Philadelphia 8th May 1796
I have been reflecting on the train of measures to be pursued respecting the western posts which yesterday seemed to meet your approbation. The subject was new to me then, and therefore I hope you will excuse me for presenting to your better judgment the result of mine on the letter proposed to be written to Lord Dorchester. That part of it which is to express an acquiescence on your part in the detention of the posts after the first day of june next and indeed a desire that they should remain in the possession of the british for safe custody until the troops of the United states shall arrive to receive them appears objectionable on two grounds.
1st It is not absolutely necessary, and will imply a concession that the punctual delivery of the posts does not take place, in consequence of delays, neglects or impediments of some kind on the part of the United States or of some department in our government. In itself this proposition may be questioned; but admitting it to be true, I do not perceive the propriety in the present stage of the business of the president’s doing any act or using any words which may be interpreted into an acknowledgement,,on our part, that the non-delivery of the posts according to stipulation is to be attributed to ourselves. If certain occurrences have produced an impossibility on our part to take possession on or before the first of june next, and also a necessity on the part of the british to continue to hold the posts after that period, it will be safest for you to suffer, that impossibility and that necessity, to stand upon their own circumstances as they have already happened.
2dly It may be questioned whether the President can be justified in consenting that an armed force of a foreign nation shall occupy a post in the territories of the United States after the time appointed for the evacuation by a treaty solemnly concluded between the two nations. It is my opinion that such an act cannot be justified under the constitution. If the evacuation is not punctually made in consequence of unavoidable causes or of absolute necessity, it may be accusable on that account and must be submitted to: but this is very different from consenting or desiring that the evacuation should be postponed beyond the day stipulated.
A treaty duly made is obligatory as a Law; the execution of the latter cannot be denied or delayed by the president except in particular instances by pardon &c. of offences, so also he cannot dispense with the obligations of a treaty.
But even supposing to request the british governor to hold the posts and take care of them till the arrival of our troops though subsequent to the first day of next june could be justified, as a lawful act, yet it seems to be a condescencion on the part of the United states towards the british nation, that will be unpleasing to many, and complained of by some.
Viewing this matter in a more important light than the other gentlemen seemed to have contemplated it, as it may affect yourself, I could not refrain from communicating my sentiments in writing for your more mature consideration. With the most perfect esteem and Respect I remain your most obed. hbe sert
DLC: Papers of George Washington.