Thomas Jefferson Papers

Memoranda of Consultations with the President, [11 March–9 April 1792]

Memoranda of Consultations with the President

[11 Mch.—9 Apr. 1792]

1791. Towards the latter end of Nov.1 H[amilton] had drawn Ternant into a conversation on the subject of the treaty of commerce recommdd. by the Natl. assembly of France to be negociated with us, and as he had not recd. instructions on the subject he led him into a proposal that Ternant should take the thing up as a volunteer with me, that we should arrange conditions, and let them go for confirmation or refusal. H[amilton] communicated this to the Presid. who came into it, and proposed it to me. I disapproved of it, observing that such a volunteer project would be binding on us, and not on them, that it would enable them to find out how far we would go, and avail themselves of it. However the Presidt. thought it worth trying, and I acquiesced. I prepared a plan of treaty for exchanging the privileges of native subjects and fixing all duties for ever as they now stood. He did not like this way of fixing the duties because he said that many articles here would bear to be raised and therefore he would prepare a tariff. He did so raising duties for the French from 25. to 50. per cent. so they were to give us the privileges of native subjects, and we as a com[pens]ation were to make them pay higher duties.2 H[amilton] having made his arrangemts. with Hammond to pretend that tho’ he had no powers to conclude a treaty of commerce, yet his genl. commission authorised him to enter into the discussion of one, then proposed to the President at one of our meetings that the business should be taken up with Hammond in the same informal way. I now discovd. the trap which he had laid by first getting the Presidt. into that step with Ternant. I opposed the thing warmly. H[amilton] observed if we did it with Ternant we should also with Hammond. The Presid. thought this reasonable. I desired him to recollect I had been agt. it with Ternant and only acquiesced under his opinion. So the matter went off as to both. His scheme was evidently to get us engaged first with Ternant, merely that he might have a pretext to engage us on the same ground with Hammond, taking care at the same time, by an extravagant tariff to render it impossible we should come to any conclusion with Ternant: probably meaning at the same time to propose terms so favorable to Gr. Br. as would attach us to that country by treaty.—On one of those occasions he asserted that our commerce with Gr. Br. and her colonies was put on a much more favorable footing than with France and her colonies. I therefore prepared the tabular comparative view of the footing of our commerce with those nations, which see among my papers. See also my project of a treaty and H[amilton]’s tariff.

Committed to writing Mar. 11. 1792.

It was observeable that whenever at any of our consultations any thing was proposed as to Gr. Br., Hamilton had constantly ready something which Mr. Hammond had communicated to him, which suited the subject, and proved the intimacy of their communications: insomuch that I believe he communicated to Hammond all our views and knew from him in return the views of the British court. Many evidences of this occurred. I will state some.—I delivd. to the Presid. my report of Instructions for Carmichl. and Short on the subjects of navigation, boundary and commerce; and desired him to submit it to Hamilton. H[amilton] made several just criticisms on difft. parts of it. But where I asserted that the U.S. had no right to alienate an inch of the territory of any state he attacked and denied the doctrine. See my report, his note and my answer. A few days after came to hand Kirkland’s letter informing us that the British at Niagara expected to run a new line between them and us, and the reports of Pond and Stedman, informing us it was understood at Niagara that Capt. Stevens had been sent here by Simcoe to settle that plan with Hammd. Hence Hamilton’s attack of the principle I had laid down, in order to prepare the way for this new line. See minute of Mar. 9.—Another proof. At one of our consultations about the first of Dec. I mentd. that I wished to give in my report on Commerce, in which I could not avoid recommending a commercial retaliation agt. Gr. Br. H[amilton] opposed it violently; and among other arguments observed that it was of more importance to us to have the posts than to commence a commercial war, that this and this alone wd. free us from the expence of the Indian wars, that it wd. therefore be the height of imprudence in us while treating for the surrender of the posts to engage in any thing which wd. irritate them, that if we did so, they wd. naturally say ‘these people mean war, let us therefore hold what we have in our hands.’ This argument struck me forcibly, and I said ‘if there is a hope of obtaining the posts, I agree it wd. be imprudent to risk that hope by a commercial retaliation. I will therefore wait till Mr. Hammond gives me in his assignment of breaches, and if that gives a glimmering of hope that they mean to surrender the posts, I will not give in my report till the next session.’ Now Hammond had recd. my assignment of breaches on the 15th. of Dec. and about the 22d. or 23d. had made me an apology, for not having been able to send me his counterassignment of breaches, but in terms which shewed I might expect it in a few days. From the moment it escaped my lips in the presence of Hamilton that I wd. not give in my report till I should see Hammond’s counter-complaint and judge if there were a hope of the posts, Hammond never said a word to me on any occasion as to the time he should be ready. At length the Presidt. got out of patience and insisted I shd. jog him. This I did on the 21st. of Feb. at the President’s assembly. He immediately promised I should have it in a few days and accordingly on the 5th. of Mar. I recd. them. Written Mar. 11. 1792.3

