Chapter LXXI: Part VI: Miscellaneous Papers (11)

By the ancient law of nations, _e. g._ in the time of the Romans, the furnishing a limited aid of troops, though stipulated, was deemed a cause of war. In latter times, it is admitted not to be a cause of war. This is one of the improvements in the law of nations. I thought we might conclude, by parity of reasoning, that the guaranteeing a limited portion of territory, in a stipulated case, might not, by the modern law of nations, be a cause of war. I therefore meant by the introduction of that word, to lay the foundation of the execution of our guarantee, by way of negotiation with England. The word was, therefore, introduced, and a strong letter was written to Mr. Pinckney to observe to Great Britain that we were bound by our treaties with the other belligerent powers to observe certain principles during this war: that we were willing to observe the same principles towards her; and indeed, that we considered it as essential to proceed by the same rule to all, and to propose to her to select those articles concerning our conduct in a case of our neutrality from any one of our treaties which she pleased; or that we would take those from her own treaty with France, and make a temporary Convention of them for the term of the present war; and he was instructed to press this strongly. I told Genet that we had done this; but instead of giving us time to work our principles into effect by negotiation, he immediately took occasion in a letter, to threaten that if we did not resent the conduct of the British in taking French property in American bottoms, and protect their goods by _effectual measures_ (meaning by arms), he would give direction that the principle of our treaty of goods following the bottom, should be disregarded. He was, at the same time, in the habit of keeping our goods taken in British bottoms; so that they were to take the gaining alternative of each principle, and give us the losing one. It became necessary to oppose this in the answer to his letter, and it was impossible to do it soundly, but by placing it on its true ground, to wit: that the law of nations established as a general rule that _goods should follow the owner_, and that the making them _follow the vessel_ was an exception depending on special conventions only in those cases where the Convention had been made: that the exception had been established by us in our treaties with France, Holland, and Prussia, and that we should endeavor to extend it to England, Spain, and other powers; but that till it was done, we had no right to make war for the enforcement of it. He thus obliged us to abandon in the first moment the ground we were endeavoring to gain, that is to say, his ground against England and Spain, and to take the very ground of England and Spain against him. This was my private reason for proposing the term _modern_ in the proclamation; that it might reserve us a ground to obtain the very things he wanted. But the world, who knew nothing of these private reasons, were to understand by the expression the _modern law of nations_, that law with all the improvements and mollifications of it which an advancement of civilization in _modern_ times had introduced. It does not mean strictly anything which is not a part of the _law of nations_ in _modern_ times, and therefore could not be inconsistent with the ground taken in the letter to Genet, which was that of the _law of nations_, and by no means could be equivalent to a declaration by the President of the specific principle, that _goods should follow the bottom_.

XXXIII.

_An account of the Capitol in Virginia._

The Capitol in the city of Richmond, in Virginia, is the model of the Temples of Erectheus at Athens, of Balbec, and of the Maison quarrée of Nismes. All of which are nearly of the same form and proportions, and are considered as the most perfect examples of cubic architecture, as the Pantheon of Rome is of the spherical. Their dimensions not being sufficient for the purposes of the capitol, they were enlarged, but their proportions rigorously observed. The capitol is of brick, one hundred thirty-four feet long, seventy feet wide, and forty-five feet high, exclusive of the basement. Twenty-eight feet of its length is occupied by a portico of the whole breadth of the house, showing six columns in front, and two intercolonnations in flank. It is of a single order, which is Ionic; its columns four feet two inches diameter, and their entablature running round the whole building. The portico is crowned by a pediment, the height of which is two ninths of its span.

