Chapter XXVI: Part I (1)

REPORTS AND OPINIONS WHILE SECRETARY OF STATE.

I.--_Report on the methods for obtaining Fresh Water from Salt._

The Secretary of State, to whom was referred by the House of Representatives of the United States, the petition of Jacob Isaacs of Newport in Rhode Island, has examined into the truth and importance of the allegations therein set forth, and makes thereon the following report:

The petitioner sets forth, that by various experiments, with considerable labor and expense, he has discovered a method of converting salt-water into fresh, in the proportion of 8 parts out of 10, by a process so simple that it may be performed on board of vessels at sea by the common iron caboose, with small alterations, by the same fire, and in the same time, which is used for cooking the ship's provisions, and offers to convey to the government of the United States a faithful account of his art or secret, to be used by, or within the United States, on their giving to him a reward suitable to the importance of the discovery, and in the opinion of government, adequate to his expenses and the time he has devoted to the bringing it into effect.

In order to ascertain the merit of the petitioner's discovery, it becomes necessary to examine the advances already made in the art of converting salt-water into fresh.

Lord Bacon, to whom the world is indebted for the first germs of so many branches of science, had observed, that with a heat sufficient for distillation, salt will not rise in vapor, and that salt-water distilled is fresh; and it would seem, that all mankind might have observed that the earth is supplied with fresh water chiefly by exhalation from the sea, which is, in fact, an insensible distillation effected by the heat of the sun; yet this, although the most obvious, was not the first idea in the essays for converting salt-water into fresh; filtration was tried in vain, and congelation could be resorted to only in the coldest regions and seasons. In all the earlier trials by distillation, some mixture was thought necessary to aid the operation by a partial precipitation of the salt, and other foreign matters contained in sea-water. Of this kind, were the methods of Sir Richard Hawkins in the sixteenth century, of Glauber, Hauton, and Lister, in the seventeenth, and of Hales, Appleby, Butler, Chapman, Hoffman, and Dore, in the eighteenth; nor was there anything in these methods worthy noting on the present occasion, except the very simple still contrived extempore by Captain Chapman, and made from such materials as are to be found on board every ship, great or small; this was a common pot, with a wooded lid of the usual form; in the centre of which a hole was bored to receive perpendicularly, a short wooden tube made with an inch-and-a-half auger, which perpendicular tube received at its top, and at an acute angle, another tube of wood also, which descended until it joined a third of pewter made by rolling up a dish and passing it obliquely through a cask of cold water; with this simple machine he obtained two quarts of fresh water an hour, and observed that the expense of fuel would be very trifling, if the still was contrived to stand on the fire along with the ship's boiler.

In 1762, Doctor Lind, proposing to make experiment of several different mixtures, first distilled rain-water, which he supposed would be the purest, and then sea-water, without any mixture, which he expected would be the least pure, in order to arrange between these two supposed extremes, the degree of merit of the several ingredients he meant to try; "to his great surprise," as he confesses, the sea-water distilled without any mixture, was as pure as the rain-water; he pursued the discovery and established the fact, that a pure and potable fresh water may be obtained from salt-water by simple distillation, without the aid of any mixture for fining or precipitating its foreign contents. In 1767, he proposed an extempore still, which, in fact, was Chapman's, only substituting a gun-barrel instead of Chapman's pewter tube, and the hand-pump of the ship to be cut in two obliquely and joined again at an acute angle, instead of Chapman's wooden tubes bored expressly; or instead of the wooden lid and upright tube, he proposed a tea-kettle (without its lid or handle) to be turned bottom upwards over the mouth of the pot by way of still-head, and a wooden tube leading from the spout to a gun-barrel passing through a cask of water, the whole luted with equal parts of chalk and meal moistened with salt-water. With this apparatus of a pot, tea-kettle, and gun-barrel, the Dolphin, a twenty-gun ship, in her voyage around the world in 1768, from 56 gallons of sea-water and with 9 lbs. of wood and 69 lbs. of pit-coal made 42 gallons of good fresh water, at the rate of 8 gallons an hour. The Dorsetshire, in her passage from Gibraltar to Mahon in 1769, made 19 quarts of pure water in four hours with 10 lbs. of wood, and the Slambal in 1773, between Bombay and Bengal, with the hand-pump, gun-barrel, and a pot of 6 gallons of sea-water, made ten quarts of fresh water in three hours.

In 1771, Dr. Irvin putting together Lind's idea of distilling without a mixture, Chapman's still, and Dr. Franklin's method of cooling by evaporation, obtained a premium of five thousand pounds from the British parliament. He wet his tube constantly with a mop instead of passing it through a cask of water; he enlarged its bore also, in order to give a free passage to the vapor, and thereby increase its quantity by lessening the resistance or pressure on the evaporating surface. This last improvement was his own; it doubtless contributed to the success of his process; and we may suppose the enlargement of the tube to be useful to that point at which the central parts of the vapor passing through it would begin to escape condensation. Lord Mulgrave used his method in his voyage towards the north pole in 1773, making from 34 to 40 gallons of fresh water a day, without any great addition of fuel, as he says.

