[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 ofpêle 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.
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 duringthe 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 saidStatesshall 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 continuehimself 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 ofthe 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.
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 aboutthe 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 onlya 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.
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 severalStates, 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 characterof 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.
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 thatwould 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 lesseningtheir 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 wellas 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 simpleorderof 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 officesduring 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.
8th.Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the Statesall the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes, and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whosesuspicionsmay be the evidence, hisorderthe sentence, hisofficerthe executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitutionthus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the baresuspicionsof the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the formsand substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, (not merely as the cases made federal, (casus fœderis,) but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.
9th,Resolved, That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.
I consider the annual act which appropriates a given sum to the expenses of intercourse with foreign nations, as a sufficient authority to the President (the constitutional organ of foreign intercourse) to expend that sum for the purposes of foreign intercourse at his discretion. If he abuses that discretion, he is responsible for it in a constitutional way. The legal restrictions on this power are, 1. That for outfit or compensation for personal services and expenses to certain specified grades (which are those chiefly used by the United States), not more than specified sums shall be allowed. 2. That the whole expenses shall not exceed the sum appropriated. 3. That an account of the expenditure shall be rendered. The sum on which these restrictions leave the executive discretion to act, is too small to excite any rational jealousy, or to render it useful to restrict it further by rigorous and unusual constructions. The executive, therefore, is believed to be free to make allowance to the specified grades for any object than those (for personal services and expenses), and to employ any unspecified grade on such salary and allowance as he thinks proper within the limits of the whole appropriation. Nor is any law, or principle of law known, which would forbid the superadding these agencies and allowances for them to the ordinary functions of a court minister, &c. I consider the appointment, therefore, and allowance to Dr. Stevens to have been within the limits of the Executive authority.
Whenever it is agreed between two parties that certain services shall be performed by the one for the other, and no special compensation is stipulated, the law understands their intention to be that aquantum meruit, or a reasonable compensation shall be allowed. Such an agreement will therefore be implied by law in the case of Dr. Stevens. What is that reasonable compensation? Not his expenses, however extravagant, even if a contract could be proved that his expenses were to be paid. The law understands such a promise to mean his reasonable expenses only. His functions were in a certain degree of a diplomatic nature. Yet the government to which he was sent, not being independent, he could not be invested formally with any diplomatic grade. If we place him, therefore, on the level of the lowest grade, that of a chargé des affaires, and make that the measure of hisquantum meruit, we shall do him full justice. No circumstance justifies his assuming a higher place.
But shall he be considered as a permanent agent, and therefore entitled to an outfit, or only as an occasional one to be allowed the reasonable expenses of his passage, which is the rule with occasional diplomatic agents? His not having been nominated to the Senate clearly excludes him from the character of a permanent agent, if it does not take from him all legal character after their first session following his appointment. To draw such a line as will admit the Executive, during the recess of the Senate, to despatch a special agent for a particular purpose without awaiting their approbation, and yet not enable him, by continuing that agent permanently, to evade the constitutional approbation of the Senate, and to keep up a separate corps of diplomacy of his own, will require great consideration, caution and candor, and until it be done, great attention in the Executive to keep within unquestionable bounds. I do not think, however, that the right of Dr. Stevens ought to depend on that definition. An individual who is employed by the highest public functionary to do a public service within the line of his authority, is bound to consider him as acting with legal powers, and as alone charged with all the responsibility if he transcends his powers. Dr. Stevens had a right to expect the Executive would nominate himto the Senate for approbation, if that nomination was necessary. He proceeds in his duty, and supposes the Executive does the same, and ought not to lose his right by the failure of the latter. The public in such case should pay the individual, and take on themselves the measures necessary to prevent similar infractions of the Constitution in future.