Within the body of the building, which is one hundred and six feet long, are two tier of rooms twenty-one feet high each. In the lower, at one end, is the room in which the Supreme court sets, thirty feet by sixty-four feet with a vestibule fourteen feet by twenty-two feet, and an office for their clerk, fourteen feet by thirteen feet. In the other end is the room for the House of Delegates, thirty feet by sixty-four feet, with a lobby fourteen feet by thirty-six feet. In the middle is a room thirty-six feet square, of the whole height of the building, and receiving its light from above. In the centre of this room is a marble statue of General Washington, made at Paris, by Houdon, who came over to Virginia for the express purpose of taking his form. The statue is made accurately of the size of life. A peristile of columns in the same room, six feet from the wall, and twenty-two and a half feet high with their entablature, support a corridor above, serving as a communication for all the upper apartments, the stairs landing in it. In the upper tier is a Senate chamber thirty feet square, an office for their clerk, five rooms for committees and juries, an office for the clerk of the House of Delegates, a chamber for the Governor and Council, and a room for their clerk. In the basement of the building are the Land office, Auditor's office, and Treasury.

The drawings of the Façade and other elevations, were done by Clarissault, one of the most correct architects of France, and author of the antiquities of Nismes, among which was the Maison quarrée. The model in stucco was made under his direction, by an artist who had been employed many years in Greece, by the Count de Choiseul, ambassador of France at Constantinople, in making models of the most celebrated remains of ancient architecture in that country.

XXXIV.

_To the Speaker and House of Delegates of the Commonwealth of Virginia, being a Protest against interference of Judiciary between Representative and Constituent.--1797._

The petition of the subscribers, inhabitants of the counties of Amherst, Albemarle, Fluvanna, and Coochland, sheweth:

That by the constitution of this State, established from its earliest settlement, the people thereof have professed the right of being governed by laws to which they have consented by representatives chosen by themselves immediately: that in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the co-ordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any: that so necessary has this intercourse been deemed in the country from which they derive principally their descent and laws, that the correspondence between the representative and constituent is privileged there to pass free of expense through the channel of the public post, and that the proceedings of the legislature have been known to be arrested and suspended at times until the Representatives could go home to their several counties and confer with their constituents.

That when, at the epoch of Independence, the constitution was formed under which we are now governed as a commonwealth, so high were the principles of representative government esteemed, that the legislature was made to consist of two branches, both of them chosen immediately by the citizens; and that general system of laws was continued which protected the relations between the representative and constituent, and guarded the functions of the former from the control of the Judiciary and Executive branches.

That when circumstances required that the ancient confederation of this with the sister States, for the government of their common concerns, should be improved into a more regular and effective form of general government, the same representative principle was preserved in the new legislature, one branch of which was to be chosen directly by the citizens of each State, and the laws and principles remained unaltered which privilege the representative functions, whether to be exercised in the State or General Government, against the cognizance and notice of the co-ordinate branches, Executive and Judiciary; and for its safe and convenient exercise, the inter-communication of the representative and constituent has been sanctioned and provided for through the channel of the public post, at the public expense.

That at the general partition of this commonwealth into districts, each of which was to choose a representative to Congress, the counties of Amherst, Albemarle, Fluvanna, and Coochland, were laid off into one district: that at the elections held for the said district, in the month of April, in the years 1795 and 1797, the electors thereof made choice of Samuel Jordan Cabell, of the county of Amherst, to be their representative in the legislature of the general government; that the said Samuel Jordan Cabell accepted the office, repaired at the due periods to the legislature of the General Government, exercised his functions there as became a worthy member, and as a good and dutiful representative was in the habit of corresponding with many of his constituents, and communicating to us, by way of letter, information of the public proceedings, of asking and receiving our opinions and advice, and of contributing, as far as might be with right, to preserve the transactions of the general government in unison with the principles and sentiments of his constituents: that while the said Samuel J. Cabell was in the exercise of his functions as a representative from this district, and was in the course of that correspondence which his duty and the will of his constituents imposed on him, the right of thus communicating with them, deemed sacred under all the forms in which our government has hitherto existed, never questioned or infringed even by Royal judges or governors, was openly and directly violated at a Circuit court of the General Government, held at the city of Richmond, for the district of Virginia, in the month of May of this present year, 1790: that at the said court, A, B, &c., some of whom were foreigners, having been called upon to serve in the office of grand jurors before the said court, were sworn to the duties of said office in the usual forms of the law, the known limits of which duties are to make presentment of those acts of individuals which the laws have declared to be crimes or misdemeanors: that departing out of the legal limits of their said office, and availing themselves of the sanction of its cover, wickedly and contrary to their fidelity to destroy the rights of the people of this commonwealth, and the fundamental principles of representative government, they made a presentment of the act of the said Samuel J. Cabell, in writing letters to his constituents in the following words, to wit: "We, of the grand jury of the United States, for the district of Virginia, present as a real evil, the circular letters of several members of the late Congress, and particularly letters with the signature of Samuel J. Cabell, endeavoring, at a time of real public danger, to disseminate unfounded calumnies against the happy government of the United States, and thereby to separate the people therefrom; and to increase or produce a foreign influence, ruinous to the peace, happiness, and independence of these United States."

