The Writings of Thomas Jefferson, Vol. 7 (of 9) / Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

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

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

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

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

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

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

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

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

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

Two answers may be given to this:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Those of the most favored nation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 21, 1792.

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

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

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

XXVIII.—Report relative to negotiations at Madrid.

March 7, 1792.

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

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

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

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XXIX.—Opinion on the Bill apportioning Representation.

April 4, 1792.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 3, 1792.

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

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

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

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

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

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

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

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

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

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

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

A.

January 7, 1793.