should fix our standard, because it was the medium latitude of the United States; but the proposition before the National Assembly of France, to take that of 45° as being a middle term between the equator and both poles, and a term which consequently might unite the nations of both hemispheres, appeared to me so well chosen, and so just, that I did not hesitate a moment to prefer it to that of 38°. It became necessary, of course, to conform all my calculations to that standard—an operation which has been retarded by my other occupations.

These circumstances will, I hope, apologize for the delay which has attended the execution of the order of the House; and, perhaps, a disposition on their part to have due regard for the proceedings of other nations, engaged on the same subject, may induce them still to defer deciding ultimately on it till their next session. Should this be the case, and should any new matter occur in the meantime, I shall think it my duty to communicate it to the House, as supplemental to the present report.

I have the honor to be, with sentiments of the most profound respect,

Sir, your most obedient and most humble servant.

The Secretary of State, to whom was referred, by the House of Representatives, to prepare and report a proper plan or plans for establishing uniformity in the currency, weights, and measures of the United States, in obedience thereto, makes the following report:—

To obtain uniformity in measures, weights, and coins, it is necessary to find some measure of invariable length, with which, as a standard, they may be compared.

There exists not in nature, as far as has been hitherto observed, a single subject or species of subject, accessible to man, which presents one constant and uniform dimension.

The globe of the earth itself, indeed, might be considered as invariable in all its dimensions, and that its circumference would furnish an invariable measure; but no one of its circles, great or small, is accessible to admeasurement through all its parts, and the various trials to measure definite portions of them, have been of such various result as to show there is no dependence on that operation for certainty.

Matter, then, by its mere extension, furnishing nothing invariable, its motion is the only remaining resource.

The motion of the earth round its axis, though not absolutely uniform and invariable, may be considered as such for every human purpose. It is measured obviously, but unequally, by the departure of a given meridian from the sun, and its return to it, constituting a solar day. Throwing together the inequalities of solar days, a mean interval, or day, has been found, and divided, by very general consent, into 86,400 equal parts.

A pendulum, vibrating freely, in small and equal arcs, may be so adjusted in its length, as, by its vibrations, to make this division of the earth's motion into 86,400 equal parts, called seconds of mean time.

Such a pendulum, then, becomes itself a measure of determinate length, to which all others may be referred to as to a standard.

But even a pendulum is not without its uncertainties.

1. The difficulty of ascertaining, in practice, its centre of oscillation, as depending on the form of the bob, and its distance from the point of suspension; the effect of the weight of the suspending wire towards displacing the centre of oscillation; that centre being seated within the body of the bob, and therefore inaccessible to the measure, are sources of considerable uncertainty.

2. Both theory and experience prove that, to preserve its isochronism, it must be shorter towards the equator, and longer towards the poles.

3. The height of the situation above the common level, as being an increment to the radius of the earth, diminishes the length of the pendulum.

4. The pendulum being made of metal, as is best, it varies its length with the variations in the temperature of the atmosphere.

5. To continue small and equal vibrations, through a sufficient length of time, and to count these vibrations, machinery and a power are necessary, which may exert a small but constant effort to renew the waste of motion; and the difficulty is so to apply these, as that they shall neither retard or accelerate the vibrations.

1. In order to avoid the uncertainties which respect the centre of oscillation, it has been proposed by Mr. Leslie, an ingenious artist of Philadelphia, to substitute, for the pendulum, a uniform cylindrical rod, without a bob.

Could the diameter of such a rod be infinitely small, the centre of oscillation would be exactly at two-thirds of the whole length, measured from the point of suspension. Giving it a diameter which shall render it sufficiently inflexible, the centre will be displaced, indeed; but, in a second rod not the [(1)] six hundred thousandth part of its length, and not the hundredth part as much as in a second pendulum with a spherical bob of proper diameter. This displacement is so infinitely minute, then, that we may consider the centre of oscillation, for all practical purposes, as residing at two-thirds of the length from the centre of suspension. The distance between these two centres might be easily and accurately ascertained in practice. But the whole rod is better for a standard than any portion of it, because sensibly defined at both its extremities.

2. The uncertainty arising from the difference of length requisite for the second pendulum, or the second rod, in different latitudes, may be avoided by fixing on some one latitude, to which our standard shall refer. That of 38°, as being the middle latitude of the United States, might seem the most convenient, were we to consider ourselves alone; but connected with other nations by commerce and science, it is better to fix on that parallel which bids fairest to be adopted by them also. The 45th, as being the middle term between the equator and pole, has been heretofore proposed in Europe, and the proposition has been lately renewed there under circumstances which may very possibly give it some effect. This parallel is distinguished with us also as forming our principal northern boundary. Let the completion of the 45th degree, then, give the standard for our union, with the hope that it may become a line of union with the rest of the world.

The difference between the second rod for 45° of latitude, and that for 31°, our other extreme, is to be examined.

The second pendulum for 45° of latitude, according to Sir Isaac Newton's computation, must be of [(2)] 39.14912 inches English measure; and a rod, to vibrate in the same time, must be of the same length between the centres of suspension and oscillation; and, consequently, its whole length 58.7 (or, more exactly, 58.72368) inches. This is longer than the rod which shall vibrate seconds in the 31° of latitude, by about 1⁄679 part of its whole length; a difference so minute, that it might be neglected, as insensible, for the common purposes of life, but, in cases requiring perfect exactness, the second rod, found by trial of its vibrations in any part of the United States, may be corrected by computation for the [(3)] latitude of the place, and so brought exactly to the standard of 45°.

3. By making the experiment in the level of the ocean, the difference will be avoided, which a higher position might occasion.

4. The expansion and contraction of the rod with the change of temperature, is the fourth source of uncertainty before mentioned. According to the high authority so often quoted, an iron rod, of given length, may vary, between summer and winter, in temperate latitudes, and in the common exposure of house clocks, from 1⁄1728 to 1⁄2592 of its whole length, which, in a rod of 58.7 inches, will be from about two to three hundredths of an inch. This may be avoided by adjusting and preserving the standard in a cellar, or other place, the temperature of which never varies. Iron is named for this purpose, because the least expansible of the metals.

5. The practical difficulty resulting from the effect of the machinery and moving power is very inconsiderable in the present state of the arts; and, in their progress towards perfection, will become less and less. To estimate and obviate this, will be the artist's province. It is as nothing when compared with the sources of inaccuracy hitherto attending measures.

Before quitting the subject of the inconveniences, some of which attend the pendulum alone, others both the pendulum and rod, it must be added that the rod would have an accidental but very precious advantage over the pendulum in this country, in the event of our fixing the foot at the nearest aliquot part of either; for the difference between the common foot, and those so to be deduced, would be three times greater in the case of the pendulum than in that of the rod.

Let the standard of measure, then, be a uniform cylindrical rod of iron, of such length as, in latitude 45°, in the level of the ocean, and in a cellar, or other place, the temperature of which does not vary through the year, shall perform its vibrations in small and equal arcs, in one second of mean time.

A standard of invariable length being thus obtained, we may proceed to identify, by that, the measures, weights and coins of the United States; but here a doubt presents itself as to the extent of the reformation meditated by the House of Representatives. The experiment made by Congress in the year one thousand seven hundred and eighty-six, by declaring that there should be one money of account and payment through the United States, and that its parts and multiples should be in a decimal ratio,[23] has obtained such general approbation, both at home and abroad, that nothing seems wanting but the actual coinage, to banish the discordant pounds, shillings, pence, and farthings of the different States, and to establish in their stead the new denominations. Is it in contemplation with the House of Representatives to extend a like improvement to our measures and weights, and to arrange them also in a decimal ratio? The facility which this would introduce into the vulgar arithmetic would, unquestionably, be soon and sensibly felt by the whole mass of the people, who would thereby be enabled to compute for themselves whatever they should have occasion to buy, to sell, or to measure, which the present complicated and difficult ratios place beyond their computation for the most part. Or, is it the opinion of the Representatives that the difficulty of changing the established habits of a whole nation opposes an insuperable bar to this improvement? Under this uncertainty, the Secretary of State thinks it his duty to submit alternative plans, that the House may, at their will, adopt either the one or the other, exclusively, or the one for the present and the other for a future time, when the public mind may be supposed to have become familiarized to it.

I. And first, on the supposition that the present measures and weights are to be retained but to be rendered uniform and invariable, by bringing them to the same invariable standard.

The first settlers of these States, having come chiefly from England, brought with them the measures and weights of that country. These alone are generally established among us, either by law or usage; and these, therefore, are alone to be retained and fixed. We must resort to that country for information of what they are, or ought to be.

This rests, principally, on the evidence of certain standard measures and weights, which have been preserved, of long time, in different deposits. But differences among these having been known to exist, the House of Commons, in the years 1757 and 1758, appointed committees to inquire into the original standards of their weights and measures. These committees, assisted by able mathematicians and artists, examined and compared with each other the several standard measures and weights, and made reports on them in the years 1758 and 1759. The circumstances under which these reports were made entitle them to be considered, as far as they go, as the best written testimony existing of the standard measures and weights of England; and as such, they will be relied on in the progress of this report.

MEASURES OF LENGTH.

The measures of length in use among us are:

On this branch of their subject, the committee of 1757-1758, says that the standard measures of length at the receipt of the exchequer, are a yard, supposed to be of the time of Henry VII., and a yard and ell supposed to have been made about the year 1601; that they are brass rods, very coarsely made, their divisions not exact, and the rods bent; and that in the year 1742, some members of the Royal Society had been at great pains in taking an exact measure of these standards, by very curious instruments, prepared by the ingenious Mr. Graham; that the Royal Society had had a brass rod made pursuant to their experiments, which was made so accurately, and by persons so skilful and exact, that it was thought not easy to obtain a more exact one; and the committee, in fact, found it to agree with the standards at the exchequer, as near as it was possible. They furnish no means, to persons at a distance, of knowing what this standard is. This, however, is supplied by the evidence of the second pendulum, which, according to the authority before quoted, is, at London, 39.1682 English inches, and, consequently, the second rod there is of 58.7523 of the same inches. When we shall have found, then, by actual trial, the second rod for 45° by adding the difference of their computed length, to wit: 287⁄10000 of an inch, or rather 3⁄10 of a line (which in practice will endanger less error than an attempt at so minute a fraction as the ten thousandth parts of an inch) we shall have the second rod of London, or a true measure of 58¾ English inches. Or, to shorten the operation, without varying the result,

Let the standard rod of 45° be divided into 587⅕ equal parts, and let each of these parts be declared a line.

SUPERFICIAL MEASURES

Our measures of surface are, the acre of 4 roods and the rood of 40 square poles; so established by a statute of 33 Edw. 1. Let them remain the same.

MEASURES OF CAPACITY.

The measures of capacity in use among us are of the following names and proportions:

But no one of these measures is of a determinate capacity. The report of the committee of 1757-8, shows that the gallon is of very various content; and that being the unit, all the others must vary with it.

The gallon and bushel contain—

There are, moreover, varieties on these varieties, from the barrel to the ton, inclusive; for, if the barrel be of herrings, it must contain 28 gallons by the statute 13 Eliz. c. 11. If of wine, it must contain 31½ gallons by the statute 2 Henry VI. c. 11, and 1 Rich. III. c. 15. If of beer or ale, it must contain 34 gallons by the statute 1 William and Mary, c. 24, and the higher measures in proportion.

In those of the United States which have not adopted the statutes of William and Mary, and of Anne before cited, nor their substance, the wine gallon of 231 cubic inches rests on the authority of very long usage, before the 5th of Anne, the origin and foundation of which are unknown; the bushel is the Winchester bushel, by the 11 Henry VII. undefined; and the barrel of ale 32 gallons, and of beer 36 gallons, by the statute 23 Henry VIII c. 4.

The Secretary of State is not informed whether there have been any, and what, alterations of these measures by the laws of the particular States.

It is proposed to retain this series of measures, but to fix the gallon to one determinate capacity, as the unit of measure, both wet and dry; for convenience is in favor of abolishing the distinction between wet and dry measures.

The wine gallon, whether of 224 or 231 cubic inches, may be altogether disregarded, as concerning, principally, the mercantile and the wealthy, the least numerous part of the society, and the most capable of reducing one measure to another by calculation. This gallon is little used among the mass of farmers, whose chief habits and interests are in the size of the corn bushel.

Of the standard measures before stated, two are principally distinguished in authority and practice. The statute bushel of 2150 cubic inches, which gives a gallon of 268.75 cubic inches, and the standard gallon of 1601, called the corn gallon of 271 or 272 cubic inches, which has introduced the mercantile bushel of 2276 inches. The former of these is most used in some of the grain States, the latter in others. The middle term of 270 cubic inches may be taken as a mutual compromise of convenience, and as offering this general advantage: that the bushel being of 2160 cubic inches, is exactly a cubic foot and a quarter, and so facilitates the conversion of wet and dry measures into solid contents and tonnage, and simplifies the connection of measures and weights, as will be shown hereafter. It may be added, in favor of this, as a medium measure, that eight of the standard, or statute measures before enumerated, are below this term, and nine above it.

The measures to be made for use, being four sided, with rectangular sides and bottom.

Cylindrical measures have the advantage of superior strength, but square ones have the greater advantage of enabling every one who has a rule in his pocket, to verify their contents by measuring them. Moreover, till the circle can be squared, the cylinder cannot be cubed, nor its contents exactly expressed in figures.

Let the measures of capacity, then, for the United States be—

WEIGHTS.

There are two series of weights in use among us; the one called avoirdupois, the other troy.

In the Avoirdupois series:

In the Troy series:

According to the subdivision for gold and silver, the ounce is divided into twenty pennyweights, and the pennyweight into twenty-four grains.

So that the pound troy contains 5760 grains, of which 7000 are requisite to make the pound avoirdupois; of course the weight of the pound troy is to that of the 7000, or as 144 to 175.

It is remarkable that this is exactly the proportion of the ancient liquid gallon of Guildhall of 224 cubic inches, to the corn gallon of 272; for 224 are to 272 as 144 to 175. [(4.)]

It is further remarkable still, that this is also the exact proportion between the specific weight of any measure of wheat, and of the same measure of water: for the statute bushel is of 64 pounds of wheat. Now as 144 to 175, so are 64 pounds to 77.7 pounds; but 77.7 pounds is known to be the weight of [(5.)] 2150.4 cubic inches of pure water, which is exactly the content of the Winchester bushel, as declared by the statute 13, 14, Will. 3. That statute determined the bushel to be a cylinder of 18½ inches diameter, and 8 inches depth. Such a cylinder, as nearly as it can be cubed, and expressed in figures, contains 2150.425 cubic inches; a result which reflects authority on the declaration of Parliament, and induces a favorable opinion of the care with which they investigated the contents of the ancient bushel, and also a belief that there might exist evidence of it at that day, unknown to the committees of 1758 and 1759.

We find, then, in a continued proportion 64 to 77.7 as 224 to 272, and as 144 to 175, that is to say, the specific weight of a measure of wheat, to that of the same measure of water, as the cubic contents of the wet gallon, to those of the dry; and as the weight of a pound troy to that of a pound avoirdupois.

This seems to have been so combined as to render it indifferent whether a thing were dealt out by weight or measure; for the dry gallon of wheat, and the liquid one of wine, were of the same weight; and the avoirdupois pound of wheat, and the troy pound of wine, were of the same measure. Water and the vinous liquors, which enter most into commerce, are so nearly of a weight, that the difference, in moderate quantities, would be neglected by both buyer and seller; some of the wines being a little heavier, and some a little lighter, than water.

Another remarkable correspondence is that between weights and measures. For 1000 ounces avoirdupois of pure water fill a cubic foot, with mathematical exactness.

What circumstances of the times, or purposes of barter or commerce, called for this combination of weights and measures, with the subjects to be exchanged or purchased, are not now to be ascertained. But a triple set of exact proportionals representing weights, measures, and the things to be weighed and measured, and a relation so integral between weights and solid measures, must have been the result of design and scientific calculation, and not a mere coincidence of hazard. It proves that the dry and wet measures, the heavy and light weights, must have been original parts of the system they compose—contrary to the opinion of the committee of 1757, 1758, who thought that the avoirdupois weight was not an ancient weight of the kingdom, nor ever even a legal weight, but during a single year of the reign of Henry VIII.; and, therefore, concluded, otherwise than will be here proposed, to suppress it altogether. Their opinion was founded chiefly on the silence of the laws as to this weight. But the harmony here developed in the system of weights and measures, of which the avoirdupois makes an essential member, corroborated by a general use, from very high antiquity, of that, or of a nearly similar weight under another [(6.)] name, seem stronger proofs that this is legal weight, than the mere silence of the written laws is of the contrary.

Be this as it may, it is in such general use with us, that, on the principle of popular convenience, its higher denominations, at least, must be preserved. It is by the avoirdupois pound and ounce that our citizens have been used to buy and sell. But the smaller subdivisions of drachms and quarters are not in use with them. On the other hand, they have been used to weigh their money and medicine with the pennyweights and grains troy weight, and are not in the habit of using the pounds and ounces of that series. It would be for their convenience, then, to suppress the pound and ounce troy, and the drachm and quarter avoirdupois; and to form into one series the avoirdupois pound and ounce, and the troy pennyweight and grain. The avoirdupois ounce contains 18 pennyweights 5½ grains troy weight. Divide it, then, into 18 pennyweights, and the pennyweight, as heretofore, into 24 grains, and the new pennyweight will contain between a third and a quarter of a grain more than the present troy pennyweight; or, more accurately, it will be to that as 875 to 864—a difference not to be noticed, either in money or medicine, below the denomination of an ounce.

But it will be necessary to refer these weights to a determinate mass of some substance, the specific gravity of which is invariable. Rain water is such a substance, and may be referred to everywhere, and through all time. It has been found by accurate experiments that a cubic foot of rain water weighs 1000 ounces avoirdupois, standard weights of the exchequer. It is true that among these standard weights the committee report small variations; but this experiment must decide in favor of those particular weights, between which, and an integral mass of water, so remarkable a coincidence has been found. To render this standard more exact, the water should be weighed always in the same temperature of air; as heat, by increasing its volume, lessens its specific gravity. The cellar of uniform temperature is best for this also.

Let it, then, be established that an ounce is of the weight of a cube of rain water, of one-tenth of a foot; or, rather, that it is the thousandth part of the weight of a cubic foot of rain water, weighed in the standard temperature; that the series of weights of the United States shall consist of pounds, ounces, pennyweights, and grains; whereof

COINS.

Congress, in 1786, established the money unit at 375.64 troy grains of pure silver. It is proposed to enlarge this by about the third of a grain in weight, or a mill in value; that is to say, to establish it at 376 (or, more exactly, 375.989343) instead of 375.64 grains; because it will be shown that this, as the unit of coin, will link in system with the units of length, surface, capacity, and weight, whenever it shall be thought proper to extend the decimal ratio through all these branches. It is to preserve the possibility of doing this, that this very minute alteration is proposed.

We have this proportion, then, 875 to 864, as 375.989343 grains troy to 371.2626277; the expression of the unit in the new grains.

Let it be declared, therefore, that the money unit, or dollar of the United States, shall contain 371.262 American grains of pure silver.

If nothing more, then, is proposed, than to render uniform and stable the system we already possess, this may be effected on the plan herein detailed; the sum of which is: 1st. That the present measures of length be retained, and fixed by an invariable standard. 2d. That the measures of surface remain as they are, and be invariable also as the measures of length to which they are to refer. 3d. That the unit of capacity, now so equivocal, be settled at a medium and convenient term, and defined by the same invariable measures of length. 4th. That the more known terms in the two kinds of weights be retained, and reduced to one series, and that they be referred to a definite mass of some substance, the specific gravity of which never changes. And 5th. That the quantity of pure silver in the money unit be expressed in parts of the weights so defined.

In the whole of this no change is proposed, except an insensible one in the troy grain and pennyweight, and the very minute one in the money unit.

II. But if it be thought that, either now, or at any future time, the citizens of the United States may be induced to undertake a thorough reformation of their whole system of measures, weights and coins, reducing every branch to the same decimal ratio already established in their coins, and thus bringing the calculation of the principal affairs of life within the arithmetic of every man who can multiply and divide plain numbers, greater changes will be necessary.

The unit of measure is still that which must give law through the whole system; and from whatever unit we set out, the coincidences between the old and new ratios will be rare. All that can be done, will be to choose such a unit as will produce the most of these. In this respect the second rod has been found, on trial, to be far preferable to the second pendulum.

MEASURES OF LENGTH.

Let the second rod, then, as before described, be the standard of measure; and let it be divided into five equal parts, each of which shall be called a foot; for, perhaps, it may be better generally to retain the name of the nearest present measure, where there is one tolerably near. It will be about one quarter of an inch shorter than the present foot.

SUPERFICIAL MEASURES.

Superficial measures have been estimated, and so may continue to be, in squares of the measures of length, except in the case of lands, which have been estimated by squares, called roods and acres. Let the rood be equal to a square, every side of which is 100 feet. This will be 6.483 English feet less than the English [(7.)] rood every way, and 1311 square feet less in its whole contents; that is to say, about one-eighth; in which proportion, also, 4 roods will be less than the present acre.

MEASURES OF CAPACITY.

Let the unit of capacity be the cubic foot, to be called a bushel. It will contain 1620.05506862 cubic inches, English; be about one-fourth less than that before proposed to be adopted as a medium; one-tenth less than the bushel made from 8 of the Guildhall gallons; and one-fourteenth less than the bushel made from 8 Irish gallons of 217.6 cubic inches.

The measures for use being four-sided, and the sides and bottoms rectangular, the bushel will be a foot cube.

WEIGHTS.

Let the weight of a cubic inch of rain water, or the thousandth part of a cubic foot, be called an ounce; and let the ounce be divided into 10 double scruples:

COINS.

Let the money unit, or dollar, contain eleventh-twelfths of an ounce of pure silver. This will be 376 troy grains, (or more exactly, 375.959343 troy grains,) which will be about a third of a grain, (or more exactly, .349343 of a grain,) more than the present unit. This, with the twelfth of alloy already established, will make the dollar or unit, of the weight of an ounce, or of a cubic inch of rain water, exactly. The series of mills, cents, dimes, dollars, and eagles, to remain as already established [(8.)]

The second rod, or the second pendulum, expressed in the measures of other countries, will give the proportion between their measures and those of the United States.

Measures, weights and coins, thus referred to standards unchangeable in their nature, (as is the length of a rod vibrating seconds, and the weight of a definite mass of rain water,) will themselves be unchangeable. These standards, too, are such as to be accessible to all persons, in all times and places. The measures and weights derived from them fall in so nearly with some of those now in use, as to facilitate their introduction; and being arranged in decimal ratio, they are within the calculation of every one who possesses the first elements of arithmetic, and of easy comparison, both for foreigners and citizens, with the measures, weights, and coins of other countries.

A gradual introduction would lessen the inconveniences which might attend too sudden a substitution, even of an easier for a more difficult system. After a given term, for instance, it might begin in the custom-houses, where the merchants would become familiarized to it. After a further term, it might be introduced into all legal proceedings, and merchants and traders in foreign commodities might be required to use it in their dealings with one another. After a still further term, all other descriptions of people might receive it into common use. Too long a postponement, on the other hand, would increase the difficulties of its reception with the increase of our population.

Appendix, containing illustrations and developments of some passages of the preceding report.

[(1.)] In the second pendulum with a spherical bob, call the distance between the centres of suspension and of the bob, 2x19.575, or 2d, and the radius of the bob = r; then 2d:r::r: rr 2d and ⅖ of this last proportional expresses the displacement of the centre of oscillation, to wit: 2rr 5x2d = rr 5d . Two inches have been proposed as a proper diameter for such a bob. In that case r will be = 1. inch, and rr 5d = 1 9787 inches.

In the cylindrical second rod, call the length of the rod, 3 x 19.575. or 3d, and its radius = r and rr 2x3d = rr 6d will express the displacement of the centre of oscillation. It is thought the rod will be sufficiently inflexible if it be ⅕ of an inch in diameter. Then r will be = .1 inch, and rr 6d = 1 11745 inches, which is but the 120th part of the displacement in the case of the pendulum with a spherical bob, and but the 689,710th part of the whole length of the rod. If the rod be even of half an inch diameter, the displacement will be but 1⁄1879 of an inch, or 1⁄110356 of the length of the rod.

