Opinion on McGillivray's Monopoly of Commerce with Creek Indians
July 29. 1790.
Colo. Mc.Gillivray, with a company of British merchants, having hitherto enjoyed a monopoly of the commerce of the Creek nation, with a right of importing their goods, duty-free, and considering these privileges as the principal sources of his power over that nation, is unwilling to enter into treaty with us, unless they can be continued to him. And the question is how this may be done consistently with our laws, and so as to avoid just complaints from those of our citizens who would wish to participate of the trade?
Our citizens, at this time, are not permitted to trade in that nation. The nation has a right to give us their peace, and to withhold their commerce, to place it under what monopolies or regulations they please. If they insist that only Colo. Mc.Gillivray and his company shall be permitted to trade among them, we have no right to say the contrary. We shall even gain some advantage in substituting citizens of the U.S. instead of British subjects, as associates of Colo. McGillivray, and excluding both British and Spaniards from tha[t] country.
Suppose then it be expressly stipulated by treaty, that no person be permitted to trade in the Creek country, without a licence from the President, that but a fixed number shall be permitted to trade there at all,1 and that the2 goods, imported for and sent to the Creek nation, shall be duty free. It may further be either expressed that the persons licensed shall be approved by the leader or leaders of the nation, or without this, it may be understood between the President and Mc.Gillivray that the stipulated number of licenses shall be sent to him blank, to fill up. A treaty made by the President with the concurrence of two thirds of the Senate, is a law of the land, and a law of superior order, because it not only repeals past laws, but cannot itself be repealed by future ones.3 The treaty then will legally controul the duty-act, and the act for licensing traders, in this particular instance.—When a citizen applies for a license who is not of Mc.Gillivray's partnership, he will be told that but a given number could be licensed by the treaty, and that the number is full.—It seems that in this way no law will be violated, and no just cause of complaint will be given: on the contrary the treaty will have bettered our situation, tho' not in the full degree which might have been wished.
- In MS at this point TJ first wrote and then deleted: “that they shall be in partnership with M'Gillivray.”
- TJ first wrote “their,” then altered the word to read as above.
- In PrC TJ inserted a cross at this point, keyed to a passage written at the bottom of the page, probably much later: “unless with the consent or default of the other contracting party. It may well be doubted too, and perhaps denied that the treaty power can controul a law. The question here proposed was then of the 1st. impression. Subsequent investigations have proved that the contrary position is the more general truth.”