Questions meriting great consideration, have been made as to the sufficiency of the evidence offered in support of Dr. Stevens' claims. The settling by aquantum meruit, the claim (for personal services and expenses) gets rid of this question so far. For that the services were performed is notorious, and that it was by public authority, results from the whole correspondence. It has been suspected, indeed, that there was no contract, nor any other reward intended than certain privileges of commerce. But this is not the way the United States pay their servants. Monopolizing compensations are among the most fatal abuses which some governments practice from false economy. They are not the usage here, and if suggested, theonus probandiis thrown on the party suggesting it. The law will presume a fair and usual contract, but not one which is improper and unusual.
The claim for travelling expenses within the limits of his agency, would require proof of positive contract. When an agent for a limited district, is sent into another, his expenses have been usually allowed; but never those of travelling to and from places within his regular care, and for the regular purposes of that care. His general allowance compensates his general superintendence over the whole, and to pay him for visiting each particular part also, would be a double payment. This would lead to endless claims and difficulties.
The hire of despatch vessels has been attended with such singular circumstances as excite almost invincible suspicion that they came on the ordinary business of the mercantile house. This means of conveying information is so expensive, that it is not allowed even to diplomatic agencies, but on great and important emergencies, on each of which as it arises, the Department of State will decide, at the risk of the agent venturing on it. Whether these despatch vessels came purely on public account,and whether the matter they were charged with justified the expense, should be strictly inquired into.
Inquiry will doubtless also be made, 1, whether Mr. Yard's connection in interest with Dr. Stevens will admit him to be a witness in this case; and 2, if it does, his testimony will be estimated, as every other man's is which is given under circumstances of bias of which he is not sensible himself.
In deciding on these questions of evidence, we are bound to proceed by the same laws of evidence which govern the courts of justice. These are the laws of the land, admitting no exceptions of person, public or private. The laws in refusing an appeal to the ordinary tribunals in questions between an individual and the public, and leaving the decision in the executive department, has changed the judge in this instance, but not the law. It has given judiciary but not legislative powers; and the laws of the land are the inheritance and the right of every man, before whatever tribunal he is brought. For instance, that a contract need not be on record; that it may be by parol as well as in writing, that a written contract may be controlled by verbal agreement or other intrinsic matter, are principles of law to which Dr. Stevens is entitled on the one hand, as it is our duty, on the other, to bring his claims to the test of law, to sift the facts on which they rest by the common rules of evidence, and to decide according to these on every item of his accounts, not weakly to relieve an individual by giving him the public money, nor arbitrarily to withhold by public power what is justly due to an individual. This investigation cannot be better trusted than to the justice and judgment of the comptroller, to whom therefore it is referred.
The former one was an exposition of the principles on which I thought it my duty to administer the government. The second, then, should naturally be acompte rendu, or a statement offacts showing that I have conformed to those principles. The former waspromise: this isperformance. Yet the nature of the occasion requires that detail should be avoided; that the most prominent heads only should be selected, and these placed in a strong light, but in as few words as possible. These heads are foreign affairs, domestic ditto, viz.: Taxes, Debts, Louisiana, Religion, Indians, the Press. None of these heads need any commentary but that of Indians. This is a proper topic, not only to promote the work of humanizing our citizens towards these people, but to conciliate to us the good opinion of Europe on the subject of the Indians. This, however, might have been done in half the compass it here occupies. But every respecter of science, every friend to political reformation, must have observed with indignation the hue and cry raised against philosophy and the rights of man; and it really seems as if they would be overborne, and barbarism, bigotry, and despotism, would recover the ground they have lost by the advance of the public understanding. I have thought the occasion justified some discountenance of these anti-social doctrines, some testimony against them. But not to commit myself in direct warfare on them, I have thought it best to say what is directly applied to the Indians only, but admits by inference a more general extension.
[Agreed to by both Houses, Feb. 7, 1809.]
Sir,—The General Assembly of your native State cannot close their session, without acknowledging your services in the office which you are just about to lay down, and bidding you a respectful and affectionate farewell.
