Notes on Cabinet Opinions, 26 February 1793

Notes on Cabinet Opinions

Feb. 26. 1793. Notes on the proceedings of yesterday. [see the formal opinions given to the President in writing and signed]

1st. Question. we were all of opinion that the treaty should proceed merely to gratify the public opinion, and not from an expectation of success. I expressed myself strongly that the event was so unpromising that I thought the preparations for a campaign should go on without the least relaxation, and that a day should be fixed with the Commrs. for the treaty beyond which they should not permit the treaty to be protracted, by which day orders should be given for our forces to enter into action. The President took up the thing instantly after I had said this, and declared he was so much in the opinion that the treaty would end in nothing that he then in the presence of us all gave orders to Genl. Knox not to slacken the preparations for the campaign in the least but to exert every nerve in preparing for it. Knox1 said something about the ultimate day for continuing the negociations; I acknoleged myself not a judge on what day the campaign should begin, but that whatever it was, that day should terminate the treaty. Knox said he thought a winter campaign was always the most efficacious against the Indians.—I was of opinion since Gr. Britain insisted on furnishing provisions, that we should offer to repay. Hamilton thought we should not.

2d. Question. I considered our right of preemption of the Indian lands, not as amounting to any dominion, or jurisdiction, or paramountship whatever, but merely in the nature of a remainder after the extinguishment of a present right, which gave us no present right whatever but of preventing other nations from taking possession and so defeating our expectancy: that the Indians had the full, undivided and independant sovereignty as long as they chose to keep it and that this might be for ever: that as fast as we extended our rights by purchase from them, so fast we extended the limits of our society, and as soon as a new portion became encircled within our line, it became a fixt limit of our society: that the Executive with either or both branches of the legislature could not alien any part of our territory: that by the Law of nations it was settled that2 the Unity and indivisibility of the society was so fundamental that it could not be dismembered by the Constituted authorities except 1. where all power was delegated to them (as in the case of despotic governments) or 2. where it was expressly delegated. That neither of these delegations had been made to our general government, and therefore that it had no right to dismember or alienate any portion of territory once ultimately consolidated with us: and that we could no more cede to the Indians than to the English or Spaniards, as it might according to acknoleged principles remain as irrevocably and eternally with the one as the other. But I thought that as we had a right to sell and settle lands once comprehended within our lines, so we might forbear to exercise that right, retaining the property, till circumstances should be more favorable to the settlement, and this I agreed to do in the present instance if necessary for peace.

Hamilton agreed the doctrine of the law of nations as laid down in Europe, but that it was founded on the universality of settlement there, consequently that no lopping off of territory could be made without a lopping off of citizens, which required their consent: but that the law of nations for us must be adapted to the circumstance of our unsettled country, which he conceived3 the Presidt. and Senate may cede: that the power of treaty was given to them by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.—E. R. was of opinion there was a difference between a cession to Indns. and to any others, because it only restored the ceded part to the condition in which it was before we bought it, and consequently that we might buy it again hereafter. Therefore he thought the Exec. and Senate could cede it.             Knox joined in the main opinion. The Presidt. discovered no opinion, but he made some efforts to get us to join in some terms which could unite us all, and he seemed to direct those efforts more towards me: but the thing could not be done.

3d. Qu. we agreed in idea as to the line to be drawn, towit so as to retain all lands appropriated, or granted or reserved.

4th. Qu. we all thought if the Senate should be consulted and consequently apprised of our line, it would become known to Hammond, and we should lose all chance of saving any thing more at the treaty than our Ultimatum.4

Qu. whether we should furnish the 3. millions of livres desired by France to procure provisions?

I was of opinion we ought to do it, the one part as an arrearage (about 318,000) the residue as an advance towards our payments to be made in Paris in Sep. and Nov. next.

E.R. was for furnishing the whole sum asked but under such blind terms, that if the present5 French government should be destroyed and the former one reestablished, it might not be imputed to us as a proof of our taking part with the present, but might be excused under a pretext that we thought we might owe it.              Knox of the same opinion.

Hamilton saw the combination of powers against France so strong, as to render the issue very doubtful. He therefore was against going beyond the 318,000.D. understood to be in arrear.

The Presidt. at this meeting mentioned the declaration of some person in a6 paper of Fenno that he would commence an attack on the character of Dr. Franklin; he said the theme was to him excessively disagreeable on other considerations, but most particularly so as the party seemed to do it as a means of defending him (the Presidt.) against the late attacks on him. That such a mode of defence would be peculiarly painful to him, and wished it could be stopped. Hamilton and E. R. undertook to speak to Fenno to suppress it, without mentioning it as the President’s wish. Both observed that they had heard this declaration mentioned in many companies and that it had excited universal horror and detestation.

The paper in Fenno must lie between two persons, viz Adams and Izard, because they are the only persons who could know such facts as are there promised to be unfolded. Adams is an enemy to both characters, and might chuse this ground as an effectual position to injure both. Izard hated Franklin with unparalleled bitterness but humbly adores the Presidt. because he is in loco regis. If the paper proceeds, we shall easily discover which of these two gentlemen is the champion. In the mean time the first paper leads our suspicions more towards Izard than Adams from the circumstance of stile, and because he is quite booby enough not to see the injury he would do to the President by such a mode of defence.

MS (DLC); entirely in TJ's hand; brackets in original.

  1. Here TJ canceled “expressed an opinion.”
  2. Here TJ canceled “this right.”
  3. Here TJ canceled “we had.”
  4. Remainder of text written on the other side of a sheet bearing “Anas” entry for 28 Feb. 1793.

  5. Word interlined.

  6. Here TJ canceled “letter of F.”