M. de Bougainville, in his voyage round the world, used very successfully a still which had been contrived in 1763 by Poyssonier to guard against the water being thrown over from the boiler into the pipe, by the agitation of the ship. In this, one singularity was, that the furnace or fire-box was in the middle of the boiler, so that the water surrounded it in contact. This still, however, was expensive, and occupied much room.

Such was the advances already made in the art of obtaining fresh from salt-water, when Mr. Isaacs, the petitioner, suggested his discovery. As the merit of this could be ascertained by experiment only, the Secretary of State asked the favor of Mr. Rittenhouse, President of the American Philosophical Society, of Dr. Wistar, professor of chemistry in the college at Philadelphia, and Dr. Hutchinson, professor of chemistry in the University of Pennsylvania, to be present at the experiments. Mr. Isaacs fixed the pot, a small caboose, with a tin cap and straight tube of tin passing obliquely through a cask of cold water; he made use of a mixture, the composition of which he did not explain, and from 24 pints of sea-water, taken up about three miles out of the Capes of Delaware, at flood-tide, he distilled 22 pints of fresh water in four hours with 20 lbs. of seasoned pine, which was a little wetted by having lain in the rain.

In a second experiment of the 21st of March, performed in a furnace, and five-gallon still at the college, from 32 pints of sea-water he drew 31 pints of fresh water in 7 hours and 24 minutes, with 51 lbs. of hickory, which had been cut about six months. In order to decide whether Mr. Isaacs' mixture contributed in any and what degree to the success of the operation, it was thought proper to repeat his experiment under the same circumstances exactly, except the omission of the mixture. Accordingly, on the next day, the same quantity of sea-water was put into the same still, the same furnace was used, and fuel from the same parcel; it yielded, as his had done, 31 pints fresh water in 11 minutes more of time, and with 10 lbs. less of wood.

On the 24th of March, Mr. Isaacs performed a third experiment. For this, a common iron pot of three and a half gallons was fixed in brick work, and the fine from the hearth wound once around this pot spirally, and then passed off up a chimney.

The cap was of tin, and a straight tin tube of about two inches diameter passing obliquely through a barrel of water, served instead of a worm. From sixteen pints of sea-water he drew off fifteen pints of fresh water, in two hours fifty-five minutes, with 3 lbs. of dry hickory and 8 lbs. of seasoned pine. This experiment was also repeated the next day, with the same apparatus, and fuel from the same parcel; but without the mixture, sixteen pints of sea-water yielded in like manner fifteen pints of fresh in one minute more of time, and with ½ lb. less of wood. On the whole, it was evident that Mr. Isaacs' mixture produced no advantage either in the process or result of the distillation.

The distilled water in all these instances, was found on experiment to be as pure as the best pump water of the city; its taste, indeed, was not as agreeable, but it was not such as to produce any disgust. In fact, we drink, in common life, in many places, and under many circumstances, and almost always at sea, a worse tasted and probably a less wholesome water.

The obtaining fresh from salt-water was for ages considered as an important desideratum for the use of navigators. The process for doing this by simple distillation is so efficacious, the erecting an extempore still with such utensils as are found on board of every ship, is so practicable, as to authorize the assertion that this desideratum is satisfied to a very useful degree. But though this has been done for upwards of thirty years, though its reality has been established by the actual experience of several vessels which have had recourse to it, yet neither the fact nor the process is known to the mass of seamen, to whom it would be the most useful, and for whom it was principally wanted. The Secretary of State is therefore of opinion that since the subject has now been brought under observation, it should be made the occasion of disseminating its knowledge generally and effectually among the seafaring citizens of the United States. The following is one of the many methods which might be proposed for doing this: Let the clearance for every vessel sailing from the ports of the United States be printed on a paper, in the back whereof shall be a printed account of the essays which have been made for obtaining fresh from salt-water, mentioning shortly those which have been unsuccessful, and more fully those which have succeeded, describing the methods which have been found to answer for constructing extempore stills of such implements as are generally on board of every vessel, with a recommendation in all cases where they shall have occasion to resort to this expedient for obtaining water, to publish the result of their trial in some gazette on their return to the United States, or to communicate it for publication to the office of the Secretary of State, in order that others may, by their success, be encouraged to make similar trials, and be benefited by any improvements or new ideas which may occur to them in practice.

II. _Opinion on the proposition for establishing a Woollen Manufactory in Virginia._

The House of Delegates of Virginia seemed disposed to adventure £2,500 for the encouragement of this undertaking, but the Senate did not concur. By their returning to the subject, however, at a subsequent session, and wishing more specific propositions, it is probable they might be induced to concur, if they saw a certain provision that their money would not be paid for nothing. Some unsuccessful experiments heretofore may have suggested this caution.

