Monticello Sep. 10. 08.
According to the request of mr. Gallatin’s letter herewith inclosed, I have considered the petitions of Grove, Himely, Everingham & Ogier & Turner, referred to me by him, and forward you the decisions for your government. they are addressed to yourself directly to avoid unnecessary delay to the parties by passing them through him as, regularly, they should have been.
Grove’s case. Altho’ the circular of the 1st. of July limited no precise day for the departure of vessels under Permits, yet in all such cases, a reasonable time only is to be understood, such as, using due diligence will suffice for the object. such regulations can never be deemed but as temporary, & especially in times when the political circumstances governing them are liable to daily change. the time between the reciept at Charleston of the Circulars of July 1 and Aug. 1 was from the 19th. or 20th. of July to the 16th. of Aug. 27. days, and within this time, mr Grove states explicitly that he had prepared and cleared out the ship Pierce Manning for the Havanna, and that she would have sailed before the 16th. of Aug. but for adverse winds. considering therefore that the limitation of departure to the 15th. of Aug. was not known at Charleston till the 16th. so that not a moment’s warning was given of it there, I think that, satisfactory proof being exhibited to the Collector, that she was ready for sailing or even very nearly ready on the 16th. of Aug. she may now be permitted to depart; on condition that she does depart within such time as the state of her preparation, somewhat of course relaxed during the suspension, may in the judgment of the Collector, render necessary. the reasons for originally limiting a day, increased by time, require the exaction of this condition.
Himeley’s case. this petition has no date: but it imports to have been written on the day of the reciept of the Circular of Aug. 1. at Charleston, & consequently on the 16th. of Aug. it affirms that the brig Three brothers, for Matanzas, then had on board the crew & necessary provisions, and assigns a probable reason why she could not have been ready sooner. for the reasons, & on the conditions stated in Grove’s case (that is to say, on proof of the facts to the Collector, & her prompt departure) she ought to have a permit.
Everingham’s case. I put entirely out of sight as having no bearing on this case, every thing which passed prior to the reciept of the Circular of July 1. and consider the case as beginning de novo then, & under that circular. the Petitioner declares expressly that on the publication of that circular (July 20.) he used every exertion to prepare the ship Diana for a voyage to the Havanna, & had just prepared her therefor, when the Circular of Aug. 1. was recieved. the expression just prepared is not absolutely definite. it may respect time or degree. it implies however that she was very nearly, if not quite, prepared. and if the Collector recieves satisfactory proof that he was nearly prepared, altho’ she might not be in absolute readiness at the first moment of recieving the warning, I am of opinion she should have a Permit, for the reasons, & on the conditions, stated in Grove’s case.
The case of the Schooner James is very different. the Petitioner only states that he had applied to the Collector, & obtained leave prior to Aug. 1. had began to use exertions &c and had ordered her to be careened & graved &c. when the Circular of Aug. 1. arrived, to wit, Aug. 16, 27 days had therefore intervened, & nothing more than an order given to careen. in the other cases we have seen that the 27. days were sufficient to be in a state of actual readiness, even where a part of the loading was to be sent for from another state. no permit therefore can be granted in this case.
Ogier & Turner’s case. the Petitioners state that Ogier had had time, after the reciept of the Circular of July 1. to prepare & dispatch one vessel: but that they were only preparing other vessels. when the second Circular was recieved, to wit Aug. 16. whereupon the Collector refused to let them dispatch the vessels which they had been preparing as aforesaid. a due diligence then having enabled them to dispatch one vessel in the 27. days, a like diligence, had it been used, might have dispatched others. but from the tenor of their petition the preparations of the others seem to have been merely incipient, & not near completion. they have consequently lost the claims on that Equity which extends relief against rigorous rules, where due exertions have been used to fulfill them, & have been defeated only by accidental & unavoidable want of notice. they are not entitled to Permits in this case.
DLC: Papers of Thomas Jefferson.