[(2.)] Sir Isaac Newton computes the pendulum for 45° to be 36 pouces 8.428 lignes. Picard made the English foot 11 pouces 2.6 lignes, and Dr. Maskelyne 11 pouces 3.11 lignes. D'Alembert states it at 11 pouces 3 lignes, which has been used in these calculations as a middle term, and gives us 36 pouces 8.428 lignes = 39.1491 inches. This length for the pendulum of 45° had been adopted in this report before the Bishop of Autun's proposition was known here. He relies on Mairan's ratio for the length of the pendulum in the latitude of Paris, to wit: 504:257::72 pouces to a 4th proportional, which will be 36.71428 pouces=39.1619 inches, the length of the pendulum for latitude 48° 50'. The difference between this and the pendulum for 45° is .0113 of an inch; so that the pendulum for 45° would be estimated, according to Mairan, at 39.1619—.0113 = 39.1506 inches, almost precisely the same with Newton's computation herein adopted.

[(3.)] Sir Isaac Newton's computations for the different degrees of latitude, from 30° to 45°, are as follows:

Pieds.Lignes.
30°37.948
353 8.099
403 8.261
413 8.294
423 8.327
433 8.361
443 8.394
453 8.428

[(4.)] Or, more exactly, 144:175::224:272.2.

[(5.)] Or, more exactly, 62.5:1728::77.7:2150.39.

[(6.)] The merchant's weight.

[(7.)] The Eng. rood contains 10,890 sq. feet = 104.355 feet sq.

[(8.)] The Measures, Weights, and Coins of the Decimal System, estimated in those of England, now used in the United States.

1. MEASURES OF LENGTH.

Feet.Equivalent in English measure.
The point,.001.011 inch.
The line,.01.117
The inch,.11.174, about 1⁄7 more than the Eng. inch.
The foot,1.} 11.744736} about 1⁄48 less than the English foot.
} .978728 feet,
The decad,10.9.787, about 1⁄48 less than the 10 feet rod of the carpenters.
The rood,100.97.872, about 1⁄16 less than the side of an English square rood.
The furlong,1000.978.728, about ⅓ more than the Eng. fur.
The mile,10000.9787.28, about 1 6⁄7 English mile, nearly the Scotch and Irish mile, and ½ the German mile.

2. SUPERFICIAL MEASURE.

Roods.
The hundredth,.0195.69 square feet English.
The tenth,.1957.9
The rood,1.9579.085
The double acre,10.2.199, or say 2.2 acres English.
The square furlong,100.22.

3. MEASURE OF CAPACITY.

Bushels.Cub. Inches
The metre,.0011.62
The demi-pint,.0116.2, about 1⁄24 less than the English half-pint.
The pottle,.1162.005, about ⅙ more than the English pottle.
The bushel,1.{ 1620.05506862
{ .937531868414884352 cub feet.
about ¼ less than the middle sized English bushel.
The quarter,10.9.375, about ⅕ less than the Eng. qr.
The last,100.93.753, about 1⁄7 more than the Eng. last.

4. WEIGHTS.

Pounds.Avoirdupois.Troy.
Mite,.00001.041 grains, about ⅕ less than the English mite.
Minim, or demi-grain,.0001.4101, about ⅕ lessthan half-grain troy.
Carat,.001.4101, about 1⁄40 more than the carat troy.
Double scruple,.0141.017, about 1⁄40more than 2 scruples troy.
Ounce, .19375318684148 410.170192431
84352 oz..85452 oz.
about 1⁄16 less than the ounce avoirdupois.
Pound,1.9.375.712101 lb.,
.585957417759 lb.
about ¼ less than the pound troy.
Stone,10.93.753 oz.7.121
5.8595 lb.
about ¼ less than the English stone of 8 lbs. avoirdupois.
Kental,100.937.531 oz.71.21
58.5957 lb.
about 4⁄10 less than the English kental of 100 lbs. avoirdupois.
Hogshead,1000.9375.318 oz.712.101
585.9574 lb.

5. COINS.

Dollars.Troy grains.
The mill,.001
The cent,.01
The dime,.1
Dollar,1.375.98934306 pure silver.
34.18084937 alloy.
Eagle,10.410.17019243

Postscript.

January 10, 1791.

It is scarcely necessary to observe that the measures, weights, and coins, proposed in the preceding report, will be derived altogether from mechanical operations, viz.: A rod, vibrating seconds, divided into five equal parts, one of these subdivided, and multiplied decimally, for every measure of length, surface, and capacity, and these last filled with water, to determine the weights and coins. The arithmetical estimates in the report were intended only to give an idea of what the new measures, weights, and coins, would be nearly, when compared with the old. The length of the standard or second rod, therefore, was assumed from that of the pendulum; and as there has been small differences in the estimates of the pendulum by different persons, that of Sir Isaac Newton was taken, the highest authority the world has yet known. But, if even he has erred, the measures, weights, and coins proposed, will not be an atom the more or less. In cubing the new foot, which was estimated at .978728 of an English foot, or 11.744736 English inches, an arithmetical error of an unit happened in the fourth column of decimals, and was repeated in another line in the sixth column, so as to make the result one ten thousandth and one millionth of a foot too much. The thousandth part of this error (about one ten millionth of a foot) consequently fell on the metre of measure, the ounce weight, and the unit of money. In the last it made a difference of about the twenty-fifth part of a grain Troy, in weight, or the ninety-third of a cent in value. As it happened, this error was on the favorable side, so that the detection of it approximates our estimate of the new unit exactly that much nearer to the old, and reduces the difference between them to 34, instead of 38 hundredths of a grain Troy; that is to say, the money unit instead of 375.64 Troy grains of pure silver, as established heretofore, will now be 375.98934306 grains, as far as our knowledge of the length of the second pendulum enables us to judge; and the current of authorities since Sir Isaac Newton's time, gives reason to believe that his estimate is more probably above than below the truth, consequently future corrections of it will bring the estimate of the new unit still nearer to the old.

The numbers in which the arithmetical error before mentioned showed itself in the table, at the end of the report, have been rectified, and the table re-printed.

The head of superficial measures in the last part of the report, is thought to be not sufficiently developed. It is proposed that the rood of land, being 100 feet square, (and nearly a quarter of the present acre,) shall be the unit of land measure. This will naturally be divided into tenths and hundredths, the latter of which will be a square decad. Its multiples will also, of course, be tens, which may be called double acres, and hundreds, which will be equal to a square furlong each. The surveyor's chain should be composed of 100 links of one foot each.

VIII.—Opinion upon the question whether the President should veto the Bill, declaring that the seat of government shall be transferred to the Potomac, in the year 1790.

July 15, 1790.

A bill having passed both houses of Congress, and being now before the President, declaring that the seat of the federal government shall be transferred to the Potomac in the year 1790, that the session of Congress next ensuing the present shall be held in Philadelphia, to which place the offices shall be transferred before the 1st of December next, a writer in a public paper of July 13, has urged on the consideration of the President, that the constitution has given to the two houses of Congress the exclusive right to adjourn themselves; that the will of the President mixed with theirs in a decision of this kind, would be an inoperative ingredient, repugnant to the constitution, and that he ought not to permit them to part, in a single instance, with their constitutional rights; consequently, that he ought to negative the bill.

That is now to be considered.

Every man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature. Individuals exercise it by their single will; collections of men by that of their majority; for the law of the majority is the natural law of every society of men. When a certain description of men are to transact together a particular business, the times and places of their meeting and separating, depend on their own will; they make a part of the natural right of self-government. This, like all other natural rights, may be abridged or modified in its exercise by their own consent, or by the law of those who depute them, if they meet in the right of others; but as far as it is not abridged or modified, they retain it as a natural right, and may exercise them in what form they please, either exclusively by themselves, or in association with others, or by others altogether, as they shall agree.

Each house of Congress possesses this natural right of governing itself, and, consequently, of fixing its own times and places of meeting, so far as it has not been abridged by the law of those who employ them, that is to say, by the Constitution. This act manifestly considers them as possessing this right of course, and therefore has nowhere given it to them. In the several different passages where it touches this right, it treats it as an existing thing, not as one called into existence by them. To evince this, every passage of the constitution shall be quoted, where the right of adjournment is touched; and it will be seen that no one of them pretends to give that right; that, on the contrary, every one is evidently introduced either to enlarge the right where it would be too narrow, to restrain it where, in its natural and full exercise, it might be too large, and lead to inconvenience, to defend it from the latitude of its own phrases, where these were not meant to comprehend it, or to provide for its exercise by others, when they cannot exercise it themselves.

"A majority of each house shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members." Art. 1. Sec. 5. A majority of every collection of men being naturally necessary to constitute its will, and it being frequently to happen that a majority is not assembled, it was necessary to enlarge the natural right by giving to "a smaller number than a majority" a right to compel the attendance of the absent members, and, in the meantime, to adjourn from day to day. This clause, then, does not pretend to give to a majority a right which it knew that majority would have of themselves, but to a number less than a majority, a right to which it knew that lesser number could not have of themselves.

"Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting." Ibid. Each house exercising separately its natural right to meet when and where it should think best, it might happen that the two houses would separate either in time or place, which would be inconvenient. It was necessary, therefore, to keep them together by restraining their natural right of deciding on separate times and places, and by requiring a concurrence of will.

But, as it might happen that obstinacy, or a difference of object, might prevent this concurrence, it goes on to take from them, in that instance, the right of adjournment altogether, and to transfer it to another, by declaring, Art. 2, Sec. 3, that "in case of disagreement between the two houses, with respect to the time of adjournment, the President may adjourn them to such time as he shall think proper."

These clauses, then, do not import a gift, to the two houses, of a general right of adjournment, which it was known they would have without that gift, but to restrain or abrogate the right it was known they would have, in an instance where, exercised in its full extent, it might lead to inconvenience, and to give that right to another who would not naturally have had it. It also gives to the President a right, which he otherwise would not have had, "to convene both houses, or either of them, on extraordinary occasions." Thus substituting the will of another, where they are not in a situation to exercise their own.

"Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President for his approbation, &c." Art. 1, Sec. 7. The latitude of the general words here used would have subjected the natural right of adjournment of the two houses to the will of the President, which was not intended. They therefore expressly "except questions of adjournment" out of their operation. They do not here give a right of adjournment, which it was known would exist without their gift, but they defend the existing right against the latitude of their own phrases, in a case where there was no good reason to abridge it. The exception admits they will have the right of adjournment, without pointing out the source from which they will derive it.

These are all the passages of the constitution (one only excepted, which shall be presently cited) where the right of adjournment is touched; and it is evident that none of these are introduced to give that right; but every one supposes it to be existing, and provides some specific modification for cases where either a defeat in the natural right, or a too full use of it, would occasion inconvenience.

The right of adjournment, then, is not given by the constitution, and consequently it may be modified by law without interfering with that instrument. It is a natural right, and, like all other natural rights, may be abridged or regulated in its exercise by law; and the concurrence of the third branch in any law regulating its exercise is so efficient an ingredient in that law, that the right cannot be otherwise exercised but after a repeal by a new law. The express terms of the constitution itself show that this right may be modified by law, when, in Art. 1, Sec. 4. (the only remaining passage on the subject not yet quoted) it says, "The Congress shall assemble at least once in every year, and such meeting shall be the first Monday in December, unless they shall, by law, appoint a different day." Then another day may be appointed by law; and the President's assent is an efficient ingredient in that law. Nay further, they cannot adjourn over the first Monday of December but by a law. This is another constitutional abridgment of their natural right of adjournment; and completing our review of all the clauses in the constitution which touch that right, authorizes us to say no part of that instrument gives it; and that the houses hold it, not from the constitution, but from nature.

A consequence of this is, that the houses may, by a joint resolution, remove themselves from place to place, because it is a part of their right of self-government; but that as the right of self-government does not comprehend the government of others, the two houses cannot, by a joint resolution of their majorities only, remove the executive and judiciary from place to place. These branches possessing also the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the constitution. The clause of the bill in question, therefore, was necessary to be put into the form of a law, and to be submitted to the President, so far as it proposes to effect the removal of the Executive and Judiciary to Philadelphia. So far as respects the removal of the present houses of legislation thither, it was not necessary to be submitted to the President; but such a submission is not repugnant to the constitution. On the contrary, if he concurs, it will so far fix the next session of Congress at Philadelphia that it cannot be changed but by a regular law.

The sense of Congress itself is always respectable authority. It has been given very remarkably on the present subject. The address to the President in the paper of the 13th is a complete digest of all the arguments urged on the floor of the Representatives against the constitutionality of the bill now before the President; and they were overruled by a majority of that house, comprehending the delegation of all the States south of the Hudson, except South Carolina. At the last session of Congress, when the bill for remaining a certain term at New York, and then removing to Susquehanna or Germantown was objected to on the same ground, the objection was overruled by a majority comprehending the delegations of the northern half of the union with that of South Carolina. So that the sense of every State in the union has been expressed, by its delegation, against this objection South Carolina excepted, and excepting also Rhode Island, which has never yet had a delegation in place to vote on the question. In both these instances, the Senate concurred with the majority of the Representatives. The sense of the two houses is stronger authority in this case, as it is given against their own supposed privilege.

It would be as tedious, as it is unnecessary, to take up and discuss one by one, the objections proposed in the paper of July 13. Every one of them is founded on the supposition that the two houses hold their right of adjournment from the constitution. This error being corrected, the objections founded on it fall of themselves.

It would also be work of mere supererogation to show that, granting what this writer takes for granted (that the President's assent would be an inoperative ingredient, because excluded by the constitution, as he says), yet the particular views of the writer would be frustrated, for on every hypothesis of what the President may do, Congress must go to Philadelphia. 1. If he assents to the bill, that assent makes good law of the part relative to the Patomac; and the part for holding the next session at Philadelphia is good, either as an ordinance, or a vote of the two houses, containing a complete declaration of their will in a case where it is competent to the object; so that they must go to Philadelphia in that case. 2. If he dissents from the bill it annuls the part relative to the Patomac; but as to the clause for adjourning to Philadelphia, his dissent being as inefficient as his assent, it remains a good ordinance or vote, of the two houses for going thither, and consequently they must go in this case also. 3. If the President withholds his will out of the bill altogether, by a ten days' silence, then the part relative to the Potomac becomes a good law without his will, and that relative to Philadelphia is good also, either as a law, or an ordinance, or a vote of the two houses; and consequently in this case also they go to Philadelphia.

IX.—Opinion respecting the expenses and salaries of foreign Ministers.

July 17, 1790.

The bill on the intercourse with foreign nations restrains the President from allowing to Ministers Plenipotentiary, or to Congress, more than $9,000, and $4,500 for their "personal services, and other expenses." This definition of the objects for which the allowance is provided appearing vague, the Secretary of State thought it his duty to confer with the gentlemen heretofore employed as ministers in Europe, to obtain from them, in aid of his own information, an enumeration of the expenses incident to these offices, and their opinion which of them would be included within the fixed salary, and which would be entitled to be charged separately. He, therefore, asked a conference with the Vice-President, who was acquainted with the residences of London and the Hague, and the Chief Justice, who was acquainted with that of Madrid, which took place yesterday.

The Vice-President, Chief Justice, and Secretary of State, concurred in the opinion that the salaries named by the act are much below those of the same grade at the courts of Europe, and less than the public good requires they should be. Consequently, that the expenses not included within the definition of the law, should be allowed as an additional charge.

1. Couriers, Gazettes, Translating necessary papers, Printing necessary papers, Aids to poor Americans.—All three agreed that these ought to be allowed as additional charges, not included within the meaning of the phrase, "his personal services, and other expenses."

2. Postage, Stationary, Court-fees.—One of the gentlemen being of opinion that the phrase "personal services, and other expenses," was meant to comprehend all the ordinary expenses of the office, considered this second class of expenses as ordinary, and therefore included in the fixed salary. The first class before mentioned, he had viewed as extraordinary. The other two gentlemen were of opinion this second class was also out of the definition, and might be allowed in addition to the salary. One of them, particularly, considered the phrase as meaning "personal services and personal expenses," that is, expenses for his personal accommodation, comforts, and maintenance. This second class of expenses is not within that description.

3. Ceremonies; such as diplomatic and public dinners, galas, and illuminations. One gentleman only was of opinion these might be allowed.

The expenses of the first class may probably amount to about fifty dollars a year. Those of the second, to about four or five hundred dollars. Those of the third are so different at different courts, and so indefinite in all of them, that no general estimate can be proposed.

The Secretary of State thought it his duty to lay this information before the President, supposing it might be satisfactory to himself, as well as to the diplomatic gentlemen, to leave nothing uncertain as to their allowances; and because, too, a previous determination is in some degree necessary to the forming an estimate which may not exceed the whole sum appropriated.

The Secretary of State has also consulted on the subject of the Morocco consulship, with Mr. Barclay, who furnished him with the note, of which a copy accompanies this. Considering all circumstances, Mr. Barclay is of opinion, we had better have only a consul there, and that he should be the one now residing at Morocco, because, as secretary to the Emperor, he sees him every day, and possesses his ear. He is of opinion six hundred dollars a year might suffice for him, and that it should be proposed to him not as a salary, but as a sum in gross intended to cover his expenses, and to save the trouble of keeping accounts. That this consul should be authorized to appoint agents in the seaports, who would be sufficiently paid by the consignments of vessels. He thinks the consul at Morocco would most conveniently receive his allowance through the channel of our Chargé at Madrid, on whom, also, this consulate had better be made dependent for instructions, information, and correspondence, because of the daily intercourse between Morocco and Cadiz.

The Secretary of State, on a view of Mr. Barclay's note, very much doubts the sufficiency of the sum of six hundred dollars; he supposes a little money there may save a great deal; but he is unable to propose any specific augmentation till a view of the whole diplomatic establishments and its expenses, may furnish better grounds for it.

[Appended to this note, were the following estimate of the expenses of foreign ministers, and of the probable calls on our foreign fund, from July 1, 1790, to July 1, 1791.—Ed.]

Estimate of the Expenses of a Minister Plenipotentiary.

July 19, 1790.

Minister Plenipotentiary, his salary$9,000
His outfit, suppose it to happen once in seven years, will average1,285
His return at a quarter's salary will average321
Extras, viz.: Gazettes, Translating, Printing, Aids to poor American sailors, Couriers, and Postage, about350
His Secretary1,350
$12,396

Estimate for a Chargé des Affaires.

Chargé des Affaires, his salary$4,500
His outfit, once in seven years, equal to an annual sum of643
His return at a quarter's salary, do161
Extras, as above350
$5,654
The Agent at the Hague, his salary$1,300
Extras100
$1,400

Estimate of the Annual Expenses of the Establishment proposed.

France, a Minister Plenipotentiary$12,306
London, do. do.12,306
Madrid, a Chargé des Affaires5,654
Lisbon, do. do. do.5,654
Hague, an agent1,400
Morocco, a consul1,800
Presents to foreign ministers on taking leave, at $1,000 each, more or less, according to their favor and time. There will be five of them. If exchanged once in seven years, it will be annually715
$39,835

Estimate of the probable calls on our foreign fund from July 1, 1790, when the act for foreign intercourse passed, to July 1, 1791.

France, a Minister Plenipotentiary, his outfit$9,000
His salary, suppose it to commence August 1st8,250
Extras320
Secretary1,237.5 — $18,807.5
Chargé, suppose him to remain till November 1st. Salary1,500
Extras117
His return, a quarter's salary1,125 — 2,742
Madrid, a Chargé, his salary4,500
Extras350 — 4,850
Lisbon, a Chargé, (or Resident,) his outfit4,500
His salary, suppose it to commence January 1, 17912,250
Extras175 — 6,925
London, an Agent, suppose to commence October 1st, at $1,350 salary1,012.5
Extras, (at $100 a year)75 — 1,087.5
Hague, an Agent1,400
Morocco, Consul1,800 — 3,200
Presents to foreign Ministers. The dye about500
Two medals and chains2,000 — 2,500
$40,112

X.—Opinion in regard to the continuance of the monopoly of the commerce of the Creek nation, enjoyed by Col. McGillivray:

July 29th, 1790.

Colonel McGillivray, with a company of British merchants, having hitherto enjoyed a monopoly of the commerce of the Creek nation, with a right of importing their goods duty free, and considering these privileges as the principal sources of his power over that nation, is unwilling to enter into treaty with us, unless they can be continued to him. And the question is how this may be done consistently with our laws, and so as to avoid just complaints from those of our citizens who would wish to participate of the trade?

Our citizens, at this time, are not permitted to trade in that nation. The nation has a right to give us their peace, and to withhold their commerce, to place it under whatever monopolies or regulations they please. If they insist that only Colonel McGillivray and his company shall be permitted to trade among them, we have no right to say the contrary. We shall even gain some advantage in substituting citizens of the United States instead of British subjects, as associates of Colonel McGillivray, and excluding both British and Spaniards from the country.

Suppose, then, it be expressly stipulated by treaty, that no person be permitted to trade in the Creek country, without a license from the President, that but a fixed number shall be permitted to trade there at all, and that the goods imported for and sent to the Creek nation, shall be duty free. It may further be either expressed that the person licensed shall be approved by the leader or leaders of the nation, or without this, it may be understood between the President and McGillivray that the stipulated number of licenses shall be sent to him blank, to fill up. A treaty made by the President, with the concurrence of two-thirds of the Senate, is a law of the land, and a law of superior order, because it not only repeals past laws, but cannot itself be repealed by future ones.[24] The treaty, then, will legally control the duty acts, and the acts for licensing traders, in this particular instance. When a citizen applies for a license, who is not of McGillivray's partnership, he will be told that but a given number could be licensed by the treaty, and that the number is full. It seems that in this way no law will be violated, and no just cause of complaint will be given; on the contrary, the treaty will have bettered our situation, though not in the full degree which might have been wished.

XI.—Opinion respecting our foreign debt.

August 26, 1790.

On consideration of the letter of our banker, of January 25th, 1790, the Secretary of the Treasury's answer to it, and the draught of powers and instructions to him, I am of opinion, as I always have been, that the purchase of our debt to France by private speculators, would have been an operation extremely injurious to our credit; and that the consequence foreseen by our banker, that the purchasers would have been obliged, in order to make good their payments, to deluge the markets of Amsterdam with American paper of all sorts, and to sell it at any price, was a probable one. And the more so, as we know that the particular individuals who were engaged in that speculation, possess no means of their own adequate to the payments they would have had to make. While we must not doubt that these motives, together with a proper regard for the credit of the United States, had real and full weight with our bankers, towards inducing them to counterwork these private speculations; yet, to ascribe their industry in this business wholly to these motives, might lead to a too great and dangerous confidence in them. It was obviously their interest to defeat all such speculations, because they tended to take out of their hands, or at least to divide with them, the profits of the great operation of transferring the French debt to Amsterdam, an object of first rate magnitude to them, and on the undivided enjoyments of which they might count, if private speculators could be baffled. It has been a contest of dexterity and cunning, in which our champions have obtained the victory. The manœuvre of opening a loan of three millions of florins, has, on the whole, been useful to the United States, and though unauthorized, I think should be confirmed. The measure proposed by the Secretary of the Treasury, of sending a superintendent of their future operations, will effectually prevent their doing the like again, and the funding laws leave no danger that such an expedient might at any future time be useful to us.

The report of the Secretary of the Treasury, and the draught of instructions, present this plan to view: First, to borrow on the best terms we can, not exceeding those limited by the law, such a sum as may answer all demands of principal or interest of the foreign debts, due, or to become due before the end of 1791. [This I think he supposes will be about three and a half millions of dollars.] Second, to consider two of the three millions of florins already borrowed by our bankers as, so far, an execution of this operation; consequently, that there will remain but about two and a half millions of dollars to be borrowed on the old terms. Third, to borrow no more as yet, towards completing the transfer of the French debt to Amsterdam, unless we can do it on more advantageous terms. Fourth, to consider the third millions of florins already borrowed by our bankers, as, so far, an execution of the powers given the President to borrow two millions of dollars, by the act of the 12th of August. The whole of this appears to me to be wise. If the third million be employed in buying up our foreign paper, on the exchange of Amsterdam, by creating a demand for that species of paper, it will excite a cupidity in the monied men to obtain more of it by new loans, and consequently enable us to borrow more and on lower terms. The saving of interest, too, on the sum so to be bought, may be applied in buying up more principal, and thereby keep this salutary operation going.