Suppose the propositions brought into some such shape as this: The undertaker is to contribute £1,000, the State £2,500, viz.: the undertaker having laid out his £1,000 in the necessary implements to be brought from Europe, and these being landed in Virginia as a security that he will proceed, let the State pay for

the first necessary purposes then to occur £1,000

Let it pay him a stipend of £100 a year for the first three
years 300

Let it give him a bounty (suppose one-third) on every
yard of woollen cloth equal to good plains, which he
shall weave for five years, not exceeding £250 a year
(20,000 yards) the four first years, and £200 the fifth 1,200
------
£2,500

To every workman whom he shall import, let them give, after he shall have worked in the manufactory five years, warrants for ---- acres of land, and pay the expenses of survey, patents, &c. [This last article is to meet the proposition of the undertaker. I do not like it, because it tends to draw off the manufacturer from his trade. I should better like a premium to him on his continuance in it; as, for instance, that he should be free from State taxes as long as he should carry on his trade.]

The President's intervention seems necessary till the contracts shall be concluded. It is presumed he would not like to be embarrassed afterwards with the details of superintendence. Suppose, in his answer to the Governor of Virginia, he should say that the undertaker being in Europe, more specific propositions cannot be obtained from him in time to be laid before this assembly; that in order to secure to the State the benefits of the establishment, and yet guard them against an unproductive grant of money, he thinks some plan like the preceding one might be proposed to the undertaker.

That as it is not known whether he would accept it exactly in that form, it might disappoint the views of the State were they to prescribe that or any other form rigorously, consequently that a discretionary power must be given to a certain extent.

That he would willingly coöperate with their executive in effecting the contract, and certainly would not conclude it on any terms worse for the State than those before explained, and that the contracts being once concluded, his distance and other occupations would oblige him to leave the execution open to the Executive of the State.

III. _The Report on Copper Coinage, communicated to the House of Representatives, April 15th, 1790._

April 14, 1790.

The Secretary of State, to whom was referred, by the House
of Representatives, the letter of John H. Mitchell, reciting
certain proposals for supplying the United States with copper
coinage, has had the same under consideration, according to
instructions, and begs leave to report thereon as follows:

The person who wishes to undertake the supply of a copper coinage, sets forth, that the superiority of his apparatus and process for coining, enables him to furnish a coinage better and cheaper than can be done by any country or person whatever; that his dies are engraved by the first artist in that line in Europe; that his apparatus for striking the edge at the same blow with the faces, is new, and singularly ingenious; that he coins by a press on a new principle, and worked by a fire-engine, more regularly than can be done by hand; that he will deliver any quantity of coin, of any size and device, of pure, unalloyed copper, wrapped in paper and packed in casks, ready for shipping, for fourteen pence sterling the pound.

The Secretary of State has before been apprized, from other sources of information, of the great improvements made by this undertaker, in sundry arts; he is acquainted with the artist who invented the method of striking the edge, and both faces of the coin at one blow; he has seen his process and coins, and sent to the former Congress some specimens of them, with certain offers from him, before he entered into the service of the present undertaker, (which specimens he takes the liberty of now submitting to the inspection of the House, as proofs of the superiority of this method of coinage, in gold and silver as well as copper.)

He is, therefore, of opinion, that the undertaker, aided by that artist, and by his own excellent machines, is truly in a condition to furnish coin in a state of higher perfection than has ever yet been issued by any nation; that perfection in the engraving is among the greatest safeguards against counterfeits, because engravers of the first class are few, and elevated by their rank in their art, far above the base and dangerous business of counterfeiting. That the perfection of coins will indeed disappear, after they are for some time worn among other pieces, and especially where the figures are rather faintly relieved, as on those of this artist; yet, their high finishing, while new, is not the less a guard against counterfeits, because these, if carried to any extent, may be ushered into circulation new, also, and consequently, may be compared with genuine coins in the same state; that, therefore, whenever the United States shall be disposed to have a coin of their own, it will be desirable to aim at this kind of perfection. That this cannot be better effected, than by availing themselves, if possible, of the services of the undertaker, and of this artist, whose excellent methods and machines are said to have abridged, as well as perfected, the operations of coinage. These operations, however, and their expense, being new, and unknown here, he is unable to say whether the price proposed be reasonable or not. He is also uncertain whether, instead of the larger copper coin, the Legislature might not prefer a lighter one of billon, or mixed metal, as is practised, with convenience, by several other nations--a specimen of which kind of coinage is submitted to their inspection.

But the propositions under consideration suppose that the work is to be carried on in a foreign country, and that the implements are to remain the property of the undertaker; which conditions, in his opinion, render them inadmissible, for these reasons:

Coinage is peculiarly an attribute of sovereignty. To transfer its exercise into another country, is to submit it to another sovereign.