That the grand jury is a part of the Judiciary, not permanent indeed, but in office, _pro hac vice_ and responsible as other judges are for their actings and doings while in office: that for the Judiciary to interpose in the legislative department between the constituent and his representative, to control them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what communications may pass between them, and to punish all others, to put the representative into jeopardy of criminal prosecution, of vexation, expense, and punishment before the Judiciary, if his communications, public or private, do not exactly square with their ideas of fact or right, or with their designs of wrong, is to put the legislative department under the feet of the Judiciary, is to leave us, indeed, the shadow, but to take away the substance of representation, which requires essentially that the representative be as free as his constituents would be, that the same interchange of sentiment be lawful between him and them as would be lawful among themselves were they in the personal transaction of their own business; is to do away the influence of the people over the proceedings of their representatives by excluding from their knowledge, by the terror of punishment, all but such information or misinformation as may suit their own views; and is the more vitally dangerous when it is considered that grand jurors are selected by officers nominated and holding their places at the will of the Executive: that they are exposed to influence from the judges who are nominated immediately by the Executive, and who, although holding permanently their commissions as judges, yet from the career of additional office and emolument _actually_ opened to them of late, whether _constitutionally_ or not, are under all those motives which interest or ambition inspire, of courting the favor of that branch from which appointments flow: that grand juries are frequently composed in part of bystanders, often foreigners, of foreign attachments and interests, and little knowledge of the laws they are most improperly called to decide on; and finally, is to give to the Judiciary, and through them to the Executive, a complete preponderance over the legislature, rendering ineffectual that wise and cautious distribution of powers made by the constitution between the three branches, and subordinating to the other two that branch which most immediately depends on the people themselves, and is responsible to them at short periods.

That independently of these considerations of a constitutional nature, the right of free correspondence between citizen and citizen on their joint interests, public or private, and under whatsoever laws these interests arise, is a natural right of every individual citizen, not the gift of municipal law, but among the objects for the protection of which municipal laws are instituted: that so far as the attempt to take away this natural right of free correspondence is an offence against the privileges of the legislative house, of which the said Samuel J. Cabell is a member, it is left to that house, entrusted with the preservation of its own privileges, to vindicate its immunities against the encroachments and usurpations of a co-ordinate branch; but so far as it is an infraction of our individual rights as citizens by other citizens of our own State, the judicature of this commonwealth is solely competent to its cognizance, no other possessing any powers of redress: that the commonwealth retains all its judiciary cognizances not expressly alienated in the grant of powers to the United States as expressed in their constitution: that that constitution alienates only those enumerated in itself, or arising under laws or treaties of the United States made in conformity with its own tenor; but the right of free correspondence is not claimed under that constitution nor the laws or treaties derived from it, but as a natural right, placed originally under the protection of our municipal laws, and retained under the cognizance of our own courts.