I would only take the liberty of suggesting the insertion of some such clause as the following, into the instructions: "The agents to be employed shall never open a loan for more than one million of dollars at a time, nor open a new loan till the preceding one has been filled, and expressly approved by the President of the United States." A new man, alighting on the exchange of Amsterdam, with powers to borrow twelve millions of dollars, will be immediately beset with bankers and brokers, who will pour into his ear, from the most unsuspected quarters, such informations and suspicions as may lead him exactly into their snares. So wonderfully dexterous are they in wrapping up and complicating their propositions, they will make it evident, even to a clear-headed man, (not in the habit of this business,) that two and two make five. The agent, therefore, should be guarded, even against himself, by putting it out of his power to extend the effect of any erroneous calculation beyond one million of dollars. Were he able, under a delusive calculation, to commit such a sum as twelve millions of dollars, what would be said of the government? Our bankers told me themselves that they would not choose, in the conduct of this great loan, to open for more than two or three millions of florins at a time, and certainly never for more than five. By contracting for only one million of dollars at a time, the agent will have frequent occasions of trying to better the terms. I dare say that this caution, though not expressed in the instructions, is intended by the Secretary of the Treasury to be carried into their execution. But, perhaps, it will be desirable for the President, that his sense of it also should be expressed in writing.

XII.—Opinion upon the question what the answer of the President should be in case Lord Dorchester should apply for permission to march troops through the territory of the United States, from Detroit to the Mississippi.

GEORGE WASHINGTON TO THOMAS JEFFERSON.

United States, August 27, 1790.

Provided the dispute between Great Britain and Spain should come to the decision of arms, from a variety of circumstances (individually unimportant and inconclusive, but very much the reverse when compared and combined,) there is no doubt in my mind, that New Orleans, and the Spanish posts above it on the Mississippi, will be among the first attempts of the former; and that the reduction of them will be undertaken by a combined operation from Detroit.

The consequences of having so formidable and enterprizing a people as the British on both our flanks and rear, with their navy in front, as they respect our western settlements which may be seduced thereby, as they regard the security of the Union and its commerce with the West Indies, are too obvious to need enumeration.

What then should be the answer of the Executive of the United States to Lord Dorchester, in case he should apply for permission to march troops through the territory of the said States from Detroit to the Mississippi?

What notice ought be taken of the measure, if it should be undertaken without leave, which is the most probable proceeding of the two?

The opinion of the Secretary of State is requested in writing upon the above statements.

Opinion on the questions stated in the President's note of August 27th, 1790.

August 28, 1790.

I am so deeply impressed with the magnitude of the dangers which will attend our government, if Louisiana and the Floridas be added to the British empire, that, in my opinion, we ought to make ourselves parties in the general war expected to take place, should this be the only means of preventing the calamity.

But I think we should defer this step as long as possible; because war is full of chances, which may relieve us from the necessity of interfering; and if necessary, still the later we interfere, the better we shall be prepared.

It is often indeed more easy to prevent the capture of a place, than to retake it. Should it be so in the case in question, the difference between the two operations of preventing and retaking, will not be so costly as two, three, or four years more of war.

So that I am for preserving neutrality as long, and entering into the war as late, as possible.

If this be the best course, it decides, in a good degree, what should be our conduct, if the British ask leave to march troops through our territory, or march them without leave.

It is well enough agreed, in the laws of nations, that for a neutral power to give or refuse permission to the troops of either belligerent party to pass through their territory, is no breach of neutrality, provided the same refusal or permission be extended to the other party.

If we give leave of passage then to the British troops, Spain will have no just cause of complaint against us, provided we extend the same leave to her when demanded.

If we refuse, (as indeed we have a right to do,) and the troops should pass notwithstanding, of which there can be little doubt, we shall stand committed. For either we must enter immediately into the war, or pocket an acknowledged insult in the face of the world; and one insult pocketed soon produces another.

There is indeed a middle course, which I should be inclined to prefer; that is, to avoid giving any answer. They will proceed notwithstanding, but to do this under our silence, will admit of palliation, and produce apologies, from military necessity; and will leave us free to pass it over without dishonor, or to make it a handle of quarrel hereafter, if we should have use for it as such. But, if we are obliged to give an answer, I think the occasion not such as should induce us to hazard that answer which might commit us to the war at so early a stage of it; and therefore that the passage should be permitted.

If they should pass without having asked leave, I should be for expressing our dissatisfaction to the British court, and keeping alive an altercation on the subject, till events should decide whether it is most expedient to accept their apologies, or profit of the aggression as a cause of war.

XIII.—Opinion on the question whether it will be expedient to notify to Lord Dorchester the real object of the expedition preparing by Governor St. Clair.

August 29, 1790.

On considering more fully the question whether it will be expedient to notify to Lord Dorchester the real object of the expedition preparing by Governor St. Clair, I still think it will not be expedient. For, if the notification be early, he will get the Indians out of the way, and defeat our object. If it be so late as not to leave him time to withdraw them before our stroke be struck, it will then be so late also as not to leave him time to withdraw any secret aids he may have sent them. And the notification will betray to him that he may go on without fear in his expedition against the Spaniards, and for which he may yet have sufficient time after our expedition is over. On the other hand, if he should suspect our preparations are to prevent his passing our territory, these suspicions may induce him to decline his expedition, as, even should he think he could either force or steal a passage, he would not divide his troops, leaving (as he would suppose) an enemy between them able to take those he should leave, and cut off the return of those he should carry. These suspicions, too, would mislead both him and the Indians, and so enable us to take the latter more completely by surprise, and prevent him from sending secret aid to those whom he would not suppose the objects of the enterprise; thus effecting a double purpose of preventing his enterprise, and securing our own. Might it not even be expedient, with a view to deter his enterprise, to instruct Governor St. Clair either to continue his pursuit of the Indians till the season be too far advanced for Lord Dorchester to move; or, on disbanding his militia, to give them general orders (which might reach the ears of Lord Dorchester) to be ready to assemble at a moment's warning, though no such assembly be really intended?

Always taking care neither to say nor do, against their passage, what might directly commit either our peace or honor.

XIV.—Opinion on proceedings to be had under the Residence act.

November 29, 1790.

A territory not exceeding ten miles square (or, I presume, one hundred square miles in any form) to be located by metes and bounds.

Three commissioners to be appointed. I suppose them not entitled to any salary.

[If they live near the place they may, in some instances, be influenced by self interest, and partialities; but they will push the work with zeal. If they are from a distance, and northwardly, they will be more impartial, but may affect delays.]

The commissioners to purchase or accept "such quantity of land on the east side of the river as the President shall deem proper for the United States," viz., for the federal Capitol, the offices, the President's house and gardens, the town house, market house, public walks and hospital. For the President's house, offices and gardens, I should think two squares should be consolidated. For the Capitol and offices, one square. For the market, one square. For the public walks, nine squares consolidated.

The expression "such quantity of land as the President shall deem proper for the United States," is vague. It may therefore be extended to the acceptance or purchase of land enough for the town; and I have no doubt it is the wish, and perhaps expectation. In that case, it will be to be laid out in lots and streets. I should propose these to be at right angles, as in Philadelphia, and that no street be narrower than one hundred feet, with foot ways of fifteen feet. Where a street is long and level, it might be one hundred and twenty feet wide. I should prefer squares of at least two hundred yards every way, which will be about eight acres each.

The commissioners should have some taste in architecture, because they may have to decide between different plans.

They will, however, be subject to the President's direction in every point.

When the President shall have made up his mind as to the spot for the town, would there be any impropriety in his saying to the neighboring land holders, "I will fix the town here if you will join and purchase and give the lands." They may well afford it by the increase of value it will give to their own circumjacent lands.

The lots to be sold out in breadths of fifty feet; their depths to extend to the diagonal of the square.

I doubt much whether the obligation to build the houses at a given distance from the street, contributes to its beauty. It produces a disgusting monotony; all persons make this complaint against Philadelphia. The contrary practice varies the appearance, and is much more convenient to the inhabitants.

In Paris it is forbidden to build a house beyond a given height; and it is admitted to be a good restriction. It keeps down the price of ground, keeps the houses low and convenient, and the streets light and airy. Fires are much more manageable where houses are low.

XV.—Report by the Secretary of State to the President of the United States on the Report of the Secretary of the Government north-west of the Ohio.

December 14, 1790.

The Secretary of State having had under his consideration the report made by the Secretary of the Government north-west of the Ohio, of his proceedings for carrying into effect the resolution of Congress of August 29th, 1788, respecting the lands of the inhabitants of Port Vincennes, makes the following report thereon to the President of the United States:

The resolution of Congress of August 29th, 1788, had confirmed in their possessions and titles the French and Canadian inhabitants and other settlers at that post, who, in or before the year 1783, had settled there, and had professed themselves citizens of the United States or any of them, and had made a donation to every head of a family, of the same description of four hundred acres of land, part of a square to be laid off adjoining the improvements at the post.

The Secretary of the north-western government, in the absence of the Governor, has carried this resolution into effect, as to all the claims to which he thought it could be clearly applied: there remain, however, the following description of cases, on which he asks further instructions:

1. Certain cases within the letter of the resolution, but rendered doubtful by the condition annexed, to the grants of lands in the Illinois country. The cases of these claimants, fifteen in number, are specially stated in the papers hereto annexed, number 2, and the lands are laid off for them but remain ungranted till further orders.

2. Certain persons who, by removals from one part of the territory to another, are not of the letter of the resolutions, but within its equity, as they conceive.

3. Certain heads of families, who became such soon after the year 1783, who petition for a participation of the donation, and urge extraordinary militia service to which they are exposed.

4. One hundred and fifty acres of land within the village granted under the former government of that country, to the Piankeshaw Indians, and on their removal sold by them in parcels to individual inhabitants, who in some instances have highly improved them both before and since the year 1783.

5. Lands granted both before and after 1783, by authority from the commandant of the post, who, according to the usage under the French and British governments, thinking himself authorized to grant lands, delegated that authority to a court of civil and criminal jurisdiction, whose grants before 1783, amount to twenty-six thousand acres, and between that and 1787, (when the practice was stopped,) to twenty-two thousand acres. They are generally in parcels from four hundred acres down to the size of house lots; and some of them under considerable improvement. Some of the tenants urge that they were induced by the court itself to come and settle these lands under assurance of their authority to grant them, and that a loss of the lands and improvements will involve them in ruin. Besides these small grants, there are some much larger, sometimes of many leagues square, which a sense of their impropriety has prevented the grantees from bringing forward. Many pretended grants, too, of this class are believed to be forgeries, and are, therefore, to be guarded against.

6. Two thousand four hundred acres of good land, and three thousand acres of sunken land, held under the French, British, and American governments, as commons for the use of the inhabitants of the village generally, and for thirty years past kept under inclosure for these purposes.

The legislature alone being competent to authorize the grant of lands in cases as yet unprovided for by the laws. The Secretary of State is of opinion that the report of the Secretary of the north-western government, with the papers therein referred to, should be laid before Congress for their determination. Authentic copies of them are herewith enclosed to the President of the United States.

XVI.—Opinion on certain proceedings of the Executive in the North-western Territory.

December 14, 1790.

The Secretary of State having had under his consideration, the journal of the proceedings of the Executive in the North-western Territory, thinks it his duty to extract therefrom, for the notice of the President of the United States, the articles of April 25th, June 6th, 28th, and 29th. Some of which are hereto annexed.

Conceiving that the regulations, purported in these articles, are beyond the competence of the executive of the said government, that they amount, in fact, to laws, and as such, could only flow from its regular legislature. That it is the duty of the general government to guard its subordinate members from the encroachments of each other, even when they are made through error or inadvertence, and to cover its citizens from the exercise of powers not authorized by the law. The Secretary of State is of opinion that the said articles be laid before the Attorney General for consideration, and if he finds them to be against law, that his opinion be communicated to the Governor of the North-western Territory, for his future conduct.

[The following are the extracts alluded to above.]

Extracts from the Journal of the Proceedings in the Executive Department of government in the Territory of the United States, north-west of the Ohio, reported to the President of the United States, by Winthrop Sargent, Secretary.

April 25, 1790.—The governor was pleased to issue the following order, viz.: All the inhabitants are forbidden to entertain any strangers, white, Indian, or negro, let them come from whatsoever place, without acquainting the officer commanding the troops, of the names of such strangers, and the place from whence they came. And every stranger arriving at Cahokia, is ordered to present himself to said officer within two hours after his arrival, on pain of imprisonment.

June 6, 1790.—The Governor at Kaskaskias, was pleased to make the following proclamation:

The practice of selling spirituous liquors to the Indians in the villages being attended with very ill consequences, it is expressly prohibited; and all and every person transgressing this order, will be liable to be tried and fined at the pleasure of the court of quarter sessions of the peace. And as it may be necessary that spirituous liquors should be vended in small quantities to white travellers and others; to prevent all danger of imposition and extortion, no person whosoever shall sell in any of the villages or their environs, spirituous liquors to any white person, traveller, or inhabitant, in any quantity less than one quart at one time, without obtaining a license from the governor, which license shall not be granted but upon the recommendation of the Justices of the Peace in their court of quarter sessions, and on his or their giving security in the sum of two hundred dollars, to abide by all the regulations made by law respecting retailers of spirituous liquors, and the orders of the said court of quarter sessions in the premises in the meantime. And for every offence, he or they shall be liable to prosecution by indictment and fine at the pleasure of the court, and to the forfeiture of their bonds.

Nor shall any person undertake or exercise the calling or occupation of an Inn-holder or Tavern-keeper, without obtaining in the same manner, and under the same restrictions and penalties, a license for so doing.

Proclamation.—Whereas, his Excellency, Arthur St. Clair, Esq., governor and commander-in-chief of this Territory, did by proclamation given at the Kaskaskias the 10th instant, strictly prohibit all persons, not citizens of the United States or the Territory, from hunting or killing any kind of game within the same, either for the flesh or skins, upon penalty not only of forfeiting the flesh and skins which they might acquire, but also prosecution and punishment as trespassers.

And it appearing to me to be particularly essential to the interests of this country, that an observance of the order and prohibition should be obtained, I do hereby call upon all civil and military officers, who now are, or hereafter may be appointed, to use their best endeavors for detecting and bringing to justice every person who shall violate the same. And, whereas, it appears to me to be expedient that government should receive information of all characters, foreigners and others, coming into the Territory, I do hereby order and direct that any person arriving at this, or any of the military posts of the United States within the same, should present himself to the commanding officer of the troops in two hours next after his arrival; and the inhabitants are hereby forbidden to entertain such characters, whether whites, Indians, or negroes, without immediate information thereof to the said commanding officers.

Given under my hand and seal at the town of Post Vincennes, and county of Knox, this 28th day of June, A. D. 1790, and of the Independence of the United States, the fourteenth.

(Signed,) Winthrop Sargent.

June 29, 1790.—It is to be considered as a standing order hereafter, that no person enrolled in the militia shall leave the village or stations, for a longer absence than twenty-four hours, without informing him (Mayor Hamtramck) or the commanding officer for the time being, of their intention. And all intelligence or discoveries of Indians, to be immediately reported.

(Signed,) Winthrop Sargent.

XVII.—Report on certain letters from the President to Mr. Gouverneur Morris, and from Mr. Morris to the President, relative to our difficulties with England—1790.

December 15, 1790.

The Secretary of State having had under consideration the two letters of October 13th, 1789, from the President of the United States, to Mr. Gouverneur Morris; and those of Mr. Morris to the President, of January 22d, April 7th, 13th, May 1st, 29th, July 3d, August 16th, and September 18th, referred to him by the President, makes the following report thereon:

The President's letter of January 22d, authorized Mr. Morris to enter into conference with the British ministers in order to discover their sentiments on the following subjects:

1. Their retention of the western posts contrary to the treaty of peace.

2. Indemnification for the negroes carried off against the stipulations of the same treaty.

3. A treaty for the regulation of the commerce between the two countries.

4. The exchange of a minister.

The letters of Mr. Morris before mentioned, state the communications, oral and written, which have passed between him and the ministers; and from these the Secretary of State draws the following inferences:

1. That the British court is decided not to surrender the posts in any event; and that they will urge as a pretext that though our courts of justice are now open to British subjects, they were so long shut after the peace as to have defeated irremedially the recovery of debts in many cases. They suggest, indeed, the idea of an indemnification on our part. But probably were we disposed to admit their right to indemnification, they would take care to set it so high as to insure a disagreement.

2. That as to indemnification for the negroes, their measures for concealing them were in the first instance so efficacious, as to reduce our demand for them, so far as we can support it by direct proof, to be very small indeed. Its smallness seems to have kept it out of discussion. Were other difficulties removed, they would probably make none of this article.

3. That they equivocate on every proposal of a treaty of commerce, and authorize in their communications with Mr. Morris the same conclusions which have been drawn from those they had had from time to time with Mr. Adams, and those through Mayor Beckwith; to wit, that they do not mean to submit their present advantages in commerce to the risk which might attend a discussion of them, whereon some reciprocity could not fail to be demanded. Unless, indeed, we would agree to make it a treaty of alliance as well as commerce, so as to undermine our obligations with France. This method of stripping that rival nation of its alliances, they tried successfully with Holland, endeavored at it with Spain, and have plainly and repeatedly suggested to us. For this they would probably relax some of the rigors they exercise against our commerce.

4. That as to a minister, their Secretary for foreign affairs is disposed to exchange one, but meets with opposition in his cabinet, so as to render the issue uncertain.

From the whole of which, the Secretary of State is of opinion that Mr. Morris' letters remove any doubts which might have been entertained as to the intentions and dispositions of the British cabinet.

That it would be dishonorable to the United States, useless and even injurious, to renew the propositions for a treaty of commerce, or for the exchange of a minister; and that these subjects should now remain dormant, till they shall be brought forward earnestly by them.

That the demands of the posts, and of indemnification for the negroes, should not be again made till we are in readiness to do ourselves the justice which may be refused.

That Mr. Morris should be informed that he has fulfilled the object of his agency to the satisfaction of the President, inasmuch as he has enabled him to judge of the real views of the British cabinet, and that it is his pleasure that the matters committed to him be left in the situation in which the letter shall find them.

That a proper compensation be given to Mr. Morris for his services herein, which having been begun on the 22d of January, and ended the 18th of September, comprehend a space of near eight months; that the allowance to an agent may be properly fixed anywhere between the half and the whole of what is allowed to a Chargé d'affaires; which, according to the establishment of the United States at the time of this appointment, was at the rate of $3,000 a year; consequently, that such a sum of between one and two thousand dollars be allowed him as the President shall deem proper, on a view of the interference which this agency may have had with Mr. Morris' private pursuits in Europe.

XVIII.—Report relative to the Mediterranean trade.

December 28, 1790.

The Secretary of State, to whom was referred by the House of Representatives so much of the speech of the President of the United States to both Houses of Congress, as relates to the trade of the United States in the Mediterranean, with instructions to report thereupon to the House, has had the same under consideration, and thereupon makes the following report:

The loss of the records of the custom houses in several of the States, which took place about the commencement and during the course of the late war, has deprived us of official information, as to the extent of our commerce and navigation in the Mediterranean sea. According to the best which may be obtained from other sources meriting respect, it may be concluded that about one-sixth of the wheat and flour exported from the United States, and about one-fourth in value of their dried and pickled fish, and some rice, found their best markets in the Mediterranean ports; that these articles constituted the principal part of what we sent into that sea; that that commerce loaded outwards from eighty to one hundred ships, annually, of twenty thousand tons, navigated by about twelve hundred seamen. It was abandoned early in the war. And after the peace which ensued, it was obvious to our merchants, that their adventures into that sea would be exposed to the depredations of the piratical States on the coast of Barbary. Congress, too, was very early attentive to this danger, and by a commission of the 12th of May, 1784, authorized certain persons, named ministers plenipotentiary for that purpose, to conclude treaties of peace and amity with the Barbary powers. And it being afterwards found more expedient that the negotiations should be carried on at the residences of those powers. Congress, by a farther commission, bearing date the 11th of March, 1785, empowered the same ministers plenipotentiary to appoint agents to repair to the said powers at their proper residences, and there to negotiate such treaties. The whole expenses were limited to eighty thousand dollars. Agents were accordingly sent to Morocco and Algiers.

Before the appointment of the one to Morocco, it was known that a cruiser of that State had taken a vessel of the United States; and that the emperor, on the friendly interposition of the court of Madrid had liberated the crew, and made restitution of the vessel and cargo, as far as their condition admitted. This was a happy presage of the liberal treaty he afterwards concluded with our agent, still under the friendly mediation of Spain, and at an expense of between nine and ten thousand dollars only. On his death, which has taken place not long since, it becomes necessary, according to their usage, to obtain immediately a recognition of the treaty by his successor, and consequently, to make provision for the expenses which may attend it. The amount of the former furnishes one ground of estimate; but the character and dispositions of the successor, which are unknown here, may influence it materially. The friendship of this power is important, because our Atlantic as well as Mediterranean trade is open to his annoyance, and because we carry on a useful commerce with his nation.

The Algerines had also taken two vessels of the United States, with twenty-one persons on board, whom they retained as slaves. On the arrival of the agent sent to that regency, the dey refused utterly to treat of peace on any terms, and demanded 59,496 dollars for the ransom of our captives. This mission therefore proved ineffectual.

While these negotiations were on foot at Morocco and Algiers, an ambassador from Tripoli arrived in London. The ministers plenipotentiary of the United States met him in person. He demanded for the peace of that State, thirty thousand guineas; and undertook to engage that of Tunis for a like sum. These demands were beyond the limits of Congress, and of reason, and nothing was done. Nor was it of importance, as, Algiers remaining hostile, the peace of Tunis and Tripoli was of no value, and when that of the former should be obtained, theirs would soon follow.

Our navigation, then, into the Mediterranean, has not been resumed at all since the peace. The sole obstacle has been the unprovoked war of Algiers; and the sole remedy must be to bring that war to an end, or to palliate its effects. Its effects may, perhaps, be palliated by insuring our ships and cargoes destined for that sea, and by forming a convention with the regency, for the ransom of our seamen, according to a fixed tariff. That tariff will, probably, be high, and the rate of insurance so settled, in the long run, as to pay for the vessels and cargoes captured, and something more. What proportion will be captured nothing but experience can determine. Our commerce differs from that of most of the nations with whom the predatory States are in habits of war. Theirs is spread all over the face of the Mediterranean, and therefore must be sought for all over its face. Ours must all enter at a strait only five leagues wide; so that their cruisers, taking a safe and commanding position near the strait's mouth, may very effectually inspect whatever enters it. So safe a station, with a certainty of receiving for their prisoners a good and stated price, may tempt their cupidity to seek our vessels particularly. Nor is it certain that our seamen could be induced to engage in that navigation, though with the security of Algerine faith that they would be liberated on the payment of a fixed sum. The temporary deprivation of liberty, perhaps chains, the danger of the pest, the perils of the engagement preceding their surrender, and possible delays of the ransom, might turn elsewhere the choice of men, to whom all the rest of the world is open. In every case, these would be embarrassments which would enter into the merchants' estimate, and endanger the preference of foreign bottoms not exposed to them. And upon the whole, this expedient does not fulfil our wish of a complete re-establishment of our commerce in that sea.

A second plan might be to obtain peace by purchasing it. For this we have the example of rich and powerful nations, in this instance counting their interest more than their honor. If, conforming to their example, we determine to purchase a peace, it is proper to inquire what a peace may cost. This being merely a matter of conjecture, we can only compare together such opinions as have been obtained, and from them form one for ourselves.

Mr. Wolf, a respectable Irishman, who had resided very long at Algiers, thought a peace might be obtained from that regency, and the redemption of our captives included, for sixty or seventy thousand pounds sterling.[25] His character and opinion both merited respect. Yet his estimate being the lowest of all who have hazarded an opinion on this subject, one is apt to fear his judgment might have been biassed by the hope he entertained that the United States would charge him with this negotiation.

Captain O'Brien, one of our captives, who had been in Algiers four years and a half at the date of his last letter, a very sensible man, and to whom we are indebted for very minute information, supposes that peace alone, might be bought for that sum, that is to say, for three hundred and twenty-two thousand dollars.

The Tripoline ambassador, before mentioned, thought that peace could be made with the three smaller powers for ninety thousand pounds sterling, to which were to be added the expenses of the mission and other incidental expenses. But he could not answer for Algiers; they would demand more. The ministers plenipotentiary, who conferred with him, had judged that as much must be paid to Algiers as to the other three powers together; and consequently, that according to this measure, the peace of Algiers would cost from an hundred to an hundred and twenty-five thousand pounds sterling; or from four hundred and sixty to five hundred and seventy-five thousand dollars.

