The Writings of Thomas Jefferson, Vol. 5 (of 9)

TO THE SECRETARY OF THE NAVY

Washington, July 16, 1808.

Dear Sir,—Complaints multiply upon us of evasions of the embargo laws, by fraud and force. These come from Newport, Portland, Machias, Nantucket, Martha's Vineyard, &c., &c. As I do consider the severe enforcement of the embargo to be of an importance, not to be measured by money, for our future government as well as present objects, I think it will be advisable that during this summer all the gun-boats, actually manned and in commission, should be distributed through as many ports and bays as may be necessary to assist the embargo. On this subject I will pray you to confer with Mr. Gallatin, who will call on you on his passage through Baltimore, and to communicate with him hereafter, directly, without the delay of consulting me, and generally to aid this object with such means of your department as are consistent with its situation.

I think I shall be able to leave this place by Wednesday. I will mention for your information, that the post for Milton leaves this place on Tuesdays and Fridays, and arrives at it on Sundays and, I believe, Thursdays.

I salute you with affection and respect.

TO MR. SMITH, OF THE WAR OFFICE

Washington, July 16, 1808.

Sir,—The correspondence which you sent me the other day, between the British commanders and our officers in Moose Island, is now in the hands of Mr. Madison, and will be delivered to you on application. On consulting him and Mr. Gallatin, I find the facts to be that Moose Island has ever been in our possession, as well before as ever since the treaty of peace with Great Britain; that in the convention formed between Mr. King and the British government, about four years ago, wherein our limits in that quarter were mutually recognized, Moose Island was expressly acknowledged to belong to us; and, through an account of an article respecting Louisiana, the convention has not yet been ratified, yet both parties have acted on the article of these limits as if it had been ratified,—each party considering the parts then assigned to them as no longer questioned by the other.

I think you had better communicate the papers, with a copy of that article of the convention, to Gen. Dearborne, with these observations, from whom the answer to our officer will go with more propriety. If you will speak on this subject with Mr. Madison, he will, perhaps, be able to state to you what passed between us on this subject more fully than I have done. Accept my salutations.

TO HIS EXCELLENCY GOVERNOR SULLIVAN

Washington, July 16, 1808.

Sir,—In my letter of May 6th I asked the favor of your Excellency, as I did of the Governors of other States not furnishing in their interior country flour sufficient for the consumption of the State, to take the trouble of giving certificates, in favor of any merchants meriting confidence, for the quantities necessary for consumption beyond the interior supplies. Having desired from the Treasury Department a statement of the quantities called for under these certificates, I find that those of your Excellency, received at the Treasury, amount to 51,000 barrels of flour, 108,400 bushels of Indian corn, 560 tierces of rice, 2,000 bushels of rye, and, in addition thereto, that there had been given certificates for either 12,450 barrels of flour, or 40,000 bushels of corn. As these supplies, although called for within the space of two months, will undoubtedly furnish the consumption of your State for a much longer time, I have thought it advisable to ask the favor of your Excellency, after the receipt of this letter, to discontinue issuing any other certificates, that we may not unnecessarily administer facilities to the evasion of the embargo laws; for I repeat what I observed in my former letter, that these evasions are effected chiefly by vessels clearing coastwise. But while I am desirous of preventing the frauds which go to defeat the salutary objects of these laws, I am equally so that the fair consumption of our citizens may in nowise be abridged. It would, therefore, be deemed a great favor if your Excellency could have me furnished with an estimate, on the best data possessed, of the quantities of flour, corn, and rice, which, in addition to your internal supplies, may be necessary for the consumption, in any given time, of those parts of your State which habitually depend on importation for these articles. I ask this the more freely, because I presume you must have had such an estimate formed for the government, of your discretion in issuing the preceding certificates, and because it may be so necessary for our future government. I salute you with assurance of great respect and esteem.

TO HIS EXCELLENCY GOVERNOR CLAIBORNE

Washington, July 17, 1808.

Sir,—After writing my letter of the 9th, I received one from Mr. Pitot in the name of the New Orleans Canal Company, which ought to have come with the printed report, stating more fully their views, and more explicitly the way in which we can aid them. They ask specifically that we should lend them $50,000, or take the remaining fourth of their shares now on hand. This last measure is too much out of our policy of not embarking the public in enterprises better managed by individuals, and which might occupy as much of our time as those political duties for which the public functionaries are particularly instituted. Some money could be lent them, but only on an assurance that it would be employed so as to secure the public objects. The first interests of the company will be to bring a practicable navigation from the Lake Pontchartrain through the Bayou St. Jean and Canal de Carondelet to the city, because that entitles them to a toll on the profitable part of the enterprise. But this would answer no object of the government unless it was carried through to the Mississippi, so that our armed vessels drawing five feet water might pass through. Instead therefore of the ground I suggested in my last letter, I would propose to lend them a sum of money on the condition of their applying it entirely to that part of the canal which, beginning at the Mississippi, goes round the city to a junction with the canal of Carondelet; and we may moreover at our own expense erect the locks. The Secretary at War not being here, I cannot propose these or any other terms precisely, but you may more openly than I proposed in my last letter, give these as the general shape of the aid which we contemplate, collect the ideas of individual members, and communicate them to me, so that when I shall have an opportunity of consulting the Secretary at War we may put our proposition in the form most acceptable to them. On this subject I shall wish to hear from you soon.