We have to thank you for the model of an administrationconducted on the purest principles of republicanism; for pomp and state laid aside; patronage discarded; internal taxes abolished; a host of superfluous officers disbanded; the monarchic maxim "that a national debt is a national blessing," renounced, and more than thirty-three millions of our debt discharged; the native right to nearly one hundred millions of acres of our national domain extinguished; and, without the guilt or calamities of conquest, a vast and fertile region added to our country, far more extensive than her original possessions, bringing along with it the Mississippi and the port of Orleans, the trade of the west to the Pacific Ocean, and in the intrinsic value of the land itself, a source of permanent and almost inexhaustible revenue. These are points in your administration which the historian will not fail to seize, to expand, and teach posterity to dwell upon with delight. Nor will he forget our peace with the civilized world, preserved through a season of uncommon difficulty and trial; the good will cultivated with the unfortunate aborigines of our country, and the civilization humanely extended among them; the lesson taught the inhabitants of the coast of Barbary, that we have the means of chastising their piratical encroachments, and awing them into justice; and that theme, on which, above all others, the historic genius will hang with rapture, the liberty of speech and of the press preserved inviolate, without which genius and science are given to man in vain.
In the principles on which you have administered the government, we see only the continuation and maturity of the same virtues and abilities, which drew upon you in your youth the resentment of Dunmore. From the first brilliant and happy moment of your resistance to foreign tyranny, until the present day, we mark with pleasure and with gratitude the same uniform, consistent character, the same warm and devoted attachment to liberty and the republic, the same Roman love of your country, her rights, her peace, her honor, her prosperity.
How blessed will be the retirement into which you are about to go! How deservedly blessed will it be! For you carry with you the richest of all rewards, the recollection of a life well spent in the service of your country, and proofs the most decisive,of the love, the gratitude, the veneration of your countrymen.
That your retirement may be as happy as your life has been virtuous and useful; that our youth may see in the blissful close of your days, an additional inducement to form themselves on your model, is the devout and earnest prayer of your fellow citizens who compose the General Assembly of Virginia.
Page 2."The practicability of perpetuating his authority," &c.I am satisfied that General Washington had not a wish to perpetuate his authority; but he who supposes it was practicable, had he wished it, knows nothing of the spirit of America, either of the people or of those who possessed their confidence. There was indeed a cabal of the officers of the army who proposed to establish a monarchy and to propose it to General Washington. He frowned indignantly at the proposition, [according to the information which got abroad,] and Rufus King and some few civil characters, chiefly [indeed, I believe, to a man] north of Maryland, who joined in this intrigue. But they never dared openly to avow it, knowing that the spirit which had produced a change in the form of government was alive to the preservation of it.
Page 28. The member of Congress here alluded to was myself, and the extracts quoted, was part of a letter from myself in answer to one General Washington wrote. (See both.) General Washington called on me at Annapolis (where I then was as a member of Congress), on his way to the meeting of the Cincinnati in Philadelphia. We had much conversation on the institution, which was chiefly an amplification of the sentiments in our letters, and, in conclusion, after I had stated to him the modifications which I thought might remove all jealousies, aswell as dangers, and the parts which might still be retained, he appeared to make up his mind, and said: "No! not a fibre of it must be retained—no half-way reformation will suffice. If the thing be bad, it must be totally abolished." And he declared his determination to use his utmost endeavors to have it entirely abolished. On his return from Philadelphia he called on me again at Annapolis, and sat with me until a very late hour in the night, giving me an account of what passed in their convention. The sum of it was that he had exerted his whole influence in every way in his power to procure an abolition; that the opposition to it was extreme, and especially from some of the younger members; but that after several days of struggle within doors and without, a general sentiment was obtained for its entire abolition. Whether any vote had been taken on it or not, I do not remember; but his affirmation to me was, that within a few days (I think he said two or three) it would have been formally abolished. Just in that moment arrived Major L'Enfant, who had been sent to France to procure the Eagles, and to offer the order to the French officers who had served in America. He brought the King's permission to his officers to accept it, the letters of thanks of these officers accepting it, letters of solicitation from other officers to obtain it, and the Eagles themselves. The effect of all this on the minds of the members was to undo much of what had been done; to rekindle all the passions which had produced the institution, and silence all the dictates of prudence, which had been operating for its abolition. After this, the General said, the utmost that could be effected was the modification which took place, and which provided for its extinction with the death of the existing members. He declined the Presidency, and, I think, Baron Steuben was appointed. I went soon after to France. While there, M. de Munier, charged with that part of theEncyclopedie Methodiquewhich relates to economypolitique and diplomatique,called on me with the article of that dictionary,"Etats Unis,"which he had prepared ready for the press, and begged I would revise it and make any notes on it which I should think necessary towards rendering it correct. I furnished him most of the matter of his fifth,sixth, eighth, ninth, and tenth sections of the article"Etats Unis,"with which, however, he intermixed some of his own. The ninth is that which relates to the Cincinnati. On this subject, the section, as prepared by him, was an unjust and incorrect Philippic against General Washington and the American officers in general. I wrote a substitute for it, which he adopted, but still retaining considerable of his own matter, and interspersing it in various parts.