Its transportation across the ocean, besides the ordinary dangers of the sea, would expose it to acts of piracy, by the crews to whom it would be confided, as well as by others apprized of its passage.

In time of war, it would offer to the enterprises of an enemy, what have been emphatically called the sinews of war.

If the war were with the nation within whose territory the coinage is, the first act of war, or reprisal, might be to arrest this operation, with the implements and materials coined and uncoined, to be used at their discretion.

The reputation and principles of the present undertaker are safeguards against the abuses of a coinage, carried on in a foreign country, where no checks could be provided by the proper sovereign, no regulations established, no police, no guard exercised; in short, none of the numerous cautions hitherto thought essential at every mint; but in hands less entitled to confidence, these will become dangers. We may be secured, indeed, by proper experiments as to the purity of the coin delivered us according to contract, but we cannot be secured against that which, though less pure, shall be struck in the genuine die, and protected against the vigilance of Government, till it shall have entered into circulation.

We lose the opportunity of calling in and re-coining the clipped money in circulation, or we double our risk by a double transportation.

We lose, in like manner, the resource of coining up our household plate in the instant of great distress.

We lose the means of forming artists to continue the works, when the common accidents of mortality shall have deprived us of those who began them.

In fine, the carrying on a coinage in a foreign country, as far as the Secretary knows, is without example; and general example is weighty authority.

He is, therefore, of opinion, on the whole, that a mint, whenever established, should be established at home; that the superiority, the merit, and means of the undertaker, will suggest him as the proper person to be engaged in the establishment and conduct of a mint, on a scale which, relinquishing nothing in the perfection of the coin, shall be duly proportioned to our purposes.

And, in the meanwhile, he is of opinion the present proposals should be declined.

IV.--_Opinion on the question whether the Senate has the right to negative the grade of persons appointed by the Executive to fill Foreign Missions._

NEW YORK, April 24, 1790.

The constitution having declared that the President shall _nominate_ and, by and with the advice and consent of the Senate, shall _appoint_ ambassadors, other public ministers, and consuls, the President desired my opinion whether the Senate has a right to negative the _grade_ he may think it expedient to use in a foreign mission as well as the _person_ to be appointed.

I think the Senate has no right to negative the _grade_.

The constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of Representatives. It has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate, and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.

The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.

The constitution itself indeed has taken care to circumscribe this one within very strict limits; for it gives the _nomination_ of the foreign agents to the President, the _appointments_ to him and the Senate jointly, and the _commissioning_ to the President.

This analysis calls our attention the strict import of each term. To _nominate_ must be to _propose_. _Appointment_ seems that act of the will which constitutes or makes the agent, and the _commission_ is the public evidence of it. But there are still other acts previous to these not specially enumerated in the constitution, to wit: 1st. The destination of a mission to the particular country where the public service calls for it, and second the character or grade to be employed in it. The natural order of all these is first, destination; second, grade; third, nomination; fourth, appointment; fifth, commission. If _appointment_ does not comprehend the neighboring acts of _nomination_ or _commission_, (and the constitution says it shall not, by giving them exclusively to the President,) still less can it pretend to comprehend those previous and more remote, of _destination_ and _grade_.

The constitution, analyzing the three last, shows they do not comprehend the two first. The fourth is the only one it submits to the Senate, shaping it into a right to say that "A or B is unfit to be appointed." Now, this cannot comprehend a right to say that "A or B is indeed fit to be appointed," but the grade fixed on is not the fit one to employ, or, "our connections with the country of his destination are not such as to call for any mission."

The Senate is not supposed by the constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them, nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.

It may be objected that the Senate may by continual negatives on the _person_, do what amounts to a negative on the _grade_, and so, indirectly, defeat this right of the President. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.

V.--_Opinion upon the validity of a grant made by the State of Georgia to certain companies of individuals, of a tract of country whereof the Indian right had never been extinguished, with power to such individuals to extinguish the Indian right._

May 3d, 1790.

The State of Georgia, having granted to certain individuals a tract of country, within their chartered limits, whereof the Indian right has never yet been acquired; with a proviso in the grants, which implies that those individuals may take measures for extinguishing the Indian rights under the authority of that Government, it becomes a question how far this grant is good?

A society, taking possession of a vacant country, and declaring they mean to occupy it, does thereby appropriate to themselves as prime occupants what was before common. A practice introduced since the discovery of America, authorizes them to go further, and to fix the limits which they assume to themselves; and it seems, for the common good, to admit this right to a moderate and reasonable extent.

