Chapter LXII: Part VI: Miscellaneous Papers (2)

3. If the property does not pass till declared by an office found by jury, or an act passed by the Assembly, the question then is, whether an office had been found, or an act of Assembly been passed for that purpose, before the peace? If there was, the lands had passed to the State during his life, and nothing being left in him, there is nothing for his heirs to claim under the treaty.

4. If the property had not been transferred to the State before the peace, either by the Declaration of Independence, or an office, or an act of Assembly, then it remained in General Oglethorpe at the epoch of the peace; and it will be insisted, no doubt, that, by the sixth article of the treaty of peace, between the United States and Great Britain, which forbids future confiscations, General Oglethorpe acquired a capacity of holding and of conveying his lands. He has conveyed them to his wife. But she being an alien, it will be decided by the laws of the land, whether she took them for her own use, or for the use of the State. For it is a general principle of our law, that conveyances to aliens pass the lands to the State; and it may be urged, that though, by the treaty of peace, General Oglethorpe could convey, yet that treaty did not mean to give him a greater privilege of conveyance than natives hold, to wit: a privilege of transferring the property to persons incapable, by law, of taking it. However, this would be a question between the State of Georgia and the widow of General Oglethorpe, in the decision of which the Chevalier de Mezieres is not interested, because, whether she takes the land by the will, for her own use, or for that of the State, it is equally prevented from descending to him: there is neither a conveyance to him, nor a succession _ab intestato_ devolving on him, which are the cases provided for by our treaty with France. To sum up the matter in a few words; if the lands had passed to the State before the epoch of peace, the heirs of General Oglethorpe cannot say they have descended on them, and if they remained in the General at that epoch, the treaty saving them to him, he could convey them away from his heirs, and he has conveyed them to his widow, either for her own use, or for that of the State.

Seeing no event in which, according to the facts stated to me, the treaty could be applied to this case, or could give any right whatever, to the heirs of General Oglethorpe, I advised the Chevalier de Mezieres not to urge his pretensions on the footing of right, nor under the treaty, but to petition the Assembly of Georgia for a grant of these lands. If, in the question between the State and the widow of General Oglethorpe, it should be decided that they were the property of the State, I expected from their generosity, and the friendly disposition in America towards the subjects of France, that they would be favorable to the Chevalier de Mezieres. There is nothing in the preceding observations which would not have applied against the heir of General Oglethorpe, had he been a native citizen of Georgia, as it now applies against him, being a subject of France. The treaty has placed the subjects of France on a footing with natives, as to conveyances and descent of property. There was no occasion for the Assemblies to pass laws on this subject; the treaty being a law, as I conceive, superior to those of particular Assemblies, and repealing them, when they stand in the way of its operations.

The supposition that the treaty was disregarded on our part, in the instance of the acts of Assembly of Massachusetts and New Hampshire, which made a distinction between natives and foreigners, as to the duties to be paid on commerce, was taken notice of in the letter of November the 20th, which I had the honor of addressing to the Count de Vergennes. And while I express my hopes that, on a revision of these subjects, nothing will be found in them derogatory from either the letter or spirit of our treaty, I will add assurances that the United States will not be behind hand in going beyond both, whenever occasions shall offer of manifesting their sincere attachment to this country.

I will pass on to the observation, that our commercial regulations are difficult, and repugnant to the French merchants. To detail these regulations minutely, as they exist in every State, would be beyond my information. A general view of them, however, will suffice, because the States differ little in their several regulations. On the arrival of a ship in America, her cargo must be reported at the proper office. The duties on it are to be paid. These are commonly from two and a half to five per cent. on its value. On many articles, the value of which is tolerably uniform, the precise sum is fixed by law. A tariff of these is presented to the importer, and he can see what he has to pay, as well as the officer. For other articles, the duty is such a per cent. on their value. That value is either shown by the invoice, or by the oath of the importer. This operation being once over, and it is a very short one, the goods are considered as entered, and may then pass through the whole thirteen States without their being ever more subject to a question, unless they be reshipped. Exportation is still more simple; because, as we prohibit the exportation of nothing, and very rarely lay a duty on any article of export, the State is little interested in examining outward-bound vessels. The captain asks a clearance for his own purposes. As to the operations of internal commerce, such as matters of exchange, of buying, selling, bartering, &c., our laws are the same as the English. If they have been altered in any instance, it has been to render them more simple.