Your petitioners further observe that though this crime may not be specifically defined and denominated by any particular statute, yet it is a crime, and of the highest and most alarming nature; that the constitution of this commonwealth, aware it would sometimes happen that deep and dangerous crimes, pronounced as such in the heart of every friend to his country and its free constitution, would often escape the definitions of the law, and yet ought not to escape its punishments, fearing at the same time to entrust such undescribed offences to the discretion of ordinary juries and judges, has reserved the same to the cognizance of the body of the commonwealth acting by their representatives in general assembly, for which purpose provision is made by the constitution in the following words, to wit: "The Governor, when he is out of office, and _others_ offending against the State, either by mal-administration, corruption, _or other means_ by which the safety of the State may be endangered, shall be impeachable by the House of Delegates. Such impeachment to be prosecuted by the Attorney General or such other person or persons as the house may appoint in the general court, according to the laws of the land. If found guilty, he or they shall be either forever disabled to hold any office under government, or removed from such offices _pro tempore_, or subjected to such pains or penalties as the law shall direct."

Considering then the House of Delegates as the standing inquest of the whole commonwealth so established by the constitution, that its jurisdiction as such extends over all persons within its limits, and that no pale, no sanctuary has been erected against their jurisdiction to protect offenders who have committed crimes against the laws of the commonwealth and rights of its citizens: that the crime committed by the said grand jurors is of that high and extraordinary character for which the constitution has provided extraordinary procedure: that though the violation of right falls in the first instance on us, your petitioners and the representative chosen immediately by us, yet in principle and consequence it extends to all our fellow-citizens, whose safety is passed away whenever their representatives are placed, in the exercise of their functions, under the direction and coercion of either of the other departments of government, and one of their most interesting rights is lost when that of a free communication of sentiment by speaking or writing is suppressed: We, your petitioners, therefore pray that you will be pleased to take your constitutional cognizance of the premises, and institute such proceedings for impeaching and punishing the said A, B, &c., as may secure to the citizens of this commonwealth their constitutional right: that their representatives shall in the exercise of their functions be free and independent of the other departments of government, may guard that full intercourse between them and their constituents which the nature of their relations and the laws of the land establish, may save to them the natural right of communicating their sentiments to one another by speaking and writing, and may serve as a terror to others attempting hereafter to subvert those rights and the fundamental principles of our constitution, to exclude the people from all direct influence over the government they have established by reducing that branch of the legislature which they choose directly, to a subordination under those over whom they have but an indirect, distant, and feeble control.

And your petitioners further submit to the wisdom of the two houses of assembly whether the safety of the citizens of this commonwealth in their persons, their property, their laws, and government, does not require that the capacity to act in the important office of a juror, grand or petty, civil or criminal, should be restrained in future to native citizens of the United States, or such as were citizens at the date of the treaty of peace which closed our revolutionary war, and whether the ignorance of our laws and natural partiality to the countries of their birth are not reasonable causes for declaring this to be one of the rights incommunicable in future to adoptive citizens.

We, therefore, your petitioners, relying with entire confidence on the wisdom and patriotism of our representatives in General assembly, clothed preëminently with all the powers of the people which have not been reserved to themselves, or enumerated in the grant to the General Government delegated to maintain all their rights and relations not expressly and exclusively transferred to other jurisdictions, and stationed as sentinels to observe with watchfulness and oppose with firmness all movements tending to destroy the equilibrium of our excellent but complicated machine of government, invoke from you that redress of our violated rights which the freedom and safety of our common country calls for. We denounce to you a great crime, wicked in its purpose, and mortal in its consequences unless prevented, committed by citizens of this commonwealth against the body of their country. If we have erred in conceiving the redress provided by the law, we commit the subject to the superior wisdom of this house to devise and pursue such proceedings as they shall think best; and we, as in duty bound, shall ever pray, &c.

XXXV.

_Etiquette._

[Endorsed in Mr. Jefferson's hand: "This rough paper
contains what was agreed upon."]