If the country, instead of being altogether vacant, is thinly occupied by another nation, the right of the native forms an exception to that of the new comers; that is to say, these will only have a right against all other nations except the natives. Consequently, they have the exclusive privilege of acquiring the native right by purchase or other just means. This is called the right of preëmption, and is become a principle of the law of nations, fundamental with respect to America. There are but two means of acquiring the native title. First, war; for even war may, sometimes, give a just title. Second, contracts or treaty.

The States of America before their present union possessed completely, each within its own limits, the exclusive right to use these two means of acquiring the native title, and, by their act of union, they have as completely ceded both to the general government. Art. 2d, Section 1st. "The President shall have power, by and with the advice of the Senate, to make treaties, provided two thirds of the Senators present concur." Art. 1st, Section 8th, "The Congress shall have power to declare war, to raise and support armies." Section 10th, "No State shall enter into any treaty, alliance or confederation. No State shall, without the consent of Congress, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay."

These paragraphs of the constitution, declaring that the general government shall have, and that the particular ones shall not have, the right of war and treaty, are so explicit that no commentary can explain them further, nor can any explain them away. Consequently, Georgia, _possessing the exclusive right to acquire the native title_, but having relinquished the _means_ of doing it to the general government, can only have put her grantee into her own condition. She could convey to them the exclusive right to acquire; but she could not convey what she had not herself, that is, the means of acquiring.

For these they must come to the general government, in whose hands they have been wisely deposited for the purposes both of peace and justice.

What is to be done? The right of the general government is, in my opinion, to be maintained. The case is sound, and the means of doing it as practicable as can ever occur. But respect and friendship should, I think, mark the conduct of the general towards the particular government, and explanations should be asked and time and color given them to tread back their steps before coercion is held up to their view. I am told there is already a strong party in Georgia opposed to the act of their government.

I should think it better then that the first measures, while firm, be yet so temperate as to secure their alliance and aid to the general government.

Might not the eclat of a proclamation revolt their pride and passion, and throw them hastily into the opposite scale? It will be proper indeed to require from the government of Georgia, in the first moment, that while the general government shall be expecting and considering her explanations, things shall remain in _statu quo_, and not a move be made towards carrying what they have begun into execution.

Perhaps it might not be superfluous to send some person to the Indians interested, to explain to them the views of government and to watch with their aid the territory in question.

VI.--_Opinion in favor of the resolutions of May 21st, 1790 directing that, in all cases where payment had not been already made, the debts due to the soldiers of Virginia and North Carolina, should be paid to the original claimants or their attorneys, and not to their assignees._

June 3d, 1790.

The accounts of the soldiers of Virginia and North Carolina, having been examined by the proper officer of government, the balances due to each individual ascertained, and a list of these balances made out, this list became known to certain persons before the soldiers themselves had information of it, and those persons, by unfair means, as is said, and for very inadequate considerations, obtained assignments from many of the soldiers of whatever sum should be due to them from the public, without specifying the amount.

The legislature, to defeat this fraud, passed resolutions on the 21st of May, 1796, directing that where payment had not been made to the original claimant in person or his representatives, it shall be made to him or them personally, or to their attorney, producing a power for that purpose, attested by two justices of the county where he resides, and specifying the certain sum he is to receive.

It has been objected to these resolutions that they annul transfers of property which were good by the laws under which they were made; that they take from the assignees their lawful property; are contrary to the principles of the constitution, which condemn retrospective laws; and are, therefore, not worthy of the President's approbation.

I agree in an almost unlimited condemnation of retrospective laws. The few instances of wrong which they redress are so overweighed by the insecurity they draw over all property and even over life itself, and by the atrocious violations of both to which they lead that it is better to live under the evil than the remedy.

The only question I shall make is, whether these resolutions annul acts which were valid when they were done?

This question respects the laws of Virginia and North Carolina only. On the latter I am not qualified to decide, and therefore beg leave to confine myself to the former.

By the common law of England (adopted in Virginia) the conveyance of a right to a debt or other thing whereof the party is not in possession, is not only void, but severely punishable under the names of Maintenance and Champerty. The Law-merchants, however, which is permitted to have course between merchants, allows the assignment of a _bill of exchange_ for the convenience of commerce. This, therefore, forms one exception to the general rule, that a mere right or thing in action is not assignable. A second exception has been formed by an English statute (copied into the laws of Virginia) permitting _promissory notes_ to be assigned. The laws of Virginia have gone yet further than the statute, and have allowed, as a third exception, that a _bond_ should be assigned, which cannot be done even at this day in England. So that, in Virginia, when a debt has been settled between the parties and put into the form of a bill of exchange, promissory note or bond, the law admits it to be transferred by assignment. In all other cases the assignment of a debt is void.

The debts from the United States to the soldiers of Virginia, not having been put into either of these forms, the assignments of them were void in law.

A creditor may give an order on his debtor in favor of another, but if the debtor does not accept it, he must be sued in the creditor's name; which shows that the _order_ does not transfer the property of the debts. The creditor may appoint another to be his attorney to receive and recover his debt, and he may covenant that when received the attorney may apply it to his own use. But he must sue as attorney to the original proprietor, and not in his own right.