The latter sum seemed to meet the ideas of the Count de Vergennes, who, from a very long residence at Constantinople, was a good judge of what related to the porte, or its dependencies.

A person whose name is not free to be mentioned here, a native of the continent of Europe, who had long lived, and still lives at Algiers, with whom the minister plenipotentiary of the United States, at Paris, had many and long conversations, and found his information full, clear, and consistent, was of opinion the peace of Algiers could not be bought by the United States for less than one million of dollars. And when that is paid, all is not done. On the death of a dey, (and the present one is between seventy and eighty years of age,) respectable presents must be made to the successor, that he may recognize the treaty and very often he takes the liberty of altering it. When a consul is sent or changed, new presents must be made. If these events leave a considerable interval, occasion must be made of renewing presents. And with all this they must see that we are in condition to chastise an infraction of the treaty; consequently some marine force must be exhibited in their harbor from time to time.

The late peace of Spain with Algiers is said to have cost from three to five millions of dollars. Having received the money, they take the vessels of that nation on the most groundless pretexts; counting, that the same force which bound Spain to so hard a treaty, may break it with impunity.

Their treaty with France, which had expired, was about two years ago renewed for fifty years. The sum given at the time of renewal is not known. But presents are to be repeated every ten years, and a tribute of one hundred thousand dollars to be annually paid. Yet perceiving that France, embarrassed at home with her domestic affairs, was less capable of acting abroad, they took six vessels of that nation in the course of the last year, and retain the captives, forty-four in number, in slavery.

It is the opinion of Captain O'Brien, that those nations are best treated who pay a smaller sum in the beginning, and an annual tribute afterwards. In this way he informs us that the Dutch, Danes, Swedes, and Venetians pay to Algiers, from twenty-four to thirty thousand dollars a year, each; the two first in naval stores, the two last chiefly in money. It is supposed, that the peace of the Barbary States costs Great Britain about sixty thousand guineas, or two hundred and eighty thousand dollars a year. But it must be noted that these facts cannot be authentically advanced; as from a principle of self-condemnation, the governments keep them from the public eye as much as possible.

Nor must we omit finally to recollect, that the Algerines, attentive to reserve always a sufficient aliment for their piracies, will never extend their peace beyond certain limits, and consequently, that we may find ourselves in the case of those nations to whom they refuse peace at any price.

The third expedient is to repel force by force. Several statements are hereto annexed of the naval force of Algiers, taken in 1785, 1786, 1787, 1788, and 1789, differing in small degrees, but concurring in the main. From these it results that they have usually had about nine chebecs, from ten to thirty-six guns, and four galleys, which have been reduced by losses to six chebecs and four galleys. They have a forty-gun frigate on the stocks, and expect two cruisers from the grand seignior. The character of their vessels is, that they are sharp built and swift, but so light as not to stand the broadside of a good frigate. Their guns are of different calibres, unskilfully pointed and worked. The vessels illy manœuvred, but crowded with men, one third Turks, the rest Moors, of determined bravery, and resting their sole hopes on boarding. But two of these vessels belong to the government, the rest being private property. If they come out of the harbor together, they separate immediately in quest of prey; and it is said they were never known to act together in any instance. Nor do they come out at all, when they know there are vessels cruising for them. They perform three cruises a year, between the middle of April and November, when they unrig and lay up for the winter. When not confined within the straits, they rove northwardly to the channel, and westwardly to the westward islands.

They are at peace at present, with France, Spain, England, Venice, the United Netherlands, Sweden, and Denmark; and at war with Russia, Austria, Portugal, Naples, Sardinia, Genoa, and Malta.

Should the United States propose to vindicate their commerce by arms, they would, perhaps, think it prudent to possess a force equal to the whole of that which may be opposed to them. What that equal force would be, will belong to another department to say.

At the same time it might never be necessary to draw out the whole at once, nor perhaps any proportion of it, but for a small part of the year; as it is reasonable to presume that a concert of operation might be arranged among the powers at war with the Barbary States, so as that, each performing a tour of given duration, and in given order, a constant cruise during the eight temperate months of every year, may be kept up before the harbor of Algiers, till the object of such operations be completely obtained. Portugal has singly, for several years past, kept up such a cruise before the straits of Gibraltar, and by that means has confined the Algerines closely within. But two of their vessels have been out of the straits in the last five years. Should Portugal effect a peace with them, as has been apprehended for some time, the Atlantic will immediately become the principal scene of their piracies; their peace with Spain having reduced the profits of their Mediterranean cruises below the expenses of equipment.

Upon the whole, it rests with Congress to decide between war, tribute, and ransom, as the means of re-establishing our Mediterranean commerce. If war, they will consider how far our own resources shall be called forth, and how far they will enable the Executive to engage, in the forms of the constitution, the co-operation of other powers. If tribute or ransom, it will rest with them to limit and provide the amount; and with the Executive, observing the same constitutional forms, to take arrangements for employing it to the best advantage.

[No. 1.]—Extract of a letter from Richard O'Brien, one of the American captives at Algiers, to Congress. Algiers, December 26, 1789.

"It was the opinion of Mr. John Wolf, who resided many years in this city, that the United States of America may obtain a peace for one hundred years with this regency, for the sum of sixty or seventy thousand pounds sterling, and the redemption of fifteen Americans included. Mr. Wolf was the British chargé des affaires in Algiers, and was much the friend of America, but he is no more.

"I have now been four years and a half in captivity, and I have much reason to think, that America may obtain a peace with Algiers for the sum of sixty-five or seventy thousand pounds, considering the present state of Algiers. That this regency would find it their interest to take two or three American cruisers in part payment for making a peace; and also would take masts, yards, plank, scantling, tar, pitch, and turpentine, and Philadelphia iron, as a part payment; all to be regulated at a certain fixed price by treaty."

No. 2.—Extract of a letter from the Honorable John Adams, Minister Plenipotentiary for the United States at London, to the Honorable John Jay, Secretary for Foreign Affairs. London, February 22, 1786

"On Monday evening another conference was held with the Tripolitan ambassador. When he began to explain himself concerning his demands, he said they would be different according to the duration of the treaty. If that were perpetual, they would be greater; if for a term of years, less; his advice was that it should be perpetual. Once signed by the bashaw, dey, and other officers, it would be indissoluble and binding forever upon all their successors. But if a temporary treaty were made, it might be difficult and expensive to revive it. For a perpetual treaty, such as they now had with Spain, a sum of thirty thousand guineas must be paid upon the delivery of the articles signed by the dey and other officers. If it were agreed to, he would send his secretary by land to Marseilles, and from thence, by water, to Tripoli, who should bring it back by the same route, signed by the dey, &c. He had proposed so small a sum in consideration of the circumstances, but declared it was not half of what had been lately paid them by Spain. If we chose to treat upon a different plan, he would make a treaty perpetual upon the payment of twelve thousand five hundred guineas for the first year, and three thousand guineas annually, until the thirty thousand guineas were paid. It was observed that these were large sums, and vastly beyond expectation; but his excellency answered, that they never made a treaty for less. Upon the arrival of a prize, the dey and other officers are entitled, by their laws, to large shares, by which they might make greater profits than those sums amounted to, and they never would give up this advantage for less.

"He was told, that although there was full power to treat, the American ministers were limited to a much smaller sum; so that it would be impossible to do anything until we wrote to Congress and know their pleasure. Colonel Smith was present at this, as he had been at the last conference, and agreed to go to Paris, to communicate all to Mr. Jefferson, and persuade him to come here, that we may join in farther conferences, and transmit the result to Congress.

"The ambassador believed that Tunis and Morocco would treat upon the same terms, but could not answer for Algiers. They would demand more. When Mr. Jefferson arrives, we shall insist upon knowing the ultimatum, and transmit it to Congress.

"Congress will perceive that one hundred and twenty thousand guineas will be indispensable to conclude with the four powers at this rate, besides a present to the ambassadors, and their incidental charges. Besides this, a present of five hundred guineas is made, upon the arrival of a consul in each State. No man wishes more fervently that the expense could be less, but the fact cannot be altered, and the truth ought not to be concealed.

"It may be reasonably concluded that this great affair cannot be finished for much less than two hundred thousand pounds sterling."

No. 3.—Extract of a Letter from the Honorable Thomas Jefferson, Minister Plenipotentiary for the United States at Paris, to the Honorable John Jay, Secretary for foreign Affairs. Paris, May 23, 1786.

"Letters received both from Madrid and Algiers, while I was in London, having suggested that treaties with the States of Barbary would be much facilitated by a previous one with the Ottoman Porte, it was agreed between Mr. Adams and myself, that on my return I should consult, on this subject, the Count De Vergennes, whose long residence at Constantinople rendered him the best judge of its expediency. Various circumstances have put it out of my power to consult him till to-day. I stated to him the difficulties we were likely to meet with at Algiers, and asked his opinion, what would be the probable expense of a diplomatic mission to Constantinople, and what its effects at Algiers. He said that the expense would be very great; for that presents must be made at that court, and every one would be gaping after them; and that it would not procure us a peace at Algiers one penny the cheaper. He observed that the Barbary States acknowledged a sort of vassalage to the Porte, and availed themselves of that relation when anything was to be gained by it; but that whenever it subjected them to the demand from the Porte, they totally disregarded it; that money was the sole agent. He cited the present example of Spain, which, though having a treaty with the Porte, would probably be obliged to buy a peace at Algiers, at the expense of upwards of six millions of livres. I told him we had calculated, from the demands and information of the Tripoline ambassador at London, that to make peace with the four Barbary States would cost us between two and three hundred thousand guineas, if bought with money.

"The sum did not seem to exceed his expectations. I mentioned to him, that considering the uncertainty of a peace, when bought, perhaps Congress might think it more eligible to establish a cruise of frigates in the Mediterranean, and even blockade Algiers. He supposed it would require ten vessels, great and small. I observed to him that M. De Massiac had formerly done it with five; he said it was true, but that vessels of relief would be necessary. I hinted to him that I thought the English capable of administering aid to the Algerines. He seemed to think it impossible, on account of the scandal it would bring on them. I asked him what had occasioned the blockade by M. De Massiac, he said an infraction of their treaty by the Algerines."

No. 4.—Extract of a Letter from Richard O'Brien to the Hon. Thomas Jefferson. Algiers, April 28, 1787.

"It seems the Neapolitan ambassador had obtained a truce with this regency for three months; and the ambassador wrote his court of his success; but about the 1st of April, when the cruisers were fitting out, the ambassador went to the dey, and hoped the dey would give the necessary orders to the captains of his cruisers not to take the Neapolitan vessels. The dey said the meaning of the truce was not to take the Neapolitan cruisers, but if his chebecks should meet the Neapolitan merchantmen to take them and send them for Algiers. The ambassador said, the Neapolitan cruisers would not want a pass on those terms. The dey said, if his chebecks should meet either men of war or merchant vessels, to take them; so gave orders accordingly. The Algerines sailed the 9th instant, and are gone, I believe, off the coast of Italy. This shows there is very little confidence to be put in the royal word. No principle of national honor will bind those people; and I believe not much confidence to be put in them in treaties. The Algerines are not inclinable to a peace with the Neapolitans. I hear of no negotiation. When the two frigates arrive with the money for the ransom of the slaves, I believe they are done with the Neapolitans."

Extract of a Letter from Richard O'Brien to the Hon. Thomas Jefferson. Algiers, June 13, 1789.

"The cruisers had orders to take the Danes; but I believe Denmark, suspecting that on account of their alliance with Russia, that the grand seignior would order the regency of Algiers to make war against the Danes; accordingly, the Danes have evacuated the Mediterranean seas, until the affairs of Europe are more settled. The Danish ship with the tribute is shortly expected. She is worth fifty thousand dollars; so that the Algerines will not make known publicly their intention of breaking with Denmark, until this ship arrives with the tribute. I am very sure that Mr. Robindar is very sensible of the intention of those sea-robbers, the terror and scourge of the Christians. The reason the Algerines have not committed any depredations on the English, is, that the cruisers have not met with any of them richly loaded; for if they had met a rich ship from London for Livorna, they would certainly have brought her into port, and said that such ship was loaded for the enemy of Algiers at Livorna; but if that was not a sufficient excuse, hove overboard or clipt the pass.

"Consul Logie has been treated with much contempt by the Algerine ministry; and you may depend, that when the dey goes to his long home, that his successor will not renew the peace with Great Britain, without a large sum of money is paid, and very valuable presents. This I well know; the whole ministry says, that the peace with the English is very old, and that the English must conform to the custom of other nations, in giving the government here money and presents. In fact, the Algerines are trying their endeavors to find some nation to break the peace with them. I think, if they had treated the English in such a manner as they have the French, that the English would resent it."

Extract of a Letter from Richard O'Brien to the Hon. Thomas Jefferson. Algiers, June 13, 1789.

"What dependence or faith could be given to a peace with the Algerines, considering their present haughtiness, and with what contempt and derision do they treat all nations; so that, in my opinion, until the Algerines more strictly adhere to the treaties they have already made, it would be impolitic in any nation to try to make a peace here; for I see they take more from the nations they are at peace with, than from those they are at declared war with. The Portuguese, I hope, will keep the Algerines inside the straits; for only consider the bad consequence of the Algerines going into the mar Grandi. Should the Portuguese make a sudden peace with this regency, the Algerines would immediately go out of the straits, and of course, take many an American."

No. 5.—Extract of a Letter from the Hon. John Adams, Esq., Minister Plenipotentiary of the United States at the Court of Great Britain, to the Hon. John Jay, Esq., Secretary for Foreign Affairs. February 16, 1786.

"The American commerce can be protected from these Africans only by negotiation, or by war. If presents should be exacted from us, as ample as those which are given by England, the expense may amount to sixty thousand pounds sterling a year, an enormous sum to be sure; but infinitely less than the expense of fighting. Two frigates of 30 guns each would cost as much to fit them for the sea, besides the accumulating charges of stores, provisions, pay, and clothing. The powers of Europe generally send a squadron of men of war with their ministers, and offer battle at the same time that they propose treaties and promise presents."

No. 6.—Several statements of the Marine force of Algiers.—Public and private

May 20, 1786.—Mr. Lamb says it consists of

9 Chebecsfrom 36 to 8 guns; manned, the largest with 400 men, and so in proportion.
10 Row Galleys

May 27, 1787.—Mr. Randall furnishes two statements, viz.:

A more general one—1 Setye of 34 guns.
2 Setye of 32 guns.
1 Setye of 26 guns.
1 Setye of 24 guns.
1 Chebec of 20 guns
1 Chebec of 18 guns.
1 Chebec of 10 guns.
8
4 half-galleys, carrying from 120 to 130 Moors.
3 galliots of 70, 60, and 50 Moors.

A more particular one as follows:

1 of 32 guns,viz. 2 eighteens,24 nines, 6 fours,and 450 men.
1 of 28 guns,viz. 2 twelves,24 nines, 2 sixes,and 400 men.
1 of 24 guns,viz.20 fours,and 350 men.
1 of 20 guns,viz. 20 sixes, and 300 men.
2 of 18 guns,viz. 18 sixes, and 260 men.
1 of 16 guns,viz. 16 sixes, and 250 men.
2 small craft.
9
55 gun-boats, carrying 1 twelve pounder each, for defence of the harbor.

June 8, 1786.—A letter from the three American captains, O'Brien, Coffin, and Stephens, state them

as 1 of 32
1 of 30
3 of 24
3 of 18
1of 12
9 and 55 gun-boats.

September 25, 1787.—Captain O'Brien furnishes the following statement

1of 30 guns, 400 men, 106 feet length, straight keel.
1of 26 guns, 320 men, 96 feet length, straight keel.
2of 22 guns, 240 men, 80 feet length, straight keel.
1of 22 guns, 240 men, 75 feet length, straight keel.
1of 22 guns, 240 men, 70 feet length, straight keel.
1of 18 guns, 200 men, 70 feet length, straight keel.
1of 16 guns, 180 men, 64 feet length, straight keel.
1of 12 guns, 150 men, 50 feet length, straight keel.
9
Galleys 1of 4 guns, 70 men, 40 feet length, straight keel.
2of 2 guns, 46 men, 32 feet length, straight keel.
1of 2 guns, 40 men, 32 feet length, straight keel.

February 5, 1788.—Statement by the inhabitants of Algiers, spoken of in the report.

About this date the Algerines lost two or three vessels, stranded or taken.

December, 1789.—Captain O'Brien furnishes the latest statement.

1ship of 24 guns, received lately from France.
5large cruisers.
63 galleys, and 60 gun-boats.

In the fall of 1789, they laid the keel of a 40 gun frigate, and they expect two cruisers from the grand seignior.

No. 7.—Translation of a Letter from Count D'Estaing to the Hon. Thomas Jefferson, Esq. Paris, May 17, 1784.

Sir,—In giving you an account of an opinion of Mr. Massiac, and which absolutely corresponds with my own, I cannot too much observe how great a difference may take place in the course of forty years between the means which he required and those which political circumstances, that I cannot ascertain, may exact.

This Secretary of State, afterwards vice-Admiral, had the modesty, when a captain, to propose a means for the reduction of Algiers, less brilliant to himself, but more sure and economical than the one government was about to adopt. They wanted him to undertake a bombardment; he proposed a simple blockade. All the force he requested was a single man-of-war, two strong frigates, and two sloops-of-war.

I am convinced, that by blocking up Algiers by cross-anchoring, and with a long tow, that is to say, with several cables spliced to each other, and with iron chains, one might, if necessary, always remain there, and there is no Barbarian power thus confined, which would not sue for peace.

During the war before last the English remained, even in winter, at anchor before Morbian, on the coast of Brittany, which is a much more dangerous coast. Expeditious preparation for sailing of the vessels which form the blockade, which should be of a sufficient number to prevent anything from entering or going out, while the rest remain at their stations, the choice of these stations, skilful manœuvres, strict watch during the night, every precaution against the element which every seaman ought to be acquainted with; also, against the enemy to prevent the sudden attack of boats, and to repel them in case they should make an attack by boats prepared for the purpose, frequent refreshments for the crews, relieving the men, an unshaken constancy and exactness in service, are the means, which in my opinion, would render the event indubitable. Bombardments are but transitory. It is, if I may so express myself, like breaking glass windows with guineas. None have produced effect against the barbarians. Even an imperfect blockade, were one to have the patience and courage to persist therein, would occasion a perpetual evil, it would be insupportable in the long run. To obtain the end proposed no advantage ought to be lost. If several powers would come to a good understanding, and pursue a plan formed on the principles of humanity; if they were not counteracted by others, it would require but a few years to compel the barbarians to cease being pirates; they would become merchants in spite of themselves. It is needless to observe, that the unsuccessful attempts of Spain, and those under which the republic of Venice, perhaps, hides other views, have increased the strength as well as the self-love of all the barbarians. We are assured that the Algerines have fitted out merchantmen with heavy cannon. This would render it necessary to block the place with two ships, so that one of the two might remain moored near the bar, while the other might prepare to support such of the frigates as should give chase. But their chebecs, even their frigates, and all their vessels, although overcharged with men, are moreover so badly armed and manœuvred that assistance from without would be most to be feared.

Your excellency has told me the only true means of bringing to terms the only people who can take a pleasure in disturbing our commerce. You see, I speak as an American citizen; this title, dear to my heart, the value of which I justly prize, affords me the happy opportunity of offering, still more particularly, the homage, the sincere attachment, and the respect with which I have the honor to be, &c.

Estaing.

XIX.—Report on the Algerine Prisoners.

December 28, 1790.

The Secretary of State, having had under consideration the situation of the citizens of the United States in captivity at Algiers, makes the following report thereupon to the President of the United States:

When the House of Representatives, at their late session, were pleased to refer to the Secretary of State, the petition of our citizens in captivity at Algiers, there still existed some expectation that certain measures, which had been employed to effect their redemption, the success of which depended on their secrecy, might prove effectual. Information received during the recess of Congress has so far weakened those expectations, as to make it now a duty to lay before the President of the United States, a full statement of what has been attempted for the relief of these our suffering citizens, as well before, as since he came into office, that he may be enabled to decide what further is to be done.

On the 25th of July, 1785, the schooner Maria, Captain Stevens, belonging to a Mr. Foster, of Boston, was taken off Cape St. Vincents, by an Algerine corsair; and, five days afterwards, the ship Dauphin, Captain O'Brien, belonging to Messieurs Irvins of Philadelphia, was taken by another Algerine, about fifty leagues westward of Lisbon. These vessels, with their cargoes and crews, twenty-one persons in number, were carried into Algiers.

Congress had some time before commissioned ministers plenipotentiary for entering into treaties of amity and commerce with the Barbary Powers, and to send to them proper agents for preparing such treaties. An agent was accordingly appointed for Algiers, and his instructions prepared, when the Ministers Plenipotentiary received information of these captures. Though the ransom of captives was not among the objects expressed in their commissions, because at their dates the case did not exist, yet they thought it their duty to undertake that ransom, fearing that the captives might be sold and dispersed through the interior and distant countries of Africa, if the previous orders of Congress should be waited for. They therefore added a supplementary instruction to the agent to negotiate their ransom. But, while acting thus without authority, they thought themselves bound to offer a price so moderate as not to be disapproved. They therefore restrained him to two hundred dollars a man; which was something less than had been just before paid for about three hundred French captives, by the Mathurins, a religious order of France, instituted in ancient times for the redemption of Christian captives from the infidel Powers. On the arrival of the agent at Algiers, the dey demanded fifty-nine thousand four hundred and ninety-six dollars for the twenty-one captives, and could be brought to abate but little from that demand. The agent, therefore, returned in 1786, without having effected either peace or ransom.

In the beginning of the next year, 1787, the Minister Plenipotentiary of the United States at Paris procured an interview with the general of the religious order of Mathurins, before mentioned, to engage him to lend his agency, at the expense of the United States, for the redemption of their captive citizens. He proffered at once all the services he could render, with the liberality and the zeal which distinguish his character. He observed, that he had agents on the spot, constantly employed in seeking out and redeeming the captives of their own country; that these should act for us, as for themselves; that nothing could be accepted for their agency; and that he would only expect that the price of redemption should be ready on our part, so as to cover the engagement into which he should enter. He added, that, by the time all expenses were paid, their last redemption had amounted to near two thousand five hundred livres a man, and that he could by no means flatter us that they could redeem our captives as cheap as their own. The pirates would take advantage of its being out of their ordinary line. Still he was in hopes they would not be much higher.

The proposition was then submitted to Congress, that is to say, in February, 1787, and on the 19th of September, in the same year, their Minister Plenipotentiary at Paris received their orders to embrace the offers of the Mathurins. This he immediately notified to the general, observing, however, that he did not desire him to enter into any engagements till a sufficient sum to cover them should be actually deposited in Paris. The general wished that the whole might be kept rigorously secret, as, should the barbarians suspect him to be acting for the United States, they would demand such sums as he could never agree to give, even with our consent, because it would injure his future purchases from them. He said he had information from his agent at Algiers, that our captives received so liberal a daily allowance as to evince that it came from a public source. He recommended that this should be discontinued; engaging that he would have an allowance administered to them, much short indeed of what they had hitherto received, but such as was given to his own countrymen, quite sufficient for physical necessities, and more likely to prepare the opinion, that as they were subsisted by his charity, they were to be redeemed by it also. These ideas, suggested to him by the danger of raising his market, were approved by the Minister Plenipotentiary; because, this being the first instance of a redemption by the United States, it would form a precedent, because a high price given by us might induce these pirates to abandon all other nations in pursuit of Americans; whereas, the contrary would take place, could our price of redemption be fixed at the lowest point.

To destroy, therefore, every expectation of a redemption by the United States, the bills of the Spanish consul at Algiers, who had made the kind advances before spoken of for the sustenance of our captives, were not answered. On the contrary, a hint was given that these advances had better be discontinued, as it was not known that they would be reimbursed. It was necessary even to go further, and to suffer the captives themselves and their friends to believe for awhile, that no attention was paid to them, no notice taken of their letters. They are still under this impression. It would have been unsafe to trust them with a secret, the disclosure of which might forever prevent their redemption, by raising the demands of the captors to sums which a due regard for our seamen, still in freedom, would forbid us to give. This was the most trying of all circumstances, and drew from them the most afflicting reproaches.

