Apr. 23. 08.
Th:J. to mr Gallatin
My ideas on the questions relative to the Active, letter of marque stated in your letter of yesterday, are as follows.
1. Letters of marque have been considered ever since the decisions of 1793. to be of a mixed character, but that the commercial character predominates; and as a commercial vessel of private property we have in some case, since the proclamation of July, considered them as not included in it’s restrictions.
2. the law of 1794. June 5. certainly exempts the enlistment of foreigners in this country on board the vessels of their sovereign from the penalties of that law, and leaves the subject merely under the law of nations. by that law the right of enlistment in a neutral country given to both belligerents if they can derive equal advantage from it, is no breach of neutrality, but otherwise becomes questionable. we may justly I think permit a vessel of either nation to supply it’s desertions by new engagements: but we should be cautious as to permitting them to increase their number, to carry away more than they brought in.
3. it is difficult to draw a line between the cases where the Collector should consult the government, & where the district attorney. where a case is political rather than legal, or where it arises even on a law whose object is rather political than municipal, the government should be consulted; and where the district attorney is the proper resort, still it should be on consultation by the Collector, & not by the party interested. Affectionate salutations.
NHi: Papers of Albert Gallatin.