To James Madison from Jacob Wagner, 31 August 1801
From Jacob Wagner
Department of State: Washington,
31 Augt. 1801.
Dear sir
I have had the honor to receive, in due time, your letter of the last post.
I have written to Mr. Helmbold, to inform me of his terms for printing the laws in German, and, if they prove reasonable, shall direct him to proceed. The enclosed two letters, which I have written to the Collector of New York, will shew the footing on which the business of the Ragusan Brigantine stands.1 I expect in a day or two to receive his answer.
The vessel, relative to which I enclosed, in my last, a slip from the newspaper, proves to be, as she was stated, a Spanish privateer. The enclosed letters from the Secretary of the Treasury will explain the course he has taken.2 In reference to the question they present for solution, I have thought it would be acceptable to you to receive a collection of the authorities on the point, accompanied by Mr. Rawle’s opinion. That opinion was partially departed from by Genl. Washington in the instructions which were given to the Custom-houses in 1796.3 I have looked into Valin4 and find that in case of a prize coming in, in distress, the French allow the cargo to be stored until she is repaired, but nothing is said of a permission to sell part of it to defray the expense. I therefore consider the laws of France as prohibiting it. The law of Spain is, I believe, similar. From this I infer that the indulgence in question is peculiar to the United States. How far it should be extended to necessary repairs of the privateer, is for the President to decide.
On saturday evening last arrived Capt. Rogers of the Maryland, accompanied by Mr. Purviance, being the bearers of dispatches from France. You will find them enclosed.5 Mr. Smith has read them; but Mr. Gallatin is and has been this day or two absent in the country with a sick child.
As you will not have an opportunity of informing the President of their arrival by the same mail, by which you will receive them, I have taken the liberty of mentioning it to him in a note accompanying some letters for him received by the Maryland.
Mr. Graham is now here, and if he receives no direction from you by the mail of to morrow, he will probably wait upon you in Virginia. But he is not altogether determined, whether to do so or to remain here. In the latter case he would usefully employ himself in reading such documents in the office as may have a connection with his future duties. With the highest respect and esteem, I remain, Dr. sir, Your most obed. servt.
Jacob Wagner
P. S. I have thought it not amiss to send you the instructions of Mr. Dawson and of Mr. Murray6 & a copy of the letter of credence given to the latter.
RC (DLC).
1. Enclosures not found.
2. Wagner may have enclosed copies of correspondence between Gallatin and Wilmington, North Carolina, port collector Griffith J. McRee. McRee had informed Gallatin on 10 Aug. that the captain of the Spanish privateer, which had entered the port “in distress,” had applied for permission to sell part of the cargo of his British prize vessel in order to pay for repairs to both ships. Gallatin replied on 22 Aug. that articles 24 and 25 of the Jay treaty as well as the instructions in Oliver Wolcott’s 26 Nov. 1796 circular letter to customs collectors required the immediate departure of the prize unless it was in “absolute” need of repair, in which case part of its cargo could be sold to defray the expense. Gallatin added that he would submit to the president the only question in doubt—whether part of the prize’s cargo could be sold to pay for repairing the privateer. He did so two days later, reiterating his belief that “the instructions of 1793 & 1796” should not be construed to allow privateeers to sell part of their prize cargoes (McRee to Gallatin, 10 Aug. 1801, Gallatin to McRee, 22 Aug. 1801, Gallatin to Jefferson, 24 Aug. 1801 [DLC: Jefferson Papers]; text of 26 Nov. 1796 circular letter is in , 20:348–49 n. 1).
3. The collection of authorities mentioned by Wagner has not been found. After British minister Robert Liston had complained to Timothy Pickering in 1796 about the circumstances surrounding the capture and recapture of a British prize, the Eliza, Pickering consulted William Rawle, U.S. attorney for Pennsylvania, for an opinion on whether the U.S. government was obliged to restore the vessel to its British captors. Rawle replied that irrespective of whether the vessel had been a fair prize or not, the U.S. could not intervene in the matter without violating its own neutrality or without unduly interfering with the judicial authorities that would have to decide the issue. Rawle’s opinion did not address the question of whether a privateer could sell part of its prize cargo to defray repair costs, but its tenor was in conformity with the instructions contained in the Treasury Department circulars of 30 May 1793 and 30 June 1796. These had stipulated that neither the prizes of belligerent privateers nor their captured cargoes could be sold in the U.S. without their being liable for seizure as illegal imports. Customs officials were authorized to allow privateers only to purchase sufficient provisions to enable them to sail for the nearest port of the nation that had commissioned them. The Washington administration had departed from these regulations in the Treasury Department circular of 26 Nov. 1796 to the extent that severely damaged privateers were permitted, under strict supervision, to unload and sell portions of their cargoes to defray expenses according to the rules established for vessels arriving in distress (Liston to Hamilton, 30 Sept. 1796, , 20:337–38 and n. 3; William Rawle to Timothy Pickering, 28 Sept. 1796, and Treasury Department circular, 30 June 1796 [DNA: RG 59, ML].
4. René Josué Valin, Traité des prises, ou Principes de la jurisprudence françoise concernant les prises qui se font sur mer … (2 vols.; La Rochelle, 1763).
5. Probably Murray to JM, 23, 24, and 26 June and 1, 2, and 9 July 1801, and Dawson to JM, 25 June 1801 (, 1:340–41, 345, 350–51, 353, 369, 375–76, 390–91). In his 31 Aug. letter to Jefferson, Wagner noted that he had forwarded to JM dispatches from France up to 9 July and added that the French had refused to ratify the convention until the U.S. renounced its claims for captures, offering a renunciation of former treaties in return. JM was at Monticello on 3 Sept. when Jefferson received Wagner’s letter and a letter from Robert Smith of 31 Aug. also announcing the arrival of the Maryland. Wagner sent for Jefferson’s signature John Graham’s commission as secretary of the U.S. legation to Spain and enclosed, at JM’s request, copies of recent letters sent to Eaton “to enable you to answer the letter of the Bey of Tunis, demanding cannon” (Wagner to Jefferson, 31 Aug. 1801, Smith to Jefferson, 31 Aug. 1801, Jefferson to Smith, 5 Sept. 1801 [DLC: Jefferson Papers]; see also JM to Livingston, 4 Sept. 1801, and Wagner to JM, 12 Sept. 1801).
6. These enclosures (NHi: Livingston Papers), docketed by Wagner as “Instructions to Mr. Dawson,” March 1801 (2 pp.), and “Copy of the instructions to Messrs. Ellsworth and Murray” (undated; 5 pp.), were intended by JM for inclusion in his draft instructions to Robert R. Livingston, ca. 17 Sept. 1801. Wagner eventually forwarded them to the minister on 2 Oct. 1801 (JM to Jefferson, 3 Oct. 1801, n. 1).