Monticello July 29. 08.
I inclose you a letter of information of what is passing on the Canada line. to prevent it is I suppose beyond our means; but we must try to harrass the unprincipled agents and punish as many as we can.
I transmit also the petition of Tyson & James, millers of Baltimore for permission to send a load of flour to N. Orleans, to direct in it what is regular, for I do not see any circumstance in the case sufficiently peculiar to take it out of the rule. if their views are honest, as I suppose them to be, it would be a great relief to them to be permitted, by giving bond for an increased valuation, to send their flour to it’s destination, and equal relief to us from these tormenting applications. yet, as the other gentlemen seemed not satisfied that it would be legal, I would not have it done on my own opinion alone, however firmly I am persuaded of it’s legality. could you not, in the way of conversation with some of the sound lawyers of N.Y. find what would be their primâ facie opinion, and if encouraged by that we may take the opinion of the Atty Genl. and others. the questions to be solved are 1. to what place should the valuation refer? & 2. would too high a valuation render the bond null in law. on the first I observe that the law sais that bond shall be given in double the value Etc without saying whether it’s value here, or at the place of sale is meant: that generally speaking it’s value here would be understood; but that whenever the words of a law will bear two meanings, one of which will give effect to the law, & the other will defeat it the former must be supposed to have been intended by the legislature, because they could not intend that meaning which would defeat their intention in passing the law; and in a statute, as in a Will, the intention of the party is to be sought after. On the 2d. point we would ask who is to value the cargo on which the bond is to be taken? certainly the Collector, either by himself or his agents. when the bond is put in suit it must be recovered. neither judge nor jury can go into the question of the value of the cargo. if any body could it would be the Chancellor, but his maxim is never to lend his power in support of fraud or wrong. the Common law could only give a remedy on an action for damages, as for instance, if a Collector, by requiring too large security prevents a party from clearing out, damages might be recovered. but in the case in question the consent of the party would take away the error, and besides as the voyage takes place, no damages for preventing it can be recovered. these are general considerations to be brought into view on such a conversation, which indeed would occur to every lawyer who turned his mind to the subject at all. it would be a most important construction for the relief of the honest merchant, to whom the amount of bond is unimportant, and to us also in the execution of the law; and I think it’s legality far more defensible than that of limiting the provisions to one eighth of the cargo. my situation in the country gives me no opportunity of consulting lawyers of the first order. should such occur however I will avail myself of them.
I salute you affectionately
NHi: Papers of Albert Gallatin.