Hamilton’s Notes on Report of Instructions for the Commissioners to Spain, with Jefferson’s Comments, 1-5 March 1792

Hamilton's Notes on Report of Instructions for the Commissioners to Spain, with Jefferson's Comments

[Jefferson’s comments]1 [Hamilton’s notes]
  The General Tenor of the Report appears solid and proper.
  The following observations however on a hasty perusal occur.
The Report is amended in conformity this observation. Page 2. Is it to put our Revolution upon the true or the best footing to say that the circumstances which obliged us to discontinue our foreign Magistrate brought upon us the War? Did not the war previously exist and bring on the discontinuance? Was it not rather the cause than the effect?
The capture of the army struck out. Is it accurate to say that France aided us in capturing the whole army of the enemy? Does this not imply that there was no other enemy army in the country; though there were in fact two others one in New York, another in South Carolina? This last is a mere criticism as to the accuracy of expression. The sense is clear enough.
No conquest of the territory was made, to wit of the island of N. Orleans on the one side, or Louisiana on the other, as both had belonged to Spain before the war. Therefore no change in the right to the water is incident to the territory. This circumstance however is inserted in the Report to make the reasoning the clearer. Page 11. Are “naval victories” the essen[tial] means of conquest of a water as seems to be impli[ed?] Is not the conquest of a water an incident to th[at] of Territory? If this idea is not sound, that combined with it is—namely that in no event could Spain be considered as having conquered the River against the U States—with whom she not only had no war but was an associa[te.]
The word chuse substituted for wish however England could hold that right of common in the water only as incident to Florida, which she then held. When she conveyed Florida to Spain the incident passed by the same conveyance, & she can never have a claim against us on a stipulation the benefit of which she has conveyed to another. Page 22. May it not be inferred from what is said here that though the U States would not wish to insert an express stipulation against other Nations; yet they may be prevailed upon to do it? Would such a stipulation be consistent w[ith] the right which G Britain reserved to herself in the treaty with us? If the inference alluded to is intended to be excluded, will it not be adviseable to vary the turn of expression so as render the intention more unequivocal?
Report altered in conformity to this. Page 23. Are there conclusive reasons to make it a sine qua non that no phrase shall be admitted which shall express or imply a grant? Could the negotiation with propriety be broken off on such a point?
  Is it not rather one to be endeavoured to be avoided than the avoiding of [it] to be made a sine qua non?
[The power to alienate the unpeopled te]rritory of any [state, is not among the enumerated po]wers given by the Constitution to the General government: & if we may go out of that instrument, & accomodate to exigencies which may arise, by alienating the unpeopled territory of a state, we may accomodate ourselves a little more by alienating that which is peopled, & still a little more by selling the people themselves. A shade or two more in the degree of exigency is all that will be requisite, & of that degree we shall ourselves be the judges. However may it not be hoped that these questions are forever laid to rest by the 12th Amendment, now made a part of the Constitution, declaring expressly that the “powers not delegated to the U.S. by the Constitution are reserved to the states respectively”? And if the general government has no power to alienate the territory of a state, it is too irresistable an argument to deny ourselves the use of it on the present occasion.2 Page 25. Is it true, that the UStates have no right to alienate an Inch of the Territory in Question; except in the case of necessity, intimated in another place? Or will it be useful to avow the denial of such a right? It is apprehended that the Doctrine which restricts the alienation of Territory to cases of extreme necessity is applicable rather to peopled territory, than to waste and uninhabited districts. Positions restraining the right of the U States to accomodate to exigencies which may arise ought ever to be advanced with great caution.
It is certainly impossible for any nation to have stipulations of this kind & extent, with two others at the same time. However the language of the Report is made more correct & conformable to the words of the French treaty. Page 28. Is it true that the stipulation with France respecting the Reception of prizes is exclusive and incommunicable? It is doubtless so as against France, but why is it so as against other Nations?
  It is however a stipulation very inconvenient and even dangerous to the U States and one which ought by all means to be excluded.
If the Secretary of the Treasury will be so good as to particularise the advantages to be asked & the equivalents to be offered, it will be proper to consider of them.3 Though a Treaty of Commerce like that contemplated in the Report ought not to be rejected, if desired by Spain and coupled with a satisfactory adjustment of the boundary and Navigation; yet ought not something more to be attempted if it were only to give satisfaction to other parts of the Union?
  Some positively favourable stipulations respecting our Grain flour and Fish even in the European Dominions of Spain would be of great consequence and would justify reciprocal advantages to some of her commodities (say Wines and brandies).
It seems sufficient to stipulate that the treaty shall be ratified, without saying by what body, or by what individuals it is to be. An instruction however is inserted to allow 16 months for the exchange of ratifications. Will it not be necessary to add an instruction that the usual stipulation respecting the ratification of the Treaty by the U States be varied so as to be adapted to the participation of the Senate?
This has been decided before. Last Page. The words “nor inattentive to their rights” have a pencil line drawn through them. Tis certainly best to obliterate them. The less commitment the better.

MS (DLC: Washington Papers); undated text of comments in Hamilton's hand with marginal notes added by TJ; at top of text, in TJ's hand, “(Copy in two columns)”; appended to this document is a one-page memorandum entirely in TJ's hand and dated 5 Mch. 1792 at foot of text (see textual note 3 below); on verso of memorandum is Washington's docketing: “State & Treasury on the propositions to be made to Spain on the subjt. of Fish, Grain & Flour 5th Mar 1792.” Tr (DLC: Hamilton Papers); in clerk's hand; at head of text: “Copy”; marginal notes keyed to text with various symbols. MS (DLC: TJ Papers, 72:12599–12600); fair copy in two parts entirely in TJ's hand, with some minor variations, including the inadvertent omission of a line; first part titled over left column: “Notes by A. Hamilton on T:J's Report of instructions for the Commissioners to treat at Madrid. Eight of these notes were conformed to. The two following were not.” and over column on right “Answer by Th:J.” (see textual notes below); both titles crossed out; a second part contains the eight points agreed upon. PrC (DLC: TJ Papers, 82: 14260–14261); notes in two parts only, before column headings were crossed out.

  1. See Report on Negotiations with Spain, 18 Mch. 1792, for textual notes identifying changes TJ made in the draft and Hamilton's references to that document.
  2. This was one of the two points on which TJ disagreed with Hamilton. See Memoranda of Consultations with the President, 11 Mch.-9 Apr. 1792.
  3. This point of disagreement led to an expanded memorandum and an additional section of the final 18 Mch. report. In making his copy of this document, TJ substituted here a more detailed memorandum which he dated at the foot of text “Mar. 5. 1792.” and which he submitted to the President, together with Hamilton's notes and his comments on them. The memorandum reads as follows: “Th: Jefferson will be glad if the Secretary of Treasury will state the specific propositions he would have made to Spain, on the subject of our fish, grain and flour, to wit what he would ask, and what propose as an equivalent. The following considerations will of course occur to him.”

    1. If we quit the ground of the most favored nation, as to certain articles for our convenience, Spain may insist on doing the same for other articles for her convenience, and I apprehend that our Commissioners might soon be out of their depth in the details of commerce.

    “2. If we grant favor to the wines &c of Spain, Portugal and France will demand the same, and may create the equivalent, the former by laying duties on our fish and grain, the latter by a prohibition of our whale oils; the removal of which will be proposed as the equivalent.” TJ also added most of this to the section on commerce in his Report on Negotiations with Spain, 18 Mch. 1792 (see textual notes at that document).