Thomas Jefferson Papers

III. Gallatin’s Remarks on the Draft, 21 November 1802

III. Gallatin’s Remarks on the Draft

[19–21 Nov. 1802]

Dear Sir

I hope that your administration will afford but few materials to historians; and we have already a favorable symptom in the difficulty under which we are to collect materials for a message. The things you want to be done are very few & seem confined to the following points—

1st. Countervailing duties if necessary. To this there can be no objection; but might not the advantage resulting from a mutual abolition of duties between Great Britain & America, be placed on more positive ground than the shape in which it stands &a. “Whether this would produce a due equality is a subject &a.” and does not the conduct of Great Britain on that occasion deserve a freer style of approbation?
2d. Foreign seamen deserting. I had rather omit this altogether. It does not seem of sufficient importance: the authority though derived from the general commercial power vested in Congress may be considered as rather constructive than positive: its exercise will be unpopular as was that given to the French by the treaty, & which was accordingly defeated, whenever practicable, by placing the most rigid litteral construction on the article of the treaty. See case of Capn. Barré of the “Perdrix”—Dallas’s rep.
3d. Naval estimates under which head three objects seem to be recommended
 1st. a conditional authority in the Executive to increase the force } both of which are unexceptionable
 2d. purchase or building smaller vessels
qu.  3d. authority for our vessels to act offensively in case of war declared or waged by other Barbary powers—
I do not & never did believe that it was necessary to obtain a legislative sanction in the last case: whenever war does exist, whether by the declaration of the United States, or by the declaration or act of a foreign nation, I think that the executive has a right, & is in duty bound, to apply the public force which he may have the means legally to employ, in the most effective manner to annoy the enemy. If the instructions given in May or June 1801 by the Navy department to the commander of the mediterranean squadron shall be examined, it will be found that they were drawn in conformity to that doctrine; and that was the result of a long cabinet discussion on that very ground. It is true that the message of last year adopted a different construction of the constitution; but how that took place I do not recollect. The instructions given to the commanders to release the crews of captured vessels were merely because we did not know what to do with them; & there was some hesitation whether the instructions should not be to give them up to the Neapolitans. What have been the instructions given in relation to Morocco, in case war had been found to exist?
4th. Dry dock. I am in toto against the recommendation—1st. because so long as the Mediterranean war lasts, we will not have any money to spare for the navy—and 2d. because if dry docks are necessary, so long as we have six navy yards, it seems to me that a general recommendation would be sufficient, leaving the legislature free either to designate the place or to trust the Executive with the selection. It is highly probable that Congress will adopt the last mode if the recommendation is general, and that they will designate another place if this shall be specially recommended. At all events I would strike out the word “singular” preceding “advantage,” and modify the expressions of the whole paragraph so as to prevent any possible attack on the ground of partiality to the city. The moment the Potowmack is mentioned, political enemies, & the enemies of this place will unite in representing the plan of a dry dock as proposed for the purpose of obtaining a navigable canal from that river to the Eastern branch. Quere, by the bye, whether the charter of the Potomack company would permit taking water above the little falls?
+ 5th. Seamen discharged abroad Should not the recommendation to legislate be more strongly expressed? and the fact of the expence having been partly defrayed from the contingent fund simply stated? omitting the words “thought to come &a” which seem to imply doubt—
+ 6th. Settlement of the Mississipi territory, instead of being connected only with the Choctaw boundary, depends almost entirely on the Georgia cession & legislative ratification, which, being now binding on Congress, positively enjoins the opening of a land office, for the purpose of raising the money due to Georgia: this, perhaps, will preclude the idea of a settlement condition; but after having read over the Articles of agreement with that State, the President will probably be induced to new model that part of the message. Some notice may be taken of the provision contemplated for satisfying former claims, also for quieting settlers under Spanish titles posterior to the treaty of 1795. We expect on that subject communications from Gov. Claiborne to whom the Commissrs. have written officially.
