It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.
It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.
2. The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase.
It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.
But let us examine this convenience and see what it is. The report on this subject, page 3, states the only general convenience to be, the preventing the transportation and re-transportation of money between the States and the treasury, (for I pass over the increase of circulating medium, ascribed to it as a want, and which, according to my ideas of paper money, is clearly a demerit.) Every State will have to pay a sum of tax money into the treasury; and the treasury will have to pay, in every State, a part of the interest on the public debt, and salaries to the officers of government resident in that State. In most of the States there will still be a surplus of tax money to come up to the seat of government for the officers residing there. The payments of interest and salary in each State may be made by treasury orders on the State collector. This will take up the great export of the money he has collected in his State, and consequently prevent the great mass of it from being drawn out of the State. If there be a balance of commerce in favor of that State against the one in which the government resides, the surplus of taxes will be remitted by the bills of exchange drawn for that commercial balance. And so it must be if there was a bank. But if there be no balance of commerce, either direct or circuitous, all the banks in the world could not bring up the surplus of taxes, but in the form of money. Treasury orders then, and bills of exchange may prevent the displacement of the main mass of the money collected, without the aid of any bank; and where these fail, it cannot be prevented even with that aid.
Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.
Besides; the existing banks will, without a doubt, enter into arrangements for lending their agency, and the more favorable, as there will be a competition among them for it; whereas the bill delivers us up bound to the national bank, who are free to refuse all arrangement, but on their own terms, and the public not free, on such refusal, to employ any other bank. That of Philadelphia, I believe, now does this business, by their post-notes, which, by an arrangement with the treasury, are paid by any State collector to whom they are presented. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one. The thing may be done, and has been done, and well done, without this assumption; therefore, it does not stand on that degree of necessity which can honestly justify it.
It may be said that a bank whose bills would have a currency all over the States, would be more convenient than one whose currency is limited to a single State. So it would be still more convenient that there should be a bank, whose bills should have a currency all over the world. But it does not follow from this superior conveniency, that there exists anywhere a power to establish such a bank; or that the world may not go on very well without it.
Can it be thought that the Constitution intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several States; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence. Will Congress be too straight-laced to carry the constitution into honest effect, unless they may pass over the foundation-laws of the State government for the slightest convenience of theirs?
The negative of the President is the shield provided by the constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.
It must be added, however, that unless the President's mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorised by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.
March 11, 1791.
Objects which may merit the attention of the President, at Georgetown.
The commissioners to be called into action.
Deeds of cession to be taken from the land-holders.
Site of the capitol and President's house to be determined on.
Proclamation completing the location of the territory, and fixing the site of the capitol.
Town to be laid off. Squares of reserve are to be decided on for the capitol, President's house, offices of government, townhouse, prison, market, and public walks.
Other squares for present sale designated.
Terms of sale to be settled. As there is not as yet a town legislature, and things may be done before there is one to prevent them, which yet it would be desirable to prevent, it would seem justifiable and expedient that the President should form a capitulary of such regulations as he may think necessary to be observed, until there shall be a town legislature to undertake this office; such capitulary to be indented, signed, sealed, and recorded, according to the laws of conveyance in Maryland. And to be referred to in every deed for conveyance of the lots to purchasers, so as to make a part thereof. The same thing might be effected, by inserting special covenants for every regulation in every deed; but the former method is the shortest. I cannot help again suggesting here one regulation formerly suggested, to wit: To provide for the extinguishment of fires, and the openness and convenience of the town, by prohibiting houses of excessive height. And making it unlawful to build on any one's purchase any house with more than two floors between the common level of the earth and the eaves, nor with any other floor in the roof than one at the eaves. To consider in what way the contracts for the public buildings shall be made, and whether as many bricks should not be made this summer as may employ brick-layers in the beginning of the season of 1792, till more can be made in that season.
With respect to the amendment of the location so as to include Bladensburgh. I am of opinion it may be done with the consent of the legislature of Maryland, and that that consent may be so far counted on, as to render it expedient to declare the location at once.
