Thomas Jefferson Papers
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To Thomas Jefferson from Edmund Randolph, [13 August 1790]

From Edmund Randolph

Friday [13 Aug. 1790]

E. R. to Mr. Jefferson

The inclosed letter is from Charlton. If you approve it, let the sum be settled in what I owe you for the Encyclopedia; and I will send a receipt.

Will the president be obliged to publish a proclamation in consequence of the Indian treaty? He desired me to inquire into this matter from you, as he wishes me to draw it, if to be issued.

I am glad to hear, that you have shaken off your late indisposition.

RC (DLC); endorsed as received 13 Aug. 1790; undated and not recorded in SJL, though enclosure is there entered on this date. Enclosure: Jane Charlton to TJ, 26 June 1790, reading: “Your generosity and politeness towards me on a former address has encouraged me to take the liberty of reminding you of having Honourably resettled an account of Mrs. Jeffersons, paid in 1777 and by your own statement left a balance in my favour with £12–9–5 with interest till paid. Your letter with the Statement has been shewn to Mr. Eppes but he declined settling it. Mr. Randolph does me the favour of presenting this to you and whenever it is Convenient for you to discharge it, will be acknowledged Confering a singular favour on Sir your obliged Hble Servt. J. Charlton” (RC in DLC; endorsed as received 13 Aug. 1790 and so recorded in SJL). Mrs. Charlton’s “former address” and TJ’s letter in reply have not been found. The original settlement with Edward Charlton is recorded in TJ’s Account Book for 20 May 1777; TJ’s calculation of interest on the balance for thirteen and a half years, making the total £ 20 18s., is stated in his hand at the foot of Jane Charlton’s letter, where a receipt is signed by Randolph for the balance after debiting Randolph for the Encyclopédie; and the settlement is recorded in Account Book 25 Nov. 1790 with the statement that it is “the principal and interest of a balance to Charlton to make up the depreciation of an antient paper payment.”

Washington wrote Randolph on 12 Aug. 1790 that he would not withhold concurrence in his wish to go to Philadelphia the following Monday but that, “as it may be necessary for me in pursuance of the law to regulate trade and commerce with the Indian tribes to issue a Proclamation… it might be best for you to see the Secretary of State or the Secy of War, or both… before your departure” (DNA: RG 59, MLR; Washington, Writings, ed. Fitzpatrick, xxxi, 90).

The proclamation alluded to was not that pertaining to the treaty itself. Tobias Lear drafted the form for proclaiming the treaty with the Creeks, dated 14 Aug. 1790 (Washington, Writings, ed. Fitzpatrick, xxxi, 92). The full text of the treaty (except, of course, the secret article) as confirmed and ratified by Washington, as attested by TJ, and as signed by all of the Indian chiefs and witnesses, was published in the (N.Y.) Daily Advertiser and in the Gazette of the United States of 14 Aug. 1790, the latter having also an article on the Creek nation (as TJ noted on a slip in DLC: TJ Papers, 59: 10012). But the proclamation which Washington asked the Attorney General to draw in consultation with TJ and Knox presented a much more delicate problem. The Act of 22 July 1790 established regulations for carrying on trade and intercourse with the Indians for a period of two years, but the treaty with the Creeks as published, unlike the comparable Hopewell treaties of 1785 and 1786, contained no article concerning trade since that was the sole object of the secret provision. Washington therefore wished Randolph, TJ, and Knox to consider whether a proclamation was obligatory in consequence of the Indian treaty. The result was not brought forth for another two weeks.

An early draft of the proclamation, signed by Washington, attested by TJ, and dated 26 Aug. 1790, has been incorrectly attributed to TJ as being in his handwriting (Washington, Writings, ed. Fitzpatrick, xxxi, 99). It is in fact in the handwriting of Randolph (MHi: Knox Papers, LIII, 50). This draft shows that the original intention was to publish the Act of 22 July 1790 and the Hopewell treaties of 3 Jan. 1786 and 10 Jan. 1786 with the Choctaw and Chickasaw nations, for it contains no allusion to the treaty with the Cherokee nation at Hopewell on 28 Nov. 1785. All three of these treaties were virtually identical. They defined the boundaries, forbade settlement in Indian territory by other than Indians, provided for the mutual return of prisoners and for the restoration of slaves and other property taken by Indians, prohibited punishment by retaliation as unjust, required trial of robbery, murder, and other capital crimes under laws of the United States, and retained for the nation “sole and exclusive right of regulating the trade with the Indians.” The final text of the proclamation of 26 Aug. 1790 as published in the Federal Gazette and Philadelphia Daily Advertiser, 15 Sep. 1790, with texts of the Cherokee, Choctaw, and Chickasaw treaties in that and the two next issues, reads as follows (caption, signatures, and sigillary paragraph omitted): “Whereas it hath, at this time, become peculiarly necessary to warn the citizens of the United States against a violation of the Treaties made at Hopewell, on the Keowee, on the twenty-eighth day of November, one thousand seven hundred and eighty-five; and on the third and tenth days of January, one thousand seven hundred and eighty-six between the United States and the Cherokee, Choctaw, and Chickasaw nations of Indians; and to enforce an act entitled, ‘an act to regulate trade and intercourse with the Indian tribes;’ copies of which treaties and act are hereunto annexed: I have therefore thought fit to require, and I do by these presents require all officers of the United States, as well civil as military, and all other citizens and inhabitants thereof, to govern themselves according to the treaties and act aforesaid: as they will answer the contrary at their peril” (texts of the treaties themselves are conveniently found in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxx, 187–95, and in Indian Affairs: Laws and Treaties, ed. Charles J. Kappler, ii, 8–16).

It was indeed “peculiarly necessary” that such a proclamation of warning be issued, but not for the reasons given. The secret article of the Creek treaty required enforcement but could not be published. The solution to this delicate problem was quite as ingenious as TJ’s proposal that the monopolistic trade guarantee to McGillivray, on which the entire negotiation depended, be legitimatized by treaty when this could not be done by law (see opinion, 29 July 1790). It is therefore natural to suppose it was the Secretary of State who suggested the possibility of rendering the secret article enforceable by a proclamation which, reaffirming old treaties negotiated under the Articles of Confederation, made no allusion whatever to the treaty of which that article was a hidden part. TJ had long been familiar with those treaties and with the fact that all three vested exclusive control of Indian trade in the United States, thus supplying the deficiency which—on its public surface—the Creek treaty exhibited (see Hawkins to TJ, 14 June 1786).

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