University of Virginia Library

TO JAMES MONROE.

Dear Sir,—Your favor of the 15th inst: came to
hand by thursday's post. Mine by the last post acknowledged
your preceding one. The umbrage given
to the Comsrs. of the U. S. by the negociations of
N. Y. with the Indians was not altogether unknown
to me, though I am less acquainted with the circumstances
of it than your letter supposes. The Idea
which I at present have of the affair leads me to say
that as far as N. Y. may claim a right of treating with
Indians for the purchase of lands within her limits,
she has the confederation on her side; as far as she
may have exerted that right in contravention of the
Genl Treaty, or even unconfidentially with the
Comsrs of Congs, she has violated both duty & decorum.
The fœderal articles give Congs the exclusive
right of managing all affairs with the Indians
not members of any State, under a proviso, that the
Legislative authority of the State within its own limits
be not violated. By Indians not members of a State,
must be meant those, I conceive who do not live
within the body of the Society, or whose Persons or
property form no objects of its laws. In the case of
Indians of this description the only restraint on Congress
is imposed by the Legislative authority of the
State.

If this proviso be taken in its full latitude, it must
destroy the authority of Congress altogether, since
no act of Congs. within the limits of a State can be
conceived which will not in some way or other

encroach upon the authority [of the] State. In order
then to give some meaning to both parts of the sentence
as a known rule of interpretation requires, we
must restrain this proviso to some particular view of
the parties. What was this view? My answer is
that it was to save to the States their right of preemption
of lands from the Indians. My reasons are.
1. That this was the principal right formerly exerted
by the Colonies with regard to the Indians. 2. that
it was a right asserted by the laws as well as the proceedings
of all of them, and therefore being most
familiar, wd be most likely to be in contemplation of
the parties. 3. that being of most consequence to the
States individually, and least inconsistent with the
general powers of Congress, it was most likely to
be made a ground of Compromise. 4. it has been
always said that the proviso came from the Virga
Delegates, who wd naturally be most vigilant over
the territorial rights of their Constituents. But whatever
may be the true boundary between the authority
of Congs & that of N. Y., or however indiscreet
the latter may have been I join entirely with you in
thinking that temperance on the part of the former
will be the wisest policy. I concur with you equally
with regard to the ignominious secession at Annapolis.
As Congs. are too impotent to punish such
offences, the task must finally be left to the States
and experience has shewn in the case of Howel that
the interposition of Congs. agst an offender instead
of promoting his chastisement, may give him a significancy
wch. he otherwise wd never arrive at and may
induce a State to patronize an act which of their own
accord they would have punished. I am sorry to find
the affair of Mr. de Marb—s. taking so serious a
face. As the insult was committed within the jurisdiction
of Pena, I think you are right in supposing the
offender could not be transferred to another jurisdiction
for punishment. The proper questions therefore
are 1. whether the existing law was fully put in force
agst him by Pa? 2. whether due provision has been
made by that State agst like contingencies? Nothing
seems to be more difficult under our new Governments
than to impress on the attention of our Legislatures
a due sense of those duties which spring from
our relations to foreign nations. Several of us have
been labouring much of late in the G. Assembly here
to provide for a case with which we are every day
threaten'd by the eagerness of our disorderly Citizens
for Spanish plunder & Spanish blood. It has been
proposed to authorize Congs Whenever satisfactory
proof shall be given to them by a foreign power of
such a crime being committed by our Citizens within
its jurisdiction as by the law of Nations call for a surrender
of the Offender, & the foreign power shall
actually make the demand, that the Executive may at
the instance of Congs apprehend & deliver up the
offender. That there are offences of that class is
clearly stated by Vattel in particular, & that the business
ought to pass through Congs. is equally clear.
The proposition was a few days ago rejected in
Com̃ittee of the whole. To-day on the report of the
Come it has been agreed to by a small majority. This
is the most material question that has agitated us
during the week past. The Bill for a Religious
Assest has not been yet brought in. Mr. Henry the
father of the scheme is gone up to his Seat for his
family & will no more sit in the H. of Delegates a
circumstance very inauspicious to his offspring. An
attempt will be made for circuit Courts, & Mr. Jones
has it in contemplation to try whether any change
has taken place in the sentiments of the H. of D. on
the subject of the Treaty. He will write to you by
this post & I refer to him for what I may have
omitted.

With sincere regard & esteem I am Dr Sir