Monticello Dec. 31. 21.
The inclosed paper was handed to me by our dear Martha, with a request that I would consider it, and say to you what I think of it. General Taylor has certainly stated the objection to mr Hackley’s claim fairly, fully and powerfully, that I need not repeat them, observing only that in mentioning the notice which Erving had of the negociation with Alagon, he does not mention mr Hackley’s notice, who on the 29th of May 1819. took a conveyance from Alagon with a full knolege that, 3. months before, the US. had by treaty become proprietors of the whole province, and with an express annulment of the very title he was purchasing. this is more than a set off against the implied notice of our government thro Erving. however the circumstance of notice, duly examined, has little weight in the case. the effect of the ratification is the true point, & that on which Genl Taylor very properly rests it, and on which it will turn. on that two questions will arise.
1. did the ratification by the Cortes extend to the 2d & 3d articles only and not to the 8th and it’s subsequent explanations of the extent of these articles? if we are to decide this question ourselves (doubting the judgment of our government) we should have the act of the Cortes before us, to examine critically it’s precise terms. but that I presume we have not; as Genl Taylor seems to take his information of it from the recital in the preamble of the Spanish ratification, that ‘the consent and authority of the general Cortes with respect to the cession mentioned and stipulated in the 2d and 3d articles, had been first obtained.’ not this mean that they had consented to all the articles which respect the cession mentioned in the 2d & 3d? is it a necessary inference from this that the Cortes had not consented to any other article, and especially the 8th and it’s explanations which respect the cession mentioned in the 2d and 3d and their extent? which is most probable, that the Cortes refused their assent to that article? or that the King omitted to communicate it to them? or that, altho’ the fact of consent might be material, it’s mention in the recital being unnecessary & superfluous, might be neither fully nor critically made? Again, when we consider that our government (informed that grants had been made to Alagon, Punon Rostro, & de Vargas, subsequent in truth to Jan. 24. 18. but antedated fraudulently to bring them within the treaty, which grants covered nearly the whole country, from the boundary of the US. to the sea) made their nullification a sine que non of the treaty, that they pertinaciously continued to refuse concluding it until their nullification was agreed to, can we believe they did conclude without knowing that the ratification of this article was as formal and firm as that of the articles it respected and explained? did they mean to decieve their country and palm upon us a fallacious instrument? or were they decieved themselves, that is to say, the President, all the heads of departments, the Atty General, and the whole Senate, as having less knolege than we have of what was a valid ratification? I confess that these considerations have weight with me when opposed to the opinion of Genl Taylor as to the validity of the ratification.
2. but a second question may be made, whether the ratification of the Cortes was necessary? whether the constitution proposed by them for the colonies had authority in them until accepted in each colony respectively? the inhabitants of the colonies themselves, our government and our nation, certainly deny that it could, on principle, be in force in any colony without it’s consent; and at the date of the ratification, not a single colony had accepted, nor do I know that a single one has done it to this day. I think myself certain that the Floridas have not. the old government continued in them to the day of their surrender; and under the old government, a cession of territory and ratification by the king was conclusive. of this the cession of the same countries by the king to England, that of a degree of latitude of them to the US. and that of Louisiana to France are sufficient proofs.
It is with real reluctance that I feel or express any doubts adverse to the interests of mr Hackley. I do it to yourself only, and with a wish not to be quoted, as well to avoid injury to him, as the implication of myself in any thing controversial. I am far from having strong confidence in doubts of what two such able jurists have decided: yet for mr Hackley’s sake I anxiously wish that he should not be so far over-confident in the certainty of these opinions as to enter into any warranties of Title in the portions he may dispose of. these vast grants of land are entirely against the policy of our government. they have ever set their faces most decidedly against such monopolies. in all their sales of land they have taken every measure they could devise to prevent speculations in them by purchases to sell again, & to provide that sales should be made to settlers alone. on this ground mr Hackley will have to contend against prejudices deeply rooted. these might perhaps be some what softened if, instead of taking adverse possession, which the President is bound to remove summarily by the military, he were to make to Congress a full and candid statement of the considerations he has paid, or the sacrifices made, of which these lands are the compensation. they might in that case make him such a grant as would amount to a liberal indemnification.
I shall ever studiously avoid expressing to any person any doubt which might injure mr Hackleys prospects from this source, and sincerely wish him the most can be made of them. I renew to your self affectionate assurances of attachment and respect.
DLC: Papers of Thomas Jefferson.