Mar. 12. 92. Sent for by the Presidt. and desired to bring the letter he had signed to the king of France.—Went.—He said the H. of Repr. had on Saturday taken up the communication he had made of the king’s letter to him, and come to a vote in their own name, that he did not expect this when he sent his message and the letter, otherwise he would have sent the message without the letter as I had proposed. That he apprehendd. the legislature wd. be endeavoring to invade the executive.—I told him I had understood the house had resolved to request him to join their congratulations to his on the completion and acceptance of the constitution on which part of the vote there were only 2. dissentients (Barnwell and Benson) that the vote was 35. to 16 on that part which expressed an approbation of the wisdom of the constitution, that in the letter he had signed I had avoided saying a word in approbation of the constitution, not knowing whether the King in his heart approved it.—Why indeed says he I begin to doubt very much of the affairs of France. There are papers from London as late as the 10th. of Jan. which represent them as going into confusion.—He read over the letter he had signed, found there was not a word which could commit his judgment about the constitution, and gave it me back again.—This is one of many proofs I have had of his want of confidence in the event of the French revolution. The fact is that Gouverneur Morris, a high flying Monarchy-man, shutting his eyes and his faith to every fact against his wishes, and believing every thing he desires to be true, has kept the President’s mind constantly poisoned with his forebodings. That the President wishes the revolution may be established I believe from several indications. I remember when I recd. the news of the king’s flight and capture, I first told him of it at his assembly. I never saw him so much dejected by any event in my life. He expressed clearly on this occasion his disapprobation of the legislature referring things to the heads of departments.

Written Mar. 12.

Eod. die. 10. aclock A. M. The preceding was about 9. aclock. The Presid. now sends Lear to me to ask what answer he shall give the committee, and particularly whether he shall add to it that ‘in making the communication it was not his expectation that the house should give any answer.’ I told Mr. Lear that I thought the house had a right, independantly of legislation, to express sentiments on other subjects. That when these subjects did not belong to any other branch particularly they would publish them by their own authority; that in the present case which respected a foreign nation, the Pres. being the organ of our nation with other nations, the house would satisfy their duty if instead of a direct communication they shd. pass their sentiments thro’ the President. That if expressing a sentiment were really an invasion of the Executive power, it was so faint a one that it would be difficult to demonstrate it to the public and to a public partial to the French revolution, and not disposed to consider the approbation of it from any quarter as improper. That the Senate indeed had given many indications of their wish to invade the Executive power. The Represent. had done it in one case which was indeed mischeivous and alarming, that of giving orders to the heads of the executive departments without consulting the Pres., but that the late vote for directing the Sec. of the Treasy. to report ways and means, tho’ carried, was carried by so small a majority and with the aid of members so notoriously under a local influence on that question as to give a hope that the practice would be arrested, and the constitutional course be taken up, of asking the Pres. to have information laid before them, but that in the present instance, it was so far from being clearly an invasion of the Executive, and wd. be so little approved by the genl. voice that I cd. not advise the Pres. to express any dissatisfaction at the vote of the house, and I gave Lear in writing what I thought should be his answer. See it.

Mar. 31. A meeting at the ☉’s. Present Th: J. A. H. H. K. and E. R. The subject was the resol. of the H. of Repr. of Mar. 27. to appt. a committee to enquire into the causes of the failure of the late expedition under Majr. Genl. St. Clair with power to call for such persons, papers and records as may be necessary to assist their enquiries. The Committee had written to Knox for the original letters, instructions &c. The President he had called us, to consult, merely because it was the first example, and he wished that so far as it shd. become a precedent, it should be rightly conducted. He neither acknoleged nor denied, nor even doubted the propriety of what the house were doing, for he had not thought upon it, nor was acquainted with subjects of this kind. He could readily conceive there might be papers of so secret a nature as that they ought not to be given up.—We were not prepared and wished time to think and enquire.