Lastly, as to the tardiness of the administration of justice with us, it would be equally tedious and impracticable for me to give a precise account of it in every State. But I think it probable that it is much on the same footing through all the States, and that an account of it in any one of them may found a general presumption of it in the others. Being best acquainted with its administration in Virginia, I shall confine myself to that. Before the Revolution, a judgment could not be obtained under eight years in the supreme court, where the suit was in the department of the common law, which department embraces about nine-tenths of the subject of legal contestation. In that of the chancery, from twelve to twenty years were requisite. This did not proceed from any vice in the laws, but from the indolence of the judges appointed by the King; and these judges holding their office during his will only, he could have reformed the evil at any time. This reformation was among the first works of the legislature after our independence. A judgment can now be obtained in the supreme court in one year at the common law, and in about three years in the chancery. But more particularly to protect the commerce of France, which, at that moment, was considerable with us, a law was passed, giving all suits wherein a foreigner was a party, a privilege to be tried immediately, on the return of his process, without waiting till those of natives, which stand before them, shall have been decided on. Out of this act, however, the British stand excluded by a subsequent one. This, with its causes, must be explained. The British army, after ravaging the State of Virginia, had sent off a very great number of slaves to New York. By the seventh article of the treaty of peace, they stipulated not to carry away any of these. Notwithstanding this, it was known, when they were evacuating New York, that they were carrying away the slaves. General Washington made an official demand of Sir Guy Carleton, that he should cease to send them away. He answered, that these people had come to them under promise of the King's protection, and that that promise should be fulfilled in preference to the stipulation in the treaty. The State of Virginia, to which nearly the whole of these slaves belonged, passed a law to forbid the recovery of debts due to British subjects. They declared, at the same time, they would repeal the law, if Congress were of opinion they ought to do it. But, desirous that their citizens should be discharging their debts, they afterwards permitted British creditors to prosecute their suits, and to receive their debts in seven equal and annual payments; relying that the demand for the slaves would be either admitted or denied in time to lay their hands on some of the latter payments for reimbursement. The immensity of this debt was another reason for forbidding such a mass of property to be offered for sale under execution at once, as, from the small quantity of circulating money, it must have sold for little or nothing, whereby the creditor would have failed to receive his money, and the debtor would have lost his whole estate without being discharged of his debt. This is the history of the delay of justice in that country in the case of British creditors. As to all others, its administration is as speedy as justice itself will admit. I presume it is equally so in all the other States, and can add, that it is administered in them all, with a purity and integrity of which few counties afford an example.

I cannot take leave altogether of the subjects of this conversation without recalling the attention of the Count de Vergennes to what had been its principal drift. This was to endeavor to bring about a direct exchange between France and the United States (without the intervention of a third nation), of those productions with which each could furnish the other. We can furnish to France (because we have heretofore furnished to England), of whale oil and spermaceti, of furs and peltry, of ships and naval stores, and of potash, to the amount of fifteen millions of livres; and the quantities will admit of increase. Of our tobacco, France consumes the value of ten millions more. Twenty-five millions of livres, then, mark the extent of that commerce of exchange, which is, at present, practicable between us. We want, in return, productions and manufactures, not money. If the duties on our produce are light, and the sale free, we shall undoubtedly bring it here, and lay out the proceeds on the spot in the productions and manufactures which we want. The merchants of France will, on their part, become active in the same business. We shall no more think, when we shall have sold our produce here, of making an useless voyage to another country to lay out the money, than we think at present, when we have sold it elsewhere, of coming here to lay out the money. The conclusion is, that there are commodities which form a basis of exchange to the extent of a million of guineas annually; it is for the wisdom of those in power to contrive that the exchange shall be made.

Having put this paper into the hands of Monsieur Reyneval, we entered into conversation again, on the subject of the Farms, which were now understood to be approaching to a conclusion. He told me, that he was decidedly of opinion, that the interest of the State required the Farm of tobacco to be discontinued, and that he had, accordingly, given every aid to my proposition, which laid within his sphere; that the Count de Vergennes was very clearly of the same opinion, and had supported it strongly with reasons of his own, when he transmitted it to the Comptroller General; but that the Comptroller, in the discussions of this subject which had taken place, besides the objections which the Count de Vergennes had repeated to me, and which are before mentioned, had added, that the contract with the Farmers General was now so far advanced, that the article of tobacco could not be withdrawn from it, without unravelling the whole transaction. Having understood that, in this contract, there was always reserved to the crown a right to discontinue it at any moment, making just reimbursements to the Farmers, I asked M. Reyneval, if the contract should be concluded in its present form, whether it might still be practicable to have it discontinued, as to the article of tobacco, at some future moment. He said it might be possible.

Upon the whole, the true obstacle to this proposition has penetrated, in various ways, through the veil which covers it. The influence of the Farmers General has been heretofore found sufficient to shake a minister in his office. Monsieur de Calonnes' continuance or dismission, has been thought, for some time, to be on a poise. Were he to shift this great weight, therefore, out of his own scale into that of his adversaries, it would decide their preponderance. The joint interests of France and America would be insufficient counterpoise in his favor.

