To Albert Gallatin
Oct. 13. 1802.
Th:J. to mr Gallatin
You know my doubts or rather convictions about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expence, & to the greatest abuses. there is however one intention of which the act is susceptible & which will bring it within the constitution; and we ought always to presume that the real intention which is alone consistent with the constitution. altho the power to regulate commerce does not give a power to build piers, wharfs, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go, if it went to the first, yet a power to provide and maintain a navy, is a power to provide receptacles for it and places to cover & preserve it. in chusing the places where this money should be laid out, I should be much disposed, as far as contracts will permit, to confine it to such place or places as the ships of war may lie at, and be protected from ice: & I should be for stating this in a message to Congress in order to prevent the effect of the present example. this act has been built on the exercise of the power of building lighthouses as a regulation of commerce. but I well remember the opposition, on this very ground, to the first act for building a lighthouse. the utility of the thing has sanctioned the infraction. but if on that infraction we build a 2d. on that 2d. a 3d &c. any one of the powers in the constitution may be made to comprehend every power of government.—will you read the inclosed letters on the subject of New Orleans, and think what we can do or propose in the case? Accept my affectionate salutations.
RC (NHi: Gallatin Papers); endorsed by Gallatin: “President Delaware piers.” PrC (DLC). Recorded in SJL as a letter to the Treasury Department with notation “piers in Delaware.” Enclosures: (1) Daniel W. Coxe to James Madison, Philadelphia, 8 Oct., arguing the importance of authorizing the customs collector at Natchez to grant clearances to American ships “loading with American Produce at New Orleans, & bound to British European Ports” (Madison, Papers, Sec. of State Ser. description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 33 vols. Sec. of State Ser., 1986–, 9 vols.; Pres. Ser., 1984–, 6 vols.; Ret. Ser., 2009–, 1 vol. description ends , 4:1–3). (2) Printed broadside consisting of the British statute of 22 June 1802 repealing several acts relating to the admission of certain articles in neutral vessels by issuing Orders in Council for that purpose, to continue in effect until 1 Jan. 1804; and a letter from Green & Wainewright dated Liverpool, 14 Aug., explaining that the act provided that U.S. produce can only be imported in British vessels or in American ships, built and registered in the United States, with the master and “three-fourths of the Crew at least American” (same, 4:2n; 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 , 7:613). (3) Extract of Green & Wainewright to Coxe, Liverpool, 18 Aug. 1802, noting that existing British laws do not allow the importation of American produce from New Orleans, but customs officers think it will be allowed if the produce is transferred from boats from the U.S. settlements to “Ships having regular Clearances from an American Custom House on the Mississippi”; cotton not grown in the U.S. would have to be sent to the British West Indies or any other port where it could be transferred to British vessels; if the plan suggested “is not practicable, the Vessels must touch at a port of the United States for a Clearance & the Crew must be particularly attended to as We have been Witness to several very disagreeable circumstances thro’ this point” (same, 7:614; Madison, Papers, Sec. of State Ser. description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 33 vols. Sec. of State Ser., 1986–, 9 vols.; Pres. Ser., 1984–, 6 vols.; Ret. Ser., 2009–, 1 vol. description ends , 4:2–3n).
On 17 July 1789, the New York Daily Advertiser recorded OPPOSITION to proposed legislation for the establishment and support of lighthouses by South Carolina congressmen Thomas Tudor Tucker and William Loughton Smith. The bill authorized the U.S. government to assume the expenses for building and maintaining lighthouses. The state had only to apply to the Treasury secretary and cede to the federal government the land upon which the lighthouse was to be built. Tucker and Smith argued that the bill was an infringement on the rights of the states and that lighthouses “were not necessarily incidental to the power of commerce.” If Congress were given this power, they declared, it “might with equal justice take possession of the mouths of rivers, and seize all such convenient places, as they should deem proper for the regulation of trade.” On 7 Aug. 1789, Washington signed the “act for the establishment and support of Lighthouses, Beacons, Buoys, and Public Piers” (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 , 1:53–4; Biog. Dir. Cong. description begins Biographical Directory of the United States Congress, 1774–1989, Washington, D.C., 1989 description ends ).