7th. Militia law seems almost a matter of course. What are the defects of the present system? & could any specific improvement be recommended? I think that the important point is to provide that the middle & southern States militia should have arms as well as the eastern. Shall it be done by the public purchasing the arms & selling them, or by rendering it penal, as well to attend without arms, as not to attend on review days?
+ 8th. Missouri seems, as it contemplates an expedition out of our own territory, to be a proper object for a confidential message. I feel warmly interested in this plan, & will suggest the propriety that Gen. Dearborn should write immediately to procure “Vancouver’s survey” one copy of which, the only one I believe in America, is advertised by F. Nichols No. 70 Chesnut St. Philada. Price with all the charts 55 dollars.
+ The other parts of the message are only statements of facts, on which, (except in relation to finances) only two parts have struck me—1st Louisiana, which might perhaps be reserved for the confidential message; but if left in this, I had rather place the taking possession by the French on hypothetical ground, saying, after the word “war” will, if it shall be carried into effect, make a change &a.; but this being the most delicate part of the speech, will, I presume, be the subject of a cabinet consultation.—2d. Indians who, it seems to me, occupy too much space in the message in proportion to the importance of the subject—The Wabash salt spring might be omitted; it is a topic which awakens the objections to the salt tax. On the other hand it might be well, once more to remind Congress that the trading houses law will expire on the 4th of March.
 Is not the admission of the new State in the Union a subject of sufficient importance to be inserted in the message?1
+ 1. ratio of increase greater than any former year. Probable but not certain.
+ 2. only 4½ millions dollars in treasury on 30th Septer. 1802
+ 3. to pay from the treasury—say within one year—or perhaps add those words after the words “5 millions of principal”
+ 4. Expences contemplated in treasury statement &a. The expences there contemplated were those then authorized by law, before the reduction of establishments & before the repeal of the internal duties—It should be “contemplated last year by Congress”
qu? 5. reduce offices &a. I doubt the propriety of repeating this year this admonition—Mint Comrs. of loans—& marines are the only possible objects—Other to as great an amount will probably soon take place.
+ 6. I have already discontinued” &a. Whenever the collection was closed the offices have ceased by law, without any act of the President. It would be better to speak in general terms—saying that some of the officers &a. have already been discontinued, in others they will &a. but in a few &a.
+ 7. We have had no occasion &a. I had rather say “It has not yet been thought necessary” &a.
+ 8. shall be faithfully applied—I would like the introduction of the words “in conformity to the provision of the law of last session”—or any other allusion to that law showing in a striking point of view the federal misrepresentation of that law.
+ 9. The Statement to be made by the Comer. of the sinking fund is directed to be made annually by law: two of that board, the Vice Prt. & Chief justice are officers independent of the Presidt.; perhaps the Presidt. should not say that such statement will be laid before Congress.
+ 10. Estimates. The War estimate spoken of in another part of the message makes part of the general estimates for the year and they are always sent all together—civil, foreign interc. military, naval, & miscellaneous. The other part of the message says that the military estimate is now laid before Congress; which is not correct.
Note. Under that head “War estimate” one item has been introduced which requires a specific authority vizt. 20,000 dollars for holding treaties.
I enclose a rough sketch of the expences & receipts for the year ending 30th Sept. 1802. It is not yet correct for want of some accounts which will be obtained within 2 or 10 days; but it is sufficiently so for any general conclusions.
 The President’s directions to make free remarks have been very freely followed. As to style I am a bad judge; but I do not like, in the first paragraph, the idea of limiting the quantum of thankfulness due to the supreme being; and there is also, it seems, too much said of the Indians in the enumeration of our blessings in the next sentence.