Mr. Livingston was here lately, and finding that we considered the Batture as now resting with Congress, and that it was our duty to keep it clear of all adversary possession till their decision is obtained, wrote a letter to the Secretary of State, which, if we understand it, amounts to a declaration that he will on his return bring the authority of the court into array against that of the executive, and endeavor to obtain a forcible possession. But I presume that the court knows too well that the title of the United States to land is subject to the jurisdiction of no court, it having never been deemed safe to submit the major interests of the nation to an ordinary tribunal, or to any one but such as the Legislature establishes for the special occasion; and the Marshal will find his duty too plainly marked out in the act of March 3, 1807, to be at a loss to determine what authority he is to obey. It will be well however that you should have due attention paid to this subject, and particularly to apprize Mr. Grymes to be prepared to take care that the public rights receive no detriment.

I salute you with great respect and esteem.

TO GOVERNOR LEWIS

Washington, July 17, 1808.

Dear Sir,—Since I parted with you in Albemarle in September last, I have never had a line from you, nor I believe has the Secretary at War with whom you have much connection through the Indian department. The misfortune which attended the effort to send the Mandan chief home, became known to us before you had reached St. Louis. We took no step on the occasion, counting on receiving your advice so soon as you should be in place, and knowing that your knowledge of the whole subject and presence on the spot would enable you to judge better than we could what ought to be done. The constant persuasion that something from you must be on its way to us, has as constantly prevented our writing to you on the subject. The present letter, however, is written to put an end at length to this mutual silence, and to ask from you a communication of what you think best to be done to get the chief and his family back. We consider the good faith, and the reputation of the nation, as pledged to accomplish this. We would wish indeed not to be obliged to undertake any considerable military expedition in the present uncertain state of our foreign concerns, and especially not till the new body of troops shall be raised. But if it can be effected in any other way and at any reasonable expense, we are disposed to meet it.

A powerful company is at length forming for taking up the Indian commerce on a large scale. They will employ a capital the first year of 300,000, and raise it afterwards to a million. The English Mackinac company will probably withdraw from the competition. It will be under the direction of a most excellent man, a Mr. Astor, merchant of New York, long engaged in the business, and perfectly master of it. He has some hope of seeing you at St. Louis, in which case I recommend him to your particular attention. Nothing but the exclusive possession of the Indian commerce can secure us their peace.

Our foreign affairs do not seem to clear up at all. Should they continue as at present, the moment will come when it will be a question for the Legislature whether war will not be preferable to a longer continuance of the embargo.

The Presidential question is clearing up daily, and the opposition subsiding. It is very possible that the suffrage of the nation may be undivided. But with this question it is my duty not to intermeddle. I have not lately heard of your friends in Albemarle. They were well when I left that in June, and not hearing otherwise affords presumptions they are well. But I presume you hear that from themselves. We have no tidings yet of the forwardness of your printer. I hope the first part will not be delayed much longer. Wishing you every blessing of life and health, I salute you with constant affection and respect.

TO THE SECRETARY AT WAR

Washington, July 18, 1808.

Dear General,—I had written to Governor Claiborne according to what had been agreed between you and myself, after which I received a letter from Pitot on behalf of the Canal company of New Orleans, which should have accompanied the printed report I communicated to you. The letter agrees with the report, and asks specifically that we should either lend them fifty thousand dollars, or buy the remaining fourth part of their shares now on hand. On consultation with Mr. Madison, Gallatin, and Rodney, we concluded it best to say we would lend them a sum of money if they would agree to lay out the whole of it in making the canal from the Mississippi round the town to its junction with the canal of Carondelet; and I wrote to Claiborne to sound the members of the company, and to find out if there were any modifications which would render the proposition more acceptable, to communicate them to me, and that when I should have an opportunity of consulting you, we would make the proposition in form.

I send you a letter of General Wilkinson's, the papers it covered, and my answer, which will sufficiently explain themselves. That in cases of military operations some occasions for secret service money must arise, is certain. But I think that they should be more fully explained to the government than the General has done, seems also proper.

Mr. Smith will send you some British complaints on our fortifying Moose Islands, and the kind of answer recommended on consultation with the heads of departments.