I. In order to bring the members of society together in the first instance, the custom of the country has established that residents shall pay the first visit to strangers, and, among strangers, first comers to later comers, foreign and domestic; the character of stranger ceasing after the first visits. To this rule there is a single exception. Foreign ministers, from the necessity of making themselves known, pay the first visit to the ministers of the nation, which is returned.

II. When brought together in society, all are perfectly equal, whether foreign or domestic, titled or untitled, in or out of office.

All other observances are but exemplifications of these two principles.

I. 1st. The families of foreign ministers, arriving at the seat of government, receive the first visit from those of the national ministers, as from all other residents.

2d. Members of the Legislature and of the Judiciary, independent of their offices, have a right as strangers to receive the first visit.

II. 1st. No title being admitted here, those of foreigners give no precedence.

2d. Differences of grade among the diplomatic members, gives no precedence.

3d. At public ceremonies, to which the government invites the presence of foreign ministers and their families, a convenient seat or station will be provided for them, with any other strangers invited and the families of the national ministers, each taking place as they arrive, and without any precedence.

4th. To maintain the principle of equality, or of _pêle mêla_, and prevent the growth of precedence out of courtesy, the members of the Executive will practice at their own houses, and recommend an adherence to the ancient usage of the country, of gentlemen in mass giving precedence to the ladies in mass, in passing from one apartment where they are assembled into another.

XXXVI.

_Charges exhibited to the President of the United States against the Honorable Arthur Sinclair, as Governor of the territory of the United States north-west of the river Ohio._

1st. He has usurped legislative powers by the erection of counties and location of the seats of justice, by proclamation, on his own sole authority.

2d. He has misused the power of negativing legislative acts, by putting his negative on laws useful and necessary for the territory.

3d. He has refused to perform the duties of his office but on the payment of arbitrary fees not established by any lawful authority.

4th. He has negatived an act of the Legislature abolishing those fees, and passed their act giving him five hundred dollars--meant as a compensation for that abolition, thereby holding both the fees and the compensation.

5th. He has attempted to effect the dismemberment of the territory, and to destroy its constitutional boundaries, in order to prevent its advancement to those rights of self-government to which its numbers would entitle it.

6th. He has granted commissions generally during pleasure; but that of Attorney General to his own son during good behavior.

7th. He has endeavored arbitrarily to influence and control the proceedings of the Judiciary, and has revoked or effected a surrender of the commissions of those who have refused to bend to his will, (acknowledged, p. 22; revoked three commissions, p. 32.)

8th. He has appointed persons residing out of a county to offices, the duties of which were to be habitually performed within them. (Acknowledged, p. 20, in the case of Robb, his son-in-law, made Recorder of Clermont though living in Hamilton--executed by deputy.)

9th. He has obstructed the organization and disciplining of a militia for the defence of the territory, by withholding the appointment of officers years after a law had passed establishing them.

10th. He has avowed his hostility to the form and substance of republican government.

1st. The ordinance in the paragraph respecting counties, speaks of laws adopted or made, which must refer both to the first and second stage of government; it then gives the Governor power to lay out counties from time to time, reserving a right to the Legislature thereafter to alter them. This may mean that the Governor is always to lay out first, and the Legislature thereafter to alter; or it may mean that the Governor is to lay out during the first stage of government, and the Legislature to do it in the second, _reddendo singula singulis_. The first construction renders the power reserved the Legislature null, because the Governor having a negative will not permit the other branches to act against his opinion manifested in the original laying out. The second construction gives it full effect, and must therefore be understood to be that intended by Congress, who certainly meant to reserve a practicable right to the Legislature--not a nugatory one, and the rather as the forming counties is an act of law-making, not of the execution of a law. The place of dispensing justice may not seem essentially legislative at first view, but to rest naturally with those who are to dispense it; yet when we consider it in all its relations to public convenience as well as justice, at how early a date it was deemed a grievance in England, and fixed by law, and how universally so in these States, this gives a sure practical construction of what Congress must have intended.