Apr. 2. Met again at ☉’s on same subject. We had all considered and were of one mind 1. that the house was an inquest, and therefore might institute enquiries. 2. that they might call for papers generally. 3. that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion. 4. that neither the Committee nor House had a right to call on the head of a department, who and whose papers were under the Presidt. alone, but that the Committee shd. instruct their chairman to move the house to address the President. We had principally consulted the proceedings of the communications in the case of Sr. Rob. Walpole. 13. Chandler’s deb. For point 1. see pages 161. 170. 172. 183. 187. 207. For the 2d. pa. 153. 173. 207. For the 3d. 81. 173. Append. pa. 44. For the 4th. pa. 246. Note Hamilt. agreed with us in all these points except as to the power of the house to call on heads of departments. He observed that as to his department the act constituting it had made it subject to Congress in some points; but he thought himself not so far subject as to be obliged to produce all papers they might call for. They might demand secrets of a very mischeivous nature [here I tho’t he began to fear they would go to examining how far their own members and other persons in the government had been dabbling in stocks, banks &c. and that he probably would chuse in this case to deny their power, and in short he endeavored to place himself subject to the house when the Executive should propose what he did not like, and subject to the Executive when the house shd. propose any thing disagreeable.]4 I observed here a difference between the British parliament and our Congress, that the former was a legislature, an inquest, and a council5 for the king. The latter was by the constitution a legislature and an inquest, but not a council.—Finally agreed to speak separatim to the members of the committee and bring them by persuasion into the right channel. It was agreed in this case that there was not a paper which might not be properly produced, that copies only should be sent, with an assurance that if they should desire it, a clerk should attend with the originals to be verified by themselves. The committee were Fitzsimmons, Steele, Mercer, Clarke, Sedgewick, Giles, Vining.

April 9. 1792. The Presidt. had wished to redeem our captives at Algiers, and to make a peace with them on paying an annual tribute. The Senate were willing to approve this, but unwilling to have the lower house applied to previously to furnish the money. They wished the President to take the money from the treasury or open a loan for it. They thought that to consult the Representatives on one occasion would give them a handle always to claim it, and would let them in to a participation of the power of making treaties which the constitution had given exclusively to the President and Senate. They said too that if the particular sum was voted by the Represent. it would not be a secret. The President had no confidence in the secrecy of the Senate, and did not chuse to take money from the treasury or to borrow. But he agreed he would enter into provisional treaties with the Algerines, not to be binding on us till ratified here. I prepared questions for consultation with the Senate, and added that the Senate were to be apprised that on the return of the provisional treaty, and after they should advise the ratification, he should not have the seal put to it till the two houses should vote the money. He asked me if a treaty stipulating a sum and ratified by him with the advice of the Senate would not be good under the constitution and obligatory on the Represent. to furnish the money? I answered it certainly would, and that it would be the duty of the representatives to raise the money: but that they might decline to do what was their duty, and I thought it might be incautious to commit himself by a ratification with a foreign nation, where he might be left in the lurch in the execution. It was possible too to concieve a treaty which it would not be their duty to provide for. He said that he did not like throwing too much into democratic hands, that if they would not do what the constitution called on them to do, the government would be at an end, and must then assume another form. He stopped here, and I kept silence to see whether he would say any thing more in the same line, or add any qualifying expression to soften what he had said. But he did neither.

I had observed that wherever the agency of either or both houses would be requisite subsequent to a treaty to carry it into effect, it would be prudent to consult them previously if the occasion admitted. That thus it was we were in the habit of consulting the Senate previously when the occasion permitted, because their subseqt. ratification would be necessary. That there was the same reason for consulting the lower house previously where they were to be called on afterwards, and especially in a case of money, as they held the purse strings and would be jealous of them. However he desired me to strike out the intimation that the seal would not be put till both houses should have voted the money.