We have such complaints of the breach of embargo by fraud and force on our northern water line, that I must pray your co-operation with the Secretary of the Treasury by rendezvousing as many new recruits as you can in that quarter. The Osage brought us nothing in the least interesting. I salute you with affection and respect.

TO HIS EXCELLENCY GOVERNOR PINCKNEY

Washington, July 18, 1808.

Dear Sir,—Your favor of May 28 has been duly received, and in it the proceeding of the Court on the mandamus to the collector of Charleston. I saw them with great concern because of the quarter from whence they came, and where they could not be ascribed to any political waywardness.

The Legislature having found, after repeated trials, that no general rules could be formed which fraud and avarice would not elude, concluded to leave, in those who were to execute the power, a discretionary power paramount to all their general rules. This discretion was of necessity lodged with the collector in the first instance, but referred, finally, to the President, lest there should be as many measures of law or discretion for our citizens as there were collectors of districts. In order that the first decisions by the collectors might also be as uniform as possible, and that the inconveniences of temporary detention might be imposed by general and equal rules throughout the States, we thought it advisable to draw some outlines for the government of the discretion of the collectors, and to bring them all to one tally.

With this view they were advised to consider all shipments of flour primâ facie, as suspicious. Because, if pretended to be for a State which made enough within itself, it could not, in these times, but be suspicious, and, if for a State which needed importations, we had provided, by the aid of the Governors of those States, a criterion for that case.

But your collector seems to have decided for himself that, instead of a general rule applicable equally to all, the personal character of the shipper was a better criterion, and his own individual opinion too, of that character.

You will see at once to what this would have led in the hands of an hundred collectors, of all sorts of characters, connections, and principles, and what grounds would have been given for the malevolent charges of favoritism with which the federal papers have reproached even the trust we reposed in the first and highest magistrates of particular States. It has been usual in another department, after the decision of any point by the superior tribunal is known, for the interior one to conform to that decision. The declaration of Mr. Theus, that he did not consider the case as suspicious, founded on his individual opinion of the shipper, broke down that barrier which we had endeavored to erect against favoritism, and furnished the grounds for the subsequent proceedings. The attorney for the United States seems to have considered the acquiescence of the collector as dispensing with any particular attentions to the case, and the judge to have taken it as a case agreed between plaintiff and defendant, and brought to him only formally to be placed on his records. But this question has too many important bearings on the constitutional organization of our government, to let it go off so carelessly. I send you the Attorney General's opinion on it, formed on great consideration and consultation. It is communicated to the collectors and marshals for their future government. I hope, however, the business will stop here, and that no similar case will occur. A like attempt has been made in another State, which I believe failed in the outset.

I have seen, with great satisfaction, the circumspection and moderation with which you have been so good as to act under my letter of May 6th. I owe the same approbation to some other of the Governors, but not to every one. Our good citizens having submitted to such sacrifices under the present experiment, I am determined to exert every power the law has vested in me for its rigorous fulfilment; that we may know the full value and effect of this measure on any future occasion on which a resort to it might be contemplated.

The Osage did not bring us a tittle of anything interesting. The absence of the Emperor from Paris makes that a scene of no business; and I do not think we are to consider the course of the British government as finally decided, until the nation, as well as the ministry, are possessed of the communications to Congress of March 22, and our act hanging the duration of the embargo laws on that of the orders of council. The newspapers say Mr. Rose is coming over again. Mr. Pinckney did not know this at the departure of the Osage. Yet it may be so. It is well calculated to throw dust in the eyes of the nation, and to silence all attempts of the opposition to force a change of their measures. In this view it is a masterly stroke. The truth is that their debt is become such as the nation can no longer pay its interest. Their omnipotence at sea has bloated their imaginations so as to persuade them they can oblige all nations to carry all their produce to their island as an entrepot, to pay them a tax on it, and receive their license to carry it to its ultimate market. It is indeed a desperate throw, in the language of Canning, and who knows, says he, what the dice may turn up?

I answer, we know.

Since writing so far, I received your favor of June 30th, covering resolutions of your Legislature. They are truly worthy of them, and never could declarations be better timed for dissipating the delusions in which the British government are nourished by the federal papers, and prevented from that return to justice which alone can continue our peace.

Wishing you every blessing of health and life, I salute you with assurances of great esteem and respect. Salutations.

TO THE SECRETARY OF THE TREASURY

Monticello, July 25,1808.

Dear Sir,—I enclose you the petition of Somes, to do in it whatever is agreeable to general rule.