The location A B C D A having been once made, I consider as obligatory and unalterable, but by consent of parties, except so far as was necessary to render it practicable by a correction of the beginning. That correction might be lawfully made either by stopping at the river, or at the spring of Hunting creek, or by lengthening the course from the court-house so that the second course should strike the mouth of Hunting creek. I am of opinion, therefore, that the beginning at the mouth of Hunting creek, is legally justifiable. But I would advise the location E F G H E to be hazarded so as to include Bladensburgh, because it is a better location, and I think will certainly be confirmed by Maryland. That State will necessarily have to pass another act confirming whatever location shall be made, because her former act authorized the delegates then in office, to convey the lands. But as they were not located, no conveyance has been made, and those persons are now out of office, and dispersed. Suppose the non-concurrence of Maryland should defeat the location E F G H E, it can only be done on this principle, that the first location A B C D A was valid, and unalterable, but by mutual consent. Then their non-concurrence will re-establish the first location A B C D A, and the second location will be good for the part E I D K E without their concurrence, and this will place us where we should be were we now to complete the location E B C K E. Consequently, the experiment of an amendment proposed can lose nothing, and may gain, and probably will gain, the better location.
When I say it can lose nothing, I count as nothing, the triangle A I E, which would be in neither of the locations. Perhaps this might be taken in afterwards, either with or without the consent of Virginia.
December 9, 1791.
The Secretary of State, to whom was referred by the House of Representatives the petition of Samuel Breck and others, proprietors of a sail-cloth manufactory in Boston, praying that they may have the exclusive privilege of using particular marks for designating the sail-cloth of their manufactory, has had the same under consideration, and thereupon
Reports, That it would, in his opinion, contribute to fidelity in the execution of manufacturers, to secure to every manufactory an exclusive right to some mark on its wares, proper to itself.
That this should be done by general laws, extending equal right to every case to which the authority of the Legislature should be competent.
That these cases are of divided jurisdiction: Manufactures made and consumed within a State being subject to State legislation, while those which are exported to foreign nations, or to another State, or into the Indian Territory, are alone within the legislation of the General Government.
That it will, therefore, be reasonable for the General Government to provide in this behalf by law for those cases of manufacture generally, and those only which relate to commerce with foreign nations, and among the several States, and with the Indian Tribes.
And that this may be done by permitting the owner of every manufactory, to enter in the records of the court of the district wherein his manufactory is, the name with which he chooses to mark or designate his wares, and rendering it penal in others to put the same mark to any other wares.
December 11, 1791.
Observations on Major L'Enfant's letter of December 7th, 1791, to the President, justifying his demolition of the house of Mr. Carroll, of Duddington.
He says that "Mr. Carroll erected his house partly on a main street, and altogether on ground to which the public had a more immediate title than himself could claim." When blaming Mr. Carroll, then, he considers this as a street; but when justifying himself, he considers it not yet as a street, for to account for his not having pointed out to Carroll a situation where he might build, he says, "The President had not yet sanctioned the plan for the distribution of the city, nor determined if he would approve the situation of the several areas proposed to him in that plan for public use, and that I would have been highly to be blamed to have anticipated his opinion thereon." This latter exculpation is solid; the first is without foundation. The plan of the city has not yet been definitely determined by the President. Sale to individuals, or partition decide the plan as far as these sales or partitions go. A deed with the whole plan annexed, executed by the President, and recorded, will ultimately fix it. But till a sale, or partition, or deed, it is open to alteration. Consequently, there is as yet no such thing as a street, except adjacent to the lots actually sold or divided; the erection of a house in any part of the ground cannot as yet be a nuisance in law. Mr. Carroll is tenant in common of the soil with the public, and the erection of a house by a tenant in common on the common property, is no nuisance. Mr. Carroll has acted imprudently, intemperately, foolishly; but he has not acted illegally. There must be an establishment of the streets, before his house can become a nuisance in the eye of the law. Therefore, till that establishment, neither Major L'Enfant, nor the commissioners, would have had a right to demolish his house, without his consent.
The Major says he had as much right to pull down a house, as to cut down a tree.
