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To George Washington from Thomas Jefferson and Edmund Randolph, 14 February 1791

From Thomas Jefferson and Edmund Randolph

Feb. 14. 1791.

The opinion is,

1. that the attorney for the district of Kentucky do forthwith take the most effectual measures for prosecuting according to law [ ]1 O’Fallon; and that he be informed, that unless the testimony within his reach will clearly subject him to the charge of treason, the prosecution be for a riot.

2. that a proclamation issue, reciting the treaties, law and further proclamation on this subject, and declaring the purpose of the executive, that the disturbers of the public peace shall be prosecuted with the utmost vigor of the law.

The measures fit to be taken by way of precaution to the commandant of Fort Washington, are not here noticed.

AD, DLC: Thomas Jefferson Papers.

This document is in the handwriting of Edmund Randolph, except for the date and the overwriting of blurred words, which are in the handwriting of Thomas Jefferson.

The object of Randolph and Jefferson’s opinion was James O’Fallon, an Irish adventurer who was acting as general agent of the South Carolina Yazoo Company. O’Fallon had entered into a correspondence with Don Esteban Miró y Sabater, Spanish governor at New Orleans, indicating that his company planned to establish an independent government in the Southwest allied to Spain (O’Fallon to Miró, 16 July 1790, in Kinnaird, Spain in the Mississippi Valley, description begins Lawrence Kinnaird, ed. Spain in the Mississippi Valley, 1765–1794. 3 vols. Washington, D.C., 1946-49. In Annual Report of the American Historical Association for the Year 1945, vols. 2-4. description ends 3:357–64).

O’Fallon presented his plans to GW in a different light. In a letter to GW dated 25 Sept. 1790, he wrote: “Having, since the sealing up of the dispatches herein enclosed to your Excellency, noticed a clause in the late Creek treaty, and another in an Act of the legislature of the United States, of Monday, January the 4th of this year, and a third in the same act, respecting persons passing into Indian nations, holding treaties on the subject of lands, and trade with them; and as, in my present agency, I may occasionally have, from the Spanish and Indian borders, intelligence of vital import to transmit to your Excellency, to the Governor of Georgia, to the company, to the new Ally of the States, Mr McGillivray, through the Choctaws and Chickasaws, and may likewise have to determine on the tradeing intercourse between these nations and the people of my colony, so remote from your Excellency or your Excellency’s Indian superintendant and may further have to purchase more lands within the company’s State Charter, from the Choctaws: I, in consequence, submit it to your Excellency whether, or not, it would comport with your Excellency’s arrangement and official plans to extend to me, as the Agent General of the company, sufficient authority in the premisses, and to transmit it as speedily as may be— Your Excellency may depend on my discretion, in the uses of such authority; and that your confidence will, in no one instance be abused without such trust—evils may happen.

“In regard to trade and purchases of the Choctaw tribes, it would perhaps, be better to place this authority in the hands of the company; but the power of passing expresses from one, in the directions just mentioned, ought, I should presume, to be speedily invested in the acting general Agent of the colony—These are submitted to your Excellency’s better judgement, with becoming diffidence.”

O’Fallon signed himself “Agt Genl for, and Proprietr with the So. Carola Yazou Compy” and added the postscript: “By persons, just now arrived from General Harmar’s army, it is handed about, very confidently, that the expedition against the Northern indians must prove abortive—The militia (then about half-ways to the indian towns) began to mutiny, for the want of meat—They had not at the time more beeves, than would last the army 5 days, nor were any ordered on. They lost near one hundred in the woods. This disgusts the people here, because [(]they think) it will inspirit the Savages to greater hostility—The expedition, it is said, has been by Genl St Clair too precipitately taken up, and hastily provided for—The country abounds with every supply, and the people if called on, are willing to support the expedition—But they are not called on—If it fails, a new uproar I fore-see will be set up against the Governor” (DNA: RG 46, First Congress, 1789–1791, Records of Legislative Proceedings, President’s Messages).

Instead of replying to O’Fallon, GW referred his letter to the secretary of war for his opinion. On 15 Jan. 1791 Knox wrote to Tobias Lear: “Pray let me know whether I returned Doctor Fallon’s address to the President of the United States—if so pray send it to me to morrow” (DLC:GW). Lear replied the same day “that Doctor Fallon’s Address has not been returned to the President” (DLC:GW). Knox included a copy of O’Fallon’s letter in his report to GW of 22 Jan. 1791, which GW presented to the Senate and House of Representatives on 24 Jan. 1791. In that report Knox presented O’Fallon’s letter as evidence that the “authority of the United States” was being “set at defiance” on the southwest frontier, threatening to excite a “general indian War . . . on principles disgraceful to the Government” (see Knox to GW, 22 Jan. 1791 and note 4).

GW probably referred O’Fallon’s letter to Edmund Randolph and Thomas Jefferson for their opinion after he submitted Knox’s report to Congress on 24 Jan. 1791. In reponse to the joint opinion of the attorney general and the secretary of state, GW issued a proclamation against O’Fallon on 19 Mar. 1791 (see Proclamation, 19 Mar. 1791).

1Space left blank in MS.

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