It was a twelvemonth afterwards before the money could be deposited in Paris, and the negotiation be actually put into train. In the meantime the general had received information from Algiers of a very considerable change of prices there. Within the last two or three years the Spaniards, the Neapolitans, and the Russians, had redeemed at exorbitant sums. Slaves were become scarce, and would hardly be sold at any price. Still he entered on the business with an assurance of doing the best in his power; and he was authorized to offer as far as three thousand livres, or five hundred and fifty-five dollars a man. He wrote immediately to consult a confidential agent at Marseilles, on the best mode of carrying this business into effect; from whom he received the answer No. 2, hereto annexed.

Nothing further was known of his progress or prospects, when the House of Representatives were pleased, at their last session, to refer the petition of our captives at Algiers to the Secretary of State. The preceding narrative shows that no report could have then been made without risking the object, of which some hopes were still entertained. Later advices, however, from the chargé des affaires of the United States, at Paris, informs us, that these measures, though not yet desperate, are not to be counted on. Besides the exorbitance of price, before feared, the late transfer of the lands and revenues of the clergy in France to the public, by withdrawing the means, seems to have suspended the proceedings of the Mathurins in the purposes of their institution.

It is time, therefore, to look about for something more promising, without relinquishing, in the meanwhile, the chance of success through them. Endeavors to collect information, which have been continued a considerable time, as to the ransoms which would probably be demanded from us, and those actually paid by other nations, enable the Secretary of State to lay before the President the following short view, collected from original papers now in his possession, or from information delivered to him personally. Passing over the ransoms of the Mathurins, which are kept far below the common level by special circumstances:

In 1786, the dey of Algiers demanded from our agent $59,496 for twenty-one captives, which was $2,833 a man. The agent flattered himself they could be ransomed for $1,200 apiece. His secretary informed us, at the same time, that Spain had paid $1,600.

In 1787, the Russians redeemed at $1,546 a man.

In 1788, a well-informed inhabitant of Algiers assured the Minister Plenipotentiary of the United States at Paris, that no nation had redeemed, since the Spanish treaty, at less than from £250 to £300 sterling, the medium of which is $1,237. Captain O'Brien, at the same date, thinks we must pay $1,800, and mentions a Savoy captain, just redeemed at $4,074.

In 1789, Mr. Logie, the English consul at Algiers, informed a person who wished to ransom one of our common sailors, that he would cost from £450 to £500 sterling, the mean of which is $2,137. In December of the same year, Captain O'Brien thinks our men will now cost $2,290 each, though a Jew merchant believes he could get them for $2,264.

In 1790, July 9th, a Mr. Simpson, of Gibraltar, who, at some particular request, had taken pains to find for what sum our captives could be redeemed, finds that the fourteen will cost $34,79,228, which is $2,485 a man. At the same date, one of them, a Scotch boy, a common mariner, was actually redeemed at 8,000 livres, equal to $1,481, which is within nineteen dollars of the price Simpson states for common men; and the chargé des affaires of the United States at Paris is informed that the whole may be redeemed at that rate, adding fifty per cent. on the captains, which would bring it to $1,571 a man.

It is found then that the prices are 1,200, 1,237, 1,481, 1,546, 1,571, 1,600, 1,800, 2,137, 2,264, 2,485, 2,833, and 2,920 dollars a man, not noticing that of $4,074, because it was for a captain.

In 1786, there were 2,200 captives in Algiers, which, in 1789, had been reduced by death or ransom to 655. Of ours six have died, and one has been ransomed by his friends.

From these facts and opinions, some conjecture may be formed of the terms on which the liberty of our citizens may be obtained.

But should it be thought better to repress force by force, another expedient for their liberation may perhaps offer. Captures made on the enemy may perhaps put us into possession of some of their mariners, and exchange be substituted for ransom. It is not indeed a fixed usage with them to exchange prisoners. It is rather their custom to refuse it. However, such exchanges are sometimes effected, by allowing them more or less of advantage. They have sometimes accepted of two Moors for a Christian, at others they have refused five or six for one. Perhaps Turkish captives may be objects of greater partiality with them, as their government is entirely in the hands of Turks, who are treated in every instance as a superior order of beings. Exchange, too, will be more practicable in our case, as our captives have not been sold to private individuals, but are retained in the hands of the Government.

The liberation of our citizens has an intimate connection with the liberation of our commerce in the Mediterranean, now under the consideration of Congress. The distresses of both proceed from the same cause, and the measures which shall be adopted for the relief of the one, may, very probably, involve the relief of the other.

XX.—The Secretary of State, to whom was referred by the House of Representatives, the representation from the General Court of the Commonwealth of Massachusetts, on the subjects of the cod and whale fisheries, together with the several papers accompanying it, has had the same under consideration, and thereupon makes the following report:

February 1, 1791.

The representation sets forth that, before the late war, about four thousand seamen, and about twenty-four thousand tons of shipping, were annually employed from that State, in the whale fishery, the produce whereof was about three hundred and fifty thousand pounds lawful money a year.

That, previous to the same period, the cod fishery of that State employed four thousand men, and twenty-eight thousand tons of shipping, and produced about two hundred and fifty thousand pounds a year.

That these branches of business, annihilated during the war, have been, in some degree, recovered since; but that they labor under many and heavy embarrassments, which, if not removed, or lessened, will render the fisheries every year less extensive and important.

That these embarrassments are, heavy duties on their produce abroad, and bounties on that of their competitors; and duties at home on several articles, particularly used in the fisheries.

And it asks that the duties be taken off; that bounties be given to the fishermen; and the national influence be used abroad, for obtaining better markets for their produce.

The cod and whale fisheries, carried on by different persons, from different ports, in different vessels, in different seas, and seeking different markets, agree in one circumstance, in being as unprofitable to the adventurer, as important to the public. A succinct view of their rise, progress, and present state, with different nations, may enable us to note the circumstances which have attended their prosperity, and their decline; to judge of the embarrassments which are said to oppress ours; to see whether they depend on our own will, and may, therefore, be remedied immediately by ourselves, or, whether depending on the will of others, they are without the reach of remedy from us, either directly or indirectly.

Their history being as unconnected as their practice, they shall be separately considered.

Within twenty years after the supposed discovery of Newfoundland, by the Cabots, we find that the abundance of fish on its banks, had already drawn the attention of the people of Europe. For, as early as 1517, or 1519, we are told of fifty ships being seen there at one time. The first adventurers in that fishery were the Biscayans, of Spain, the Basques and Bas-Bretons, of France, all united anciently in language, and still in habits, and in extreme poverty. The last circumstance enabled them long to retain a considerable share of the fishery. In 1577, the French had one hundred and fifty vessels there; the Spaniards had still one hundred, and the Portuguese fifty, when the English had only fifteen. The Spaniards and Portuguese seem at length to have retired silently, the French and English claiming the fishery exclusively, as an appurtenance to their adjacent colonies, and the profits being too small for nations surcharged with the precious metals proceeding from their mines.

Without materials to trace the intermediate progress, we only know that, so late as 1744, the French employed there five hundred and sixty-four ships, and twenty-seven thousand five hundred seamen, and took one million two hundred and forty-six thousand quintals of fish, which was three times the extent to which England and her colonies together, carried this fishery at that time.

The English, in the beginning of the seventeenth century, had employed, generally, about one hundred and fifty vessels in the Newfoundland fishery. About 1670 we find them reduced to eighty, and one hundred, the inhabitants of New England beginning now to supplant them. A little before this, the British Parliament perceiving that their citizens were unable to subsist on the scanty profits which sufficed for their poorer competitors, endeavored to give them some advantage by prohibiting the importation of foreign fish; and, at the close of the century, they formed some regulations for their government and protection, and remitted to them some duties. A successful war enabled them, in 1713, to force from the French a cession of the Island of Newfoundland; under these encouragements, the English and American fisheries began to thrive. In 1731 we find the English take two hundred thousand quintals of fish, and the Americans two hundred and thirty thousand, besides the refuse fish, not fit for European markets. They continue to gain ground, and the French to lose it, insomuch that, about 1755, they are said to have been on a par; and, in 1768, the French have only two hundred and fifty-nine vessels, of twenty-four thousand four hundred and twenty tons, nine thousand seven hundred and twenty-two seamen, taking two hundred thousand quintals, while America alone, for some three or four years before that, and so on, to the commencement of the late war, employed six hundred and sixty-five vessels, of twenty-five thousand six hundred and fifty tons, and four thousand four hundred and five seamen, and took from three hundred and fifty thousand to upwards of four hundred thousand quintals of fish, and England a still greater quantity, five hundred and twenty-six thousand quintals, as is said.

Spain had formally relinquished her pretensions to a participation in these fisheries, at the close of the preceding war; and, at the end of this, the adjacent continent and islands being divided between the United States, the English and French, (for the last retained two small islands merely for this object,) the right of fishing was appropriated to them also.

France, sensible of the necessity of balancing the power of England on the water, and, therefore, of improving every resource for raising seamen, and seeing that her fishermen could not maintain their competition without some public patronage, adopted the experiment of bounties on her own fish, and duties on that of foreign nations brought into her markets. But, notwithstanding this, her fisheries dwindle, from a change taken place, insensibly, in the character of her navigation, which, from being the most economical, is now become the most expensive. In 1786, she is said to have employed but seven thousand men in this fishery, and to have taken four hundred and twenty-six thousand quintals; and, in 1787, but six thousand men, and one hundred and twenty-eight thousand quintals. She seems not yet sensible that the unthriftiness of her fisheries proceeds from the want of economy, and not the want of markets; and that the encouragement of our fishery abridges that of a rival nation, whose power on the ocean has long threatened the loss of all balance on that element.

The plan of the English Government, since the peace, has been to prohibit all foreign fish in their markets, and they have given from eighteen to fifty thousand pounds sterling on every fishing vessel complying with certain conditions. This policy is said to have been so far successful, as to have raised the number of seamen employed in that business, in 1786, to fourteen thousand, and the quantity of fish taken, to 732,000 quintals.

* * * * * * * *

The fisheries of the United States, annihilated during the war; their vessels, utensils, and fishermen destroyed; their markets in the Mediterranean and British America lost, and their produce dutied in those of France; their competitors enabled by bounties to meet and undersell them at the few markets remaining open, without any public aid, and, indeed, paying aids to the public;—such were the hopeless auspices under which this important business was to be resumed. Yet it was resumed, and, aided by the mere force of natural advantages, they employed, during the years 1786, 1787, 1788, and 1789, on an average, five hundred and thirty-nine vessels, of nineteen thousand one hundred and eighty-five tons, three thousand two hundred and eighty-seven seamen, and took two hundred and fifty thousand six hundred and fifty quintals of fish. * * * And an official paper * * shows that, in the last of those years, our exportation amounted to three hundred and seventy-five thousand and twenty quintals, and thirty thousand four hundred and sixty-one barrels; deduction made of three thousand seven hundred and one quintals, and six thousand three hundred and forty-three barrels of foreign fish, received and re-exported. * * Still, however, the calculations * * which accompany the representation, show that the profits of the sales in the years 1787 and 1788, were too small to afford a living to the fishermen, and on those of 1789, there was such a loss as to withdraw thirty-three vessels, of the town of Marblehead alone, from the further pursuit of this business; and the apprehension is, that, without some public aid, those still remaining will continue to withdraw, and this whole commerce be engrossed by a single nation.

This rapid view of the cod fishery enables us to discern under what policy it has nourished or declined in the hands of other nations, and to mark the fact, that it is too poor a business to be left to itself, even with the nation most advantageously situated.

It will now be proper to count the advantages which aid, and the disadvantages which oppose us, in this conflict.

Our advantages are—

1. The neighborhood of the great fisheries, which permits our fishermen to bring home their fish to be salted by their wives and children.

2. The shore fisheries, so near at hand, as to enable the vessels to run into port in a storm, and so lessen the risk, for which distant nations must pay insurance.

3. The winter fisheries, which, like household manufactures employ portions of time, which would otherwise be useless.

4. The smallness of the vessels, which the shortness of the voyage enables us to employ, and which, consequently, require but a small capital.

5. The cheapness of our vessels, which do not cost above the half of the Baltic fir vessels, computing price and duration.

6. Their excellence as sea boats, which decreases the risk and quickens the return.

7. The superiority of our mariners in skill, activity, enterprise, sobriety, and order.

8. The cheapness of provisions.

9. The cheapness of casks, which, of itself, is said to be equal to an extra profit of fifteen per cent.

These advantages are of such force, that, while experience has proved that no other nation can make a mercantile profit on the Newfoundland fishery, nor can support it without national aid, we can make a living profit, if vent for our fish can be procured.

Of the disadvantages opposed to us, those which depend on ourselves, are—

Tonnage and naval duties on the vessels employed in the fishery.

Impost duties on salt.

On tea, rum, sugar, molasses, hooks, lines, and leads, duck, cordage, and cables, iron, hemp, and twine, used in the fishery; coarse woollens, worn by the fishermen, and the poll tax levied by the State on their persons. The statement No. 6, shows the amount of these, exclusive of the State tax and drawback on the fish exported, to be $5 25 per man, or $57 75 per vessel of sixty-five tons. When a business is so nearly in equilibrio that one can hardly discern whether the profit be sufficient to continue it or not, smaller sums than these suffice to turn the scale against it. To these disadvantages, add ineffectual duties on the importation of foreign fish. In justification of these last, it is urged that the foreign fish received, is in exchange for the produce of agriculture. To which it may be answered, that the thing given, is more merchantable than that received in exchange, and agriculture has too many markets to be allowed to take away those of the fisheries. It will rest, therefore, with the wisdom of the Legislature to decide, whether prohibition should not be opposed to prohibition, and high duty to high duty, on the fish of other nations; whether any, and which, of the naval and other duties may be remitted, or an equivalent given to the fisherman, in the form of a drawback, or bounty; and whether the loss of markets abroad, may not, in some degree, be compensated, by creating markets at home; to which might contribute the constituting fish a part of the military ration, in stations not too distant from navigation, a part of the necessary sea stores of vessels, and the encouraging private individuals to let the fishermen share with the cultivator, in furnishing the supplies of the table. A habit introduced from motives of patriotism, would soon be followed from motives of taste; and who will undertake to fix the limits to this demand, if it can be once excited, with a nation which doubles, and will continue to double, at very short periods?

Of the disadvantages which depend on others, are—

1. The loss of the Mediterranean markets.

2. Exclusions from the markets of some of our neighbors.

3. High duties in those of others; and,

4. Bounties to the individuals in competition with us.

The consideration of these will find its place more aptly, after a review of the condition of our whale fishery shall have led us to the same point. To this branch of the subject, therefore, we will now proceed.

The whale fishery was first brought into notice of the southern nations of Europe, in the fifteenth century, by the same Biscayans and Basques who led the way to the fishery of Newfoundland. They began it on their own coasts, but soon found that the principal residence of the whale was in the Northern seas, into which, therefore, they pursued him. In 1578 they employed twenty-five ships in that business. The Dutch and Hamburghers took it up after this, and about the middle of the seventeenth century the former employed about two hundred ships, and the latter about three hundred and fifty.

The English endeavored also to participate of it. In 1672, they offered to their own fishermen a bounty of six shillings a ton, on the oil they should bring home, and instituted, at different times, different exclusive companies, all of which failed of success. They raised their bounty, in 1733, to twenty shillings a ton, on the admeasurement of the vessel. In 1740, to thirty shillings, with a privilege to the fishermen against being impressed. The Basque fishery, supported by poverty alone, had maintained but a feeble existence, before competitors aided by the bounties of their nation, and was, in fine, annihilated by the war of 1745, at the close of which the English bounty was raised to forty shillings. From this epoch, their whale fishery went on between the limits of twenty-eight and sixty-seven vessels, till the commencement of the last war.

The Dutch, in the meantime, had declined gradually to about one hundred and thirty ships, and have, since that, fallen down to less than half that number. So that their fishery, notwithstanding a bounty of thirty florins a man, as well as that of Hamburg, is now nearly out of competition.

In 1715, the Americans began their whale fishery. They were led to it at first by the whales which presented themselves on their coasts. They attacked them there in small vessels of forty tons. As the whale, being infested, retired from the coast, they followed him farther and farther into the ocean, still enlarging their vessels with their adventures, to sixty, one hundred, and two hundred tons. Having extended their pursuit to the Western Islands, they fell in, accidentally, with the spermaceti whale, of a different species from that of Greenland, which alone had hitherto been known in commerce: more fierce and active, and whose oil and head matter was found to be more valuable, as it might be used in the interior of houses without offending the smell. The distinction now first arose between the Northern and Southern fisheries: the object of the former being the Greenland whale, which frequents the Northern coasts and seas of Europe and America; that of the latter being the spermaceti whale, which was found in the Southern seas, from the Western Islands and coast of Africa, to that of Brazil, and still on to the Falkland Islands. Here, again, within soundings, on the coast of Brazil, they found a third species of whale, which they called the black or Brazil whale, smaller than the Greenland, yielding a still less valuable oil, fit only for summer use, as it becomes opaque at 50 degrees of Fahrenheit's termometer, while that of the spermaceti whale is limpid to 41, and of the Greenland whale to 36, of the same thermometer. It is only worth taking, therefore, when it falls in the way of the fishermen, but not worth seeking, except when they have failed of success against the spermaceti whale, in which case, this kind, easily found and taken, serves to moderate their loss.

In 1771 the Americans had one hundred and eighty-three vessels, of thirteen thousand eight hundred and twenty tons, in the Northern fishery, and one hundred and twenty-one vessels, of fourteen thousand and twenty tons, in the Southern, navigated by four thousand and fifty-nine men. At the beginning of the late war, they had one hundred and seventy-seven vessels in the Northern, and one hundred and thirty-two in the Southern fishery. At that period, our fishery being suspended, the English seized the opportunity of pushing theirs. They gave additional bounties of £500, £400, £300, £200, £100 sterling, annually, to the five ships which should take the greatest quantities of oil. The effect of which was such, as, by the year 1786, to double the quantity of common oil necessary for their own consumption. Finding, on a review of the subject, at that time, that their bounties had cost the Government £13 10s. sterling a man, annually, or sixty per cent. on the cargoes, a part of which went consequently to ease the purchases of this article made by foreign nations, they reduced the northern bounty from forty to thirty shillings the ton of admeasurement.

They had, some little time before, turned their attention to the Southern fishery, and given very great bounties in it, and had invited the fishermen of the United States to conduct their enterprises. Under their guidance, and with such encouragement, this fishery, which had only begun with them in 1784 or 1785, was rising into value. In 1788 they increased their bounties, and the temptations to our fishermen, under the general description of foreigners who had been employed in the whale fishery, to pass over with their families and vessels to the British dominions, either in America or Europe, but preferably to the latter. The effect of these measures had been prepared, by our whale oils becoming subject, in their market, to the foreign duty of £18 5s. sterling the ton, which, being more than equal to the price of the common oil, operated as a prohibition on that, and gave to their spermaceti oil a preference over ours to that amount.

* * * * * * * *

The fishermen of the United States, left without resource, by the loss of their market, began to think of accepting the British invitation, and of removing, some to Nova Scotia, preferring smaller advantages in the neighborhood of their ancient country and friends, others to Great Britain, postponing country and friends to high premiums.

The Government of France could not be inattentive to these proceedings. They saw the danger of letting four or five thousand seamen, of the best in the world, be transferred to the marine strength of another nation, and carry over with them an art, which they possessed almost exclusively. To give time for a counterplan, the Marquis de Lafayette, the valuable friend and citizen of this, as well as that country, wrote to a gentleman in Boston, to dissuade the fishermen from accepting the British proposals, and to assure them that their friends in France would endeavor to do something for them. A vessel was then arrived from Halifax at Nantucket, to take off those who had proposed to remove. Two families had gone abroad, and others were going. In this moment, the letter arriving, suspended their designs. Not another went abroad, and the vessel returned to Halifax with only the two families.

The plan adopted by the French ministry, very different from that of the first mover, was to give a counter invitation to the Nantucket men to remove and settle in Dunkirk, offering them a bounty of fifty livres (between nine and ten dollars) a ton on the admeasurement of the vessels they should equip for the whale fishery, with some other advantages. Nine families only, of thirty-three persons, accepted the invitation. This was in 1785. In 1786, the ministry were led to see that their invitation would produce but little effect, and that the true means of preventing the emigration of our fishermen to the British dominions would be to enable them still to follow their calling from their native country, by giving them a new market for their oils, instead of the old one they had lost. The duties were, therefore, abated on American whale oil immediately, and a further abatement promised by the letter No. 8, and, in December, 1787, the arrêt No. 9 was passed.

The rival fishermen immediately endeavored to turn this measure to their own advantage, by pouring their whale oils into the markets of France, where they were enabled, by the great premiums received from their Government, perhaps, too, by extraordinary indemnifications, to undersell both the French and American fishermen. To repel this measure, France shut her ports to all foreign fish oils whatever, by the arrêt No. 10. The British whale fishery fell, in consequence, the ensuing year from two hundred and twenty-two to one hundred and seventy-eight ships. But this general exclusion has palsied our fishery also. On the 7th of December, 1788, therefore, by the arrêt No. 11, the ports of France still remaining shut to all other nations, were again opened to the produce of the whale fisheries of the United States, continuing, however, their endeavors to recover a share in this fishery themselves, by the aid of our fishermen. In 1784, 1785, 1786, they had had four ships. In 1787, three. In 1788, seventeen in the two fisheries of four thousand five hundred tons. These cost them in bounty 225,000 livres, which divided on one thousand five hundred and fifty tons of oil, the quantity they took, amounted to 145 livres (near twenty-seven dollars) the ton, and, on about one hundred natives on board the seventeen ships, (for there were one hundred and fifty Americans engaged by the voyage) came to 2,225 livres, or about 416⅔ dollars a man.

We have had, during the years 1787, 1788 and 1789, on an average, ninety-one vessels, of five thousand eight hundred and twenty tons, in the northern, and thirty-one of four thousand three hundred and ninety tons in the southern fishery. * * * * *

These details will enable Congress to see with what a competition we have to struggle for the continuance of this fishery, not to say its increase. Against prohibitory duties in one country, and bounties to the adventurers in both of those which are contending with each other for the same object, ours have no auxiliaries, but poverty and rigorous economy. The business, unaided, is a wretched one. The Dutch have peculiar advantages for the northern fishery, as being within six or eight days' sail of the grounds, as navigating with more economy than any other nation in Europe, their seamen content with lower wages, and their merchants with lower profit. Yet the memorial No. 13, from a committee of the whale merchants to the States General of Holland, in the year 1775, states that fourteen millions of guilders, equal to five million six hundred thousand dollars, has been lost in that fishery in forty-seven years, being about one hundred and twenty thousand dollars a year. The States General, thereupon, gave a bounty of thirty guilders a man to the fishermen. A person immediately acquainted with the British whale fishery, and whose information merits confidence, has given assurance that the ships employed in their northern fishery, in 1788, sunk £800 each, on an average, more than the amount of the produce and bounties. An English ship of three hundred tons and forty-two seamen, in this fishery, generally brings home, after a four months' voyage, twenty-five tons of oil, worth £437 10s. sterling; but the wages of the officers and seamen will be £400; there remain but £37 10s., not worth taking into account, towards the outfit and merchants' profit. These, then, must be paid by the Government; and it is on this idea that the British bounty is calculated.

Our vessels for the northern fishery average sixty-four tons, and cost, when built, fitted out, and victualled for the first voyage, about three thousand dollars. They have taken, on an average, the three last years, according to the statement No. 12, eighteen tons of oil, worth, at our market, nine hundred dollars, which are to pay all expenses, and subsist the fishermen and merchant. Our vessels for the southern fishery average one hundred and forty tons, and cost, when built, fitted out, and victualled, for their first voyage, about six thousand five hundred dollars. They have taken on an average, the three last years, according to the same statement, thirty-two tons of oil each, worth at our market three thousand two hundred dollars, which are, in like manner, to pay all expenses, and subsist the owners and navigators. These expenses are great, as the voyages are generally of twelve months' duration. No hope can arise of their condition being bettered by an augmentation of the price of oil. This is kept down by the competition of the vegetable oils, which answer the same purposes, not quite so well, but well enough to become preferable, were the price to be raised, and so well, indeed, as to be more generally used than the fish oils for lighting houses and cities.

