CHAP. JI.]

JEFFERSON'S ATTITUDE UNDERSTOOD.

19

this last topic. It is here stated nearly as much at length as it really was; the expressions preserved where I could recollect them, and their substance always faithfully stated"

General Washington had intentionally selected a cabinet balanced between the earlier friends of popular and strong government. He had done so, hoping they would fuse in principle and act cordially together. He had long since been undeceived by the constant opposition to each other's views of Jefferson and Hamilton in the Cabinet, and the constantly widening breach between the Republicans and the Federalis:s in Congress. We cannot suppose that the above recorded conversation of February 29th, really gave the President any new insight into the political views of the Secretary of State. But if we were to adopt that hypothesis, it cannot be urged, at least, that thenceforth he did not fully understand them—that he did not understand they were permanent views, and parts of a settled system, and that they cardinally conflicted at nearly every point with those of the Secretary of the Treasury. He thenceforth, at least, understood further, that Jefferson retained deep and fixed objections to Hamilton's principal fiscal measures, notwithstanding they had received the official sanction of the President himself. He was therefore distinctly apprised that his Cabinet could no more be brought to act in partisan politics as a unit, than it could be brought to think as a unit. This is a fact which justice to all parties requires to be henceforth kept clearly in view.

A letter from Jefferson to Short, a few days later (March 18th), recurs to and confirms a previous intimation that he meant to retire at the close of President Washington's first term. After giving a melancholy picture of the explosion which followed the inordinate speculations in United States Bank scripthe rapid fall in the Government 6 per cents.-the decline of the Bank stock from 115 or 120 to 73 or 74 in the space of two or three weeks he says: "This nefarious business is becoming more and more the public detestation, and cannot fail, when the knowledge of it shall be sufficiently extended, to tumble its authors headlong from their heights." He adds: "There can never be a fear but that the paper which represents the public debt will be ever sacredly good. The public faith is bound for this, and no change of system will ever be permitted to touch

VOL II --4

50

SPANISH INSTRUCTIONS.

[CHAP. II. this; but no other paper stands on ground equally sure." Deeply as Jefferson disapproved of the manner of creating no inconsiderable portion of that debt, he never had any doubts on the subject of preserving the public faith.

On the 18th of March, he delivered to the President a report on the subjects of negotiation between the United States and Spain, it being the draft of the instructions he proposed to communicate to Messrs. Carmichael and Short, the commissioners to that court. The subjects discussed are the Boundary, the Navigation of the Mississippi, and the Commerce between the two nations. The contested boundary (between Florida and Georgia) is claimed to be the same with that established at the Treaty of Peace between Great Britain and the United States. The right to navigate the Mississippi, through the Spanish possessions to its mouth, is claimed under the Treaty of Paris of 1763, the Treaty of 1782-3, and on what the writer terms the "still broader and more unquestionable ground," of the law of nature and of nations. Under the latter head, it is declared to be a sentiment" written on the heart of inan,' 99.66 savage or civilized," that "the ocean is free to all men, and their rivers to all their inhabitants." Where a river passes through two States, it is asserted, "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 principle is then enounced more fully than on a former occasion, "that the right to a thing gives a right to the means without which it cannot be used." By a guarded and gradual train of argument, it is claimed that owing to "very peculiar circumstances attending the river Mississippi," the preceding right involves another of an entrepôt near the mouth of the river, under the jurisdiction of the United States. That long narrow strip of land called the Island of New Orleans," is not now asked for, but such a spot "below the town of New Orleans" as American Commissioners, sent for the purpose, should select. If that should be refused, it is proposed that the Commissioners press the naming of the spot in the treaty, and Détour aux Anglais, or English Turn, is suggested as the most eligible one. The objection that Spain might raise, that her treaties with other nations, where she granted them the commercial footing of the most favored nation, would require

66

CHAP. I.] ·

THE APPORTIONMENT BILL.

51

her to grant them also the navigation of the Mississippi, is met by the proposition that "Spain does not grant us the navigation of the river-we have an inherent right to it." For the basis of a commercial treaty, an exchange of the privileges of native citizens, and of the most favored nation, is proposed. The above rather comprise a few important points, selected from a long paper, than a synopsis of its contents. It was drawn up with profound research and ability, couched in concise and perspicacious phraseology, and carried out fully those diplomatic principles and positions, officially originating with Mr. Jefferson, which controlled our negotiations with Spain until, under the auspices of the same statesman, the whole Mississippi question found a still happier solution.