This proves that a _power of attorney_, with such a _covenant_, does not transfer the property of the debt. A further proof in both cases is, that the original creditor may at any time before payment or acceptance revoke either his order or his power of attorney.

In that event the person in whose favor they were given has recourse to a court of equity. When there, the judge examines whether he has done equity. If he finds his transaction has been a fair one, he gives him aid. If he finds it has been otherwise, not permitting his court to be made a handmaid to fraud, he leaves him without remedy in equity as he was in law. The assignments in the present case, therefore, if unfairly obtained, as seems to be admitted, are void in equity as they are in law. And they derive their nullity from the laws under which they were made, not from the new resolutions of Congress. These are not retrospective. They only direct their treasurer not to give validity to an assignment which had it not before, by payments to the assignee until he in whom the legal property still is, shall order it in such a form as to show he is apprized of the sum he is to part with, and its readiness to be paid into his or any other hands, and that he chooses, notwithstanding, to acquiesce under the fraud which has been practised on him. In that case he has only to execute before two justices a power of attorney to the same person, expressing the specific sum of his demand, and it is to be complied with. Actual payment, in this case, is an important act. If made to the assignee, it would put the burthen of proof and process on the original owner. If made to that owner, it puts it on the assignee, who must then come forward and show that his transaction has been that of an honest man.

Government seems to be doing in this what every individual, I think, would feel himself bound to do in the case of his own debt. For, being free in the law, to pay to the one or the other, he would certainly give the advantage to the party who has suffered wrong rather than to him who has committed it.

It is not honorable to take a mere legal advantage, when it happens to be contrary to justice.

But it is honorable to embrace a salutary principle of law when a relinquishment of it is solicited only to support a fraud.

I think the resolutions, therefore, merit approbation. I have before professed my incompetence to say what are the laws of North Carolina on this subject. They, like Virginia, adopted the English laws in the gross. These laws forbid in general the buying and selling of debts, and their policy in this is so wise that I presume they had not changed it till the contrary be shown.

VII.--_Plan for establishing uniformity in the Coinage, Weights, and Measures of the United States. Communicated to the House of Representatives, July 13, 1790._

NEW YORK, July 4, 1790.

SIR:--In obedience to the order of the House of Representatives of January 15th, I have now the honor to enclose you a report on the subject of measures, weights, and coins. The length of time which intervened between the date of the order and my arrival in this city, prevented my receiving it till the 15th of April; and an illness which followed soon after added, unavoidably, some weeks to the delay; so that it was not till about the 20th May that I was able to finish the report. A desire to lessen the number of its imperfections induced me still to withhold it awhile, till, on the 15th of June, came to my hands, from Paris, a printed copy of a proposition made by the Bishop of Autun, to the National Assembly of France, on the subject of weights and measures; and three days afterwards I received, through the channel of the public papers, the speech of Sir John Riggs Miller, of April 13th, in the British House of Commons, on the same subject. In the report which I had prepared, and was then about to give in, I had proposed the latitude of 38°, as that which should fix our standard, because it was the medium latitude of the United States; but the proposition before the National Assembly of France, to take that of 45° as being a middle term between the equator and both poles, and a term which consequently might unite the nations of both hemispheres, appeared to me so well chosen, and so just, that I did not hesitate a moment to prefer it to that of 38°. It became necessary, of course, to conform all my calculations to that standard--an operation which has been retarded by my other occupations.

These circumstances will, I hope, apologize for the delay which has attended the execution of the order of the House; and, perhaps, a disposition on their part to have due regard for the proceedings of other nations, engaged on the same subject, may induce them still to defer deciding ultimately on it till their next session. Should this be the case, and should any new matter occur in the meantime, I shall think it my duty to communicate it to the House, as supplemental to the present report.

I have the honor to be, with sentiments of the most profound respect,

Sir, your most obedient and most humble servant.

The Secretary of State, to whom was referred, by the House of Representatives, to prepare and report a proper plan or plans for establishing uniformity in the currency, weights, and measures of the United States, in obedience thereto, makes the following report:--

To obtain uniformity in measures, weights, and coins, it is necessary to find some measure of invariable length, with which, as a standard, they may be compared.

There exists not in nature, as far as has been hitherto observed, a single subject or species of subject, accessible to man, which presents one constant and uniform dimension.

The globe of the earth itself, indeed, might be considered as invariable in all its dimensions, and that its circumference would furnish an invariable measure; but no one of its circles, great or small, is accessible to admeasurement through all its parts, and the various trials to measure definite portions of them, have been of such various result as to show there is no dependence on that operation for certainty.

Matter, then, by its mere extension, furnishing nothing invariable, its motion is the only remaining resource.

