University of Virginia Library

TO THOMAS JEFFERSON.

Dear Sir,—Your favour of the 20. ult. came duly
to hand a few days ago. I cannot apprehend that any
difficulties can ensue in Europe from the involuntary
& immaterial delay of the ratification of the peace, or
if there should that any imputations can be devised
which will not be repelled by the collective force of
the reasons in the intended protest; some of which
singly taken are unanswerable. As you no doubt
had recourse to authorities which I have no opportunity
of consulting, I probably err in supposing the right
of the Sovereign to reject the act of his plenipotentiary
to be more circumscribed than you lay it down.
I recollect well that an implied condition is annexed
by the usage of nations to a Plenipotentiary Com̃ission,
but should not have extended the implication
beyond cases where some palpable & material default
in the Minister could be alledged by the Sovereign.
Waving some such plea, the language both of the
Com̃ission and of reason seems to fix on the latter

as clear an engagement to fulfil his promise to ratify
a treaty, as to fulfil the promises of a treaty which he
has ratified. In both cases one would pronounce the
obligation equally personal to the Sovereign, and a
failure on his part without some absolving circumstance
equally a breach of faith. The project of
affixing the Seal of the U. S. by 7 States to an act
which had been just admitted to require nine, must
have stood self-condemned; and tho' it might have
produced a temporary deception abroad, must have
been immediately detected at home, and have finally
dishonored the foederal counsels everywhere. The
competency of 7 States to a Treaty of Peace has
often been a subject of debate in Congress and has
sometimes been admitted into their practice, at least
so far as to issue fresh instructions. The reasoning
employed in defence of the doctrine has been "that
the cases which require 9 States, being exceptions to
the general authority of 7 States ought to be taken
strictly; that in the enumeration of the powers of
Congress in the first clause of art: 9 of the Confederation,
the power of entering into treaties and alliances
is contradistinguished from that of determining on
peace & war & even separated by the intervening
power of sending & receiving ambassadors; that the
excepting clause therefore in which 'Treaties & alliances'
ought to be taken in the same confined sense,
and in which the power of determ̃ing on peace is
omitted, cannot be extended by construction to the
latter power; that under such a construction 5 States
might continue a war which it required nine to commence,
though where the object of the war has been
obtained, a continuance must in every view be equipollent
to a commencement of it; and that the very
means provided for preserving a state of peace might
thus become the means of preventing its restoration."
The answer to these arguments has been that the
construction of the foederal articles which they maintain
is a nicety which reason disclaims, and that if it
be dangerous on one side to leave it in the breast of
5 States to protract a war, it is equally necessary on
the other to restrain 7 States from saddling the Union
with any stipulations which they may please to interweave
with a Treaty of peace. I was once led by this
question to search the files of Congs. for such lights
as the history of the Confederation might furnish, and
on a review now of my papers I find the evidence
from that source to consist of the following circumstances:
In Doctr. Franklin's "Sketch of Articles of
Confederation" laid before Congs. on 21 day of July
1775, no number beyond a majority is required in any
cases. In the plan reported to Congress by the Committee
appointed 11. June 1776, the general enumeration
of the powers of Congs. in art. 18. is expressed
in a similar manner with the first clause in the present
9th. art., as are the exceptions in a subsequent clause
of the 18 art. of the report, with the excepting clause
as it now stands: and yet in the margin of the Report
and I believe in the same hand writing, there is a
" Qu.: If so large a majority is necessary in concluding
a Treaty of peace." There are sundry other marginal
queries in the report from the same pen. Hence
it would seem that notwithstanding the preceding discrimination
between the powers of "determining on
peace" and "entering into Treaties," the latter was
meant by the Come. to comprise the former. The
next form in which the articles appear, is a printed
copy of the Report as it had been previously amended,
with sundry amendments, erasures, & notes on the
printed copy itself in the hand of Mr. Thomson. In
the printed text of this paper art: 14 the phraseology
which defines the general powers of Congress is the
same with that in art: 18 of the manuscript report.
In the subsequent clause requiring nine States, the
text as printed ran thus: "The United States in
Congs. assembled shall never engage in a war nor
grant letters of marque & reprisal in time of peace,
nor enter into any Treaties or alliances except for
peace," the words except for peace being erased, but
sufficiently legible through the erasure. The fair inference
from this passage seems to be 1. that without
those words 9 States were held to be required for
concluding peace. 2. that an attempt had been made
to render 7 States competent to such an act, which
attempt must have succeeded either on a preceding
discussion in Congress or in a Come. of the whole, or
a special come. 3. that on fuller deliberation the
power of making Treaties of peace was meant to be
left on the same footing with that of making all other
Treaties. The remaining papers on the files have no
reference to this question. Another question which
several times during my service in Congs. exercised
their deliberations was whether 7 States could revoke
a Commission for a Treaty issued by nine States, at
any time before the faith of the Confederacy should
be pledged under it. In the instance of a proposition
in 1781 to revoke a Commission which had been
granted under peculiar circumstances in 1779 to
Adams[5] to form a treaty of commerce with G. B., the
competency of 7 States was resolved on (by 7 States
indeed) and a revocation took place accordingly. It
was however effected with much difficulty, and some
members of the minority even contested the validity
of the proceeding. My own opinion then was and
still is that the proceeding was equally valid & expedient.
The circumstances which had given birth to
the com̃ission had given place to others totally different;
not a single step had been taken under the
commission which could affect the honour or faith of
the U. S. and it surely can never be said that either
the letter or spirit of the Confederation, requires the
same majority to decline as to engage in foreign
treaties. The safest method of guarding agst. the execution
of those great powers after the circumstances
which dictated them have changed, is to limit their
duration, trusting to renewals as they expire, if the
original reasons continue. My experience of the uncertainty
of getting an affirmative vote even of 7
States had determined me before I left Congress, always
to contend for such limitations.

