From Albert Gallatin
Tuesday evening [5 Oct. 1802]
On reading the enclosed piece in Poulson’s paper, I was induced to answer it, as a similar misrepresentation has already appeared in the Boston centinel; and being on that subject I was led into some discussion of the remission of Callender’s fine. My idea was that Smith should obey the request of “a plain citizen,” by reprinting his piece, and should add as his own remarks the substance of what I have written dressed in his own way & corrected as he may think fit. Will you be good enough to look at it & to see whether it wants any additions, corrections or curtailing?—I mean as to facts & arguments, not as to style—this Smith must modify.
Your affectionate Servt.
Did you grant any other sedition pardon but that to Callender?
You will perceive that Mr Kirby’s letter ought to receive an immediate answer—
RC (DLC); partially dated; date written adjacent to signature above postscript; at foot of text: “Mr Jefferson”; endorsed by TJ as received from the Treasury Department on 6 Oct. and “Callender’s fine” and so recorded in SJL. Enclosure: “A Plain Citizen” to Levi Lincoln, Philadelphia, 29 Sep. 1802, charging that the attorney general had rendered inconsistent opinions; in the case of the remission of James T. Callender’s $200 fine, Lincoln ruled “that a fine paid into the hands of any public and lawful agent (other than the Secretary of the Treasury) was returnable at the pleasure of the President (on his retrospective pardon)”; in another case involving citizens of Georgetown, Alexandria, and the city of Washington who applied to the president for the remission of penalties paid to the District of Columbia commissioners, Lincoln’s opinion was “that money having been once paid into the hands of the public agent was not at the disposal of the President” (printed in Poulson’s American Daily Advertiser, 2 Oct. 1802, with the request that it also be printed in the National Intelligencer). Other enclosure not found, but see below.
SIMILAR MISREPRESENTATION: on 28 Aug., the Boston Columbian Centinel published documents, including Callender’s pardon and correspondence between Levi Lincoln and David Meade Randolph, the former U.S. marshal, observing that they indicated that Callender’s fine had been paid to the proper officer and was therefore “PROPERTY OF THE PUBLIC” over which the president had no control.
SOME DISCUSSION: Gallatin’s draft response to the piece in Poulson’s newspaper has not been found, but on 20 Oct. a reprint of the “Plain Citizen” letter along with an essay contradicting its assertions appeared in Samuel H. Smith’s National Intelligencer. In his rebuttal, Gallatin contended that no citizens of Georgetown, Alexandria, or Washington, D.C. had applied to the president or the Treasury secretary for remission of penalties and consequently the attorney general had given no opinion. Gallatin assumed the author was referring to a case in which the U.S. attorney for the district was consulted to determine whether monies collected by a public agent were meant for the use of the United States or the county commissioners. In the other case, the president had pardoned Callender. In Lincoln’s opinion, the pardon “remitted and restored” to Callender “a fine collected by the marshal, but not yet paid into the Treasury.” Gallatin noted that even after the publication of the original documents in the case, the Federalist press continued to repeat “that the money was paid from the Treasury to Callender.” Fines once paid into the Treasury cannot be remitted by the “mere effect of a pardon,” Gallatin noted, because no monies can be drawn from the Treasury without an actual appropriation. Monies are not legally considered as being in the Treasury, however, until paid to the Treasurer and sanctioned by a warrant. Callender’s fine had been collected by the marshal, but not paid to the Treasurer. Consequently, it was proper to return the fine. Gallatin argued that the president had acted fully within his powers by issuing the pardon. Having come into office believing the Sedition Act to be unconstitutional, TJ “granted pardons in every case where a conviction had taken place, and where it was not ascertained that the whole of the punishment had been incurred.” The Treasury secretary contended that TJ had let the pardons “have their legal effect without any other interference on his part.” Gallatin’s rebuttal of “A Plain Citizen” was printed in Poulson’s paper on 25 Oct. For the remission of Callender’s fine, see Vol. 33:46–7, 157–8, 566, 573–5. For Gallatin’s earlier response to the controversy over the payment of Callender’s fine, see Gallatin, Papers description begins Carl E. Prince and Helene E. Fineman, eds., The Papers of Albert Gallatin, microfilm edition in 46 reels, Philadelphia, 1969, and Supplement, Barbara B. Oberg, ed., reels 47–51, Wilmington, Del., 1985 description ends , 7:489–93.