The American whale fishery is principally followed by the inhabitants of the island of Nantucket—a sand bar of about fifteen miles long, and three broad, capable of maintaining, by its agriculture, about twenty families; but it employed in these fisheries, before the war, between five or six thousand men and boys; and, in the only harbor it possesses, it had one hundred and forty vessels, one hundred and thirty-two of which were of the larger kind, as being employed in the southern fishery. In agriculture, then, they have no resource; and, if that of their fishery cannot be pursued from their own habitations, it is natural they should seek others from which it can be followed, and preferably those where they will find a sameness of language, religion, laws, habits, and kindred. A foreign emissary has lately been among them, for the purpose of renewing the invitations to a change of situation. But, attached to their native country, they prefer continuing in it, if their continuance there can be made supportable.

This brings us to the question, what relief does the condition of this fishery require?

1. A remission of duties on the articles used for their calling.

2. A retaliating duty on foreign oils, coming to seek a competition with them in or from our ports.

3. Free markets abroad.

1. The remission of duties will stand on nearly the same ground with that to the cod fishermen.

2. The only nation whose oil is brought hither for competition with our own, makes ours pay a duty of about eighty-two dollars the ton, in their ports. Theirs is brought here, too, to be reshipped fraudulently, under our flag, into ports where it could not be received under theirs, and ought not to be covered by ours, if we mean to preserve our own admission into them.

The 3d and principal object is to find markets for the vent of oil.

Portugal, England, Holland, Sweden, Denmark, Prussia, Russia, the Hanse towns, supply themselves and something more. Spain and Italy receive supplies from England, and need the less, as their skies are clearer. France is the only country which can take our surplus, and they take principally of the common oil; as the habit is but commencing with them of ascribing a just value to spermaceti whale. Some of this, however, finds its vent there. There was, indeed, a particular interest perpetually soliciting the exclusion of our oils from their markets. The late government there saw well that what we should lose thereby would be gained by others, not by themselves. And we are to hope that the present government, as wise and friendly, will also view us, not as rivals, but as co-operators against a common rival. Friendly arrangements with them, and accommodation to mutual interest, rendered easier by friendly dispositions existing on both sides, may long secure to us this important resource for our seamen. Nor is it the interest of the fisherman alone, which calls for the cultivation of friendly arrangements with that nation; besides five-eights of our whale oil, and two-thirds of our salted fish, they take from us one-fourth of our tobacco, three-fourths of our live stock * * * * * a considerable and growing portion of our rice, great supplies, occasionally, of other grain; in 1789, which, indeed, was extraordinary, four millions of bushels of wheat, and upwards of a million of bushels of rye and barley * * * * * and nearly the whole carried in our own vessels. * * * * * They are a free market now, and will, in time, be a valuable one for ships and ship timber, potash, and peltry.

England is the market for the greatest part of our spermaceti oil. They impose on all our oils a duty of eighteen pounds five shillings sterling the ton, which, as to the common kind, is a prohibition, as has been before observed, and, as to the spermaceti, gives a preference of theirs over ours to that amount, so as to leave, in the end, but a scanty benefit to the fishermen; and, not long since, by a change of construction, without any change of law, it was made to exclude our oils from their ports, when carried in our vessels. On some change of circumstance, it was construed back again to the reception of our oils, on paying always, however, the same duty of eighteen pounds five shillings. This serves to show that the tenure by which we hold the admission of this commodity in their markets, is as precarious as it is hard. Nor can it be announced that there is any disposition on their part to arrange this or any other commercial matter, to mutual convenience. The ex parte regulations which they have begun for mounting their navigation on the ruins of ours, can only be opposed by counter regulations on our part. And the loss of seamen, the natural consequence of lost and obstructed markets for our fish and oil, calls, in the first place, for serious and timely attention. It will be too late when the seaman shall have changed his vocation, or gone over to another interest. If we cannot recover and secure for him these important branches of employment, it behooves us to replace them by others equivalent. We have three nurseries for forming seamen:

1. Our coasting trade, already on a safe footing.

2. Our fisheries, which, in spite of natural advantages, give just cause of anxiety.

3. Our carrying trade, our only resource of indemnification for what we lose in the other. The produce of the United States, which is carried to foreign markets, is extremely bulky. That part of it which is now in the hands of foreigners, and which we may resume into our own, without touching the rights of those nations who have met us in fair arrangements by treaty, or the interests of those who, by their voluntary regulations, have paid so just and liberal a respect to our interests, as being measured back to them again, places both parties on as good ground, perhaps, as treaties could place them—the proportion, I say, of our carrying trade, which may be resumed without affecting either of these descriptions of nations, will find constant employment for ten thousand seamen, be worth two millions of dollars, annually, will go on augmenting with the population of the United States, secure to us a full indemnification for the seamen we lose, and be taken wholly from those who force us to this act of self protection in navigation.

Hence, too, would follow, that their Newfoundland ships, not receiving provisions from us in their bottoms, nor permitted (by a law of their own) to receive in ours, must draw their subsistence from Europe, which would increase that part of their expenses in the proportion of four to seven, and so far operate as a duty towards restoring the level between them and us. The tables No. 2 and 12, will show the quantity of tonnage, and, consequently, the mass of seamen whose interests are in distress; and No. 17, the materials for indemnification.

If regulations exactly the counterpart of those established against us, would be ineffectual, from a difference of circumstances, other regulations equivalent can give no reasonable ground of complaint to any nation. Admitting their right of keeping their markets to themselves, ours cannot be denied of keeping our carrying trade to ourselves. And if there be anything unfriendly in this, it was in the first example.

The loss of seamen, unnoticed, would be followed by other losses in a long train. If we have no seamen, our ships will be useless, consequently our ship timber, iron, and hemp; our ship building will be at an end, ship carpenters go over to other nations, our young men have no call to the sea, our produce, carried in foreign bottoms, be saddled with war-freight and insurance in times of war; and the history of the last hundred years shows, that the nation which is our carrier has three years of war for every four years of peace. (No. 18.) We lose, during the same periods, the carriage for belligerent powers, which the neutrality of our flag would render an incalculable source of profit; we lose at this moment the carriage of our own produce to the annual amount of two millions of dollars, which, in the possible progress of the encroachment, may extend to five or six millions, the worth of the whole, with an increase in the proportion of the increase of our numbers. It is easier, as well as better, to stop this train at its entrance, than when it shall have ruined or banished whole classes of useful and industrious citizens.

It will doubtless be thought expedient that the resumption suggested should take effect so gradually, as not to endanger the loss of produce for the want of transportation; but that, in order to create transportation, the whole plan should be developed, and made known at once, that the individuals who may be disposed to lay themselves out for the carrying business, may make their calculations on a full view of all circumstances.

On the whole, the historical view we have taken of these fisheries, proves they are so poor in themselves, as to come to nothing with distant nations, who do not support them from their treasury. We have seen that the advantages of our position place our fisheries on a ground somewhat higher, such as to relieve our treasury from giving them support; but not to permit it to draw support from them, nor to dispense the government from the obligation of effectuating free markets for them; that, for the great proportion of our salted fish, for our common oil, and a part of our spermaceti oil, markets may perhaps be preserved, by friendly arrangements towards those nations whose arrangements are friendly to us, and the residue be compensated by giving to the seamen thrown out of business the certainty of employment in another branch, of which we have the sole disposal.

XXI.—Opinion against the constitutionality of a National Bank.

February 15, 1791.

The bill for establishing a National Bank undertakes among other things:—

1. To form the subscribers into a corporation.

2. To enable them in their corporate capacities to receive grants of land; and so far is against the laws of Mortmain.[26]

3. To make alien subscribers capable of holding lands; and so far is against the laws of alienage.

4. To transmit these lands, on the death of a proprietor, to a certain line of successors; and so far changes the course of Descents.

5. To put the lands out of the reach of forfeiture or escheat; and so far is against the laws of Forfeiture and Escheat.

6. To transmit personal chattels to successors in a certain line; and so far is against the laws of Distribution.

7. To give them the sole and exclusive right of banking under the national authority; and so far is against the laws of Monopoly.

8. To communicate to them a power to make laws paramount to the laws of the States; for so they must be construed, to protect the institution from the control of the State legislatures; and so, probably, they will be construed.

I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.

The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.

1. They are not among the powers specially enumerated: for these are: 1st. A power to lay taxes for the purpose of paying the debts of the United States; but no debt is paid by this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senate would condemn it by the Constitution.

2d. "To borrow money." But this bill neither borrows money nor ensures the borrowing it. The proprietors of the bank will be just as free as any other money holders, to lend or not to lend their money to the public. The operation proposed in the bill, first, to lend them two millions, and then to borrow them back again, cannot change the nature of the latter act, which will still be a payment, and not a loan, call it by what name you please.

3. To "regulate commerce with foreign nations, and among the States, and with the Indian tribes." To erect a bank, and to regulate commerce, are very different acts. He who erects a bank, creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trade, but as "productive of considerable advantages to trade." Still less are these powers covered by any other of the special enumerations.

II. Nor are they within either of the general phrases, which are the two following:—

1. To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.

2. The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase.

It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.

But let us examine this convenience and see what it is. The report on this subject, page 3, states the only general convenience to be, the preventing the transportation and re-transportation of money between the States and the treasury, (for I pass over the increase of circulating medium, ascribed to it as a want, and which, according to my ideas of paper money, is clearly a demerit.) Every State will have to pay a sum of tax money into the treasury; and the treasury will have to pay, in every State, a part of the interest on the public debt, and salaries to the officers of government resident in that State. In most of the States there will still be a surplus of tax money to come up to the seat of government for the officers residing there. The payments of interest and salary in each State may be made by treasury orders on the State collector. This will take up the great export of the money he has collected in his State, and consequently prevent the great mass of it from being drawn out of the State. If there be a balance of commerce in favor of that State against the one in which the government resides, the surplus of taxes will be remitted by the bills of exchange drawn for that commercial balance. And so it must be if there was a bank. But if there be no balance of commerce, either direct or circuitous, all the banks in the world could not bring up the surplus of taxes, but in the form of money. Treasury orders then, and bills of exchange may prevent the displacement of the main mass of the money collected, without the aid of any bank; and where these fail, it cannot be prevented even with that aid.

Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.

Besides; the existing banks will, without a doubt, enter into arrangements for lending their agency, and the more favorable, as there will be a competition among them for it; whereas the bill delivers us up bound to the national bank, who are free to refuse all arrangement, but on their own terms, and the public not free, on such refusal, to employ any other bank. That of Philadelphia, I believe, now does this business, by their post-notes, which, by an arrangement with the treasury, are paid by any State collector to whom they are presented. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one. The thing may be done, and has been done, and well done, without this assumption; therefore, it does not stand on that degree of necessity which can honestly justify it.

It may be said that a bank whose bills would have a currency all over the States, would be more convenient than one whose currency is limited to a single State. So it would be still more convenient that there should be a bank, whose bills should have a currency all over the world. But it does not follow from this superior conveniency, that there exists anywhere a power to establish such a bank; or that the world may not go on very well without it.

Can it be thought that the Constitution intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several States; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence. Will Congress be too straight-laced to carry the constitution into honest effect, unless they may pass over the foundation-laws of the State government for the slightest convenience of theirs?

The negative of the President is the shield provided by the constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.

It must be added, however, that unless the President's mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorised by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.

XXII.—Opinion relative to locating the Ten Mile Square for the Federal Government, and building the Federal city.

March 11, 1791.

Objects which may merit the attention of the President, at Georgetown.

The commissioners to be called into action.

Deeds of cession to be taken from the land-holders.

Site of the capitol and President's house to be determined on.

Proclamation completing the location of the territory, and fixing the site of the capitol.

Town to be laid off. Squares of reserve are to be decided on for the capitol, President's house, offices of government, townhouse, prison, market, and public walks.

Other squares for present sale designated.

Terms of sale to be settled. As there is not as yet a town legislature, and things may be done before there is one to prevent them, which yet it would be desirable to prevent, it would seem justifiable and expedient that the President should form a capitulary of such regulations as he may think necessary to be observed, until there shall be a town legislature to undertake this office; such capitulary to be indented, signed, sealed, and recorded, according to the laws of conveyance in Maryland. And to be referred to in every deed for conveyance of the lots to purchasers, so as to make a part thereof. The same thing might be effected, by inserting special covenants for every regulation in every deed; but the former method is the shortest. I cannot help again suggesting here one regulation formerly suggested, to wit: To provide for the extinguishment of fires, and the openness and convenience of the town, by prohibiting houses of excessive height. And making it unlawful to build on any one's purchase any house with more than two floors between the common level of the earth and the eaves, nor with any other floor in the roof than one at the eaves. To consider in what way the contracts for the public buildings shall be made, and whether as many bricks should not be made this summer as may employ brick-layers in the beginning of the season of 1792, till more can be made in that season.

With respect to the amendment of the location so as to include Bladensburgh. I am of opinion it may be done with the consent of the legislature of Maryland, and that that consent may be so far counted on, as to render it expedient to declare the location at once.

The location A B C D A having been once made, I consider as obligatory and unalterable, but by consent of parties, except so far as was necessary to render it practicable by a correction of the beginning. That correction might be lawfully made either by stopping at the river, or at the spring of Hunting creek, or by lengthening the course from the court-house so that the second course should strike the mouth of Hunting creek. I am of opinion, therefore, that the beginning at the mouth of Hunting creek, is legally justifiable. But I would advise the location E F G H E to be hazarded so as to include Bladensburgh, because it is a better location, and I think will certainly be confirmed by Maryland. That State will necessarily have to pass another act confirming whatever location shall be made, because her former act authorized the delegates then in office, to convey the lands. But as they were not located, no conveyance has been made, and those persons are now out of office, and dispersed. Suppose the non-concurrence of Maryland should defeat the location E F G H E, it can only be done on this principle, that the first location A B C D A was valid, and unalterable, but by mutual consent. Then their non-concurrence will re-establish the first location A B C D A, and the second location will be good for the part E I D K E without their concurrence, and this will place us where we should be were we now to complete the location E B C K E. Consequently, the experiment of an amendment proposed can lose nothing, and may gain, and probably will gain, the better location.

When I say it can lose nothing, I count as nothing, the triangle A I E, which would be in neither of the locations. Perhaps this might be taken in afterwards, either with or without the consent of Virginia.

XXIII.—Report on the policy of securing particular marks to Manufacturers, by law.

December 9, 1791.

The Secretary of State, to whom was referred by the House of Representatives the petition of Samuel Breck and others, proprietors of a sail-cloth manufactory in Boston, praying that they may have the exclusive privilege of using particular marks for designating the sail-cloth of their manufactory, has had the same under consideration, and thereupon

Reports, That it would, in his opinion, contribute to fidelity in the execution of manufacturers, to secure to every manufactory an exclusive right to some mark on its wares, proper to itself.

That this should be done by general laws, extending equal right to every case to which the authority of the Legislature should be competent.

That these cases are of divided jurisdiction: Manufactures made and consumed within a State being subject to State legislation, while those which are exported to foreign nations, or to another State, or into the Indian Territory, are alone within the legislation of the General Government.

That it will, therefore, be reasonable for the General Government to provide in this behalf by law for those cases of manufacture generally, and those only which relate to commerce with foreign nations, and among the several States, and with the Indian Tribes.

And that this may be done by permitting the owner of every manufactory, to enter in the records of the court of the district wherein his manufactory is, the name with which he chooses to mark or designate his wares, and rendering it penal in others to put the same mark to any other wares.

XXIV.—Opinion relative to the demolition of Mr. Carroll's house by Major L'Enfant, in laying out the Federal City.

December 11, 1791.

Observations on Major L'Enfant's letter of December 7th, 1791, to the President, justifying his demolition of the house of Mr. Carroll, of Duddington.

He says that "Mr. Carroll erected his house partly on a main street, and altogether on ground to which the public had a more immediate title than himself could claim." When blaming Mr. Carroll, then, he considers this as a street; but when justifying himself, he considers it not yet as a street, for to account for his not having pointed out to Carroll a situation where he might build, he says, "The President had not yet sanctioned the plan for the distribution of the city, nor determined if he would approve the situation of the several areas proposed to him in that plan for public use, and that I would have been highly to be blamed to have anticipated his opinion thereon." This latter exculpation is solid; the first is without foundation. The plan of the city has not yet been definitely determined by the President. Sale to individuals, or partition decide the plan as far as these sales or partitions go. A deed with the whole plan annexed, executed by the President, and recorded, will ultimately fix it. But till a sale, or partition, or deed, it is open to alteration. Consequently, there is as yet no such thing as a street, except adjacent to the lots actually sold or divided; the erection of a house in any part of the ground cannot as yet be a nuisance in law. Mr. Carroll is tenant in common of the soil with the public, and the erection of a house by a tenant in common on the common property, is no nuisance. Mr. Carroll has acted imprudently, intemperately, foolishly; but he has not acted illegally. There must be an establishment of the streets, before his house can become a nuisance in the eye of the law. Therefore, till that establishment, neither Major L'Enfant, nor the commissioners, would have had a right to demolish his house, without his consent.

The Major says he had as much right to pull down a house, as to cut down a tree.

This is true, if he has received no authority to do either, but still there will be this difference: To cut down a tree or to demolish a house in the soil of another, is a trespass; but the cutting a tree, in this country, is so slight a trespass, that a man would be thought litigious who should prosecute it; if he prosecuted civilly, a jury would give small damages; if criminally, the judge would not inflict imprisonment, nor impose but a small fine. But the demolition of a house is so gross a trespass, that any man would prosecute it; if civilly, a jury would give great damages; if criminally, the judge would punish heavily by fine and imprisonment. In the present case, if Carroll was to bring a civil action, the jury would probably punish his folly by small damages; but if he were to prosecute criminally, the judge would as probably vindicate the insult on the laws, and the breach of the peace, by heavy fines and imprisonment. So that if Major L'Enfant is right in saying he had as much authority to pull down a house as to cut down a tree, still he would feel a difference in the punishment of the law.

But is he right in saying he had as much authority to pull down a house as to cut down a tree? I do not know what have been the authorities given him expressly or by implication, but I can very readily conceive that the authorities which he has received, whether from the President or from the commissioners, whether verbal or written, may have gone to the demolition of trees, and not houses. I am sure he has received no authority, either from the President or commissioners, either expressly or by implication, to pull down houses. An order to him to mark on the ground the lines of the streets and lots, might imply an order to remove trees or small obstructions, where they insuperably prevented his operations; but a person must know little of geometry who could not, in an open field, designate streets and lots, even where a line passed through a house, without pulling the house down.

In truth, the blame on Major L'Enfant, is for having pulled down the house, of his own authority, and when he had reason to believe he was in opposition, to the sentiments of the President; and his fault is aggravated by its having been done to gratify private resentment against Mr. Carroll, and most probably not because it was necessary; and the style in which he writes the justification of his act, shows that a continuation of the same resentment renders him still unable to acquiesce under the authority from which he has been reproved.

He desires a line of demarcation between his office, and that of the commissioners.

What should be this line? and who is to draw it? If we consider the matter under the act of Congress only, the President has authority only to name the commissioners, and to approve or disapprove certain proceedings of theirs. They have the whole executive power, and stand between the President and the subordinate agents. In this view, they may employ or dismiss, order and countermand, take on themselves such parts of the execution as they please, and assign other parts to subordinate agents. Consequently, under the act of Congress, their will is the line of demarcation between subordinate agents, while no such line can exist between themselves and their agents. Under the deed from the proprietors to the President, his powers are much more ample. I do not accurately recollect the tenor of the deed; but I am pretty sure it was such as to put much more ample power into the hands of the President, and to commit to him the whole execution of whatever is to be done under the deed; and this goes particularly to the laying out the town: so that as to this, the President is certainly authorized to draw the line of demarcation between L'Enfant and the commissioners. But I believe there is no necessity for it, as far as I have been able to judge, from conversations and consultations with the commissioners. I think they are disposed to follow implicitly the will of the President, whenever they can find it out; but L'Enfant's letters do not breathe the same moderation or acquiescence; and I think it would be much safer to say to him, "the orders of the commissioners are your line of demarcation," than by attempting to define his powers, to give him a line where he may meet with the commissioners foot to foot, and chicane and raise opposition to their orders whenever he thinks they pass his line. I confess, that on a view of L'Enfant's proceedings and letters latterly, I am thoroughly persuaded that, to render him useful, his temper must be subdued; and that the only means of preventing his giving constant trouble to the President, is to submit him to the unlimited control of the commissioners; we know the discretion and forbearance with which they will exercise it.

XXV.—Opinion relative to certain lands on Lake Erie, sold by the United States to Pennsylvania.

December 19, 1791.

The Secretary of State, to whom was referred, by the President of the United States, a letter from the Governor of Pennsylvania, with the documents therein mentioned, on the subject of certain lands on Lake Erie, having had the same under consideration, thereupon Reports:—

That Congress, by their resolution of June 6th, 1788, directed the Geographer General of the United States to ascertain the quantity of land belonging to the United States between Pennsylvania and Lake Erie, and authorized a sale thereof.

That a sale was accordingly made to the commonwealth of Pennsylvania.

That Congress, by their resolution of September 4th, 1788, relinquished to the said commonwealth all their right to the government and jurisdiction of the said tract of land; but the right of soil was not transferred by the resolution.

That a survey of the said tract has been since made, and the amount of the purchase money been settled between the comptrollers of the United States and of the said commonwealth, and that the Governor of Pennsylvania declares in the said letter, to the President of the United States, that he is ready to close the transaction on behalf of the said commonwealth. That there is no person at present authorized, by law, to convey to the said commonwealth the right of soil, in the said tract of land.

And the Secretary of State is therefore of opinion that the said letter and documents should be laid before the legislature of the United States to make such provision by law for conveying the said right of soil, as they in their wisdom shall think fit.

XXVI.—Report relative to negotiations with Spain to secure the free navigation of the Mississippi, and a port on the same.

December 22, 1791.

The Secretary of State reports to the President of the United States, that one of the commissioners of Spain, in the name of both, has lately communicated to him verbally, by order of his court, that his Catholic Majesty, apprized of our solicitude to have some arrangement made respecting our free navigation of the river Mississippi, and the use of a port thereon, is ready to enter into treaty thereon at Madrid.

The Secretary of State is of opinion that this overture should be attended to without delay, and that the proposal of treating at Madrid, though not what might have been desired, should yet be accepted, and a commission plenipotentiary made out for the purpose.

That Mr. Carmichael, the present chargé de affaires of the United States at Madrid, from the local acquaintance which he must have acquired with persons and circumstances, would be an useful and proper member of the commission; but that it would be useful also to join with him some person more particularly acquainted with the circumstances of the navigation to be treated of.

That the fund appropriated by the act providing the means of intercourse between the United States and foreign nations, will insufficiently furnish the ordinary and regular demands on it, and is consequently inadequate to the mission of an additional commissioner express from hence.

That, therefore, it will be advisable, on this account, as well as for the sake of despatch, to constitute some one of the ministers of the United States in Europe, jointly with Mr. Carmichael, commissioners plenipotentiary for the special purpose of negotiating and concluding, with any person or persons duly authorized by his Catholic Majesty, a convention or treaty for the free navigation of the river Mississippi by the citizens of the United States, under such accommodations with respect to a port, and other circumstances, as may render the said navigation practicable, useful, and free from dispute; saving to the President and Senate their respective rights as to their ratification of the same; and that the said negotiation be at Madrid, or such other place in Spain, as shall be desired by his Catholic Majesty.

March 18, 1792.

The appointment of Mr. Carmichael and Mr. Short, as commissioners to negotiate, with the court of Spain, a treaty or convention relative to the navigation of the Mississippi, and which perhaps may be extended to other interests, rendering it necessary that the subjects to be treated of should be developed, and the conditions of arrangement explained:

The Secretary of State reports to the President of the United States the following observations on the subjects of negotiation between the United States of America and the court of Spain, to be communicated by way of instruction to the commissioners of the United States, appointed as before mentioned, to manage that negotiation.