The motion of the earth round its axis, though not absolutely uniform and invariable, may be considered as such for every human purpose. It is measured obviously, but unequally, by the departure of a given meridian from the sun, and its return to it, constituting a solar day. Throwing together the inequalities of solar days, a mean interval, or day, has been found, and divided, by very general consent, into 86,400 equal parts.

A pendulum, vibrating freely, in small and equal arcs, may be so adjusted in its length, as, by its vibrations, to make this division of the earth's motion into 86,400 equal parts, called seconds of mean time.

Such a pendulum, then, becomes itself a measure of determinate length, to which all others may be referred to as to a standard.

But even a pendulum is not without its uncertainties.

1. The difficulty of ascertaining, in practice, its centre of oscillation, as depending on the form of the bob, and its distance from the point of suspension; the effect of the weight of the suspending wire towards displacing the centre of oscillation; that centre being seated within the body of the bob, and therefore inaccessible to the measure, are sources of considerable uncertainty.

2. Both theory and experience prove that, to preserve its isochronism, it must be shorter towards the equator, and longer towards the poles.

3. The height of the situation above the common level, as being an increment to the radius of the earth, diminishes the length of the pendulum.

4. The pendulum being made of metal, as is best, it varies its length with the variations in the temperature of the atmosphere.

5. To continue small and equal vibrations, through a sufficient length of time, and to count these vibrations, machinery and a power are necessary, which may exert a small but constant effort to renew the waste of motion; and the difficulty is so to apply these, as that they shall neither retard or accelerate the vibrations.

1. In order to avoid the uncertainties which respect the centre of oscillation, it has been proposed by Mr. Leslie, an ingenious artist of Philadelphia, to substitute, for the pendulum, a uniform cylindrical rod, without a bob.

Could the diameter of such a rod be infinitely small, the centre of oscillation would be exactly at two-thirds of the whole length, measured from the point of suspension. Giving it a diameter which shall render it sufficiently inflexible, the centre will be displaced, indeed; but, in a second rod not the (1) six hundred thousandth part of its length, and not the hundredth part as much as in a second pendulum with a spherical bob of proper diameter. This displacement is so infinitely minute, then, that we may consider the centre of oscillation, for all practical purposes, as residing at two-thirds of the length from the centre of suspension. The distance between these two centres might be easily and accurately ascertained in practice. But the whole rod is better for a standard than any portion of it, because sensibly defined at both its extremities.

2. The uncertainty arising from the difference of length requisite for the second pendulum, or the second rod, in different latitudes, may be avoided by fixing on some one latitude, to which our standard shall refer. That of 38°, as being the middle latitude of the United States, might seem the most convenient, were we to consider ourselves alone; but connected with other nations by commerce and science, it is better to fix on that parallel which bids fairest to be adopted by them also. The 45th, as being the middle term between the equator and pole, has been heretofore proposed in Europe, and the proposition has been lately renewed there under circumstances which may very possibly give it some effect. This parallel is distinguished with us also as forming our principal northern boundary. Let the completion of the 45th degree, then, give the standard for our union, with the hope that it may become a line of union with the rest of the world.

The difference between the second rod for 45° of latitude, and that for 31°, our other extreme, is to be examined.

The second _pendulum_ for 45° of latitude, according to Sir Isaac Newton's computation, must be of (2) 39.14912 inches English measure; and a _rod_, to vibrate in the same time, must be of the same length between the centres of suspension and oscillation; and, consequently, its whole length 58.7 (or, more exactly, 58.72368) inches. This is longer than the rod which shall vibrate seconds in the 31° of latitude, by about 1/679 part of its whole length; a difference so minute, that it might be neglected, as insensible, for the common purposes of life, but, in cases requiring perfect exactness, the second rod, found by trial of its vibrations in any part of the United States, may be corrected by computation for the (3) latitude of the place, and so brought exactly to the standard of 45°.

3. By making the experiment in the level of the ocean, the difference will be avoided, which a higher position might occasion.

4. The expansion and contraction of the rod with the change of temperature, is the fourth source of uncertainty before mentioned. According to the high authority so often quoted, an iron rod, of given length, may vary, between summer and winter, in temperate latitudes, and in the common exposure of house clocks, from 1/1728 to 1/2592 of its whole length, which, in a rod of 58.7 inches, will be from about two to three hundredths of an inch. This may be avoided by adjusting and preserving the standard in a cellar, or other place, the temperature of which never varies. Iron is named for this purpose, because the least expansible of the metals.

5. The practical difficulty resulting from the effect of the machinery and moving power is very inconsiderable in the present state of the arts; and, in their progress towards perfection, will become less and less. To estimate and obviate this, will be the artist's province. It is as nothing when compared with the sources of inaccuracy hitherto attending measures.