I thought the sense of the term "appropriation"
had been settled by the latter practice of Congs. to be
the same as you take it to be. I always understood

that to be the true, the parliamentary and the only
rational sense. If no distinction be admitted between
the "appropriation of money to general uses" and
"expenditures in detail" the Secretary of Congs.
could not buy quills or wafers without a vote of nine
States entered on record, and the Secretary to the
Com̃e of the States could not do it at all. In short
unless one vote of appropriation can extend to a class
of objects, there must be a physical impossibility of
providing for them; & the extent & generality of
such classes can only be determined by discretion &
conveniency. It is observable that in the specification
of the powers which require 9 States, the single technical
word "appropriate" is retained. In the general
recital which precedes, the word "apply" as well as
"appropriate" is used.—You were not mistaken in
supposing I had in conversation restrained the authority
of the foederal Court to territorial disputes, but I
was egregiously so in the opinion I had formed.
Whence I got it I am utterly at a loss to account. It
could not be from the Confederation itself, for words
could not be more explicit. I detected the error a
few days ago in consulting the articles on another
subject, & had noted it for my next letter to you.—
I am not sure that I comprehend your idea of a cession
of the territory beyond the Kenhaway and on
this side of the Ohio. As all the soil of value has
been granted out to individuals a cession in that view
would be improper, and a cession of the jurisdiction
to Congs. can be proper only where the Country is
vacant of settlers. I presume your meaning therefore
to be no more than a separation of that country from
this and an incorporation of it into ye. Union; a work
to which all three must be parties. I have no reason
to believe there will be any repugnance on the part of
Virga.—The effort of Pena. for the Western commerce
does credit to her public councils. The commercial
genius of this State is too much in its infancy I fear to
rival the example. Were this less the case, the confusion
of its affairs must stifle all enterprize. I shall
be better able however to judge of the practicability
of your hint when I know more of them.—The declension
of George Town does not surprise me tho' it
gives me regret. If the competition should lie between
Trenton & Philada. & depend on the vote of
New York[6] it is not difficult to foresee into which
scale it will be thrown, nor the probable effect of such
decision on our Southern hopes.—I have long regarded
the council as a grave of useful talents, as well
as objectionable in point of expence, yet I see not
how such a reform as you suggest can be brought
about. The Constitution, tho' readily overleaped by
the Legislature on the spur of an occasion, would
probably be made a bar to such an innovation. It
directs that 8 members be kept up, and requires the
sanction of 4 to almost every act of the Governor.
Is it not to be feared too, that these little meliorations
of the Government may turn the edge of some
of the arguments which ought to be laid to its root?
I grow every day more & more solicitous to see this
essential work begun. Every days delay settles the
Govt. deeper into the habits of the people, and
strengthens the prop which their acquiescence gives it.
My field of observation is too small to warrant any
conjecture of the public disposition towards the measure;
but all with whom I converse lend a ready ear
to it. Much will depend on the politics of Mr.
Henry, wch. are wholly unknown to me. Should they
be adverse, and G. Mason not in the Assembly hazardous
as delay is, the experiment must be put off to
a more auspicious conjuncture.