Page 33."In a government constituted," &c.Here begins the artful complexion he has given to the two parties, Federal and Republican. In describing the first by their views and motives, he implies an opposition to those motives in their opponents which is totally untrue. The real difference consisted in their different degrees of inclination to Monarchy or Republicanism. The Federalists wished for everything which would approach our new government to a Monarchy. The Republicans to preserve it essentially Republican. This was the true origin of the division, and remains still the essential principle of difference between the two parties.
Several persons, farmers and planters of the county of Albemarle, having, during their visits and occasional meetings together, in conversations on the subjects of their agricultural pursuits, received considerable benefits from an intercommunication of their plans and processes in husbandry, they have imagined that these benefits might be usefully extended by enlarging the field of communication so as to embrace the whole dimensions of the State. Were practical and observing husbandmen in each county to form themselves into a society, commit to writing themselves, or state in conversations at their meetings to be written down by others, their practices and observations, their experiencesand ideas, selections from these might be made from time to time by every one for his own use, or by the society or a committee of it, for more general purposes. By an interchange of these selections among the societies of the different counties, each might thus become possessed of the useful ideas and processes of the whole; and every one adopt such of them as he should deem suitable to his own situation. Or to abridge the labor of such multiplied correspondences, a central society might be agreed on to which, as a common deposit, all the others should send their communications. The society thus honored by the general confidence, would doubtless feel and fulfil the duty of selecting such papers as should be worthy of entire communication, of extracting and digesting from others whatever might be useful, and of condensing their matter within such compass as might reconcile it to the reading, as well as to the purchase of the great mass of practical men. Many circumstances would recommend, for the central society, that which should be established in the county of the seat of government. The necessary relations of every county with that would afford facilities for all the transmissions which should take place between them. The annual meeting of the legislature at that place, the individuals of which would most frequently be members of their county societies, would give opportunities of informal conferences which might promote a general and useful understanding among all the societies; and presses established there offer conveniences entirely peculiar to that situation.
In a country, of whose interests agriculture forms the basis, wherein the sum of productions is limited by the quantity of the labor it possesses, and not of its lands, a more judicious employment of that labor would be a clear addition of gain to individuals as well as to the nation, now lost to both by a want of skill and information in its direction. Every one must have seen farms otherwise equal, the one producing the double of the other by the superior culture and management of its possessor; and every one must have under his eye numerous examples of persons setting out in life with no other possession than skill in agriculture, and speedily, by its sole exercise, acquire wealth andindependence. To promote, therefore, the diffusion of this skill, and thereby to procure, with the same labor now employed, greater means of subsistence and of happiness to our fellow citizens, is the ultimate object of this Association; and towards effecting it, we consider the following particulars among those most worthy of the attention of the societies proposed.