Apr. 6. The President called on me before breakfast and first introduced some other matters, then fell on the representation bill which he had now in his possession for the 10th day. I had before given him my opinion in writing that the method of apportionmt. 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 agt. a Southern vote, and he feared he should be thought to be taking side with a Southern party. I admitted this 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 Atty. Genl. 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 instrumt. 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 into the H. 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 exercised.—Written this 9th. of April.

MS (DLC); entirely in TJ’s hand. Entry in SJPL under 4 Apr. 1792 reads: “Notes of Mar. 11. on treaties with France and Engld.—On Hamilton and Hammond. Mar 12. Communication of resolution of H. R. to K. of France. Mar. 31. On the call for papers by the H. R. Apr. 2. Do.—on the right of Congress to call on heads of departments. Apr. 9. on previous consultation of one or both houses respecting a treaty.—On negativing the Representation bill.” Included in the “Anas.”

Hamilton’s conversation with Ternant actually occurred early in October rather than late in November 1791. TJ’s Tabularview of American commerce with France and Great Britain is printed as an enclosure to TJ to Washington, 23 Dec. 1791, and his project of a treaty is at 26 Nov. 1791. TJ’s copy of Hamilton’s tariff is in DLC: TJ Papers, 72: 12597; a text in Hamilton’s hand from DLC: Hamilton Papers is printed in Syrett, Hamilton description begins The Papers of Alexander Hamilton, ed. Harold C. Syrett and others, New York, 1961-1979, 27 vols. description ends , xiii, 409–10.

The appointment on 27 Mch. 1792 of a committee to enquire into the causes of the defeat of General Arthur St. Clair’s expedition against the Western tribes in November 1791 was the initial step in the House of Representatives’ first formal investigation of the actions of officers appointed by the executive branch of government. This investigation was greatly facilitated by the administration’s acceptance of the view that the House was entitled to examine executive records pertaining to this affair in order to discharge its responsibility as an inquest as well as by the House’s agreement to request the President to direct executive officers to cooperate with its investigation rather than to demand their cooperation as a matter of right. Thus on 4 Apr. 1792, apparently as a result of the decision of TJ and his fellow cabinet officers to speak separatim to the members of the committee of inquiry, the House resolved to ask Washington “to cause the proper officers to lay before this House such papers of a public nature in the Executive Department, as may be necessary to the investigation of the causes of the failure of the late expedition under Major General St. Clair” (JHR description begins Journal of the House of Representatives of the United States, Washington, Gales & Seaton, 1826- description ends , i, 561). The President thereupon instructed the Secretary of the Treasury and the Secretary of War to provide the House with the papers it needed for its investigation, and the two cabinet members also personally testified before the committee of inquiry. Consequently, the committee submitted a report which the House read on 8 May 1792 and agreed to defer consideration of till the fall session of Congress (Washington to Knox, 4 Apr. 1792, Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, 1931-44, 39 vols. description ends , xxxii, 15; Washington to Hamilton, 6 Apr. 1792, Syrett, Hamilton description begins The Papers of Alexander Hamilton, ed. Harold C. Syrett and others, New York, 1961-1979, 27 vols. description ends , xi, 252; ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States, Washington, Gales & Seaton, 1832–61, 38 vols. description ends , Indian Affairs, i, 36–9). The proceedings of the House of Commons cited by TJ from Richard Chandler, comp., The History and Proceedings of the House of Commons from the Restoration to the Present Time, 14 vols. (London, 1742–1743), pertained to a 1742 parliamentary inquiry into the conduct of Sir Robert Walpole’s ministry.

TJ’s conversation with Washington about the representation bill must have taken place on 5 rather than 6 Apr. 1792 because the President vetoed that piece of legislation on the earlier date (see notes to Opinion on Apportionment Bill, 4 Apr. 1792).

1TJ first wrote “About the last of Nov. or beginning of Dec.”

2Preceding three sentences written in margin, with notation to insert them here.

3Someone, perhaps TJ, pencilled “No. 24” on this line at some later date. The significance of what could be “number 24” or “no, 24”, has not been determined.

4TJ’s brackets.

5TJ inserted “S.C. pa. 91.” at this point. Perhaps TJ intended to write “R.C.,” a reference to Richard Chandler, the compiler whose works he referred to in this memorandum.

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