Notes on Thomas Jefferson’s Report of
Instructions for the Commissioners to Spain1
[Philadelphia, March 1–4, 1792]2
|[Jefferson’s Comments]||[Hamilton’s notes]|
|The General Tenor of the Report appears solid and proper.|
|The following observations however on a hasty perusal occur.|
|The Report is amended in conformity with this observation.||Page 2. Is it to put our Revolution upon the true or the best footing to say that the circumstances which obliged us to discontinue our foreign Magistrate brought upon us the War?3 Did not the war previously exist and bring on the discontinueance? Was it not rather the cause than the effect?|
|The capture of the army struck out.||Is it accurate to say that France aided us in capturing the whole army of the enemy?4 Does this not imply that there was no other enemy army in the country; though there were in fact two others one in New York, another in South Carolina? This last is a mere criticism as to the accuracy of expression. The sense is clear enough.|
|No conquest of the territory was made, to wit of the island of N. Orleans on the one side, or Louisiana on the other, as both had belonged to Spain before the war. Therefore no change in the right to the water is incident to the territory. This circumstance however is inserted in the Report to make the reasoning the clearer.||Page 11. Are “naval victories” the essen⟨tial⟩5 means of conquest of a water as seems to be impli⟨ed?⟩6 Is not the conquest of a water an incident to th⟨at⟩ of Territory? If this idea is not sound, that combined with it is—namely that in no event could Spain be considered as having conquered the River against the U States—with whom she not only had no war but was an associa⟨te.⟩|
|The word chuse substituted for wish however England could hold that right of common in the water only as incident to Florida, which she then held. When she conveyed Florida to Spain the incident passed by the same conveyance, & she can never have a claim against us on a stipulation the benefit of which she has conveyed to another.||Page 22.7 May it not be inferred from what is said here that though the U States would not wish to insert an express stipulation against other Nations; yet they may be prevailed upon to do it?8 Would such a stipulation be consistent w⟨ith⟩ the right which G Britain reserved to herself in the treaty with us? If the inference alluded to is intended to be excluded, will it not be adviseable to vary the turn of expression so as render the intention more unequivocal?|
|Report altered in conformity to this.||Page 23. Are there conclusive reasons to make it a sine qua non that no phrase shall be admitted which shall express or imply a grant?9 Could the negotiation with propriety be broken off on such a point?|
|Is it not rather one to be endeavoured to be avoided than the avoiding of ⟨it⟩ to be made a sine qua non?|
|⟨The power to alienate the unpeopled te⟩rritory of any ⟨state, is not among the enumerated po⟩wers given by the Constitution to the General government: & if we may go out of that instrument, & accomodate to exigencies which may arise, by alienating the unpeopled territory of a state, we may accomodate ourselves a little more by alienating that which is peopled, & still a little more by selling the people themselves. A shade or two more in the degree of exigency is all that will be requisite, & of that degree we shall ourselves be the judges. However may it not be hoped that these questions are forever laid to rest by the 12th Amendment, now made a part of the Constitution, declaring expressly that the “powers not delegated to the U.S. by the Constitution are reserved to the states respectively”? And if the general government has no power to alienate the territory of a state, it is too irresistable an argument to deny ourselves the use of it on the present occasion.||Page 25. Is it true, that the U States have no right to alienate an Inch of the Territory in Question; except in the case of necessity, intimated in another place?10 Or will it be useful to avow the denial of such a right?