Punqua Winchung, the Chinese Mandarin, has, I believe, his head quarters at New York, and therefore his case is probably known to you. He came to Washington just as I had left it, and therefore wrote to me, praying permission to depart for his own country with his property, in a vessel to be engaged by himself. I enclose you Mr. Madison's letter, which contains everything I know on the subject. I consider it as a case of national comity, and coming within the views of the first section of the first embargo act. The departure of this individual with good dispositions, may be the means of making our nation known advantageously at the source of power in China, to which it is otherwise difficult to convey information. It may be of sensible advantage to our merchants in that country. I cannot therefore but consider that a chance of obtaining a permanent national good should overweigh the effect of a single case taken out of the great field of the embargo. The case, too, is so singular, that it can lead to no embarrassment as a precedent.

I think, therefore, he should be permitted to engage a vessel to carry himself and his property, under such cautions and recommendations to him as you shall think best.

I leave it therefore to yourself to direct all the necessary details without further application to me, and for this purpose send you a blank passport for the vessel, &c., and Mr. Graham will obtain and forward you passports from the foreign ministers here. I salute you with affection and respect.

TO MR. BIBB

Monticello, July 28, 1808.

Sir,—I received duly your favor of July 1st, covering an offer of Mr. McDonald of an iron mine to the public, and I thank you for taking the trouble of making the communication, as it might have its utility. But having always observed that public works are much less advantageously managed than the same are by private hands, I have thought it better for the public to go to market for whatever it wants which is to be found there; for there competition brings it down to the minimum of value. I have no doubt we can buy brass cannon at market cheaper than we could make iron ones. I think it material too, not to abstract the high executive officers from those functions which nobody else is charged to carry on, and to employ them in superintending works which are going on abundantly in private hands. Our predecessors went on different principles; they bought iron mines, and sought for copper ones. We own a mine at Harper's Ferry of the finest iron ever put into a cannon, which we are afraid to attempt to work. We have rented it heretofore, but it is now without a tenant.

We send a vessel to France and England every six weeks, for the purposes of public as well as mercantile correspondence. These the public papers are in the habit of magnifying into special missionaries for great and special purposes. It is true that they carry our public despatches, whether the subject of the day happens to be great or small. The Osage was one of these; but she was charged with nothing more than repetitions of instructions to our ministers not to cease in their endeavors to have the obnoxious orders and decrees repealed. She brought not a tittle of the least interest. The St. Michael was another of these vessels, and may now be expected in a few days. The schooner Hope was a third, and sailed a few days ago. She may be expected a fortnight before Congress meets, and our ministers are apprized that whatsoever the belligerent powers mean to do, must be done before that time, as on the state of things then existing and known to us, Congress will have to act. I return the letter of Mr. McDonald, as it may be useful for other purposes, and salute you with esteem and respect.

TO THE SECRETARY OF THE TREASURY

Monticello, July 29, 1808.

Dear Sir,—I enclose you a letter of information of what is passing on the Canada line. To prevent it is, I suppose, beyond our means, but we must try to harass the unprincipled agents, and punish as many as we can.

I transmit, also, the petition of Tyson and James, millers of Baltimore, for permission to send a load of flour to New Orleans, to direct in it what is regular, for I do not see any circumstance in the case sufficiently peculiar to take it out of the rule. If their views are honest, as I suppose them to be, it would be a great relief to them to be permitted, by giving bond for an increased valuation, to send their flour to its destination, and equal relief to us from these tormenting applications. Yet, as the other gentlemen seemed not satisfied that it would be legal, I would not have it done on my own opinion alone, however firmly I am persuaded of its legality. Could you not in the way of conversation with some of the sound lawyers of New York, find what would be then primâ facie opinion, and if encouraged by that, we may take the opinion of the Attorney General, and others. The questions to be solved are,—first: To what place should the valuation refer? and second: Would too high a valuation render the bond null in law? On the first, I observe that the law says that bond shall be given in double the value, &c., without saying whether its value here, or at the place of sale, is meant; that, generally speaking, its value here would be understood; but that whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after. On the second point we would ask, who is to value the cargo on which the bond is to be taken? Certainly the collector, either by himself or his agents. When the bond is put in suit it must be recovered. Neither judge nor jury can go into the question of the value of the cargo. If anybody could, it would be the chancellor; but his maxim is never to lend his power in support of fraud or wrong. The common law could only give a remedy on an action for damages, as, for instance, if a collector, by requiring too large security, prevents a party from clearing out, damages might be recovered. But in the case in question, the consent of the party would take away the error, and besides, as the voyage takes place, no damages for preventing it can be recovered. These are general considerations to be brought into view in such a conversation, which, indeed would occur to every lawyer who turned his mind to the subject at all. It would be a most important construction for the relief of the honest merchant, to whom the amount of bond is important, and to us, also, in the execution of the law; and I think its legality far more defensible than that of limiting the provisions to one-eighth of the cargo. My situation in the country gives me no opportunity to consult lawyers of the first order. Should such occur, however, I will avail myself of them.