Legal Opinion of Edmund Randolph
[Philadelphia, ca. Aug. 1791]
The question is, whether any punishment can be inflicted on persons, treating with the Indian tribes, within the limits of the United States, for lands, lying within those limits; the preemption of which is vested in the United States?
- The constitution is the basis of fœderal power.
- This power, so far as the subject of Indians is concerned, relates
- 1. To the regulation of commerce with the Indian tribes.
- 2. To the exclusive right of making treaties.
- 3. To the right of preemption in lands.
- 1. Even if the act, supposed in the question, were really an infraction of the right to regulate commerce, there could be no penalty, unless the law prescribed it.
- Accordingly a law of the second session enters into such a case, but only forfeits the merchandize carried into the Indian country. No other law affects it.
- 2. Without an existing law, no treaty, or compact made by an individual of our nation with the sovereign of another, and not partaking of a treasonable quality, is punishable.
- It seems indeed to be an assumption of the sovereignty of the United States in this respect.
- But the compact being in the name of an individual, does virtually disclaim any assumption of public authority. If it be void, the United States cannot be deprived of their rights.
- It may be indecent and impertinent for a citizen thus to behave. But where no law is, no crime is.
- 3. As to the right of preemption.
- No man has a right to purchase my land from my tenant.
- But if he does purchase, I cannot sue him on the supposition of damages, arising from the mere act of purchase.
- Nor could the United States sue the purchaser of the right of preemption, since the purchase itself is void, and their interest cannot be prejudiced by any purchase, which an individual can make.
- Far less would the purchaser be indictable.
- But it undoubtedly is in the power of congress, to regulate commerce with the Indians in any manner to guard the right of making treaties, by forbidding the citizens to meddle under a penalty, and to provide a security to their preemption by passing adequate laws.
- Until this shall be done, I conceive that this commerce is protected by no law, but the act above mentioned; that an interference in the article of treaties has no penalty, denounced against it; and that the fœderal property, like that of individuals, must depend upon existing laws.
- It may perhaps be proper, if the testimony be strong, to warn all persons by proclamation that the rights of government will be inforced; and possibly a monitory message to the Indians might have a good affect.
Extract from Edmund Randolph to George Washington, 12 Sep. 1791 (DLC: Washington Papers).
The provenance of this document is necessarily a matter of conjecture. No evidence has been found to indicate what prompted TJ to request this legal opinion from Randolph, TJ left no record of when he received it, the original text has not been found, and the opinion itself is written in such general terms that it is impossible to be completely certain of the specific occasion for it. Nevertheless, it seems likely that Randolph drafted this opinion in response to the efforts made by Zachariah Cox and his associates in the Tennessee Yazoo Company in the spring and summer of 1791 to create a settlement at Muscle Shoals. TJ expressed concern about Cox’s activities to the governor of the Southwest Territory in August 1791, and Washington echoed this concern in a letter to Randolph written two months later, laying special emphasis on the opposition of various Southwestern tribes to Cox’s scheme (TJ to William Blount, 12 Aug. 1791; Washington to Randolph, 10 Oct. 1791, Fitzpatrick, Writings description begins John C. Fitzpatrick, ed., The Writings of George Washington, Washington, 1931–1944, 39 vols. description ends , xxxi, 386–7). If this surmise is correct, TJ probably asked Randolph for an opinion on the legal ramifications of Cox’s actions at about the same time that he wrote to Governor Blount, which means that the opinion itself could have been written at any time after 12 Aug. but before 2 Sep. 1791, the date TJ left Philadelphia for Monticello. The law of the second session was the 22 July 1790 act of Congress regulating trade and intercourse with the Indians (Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials by Joseph Gales, Senior, Washington, Gales & Seaton, 1834–1856, 42 vols. All editions are undependable and pagination varies from one printing to another. The edition cited here has this caption on both recto and verso pages: “History of Congress.” Another printing, with the same titlepage, has “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. Those using the latter printing will need to employ the date or, where it is lacking, to add approximately 52 to the page numbers of Annals as cited in this volume. description ends , ii, 2301–3).