George Washington to John Jay and the Heads of Departments, 27 August 1790
George Washington to John Jay and the Heads of Departments
United States Augst. 27. 1790.
Provided the dispute between Great Britain and Spain Should come to the decision of Arms, from a variety of circumstances (individually unimportant & inconclusive, but [illegible] very much the reverse when compared and combined) there is no doubt in my mind, that New Orleans & the Spanish Posts above it on the Mississipi will be among the first attempts of the former, and that the reduction of them will be undertaken by a combined operation from Detroit.1
The Consequences of having so formidable & enterprising a people as the British on both our flanks & rear, with their navy in front, as they respect our Western Settlements which may be seduced thereby, as they regard the Security of the Union & its commerce with the West Indies, are too obvious to need enumeration.
What then should be the Answer of the Executive of the United States to Ld Dorchester, in case he should apply for permission to march Troops through the Territory of the sd States from Detroit to the Mississipi?
What notice ought to be taken of the measure, if it should be undertaken without leave, which is the most probable proceeding of the two?
The opinion of is requested to be given in writing upon the above Statement.
(Addressed thus seperately to the Secretary of State, the Secretary of the Treasury, & the Secretary of War)— addressed to Mr. Jay thus: “Mr Jay will oblige the Pr[esident] of the United States by giving his opinion in writing on above Statement.”—2
Dft or FC, DLC: Washington, ser. 4 (EJ: 12499). Marked: “(Secret)”. Endorsed: “Statement submitted to Mr. Jay, / the Secretaries of State, Treasy. / & War Departmts. augt. 27, 1790 / and to the Vice President”.
1. It was widely believed that if a conflict erupted, Britain would attempt to seize the Mississippi country and the Floridas. That was not the plan of the British ministry, and it had already so informed Lord Dorchester. Grenville, however, had suggested to him that it might be possible to entice the United States into an alliance against Spain by holding out the possibility that it would afford the United States an opportunity to open navigation of the Mississippi, an objective that could not be realized if the United States sided with Spain. See , 6: 343–5; GW: Diaries, 6: 89–91; and , 72–73, 93, 100.
2. GW routinely sought advice from JJ and other key figures of the Confederation government even before his inauguration. See, for example, GW to JJ, 11 May and 14 July 1789, above. Once JJ assumed the office as head of the judicial branch of the government, it became necessary to distinguish whether the advice rendered was personal or official in nature. The recipient’s copy of this letter has not been found, but the docketing, which gives JJ no official title, suggests that GW’s request should be considered an informal one. Since the draft is marked “secret,” JJ may have destroyed the recipient’s copy. In his letter to GW of 28 Aug., below, JJ described his response to it as “Remarks & Reflections.” Although the probabilities that GW inquired about were distant and never materialized, they involved matters that would potentially have come under the jurisdiction of the Supreme Court: Britain’s right to navigate the Mississippi, guaranteed it by Article 8 of the Anglo-American peace treaty; rights of passage based on the Law of Nations, which Art. I Sec. 8 Cl. 10 of the Constitution, the “Offense” clause, authorized Congress to punish. For similar informal requests asking members of his cabinet and JJ to suggest matters he ought to raise in his annual address to Congress, see GW to JJ, 19 Nov. 1790, and JJ to GW, 23 Sept. 1791, below. For JJ’s response to an informal request from AH for JJ’s opinion on a question arising “out a Sudden & indigested thought,” see AH to JJ, 13 Nov., and JJ to AH, 28 Nov., both 1790, below. For AH’s request for JJ’s opinion on the formulation of a neutrality proclamation, and for JJ’s response, see AH to JJ, 9 Apr. (first letter), and JJ to AH, 11 Apr., both 1793, below.
In July 1793, GW and the cabinet made a qualitatively different request for the Supreme Court’s opinion on 29 questions related to challenges to American neutrality posed by the actions of Citizen Genet. In this instance, the Supreme Court refused to render official opinions on concrete and immediately relevant matters involving the Franco-American treaties of 1778, on which, since the Constitution made treaties the supreme law of the land, they would be “Judges of a court in the last Resort.” See the Supreme Court Justices to GW, 8 Aug. 1793, below.