It will be observed that these efforts to improve the commerce of the United States, have been confined to that branch only which respects France itself, and that nothing passed on the subject of our commerce with the West Indies, except an incidental conversation as to our fish. The reason of this, was no want of a due sense of its importance. Of that, I am thoroughly sensible. But efforts in favor of this branch would, at present, be desperate. To nations with which we have not yet treated, and who have possessions in America, we may offer a free vent of their manufactures in the United States, for a full or modified admittance into those possessions. But to France, we are obliged to give that freedom for a different compensation; to wit, for her aid in effecting our independence. It is difficult, therefore, to say what we have now to offer her, for an admission into her West Indies. Doubtless, it has its price. But the question is, what this would be, and whether worth our while to give it. Were we to propose to give to each other's citizens all the rights of natives, they would, of course, count what they should gain by this enlargement of right, and examine whether it would be worth to them as much as their monopoly of their West India commerce. If not, that commercial freedom which we wish to preserve, and which, indeed, is so valuable, leaves us little to offer. An expression in my letter to the Count de Vergennes, of November the 20th, wherein I hinted that both nations might, perhaps, come into the opinion, that the condition of _natives_ might be a better ground of intercourse for their citizens, than that of the _most favored_ nation, was intended to furnish an opportunity to the minister of parleying on that subject, if he was so disposed, and to myself, of seeing whereabouts they would begin, that I might communicate it to Congress, and leave them to judge of the expediency of pursuing the subject. But no overtures have followed; for I have no right to consider as coming from the minister, certain questions which were, very soon after, proposed to me by an individual. It sufficiently accounts for these questions, that that individual had written a memorial on the subject, for the consideration of the minister, and might wish to know what we would be willing to do. The idea that I should answer such questions to him, is equally unaccountable, whether we suppose them originating with himself, or coming from the minister. In fact, I must suppose them to be his own; and I transmit them, only that Congress may see what one Frenchman, at least, thinks on the subject. If we can obtain from Great Britain reasonable conditions of commerce, (which, in my idea, must forever include an admission into her islands,) the freest ground between these two nations would seem to be the best. But if we can obtain no equal terms from her, perhaps Congress might think it prudent, as Holland has done, to connect us unequivocally with France. Holland has purchased the protection of France. The price she pays, is _aid in time of war_. It is interesting for us to purchase a free commerce with the French islands. But whether it is best to pay for it, by _aids in war, or by privileges in commerce, or not to purchase it at all_, is the question.

FOOTNOTE:

[14]

TO JOHN JAY.

PARIS, January 2d, 1786.

SIR,--Several conferences and letters having passed
between the Count de Vergennes and myself, on the subject
of the commerce of this country with the United States,
I think them sufficiently interesting to be communicated
to Congress. They are stated in the form of a report, and
are herein enclosed. The length of this despatch, perhaps,
needs apology. Yet I have not been able to abridge it,
without omitting circumstances which I thought Congress
would rather choose to know. Some of the objects of these
conferences present but small hopes for the present, but
they seem to admit a possibility of success at some future
moment.

* * * * *

I am Sir, your most obedient and most humble servant.

[The above extract from the report referred to in the
preceding letter embraces everything interesting therein,
not communicated to the reader in the previous correspondence.]

V.

_Answers by Mr. Jefferson, to questions addressed to him by Monsieur de Meusnier, author of that part of the Encyclopedie Methodique, entitled Economie politique et diplomatique_.

1. What has led Congress to determine, that the concurrence of seven votes is requisite in questions which, by the Confederation, are submitted to the decision of a majority of the United States, in Congress assembled?

The ninth article of Confederation, section six, evidently establishes three orders of questions in Congress. 1. The greater ones, which relate to making peace or war, alliances, coinage, requisitions for money, raising military force, or appointing its commander-in-chief. 2. The lesser ones, which comprehend all other matters submitted by the Confederation to the federal head. 3. The single question of adjourning from day to day. This gradation of questions is distinctly characterized by the article.

In proportion to the magnitude of these questions, a greater concurrence of the voices composing the Union was thought necessary. Three degrees of concurrence, well distinguished by substantial circumstances, offered themselves to notice. 1. A concurrence of a _majority of the people_ of the Union. It was thought that this would be insured, by requiring the voices of nine States; because, according to the loose estimates which had been made of the inhabitants, and the proportion of them which were free, it was believed that even the nine smallest would include a majority of the free citizens of the Union. The voices, therefore, of nine States were required in the greater questions. 2. A concurrence of the _majority of the States_. Seven constitute that majority. This number, therefore, was required in the lesser questions. 3. A concurrence of the _majority of Congress_, that is to say, of the States actually present in it. As there is no Congress, when there are not seven States present, this concurrence could never be of less than four States. But these might happen to be the four smallest, which would not include one-ninth part of the free citizens of the Union. This kind of majority, therefore, was entrusted with nothing but the power of adjourning themselves from day to day.

Here then are three kind of majorities. 1. Of the people. 2. Of the States. 3. Of the Congress: each of which is entrusted to a certain length.

