Front Page Titles (by Subject) hamilton to jefferson - The Works of Alexander Hamilton, (Federal Edition), vol. 4
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hamilton to jefferson - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 4 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 4.
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hamilton to jefferson
The general tenor of the report1 appears solid and proper.
The following observations, however, on a hasty perusal occur.
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?2
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.3
Page 11. Are “naval victories” the essential means of conquest of a water, as seems to be implied? Is not the conquest of a water an incident to that of territory?4 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 United States, with whom she not only had no war, but was an associate.
Page 12. May it not be inferred from what is said here, that though the United 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 with the right which Great Britain reserved to herself in the treaty with us? If the influence alluded to is intended to be excluded, will it not be advisable to vary the turn of expression so as to render the intention more unequivocal?1
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 endeavored to be avoided, than the avoiding of it to be made a sine qua non?2
Page 25. Is it true that the United States 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 United States to accommodate to exigencies which may arise, ought ever to be advanced with great caution.1
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 United States, and one which ought by all means to be excluded.2
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 favorable 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).1
Will it not be necessary to add an instruction that the usual stipulation respecting the ratification of the treaty by the United States be varied, so as to be adapted to the participation of the Senate?2
Last page. The words “nor in assenting to their rights” have a pencil line drawn through them. ’T is certainly best to obliterate them.
The less commitment the better.3
Jefferson’s report on the negotiations with Spain as to free navigation of the Mississippi, sent in March 18, 1792.—See Jefferson’s Works, ⅶ., 570.
These notes are in the hand of Jefferson. “The report is amended in conformity with this observation.”
“The capture of the army struck out.”
“No conquest of the territory was made, to wit, of the island of New 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 as incident to the territory. This circumstance, however, is inserted in the report to make the reasoning the clearer.”
The word choose substituted for wish; however, England could hold that right of command in the water only as incident to Florida, which she then held. When she conveyed Florida to Spain, the incident passed by the same consequence, and she can never have a claim against us on a stipulation, the benefit of which she has conveyed to another.
Report altered in conformity to this.
The power to alienate the unpeopled territory of any State is not among the enumerated powers given by Constitution to the General Government, and if we may go out of that instrument, and accommodate to exigencies which may arise, by alienating the unpeopled territory of a State, we may accommodate ourselves a little more by alienating that which is peopled, and 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, and 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 United States 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 irresistible an argument to deny ourselves the use of it on the present occasion.
It is certainly impossible for any nation to have stipulations of this kind and extent with two others at the same time. However, the language of the report is made more correct and conformable to the words of the French treaty.
If the Secretary of the Treasury will be so good as to particularize the advantages to be asked and the equivalents to be offered, it will be proper to consider of them.
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 sixteen months for the exchange of ratifications.
This has been decided before.