On the 4th of April, Mr. Jefferson gave a Cabinet opinion, advising the President to veto the Apportionment Bill as finally, after a long and angry contest,' passed by Congress. The number of Representatives in Congress was restricted by the Constitution to one for every thirty thousand inhabitants. The bill adopted that ratio, but instead of applying it to the population of each State separately, applied it to the aggregate population of the United States, or, in other words, divided the whole population by thirty thousand, and apportioned the number of members corresponding with the quotient (one hundred and twenty) among the States according to their relative population. This Mr. Jefferson claimed was contrary to the true intent of the Constitution, and that it led to greater inequalities in representation than was at all necessary. His argument is able, and fortified by forcible illustrations. One of his reasons for advising a resort, for the first time in the history of the government, to an Executive veto, is peculiar :

"The non-user of his negative begins already to excite a belief that no Presi dent 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."

Randolph's opinion coincided with Jefferson's; Hamilton and Knox had some doubts, but on the whole advised the President to sign the bill. The President finally concurred with the former, but an entry in the Ana shows with what reluctance he did so:

52

64

April 6th.-The President called on me before breakfast, and first introduced some other matter, then fell on the Representation Bill. which he had now in his possession for the tenth day. I had before given him my opinion in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood at the time by the makers of it: that yet it would bear the construction which the bill put, and he observed that the vote for and against the bill was perfectly geographical, a northern against a southern vote, and he feared he should be thought to be taking side with a southern party. I admitted the motive of delicacy, but that it should not induce him to do wrong: urged the dangers to which the scramble for the fractionary members would always lead. He here expressed his fear that there would, ere long, be a separation of the Union; that the public mind seemed dissatisfied and tending to this. He went home, sent for Randolph, the Attorney-General, desired him to get Mr. Madison immediately and come to me, and if we three concurred in opinion that he should negative the bill, he desired to hear nothing more about it, but that we would draw the instrument for him to sign. They came. Our minds had been before made up. We drew the instrument. Randolph carried it to him, and told him we all concurred in it. He walked with him to the door, and as if he still wished to get off, he said, And you say you approve of this yourself.' 'Yes, sir,' says Randolph, 'I do, upon my honor.' He sent it to the House of Representatives instantly. A few of the hottest friends of the bill expressed passion, but the majority were satisfied, and both in and out of doors it gave pleasure to have, at length, an instance of the negative being exer cised.

"Written this the 9th of April."

.

On the question of passing the bill in the House, notwithstanding the President's objections, twenty-eight voted in the affirmative, and thirty-three in the negative. Another bill, raising the ratio of representation to thirty-three thousand, and apportioning to each State its number of representatives, without regard to fractions, was introduced, and soon passed both houses.

The above extract from the Ana discloses a very noticeable circumstance in the President's calling in Mr. Madison as an adviser so confidential that he practically took the President's place, on this occasion, in giving the casting vote in the Cabinet. It will be borne in mind that Mr. Madison was now the open and avowed leader of the Republican party in Congress-of that opposition" which was so vehemently and incessantly attacking the "Treasury measures" of Hamilton which had received the President's signature. It will hereafter appear that these same confidential relations continued to exist between them for a long period to come-at least as long as Mr. Jeffer son remained in the Cabinet.

CHAP II.]

EXTRADITION TREATY WITH SPAIN.

53

On the 24th of April, the Secretary of State forwarded to Messrs. Carmichael and Short, to be submitted to the Spanish Court, the project of a convention for the mutual rendition of fugitives from justice, between the United States and the Spanish territories bordering on them. The plan had been first drafted by the Secretary, and received the approval of the President. It provided for the giving up of persons who had committed willful murder, not of the nature of treason; for the recovery of debt from fugitives, in the courts of justice established in the States or provinces where the fugitive was found; for the recovery, in like manner, from the fugitive or his representatives, of property or its value, carried away, or of damages sustained by forgery. But in no case was the person of the defendant to be imprisoned for debt. The draft was accor panied by a paper assigning heads of reasons both for its provisions and seeming omissions. The exile necessarily incurred by a fugitive was regarded as a sufficient punishment for most offences. A single extract is given to exhibit the spirit of the paper:

"Treason. This, when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government and acts against the oppres sions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; because real treasons are rare oppres sions frequent. The unsuccessful strugglers against tyranny, have been the chief martyrs of treason laws in all countries.

"Reformation of government with our neighbors, being as much wanted now as reformation of religion is, or ever was anywhere, we should not wish, then, to give up to the executioner. the patriot who fails, and flees to us. Treasons, then, taking the simulated with the real, are sufficiently punished by exile."

On the 28th of April, the Secretary of State forwarded to Mr. Morris instructions on the subject of the obnoxious laws respecting American commerce, passed by the National Assembly of France, couched in terms no less firm than those previously used to Mr. Short. He informed the Minister that the present session of Congress would pass over the subject without exhibiting any but friendly preferences; "but if these should not produce a retaliation of good on their part, a retaliation of evil must follow on ours "-" that it will be impossible to defer longer than the next session of Congress, some counter regulanous for the protection of our ravigation and commerce.”