[16 Oct. 1808.]
Th Jefferson to mr Gallatin
Collector of Detroit. I think the liberal construction of the letter of May 2. as explained in the Collector’s letter, had better be permitted to go on, sub silentio, as the contrary would be vexatious & unprofitable, and might excite a spirit of counter-vexation in the English.
McKim’s application is inadmissible, and Genl. Smith would be far from himself approving such a departure from rule, if explained to him.
Massey’s commission. a half sighted lawyer might perhaps say that a commission signed with a blank for the name, afterwards filled up was a nullity; because in legal instruments, any change in a material part of a bond, deed &c. after sealing & delivery, nullifies it. but I am not certain whether there are not cases, even in ordinary transactions at law, where it is otherwise e.g. a power of Attorney sent to a distance with a blank for the name a blank commission, blank subpoena &c. but in matters of government there can be no question but that the commission sealed & signed with a blank for the name, date, place &c. is good: because government can in no country be carried on without it. the most vital proceedings of our own government would become null were such a construction to prevail, and the argumentum ab inconvenienti, which is one of the great foundations of the law, will undoubtedly sustain the practice, and sanction it by the maxim ‘qui facit per alterum, facit per se’. I could not therefore give the countenance of the government to so impracticable a construction, by issuing a new commission. Affectte. salutns.
NHi: Papers of Albert Gallatin.