This is true, if he has received no authority to do either, but still there will be this difference: To cut down a tree or to demolish a house in the soil of another, is a trespass; but the cutting a tree, in this country, is so slight a trespass, that a man would be thought litigious who should prosecute it; if he prosecuted civilly, a jury would give small damages; if criminally, the judge would not inflict imprisonment, nor impose but a small fine. But the demolition of a house is so gross a trespass, that any man would prosecute it; if civilly, a jury would give great damages; if criminally, the judge would punish heavily by fine and imprisonment. In the present case, if Carroll was to bring a civil action, the jury would probably punish his folly by small damages; but if he were to prosecute criminally, the judge would as probably vindicate the insult on the laws, and the breach of the peace, by heavy fines and imprisonment. So that if Major L'Enfant is right in saying he had as much authority to pull down a house as to cut down a tree, still he would feel a difference in the punishment of the law.
But is he right in saying he had as much authority to pull down a house as to cut down a tree? I do not know what have been the authorities given him expressly or by implication, but I can very readily conceive that the authorities which he has received, whether from the President or from the commissioners, whether verbal or written, may have gone to the demolition of trees, and not houses. I am sure he has received no authority, either from the President or commissioners, either expressly or by implication, to pull down houses. An order to him to mark on the ground the lines of the streets and lots, might imply an order to remove trees or small obstructions, where they insuperably prevented his operations; but a person must know little of geometry who could not, in an open field, designate streets and lots, even where a line passed through a house, without pulling the house down.
In truth, the blame on Major L'Enfant, is for having pulled down the house, of his own authority, and when he had reason to believe he was in opposition, to the sentiments of the President; and his fault is aggravated by its having been done to gratify private resentment against Mr. Carroll, and most probably not because it was necessary; and the style in which he writes the justification of his act, shows that a continuation of the same resentment renders him still unable to acquiesce under the authority from which he has been reproved.
He desires a line of demarcation between his office, and that of the commissioners.
What should be this line? and who is to draw it? If we consider the matter under the act of Congress only, the President has authority only to name the commissioners, and to approve or disapprove certain proceedings of theirs. They have the whole executive power, and stand between the President and the subordinate agents. In this view, they may employ or dismiss, order and countermand, take on themselves such parts of the execution as they please, and assign other parts to subordinate agents. Consequently, under the act of Congress, their will is the line of demarcation between subordinate agents, while no such line can exist between themselves and their agents. Under the deed from the proprietors to the President, his powers are much more ample. I do not accurately recollect the tenor of the deed; but I am pretty sure it was such as to put much more ample power into the hands of the President, and to commit to him the whole execution of whatever is to be done under the deed; and this goes particularly to the laying out the town: so that as to this, the President is certainly authorized to draw the line of demarcation between L'Enfant and the commissioners. But I believe there is no necessity for it, as far as I have been able to judge, from conversations and consultations with the commissioners. I think they are disposed to follow implicitly the will of the President, whenever they can find it out; but L'Enfant's letters do not breathe the same moderation or acquiescence; and I think it would be much safer to say to him, "the orders of the commissioners are your line of demarcation," than by attempting to define his powers, to give him a line where he may meet with the commissioners foot to foot, and chicane and raise opposition to their orders whenever he thinks they pass his line. I confess, that on a view of L'Enfant's proceedings and letters latterly, I am thoroughly persuaded that, to render him useful, his temper must be subdued; and that the only means of preventing his giving constant trouble to the President, is to submit him to the unlimited control of the commissioners; we know the discretion and forbearance with which they will exercise it.
December 19, 1791.
The Secretary of State, to whom was referred, by the President of the United States, a letter from the Governor of Pennsylvania, with the documents therein mentioned, on the subject of certain lands on Lake Erie, having had the same under consideration, thereupon Reports:—
That Congress, by their resolution of June 6th, 1788, directed the Geographer General of the United States to ascertain the quantity of land belonging to the United States between Pennsylvania and Lake Erie, and authorized a sale thereof.
That a sale was accordingly made to the commonwealth of Pennsylvania.
That Congress, by their resolution of September 4th, 1788, relinquished to the said commonwealth all their right to the government and jurisdiction of the said tract of land; but the right of soil was not transferred by the resolution.
That a survey of the said tract has been since made, and the amount of the purchase money been settled between the comptrollers of the United States and of the said commonwealth, and that the Governor of Pennsylvania declares in the said letter, to the President of the United States, that he is ready to close the transaction on behalf of the said commonwealth. That there is no person at present authorized, by law, to convey to the said commonwealth the right of soil, in the said tract of land.