It is apprehended that the Doctrine which restricts the alienation of Territory to cases of extreme necessity is applicable rather to peopled territory, than to waste and uninhabited districts. Positions restraining the right of the U States to accomodate to exigencies which may arise ought ever to be advanced with great caution.11
|It is certainly impossible for any nation to have stipulations of this kind & extent, with two others at the same time. However the language of the Report is made more correct & conformable to the words of the French treaty.||Page 28. Is it true that the stipulation with France respecting the Reception of prizes is exclusive and incommunicable?12 It is doubtless so as against France, but why is it so as against other Nations?|
|It is however a stipulation very inconvenient and even dangerous to the U States and one which ought by all means to be excluded.|
|If the Secretary of the Treasury will be so good as to particularise the advantages to be asked & the equivalents to be offered, it will be proper to consider of them.||Though a Treaty of Commerce like that contemplated in the Report ought not to be rejected, if desired by Spain and coupled with a satisfactory adjustment of the boundary and Navigation; yet ought not something more to be attempted if it were only to give satisfaction to other parts of the Union?|
|Some positively favourable stipulations respecting our Grain flour and Fish even in the European Dominions of Spain would be of great consequence and would justify reciprocal advantages to some of her commodities (say Wines and brandies).13|
|It seems sufficient to stipulate that the treaty shall be ratified, without saying by what body, or by what individuals it is to be. An instruction however is inserted to allow 16 months for the exchange of ratifications.||Will it not be necessary to add an instruction that the usual stipulation respecting the ratification of the Treaty by the U States be varied so as to be adapted to the participation of the Senate?|
|This has been decided before.||Last Page. The words “nor inattentive to their rights” have a pencil line drawn through them.14 Tis certainly best to obliterate them. The less commitment the better.|
D, in the writing of H and Thomas Jefferson, George Washington Papers, Library of Congress; copy, Hamilton Papers, Library of Congress.
1. After John Jay failed to conclude a treaty with Spain under the Confederation, negotiations were not resumed until the summer of 1790, when William Carmichael, United States chargé d’affaires at Madrid, attempted without success to use the Nootka Sound controversy as a lever for obtaining Spanish concessions on the question of free navigation of the Mississippi River. On June 1, 1791, William Short, United States chargé d’affaires at Paris, wrote to Comte de Montmorin, French Foreign Minister, and asked France’s support for Carmichael’s overtures on the Mississippi question. Short’s letter, which was sent to Madrid, was supported by the French chargé d’affaires there. Perhaps fearing the results of the settlement of Anglo-American differences, Diego de Gardoqui, Spanish Minister of Finance, reported favorably to the King on Carmichael’s renewed representations and recommended that Spain reply directly to the United States and offer to resume negotiations on the free navigation of the Mississippi. As a result, Josef de Jaudenes and Josef de Viar, the agents representing Spanish interests at Philadelphia, informed Jefferson in December, 1791, that Spain would be willing to resume negotiations at Madrid. On December 22, 1791, Jefferson wrote to Washington of this offer (ALS, letterpress copy, Thomas Jefferson Papers, Library of Congress), and on January 11, 1792, Washington submitted Jefferson’s recommendations to Congress, nominating Carmichael and Short, who had been appointed United States Minister at The Hague, to represent the United States in these negotiations (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 130–31). The Senate confirmed the nominations on January 24, 1792.
Jefferson’s instructions to Carmichael and Short were written in the form of a report to the President and were sent to H for his suggestions. H accordingly made the “notes” printed above in the right-hand column, and Jefferson in the left-hand column added his comments on H’s notes. The draft in which Jefferson incorporated many of H’s suggestions may be found in the Thomas Jefferson Papers, Library of Congress. The final version of Jefferson’s instructions, dated March 18, 1792, is printed in Ford, Writings of Jefferson description begins Paul Leicester Ford, The Writings of Thomas Jefferson (New York, 1892–1899). description ends , V, 460–81, and in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 252–57. The full contents of the instructions were not laid before the Senate until December 16, 1793.
Washington, however, sent the third section, which related to commerce, to the Senate on March 7, 1792, in support of a request to extend the powers of the commissioners. His letter of transmittal reads as follows:
“I submit to your consideration the report of the Secretary of State which accompanies this, stating the reasons for extending the negotiation proposed at Madrid to the subject of commerce, and explaining under the form of instructions to the commissioners lately appointed to that court the principles on which commercial arrangements with Spain might, if desired on her part, be acceded to on ours; and I have to request your decision, whether you will advise and consent to the extension of the powers of the commissioners as proposed, and to the ratification of a treaty which shall conform to those instructions, should they enter into such a one with that court.” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 133.)
2. The editors are indebted to Dr. Julian P. Boyd, editor of The Papers of Thomas Jefferson, for assistance in dating this document.
3. The sentence in the draft which H objected to reads as follows: “Circumstances obliging us afterwards to discontinue our foreign magistrate, & to name one within every state, this brought on us a war on the part of the former magistrate, supported by the nation among whom he resided.” Jefferson deleted this sentence and substituted one which incorporated H’s suggestions.
4. The sentence to which H is referring reads as follows: “France on our invitation landed a large army within our territories, continued it with us two years, and aided us in recovering sundry places from the possession of the enemy, & finally in capturing their whole army.…” Jefferson deleted the last seven words.
