Philadelphia, February 2, 1792.
Sir,—On the receipt of your letter of the 14th of December, I communicated it to the President of the United States, and under the sanction of his authority, the principal members of the executive department made it their duty to make known in conversations generally, the explicit disclaimer, in the name of your court, which you had been pleased to give us, that the government of Canada had supported or encouraged the hostilities of our Indian neighbors in the western country. Your favor of January the 30th, to the same purpose, has been, in like manner, communicated to the President, and I am authorized to assure you, that he is duly sensible of this additional proof of the disposition of the court of London, to confine the proceedings of their officers in our vicinage within the limits of friendship and good neighborhood, and that a conduct so friendly and just, will furnish us a motive the more for those duties and good offices which neighbor nations owe each other.
You have seen too much, Sir, of the conduct of the press in countries where it is free, to consider the gazettes as evidence of the sentiments of any part of the government; you have seen them bestow on the government itself, in all its parts, its full share of inculpation. Of the sentiments of our government on the subject of your letter, I cannot give you better evidence than the statement of the causes of the Indian war, made by the Secretary of War on the 26th of the last month, by order of the President, and inserted in the public papers. No interference on the part of your nation is therein stated among the causes of the war. I am happy, however, in the hope, that a due execution of the treaty will shortly silence those expressions of public feeling by removing their cause. I have the honor to be, with great respect and esteem, Sir, your most obedient, and most humble servant.
TO THE PRESIDENT OF THE UNITED STATES.
Philadelphia, February 4, 1792.
Sir,—The late appointment of a Minister Resident to the Hague, has brought under consideration the condition of Mr. Dumas, and the question, whether he is, or is not, at present in the service of the United States?
Mr. Dumas, very early in the war, was employed first by Dr. Franklin, afterwards by Mr. Adams, to transact the affairs of the United States in Holland. Congress never passed any express vote of confirmation, but they opened a direct correspondence with Mr. Dumas, sent him orders to be executed, confirmed and augmented his salary, made that augmentation retrospective, directed him to take up his residence in their hotel at the Hague, and passed such other votes from time to time as established him de facto their agent at the Hague. On the change in the organization of our government in 1789, no commission nor new appointment took place with respect to him, though it did in most other cases; yet the correspondence with him from the office of Foreign Affairs has been continued, and he has regularly received his salary. A doubt has been suggested, whether this be legal. I have myself no doubt but what it is legal. I consider the source of authority with us to be the Nation. Their will, declared through its proper organ, is valid, till revoked by their will declared through its proper organ again also. Between 1776 and 1789, the proper organ for pronouncing their will, whether legislative or executive, was a Congress formed in a particular manner. Since 1789 it is a Congress formed in a different manner, for laws, and a President, elected in a particular way, for making appointments and doing other executive acts. The laws and appointments of the ancient Congress were as valid and permanent in their nature, as the laws of the new Congress, or appointments of the new Executive; these laws and appointments, in both cases deriving equally their source from the will of the nation; and when a question arises, whether any particular law or appointment is still in force, we are to examine, not whether it was pronounced by the ancient or present organ, but whether it has been at any time revoked by the authority of the nation, expressed by the organ competent at the time. The nation, by the act of their federal convention, established some new principles and some new organizations of the government. This was a valid declaration of their will, and ipso facto revoked some laws before passed, and discontinued some officers and offices before appointed. Wherever, by this instrument, an old office was suspended by a new one, a new appointment became necessary; but where the new Constitution did not demolish an office, either expressly or virtually, nor the President remove the officer, both the office and officer remained. This was the case of several; in many of them, indeed, an excess of caution dictated the superaddition of a new appointment; but where there was no such superaddition, as in the instance of Mr. Dumas, both the office and officer still remained: for the will of the nation, validly pronounced by the proper organ of the day, had constituted him their agent, and that will has not, through any of its successive organs, revoked its appointment. I think, therefore, there is no room to doubt its continuance, and that the receipt of salary by him has been lawful.
However, I would not wish to take on myself alone the decision of a question so important, whether considered in a legal or constitutional view; and therefore submit it to you, Sir, whether it is not a proper question whereon to take the opinion of the Attorney General?
Another question then arises, Ought Mr. Dumas to be discontinued? I am of opinion he ought not.