Though the paragraph in question be clumsily expressed, yet it strictly announces its own intentions. It defines with precision, the _greater_ questions, for which nine votes shall be requisite. In the _lesser_ questions, it then requires a _majority of the United States in Congress assembled_: a term which will apply either to the number seven, as being a _majority of the States_, or to the number four as being a _majority of Congress_. Which of the two kinds of majority, was meant? Clearly, that which would leave a still smaller kind, for the decision of the question of adjournment. The contrary construction would be absurd.

This paragraph, therefore, should be understood, as if it had been expressed in the following terms: "The United States, in Congress assembled, shall never engage in war, &c., but with the consent of nine States: nor determine any other question, but with the consent of a majority of the whole States, except the question of adjournment from day to day, which may be determined by a majority of the States actually present in Congress."

2. How far is it permitted, to bring on the reconsideration of a question which Congress has once determined?

The first Congress which met, being composed mostly of persons who had been members of the legislatures of their respective States, it was natural for them to adopt those rules in their proceedings, to which they had been accustomed in their legislative houses; and the more so, as these happened to be nearly the same, as having been copied from the same original, those of the British parliament. One of those rules of proceeding was, that "a question once determined, cannot be proposed, a second time, in the same session." Congress, during their first session, in the autumn of 1774, observed this rule strictly. But before their meeting in the spring of the following year, the war had broken out. They found themselves at the head of that war, in an executive as well as legislative capacity. They found that a rule, wise and necessary for a legislative body, did not suit an executive one, which, being governed by events, must change their purposes as those change. Besides, their session was then to become of equal duration with the war; and a rule, which should render their legislation immutable, during all that period, could not be submitted to. They, therefore, renounced it in practice, and have ever since continued to reconsider their questions freely. The only restraint as yet provided against the abuse of this permission to reconsider, is, that when a question has been decided, it cannot be proposed for reconsideration, but by some one who voted in favor of the former decision, and declares that he has since changed his opinion. I do not recollect accurately enough, whether it be necessary that his vote should have decided that of his State, and the vote of his State have decided that of Congress.

Perhaps it might have been better, when they were forming the federal constitution, to have assimilated it, as much as possible, to the particular constitutions of the States. All of these have distributed the legislative, executive and judiciary powers, into different departments. In the federal constitution, the judiciary powers are separated from the others; but the legislative and executive are both exercised by Congress. A means of amending this defect has been thought of. Congress having a power to establish what committees of their own body they please, and to arrange among them the distribution of their business, they might, on the first day of their annual meeting, appoint an executive committee, consisting of a member from each State, and refer to them all executive business which should occur during their session; confining themselves to what is of a legislative nature, that is to say, to the heads described in the ninth article, as of the competence of nine States only, and to such other questions as should lead to the establishment of general rules. The journal of this committee, of the preceding day, might be read the next morning in Congress, and considered as approved, unless a vote was demanded on a particular article, and that article changed. The sessions of Congress would then be short, and when they separated, the Confederation authorizes the appointment of a committee of the States, which would naturally succeed to the business of the executive committee. The legislative business would be better done, because the attention of the members would not be interrupted by the details of execution; and the executive business would be better done, because, business of this nature is better adapted to small, than great bodies. A monarchical head should confide the execution of its will to departments, consisting, each, of a plurality of hands, who would warp that will, as much as possible, towards wisdom and moderation, the two qualities it generally wants. But, a republican head, founding its decrees, originally, in these two qualities, should commit them to a single hand for execution, giving them, thereby, a promptitude which republican proceedings generally want. Congress could not, indeed, confide their executive business to a smaller number than a committee consisting of a member from each State. This is necessary to insure the confidence of the Union. But it would be gaining a great deal, to reduce the executive head to thirteen, and to relieve themselves of those details. This, however, has as yet been the subject of private conversations only.

3. A succinct account of paper money in America?

Previous to the Revolution, most of the States were in the habit, whenever they had occasion for more money than could be raised immediately by taxes, to issue paper notes or bills, in the name of the State, wherein they promised to pay to the bearer the sum named in the note or bill. In some of the States no time of payment was fixed, nor tax laid to enable payment. In these, the bills depreciated. But others of the States named in the bill the day when it should be paid, laid taxes to bring in money enough for that purpose, and paid the bills punctually, on or before the day named. In these States, paper money was in as high estimation as gold and silver. On the commencement of the late Revolution, Congress had no money. The external commerce of the States being suppressed, the farmer could not sell his produce, and, of course, could not pay a tax. Congress had no resource then but in paper money. Not being able to lay a tax for its redemption, they could only promise that taxes should be laid for that purpose, so as to redeem the bills by a certain day. They did not foresee the long continuance of the war, the almost total suppression of their exports, and other events, which rendered the performance of their engagement impossible. The paper money continued for a twelvemonth equal to gold and silver. But the quantities which they were obliged to emit for the purpose of the war, exceeded what had been the usual quantity of the circulating medium. It began, therefore, to become cheaper, or, as we expressed it, it depreciated, as gold and silver would have done, had they been thrown into circulation in equal quantities. But not having, like them, an intrinsic value, its depreciation was more rapid and greater than could ever have happened with them. In two years, it had fallen to two dollars of paper money for one of silver; in three years, to four for one; in nine months more, it fell to ten for one; and in the six months following, that is to say, by September, 1779, it had fallen to twenty for one.