1st. And principally the cultivation of our primary staples of wheat, tobacco, and hemp, for market.
2d. All subsidiary articles for the support of the farm, the food, the clothing and the comfort of the household, as Indian corn, rye, oats, barley, buckwheat, millet, the family of peas and beans, the whole family of grasses, turnips, potatoes, Jerusalem artichokes, and other useful roots, cotton and flax, the garden and orchard.
3d. The care and services of useful animals for the saddle or draught, for food or clothing, and the destruction of noxious quadrupeds, fowls, insects, and reptiles.
4th. Rotations of crops, and the circumstances which should govern or vary them, according to the varieties of soil, climate, and markets, of our different counties.
5th. Implements of husbandry and operations with them, among which the plough and all its kindred instruments for dividing the soil, holds the first place, and the threshing machine an important one, the simplification of which is a great desideratum. Successful examples, too, of improvement in the operations of these instruments would be an excitement to correct the slovenly and unproductive practices too generally prevalent.
6th. Farm buildings and conveniences, inclosures, roads, fuel, timber.
7th. Manures, plaster, green-dressings, fallows, and other means of ameliorating the soil.
8th. Calendars of works, showing how a given number of laborers and of draught animals are to be employed every day in the year so as to perform within themselves, and in their due time, according to the usual course of seasons, all the operations of a farm of given size. This being essential to the proportioning the labor to the size of the farm.
9th. A succinct report of the different practices of husbandryin the county, including the bad as well as the good, that those who follow the former may read and see their own condemnation in the same page which offers better examples for their adoption. It is believed that a judicious execution of this article alone, might nearly supersede every other duty of the society, inasmuch as it would present every good practice which has occurred to the mind of any cultivator of the State for imitation, and every bad one for avoidance. And the choicest processes culled from every farm, would compose a course probably near perfection.
10th. The county communications being first digested in their respective societies, a methodical and compact digest and publication of these would be the duty of the central society; and on the judicious performance of this, would in a great degree depend the utility of the institutions, and extent of improvement flowing from them.
11th. That we may not deter from becoming members, those practical and observing husbandmen whose knowledge is the most valuable, and who are mostly to be found in that portion of citizens with whom the observance of economy is necessary, all duties of every kind should be performed gratis; and to defray the expenses of the central publication alone, each member should pay at the first stated meeting of his society in every year, —— dollars, for which he should be entitled to receive a copy of the publication bound in boards.
12th. The first association of —— persons in any county notifying themselves as constituted to the central society, should be received as the society of the county making a part of the general establishment here proposed; but every county society should be free to adopt associate members, although residents of other counties, and to receive and avail the institution of communications from persons not members, whether in or out of their county.
We are far from presuming to offer this organization and these principles of constitution as complete, and worthy the implicit adoption of other societies. They are suggested only as propositions for consideration and amendment, and we shall readily accede to any others more likely to effect the purposes we have in view. We know that agricultural societies are already establishedin some counties; but we are not informed of their particular constitutions. We request these to be admitted into their brotherhood, and to make with them parts of one great whole. We have learned that such a society is formed or forming at the seat of our government. We ask their affiliation, and give them our suffrage for the station of central society. We promise to all our zealous co-operation in promoting the objects of the institution, and to contribute our mite in exchange for the more abundant information we shall receive from others.
For these purposes we now constitute ourselves an agricultural society of the county of Albemarle, and adopt as rules for present observance, the principles before stated.
Our further organization shall be a President, Secretary and Treasurer, to be chosen at the first stated meeting to be held in every year, by a majority of the members present, provided those present be a majority of the existing members, and to continue in office until another election shall be made.
There shall be four stated meetings in ever year, to wit: on the first Mondays in January, April, July and October.
The place of meeting, and rules of the society, shall be established, revoked or altered, and new members admitted, at any of the stated meetings, by a majority of the attending members, if they be a majority of those present, not being less than one-fourth of the whole. And, lest the powers given to the greater quorum of a majority of the whole, should at any time remain unexercised from insufficient attendance, the same may be exercised by a resolution of the lesser quorum of one-fourth, passed at a stated meeting: provided it be confirmed at the next stated meeting, by either a greater or lesser quorum, and in the meantime have no force.