These subjects are,

I. Boundary.

II. The navigation of the Mississippi.

III. Commerce.

I. As to boundary, that between Georgia and Florida is the only one which will need any explanation. Spain sets up a claim to possessions within the State of Georgia, founded on her having rescued them by force from the British during the late war. The following view of the subject seems to admit no reply:

The several States now comprising the United States of America, were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at the head of their respective governments the executive magistrate who presided over the one they had left, and thereby secured, in effect, a constant amity with the nation. In this stage of their government their several boundaries were fixed; and particularly the southern boundary of Georgia, the only one now in question, was established at the 31st degree of latitude from the Apalachicola westwardly; and the western boundary, originally the Pacific ocean, was, by the treaty of Paris, reduced to the middle of the Mississippi. The part which our chief magistrate took in a war, waged against us by the nation among whom he resided, obliged us to discontinue him, and to name one within every State. In the course of this war we were joined by France as an ally, and by Spain and Holland as associates; having a common enemy, each sought that common enemy wherever they could find him. France, on our invitation, landed a large army within our territories, continued it with us two years, and aided us in recovering sundry places from the possession of the enemy. But she did not pretend to keep possession of the places rescued. Spain entered into the remote western part of our territory, dislodged the common enemy from several of the posts they held therein, to the annoyance of Spain; and perhaps thought it necessary to remain in some of them, as the only means of preventing their return. We, in like manner, dislodged them from several posts in the same western territory, to wit: Vincennes, Cahokia, Kaskaskia, &c., rescued the inhabitants, and retained constantly afterwards both them and the territory under our possession and government. At the conclusion of the war, Great Britain, on the 30th of November, 1782, by treaty acknowledged our independence, and our boundary, to wit: the Mississippi to the west, and the completion of the 31st degree, &c. to the south. In her treaty with Spain, concluded seven weeks afterwards, to wit, January 20th, 1783, she ceded to her the two Floridas, which had been defined in the proclamation of 1763, and Minorca; and by the eighth article of the treaty, Spain agreed to restore, without compensation, all the territories conquered by her, and not included in the treaty, either under the head of cessions or restitutions, that is to say, all except Minorca and the Floridas. According to this stipulation, Spain was expressly bound to have delivered up the possessions she had taken within the limits of Georgia, to Great Britain, if they were conquests on Great Britain, who was to deliver them over to the United States; or rather, she should have delivered them to the United States themselves, as standing quoad hoc in the place of Great Britain. And she was bound by natural rights to deliver them to the same United States on a much stronger ground, as the real and only proprietors of those places which she had taken possession of in a moment of danger, without having had any cause of war with the United States, to whom they belonged, and without having declared any; but, on the contrary, conducting herself in other respects as a friend and associate. Vattel, 1. 3, 122.

It is an established principle, that conquest gives only an inchoate treaty of peace, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor. Had Great Britain been that former proprietor, she was so far from confirming to Spain the right to the territory of Georgia, invaded by Spain, that she expressly relinquished to the United States any right that might remain in her; and afterwards completed that relinquishment, by procuring and consolidating with it the agreement of Spain herself to restore such territory without compensation. It is still more palpable, that a war existing between two nations, as Spain and Great Britain, could give to neither the right to seize and appropriate the territory of a third, which is even neutral, much less which is an associate in the war, as the United States were with Spain. See, on this subject, Grotius, 1. 3, c. 6, § 26. Puffendorf, 1. 8, c. 17, § 23. Vattel, 1. 3, § 197, 198.

On the conclusion of the general peace, the United States lost no time in requiring from Spain an evacuation of their territory This has been hitherto delayed by means which we need not explain to that court, but which have been equally contrary to our right and to our consent.

Should Spain pretend, as has been intimated, that there was a secret article of treaty between the United States and Great Britain, agreeing, if at the close of the war the latter should retain the Floridas, that then the southern boundary of Georgia should be the completion of the 32d degree of latitude, the commissioners may safely deny all knowledge of the fact, and refuse conference on any such postulatum. Or, should they find it necessary to enter into any argument on the subject, they will of course do it hypothetically; and in that way may justly say, on the part of the United States; suppose that the United States, exhausted by a bloody and expensive war with Great Britain, might have been willing to have purchased peace by relinquishing, under a particular contingency, a small part of their territory, it does not follow that the same United States, recruited and better organized, must relinquish the same territory to Spain without striking a blow. The United States, too, have irrevocably put it out of their power to do it, by a new constitution, which guarantees every State against the invasion of its territory. A disastrous war, indeed, might, by necessity, supersede this stipulation, (as necessity is above all law,) and oblige them to abandon a part of a State; but nothing short of this can justify or obtain such an abandonment.

The southern limits of Georgia depend chiefly on,

1. The charter of Carolina to the lords proprietors, in 1663, extending southwardly to the river Matheo, now called St. John, supposed in the charter to be in latitude 31, and so west in a direct line as far as the South Sea. See the charter in 4th[27] Memoires de l'Amerique, 554.

2. On the proclamation of the British King, in 1763, establishing the boundary between Georgia and the two Floridas to begin on the Mississippi, in thirty-one degrees of latitude north of the equator, and running eastwardly to the Appalachicola; thence, along the said river to the mouth of the Flint; thence, in a direct line, to the source of St. Mary's river, and down the same to the ocean. This proclamation will be found in Postlethwayte voce "British America."

3. On the treaties between the United States and Great Britain, of November 30, 1782, and September 3, 1783, repeating and confirming these ancient boundaries,—

There was an intermediate transaction, to wit: a convention concluded at the Pardo, in 1739, whereby it was agreed that Ministers Plenipotentiary should be immediately appointed by Spain and Great Britain for settling the limits of Florida and Carolina. The convention is to be found in the collections of treaties. But the proceedings of the Plenipotentiaries are unknown here. Qu. If it was on that occasion that the southern boundary of Carolina was transferred from the latitude of Matheo or St. John's river further north to the St. Mary's? Or was it the proclamation of 1763, which first removed this boundary? [If the commissioners can procure in Spain a copy of whatever was agreed on in consequence of the convention of the Pardo, it is a desirable State paper here.]

To this demonstration of our rights may be added the explicit declaration of the court of Spain, that she would accede to them. This took place in conversations and correspondence thereon between Mr. Jay, Minister Plenipotentiary for the United States at the court at Madrid, the Marquis de La Fayette, and the Count de Florida Blanca. Monsieur de La Fayette, in his letter of February 19, 1783, to the Count de Florida Blanca, states the result of their conversations on limits in these words: "With respect to limits, his Catholic Majesty has adopted those that are determined by the preliminaries of the 30th of November, between the United States and the court of London." The Count de Florida Blanca, in his answer of February 22d, to M. de La Fayette, says, "although it is his Majesty's intention to abide for the present by the limits established by the treaty of the 30th of November, 1782, between the English and the Americans, the King intends to inform himself particularly whether it can be in any ways inconvenient or prejudicial to settle that affair amicably with the United States;" and M. de La Fayette, in his letter of the same day to Mr. Jay, wherein he had inserted the preceding, says, "on receiving the answer of the Count de Florida Blanca, (to wit: his answer, before mentioned, to M. de La Fayette,) I desired an explanation respecting the addition that relates to the limits. I was answered, that it was a fixed principle to abide by the limits established by the treaty between the English and the Americans; that his remark related only to mere unimportant details, which he wished to receive from the Spanish commandants, which would be amicably regulated, and would by no means oppose the general principle. I asked him, before the Ambassador of France, [M. de Montmorin,] whether he would give me his word of honor for it; he assured me he would, and that I might engage it to the United States." See the report sent herewith.

II.—The navigation of the Mississippi.

Our right to navigate that river, from its source to where our southern boundary strikes it, is not questioned. It is from that point downwards, only, that the exclusive navigation is claimed by Spain; that is to say, where she holds the country on both sides, to wit: Louisiana on the west, and Florida on the east.

Our right to participate in the navigation of that part of the river, also, is to be considered, under

1. The Treaty of Paris of 1763,

2. The Revolution Treaty of 1782-3.

3. The law of nature and nations.

1. The war of 1755-1763, was carried on jointly by Great Britain and the thirteen colonies, now the United States of America, against France and Spain. At the peace which was negotiated by our common magistrate, a right was secured to the subjects of Great Britain (the common designation of all those under his government) to navigate the Mississippi in its whole breadth and length, from its source to the sea, and expressly that part which is between the island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth; and that the vessels should not be stopped, visited, or subjected to the payment of any duty whatsoever. These are the words of the treaty, article VII. Florida was at the same time ceded by Spain, and its extent westwardly was fixed to the lakes Pontchartrain and Maurepas, and the river Mississippi; and Spain received soon after from France a cession of the island of New Orleans, and all the country she held westward of the Mississippi, subject of course to our right of navigating between that country and the island previously granted to us by France. This right was not parcelled out to us in severalty, that is to say, to each the exclusive navigation of so much of the river as was adjacent to our several shores—in which way it would have been useless to all—but it was placed on that footing on which alone it could be worth anything, to wit: as a right to all to navigate the whole length of the river in common. The import of the terms and the reason of the thing prove it was a right of common in the whole, and not a several right to each of a particular part. To which may be added the evidence of the stipulation itself, that we should navigate between New Orleans and the western bank, which, being adjacent to none of our States, could be held by us only as a right of common. Such was the nature of our right to navigate the Mississippi, as far as established by the treaty of Paris.

2. In the course of the Revolutionary war, in which the thirteen colonies, Spain, and France, were opposed to Great Britain, Spain took possession of several posts held by the British in Florida. It is unnecessary to inquire whether the possession of half a dozen posts scattered through a country of seven or eight hundred miles extent, could be considered as the possession and conquest of that country. If it was, it gave still but an inchoate right, as was before explained, which could not be perfected but by the relinquishment of the former possession at the close of the war; but certainly it could not be considered as a conquest of the river, even against Great Britain, since the possession of the shores, to wit, of the island of New Orleans on the one side, and Louisiana on the other, having undergone no change, the right in the water would remain the same, if considered only in its relation to them; and if considered as a distinct right, independent of the shores, then no naval victories obtained by Spain over Great Britain, in the course of the war, gave her the color of conquest over any water which the British fleet could enter. Still less can she be considered as having conquered the river, as against the United States, with whom she was not at war. We had a common right of navigation in the part of the river between Florida, the island of New Orleans, and the western bank, and nothing which passed between Spain and Great Britain, either during the war, or at its conclusion, could lessen that right. Accordingly, at the treaty of November, 1782, Great Britain confirmed the rights of the United States to the navigation of the river, from its source to its mouth, and in January, 1783, completed the right of Spain to the territory of Florida, by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great Britain. If it added anything to the rights of Spain respecting the river between the eastern and western banks, it could only be that portion of right which Great Britain had retained to herself in the treaty with the United States, held seven weeks before, to wit, a right of using it in common with the United States.

So that as by the treaty of 1763, the United States had obtained a common right of navigating the whole river from its source to its mouth, so by the treaty of 1782, that common right was confirmed to them by the only power who could pretend claims against them, founded on the state of war; nor has that common right been transferred to Spain by either conquest or cession.

But our right is built on ground still broader and more unquestionable, to wit:

3. On the law of nature and nations.

If we appeal to this, as we feel it written on the heart of man, what sentiment is written in deeper characters than that the ocean is free to all men, and their rivers to all their inhabitants? Is there a man, savage or civilized, unbiased by habit, who does not feel and attest this truth? Accordingly, in all tracts of country united under the same political society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind. The late case of Antwerp and the Scheldt was a striking proof a general union of sentiment on this point; as it is believed that Amsterdam had scarcely an advocate out of Holland, and even there its pretensions were advocated on the ground of treaties, and not of natural right. (The commissioners would do well to examine thoroughly what was written on this occasion.) The commissioners will be able perhaps to find, either in the practice or the pretensions of Spain, as to the Dauro, Tagus, and Guadiana, some acknowledgments of this principle on the part of that nation. This sentiment of right in favor of the upper inhabitants must become stronger in the proportion which their extent of country bears to the lower. The United States hold 600,000 square miles of habitable territory on the Mississippi and its branches, and this river and its branches afford many thousands of miles of navigable waters penetrating this territory in all its parts. The inhabitable grounds of Spain below our boundary and bordering on the river, which alone can pretend any fear of being incommoded by our use of the river, are not the thousandth part of that extent. This vast portion of the territory of the United States has no other outlet for its productions, and these productions are of the bulkiest kind. And in truth, their passage down the river may not only be innocent, as to the Spanish subjects on the river, but cannot fail to enrich them far beyond their present condition. The real interests then of all the inhabitants, upper and lower, concur in fact with their rights.

If we appeal to the law of nature and nations, as expressed by writers on the subject, it is agreed by them, that, were the river, where it passes between Florida and Louisiana, the exclusive right of Spain, still an innocent passage along it is a natural right in those inhabiting its borders above. It would indeed be what those writers call an imperfect right, because the modification of its exercise depends in a considerable degree on the conveniency of the nation through which they are to pass. But it is still a right as real as any other right, however well-defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should bee entitled to demand redress. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shore below, and founded in the same natural relations with the soil and water. And the line at which their rights meet is to be advanced or withdrawn, so as to equalize the inconveniences resulting to each party from the exercise of the right by the other. This estimate is to be fairly made with a mutual disposition to make equal sacrifices, and the numbers on each side are to have their due weight in the estimate. Spain holds so very small a tract of habitable land on either side below our boundary, that it may in fact be considered as a strait of the sea; for though it is eighty leagues from our boundary to the mouth of the river, yet it is only here and there in spots and slips that the land rises above the level of the water in times of inundation. There are, then, and ever must be, so few inhabitants on her part of the river, that the freest use of its navigation may be admitted to us without their annoyance. For authorities on this subject, see Grot. 1. 2. c. 2 § 11, 12, 13, c. 3. § 7, 8, 12. Puffendorf, 1. 3. c. 3. § 3, 4, 5, 6. Wolff's Inst. § 310, 311, 312. Vattel, 1. 1. § 292. 1. 2. § 123 to 139.

It is essential to the interests of both parties that the navigation of the river be free to both, on the footing on which it was defined by the treaty of Paris, viz.: through its whole breadth. The channel of the Mississippi is remarkably winding, crossing and recrossing perpetually from one side to the other of the general bed of the river. Within the elbows thus made by the channel, there is generally an eddy setting upwards, and it is by taking advantage of these eddies, and constantly crossing from one to another of them, that boats are enabled to ascend the river. Without this right the whole river would be impracticable both to the Americans and Spaniards.

It is a principle that the right to a thing gives a right to the means, without which it could not be used, that is to say, that the means follow their end. Thus, a right to navigate a river, draws to it a right to moor vessels to its shores, to land on them in cases of distress, or for other necessary purposes, &c. This principle is founded in natural reason, is evidenced by the common sense of mankind, and declared by the writers before quoted. See Grot. 1. 2. c. 2. § 15. Puffend. 1. 3. c. 3. § 8. Vattel, 1. 2. § 129.

The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their own citizens, by declaring them public,[28] (flumina publica sunt, hoc est populi Romani, Inst. 2. t. 1. § 2,) declared also that the right to the use of the shores was incident to that of the water. Ibid, § 1, 3, 4, 5. The laws of every country probably do the same. This must have been so understood between France and Great Britain, at the treaty of Paris, when a right was ceded to British subjects to navigate the whole river, and expressly that part between the island of New Orleans and the western bank, without stipulating a word about the use of the shores, though both of them belonged then to France, and were to belong immediately to Spain. Had not the use of the shores been considered as incident to that of the water, it would have been expressly stipulated; since its necessity was too obvious to have escaped either party. Accordingly, all British subjects used the shores habitually for the purposes necessary to the navigation of the river; and when a Spanish Governor undertook at one time to forbid this, and even cut loose the vessels fastening to their shores, a British frigate went immediately, moored itself to the shore opposite to the town of New Orleans, and set out guards with orders to fire on such as might attempt to disturb her moorings. The Governor acquiesced, the right was constantly exercised afterwards, and no interruption ever offered.

This incidental right extends even beyond the shores, where circumstances render it necessary to the exercise of the principal right; as, in the case of a vessel damaged, where the mere shore could not be a safe deposit for her cargo till she could be repaired, she may remove it into safe ground off the river. The Roman law shall be quoted here too, because it gives a good idea both of the extent and the limitations of this right. Ins. 1. 2. t. 1. § 4. [29]Riparum quoque usus publicus est, ut volunt jura gentium, sicut et ipsius fluminis usus publicus est. Itaque et navigium ad ripes appellere, et funes de arboribus ibi natis religare, et navis onera in his locis reponere, liberum quique est sicuti nec per flumen ipsum navigare quisquam prohibetur. And again, §5, [30]littorum quoque usus publicus, sive juri gentium est, ut et ipsius maris et ob id data est facultas volentibus, casas ibi sibi componere, in quas se recipere possint, &c. Again, § 1. [31]Nemo igitur ad littora maris accedere prohibitur; veluti deambulare aut navem appellere, sic tamen ut a villis, id est domiciliis monumentisque ibi positis, et ab edificiis abstineat, nec iis damnum inferat.

Among incidental rights are those of having pilots, buoys, beacons, landmarks, light-houses, &c., to guide the navigators. The establishment of these at joint expense, and under joint regulations, may be the subject of a future convention. In the meantime, both should be free to have their own, and refuse those of the other, both as to use and expense.

Very peculiar circumstances attending the river Mississippi, require that the incidental right of accommodation on the shore, which needs only occasional exercise on other rivers, should be habitual and constant on this. Sea vessels cannot navigate that river, nor the river vessels go to sea. The navigation would be useless then without an entrepôt where these vessels might safely deposit their own cargoes, and take those left by the others; and where warehouses and keepers might be constantly established for the safeguard of the cargoes. It is admitted, indeed, that the incidental right thus extended into the territory of the bordering inhabitants, is liable to stricter modifications in proportion as it interferes with their territorial right. But the inconveniences of both parties are still to have their weight, and reason and moderation on both sides are to draw the line between them. As to this, we count much on the liberality of Spain, on her concurrence in opinion with us, that it is for the interest of both parties to remove completely this germ of discord from between us, and draw our friendship as close as circumstances proclaim that it should be, and on the considerations which make it palpable that a convenient spot placed under our exclusive occupation, and exempted from the jurisdiction and police of their government, is far more likely to preserve peace than a mere free port, where eternal altercations would keep us in eternal ill humor with each other. The policy of this measure, and indeed of a much larger concession, having been formerly sketched in a paper of July 12th, 1790, sent to the commissioners severally, they are now referred to that.

If this be agreed to, the manner of fixing on that extra territorial spot becomes highly interesting. The most desirable to us, would be a permission to send commissioners to choose such spot, below the town of New Orleans, as they should find most convenient.

If this be refused, it would be better now to fix on the spot. Our information is, that the whole country below the town, and for sixty miles above it, on the western shore, is low, marshy, and subject to such deep inundation for many miles from the river, that if capable of being reclaimed at all by banking, it would still never afford an entrepôt sufficiently safe; that on the eastern side the only lands below the town, not subject to inundation, are at the Detour aux Anglais, or English Turn, the highest part of which, is that whereon the fort St. Marie formerly stood. Even this is said to have been raised by art, and to be very little above the level of the inundations. This spot then is what we would fix on, if obliged now to decide, with from one to as many square miles of the circumjacent lands as can be obtained, and comprehending expressly the shores above and below the site of the fort as far as possible. But as to the spot itself, the limits, and even whether it shall be extra territorial, or only a free port, and what regulations it shall be laid under, the convenience of that Government is entitled to so much respect and attention on our part, that the arrangement must be left to the management of the commissioners, who will doubtless use their best efforts to obtain all they can for us.

The worst footing on which the determination of the ground could be placed, would be a reference to joint commissioners; because their disagreement, a very probable, nay, a certain event, would undo the whole convention, and leave us exactly where we now are. Unless indeed they will engage to us, in case of such disagreement, the highest ground at the Detour aux Anglais, of convenient extent, including the landings and harbor thereto adjacent. This would ensure us that ground, unless better could be found and mutually preferred, and close the delay of right under which we have so long labored for peace-sake.

It will probably be urged, because it was urged on a former occasion, that, if Spain grants to us the right of navigating the Mississippi, other nations will become entitled to it by virtue of treaties giving them the rights of the most favored nation.

Two answers may be given to this:

1. When those treaties were made, no nations could be under contemplation but those then existing, or those at most who might exist under similar circumstances. America did not then exist as a nation; and the circumstances of her position and commerce, are so totally dissimilar to everything then known, that the treaties of that day were not adapted to any such being. They would better fit even China than America; because, as a manufacturing nation, China resembles Europe more. When we solicited France to admit our whale oils into her ports, though she had excluded all foreign whale oils, her minister made the objection now under consideration, and the foregoing answer was given. It was found to be solid; and the whale oils of the United States are in consequence admitted, though those of Portugal and the Hanse towns, and of all other nations, are excluded. Again, when France and England were negotiating their late treaty of commerce, the great dissimilitude of our commerce (which furnishes raw materials to employ the industry of others, in exchange for articles whereon industry has been exhausted) from the commerce of the European nations (which furnishes things ready wrought only) was suggested to the attention of both negotiators, and that they should keep their nations free to make particular arrangements with ours, by communicating to each other only the rights of the most favored European nation. Each was separately sensible of the importance of the distinction; and as soon as it was proposed by the one, it was acceded to by the other, and the word European was inserted in their treaty. It may fairly be considered then as the rational and received interpretation of the diplomatic term, "gentis amicissimæ"[32] that it has not in view a nation unknown in many cases at the time of using the term, and so dissimilar in all cases as to furnish no ground of just reclamation to any nation.

But the decisive answer is, that Spain does not grant us the navigation of the river. We have an inherent right to it; and she may repel the demand of any other nation by candidly stating her act to have been, what in truth it is, a recognition only, and not a grant.

If Spain apprehends that other nations may claim access to our ports in the Mississippi, under their treaties with us, giving them a right to come and trade in all our ports, though we would not choose to insert an express stipulation against them, yet we shall think ourselves justified to acquiesce in fact, under any regulations Spain may from time to time establish against their admission.

Should Spain renew another objection, which she relied much on before that the English at the Revolution treaty could not cede to us what Spain had taken from them by conquest, and what of course they did not possess themselves, the preceding observations furnish sufficient matter for refutation.

To conclude the subjects of boundary and navigation, each of the following conditions is to be considered by the commissioners as a sine quâ non.

1. That our southern boundary remain established at the completion of thirty-one degrees of latitude on the Mississippi, and so on to the ocean, as has been before described, and our western one along the middle of the channel of the Mississippi, however that channel may vary, as it is constantly varying, and that Spain cease to occupy or to exercise jurisdiction in any part northward or eastward of these boundaries.

2. That our right be acknowledged of navigating the Mississippi, in its whole breadth and length, from its source to the sea, as established by the treaty of 1763.

3. That neither the vessels, cargoes, or the persons on board, be stopped, visited, or subjected to the payment of any duty whatsoever; or, if a visit must be permitted, that it be under such restrictions as to produce the least possible inconvenience. But it should be altogether avoided, if possible, as the parent of perpetual broils.

4. That such conveniences be allowed us ashore, as may render our right of navigation practicable and under such regulations as may bonâ fide respect the preservation of peace and order alone, and may not have in object to embarrass our navigation, or raise a revenue on it. While the substance of this article is made a sine quâ non, the modifications of it are left altogether to the discretion and management of the commissioners.

We might add, as a fifth sine quâ non, that no phrase should be admitted in the treaty which could express or imply that we take the navigation of the Mississippi as a grant from Spain. But, however disagreeable it would be to subscribe to such a sentiment, yet, were the conclusion of a treaty to hang on that single objection, it would be expedient to waive it, and to meet, at a future day, the consequences of any resumption they may pretend to make, rather than at present, those of a separation without coming to any agreement.

We know not whether Spain has it in idea to ask a compensation for the ascertainment of our right.

1. In the first place, she cannot in reason ask a compensation for yielding what we have a right to, that is to say, the navigation of the river, and the conveniences incident to it of natural right.

2. In the second place, we have a claim on Spain for indemnification for nine years' exclusion from that navigation, and a reimbursement of the heavy duties (not less for the most part than 15 per cent. on extravagant valuations) levied on the commodities she has permitted to pass to New Orleans. The relinquishment of this will be no unworthy equivalent for any accommodations she may indulge us with, beyond the line of our strict right. And this claim is to be brought into view in proper time and manner, merely to be abandoned in consideration of such accommodations. We have nothing else to give in exchange. For as to territory, we have neither the right nor the disposition to alienate an inch of what belongs to any member of our Union. Such a proposition, therefore, is totally inadmissible, and not to be treated of for a moment.