With sincere respect & attachment Your obedt. Servt.

Albert Gallatin

RC (DLC); undated; “qu,” “+,” and “–” notations by TJ in margin; for emendation by TJ in pencil, see note 1 below; endorsed by TJ as received from the Treasury Department on 21 Nov. and “Message” and so recorded in SJL. Enclosure: Document IV.

whether this would produce a due equality: see, at 15 Dec., the third paragraph of the text of the annual message.

The section on foreign seamen deserting did not appear in the finished message. In the draft version, TJ may have suggested a need for legislation concerning the extradition of deserters from foreign warships. This was a politically volatile matter, for some deserted seamen, wanted by the British government for capital offenses, claimed to be American citizens and victims of impressment by the Royal Navy. In the much-publicized cases of Jonathan Robbins at Charleston and Hugh Jones at Norfolk, mariners accused of mutiny were extradited from the United States and taken to Jamaica for execution. In early 1801, a Virginia law passed in response to Jones’s extradition made it a felony to deliver up “to be transported beyond sea,” or elsewhere outside the United States, anyone entitled to the protection of the state’s laws. The penalty upon conviction would be imprisonment for a term of one to ten years. The act went on to declare that if the person who was transported outside the United States should be “tried and condemned by any court, either civil or military, for any criminal offence pretended to have been committed by such person at any place whatsoever,” and was then “actually executed under the authority of the court passing sentence upon him,” then whoever had turned that person over to foreign authorities could be “adjudged a felon, and suffer death in like manner as aiders, abettors and counsellors of murder in the first degree” under the state’s penal laws. British chargé d’affaires Edward Thornton declared that the law violated the Jay Treaty, which required the extradition of people accused of murder or forgery. Thornton filed a protest in mid-October 1802, only a few weeks before TJ began to draft the annual message, after William Davies, the collector of customs at Norfolk, cited the Virginia statute as the reason why he could not turn over a deserter from a British ship who had joined the crew of a U.S. revenue cutter. Madison sent a circular to U.S. district attorneys on 19 Oct., asking on the president’s behalf if laws in their states made any provision for the return of deserted seamen to the countries that claimed them. Writing to Thornton on 9 Nov., Madison stated that the law of nations did not require the delivering up of deserted sailors from ships of war and that the United States and Great Britain had not in the Jay Treaty extended the right of extradition to such cases. “It follows that the effect of applications in such cases must depend on the local laws existing on each side,” Madison wrote, and he suggested that in Britain the law would “immediately interpose its defence against a compulsive recovery of deserters.” In some American states the law was “probably similar” to that of Britain, and in other states “it is understood that the recovery of seamen deserting from foreign vessels can be effected by legal process.” In conclusion, Madison wrote, “the President cannot interpose the orders which are wished; however sensible he may be of the beneficial influence which friendly and reciprocal restorations of seamen could not fail to have on the commerce and confidence which he wishes to see cherished between the two nations” (Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 33 vols. Sec. of State Ser., 1986–, 9 vols. Pres. Ser., 1984–, 6 vols. Ret. Ser., 2009–, 1 vol. description ends , Sec. of State Ser., 4:27–8, 32–3, 104–5; Acts Passed at a General Assembly of the Commonwealth of Virginia. Begun and Held at the Capitol, in the City of Richmond, on Monday the First Day of December One Thousand Eight Hundred [Richmond, 1801], 39; Vol. 31:180, 181–2n; Vol. 34:163–4, 206).

case of capn. barré: under Article 9 of the 1788 consular convention between the United States and France and a 1792 act to implement it, a consul or vice consul could obtain the arrest of deserters from his country’s ships, and federal courts were to give “all aid and assistance” necessary. In 1794, Jean Baptiste Henri Barré, the captain of the French corvette La Perdrix, deserted his ship in an American port, and a French vice consul asked John Laurance, who was then the U.S. district judge for New York, to issue a warrant for his arrest. The judge, declaring that the language of the convention required French officials to produce the original ship’s roll as proof that Barré was a deserter, refused to give the warrant. Edmund Randolph, the secretary of state, asked Attorney General William Bradford to seek a writ of mandamus in the Supreme Court to overturn Laurance’s decision. When the case was argued in the February 1795 term, the Supreme Court ruled that it did not have authority to issue a writ of mandamus, and Laurance’s ruling was left to stand. In 1800, in debates in the House of Representatives following the Robbins episode, Gallatin cited Barré’s case as an instance in which the executive branch left questions about the extradition of deserters to the courts (Parry, Consolidated Treaty Series description begins Clive Parry, ed., The Consolidated Treaty Series, Dobbs Ferry, N.Y., 1969-81, 231 vols. description ends , 50:398–9; DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States, 1789-1800, New York, 1985-2007, 8 vols. description ends , 6:522–6; Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Several Courts of the United States, and of Pennsylvania, Held at the Seat of the Federal Government, 3 vols. [Philadelphia, 1799], 3:42–54; U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States…1789 to March 3, 1845, Boston, 1855-56, 8 vols. description ends , 1:254–7).