Congress, alarmed at the consequences which were to be apprehended, should they lose this resource altogether, thought it necessary to make a vigorous effort to stop its further depreciation. They therefore determined, in the first place, that their emissions should not exceed two hundred millions of dollars, to which term they were then nearly arrived; and though they knew that twenty dollars of what they were then issuing, would buy no more for their army than one silver dollar would buy, yet they thought it would be worth while to submit to the sacrifice of nineteen out of twenty dollars, if they could thereby stop further depreciation. They, therefore, published an address to their constituents, in which they renewed their original declarations, that this paper money should be redeemed at dollar for dollar. They proved the ability of the States to do this, and that their liberty would be cheaply bought at that price. The declaration was ineffectual. No man received the money at a better rate; on the contrary, in six months more, that is, by March, 1780, it had fallen to forty for one. Congress then tried an experiment of a different kind. Considering their former offers to redeem this money at par, as relinquished by the general refusal to take it, but in progressive depreciation, they required the whole to be brought in, declared it should be redeemed at its present value, of forty for one, and that they would give to the holders new bills, reduced in their denomination to the sum of gold or silver, which was actually to be paid for them. This would reduce the nominal sum of the mass in circulation to the present worth of that mass, which was five millions; a sum not too great for the circulation of the States, and which, they therefore hoped, would not depreciate further, as they continued firm in their purpose of emitting no more. This effort was as unavailing as the former. Very little of the money was brought in. It continued to circulate and to depreciate, till the end of 1780, when it had fallen to seventy-five for one, and the money circulated from the French army, being, by that time, sensible in all the States north of the Potomac, the paper ceased its circulation altogether in those States. In Virginia and North Carolina it continued a year longer, within which time it fell to one thousand for one, and then expired, as it had done in the other States, without a single groan. Not a murmur was heard on this occasion, among the people. On the contrary, universal congratulations took place on their seeing this gigantic mass, whose dissolution had threatened convulsions which should shake their infant confederacy to its centre, quietly interred in its grave. Foreigners, indeed, who do not, like the natives, feel indulgence for its memory, as of a being which has vindicated their liberties, and fallen in the moment of victory, have been loud, and still are loud in their complaints. A few of them have reason; but the most noisy are not the best of them. They are persons who have become bankrupt by unskilful attempts at commerce with America. That they may have some pretext to offer to their creditors, they have bought up great masses of this dead money in America, where it is to be had at five thousand for one, and they show the certificates of their paper possessions, as if they had all died in their hands, and had been the cause of their bankruptcy. Justice will be done to all, by paying to all persons what this money actually cost them, with an interest of six per cent. from the time they received it. If difficulties present themselves in the ascertaining the epoch of the receipt, it has been thought better that the State should lose, by admitting easy proofs, than that individuals, and especially foreigners, should, by being held to such as would be difficult, perhaps impossible.

4. Virginia certainly owed two millions sterling to Great Britain at the conclusion of the war. Some have conjectured the debt as high as three millions. I think that State owed near as much as all the rest put together. This is to be ascribed to peculiarities in the tobacco trade. The advantages made by the British merchants, on the tobaccos consigned to them, were so enormous, that they spared no means of increasing those consignments. A powerful engine for this purpose, was the giving good prices and credit to the planter, till they got him more immersed in debt than he could pay, without selling his lands or slaves. They then reduced the prices given for his tobacco, so that let his shipments be ever so great, and his demand of necessaries ever so economical, they never permitted him to clear off his debt, These debts had become hereditary from father to son, for many generations, so that the planters were a species of property, annexed to certain mercantile houses in London.

5. The members of Congress are differently paid by different States. Some are on fixed allowances, from four to eight dollars a day. Others have their expenses paid, and a surplus for their time. This surplus is of two, three, or four dollars a day.

6. I do not believe there has ever been a moment, when a single whig, in any one State, would not have shuddered at the very idea of a separation of their State from the confederacy. The tories would, at all times, have been glad to see the confederacy dissolved, even by particles at a time, in hopes of their attaching themselves again to Great Britain.