And the Secretary of State is therefore of opinion that the said letter and documents should be laid before the legislature of the United States to make such provision by law for conveying the said right of soil, as they in their wisdom shall think fit.
December 22, 1791.
The Secretary of State reports to the President of the United States, that one of the commissioners of Spain, in the name of both, has lately communicated to him verbally, by order of his court, that his Catholic Majesty, apprized of our solicitude to have some arrangement made respecting our free navigation of the river Mississippi, and the use of a port thereon, is ready to enter into treaty thereon at Madrid.
The Secretary of State is of opinion that this overture should be attended to without delay, and that the proposal of treating at Madrid, though not what might have been desired, should yet be accepted, and a commission plenipotentiary made out for the purpose.
That Mr. Carmichael, the present chargé de affaires of the United States at Madrid, from the local acquaintance which he must have acquired with persons and circumstances, would be an useful and proper member of the commission; but that it would be useful also to join with him some person more particularly acquainted with the circumstances of the navigation to be treated of.
That the fund appropriated by the act providing the means of intercourse between the United States and foreign nations, will insufficiently furnish the ordinary and regular demands on it, and is consequently inadequate to the mission of an additional commissioner express from hence.
That, therefore, it will be advisable, on this account, as well as for the sake of despatch, to constitute some one of the ministers of the United States in Europe, jointly with Mr. Carmichael, commissioners plenipotentiary for the special purpose of negotiating and concluding, with any person or persons duly authorized by his Catholic Majesty, a convention or treaty for the free navigation of the river Mississippi by the citizens of the United States, under such accommodations with respect to a port, and other circumstances, as may render the said navigation practicable, useful, and free from dispute; saving to the President and Senate their respective rights as to their ratification of the same; and that the said negotiation be at Madrid, or such other place in Spain, as shall be desired by his Catholic Majesty.
March 18, 1792.
The appointment of Mr. Carmichael and Mr. Short, as commissioners to negotiate, with the court of Spain, a treaty or convention relative to the navigation of the Mississippi, and which perhaps may be extended to other interests, rendering it necessary that the subjects to be treated of should be developed, and the conditions of arrangement explained:
The Secretary of State reports to the President of the United States the following observations on the subjects of negotiation between the United States of America and the court of Spain, to be communicated by way of instruction to the commissioners of the United States, appointed as before mentioned, to manage that negotiation.
These subjects are,
I. Boundary.
II. The navigation of the Mississippi.
III. Commerce.
I. As to boundary, that between Georgia and Florida is the only one which will need any explanation. Spain sets up a claim to possessions within the State of Georgia, founded on her having rescued them by force from the British during the late war. The following view of the subject seems to admit no reply:
The several States now comprising the United States of America, were, from their first establishment, separate and distinct societies, dependent on no other society of men whatever. They continued at the head of their respective governments the executive magistrate who presided over the one they had left, and thereby secured, in effect, a constant amity with the nation. In this stage of their government their several boundaries were fixed; and particularly the southern boundary of Georgia, the only one now in question, was established at the 31st degree of latitude from the Apalachicola westwardly; and the western boundary, originally the Pacific ocean, was, by the treaty of Paris, reduced to the middle of the Mississippi. The part which our chief magistrate took in a war, waged against us by the nation among whom he resided, obliged us to discontinue him, and to name one within every State. In the course of this war we were joined by France as an ally, and by Spain and Holland as associates; having a common enemy, each sought that common enemy wherever they could find him. France, on our invitation, landed a large army within our territories, continued it with us two years, and aided us in recovering sundry places from the possession of the enemy. But she did not pretend to keep possession of the places rescued. Spain entered into the remote western part of our territory, dislodged the common enemy from several of the posts they held therein, to the annoyance of Spain; and perhaps thought it necessary to remain in some of them, as the only means of preventing their return. We, in like manner, dislodged them from several posts in the same western territory, to wit: Vincennes, Cahokia, Kaskaskia, &c., rescued the inhabitants, and retained constantly afterwards both them and the territory under our possession and government. At the conclusion of the war, Great Britain, on the 30th of November, 1782, by treaty acknowledged our independence, and our boundary, to wit: the Mississippi to the west, and the completion of the 31st degree, &c. to the south. In her treaty with Spain, concluded seven weeks afterwards, to wit, January 20th, 1783, she ceded to her the two Floridas, which had been defined in the proclamation of 1763, and Minorca; and by the eighth article of the treaty, Spain agreed to restore, without compensation, all the territories conquered by her, and not included in the treaty, either under the head of cessions or restitutions, that is to say, all except Minorca and the Floridas. According to this stipulation, Spain was expressly bound to have delivered up the possessions she had taken within the limits of Georgia, to Great Britain, if they were conquests on Great Britain, who was to deliver them over to the United States; or rather, she should have delivered them to the United States themselves, as standing quoad hoc in the place of Great Britain. And she was bound by natural rights to deliver them to the same United States on a much stronger ground, as the real and only proprietors of those places which she had taken possession of in a moment of danger, without having had any cause of war with the United States, to whom they belonged, and without having declared any; but, on the contrary, conducting herself in other respects as a friend and associate. Vattel, 1. 3, 122.