Orders from Samuel Smith as acting secretary of the navy to Captain Richard Dale on 20 May 1801 were what Gallatin recalled as instructions given in may or june 1801. The orders, which were the result of a cabinet meeting of 15 May, empowered Dale to respond aggressively should he find that any of the Barbary Coast states were engaged in war against the United States (Vol. 34:114–15). different construction: with reference to the engagement between the Enterprize and a Tripolitan ship, TJ in his December 1801 annual message said that the navy was “unauthorised by the constitution, without the sanction of Congress, to go beyond the line of defence.” In February 1802, Robert Smith instructed the Mediterranean squadron to deposit the crews of captured Tripolitan ships “on the Barbary shore, or at any other convenient place, so as not to subject the U.S. to the expence of maintaining them” (NDBW description begins Dudley W. Knox, ed., Naval Documents Related to the United States Wars with the Barbary Powers, Washington, D.C., 1939-44, 6 vols., and Register of Officer Personnel and Ships’ Data, 1801-1807, Washington, D.C., 1945 description ends , 2:56; Vol. 36:59). For instructions to the navy in relation to morocco, see Robert Smith to TJ, 16, 27 Aug. (first letter), 1 Sep.

strike out the word “singular”: the passage that Gallatin sought to modify in the section on the dry dock does not appear in the final version of the message.

omitting the words “thought to come &a.”: the phrase does not appear in the finished message.

For the articles of agreement between the United States and the state of Georgia concerning western lands, see Vol. 37:300–1, 343–5.

TJ took out the section on missouri and the proposed expedition.

The Philadelphia publisher and bookseller Francis Nichols offered for sale George vancouver’s A Voyage of Discovery to the North Pacific Ocean, and Round the World; in Which the Coast of North-West America Has Been Carefully Examined and Accurately Surveyed, 6 vols. (London, 1801), the published record of the British naval expedition commanded by Vancouver from 1790 to 1795 (Philadelphia Gazette, 19 Nov.; H. Glenn Brown and Maude O. Brown, A Directory of the Book-Arts and Book Trade in Philadelphia to 1820: Including Painters and Engravers [New York, 1950], 89; DNB description begins H. C. G. Matthew and Brian Harrison, eds., Oxford Dictionary of National Biography, In Association with The British Academy, From the Earliest Times to the Year 2000, Oxford, 2004, 60 vols. description ends ).

saying, after the word “war”: see the section on Louisiana in the message at 15 Dec. for TJ’s incorporation of Gallatin’s suggestion.

TJ did not excise the reference to the wabash salt spring and did not, in the final state of the message, mention the law pertaining to trading houses or the admission of Ohio as a new state. Regarding the approaching expiration of the law on trading houses, see TJ to the Senate and the House of Representatives, 18 Jan. (first message).

expences contemplated: see the section on finances in the message for TJ’s incorporation of Gallatin’s suggested wording.

propriety of repeating this year this admonition: in his first annual message in 1801, TJ noted that “the great mass of public offices” could only be reduced through legislation (Vol. 36:60–1).

In the finished message, TJ omitted the subject of discontinued offices.

In the section on internal taxes, TJ evidently removed the clause “We have had no occasion” and substituted Gallatin’s phrasing, “it has not yet been thought necessary.”

law of last session: the “Act making provision for the redemption of the whole of the Public Debt of the United States,” passed 29 Apr. (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States…1789 to March 3, 1845, Boston, 1855-56, 8 vols. description ends , 2:167–70; Vol. 37:158–9n). What Gallatin characterized as misrepresentation of the statute by Federalists focused on three of its provisions: one that allowed borrowing to cover payments due in Holland from 1803 to 1806, at five percent annual interest and five percent in charges, in which case a sum equal to what was deferred on the European debt would be applied to “the present debt of the United States”; a provision that authorized the use of the Bank of the United States, or another institution or an individual, as agent for the payment of the overseas debt, for a commission of one fourth of one percent, which critics said would amount to $5,000 per year; and authorization for the employment of an agent in Europe, with compensation of up to $3,000 per annum (New-York Evening Post, 6 May; Boston Gazette, 27 May). In a paragraph published on 11 Oct. under the title “Genevan Financiering,” the editors of the Trenton Federalist commented: “Thus it appears that our present rulers, so far from relieving us from debt, mean only to change our creditors, by providing that Government might at a great expense ‘Borrow from Peter to pay Paul.’ ” For TJ’s handling of this issue in the finished message, see, in the text at 15 Dec., the section on internal taxes and reloans.

TJ removed all reference to a statement to come from the commissioners of the sinking fund.

specific authority: the act for military appropriations for 1803, approved 3 Mch., allocated up to $20,000 for defraying expenses of treaties with Indians. The sum would include “any unexpended balance of former appropriations for the same object” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States…1789 to March 3, 1845, Boston, 1855-56, 8 vols. description ends , 2:227–8).

It is not known if TJ made any alteration to the first paragraph of the message in accordance with Gallatin’s suggestions.

1TJ here wrote in the margin “if official information be recd.”

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