7. The 11th article of Confederation admits Canada to accede to the Confederation at its own will, but adds, "no other colony shall be admitted to the same, unless such admission be agreed to by nine States." When the plan of April, 1784, for establishing new States was on the carpet, the committee who framed the report of that plan, had inserted this clause, "provided nine States agree to such admission, according to the reservation of the 11th of the articles of Confederation." It was objected, 1. That the words of the confederation, "no other colony," could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for "admitting" a new member into the Union, could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow "nine" States to receive a new member, because the same reasons which rendered that number proper now, would render a greater one proper, when the number composing the Union should be increased. They therefore struck out this paragraph and inserted a proviso, that "the consent of so many States, in Congress, shall be first obtained, as may, at the time, be competent;" thus leaving the question, whether the 11th article applies to the admission of new States, to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz.: whether the agreement of the nine States, required by the Confederation, was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz.: "so many States, in Congress, is first obtained," show what was their sense of this matter. If it be agreed that the 11th article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the 13th article, which forbids "any alteration, unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State." The independence of the new States of Kentucky and Franklin, will soon bring on the ultimate decision of all these questions.

8. Particular instances whereby the General Assembly of Virginia have shown that they considered the ordinance called their constitution, as every other ordinance, or act of the legislature, subject to be altered by the legislature for the time being.

1. The convention which formed that constitution, declared themselves to be the House of Delegates, during the term for which they were originally elected, and in the autumn of the year met the Senate, elected under the new constitution, and did legislative business with them. At this time, there were malefactors in the public jail, and there was as yet no court established for their trial. They passed a law, appointing certain members by name, who were then members of the Executive Council, to be a court for the trial of these malefactors, though the constitution had said, in express words, that no person should exercise the powers of more than one of the three departments, legislative, executive and judiciary at the same time. This proves that the very men who had made that constitution understood that it would be alterable by the General Assembly. This court was only for that occasion. When the next General Assembly met, after the election of the ensuing year, there was a new set of malefactors in the jail, and no court to try them. This Assembly passed a similar law to the former, appointing certain members of the Executive Council to be an occasional court for this particular case. Not having the journals of Assembly by me, I am unable to say whether this measure was repealed afterwards. However, they are instances of _executive_ and _judiciary_ powers exercised by the same persons, under the authority of a law, made in contradiction to the constitution.

2. There was a process depending in the ordinary courts of justice, between two individuals of the names of Robinson and Fauntleroy, who were relations, of different descriptions, to one Robinson, a British subject, lately dead. Each party claimed a right to inherit the lands of the decedent according to the laws. Their right should by the constitution have been decided by the judiciary courts; and it was actually depending before them. One of the parties petitioned the Assembly (I think it was in the year 1782), who passed a law deciding the right in his favor. In the following year, a Frenchman, master of a vessel, entered into port without complying with the laws established in such cases, whereby he incurred the forfeitures of the law to any person who would sue for them. An individual instituted a legal process to recover these forfeitures according to the law of the land. The Frenchman petitioned the Assembly, who passed a law deciding the question of forfeiture in his favor. These acts are occasional repeals of that part of the constitution which forbids the same persons to exercise _legislative_ and _judiciary_ powers at the same time.

The Assembly is in the habitual exercise, during their sessions, of directing the Executive what to do. There are few pages of their journals which do not show proofs of this, and consequently instances of the _legislative_ and _executive_ powers exercised by the same persons at the same time. These things prove that it has been the uninterrupted opinion of every Assembly, from that which passed the ordinance called the constitution down to the present day, that their acts may control that ordinance, and, of course, that the State of Virginia has no fixed constitution at all.

[The succeeding observations were made by Mr. Jefferson on an
article entitled "Etats Unis," prepared for the Encyclopedie
Methodique, and submitted to him before its publication.]

Page 8. The malefactors sent to America were not sufficient in number to merit enumeration, as one class out of three which peopled America. It was at a late period of their history that this practice began. I have no book by me which enables me to point out the date of its commencement. But I do not think the whole number sent would amount to two thousand, and being principally men, eaten up with disease, they married seldom and propagated little. I do not suppose that themselves and their descendants are at present four thousand, which is little more than one thousandth part of the whole inhabitants.