2d. The policy of giving a negative on laws to the Executive seems to be: 1st, to provide protection against the Legislature for the other independent departments. 2d. To protect such portions of the citizens as might be oppressed by a local or partial interest happening to predominate in the Legislature at the moment. But not to set up the judgment of a single individual in cases of ordinary legislation against the collected wisdom of the nation. If these ideas be just, Governor Sinclair is guilty on the second charge.

5th. The ordinance permits the whole territory north-west of the Ohio to be divided by Congress into three or five States, and says, whenever any of the said _States_ shall have sixty thousand inhabitants it shall be received in Congress. The change of boundary proposed by the late act of the north-west Legislature did divide the population into two parts, so that both would have been much longer reaching sixty thousand than if the boundaries remained fixed by the ordinance. That the act dismembered that portion of territory which claimed to be a State, is certain. That Governor Sinclair assented to it at least is certain. That he promoted it by his influence, and with a view to continue himself and friends the longer in place and power, is suggested by many, and will be judged of by every one according to the opinion entertained of his attachment to his office, or his power of preserving his mind unbiassed by that attachment or any other particular views. See Sinclair's letter to Harrison, printed State papers, March 14th, 1800.

6th. The censure implied in this charge seems to be not so much in the Governor's giving commissions during pleasure in the judiciary line, though a tenure for life there is familiar, as the making the Attorney General an officer for life, a thing unprecedented, and its being in the case of his own son. The reason assigned by the Governor that he gave him this fixed tenure, because he at that time proposed himself to retire from office, and meant thus to protect his son against his successor, admits the fact charged, and is far from justifying it.

7th. Admitting the tenure of every commission, without any special limitation, to be during the will of him who grants it, the conduct of the three justices whose commission was revoked, and that of Mr. Finlay whose resignation was not accepted, is not sufficiently clear of blame to fix the charge of arbitrarily influencing and controlling the judiciary.

8th. This charge is admitted to be true by Governor Sinclair, in the case of his son-in-law, made Recorder of Clermont, while he lived in Hamilton. See pp. 20. He urges some matters in justification. Several other instances are stated by Worthington and Meigs. Will's case, p. 46.

9th. This cannot be decided but on a view of the laws.

4th. That one of these acts was meant as a compensation for the other, is not proved. See p. 24, 43.

3d. The real charge here is that the Governor and judges selected laws from the codes of the States to give themselves fees. I was a member of Congress, and I believe of the committee which prepared the first plan for the organization of the new States. A Legislature to be composed of the Governor and judges was a measure of necessity in the earliest stages of those territorial governments; yet we were sensible it was fundamentally wrong to submit freemen to laws made by officers of the Executive. It was determined, then, they should not make laws themselves, but adopt from the codes of the States, which being passed by freemen for their own government, it was supposed would never be oppressive. But no one dreamt of their selecting laws to give themselves fees. For to what a length might not this be carried by entitling themselves to fees for every act which was allowed a fee in any single State. Their salaries were certainly understood to be in lieu of all emoluments; yet they early began this abuse. Governor Sinclair and his associates set the example. It was not unnoticed. But as every one had rather another should pass personal censures than himself, the first laws for this purpose were laid by myself before Congress with the other laws, without comment, the power of repealing being in them. Partly from much business, partly from no individual member being willing to come forward as the denunciator, the thing went on till the arbitrary and intolerable temper of Governor Sarjeant urged it on the notice of Congress. On the 12th of February, 1795, this among other legislative practices, had been disapproved by the House of Representatives, (report, p. 8, 9, February 19, 1801,) and lost in the Senate. But February 19, 1801, a committee of friends to Sarjeant, appointed by his friend Sedgwick, reported it an abuse, but not proceeding from criminal intentions, and therefore resolved that there ought to be no further proceedings for mal-administration against him, to which resolution the House disagreed by a vote of fifty against thirty-eight, though a federal house; but this being late in the day of the 3d of March, 1801, on which day they were to rise, nothing further could be done. But Governor Sarjeant's time expiring soon after, his commission was not renewed for this among other reasons.

