Washington July 18. 08.
Your favor of May 28. has been duly recieved, and in it the proceedings of the court on the Mandamus to the Collector of Charleston. I saw them with great concern because of the quarter from whence they came and where they could not be ascribed to any political waywardness.
The legislature having found, after repeated trials, that no general rules could be formed which fraud & avarice would not elude, concluded to leave, in those who were to execute the law, a discretionary power paramount to all their general rules. this discretion was of necessity lodged with the Collector in the first instance, but referred finally to the President, lest there should be as many measures of law or discretion for our citizens as there were collectors of districts. in order that the first decisions by the Collectors might also be as uniform as possible, and that the inconveniences of temporary detention might be imposed by general & equal rules throughout the states, we thought it advisable to draw some outlines for the government of the discretion of the Collectors, & to bring them all to one tally. with this view they were advised to consider all shipments of flour primâ facie as suspicious. because if pretended to be for a state which made enough within itself, it could not, in these times, but be suspicious. and, if for a state which needed importations, we had provided, by the aid of the governors of those states a criterion for that case. but your Collector seems to have decided for himself that, instead of a general rule applicable equally to all, the personal character of the Skipper was a better criterion, and his own individual opinion too of that character. you will see at once to what this would have led in the hands of an hundred collectors. of all sorts of characters, connections & principles, & what grounds would have been given for the malevolent charges of favoritism with which the federal papers have reproached even the trust we reposed in the first & highest magistrates of particular states. it has been usual in another department, after the decision of any point by the superior tribunal is known, for the inferior one to conform to that decision. the declaration of mr Theus, that he did not consider the case as suspicious, founded on his individual opinion of the Skipper, broke down that barrier which we had endeavored to erect against favoritism, and furnished the grounds for the subsequent proceedings. the Attorney for the US. seems to have considered the acquiescence of the Collector as dispensing with any particular attentions to the case, and the judge to have taken it as a case agreed between plaintiff & defendant, & brought to him only formally to be placed on his records. but this question has too many important bearings on the constitutional organisation of our government, to let it go off so carelessly. I send you the Attorney General’s opinion on it, formed on great consideration & consultation. it is communicated to the Collectors & Marshals for their future government. I hope however the business will stop here, and that no similar case will occur. a like attempt has been made in another state, which I believe failed in the outset.
I have seen with great satisfaction the circumspection & moderation with which you have been so good as to act under my letter of May. 6. I owe the same approbation to some other of the governors, but not to every one. our good citizens having submitted to such sacrifices under the present experiment, I am determined to exert every power the law has vested in me for it’s rigorous fulfilment, that we may know the full value and effect of this measure on any future occasion on which a resort to it might be contemplated.
The Osage did not bring a tittle of any thing interesting. the absence of the emperor from Paris makes that a scene of no business, & I do not think we are to consider the course of the British government as finally decided, until the nation, as well as the ministry, are possessed of the communications to Congress of Mar. 22. and our act hanging the duration of the embargo laws on that of the orders of council. the newspapers say mr Rose is coming over again. mr Pinckney did not know this at the departure of the Osage. yet it may be so. it is well calculated to throw dust in the eyes of the nation, & to silence all attempts of the opposition to force a change of their measures. in this view it is a masterly stroke. the truth is that their debt is become such as the nation can no longer pay it’s interest. their omnipotence at sea has bloated their imaginations so as to persuade them they can oblige all nations to carry all their produce to their island as an entrepot, to pay them a tax on it, and recieve their license to carry it to it’s ultimate market. it is indeed a desperate throw, in the language of Canning, and who knows, sais he, what the dice may turn up? I answer, we know.
Since writing so far, I recieve your favor of June 30. covering resolutions of your legislature. they are truly worthy of them, and never could declarations be better timed for dissipating the delusions in which the British government are nourished by the federal papers & prevented from that return to justice which alone can continue our peace.
Wishing you every blessing of health & life I salute you with assurances of great esteem & respect.
DLC: Papers of Thomas Jefferson.