Indented servants formed a considerable supply. These were poor Europeans, who went to America to settle themselves. If they could pay their passage, it was well. If not, they must find means of paying it. They were at liberty, therefore, to make an agreement with any person they chose, to serve him such a length of time as they agreed on, upon condition that he would repay to the master of the vessel the expenses of their passage. If, being foreigners, unable to speak the language, they did not know how to make a bargain for themselves, the captain of the vessel contracted for them with such persons as he could. This contract was by deed indented, which occasioned them to be called indented servants. Sometimes they were called redemptioners, because by their agreement with the master of the vessel, they could _redeem_ themselves from his power by paying their passage, which they frequently effected by hiring themselves on their arrival, as is before mentioned. In some States I know that these people had a right of marrying themselves without their master's leave, and I did suppose they had that right everywhere. I did not know that in any of the States they demanded so much as a week for every day's absence without leave. I suspect this must have been at a very early period, while the governments were in the hands of the first emigrants, who, being mostly laborers, were narrow-minded and severe. I know that in Virginia the laws allowed their servitude to be protracted only two days for every one they were absent without leave. So mild was this kind of servitude, that it was very frequent for foreigners, who carried to America money enough not only to pay their passage, but to buy themselves a farm, to indent themselves to a master for three years for a certain sum of money, with a view to learn the husbandry of the country. I will here make a general observation. So desirous are the poor of Europe to get to America, where they may better their condition, that being unable to pay their passage, they will agree to serve two or three years on their arrival here, rather than not go. During the time of that service, they are better fed, better clothed, and have lighter labor, than while in Europe. Continuing to work for hire a few years longer, they buy a farm, marry, and enjoy all the sweets of a domestic society of their own. The American governments are censured for permitting this species of servitude, which lays the foundation of the happiness of these people. But what should these governments do? Pay the passage of all those who choose to go into their country? They are not able; nor were they able, do they think the purchase worth the price? Should they exclude these people from their shores? Those who know their situations in Europe and America, would not say that this is the alternative which humanity dictates. It is said that these people are deceived by those who carry them over. But this is done in Europe. How can the American governments prevent it? Should they punish the deceiver? It seems more incumbent on the European government, where the act is done, and where a public injury is sustained from it. However, it is only in Europe that this deception is heard of. The individuals are generally satisfied in America with their adventure, and very few of them wish not to have made it. I must add that the Congress have nothing to do with this matter. It belongs to the legislatures of the several States.

Page 26. "Une puissance, en effet," &c. The account of the settlement of the colonies, which precedes this paragraph, shows that that settlement was not made by public authority, or at the public expense of England; but by the exertions, and at the expense of individuals. Hence it happened, that their constitutions were not formed systematically, but according to the circumstances which happened to exist in each. Hence, too, the principles of the political connection between the old and new countries, were never settled. That it would have been advantageous to have settled them, is certain; and, particularly, to have provided a body which should decide, in the last resort, all cases wherein both parties were interested. But it is not certain that that right would have been given, or ought to have been given to the Parliament; much less, that it resulted to the Parliament, without having been given to it expressly. Why was it necessary that there should have been a body to decide in the last resort? Because, it would have been for the good of both parties. But this reason shows it ought not to have been the Parliament, since that would have exercised it for the good of one party only.

Page 105. As to the change of the 8th article of Confederation, for quoting requisitions of money on the States.

By a report of the Secretary of Congress, dated January the 4th, 1786, eight States had then acceded to the proposition; to wit, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, and North Carolina.

Congress, on the 18th of April, 1783, recommended to the States to invest them with a power, for twenty-five years, to levy an impost of five per cent. on all articles imported from abroad. New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina, had complied with this, before the 4th of January, 1786. Maryland had passed an act for the same purpose; but, by a mistake in referring to the date of the recommendation of Congress, the act failed of its effect. This was therefore to be rectified. Since the 4th of January, the public papers tell us that Rhode Island has complied fully with this recommendation.

It remains still for New York and Georgia to do it. The exportations of America, which are tolerably well known, are the best measure for estimating the importations. These are probably worth about twenty millions of dollars, annually. Of course, this impost will pay the interest of a debt to that amount. If confined to the foreign debt, it will pay the whole interest of that, and sink half a million of the capital, annually. The expenses of collecting this impost, will probably be six per cent. on its amount, this being the usual expense of collection in the United States. This will be sixty thousand dollars.

On the 30th of April, 1784, Congress recommended to the States, to invest them with a power, for fifteen years, to exclude from their ports the vessels of all nations, not having a treaty of commerce with them; and to pass, as to all nations, an act on the principles of the British navigation act. Not that they were disposed to carry these powers into execution, with such as would meet them in fair and equal arrangements of commerce; but that they might be able to do it against those who should not. On the 4th of January, 1786, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Maryland, Virginia, and North Carolina, had done it. It remained for New Jersey, Delaware, South Carolina, and Georgia, to do the same.

In the meantime, the general idea has advanced before the demands of Congress, and several States have passed acts, for vesting Congress with the whole regulation of their commerce, reserving the revenue arising from these regulations, to the disposal of the State in which it is levied. The States which, according to the public papers, have passed such acts, are New Hampshire, Massachusetts, Rhode Island, New Jersey, Delaware, and Virginia; but the Assembly of Virginia, apprehensive that this disjointed method of proceeding may fail in its effect, or be much retarded, passed a resolution on the 21st of January, 1786, appointing commissioners to meet others from the other States, whom they invite into the same measure, to digest the form of an act, for investing Congress with such powers over their commerce, as shall be thought expedient, which act is to be reported to their several Assemblies, for their adoption. This was the state of the several propositions relative to the impost, and regulation of commerce, at the date of our latest advices from America.