XXXVII.

_Hints on the subject of Indian boundaries, suggested for consideration. December 29th, 1802._

An object, becoming one of great importance, is the establishment of a strong front on our western boundary, the Mississippi, securing us on that side, as our front on the Atlantic does towards the East. Our proceedings with the Indians should tend systematically to that object, leaving the extinguishment of title in the interior country to fall in as occasions may arise. The Indians being once closed in between strong settled countries on the Mississippi and Atlantic, will, for want of game, be forced to agriculture, will find that small portions of land, well improved, will be worth more to them than extensive forests unemployed, and will continually be parting with portions of them for money to buy stock, utensils, and necessaries for their farms and families.

On the Mississippi, we hold at present from our southern boundary to the Yazoo. From the Yazoo to the Ohio is the property of the Chickasaw, a tribe the most friendly to us, and at the same time the most adverse to the diminution of their lands. The portion of their territory of first importance to us, would be the slip between the Mississippi on the west, and on the east the Yazoo and the ridge dividing the waters of the Mississippi and Tennessee. Their main settlements are eastward of this. I believe they have few within this and towards the Mississippi. The method by which we may advance towards our object will be, 1, to press the encouragements to agriculture, by which they may see how little land will maintain them much better, and the advantage of exchanging useless deserts to improve their farms. 2. To establish among them a factory or factories for furnishing them with all the necessaries and comforts they may wish (spirituous liquors excepted), encouraging these, and especially their leading men, to run in debt for these beyond their individual means of paying; and whenever in that situation, they will always cede lands to rid themselves of debt. A factory about the Chickasaw bluffs, would be tolerably central, and they might admit us to tend corn for feeding the factory and themselves when at it, and even to fix some persons for the protection of the factory from the Indians west of the Mississippi, and others. After awhile we might purchase these, and add to it from time to time. 3. We should continue to increase and nourish their friendship and confidence by every act of justice and of favor which we can possibly render them. What we know in favor of the other Indians, should not constitute the measure of what we do for these, our views as to these being so much more important. This tribe is very poor, and they want necessaries with which we abound. We want lands with which they abound; and these natural wants seem to offer fair ground of mutual supply.

The country between the Mississippi and Illinois on one side, and the Ohio and Wabash on the other, is also peculiarly desirable to us, and is in a situation this moment which renders it particularly easy for us to acquire a considerable portion of it. It has belonged to the Kaskaskias, Cahokias and Piorias. The Cahokias (of whom the Michiganris were a part) have been anticipated by the Sacs, the Piorias driven off, and the Kaskaskias decreased to a few families. Governor Harrison, in his letter of November 28th, 1802, says the Pioria chief has offered the right of his nation to these lands for a trifle. We should not fail to purchase it immediately. The Cahokias being extirpated, we have a right to their lands in preference to any Indian tribe, in virtue of our permanent sovereignty over it. He also says that Deloigne, the Kaskaskia chief, would make easy terms with us. I think we should be liberal in our offers to the Kaskaskians. They are now but a few families, exposed to numerous enemies, and unable to defend themselves, and would cede lands in exchange for protection. We might agree to their laying off one hundred acres of the best soil for every person, young and old, of their tribe, we might enclose it well for them in one general inclosure, give to every family utensils and stock sufficient for their portion of it, and give them an annuity in necessaries, on their ceding to us their whole country, on retaining for themselves only a moderate range around their farms for their stock to range in; and we might undertake to protect them from their enemies. Having thus established ourselves in the rights of the Kaskaskias, Cahokias and Piorias, we should have to settle the boundaries between them and the Kickapoos, Powtawatamies and Weaws. We should press again the good will of these tribes by friendly acts, and of their chiefs by largesses, and then propose to run the line between us, to claim whatever can be said to be doubtful, offering them a liberal price for their pretensions, and even endeavoring to obtain from them a cession of so much of their acknowledged territory as they can be induced to part with.

