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From Thomas Jefferson to Albert Gallatin, 21 February 1804

To Albert Gallatin

Feb. 21. 04.

Th:J. to mr Gallatin

I return you mr Nicholson’s letter because it is chiefly on private topics. the two charges against Banning, that he refused to let duties be bonded unless a bond not due were paid, and the neglecting to give such a certificate on cotton as might authorise a drawback, (when too a re-exportation was not, at the time, thought of) appear to be founded on single acts, not habitual practices. they seem fit subjects for demanding legal indemnification, rather than immediate removal. the circumstance of his residing 12. miles off is more serious, as it must probably produce habitual inconvenience. I wish more of the trouble which has been taken by Willis’s friends to prove his fitness, had been applied to a specification of the acts of wrong or negligence of Banning.

I find on reading again the paper I wrote hastily & sent you yesterday I have not kept, as distinct as I should have done, the two separate grounds of authority on which the practice in the department of state has been deemed to be solidly founded. the following amendment will convey my meaning more correctly. 2d paragraph, 1. 13. strike out ‘under these two &c. to the end of the paragraph, and insert ‘To give the Executive the means of fulfilling the constitutional duty of maintaining the foreign intercourse, and even to supply the authority, if the constitutional words be deemed defective or unexplicit, a sum is annually appropriated ‘for the expences of intercourse with foreign nations.’ if we consider this as giving the means only of fulfilling the constitutional duty, then it leaves their application to his discretion as generally as the constitution had left the duties. if, as in some other cases, the appropriation intends, by the same words, both1 to legalize the object, and give the means, then the latitude of the expression here used, gives the same latitude of execution, saving always the general regulations of the act of 1801.’

PrC (DLC). Recorded in SJL with notation “Dr. Stevens’s case.”

nicholson’s letter: the only letter found from Joseph H. Nicholson to Gallatin in February 1804 is that described as Enclosure No. 10 in Gallatin to TJ, 20 Feb. private topics: after Nicholson agreed to support John Willis, he added, in a second, short paragraph: “I wish you would send me a Letter in the form of an answer to one from me relative to the Preemption Rights—direct to me as Chairman &c.” Nicholson headed the committee appointed on 22 Nov. 1803 to consider preemption rights and other issues raised by petitioners from Ohio. On 17 Feb., the committee was directed to inquire into reducing land prices in Mississippi Territory for those settlers who held “a right of pre-emption only” (RC in DNA: RG 59, LAR, 12:0429; JHR description begins Journal of the House of Representatives of the United States, Washington, D.C., 1826, 9 vols. description ends , 4:453, 541, 583-4). For the committee’s mandate, see Gallatin to TJ, 4 Jan.

sent you yesterday: see Memorandum on the Edward Stevens Claim, printed as an enclosure at TJ to Gallatin, 20 Feb.

1Word interlined.

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