Page 125. The General Assembly of Virginia, at their session in 1785, passed an act, declaring that the district, called Kentucky, shall be a separate and independent State, on these conditions. 1. That the people of that district shall consent to it. 2. That Congress shall consent to it, and shall receive them into the federal Union. 3. That they shall take on themselves a proportionable part of the public debt of Virginia. 4. That they shall confirm all titles to lands within their district, made by the State of Virginia, before their separation.

Page 139. It was in 1783, and not in 1781, that Congress quitted Philadelphia.

Page 140. "Le Congres qui se trouvoit à la portée des rebelles fut effrayé." I was not present on this occasion, but I have had relations of the transaction from several who were. The conduct of Congress was marked with indignation and firmness. They received no propositions from the mutineers. They came to the resolutions, which may be seen in the journals of June the 21st, 1783, then adjourned regularly, and went through the body of the mutineers to their respective lodgings. The measures taken by Dickinson, the President of Pennsylvania, for punishing this insult, not being satisfactory to Congress, they assembled, nine days after, at Princeton, in Jersey. The people of Pennsylvania sent petitions declaring their indignation at what had passed, their devotion to the federal head, and their dispositions to protect it, and praying them to return; the legislature, as soon as assembled, did the same thing; the Executive, whose irresolution had been so exceptionable, made apologies. But Congress were now removed; and, to the opinion that this example was proper, other causes were now added, sufficient to _prevent_ their return to Philadelphia.

Page 155. l. 2. Omit "La detta actuelle," &c.

And also, "Les details," &c., &c., to the end of the paragraph, "celles des Etats Unis;" page 156. The reason is, that these passages seem to suppose, that the several sums emitted by Congress, at different times, amounting nominally to two hundred millions of dollars, had been actually worth that at the time of emission, and, of course, that the soldiers and others had received that sum from Congress. But nothing is further from the truth. The soldier, victualler, or other persons who received forty dollars for a service, at the close of the year 1779, received, in fact, no more than he who received one dollar for the same service, in the year 1775, or 1776; because, in those years, the paper money was at par with silver; whereas, by the close of 1779, forty paper dollars were worth but one of silver, and would buy no more of the necessaries of life. To know what the monies emitted by Congress were worth to the people, at the time they received them, we will state the date and amount of every several emission, the depreciation of paper money at the time, and the real worth of the emission in silver or gold.

+------------------+--------------+-------------+------------------+
| | | | Worth of the sum |
| Emission. | Sum Emitted.|Depreciation.|emitted, in silver|
| | | | dollars. |
+------------------+--------------+-------------+------------------+
|1775. June 23 | 2,000,000| .... | 2,000,000 |
| " November 29 | 3,000,000| .... | 3,000,000 |
|1776. Feb. 17 | 4,000,000| .... | 4,000,000 |
| " August 13 | 5,000,000| .... | 5,000,000 |
|1777. May 20 | 5,000,000| 2⅔ | 1,877,273 |
| " August 15 | 1,000,000| 3 | 333,333⅓ |
| " Nov. 7 | 1,000,000| 4 | 250,000 |
| " Dec. 3 | 1,000,000| 4 | 250,000 |
|1778. January 8 | 1,000,000| 4 | 250,000 |
| " January 22 | 2,000,000| 4 | 500,000 |
| " February 16 | 2,000,000| 5 | 400,000 |
| " March 5 | 2,000,000| 5 | 400,000 |
| " April 4 | 1,000,000| 6 | 166,666⅔ |
| " April 10 | 5,000,000| 6 | 833,333⅓ |
| " April 18 | 500,000| 6 | 83,333⅓ |
| " May 22 | 5,000,000| 5 | 1,000,000 |
| " June 20 | 5,000,000| 4 | 1,250,000 |
| " July 30 | 5,000,000| 4⅓ | 1,111,111 |
| " September 5 | 5,000,000| 5 | 1,000,000 |
| " September 26| 10,000,100| 5 | 2,000,020 |
| " November 4 | 10,000,100| 6 | 1,666,683⅓ |
| " December 14 | 10,000,100| 6 | 1,666,683⅓ |
|1779. January 14 |[15]24,447,620| 8 | 3,055,952½ |
| " February 3 | 5,000,160| 10 | 500,016 |
| " February 12 | 5,000,160| 10 | 500,016 |
| " April 2 | 5,000,160| 17 | 294,127 |
| " May 5 | 10,000,100| 21 | 416,670⅚ |
| " June 4 | 10,000,100| 20 | 500,005 |
| " July 17 | 15,000,280| 20 | 750,014 |
| " September 17| 15,000,260| 24 | 625,610⅚ |
| " October 14 | 5,000,180| 30 | 166,672⅔ |
| " November 17 | 10,050,340| 38½ | 261,053 |
| " November 29 | 10,000,140| 38½ | 259,743 |
| +--------------+-------------+------------------+
| | 200,000,000| | 36,367,719⅚ |
+------------------+--------------+-------------+------------------+