Before quitting the subject of the inconveniences, some of which attend the pendulum alone, others both the pendulum and rod, it must be added that the rod would have an accidental but very precious advantage over the pendulum in this country, in the event of our fixing the foot at the nearest aliquot part of either; for the difference between the common foot, and those so to be deduced, would be three times greater in the case of the pendulum than in that of the rod.

Let the standard of measure, then, be a uniform cylindrical rod of iron, of such length as, in latitude 45°, in the level of the ocean, and in a cellar, or other place, the temperature of which does not vary through the year, shall perform its vibrations in small and equal arcs, in one second of mean time.

A standard of invariable length being thus obtained, we may proceed to identify, by that, the measures, weights and coins of the United States; but here a doubt presents itself as to the extent of the reformation meditated by the House of Representatives. The experiment made by Congress in the year one thousand seven hundred and eighty-six, by declaring that there should be one money of account and payment through the United States, and that its parts and multiples should be in a decimal ratio,[23] has obtained such general approbation, both at home and abroad, that nothing seems wanting but the actual coinage, to banish the discordant pounds, shillings, pence, and farthings of the different States, and to establish in their stead the new denominations. Is it in contemplation with the House of Representatives to extend a like improvement to our measures and weights, and to arrange them also in a decimal ratio? The facility which this would introduce into the vulgar arithmetic would, unquestionably, be soon and sensibly felt by the whole mass of the people, who would thereby be enabled to compute for themselves whatever they should have occasion to buy, to sell, or to measure, which the present complicated and difficult ratios place beyond their computation for the most part. Or, is it the opinion of the Representatives that the difficulty of changing the established habits of a whole nation opposes an insuperable bar to this improvement? Under this uncertainty, the Secretary of State thinks it his duty to submit alternative plans, that the House may, at their will, adopt either the one or the other, exclusively, or the one for the present and the other for a future time, when the public mind may be supposed to have become familiarized to it.

I. And first, on the supposition that the present measures and weights are to be retained but to be rendered uniform and invariable, by bringing them to the same invariable standard.

The first settlers of these States, having come chiefly from England, brought with them the measures and weights of that country. These alone are generally established among us, either by law or usage; and these, therefore, are alone to be retained and fixed. We must resort to that country for information of what they are, or ought to be.

This rests, principally, on the evidence of certain standard measures and weights, which have been preserved, of long time, in different deposits. But differences among these having been known to exist, the House of Commons, in the years 1757 and 1758, appointed committees to inquire into the original standards of their weights and measures. These committees, assisted by able mathematicians and artists, examined and compared with each other the several standard measures and weights, and made reports on them in the years 1758 and 1759. The circumstances under which these reports were made entitle them to be considered, as far as they go, as the best written testimony existing of the standard measures and weights of England; and as such, they will be relied on in the progress of this report.

MEASURES OF LENGTH.

The measures of length in use among us are:

The league of 3 miles, The fathom of 2 yards,
The mile of 8 furlongs, The ell of a yard and quarter,
The furlong of 40 poles or perches, The yard of 3 feet,
The foot of 12 inches, and
The pole or perch of 5½ yards, The inch of 10 lines.

On this branch of their subject, the committee of 1757-1758, says that the standard measures of length at the receipt of the exchequer, are a yard, supposed to be of the time of Henry VII., and a yard and ell supposed to have been made about the year 1601; that they are brass rods, very coarsely made, their divisions not exact, and the rods bent; and that in the year 1742, some members of the Royal Society had been at great pains in taking an exact measure of these standards, by very curious instruments, prepared by the ingenious Mr. Graham; that the Royal Society had had a brass rod made pursuant to their experiments, which was made so accurately, and by persons so skilful and exact, that it was thought not easy to obtain a more exact one; and the committee, in fact, found it to agree with the standards at the exchequer, as near as it was possible. They furnish no means, to persons at a distance, of knowing what this standard is. This, however, is supplied by the evidence of the second pendulum, which, according to the authority before quoted, is, at London, 39.1682 English inches, and, consequently, the second rod there is of 58.7523 of the same inches. When we shall have found, then, by actual trial, the second rod for 45° by adding the difference of their computed length, to wit: 287/10000 of an inch, or rather 3/10 of a line (which in practice will endanger less error than an attempt at so minute a fraction as the ten thousandth parts of an inch) we shall have the second rod of London, or a true measure of 58¾ English inches. Or, to shorten the operation, without varying the result,

Let the standard rod of 45° be divided into 587⅕ equal parts, and let each of these parts be declared a line.

10 lines an inch, 5½ yards a perch or pole,
12 inches a foot, 40 poles or perches a furlong,
3 feet a yard, 8 furlongs a mile,
3 feet 9 inches an ell, 3 miles a league.
6 feet a fathom,

SUPERFICIAL MEASURES

Our measures of surface are, the acre of 4 roods and the rood of 40 square poles; so established by a statute of 33 Edw. 1. Let them remain the same.