The charter granted in 1732 to Lord Baltimore
makes, if I mistake not, the Southern shore of the Potowmac,
the boundary of Maryland on that side. The
constitution of Virginia cedes to that State "all the territories
contained within its charter with all the rights
of property, jurisdiction and Government and all other
rights whatsoever, which might at any time have been
claimed by Virginia, excepting only the free navigation
& use of the Rivers Potowmac and Pohomoque,
&c."[7] Is it not to be apprehended that this language
will be construed into an entire relinquishment of the
Jurisdiction of these rivers, and will not such a construction
be fatal to our port regulations on that side,
& otherwise highly inconvenient? I was told on
my journey along the Potowmac of several flagrant
evasions which had been practiced with impunity &
success, by foreign vessels which had loaded at Alexandria.
The jurisdiction of half the rivers ought to
have been expressly reserved. The terms of the surrender
are the more extraordinary, as the patents of

the N. neck place the whole river potowmac within
the Government of Virginia; so that we were armed
with a title both of prior & posterior date, to that of
Maryland. What will be the best course to repair
the error?—to extend our laws upon the River,
making Maryland the plaintiff if she chooses to contest
their authority—to state the case to her at once
and propose a settlement by negociation—or to propose
a mutual appointment of Com̃issioners for the
general purpose of preserving a harmony and efficacy
in the regulations on both sides? The last mode
squares best with my present ideas. It can give no
irritation to Maryld.; it can weaken no plea of Virga.;
it will give Maryland an opportunity of stirring the
question if she chooses, and will not be fruitless if
Maryland should admit our jurisdiction. If I see the
subject in its true light no time should be lost in fixing
the interest of Virginia. The good humour into
which the cession of the back lands must have put
Maryland, forms an apt crisis for any negociations
which may be necessary. You will be able probably
to look into her charter & her laws, and to collect the
leading sentiments relative to the matter.

The winter has been so severe that I have never
renewed my call on the library of Monticello, and the
time is now drawing so near when I may pass for a
while into a different scene, that I shall await at least
the return to my studies. Mr. L. Grymes told me a
few days ago that a few of your Books which had
been borrowed by Mr. W. Maury, and ordered by
him to be sent to his brother's, the clergyman,