As to the country on the Mississippi above the mouth of the Illinois, its acquisition is not pressing in the present state of things. It might be well to be inquiring into titles, and to claim whatever may have been abandoned or lost by its native owners, so as to prevent usurpation by tribes having no right; as also to purchase such portions as may be found in the occupation of small remnants of tribes nearly extinct and disposed to emigrate.

For the present, it is submitted to the consideration of the Secretary of War, whether instructions should not be immediately given to Governor Harrison to treat with the Piorias and Kaskaskias chiefs; as to the latter, which is most important, it would be easy to solicit and bring over by presents every individual of mature age.

XXXVIII.

_Notes on the subject of the consular convention between the United States and France. May 3d, 1803._

In 1784 a convention was entered into between Dr. Franklin and the Count de Vergennes concerning consuls. It contained many things absolutely inadmissible by the laws of the several States, and inconsistent with their genius and character. Dr. Franklin, not being a lawyer, and the project offered by the Count de Vergennes being a copy of the conventions which were established between France and the despotic States on the continent (for with England they never had one), he seems to have supposed it a formula established by universal experience, and not to have suspected that it might contain matters inconsistent with the principles of a free people. He returned to America soon after the signature of it. Congress received it with the deepest concern. They honored Dr. Franklin, they were attached to the French nation; but they could not relinquish fundamental principles. They declined ratifying it, and sent it back with new powers and instructions to Mr. Jefferson, who succeeded Dr. Franklin at Paris. The most objectionable matters were the privileges and exemptions given to the consuls, and their powers over persons of the nation, establishing a jurisdiction independent of that of the nation in which it was exercised, and uncontrollable by it. The French government valued these, because they then apprehended a very extensive emigration from France to the United States, which this convention enabled them to control. It was, therefore, with the utmost reluctance, and inch by inch, that they could be induced to relinquish these conditions. The following changes, however, were effected by the convention of 1788:

The clauses of the convention of 1784, clothing consuls with the privileges of the laws of nations, were struck out, and they were expressly subjected, in their persons and property, to the laws of the land.

The giving the right of sanctuary to their houses, was reduced to a protection of their chancery room and its papers.

Their coercive powers over passengers were taken away; and those whom they might have termed deserters of their nation, were restrained to deserted seamen only.

The clause allowing them to arrest and send back vessels, was struck out, and instead of it they were allowed to exercise a police over the ships of their nation generally.

So was that which declared the indelibility of the character of subject, and the explanation and extension of the eleventh article of the treaty of amity.

The innovations in the laws of evidence were done away; and the convention, from being perpetual, was limited to twelve years.

Although strong endeavors were made to do away some other disagreeable articles, yet it was found that more could not be done without disturbing the good humor which Congress wished so much to preserve, and the limitation obtained for the continuance of the constitution insured our getting finally rid of the whole. Congress, therefore, satisfied with having so far amended their situation, ratified the convention of 1788 without hesitation.

To Mr. Wingate.

XXXIX.

_Resolutions relative to the alien and sedition laws._[20]

1. _Resolved_, That the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes,--delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

2. _Resolved_, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," therefore the act of Congress, passed on the 14th day of July, 1798, and intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the ---- day of June, 1798, intituled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

3. _Resolved_, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;" and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press:" thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," the act of the Congress of the United States, passed on the -- day of July, 1798, intituled "An Act concerning aliens," which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5. _Resolved_, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that "the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808:" that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6. _Resolved_, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple _order_ of the President to depart out of the United States, as is undertaken by said act intituled "An Act concerning aliens," is contrary to the Constitution, one amendment to which has provided that "no person shall be deprived of liberty without due progress of law;" and that another having provided that "in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence," the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that "the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior;" and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.

7. _Resolved_, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.