Thomas Jefferson Papers
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To Thomas Jefferson from Albert Gallatin, 13 January 1803

From Albert Gallatin

[13 Jan. 1803]

Dear Sir

You have not returned any answer in the case of Colo. Worthington’s resignation. He recommends Jesse Spencer of Chilicothe as a proper successor for the place of Register of the land office.

I enclose a recommendation for keeper of the light house at old Point Comfort.

The enclosed letter from the Collector of Michillimakinac (which you will be good enough to return) deserves consideration. It will not do to run the risk of an Indian war, and yet if it shall be once known that we dare not enforce the collection law, it will be perpetually evaded. Perhaps the best mode will be at first to confine the operation of the law to Michillimakinac & the entrance of Lake Michigan which commands the whole trade to the Indians South of the Lake and to the Mississipi & Missouri countries; and not to attempt doing any thing at the falls and straights of St Mary’s which form the entrance into Lake Superior, until it shall be found convenient to have a military post there, at which time a surveyor of the revenue may also be appointed, and the law carried into effect as I believe without difficulty. It must be, however, observed that there being [no]1 positive reservation or grant to the United States, along the straights of St Mary or any where in Lake Superior, made by the Indians in the Greenville treaty, they may object to the establishment of either a military post or a revenue officer.

I have read Mr Lincoln’s observations and cannot distinguish the difference between a power to acquire territory for the United States, and a power to extend by treaty the territory of the United States: yet he contends that the first is unconstitutional, & supposes that we may acquire East2 Louisiana & West Florida by annexing them to the Mississipi territory. Nor do I think his other idea, that of annexation to a State, that for instance of East Florida to Georgia as proposed by him, to Stand on a better foundation. If the acquisition of territory is not warranted by the constitution, it is not more legal to acquire for one State than for the United States: if the Legislature and Executive established by the constitution are not the proper organs for the acquirement of new territory for the use of the Union, still less can they be so for the acquirement of new3 territory for the use of One State: if they have no power to acquire territory, it is because the constitution has confined its views to the then existing territory of the Union, and that excludes a possibility of enlargement of one State as well as that of territory common to the United States. As to the danger resulting from the exercise of such power, it is as great on his plan as on the other. What could on his construction, prevent the Presidt. & Senate, by treaty annexing Cuba to Massachussets or Bengal to Rhode Island; if ever the acquirement of colonies shall become a favorite object with Government and colonies shall be acquired.

But does any constitutional objection really exist?

The 3d Sect. of the 4th Art. of the Constitution provides

1st. that new States may be admitted by Congress into this Union.

2dly. that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

Mr Lincoln, in order to support his objection is compelled to suppose 1st that the new States therein alluded to must be carved either out of other States, or out of the territory belonging to the United States and 2dly that the power given to Congress of making regulations respecting the territory belonging to the U.S. is expressly confined to the territory then belonging to the Union.

A general and perhaps sufficient answer is that the whole rests on a supposition, there being no words, in the section, which confines the authority given to Congress to those specific objects; whilst, on the contrary, the existence of the United States as a nation presupposes the power enjoyed by every nation of extending their territory by treaties, and the general power given to the President & Senate of making treaties4 designates the organs through which the acquisition may be made, whilst this Section provides the proper authority (vizt. Congress) for either admitting in the Union or governing as subjects the territory thus acquired.

It may be further observed in relation to the power of admitting new States in the Union, that this section was substituted to the 11th Art. of confederation which was in these words “Canada acceding &a. shall be admitted into &a. this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.” As the power was there explicitly given to nine States, and as all the other powers given in the articles of confederation to nine States were by the Constitution transferred to Congress, there is no reason to believe, as the words relative to the power of admission are, in the Constitution, general, that it was not the true intention of that Constitution to give the power generally & without restriction.

As to the other clause, that which gives the power of governing the territory of the United States, the limited construction of Mr Lincoln is still less tenable: for if that power is limited to the territory belonging to the United States at the time when the constitution was adopted, it would have precluded the United States from governing any territory acquired, since the adoption of the constitution, by cession of one of the States; which, however, has been done in the case of the cessions of North Carolina & Georgia: and, as the words “other property” follow and must be embraced by the same construction which will apply to the new territory, it would result from Mr L.’s opinion, that the United States could not after the constitution, either acquire or dispose of any personal property.

To me it would appear

1st. That the United States as a Nation have an inherent right to acquire territory

2d. That whenever that acquisition is by treaty, the same constituted authorities in whom the treaty making power is vested have a constitutional right to sanction the acquisition

3d. That whenever the territory has been acquired, Congress have the5 power either of admitting into the Union as a new State, or of annexing to a State with the consent of that State, or of making regulations for the government of, Such territory.

The only possible objection must be derived from the 10th6 amendment which declares that powers not delegated to the United States, nor prohibited by it to the States are reserved to the States or to the people.

As the States are expressly prohibited from making treaties, it is evident that, if the power of acquiring territory by treaty is not considered within the meaning of the amendment as delegated to the United States, it must be reserved to the people. If that be the true construction of the Constitution it substantially amounts to this—that the United States are precluded from, and renounce altogether the enlargement7 of territory; a provision sufficiently important and singular to have deserved to be expressly enacted. Is it not a more natural construction to say that the power of acquiring territory is delegated to the United States by the several provisions which authorize the several branches of Government to make war—to make treaties—& to govern the territory of the Union.

I must, however, confess that after all, I do not feel myself perfectly satisfied: the subject must be thoroughly examined; and the above observations must be considered as hasty & incomplete.

With respect Your affecte. servt.

Albert Gallatin

RC (DLC); undated; endorsed by TJ as received from the Treasury Department on 13 Jan. and “Latimer Pt. Comfort. Collector Michillimacinac. Lincoln’s proposn” and so recorded in SJL. Enclosures not found.

TJ appointed jesse spencer register of the land office at Chillicothe, with a commission dated 8 Feb. 1803. Spencer remained in office until replaced during the Jackson administration (FC of commission in Lb in DNA: RG 59, MPTPC; Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837 [New York, 1968], 273).

collector of michillimakinac: David Duncan. The collection district included Michilimakinac Island and lands ceded to the U.S. by the Indian nations at the Treaty of Greenville, including waters, inlets, and shores to the west and north of lakes Michigan and Superior (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 , 1:638; Gallatin to TJ, 10 Dec., Enclosure No. 2).

lincoln’s observations: see Levi Lincoln to TJ, 10 Jan.

Article 11 of the Articles of confederation reads, “Canada acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States” (Articles of Confederation and Perpetual Union [Williamsburg, Va., 1778], 13).

1Written over one or two illegible words.

2Word interlined.

3Word added in left margin.

4Gallatin here canceled “implies.”

5Gallatin here canceled “exclusive.”

6Figure interlined.

7Word interlined in place of “acquirement.”

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