You tell me, also, that it is the Governor's opinion, that the State should have the benefit resulting from the passports, because the undoubted power of granting such passports is in the State; and in another letter you say it has been urged in argument, that Congress have no right to grant the passports. As the right is thus brought in question, it is to be presumed, that should that right be in Congress, the Governor's argument must operate in their favor. If I am rightly informed, their right on this occasion is not only unquestionable, but it is exclusive; and I am told that numerous instances have occurred in which vessels having passports from one State have been captured by the privateers of another State, and been adjudged lawful prize. Judge Griffin, who is now in Virginia, can doubtless give information on this subject, and if one could be allowed to determine where the right is from where it ought to be, there can be no doubt but that it must be in Congress. If this be so, then the assertions about delivering the rights of Virginia into the hands of Congress, must be considered as nothing more than mere flowers of rhetoric, which are very good to please an audience, but ought not to influence or convince a legislative body.
How it can be said, that these passports contravene the resolutions of Congress for confiscating British manufactures within the United States, I am at a loss to conceive, and shall be, unless it can be proved, that tobacco is a British manufacture. For I cannot suppose, that it is intended to confiscate that property, which, having been secured by the capitulation, is under the protection of the law of nations, which law must always be taken notice of and respected by the municipal law of every civilized country. As to the laws of Virginia, which may be contravened by it, I cannot speak decidedly, but I have a pretty strong reason to doubt the truth of this assertion, and it will presently be assigned. But of all things in the world the most ridiculous is the assertion, that this would give cause of complaint to the King of France. There is something of the same kind in the resolutions of the Delegates, which I will now consider; observing beforehand, that the objection would come rather unfortunately, should it be made by men, whose zeal for the honor and interest of his Most Christian Majesty has never shown itself, except in the present moment, and then by exciting discord among his allies.
The resolutions, being the act of a respectable body, are deserving of respect, and shall meet with it from me. But I must take the liberty to differ from them in some of their positions. It is resolved first, that allowing the capitulants to export tobacco is not warranted by the capitulation. Much of what follows depends on the equivocal sense of the word warranted. If by that word is meant enjoined, or directed, the position is just, but if the idea to be conveyed is, that such exportation is not permitted, then the position is untrue. The exportation is very clearly permitted by the capitulation, because the capitulation does not prohibit it, nor indeed say anything about it. But in a day or two after the capitulation an agreement was made for the purchase of goods payable in tobacco, which is now sanctioned by the Delegates in the last of their resolutions. Clearly, therefore, the exportation of tobacco in payment for British goods, is (in the judgment of the Delegates) permitted by the capitulation.
The second resolution seems to go upon a mistake. The Acts of Congress for confiscating British manufactures, as I have already observed in another place, cannot, I should imagine, be contrary to the laws of the Commonwealth, or else it would not have been permitted in another instance, for the Delegates cannot be supposed to intend a breach of the law, and still less can they be supposed to mean, that it was lawful for the general and the State Agent to do what it is not lawful for the United States in Congress to do.
The third resolution, quoting a part of an article in the treaty of commerce, appears to me to be rather inconclusive. The object of that article was to make provision in a case which might happen, when one of the high contracting parties was at peace, and the other at war, which is not the case at present. The sense which France entertains on this subject may clearly be learnt from the various capitulations granted to the conquered Islands; and if I am not much misinformed the sense of Virginia on this very question of exporting tobacco may be found, by consulting sundry instances of the kind subsequent to the capitulation of York.
The fourth resolution is a conclusion drawn from the three preceding, and says that the capitulation does not warrant the enemy to export tobacco, and that such exportation would be contravening the regulations of the United States, and contrary to the laws of the Commonwealth, wherefore the vessels ought not to be permitted to load. The premises on which this conclusion is founded being unsupported, the conclusion itself must fall, or else the next succeeding resolution ought to be revoked.
The industry which you say has been used on this occasion would not have surprised me, if our affairs had been in such train, that the country was entirely out of danger. But under our present circumstances, it both astonishes and afflicts me, not for myself, but for the public. Men may flatter themselves, that all is safe and well, and endeavor to shrink from the public burdens and embarrass the public operations, but the consequence is clear, and certain. The enemy know they cannot conquer, and therefore seek to divide us. Convinced that the Northern and Eastern States cannot even then be subdued, their ultimate ambition now is to subjugate those to the southward, and the only means under heaven of preventing it is by unanimity. That the other States should be plunged into hasty measures, pregnant with disunion, might have been expected, but that any inhabitants of a State, deeply interested to pursue the contrary conduct, should be so blind both to the duty and interest of that State will scarcely be believed hereafter, and could not have happened now, but from causes which would bear a harder name than I shall give them.
I am, Sir, &c.
ROBERT MORRIS.