James Madison Papers
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From James Madison to Albert Gallatin, 10 August 1811

To Albert Gallatin

Montpelier Aug. 10. 1811

Dear Sir

I have recd. safe the manuscript of Dupont, and the pamphlet sent with it.1 The letter from Foster to you,2 I have handed on to the Secretary of State. The exemption of Articles for the use of pub. Ministers, from the impost, was founded in courtesy, & has been continued from respect to a course of precedents. The plea that it was required by the L. of N. cannot be sustained: Still less could this plea be applied to such a case as that presented by Mr. F. and as the case is without the plea of usage or even precedent, the L. of N. as construed by ourselves, could alone justify the exception to the general rule established by the Act of Congs. It is not improbable that if the case had occurred, at the passage of the Act, it might have been provided for, like that of vessels bringing despatches for Pub: Ms. But even this is doubtful. Mr. F. ought however to have an answer, that he may take his measures with a knowledge of the reception his supplies will find at the Custom houses, and it may be proper to hear from the Secretary of State, before the answer be decided on. If in the mean time the articles expected should arrive, and a forfeiture be incurred, it will be for consideration how far the remitting power, may properly be applied; either absolutely, or provisionally with a reference to the final decision of Congress.

You have taken a proper step in your suggestion to Govr. Holmes, with respect to the trespasses on the pub: lands.3 I am not sure that the intrusion law would not reach the case; but as it is a law departing from common right, the construction of it ought to be rather strict than free; and as Congs. will soon have an opportunity of providing a remedy, it seems best to trust for the present to the remedy you have pointed out, which may perhaps be seconded by an apprehension of removal under the intrusion law if found necessary.

I hear nothing as to foreign intelligence more than is seen in the Newspapers. I have not yet seen the Secretary of State nor heard more from him, than that he had reached home.

From the information recd from Washington, this will probably find you at N. Y. on your way to Boston. I hope you will find the ramble advantageous to your health, as well as otherwise agreeable. Mrs. M. joins in best respects to Mrs. Gallatin. Accept my esteem & affectionate wishes.

James Madison

Our Crops of Wheat were pinched by a drought, and suffered from the Hessian fly. They are suffering also in the small Cocks in which they remain for the most part in the fields, exposed to the present spell of rainy weather. The Crops of Indian Corn will be unusually great. This result is secured by the rains which are damaging the Wheat.

RC (NHi: Gallatin Papers).

2On 4 Aug. 1811 Augustus John Foster had written to Gallatin, informing him that he was expecting the delivery of some boxes of preserved fruits and liqueurs from the West Indies at Norfolk, Virginia, and directing him to instruct the collector there to allow for their free importation as a matter of diplomatic privilege (see DNA: RG 59, NFL, Great Britain, with Gallatin’s deleted note “Give usual instruction to Collector of Norfolk. A. G.”).

3JM had evidently seen a 9 July 1811 letter from deputy surveyor Thomas Freeman in the Mississippi Territory to Gallatin reporting his disagreement with Governor Holmes over whether to remove intruders who were cutting cypress timber on the public lands. Gallatin docketed the letter, adding a note to the effect that “the intrusion law authorises the removal of persons who shall take possession of the public lands or attempt to make a settlement thereon. The question arises,” he continued, “whether persons committing the trespass & depredations herein stated can be considered as having taken possession & subject to removal under the statute. If determined in affirmative, the instructions to the Governor should go from the Department of State.” Beneath this observation, Gallatin addressed the following note to JM: “I have in the meanwhile written to Govr Holmes suggesting the propriety of instituting suits at common law for trespass & also applying to court for injunctions or such other writs as may be efficient in stopping waste. A. G.” Following Gallatin’s comment, JM wrote in pencil: “Better to trust to this till Congs meet, than to seek remedy in a doubtful construction of the Intrusion law” (DNA: RG 59, TP, Mississippi; printed in Carter, Territorial Papers, Mississippi, 6:205–7).

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