From Edmund Randolph
Philadelphia September 12. 1791.
If the Foederal laws were ever so precise in censuring the conduct, to which you alluded in your communication to me on Saturday last, I should doubt, whether the source of your information is not too delicate to become the groundwork of a public act.1 Courts would be very reluctant in extracting testimony from the mouth of an associate, and perhaps the character of government demands, that while it will not suffer any violator of law, how distinguished soever in rank, to escape with impunity, it should not too suddenly seize, what in an unguarded moment may have been dropped.
But the law itself is, I fear defective.2 The two first attempts, having been abortive, cannot be treated as consummated offences; and even the third has not yet been matured into a strictly legal crime. In what shape the last may finally appear, is still a secret; and for this reason only, if no other existed, the executive would probably forbear to act at present. Its issue is so uncertain, that I should find it difficult now to give an opinion, were it required, adjusted to the various combinations of possible events.
I beg leave, however, to lay before you the copy of a paper, which I prepared for the secretary of state, upon a subject, somewhat analogous to your inquiry. I have not thrown it into more form; because you expressed a wish, that the matter should not at this time be considered officially.3 When the secretary returned the paper to me, he said, that he was convinced, that nothing could be done, as the law now stands.
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 abovementioned; 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 effect.
(signed) Edm: Randolph
I have the honor, sir to be, with due respect yr mo. ob. serv.
1. No written “communication” from GW to Edmund Randolph of 10 Sept. has been found. The conduct to which GW had alluded in it might have related to the activities of the Yazoo land companies that GW apparently discussed with his department heads after his return from the Southern Tour (see Thomas Jefferson to Henry Knox, 10 Aug., to William Blount, 12 Aug., Jefferson Papers, description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends 22:27–28, 29–30). GW had talked about the Yazoo companies with his nephew and Gov. Alexander Martin of North Carolina and had earlier expressed concern about their settlements on Indian lands (see Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:155, 158–59, Jefferson and Randolph to GW, 14 Feb., Proclamation, 19 Mar., GW to Tobias Lear, 11 June, n.4). GW consulted with Randolph the previous summer about Indian trade and the Treaty of Hopewell (see GW to Randolph, 12 Aug., and Proclamation, 26 Aug. 1790) and had apparently only recently learned of the attempts of Zachariah Cox of the Tennessee Company to establish a settlement at Muscle Shoals in early 1791 on land that the federal government guaranteed to the Indians at the Treaty of Holston, concluded with the Cherokees by William Blount on 2 July (see Knox to GW, 6 Aug., Jefferson to Blount, 12 Aug. 1791, Jefferson Papers, description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends 22:29–30).
2. Randolph is probably referring to “An Act to regulate trade and intercourse with the Indian tribes,” which GW signed on 22 July 1790 (1 Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 137–38).
3. GW did not request Randolph to report on federal laws for securing Indian land titles until 10 October.