on their way to Monticello, were still at the place
which Mr. M. removed from. I desired Mr. Grymes
to send them to me instead of the Parson, supposing,
as the distance is less, the books will probably be
sooner out of danger from accidents, and that a conveyance
from hence will not be less convenient. I
calculated also on the use of such of them as may fall
within my plan. I lately got home the Trunk which
contained my Buffon, but have barely entered upon
him. My time begins already to be much less my
own than during the winter blockade. I must leave
to your discretion the occasional purchase of rare and
valuable books, disregarding the risk of duplicates,
you know tolerably well the objects of my curiosity.
I will only particularize my wish of whatever may
throw light on the general constitution & droit public
of the several confederacies which have existed.
I observe in Boinaud's catalogue several pieces on
the Duch, the German, & the Helvetic. The operations
of our own must render all such lights of consequence.
Books on the Law of N. & N. fall within a
similar remark. The tracts of Bynkershoek, which
you mention I must trouble you to get for me & in
french if to be had rather than in latin. Should the
body of his works come nearly as cheap as these
select publications, perhaps it may [be] worth considering
whether the whole would not be preferable. Is
not Wolfius also worth having? I recollect to have
seen at Pritchard's a copy of Hawkin's abridget. of Co:
Litt: I would willingly take it if it be still there &
you have an opportunity. A copy of Deane's letters
which were printed in New York & which I failed to
get before I left Phila. I should also be glad of. I
use this freedom in confidence that you will be equally
free in consulting your own conveniency whenever I
encroach upon it. I hope you will do so particularly
in the request I have to add. One of my parents
would be considerably gratified with a pair of good
Spectacles which are not to be got here. The particular
readiness of Dudley to serve you inclines me to
think that an order from you would be well executed.
Will you therefore be so good as to get from him
one of his best pebble & double jointed pair, for
the age of fifty-five or thereabouts, with a good case;
and forward them by the first safe conveyance to me
in Orange or at Richmond as the case may be. If
I had thought of this matter before Mr. Maury set
out, I might have lessened your trouble. It is not
material whether I be repayed at the bank of Philada. or
the Treasy. of Virginia, but I beg it may be at neither
till you are made secure by public remittances. It
will be necessary at any rate for £20 or 30 to be
left in your hands or in the bank for little expenditures
which your kindness is likely to bring upon
you.

The Executive of S. Carolina, as I am informed by
the Attorney have demanded of Virginia the surrender
of a citizen of Virga. charged on the affidavit of
Jonas Beard Esqr. whom the Executive of S. C. represent
to be a "Justice of the peace, a member of
the Legislature, and a valuable, good man," as follows:
that "three days before the 25th. day of Octr. 1783 he

(Mr. Beard) was violently assaulted by G. H. during
the sitting of the Court of General Sessions, without
any provocation thereto given, who beat him (Mr. B.)
with his fist & switch over the face head and mouth,
from which beating he was obliged to keep his room
until the said 25th. day of Octr. 1783, and call in the
assistance of a physician." Such is the case as collected
by Mr. Randolph from the letter of the Executive
of S. C. The questions which arise upon it are
1. whether it be a charge of high misdemesnor
within the meaning of the 4 art: of Confederation.
2. whether in expounding the terms high misdemesnor,
the law of S. Carolina, or the British law as in
force in the U. S. before the Revolution ought to be
the standard. 3. if it be not a casus fœederis what
the law of nations exacts of Virginia? 4. if the law
of nations contains no adequate provision for such
occurrences, whether the intimacy of the Union
among the States, the relative position of some, and
the common interest of all of them in guarding against
impunity for offences which can be punished only by
the jurisdiction within which they are committed, do
not call for some supplemental regulations on this
subject? Mr. R. thinks Virginia not bound to surrender
the fugitive untill she be convinced of the facts,
by more substantial information, & of its amounting
to a high misdemesnor, by inspection of the law
of S. C. which & not the British law ought to
be the criterion. His reasons are too long to be
rehearsed.

I know not my dear sir what to reply to the affectionate

invitation which closes your letter.[8] I subscribe
to the justness of your general reflections I feel
the attractions of the particular situation you point
out to me. I cannot altogether renounce the prospect:
still less can I as yet embrace it. It is very far
from being improbable that a few years more may
prepare me for giving such a destiny to my future
life; in which case the same or some equally convenient
spot may be commanded by a little augmentation
of price. But wherever my final lot may fix me be
assured that I shall ever remain, with the sincerest
affection & esteem,