Mar. 17. 08.
Th: J. to mr Gallatin
I think it will be impossible to form general rules for carrying into execution the 7th. section of the law of Mar. 12. without a fuller view of the number and nature of the cases which are to come under it. I have waited in expectation the applications would multiply so as to give one a general view, but have recieved but about half a dozen. but indeed nothing short of a knolege of all the cases can enable us to provide for them. I have been wishing therefore to converse with you on this proposition: to wit, to direct the Collectors to advertize in their respective ports, that all persons desiring the benefit of that law must immediately deliver to him a statement of the place where they have property, it’s amount, whether cash, or goods & what kind of goods, & in whose hands, on oath, but without exhibiting other proofs till further called on. these particulars may be stated in a tabular view. for cash we might authorize vessels to go immediately; but for goods, rules must be framed on a view of all circumstances.
With respect to the construction of the act, there are cases in the books where the word ‘may’ has been adjudged, equivalent to ‘shall’ but the term ‘is authorised’ unless followed by ‘and required’ was I think never so considered. on the contrary, I believe it is the very term which Congress always use towards the Executive when they mean to give a power to him, and leave the use of it to his discretion. it is the very phrase on which there is now a difference in the H. of R. on the bill for raising 6000. regulars, which says ‘there shall be raised’ and some desire it to say ‘the President is authorised to raise’ leaving him the power with a discretion to use it or not. it is to be observed also that the one construction puts it in the power of individuals to defeat the embargo in a great measure, while the other leaves a power to combine a due regard to the object of the law with the interests of individuals. I like your idea of proportioning the tonnage of the vessel to the value (in some degree) of the property, but it’s bulk must also be taken into consideration. on the whole I should be for giving prompt permission to bring home money, because one vessel will bring for all those who have cash at the same port; but the bringing property in other forms will require a fuller view, & digest of rules. Affecte. salutns.
NHi: Papers of Albert Gallatin.