It is an established principle, that conquest gives only an inchoate treaty of peace, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor. Had Great Britain been that former proprietor, she was so far from confirming to Spain the right to the territory of Georgia, invaded by Spain, that she expressly relinquished to the United States any right that might remain in her; and afterwards completed that relinquishment, by procuring and consolidating with it the agreement of Spain herself to restore such territory without compensation. It is still more palpable, that a war existing between two nations, as Spain and Great Britain, could give to neither the right to seize and appropriate the territory of a third, which is even neutral, much less which is an associate in the war, as the United States were with Spain. See, on this subject, Grotius, 1. 3, c. 6, § 26. Puffendorf, 1. 8, c. 17, § 23. Vattel, 1. 3, § 197, 198.
On the conclusion of the general peace, the United States lost no time in requiring from Spain an evacuation of their territory This has been hitherto delayed by means which we need not explain to that court, but which have been equally contrary to our right and to our consent.
Should Spain pretend, as has been intimated, that there was a secret article of treaty between the United States and Great Britain, agreeing, if at the close of the war the latter should retain the Floridas, that then the southern boundary of Georgia should be the completion of the 32d degree of latitude, the commissioners may safely deny all knowledge of the fact, and refuse conference on any such postulatum. Or, should they find it necessary to enter into any argument on the subject, they will of course do it hypothetically; and in that way may justly say, on the part of the United States; suppose that the United States, exhausted by a bloody and expensive war with Great Britain, might have been willing to have purchased peace by relinquishing, under a particular contingency, a small part of their territory, it does not follow that the same United States, recruited and better organized, must relinquish the same territory to Spain without striking a blow. The United States, too, have irrevocably put it out of their power to do it, by a new constitution, which guarantees every State against the invasion of its territory. A disastrous war, indeed, might, by necessity, supersede this stipulation, (as necessity is above all law,) and oblige them to abandon a part of a State; but nothing short of this can justify or obtain such an abandonment.
The southern limits of Georgia depend chiefly on,
1. The charter of Carolina to the lords proprietors, in 1663, extending southwardly to the river Matheo, now called St. John, supposed in the charter to be in latitude 31, and so west in a direct line as far as the South Sea. See the charter in 4th[27] Memoires de l'Amerique, 554.
2. On the proclamation of the British King, in 1763, establishing the boundary between Georgia and the two Floridas to begin on the Mississippi, in thirty-one degrees of latitude north of the equator, and running eastwardly to the Appalachicola; thence, along the said river to the mouth of the Flint; thence, in a direct line, to the source of St. Mary's river, and down the same to the ocean. This proclamation will be found in Postlethwayte voce "British America."
3. On the treaties between the United States and Great Britain, of November 30, 1782, and September 3, 1783, repeating and confirming these ancient boundaries,—
There was an intermediate transaction, to wit: a convention concluded at the Pardo, in 1739, whereby it was agreed that Ministers Plenipotentiary should be immediately appointed by Spain and Great Britain for settling the limits of Florida and Carolina. The convention is to be found in the collections of treaties. But the proceedings of the Plenipotentiaries are unknown here. Qu. If it was on that occasion that the southern boundary of Carolina was transferred from the latitude of Matheo or St. John's river further north to the St. Mary's? Or was it the proclamation of 1763, which first removed this boundary? [If the commissioners can procure in Spain a copy of whatever was agreed on in consequence of the convention of the Pardo, it is a desirable State paper here.]