Those who for two whole years shall not have attended any stated meeting shall,ipso facto, cease to be members. And to ascertain at all times who are the existing members, the names of those attending every meeting shall be regularly entered in the journals of the society.
The President shall preside at all meetings when present, and when absent, a presidentpro temporemay be appointed for that purposeby those present.
Thecommon law of Englandis that system of law which was established in that country anterior to the Magna Charta, 9 H. 3, before which period no statutes are extant of record. It is used in contradistinction to the termstatute law, which comprehends all the laws passed by their Parliament from the Magna Charta down to this day.
The termcommon lawis used also in contradistinction to thechancery, as when we speak of the doctrines or courts of the common law, the doctrines or courts of chancery, and then include thestatute lawalso. In which sense the term is used, must always depend on the subject matter.
On the settlement of the colonies now composing the United States, and the establishment of a legislature in each of them, that legislature, in some cases, finding that the enacting a complete code of laws, which should reach every transaction needing legislative regulation, would be far beyond their time and abilities, adopted, by an express act of their own, the laws of England as they stood at that date, comprehending the common law, statutes to that period, and the chancery law. In other cases, instead of adopting them by an express statute of their own, they considered themselves as having brought with them, and been, even on their passage, under the constant obligation of the laws of the mother country, and on their arrival they continued to practice them without any act of adoption, which practice or usage is evidence that there was an adoption by general consent. In the case of Connecticut, they did not adopt the common law of England at all as their basis, but declared by an act of their own, that the law of God, as it stood revealed in the Old and New Testament, should be the basis of their laws, to be subject to such alterations as they should make. In all the cases where the common law, or laws of England, were adopted either expresslyor tacitly, the legislatures held of course, and exercised the power of making additions and alterations.
As the different States were settled at very different periods, and the adoption for each State was the laws of England as they stood at the moment of the adoption by the State, it is evident that the system as adopted in 1607 by Virginia, was one thing, as by Pennsylvania was another thing, as by Georgia, in 1759, was still a different one. And when to this is added the very diversified modifications of the adoptive code, produced by the subsequent laws passed by the legislatures of the different States, the system of common law in force in any one State on the 24th of September, 1789, when Congress assumed the jurisdiction given them by the Constitution, was very different from the systems in force at the same moment in the several other States: that in all of these the common law was in force by virtue of the adoption of the State, express or tacit, and that it was not in force in Connecticut, because they had never adopted it.
Having settled, by way of preliminary, to what extent, and by what authority, the common law of England is the law of each of the States, we will proceed to consider how far, and by what authority, it is the law of the United States as a national government.
By the Constitution, the General Government has jurisdiction in all cases arising under the Constitution, under the (constitutional) laws of the United States, and under treaties; in all cases, too, of ambassadors, of admiralty jurisdiction, where the United States is a party, between a State or its citizens, or another State or its citizens, or a foreign State or its citizens.
The General Government, then, had a right to take under their cognizance all these cases, and no others. This might have been done by Congress, by passing a complete code, assuming the whole field of their jurisdiction, and applying uniformly to every State, without any respect to the laws of that State. But, like the State legislatures, who had been placed before in a similar situation, they felt that it was a work of too much time and difficulty to be undertaken. Observing, therefore, that (except cases of piracy and murder on the high seas) all the cases withintheir jurisdiction must arise in some of the States, they declared by the act Sept. 24, 1789, c. 20, § 34, "That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as rules of decision in trials atcommon lawin the courts of the United States in cases where they apply."
Here, then, Congress adopt for each State the laws of that State; and among the laws so adopted were portions of the common law, greater or less in different States, and in force, not by any innate authority of its own, but by the adoption or enacting of it by the State authority.