3. On the former conferences on the navigation of the Mississippi, Spain chose to blend with it the subject of commerce; and, accordingly, specific propositions thereon passed between the negotiators. Her object, then, was to obtain our renunciation of the navigation, and to hold out commercial arrangements, perhaps as a lure to us; perhaps, however, she might then, and may now, really set a value on commercial arrangements with us, and may receive them as a consideration for accommodating us in the navigation; or, may wish for them, to have the appearance of receiving a consideration. Commercial arrangements, if acceptable in themselves, will not be the less so if coupled with those relating to navigation and boundary. We have only to take care that they be acceptable in themselves.

There are two principles which may be proposed as the basis of a commercial treaty: 1. That of exchanging the privileges of native citizens; or,

2. Those of the most favored nation.

1. With the nations holding important possessions in America, we are ready to exchange the rights of native citizens, provided they be extended through the whole possessions of both parties, but the propositions of Spain, made on the former occasion, (a copy of which accompanies this,) were, that we should give their merchants, vessels, and productions, the privilege of native merchants, vessels, and productions, through the whole of our possessions, and they give the same to ours only in Spain and the Canaries. This is inadmissible, because unequal; and, as we believe that Spain is not ripe for an equal exchange on this basis, we avoid proposing it.

2. Though treaties, which merely exchange the rights of the most favored nations, are not without all inconvenience, yet they have their conveniences also. It is an important one, that they leave each party free to make what internal regulations they please, and to give what preferences they find expedient to native merchants, vessels, and productions. And as we already have treaties on this basis, with France, Holland, Sweden, and Prussia, the two former of which are perpetual, it will be but small additional embarrassment to extend it to Spain. On the contrary, we are sensible it is right to place that nation on the most favored footing, whether we have a treaty with them or not, and it can do us no harm to secure by treaty a reciprocation of the right.

Of the four treaties before mentioned, either the French or the Prussian might be taken as a model. But it would be useless to propose the Prussian; because we have already supposed that Spain would never consent to those articles which give to each party access to all the dominions of the other; and, without this equivalent, we would not agree to tie our own hands so materially in war, as would be done by the 23d article, which renounces the right of fitting out privateers, or of capturing merchant vessels. The French treaty, therefore, is proposed as the model. In this, however, the following changes are to be made.

We should be admitted to all the dominions of Spain, to which any other foreign nation is, or may be admitted.

Article 5 being an exemption from a particular duty in France, will of course be omitted, as inapplicable to Spain.

Article 8 to be omitted, as unnecessary with Morocco, and inefficacious, and little honorable with any of the Barbary powers. But it may furnish occasion to sound Spain on the project of a convention of the powers at war with the Barbary States, to keep up, by rotation, a constant cruise of a given force on their coasts, till they shall be compelled to renounce forever, and against all nations, their predatory practices. Perhaps the infidelities of the Algerines to their treaty of peace with Spain, though the latter does not choose to break openly, may induce her to subsidize us to cruise against them with a given force.

Article 9 and 10, concerning fisheries, to be omitted, as inapplicable.

Article 11. The first paragraph of this article, respecting the droit d'aubaine, to be omitted; that law being supposed peculiar to France.

Article 17, giving asylum in the ports of either to the armed vessels of the other, with the prizes taken from the enemies of that other, must be qualified as it is in the 19th article of the Prussian treaty; as the stipulation in the latter part of the article, "that no shelter or refuge shall be given in the ports of the one to such as shall have made prize on the subjects of the other of the parties," would forbid us in case of a war between France and Spain, to give shelter in our ports to prizes made by the latter on the former, while the first part of the article would oblige us to shelter those made by the former on the latter—a very dangerous covenant, and which ought never to be repeated in any other instance.

Article 29. Consuls should be received in all the ports at which the vessels of either party may be received.

Article 30, concerning free ports in Europe and America. Free ports in the Spanish possessions in America, and particularly at the Havana, San Domingo, in the island of that name, and St. John of Porto Rico, are more to be desired than expected. It can, therefore, only be recommended to the best endeavors of the commissioners to obtain them. It will be something to obtain for our vessels, flour, &c., admission to those ports during their pleasure. In like manner, if they could be prevailed on to re-establish our right of cutting log-wood in the bay of Campeachy, on the footing on which it stood before the treaty of 1763, it would be desirable, and not endanger, to us, any contest with the English, who, by the Revolution treaty, are restrained to the south-eastern parts of Yucatan.

Article 31. The act of ratification, on our part, may require a twelvemonth from the date of the treaty, as the Senate meets regularly but once a year; and to return it to Madrid, for exchange, may require four months more. It would be better, indeed, if Spain would send her ratification to be exchanged by her representative here.

The treaty must not exceed twelve or fifteen years' duration, except the clauses relating to boundary, and the navigation of the Mississippi, which must be perpetual and final. Indeed, these two subjects had better be in a separate instrument.

There might have been mentioned a third species of arrangement, that of making special agreements on every special subject of commerce, and of setting a tariff of duty to be paid on each side, on every particular article; but this would require in our commissioners a very minute knowledge of our commerce, as it is impossible to foresee every proposition of this kind which might be brought into discussion, and to prepare them for it by information and instruction from hence. Our commerce, too, is, as yet, rather in a course of experiment, and the channels in which it will ultimately flow, are not sufficiently known to enable us to provide for it by special agreement. Nor have the exigencies of our new government, as yet, so far developed themselves, as that we can know to what degree we may or must have recourse to commerce for the purposes of revenue. No common consideration, therefore, ought to induce us, as yet, to arrangements of this kind. Perhaps nothing should do it with any nation, short of the privileges of natives in all their possessions, foreign and domestic.

It were to be wished, indeed, that some positively favorable stipulations respecting our grain, flour, and fish, could be obtained, even on our giving reciprocal advantages to some other commodities of Spain, say her wines and brandies.

But, 1st. If we quit the ground of the most favored nation, as to certain articles for our convenience, Spain may insist on doing the same for other articles for her convenience, and thus our commissioners will get themselves on the ground of a treaty of detail, for which they will not be prepared.

2d. If we grant favor to the wines and brandies of Spain, then Portugal and Spain will demand the same; and in order to create an equivalent, Portugal may lay a duty on our fish and grain, and France, a prohibition on our whale oils, the removal of which will be proposed as an equivalent.

This much, however, as to grain and flour, may be attempted. There has, not long since, been a considerable duty laid on them in Spain. This was while a treaty on the subject of commerce was pending between us and Spain, as that court considers the matter. It is not generally thought right to change the state of things pending a treaty concerning them. On this consideration, and on the motive of cultivating our friendship, perhaps the commissioners may induce them to restore this commodity to the footing on which it was, on opening the conferences with Mr. Gardoqui, on the 26th day of July, 1785. If Spain says, "do the same by your tonnage on our vessels," the answer may be, that our foreign tonnage affects Spain very little, and other nations very much; whereas the duty on flour in Spain affects us very much, and other nations very little. Consequently, there would be no equality in reciprocal relinquishment, as there had been none in the reciprocal innovation; and Spain, by insisting on this, would, in fact, only be aiding the interests of her rival nations, to whom we should be forced to extend the same indulgence. At the time of opening the conferences, too, we had, as yet, not erected any system; our government itself being not yet erected. Innovation then was unavoidable on our part, if it be innovation to establish a system. We did it on fair and general ground; on ground favorable to Spain. But they had a system, and, therefore, innovation was avoidable on their part.

It is known to the commissioners that we found it expedient to ask the interposition of France, lately, to bring on this settlement of our boundary, and the navigation of the Mississippi. How far that interposition has contributed to produce it, is uncertain. But we have reason to believe that her further interference would not produce an agreeable effect on Spain. The commissioners, therefore, are to avoid all further communications on the subject with the ministers of France, giving them such explanations as may preserve their good dispositions. But if, ultimately, they shall find themselves unable to bring Spain to agreement on the subject of the navigation and boundary, the interposition of France, as a mutual friend, and the guarantee of our limits, is then to be asked, in whatever light Spain may choose to consider it.

Should the negotiations on the subject of navigation and boundary assume, at any time, an unhopeful aspect, it may be proper that Spain should be given to understand, that, if they are discontinued without coming to any agreement, the Government of the United States cannot be responsible for the longer forbearance of their western inhabitants. At the same time the abandonment of the negotiation should be so managed as that, without engaging us to a further suspension of the exercise of our rights, we may not be committed to resume them on the instant. The present turbid situation of Europe cannot leave us long without a safe occasion of resuming our territory and navigation, and of carving for ourselves those conveniences, on the shores, which may facilitate and protect the latter effectually and permanently.

We had a right to expect that, pending a negotiation, all things would have remained in statu quo, and that Spain would not have proceeded to possess herself of other parts of our territory. But she has lately taken and fortified a new post on the Walnut hills, above the mouth of the Yazoo river, and far above the 31st degree. This garrison ought to have been instantly dislodged; but for our wish to be in friendship with Spain, and our confidence in her assurances "to bide by the limits established in our treaty with England," complaints of this unfriendly and uncandid procedure may be brought forward or not, as the commissioners shall see expedient.

XXVII.—Report on the case of Charles Russell and others, claiming certain lands.

January 21, 1792.

The Secretary of State, to whom was referred, by the President of the United States, the letter of the Governor of Virginia of January 7th, 1792, with the report of a committee of the House of Delegates of that commonwealth, of December 12th, 1791, and resolution of the General Assembly thereon, of December 17th, on the case of Charles Russell, late an officer in the service of the said commonwealth, stating that a considerable part of the tract of country allotted for the officers and soldiers having fallen into the State of North Carolina on the extension of their common boundary, the legislature of the said State had, in 1781, passed an act substituting in lieu thereof the tract of country between the said boundary and the rivers Mississippi, Ohio, Tennessee, and subjecting the same to the claims of their officers and soldiers. That the said Charles Russell had in consequence thereof, directed warrants for two thousand six hundred and sixty-six and two-thirds acres of land to be located within the said tract of country; but that the same belonging to the Chickasaws, he is unable to obtain a right thereto, and that there are other officers and soldiers of the said commonwealth under like circumstances:

Reports, That the tract of country before described, is within the boundaries of the Chickasaw nation as established by the treaty of Hopewell, the 16th day of January 1786.

That the right of occupancy of the said lands, therefore, being vested in the said nation, the case of the said Charles Russell, and other officers and soldiers of the said commonwealth, becomes proper to be referred to the legislature of the United States for their consideration.

XXVIII.—Report relative to negotiations at Madrid.

March 7, 1792.

The Secretary of State having understood, from communications with the commissioners of his Catholic Majesty, subsequent to that which he reported to the President on the 22d of December last, that though they considered the navigation of the Mississippi as the principal object of negotiation between the two countries, yet it was expected by their court that the conferences would extend to all the matters which were under negotiation on the former occasion with Mr. Gardoqui, and particularly to some arrangements of commerce, is of opinion, that, to renew the conferences on this subject also, since they desire it, will be but friendly and respectful, and can lead to nothing without our own consent; and that, to refuse it, might obstruct the settlement of the questions of navigation and boundary; and, therefore, reports to the President of the United States, the following observations and instructions to the commissioners of the United States, appointed to negotiate with the court of Spain a treaty or convention relative to the navigation of the Mississippi; which observations and instructions, he is of opinion, should be laid before the Senate of the United States, and their decision be desired, whether they will advise and consent that a treaty be entered into by the commissioners of the United States with Spain conformable thereto.

After stating to our commissioners the foundation of our rights to navigate the Mississippi, and to hold our southern boundary at the 31st degree of latitude, and that each of these is to be a sine quâ non, it is proposed to add as follows:

On the former conferences on the navigation of the Mississippi, Spain chose to blend with it the subject of commerce; and, accordingly, specific propositions thereon passed between the negotiators. Her object then was to obtain our renunciation of the navigation, and to hold out commercial arrangements perhaps as a lure to us. Perhaps, however, she might then, and may now, really set a value on commercial arrangements with us, and may receive them as a consideration for accommodating us in the navigation, or may wish for them to have the appearance of receiving a consideration. Commercial arrangements, if acceptable in themselves, will not be the less so, if coupled with those relating to navigation and boundary. We have only to take care that they be acceptable in themselves.

* * * * * * * *

XXIX.—Opinion on the Bill apportioning Representation.

April 4, 1792.

The Constitution has declared that representatives and direct taxes shall be apportioned among the several States according to their respective numbers. That the number of representatives shall not exceed one for every 30,000, but each State shall have at least one representative, and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose 3, Massachusetts 2.

The bill for apportioning representatives among the several States, without explaining any principle at all, which may show its conformity with the constitution, to guide future apportionments, says, that New Hampshire shall have 3 members, Massachusetts 16, &c. We are, therefore, to find by experiment what has been the principle of the bill; to do which, it is proper to state the federal or representable numbers of each State, and the numbers allotted to them by the bill. They are as follows:—

Members.
Vermont85,5323
New Hampshire141,8235
Massachusetts475,32716
Rhode Island68,4442
Connecticut285,9418
New York352,91511
New Jersey179,5566
Pennsylvania432,88014
Delaware55,5382
Maryland278,5139
Virginia630,55821
Kentucky68,7052
North Carolina353,52111
South Carolina206,2366
Georgia70,8432
3,636,312120

It happens that this representation, whether tried as between great and small States, or as between north and south, yields, in the present instance, a tolerably just result; and, consequently, could not be objected to on that ground, if it were obtained by the process prescribed in the Constitution; but if obtained by any process out of that, it becomes arbitrary and inadmissible.

The 1st member of the clause of the Constitution above cited is express, that representatives shall be apportioned among the several States according to their respective numbers. That is to say, they shall be apportioned by some common ratio—for proportion, and ratio, are equivalent words; and, in the definition of proportion among numbers, that they have a ratio common to all, or in other words, a common divisor. Now, trial will show that there is no common ratio, or divisor, which, applied to the numbers of each State, will give to them the number of representatives allotted in this bill. For trying the several ratios of 29, 30, 31, 32, 33, the allotments would be as follows:—

2930313233 The Bill
Vermont222223
New Hampshire444445
Massachusetts161515141416
Rhode Island222222
Connecticut877778
New York121111111011
New Jersey655556
Pennsylvania141413131314
Delaware111112
Maryland998889
Virginia212120191921
Kentucky222222
North Carolina121111111012
South Carolina766667
Georgia222222
118112109107105120

Then the bill reverses the constitutional precept, because, by it, representatives are not apportioned among the several States, according to their respective numbers.

It will be said that, though, for taxes, there may always be found a divisor which will apportion them among the States according to numbers exactly, without leaving any remainder, yet, for representatives, there can be no such common ratio, or divisor, which, applied to the several numbers, will divide them exactly, without a remainder or fraction. I answer, then, that taxes must be divided exactly, and representatives as nearly as the nearest ratio will admit; and the fractions must be neglected, because the Constitution calls absolutely that there be an apportionment or common ratio, and if any fractions result from the operation, it has left them unprovided for. In fact it could not but foresee that such fractions would result, and it meant to submit to them. It knew they would be in favor of one part of the Union at one time, and of another at another, so as, in the end, to balance occasional irregularities. But instead of such a single common ratio, or uniform divisor, as prescribed by the Constitution, the bill has applied two ratios, at least, to the different States, to wit, that of 30,026 to the seven following: Rhode Island, New York, Pennsylvania, Maryland, Virginia, Kentucky and Georgia; and that of 27,770 to the eight others, namely: Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, North Carolina, and South Carolina, as follows:—

Rhode Island68,444 divided by 30,026 gives2
New York352,915 divided by 30,026 gives 11
Pennsylvania432,880 divided by 30,026 gives 14
Maryland278,513 divided by 30,026 gives 9
Virginia630,558 divided by 30,026 gives 21
Kentucky58,705 divided by 30,026 gives 2
Georgia70,843 divided by 30,026 gives 2
Vermont85,532 divided by 27,770 gives 3
New Hampshire141,823 divided by 27,770 gives 5
Massachusetts475,327 divided by 27,770 gives 16
Connecticut235,941 divided by 27,770 gives 8
New Jersey179,556 divided by 27,770 gives 6
Delaware55,538 divided by 27,770 gives 2
North Carolina353,521 divided by 27,770 gives 12
South Carolina206,236 divided by 27,770 gives 7

And if two ratios be applied, then fifteen may, and the distribution become arbitrary, instead of being apportioned to numbers. Another member of the clause of the Constitution which has been cited, says "the number of representatives shall not exceed one for every 30,000, but each State shall have at least one representative." This last phrase proves that it had no contemplation that all fractions, or numbers below the common ratio were to be unrepresented; and it provides especially that in the case of a State whose whole number shall be below the common ratio, one representative shall be given to it. This is the single instance where it allows representation to any smaller number than the common ratio, and by providing especially for it in this, shews it was understood that, without special provision, the smaller number would in this case, be involved in the general principle. The first phrase of the above citations, that "the number of representatives shall not exceed one for every 30,000," is violated by this bill which has given to eight States a number exceeding one for every 30,000, to wit, one for every 27,770.

In answer to this, it is said that this phrase may mean either the 30,000 in each State, or the 30,000 in the whole Union, and that in the latter case it serves only to find the amount of the whole representation; which, in the present state of population, is 120 members. Suppose the phrase might bear both meanings, which will common sense apply to it? Which did the universal understanding of our country apply to it? Which did the Senate and Representatives apply to it during the pendency of the first bill, and even till an advanced stage of this second bill, when an ingenious gentleman found out the doctrine of fractions, a doctrine so difficult and inobvious, as to be rejected at first sight by the very persons who afterwards became its most zealous advocates?

The phrase stands in the midst of a number of others, every one of which relates to States in their separate capacity. Will not plain common sense then, understand it, like the rest of its context, to relate to States in their separate capacities?

But if the phrase of one for 30,000 is only meant to give the aggregate of representatives, and not at all to influence their apportionment among the States, then the 120 being once found, in order to apportion them, we must recur to the former rule which does it according to the numbers of the respective States; and we must take the nearest common divisor, as the ratio of distribution, that is to say, that divisor which, applied to every State, gives to them such numbers as, added together, come nearest to 120. This nearest common ratio will be found to be 28,658, and will distribute 119 of the 120 members, leaving only a single residuary one. It will be found too to place 96,648 fractional numbers in the eight northernmost States, and 106,582 in the seven southernmost. The following table shows it:

Ratio, 28,658Fraction.
Vermont85,832227,816
New Hampshire141,823426,391
Massachusetts475,3271613,599
Rhode Island68,444210,728
Connecticut235,94185,077
New York352,915126,619
New Jersey119,85666,408
Pennsylvania432,880151096,648
Delaware55,538126,680
Maryland278,503918,191
Virginia630,5582124,540
Kentucky68,705210,989
North Carolina353,521127,225
South Carolina206,23674,230
Virginia70,843223,137105,582
3,636,312119202,230202,230

Whatever may have been the intention, the effect of neglecting the nearest divisor, (which leaves but one residuary member,) and adopting a distant one (which leaves eight), is merely to take a member from New York and Pennsylvania, each, and give them to Vermont and New Hampshire. But it will be said, this is giving more than one for 30,000. True, but has it not been just said that the one for 30,000 is prescribed only to fix the aggregate number, and that we are not to mind it when we come to apportion them among the States? That for this we must recur to the former rule which distributes them according to the numbers in each State? Besides does not the bill itself apportion among seven of the States by the ratio of 27,770? which is much more than one for 30,000.

Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniences. Let us weigh those resulting from both constructions.

From that giving to each State a member for every 30,000 in that State results the single inconvenience that there may be large portions unrepresented, but it being a mere hazard on which State this will fall, hazard will equalize it in the long run. From the others result exactly the same inconvenience. A thousand cases may be imagined to prove it. Take one. Suppose eight of the States had 45,000 inhabitants each, and the other seven 44,999 each, that is to say each one less than each of the others. The aggregate would be 674,993, and the number of representatives at one for 30,000 of the aggregate, would be 22. Then, after giving one member to each State, distribute the seven residuary members among the seven highest fractions, and though the difference of population be only an unit, the representation would be the double.

Fractions.
1st.45,000215,000
2d.45,000215,000
3d.45,000215,000
4th.45,000215,000
5th.45,000215,000
6th.45,000215,000
7th.45,000215,000
8th.45,000115,000
9th.44,999114,999
10th.44,999114,999
11th.44,999114,999
12th.44,999114,999
13th.44,999114,999
14th.44,999114,999
15th. 14,999
674,99322

Here a single inhabitant the more would count as 30,000. Nor is this case imaginable, only it will resemble the real one whenever the fractions happen to be pretty equal through the whole States. The numbers of our census happen by accident to give the fractions all very small, or very great, so as to produce the strongest case of inequality that could possibly have occurred, and which may never occur again. The probability is that the fractions will generally descend gradually from 29,999 to 1. The inconvenience then of large unrepresented fractions attends both constructions; and while the most obvious construction is liable to no other, that of the bill incurs many and grievous ones.

1. If you permit the large fraction in one State to choose a representative for one of the small fractions in another State, you take from the latter its election, which constitutes real representation, and substitute a virtual representation of the disfranchised fractions, and the tendency of the doctrine of virtual representation has been too well discussed and appreciated by reasoning and resistance on a former great occasion to need development now.

2. The bill does not say that it has given the residuary representatives to the greatest fraction; though in fact it has done so. It seems to have avoided establishing that into a rule, lest it might not suit on another occasion. Perhaps it may be found the next time more convenient to distribute them among the smaller States; at another time among the larger States; at other times according to any other crotchet which ingenuity may invent, and the combinations of the day give strength to carry; or they may do it arbitrarily by open bargains and cabal. In short this construction introduces into Congress a scramble, or a vendue for the surplus members. It generates waste of time, hot blood, and may at some time, when the passions are high, extend a disagreement between the two Houses, to the perpetual loss of the thing, as happens now in the Pennsylvania assembly; whereas the other construction reduces the apportionment always to an arithmetical operation, about which no two men can ever possibly differ.

3. It leaves in full force the violation of the precept which declares that representatives shall be apportioned among the States according to their numbers, i. e., by some common ratio.

Viewing this bill either as a violation of the constitution, or as giving an inconvenient exposition of its words, is it a case wherein the President ought to interpose his negative? I think it is.

1. The non-user of his negative begins already to excite a belief that no President will ever venture to use it; and has, consequently, begotten a desire to raise up barriers in the State legislatures against Congress, throwing off the control of the constitution.

2. It can never be used more pleasingly to the public, than in the protection of the constitution.

3. No invasions of the constitution are fundamentally so dangerous as the tricks played on their own numbers, apportionment, and other circumstances respecting themselves, and affecting their legal qualifications to legislate for the union.

4. The majorities by which this bill has been carried (to wit: of one in the Senate and two in the Representatives) show how divided the opinions were there.

5. The whole of both houses admit the constitution will bear the other exposition, whereas the minorities in both deny it will bear that of the bill.

6. The application of any one ratio is intelligible to the people, and will, therefore be approved, whereas the complex operations of this bill will never be comprehended by them, and though they may acquiesce, they cannot approve what they do not understand.

XXX.—Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves.

The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts &c., provide for the common defence and general welfare of the United States." I do not consider this clause as reaching the point. I suppose its meaning to be, that Congress may collect taxes for the purpose of providing for the general welfare, in those cases wherein the Constitution empowers them to act for the general welfare. To suppose that it was meant to give them a distinct substantive power, to do any act which might tend to the general welfare, is to render all the enumerations useless, and to make their powers unlimited. We must seek the power therefore in some other clause of the Constitution. It says further, that Congress shall have power to "define and punish piracies and felonies committed on the high seas, and offences against the law of nations." These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concurrent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort?—which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the "Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations."—Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period.]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further;—for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment—capital or what? 3d. Whence is the venue to come?

XXXI.—Report on Assays at the Mint, communicated to the House of Representatives, January 8, 1793.

The Secretary of State, to whom was referred, by the President of the United States, the resolution of the House of Representatives of the 29th of November, 1792, on the subject of experiments of France, England, Spain, and Portugal, reports:

That assays and experiments have been, accordingly, made at the mint, by the director, and under his care and inspection, of sundry gold and silver coins of France, England, Spain, and Portugal, and of the quantity of fine gold and alloy in each of them, and the specific gravities of those of gold given in by the director, a copy of which, and of the letter covering it, are contained in the papers marked A and B.