To this demonstration of our rights may be added the explicit declaration of the court of Spain, that she would accede to them. This took place in conversations and correspondence thereon between Mr. Jay, Minister Plenipotentiary for the United States at the court at Madrid, the Marquis de La Fayette, and the Count de Florida Blanca. Monsieur de La Fayette, in his letter of February 19, 1783, to the Count de Florida Blanca, states the result of their conversations on limits in these words: "With respect to limits, his Catholic Majesty has adopted those that are determined by the preliminaries of the 30th of November, between the United States and the court of London." The Count de Florida Blanca, in his answer of February 22d, to M. de La Fayette, says, "although it is his Majesty's intention to abide for the present by the limits established by the treaty of the 30th of November, 1782, between the English and the Americans, the King intends to inform himself particularly whether it can be in any ways inconvenient or prejudicial to settle that affair amicably with the United States;" and M. de La Fayette, in his letter of the same day to Mr. Jay, wherein he had inserted the preceding, says, "on receiving the answer of the Count de Florida Blanca, (to wit: his answer, before mentioned, to M. de La Fayette,) I desired an explanation respecting the addition that relates to the limits. I was answered, that it was a fixed principle to abide by the limits established by the treaty between the English and the Americans; that his remark related only to mere unimportant details, which he wished to receive from the Spanish commandants, which would be amicably regulated, and would by no means oppose the general principle. I asked him, before the Ambassador of France, [M. de Montmorin,] whether he would give me his word of honor for it; he assured me he would, and that I might engage it to the United States." See the report sent herewith.
II.—The navigation of the Mississippi.
Our right to navigate that river, from its source to where our southern boundary strikes it, is not questioned. It is from that point downwards, only, that the exclusive navigation is claimed by Spain; that is to say, where she holds the country on both sides, to wit: Louisiana on the west, and Florida on the east.
Our right to participate in the navigation of that part of the river, also, is to be considered, under
1. The Treaty of Paris of 1763,
2. The Revolution Treaty of 1782-3.
3. The law of nature and nations.
1. The war of 1755-1763, was carried on jointly by Great Britain and the thirteen colonies, now the United States of America, against France and Spain. At the peace which was negotiated by our common magistrate, a right was secured to the subjects of Great Britain (the common designation of all those under his government) to navigate the Mississippi in its whole breadth and length, from its source to the sea, and expressly that part which is between the island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth; and that the vessels should not be stopped, visited, or subjected to the payment of any duty whatsoever. These are the words of the treaty, article VII. Florida was at the same time ceded by Spain, and its extent westwardly was fixed to the lakes Pontchartrain and Maurepas, and the river Mississippi; and Spain received soon after from France a cession of the island of New Orleans, and all the country she held westward of the Mississippi, subject of course to our right of navigating between that country and the island previously granted to us by France. This right was not parcelled out to us in severalty, that is to say, to each the exclusive navigation of so much of the river as was adjacent to our several shores—in which way it would have been useless to all—but it was placed on that footing on which alone it could be worth anything, to wit: as a right to all to navigate the whole length of the river in common. The import of the terms and the reason of the thing prove it was a right of common in the whole, and not a several right to each of a particular part. To which may be added the evidence of the stipulation itself, that we should navigate between New Orleans and the western bank, which, being adjacent to none of our States, could be held by us only as a right of common. Such was the nature of our right to navigate the Mississippi, as far as established by the treaty of Paris.
