that act of the will which constitutes or makes the agent, and the commission is the public evidence of it. But there are still other acts previous to these not specially enumerated in the constitution, to wit: 1st. The destination of a mission to the particular country where the public service calls for it, and second the character or grade to be employed in it. The natural order of all these is first, destination; second, grade; third, nomination; fourth, appointment; fifth, commission. If appointment does not comprehend the neighboring acts of nomination or commission, (and the constitution says it shall not, by giving them exclusively to the President,) still less can it pretend to comprehend those previous and more remote, of destination and grade.

The constitution, analysing the three last, shows they do not comprehend the two first. The fourth is the only one it submits to the Senate, shaping it into a right to say that "A or B is unfit to be appointed." Now, this cannot comprehend a right to say that "A or B is indeed fit to be appointed," but the grade fixed on is not the fit one to employ, or, "our connections with the country of his destination are not such as to call for any mission."

The Senate is not supposed by the constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them, nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.

It may be objected that the Senate may by continual negatives on the person, do what amounts to a negative on the grade, and so, indirectly, defeat this right of the President. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet

nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a side wind. It could never mean to give them the use of one power through the abuse of another.

V.-Opinion upon the validity of a grant made by the State of Georgia to certain companies of individuals, of a tract of country whereof the Indian right had never been extinguished, with power to such individuals to extinguish the Indian right.

May 3d, 1790.

The State of Georgia, having granted to certain individuals a tract of country, within their chartered limits, whereof the Indian right has never yet been acquired; with a proviso in the grants, which implies that those individuals may take measures for extinguishing the Indian rights under the authority of that Government, it becomes a question how far this grant is good?

A society, taking possession of a vacant country, and declaring they mean to occupy it, does thereby appropriate to themselves as prime occupants what was before common. A practice introduced since the discovery of America, authorizes them to go further, and to fix the limits which they assume to themselves; and it seems, for the common good, to admit this right to a moderate and reasonable extent.

If the country, instead of being altogether vacant, is thinly occupied by another nation, the right of the native forms an exception to that of the new comers; that is to say, these will only have a right against all other nations except the natives. Consequently, they have the exclusive privilege of acquiring the native right by purchase or other just means. This is called the right of preëmption, and is become a principle of the law of na

tions, fundamental with respect to America. There are but two means of acquiring the native title. First, war; for even war may, sometimes, give a just title. Second, contracts or treaty. The States of America before their present union possessed completely, each within its own limits, the exclusive right to use these two means of acquiring the native title, and, by their act of union, they have as completely ceded both to the general government. Art. 2d, Section 1st. "The President shall have power, by and with the advice of the Senate, to make treaties, provided two thirds of the Senators present concur." Art. 1st, Section 8th, "The Congress shall have power to declare war, to raise and support armies." Section 10th, "No State shall enter into any treaty, alliance or confederation. No State shall, without the consent of Congress, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay."

These paragraphs of the constitution, declaring that the general government shall have, and that the particular ones shall not have, the right of war and treaty, are so explicit that no commentary can explain them further, nor can any explain them away. Consequently, Georgia, possessing the exclusive right to acquire the native title, but having relinquished the means of doing it to the general government, can only have put her grantee into her own condition. She could convey to them the exclusive right to acquire; but she could not convey what she had not herself, that is, the means of acquiring.

For these they must come to the general government, in whose hands they have been wisely deposited for the purposes both of peace and justice.

What is to be done? The right of the general government is, in my opinion, to be maintained. The case is sound, and the means of doing it as practicable as can ever occur. But respect and friendship should, I think, mark the conduct of the general towards the particular government, and explanations should be

asked and time and color given them to tread back their sters before coercion is held up to their view. I am told there is already a strong party in Georgia opposed to the act of their government.

I should think it better then that the first measures, while firm, be yet so temperate as to secure their alliance and aid to the general government.

Might not the eclat of a proclamation revolt their pride and passion, and throw them hastily into the opposite scale? It will be proper indeed to require from the government of Georgia, in the first moment, that while the general government shall be expecting and considering her explanations, things shall remain. in statu quo, and not a move be made towards carrying what they have begun into execution.

Perhaps it might not be superfluous to send some person to the Indians interested, to explain to them the views of government, and to watch with their aid the territory in question.

VI.-Opinion in favor of the resolutions of May 21st, 1790, directing that, in all cases where payment had not been already made, the debts due to the soldiers of Virginia and North Carolina, should be paid to the original claimants or their attorneys, and not to their assignees.

June 3d, 1790.

The accounts of the soldiers of Virginia and North Carolina, having been examined by the proper officer of government, the balances due to each individual ascertained, and a list of these balances made out, this list became known to certain persons before the soldiers themselves had information of it, and those persons, by unfair means, as is said, and for very inadequate considerations, obtained assignments from many of the soldiers of whatever sum should be due to them from the public, without specifying the amount.

The legislature, to defeat this fraud, passed resolutions on the

21st of May, 1796, directing that where payment had not been made to the original claimant in person or his representatives, it shall be made to him or them personally, or to their attorney, producing a power for that purpose, attested by two justices of the county where he resides, and specifying the certain sum he is to receive.

It has been objected to these resolutions that they annul transfers of property which were good by the laws under which they were made; that they take from the assignees their lawful property; are contrary to the principles of the constitution, which condemn retrospective laws; and are, therefore, not worthy of the President's approbation.

I agree in an almost unlimited condemnation of retrospective laws. The few instances of wrong which they redress are so overweighed by the insecurity they draw over all property and even over life itself, and by the atrocious violations of both to which they lead that it is better to live under the evil than the remedy.

The only question I shall make is, whether these resolutions annul acts which were valid when they were done?

This question respects the laws of Virginia and North Carolina only. On the latter I am not qualified to decide, and therefore beg leave to confine myself to the former.

By the common law of England (adopted in Virginia) the conveyance of a right to a debt or other thing whereof the party is not in possession, is not only void, but severely punishable under the names of Maintenance and Champerty. The Law-merchants, however, which is permitted to have course between merchants, allows the assignment of a bill of exchange for the convenience of commerce. This, therefore, forms one exception to the general rule, that a mere right or thing in action is not assignable. A second exception has been formed by an English statute (copied into the laws of Virginia) permitting promissory notes to be assigned. The laws of Virginia have gone yet further than the statute, and have allowed, as a third exception, that a bond should be assigned, which cannot be done