5. Material within broken brackets has been taken from the copy in the Hamilton Papers, Library of Congress.
6. Jefferson did not delete the part of the report to which H took exception, but added only the material which he wrote in the margin opposite H’s remark.
7. In MS, H mistakenly wrote the number “12.”
8. H is referring to the following statement in Jefferson’s draft: “If Spain apprehends that other nations may claim access to our ports in the Missisipi under their treaties with us giving them a right to come & trade in all our ports, tho’ we would not wish to insert an express stipulation against them, yet we shall think ourselves justified to acquiesce in fact under any regul~s Spain may from time to time establish against their admission.” Jefferson substituted “chuse” for “wish,” as indicated in the left-hand column of the MS.
9. H is referring to the following paragraph in Jefferson’s draft: “That no phrase be admitted in the treaty which would express or imply that we take this by grant from Spain.” Jefferson deleted this paragraph and at the end of this section of the draft added the following:
“We might add, as a 5th sine qua non that no phrase should be admitted in the treaty which would express or imply that we take the navigation of the Missisipi as a grant from Spain. but, however, disagreeable it would be to subscribe to such a sentiment, yet were the conclusion of a treaty to hang on that single objection, it would be expedient to wave it, and to meet, at a future day, the consequences of any resumption they may pretend to make, rather than at present those of a separation without coming to any agreement.”
10. H is referring to the following statement in Jefferson’s draft: “We have nothing else to give in exchange: for as to territory, we have neither the right, nor the disposition to alienate an inch of what belongs to any member of our union.”
11. A document in Jefferson’s handwriting, which is dated March 5, 1792, and is located in the Thomas Jefferson Papers, Library of Congress, is headed: “Notes by A. Hamilton on T:J’s Report of instructions for the Commissioners to treat at Madrid. Eight of these notes were conformed to. The two following were not.” The “two following” with which Jefferson did not agree are the two preceding paragraphs by H printed above and the material referred to in note 13. In his document Jefferson then copied the two paragraphs by H in question and his own comment, which is also printed above. For the other point on which Jefferson disagreed with H, see note 13.
12. Jefferson had written that the stipulations respecting prizes “entered into by the U.S. and France towards each other, is, in it’s nature, exclusive & incommunicable to any other.” This section of the draft was expanded to include the provision made in the treaty with France.
13. As mentioned in note 11, there is a separate document, dated March 5, 1792, written by Jefferson, stating that he disagreed with H on two points. The first point is discussed in note 11. The second point concerns the two paragraphs by H printed above. To indicate his disagreement on the second point Jefferson copied these paragraphs in the March 5 document, but for his own comment printed above in the left-hand column Jefferson substituted the following more detailed criticism of H’s comments:
“Th: Jefferson will be glad if the Secretary of the Treasury will state the specific propositions he would have made to Spain, on the subject of our fish, grain & flour, to wit, what he would ask, & what propose as an equivalent. The following considerations will of course occur to him.
“1. If we quit the ground of the most favored nation, as to certain articles for our convenience, Spain may insist on doing the same, for other articles for her convenience: & apprehend that our Commissioners might soon be out of their depth in the details of commerce.
“2. If we grant favor to the wines &c of Spain, Portugal and France will demand the same, & may create the equivalent, the former by laying duties on our fish & grain, the latter by a prohibition of our whale oils; the removal of which will be proposed as the equivalent.” (AL, letterpress copy, Thomas Jefferson Papers, Library of Congress.)
Jefferson apparently sent this statement to Washington (AL, George Washington Papers, Library of Congress), and although a copy of this statement is in the Hamilton Papers, Library of Congress, no evidence has been found that this copy was sent to H by Jefferson.
Jefferson included the paragraphs numbered 1 and 2 in the above statement in the instructions which he sent to William Carmichael and William Short on March 18, 1792, and in the section relating to commerce which Washington sent to the Senate on March 7, 1792.
14. Jefferson had written in the draft: “Should the negociations on the subject of navigation & boundary assume at any time an unhopeful aspect, it may be proper that Spain should be given to understand that if they are discontinued, without coming to any agreement, the government of the U.S. cannot be responsible for the longer forbearance of their Western inhabitants, nor inattentive to their rights.” He had crossed out the phrase “nor inattentive to their rights.”