2. In the course of the Revolutionary war, in which the thirteen colonies, Spain, and France, were opposed to Great Britain, Spain took possession of several posts held by the British in Florida. It is unnecessary to inquire whether the possession of half a dozen posts scattered through a country of seven or eight hundred miles extent, could be considered as the possession and conquest of that country. If it was, it gave still but an inchoate right, as was before explained, which could not be perfected but by the relinquishment of the former possession at the close of the war; but certainly it could not be considered as a conquest of the river, even against Great Britain, since the possession of the shores, to wit, of the island of New Orleans on the one side, and Louisiana on the other, having undergone no change, the right in the water would remain the same, if considered only in its relation to them; and if considered as a distinct right, independent of the shores, then no naval victories obtained by Spain over Great Britain, in the course of the war, gave her the color of conquest over any water which the British fleet could enter. Still less can she be considered as having conquered the river, as against the United States, with whom she was not at war. We had a common right of navigation in the part of the river between Florida, the island of New Orleans, and the western bank, and nothing which passed between Spain and Great Britain, either during the war, or at its conclusion, could lessen that right. Accordingly, at the treaty of November, 1782, Great Britain confirmed the rights of the United States to the navigation of the river, from its source to its mouth, and in January, 1783, completed the right of Spain to the territory of Florida, by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great Britain. If it added anything to the rights of Spain respecting the river between the eastern and western banks, it could only be that portion of right which Great Britain had retained to herself in the treaty with the United States, held seven weeks before, to wit, a right of using it in common with the United States.
So that as by the treaty of 1763, the United States had obtained a common right of navigating the whole river from its source to its mouth, so by the treaty of 1782, that common right was confirmed to them by the only power who could pretend claims against them, founded on the state of war; nor has that common right been transferred to Spain by either conquest or cession.
But our right is built on ground still broader and more unquestionable, to wit:
3. On the law of nature and nations.
If we appeal to this, as we feel it written on the heart of man, what sentiment is written in deeper characters than that the ocean is free to all men, and their rivers to all their inhabitants? Is there a man, savage or civilized, unbiased by habit, who does not feel and attest this truth? Accordingly, in all tracts of country united under the same political society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind. The late case of Antwerp and the Scheldt was a striking proof a general union of sentiment on this point; as it is believed that Amsterdam had scarcely an advocate out of Holland, and even there its pretensions were advocated on the ground of treaties, and not of natural right. (The commissioners would do well to examine thoroughly what was written on this occasion.) The commissioners will be able perhaps to find, either in the practice or the pretensions of Spain, as to the Dauro, Tagus, and Guadiana, some acknowledgments of this principle on the part of that nation. This sentiment of right in favor of the upper inhabitants must become stronger in the proportion which their extent of country bears to the lower. The United States hold 600,000 square miles of habitable territory on the Mississippi and its branches, and this river and its branches afford many thousands of miles of navigable waters penetrating this territory in all its parts. The inhabitable grounds of Spain below our boundary and bordering on the river, which alone can pretend any fear of being incommoded by our use of the river, are not the thousandth part of that extent. This vast portion of the territory of the United States has no other outlet for its productions, and these productions are of the bulkiest kind. And in truth, their passage down the river may not only be innocent, as to the Spanish subjects on the river, but cannot fail to enrich them far beyond their present condition. The real interests then of all the inhabitants, upper and lower, concur in fact with their rights.
If we appeal to the law of nature and nations, as expressed by writers on the subject, it is agreed by them, that, were the river, where it passes between Florida and Louisiana, the exclusive right of Spain, still an innocent passage along it is a natural right in those inhabiting its borders above. It would indeed be what those writers call an imperfect right, because the modification of its exercise depends in a considerable degree on the conveniency of the nation through which they are to pass. But it is still a right as real as any other right, however well-defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should bee entitled to demand redress. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shore below, and founded in the same natural relations with the soil and water. And the line at which their rights meet is to be advanced or withdrawn, so as to equalize the inconveniences resulting to each party from the exercise of the right by the other. This estimate is to be fairly made with a mutual disposition to make equal sacrifices, and the numbers on each side are to have their due weight in the estimate. Spain holds so very small a tract of habitable land on either side below our boundary, that it may in fact be considered as a strait of the sea; for though it is eighty leagues from our boundary to the mouth of the river, yet it is only here and there in spots and slips that the land rises above the level of the water in times of inundation. There are, then, and ever must be, so few inhabitants on her part of the river, that the freest use of its navigation may be admitted to us without their annoyance. For authorities on this subject, see Grot. 1. 2. c. 2 § 11, 12, 13, c. 3. § 7, 8, 12. Puffendorf, 1. 3. c. 3. § 3, 4, 5, 6. Wolff's Inst. § 310, 311, 312. Vattel, 1. 1. § 292. 1. 2. § 123 to 139.