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GALLATIN TO JEFFERSON. NAMES OF PERSONS FOR ATTORNEY GENERAL. - Albert Gallatin, The Writings of Albert Gallatin, vol. 1 [1879]

Edition used:

The Writings of Albert Gallatin, ed. Henry Adams (Philadelphia: J.B. Lippincott, 1879). 3 vols.

Part of: The Writings of Albert Gallatin, 3 vols.

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GALLATIN TO JEFFERSON.

NAMES OF PERSONS FOR ATTORNEY GENERAL.

Russell, of Rhode Island; unknown.

Brockholst Livingston, of New York; would not accept.

M. Dickerson, of Philadelphia; not equal.

Rodney, M. C., of Delaware; not equal.

Gabriel Duval, of Maryland. Quere, whether he would not accept; in which case Joseph Clay might be made Comptroller.

Walter Jones, of Columbia, Virginia.

J. T. Mason, of Virginia; the best, if he will accept.

Breckenridge, of Kentucky; very good, if he will accept.

I am so little acquainted with the characters, &c., of professional gentlemen who have not been in public life, that it is not practicable for me to make a good list. I will, however, make some further inquiries, principally to know whether there are any Republicans prominent characters in Pennsylvania.

Respectfully, your obedient servant.

GALLATIN TO S. L. MITCHELL, U. S. Sen.

Private.

Treasury Department, 3d January, 1805.

Dear Sir,—

I was favored with your letter of the 28th ult., and have been prevented from making an earlier answer by a multiplicity of other avocations. Even now I cannot take as comprehensive a view of a subject which does not come within the sphere of my official duties as I would wish, and you must be satisfied with a few general remarks.

A species of trade may be considered as illicit, either in relation to the laws of the nation of which the traders are citizens or subjects, or in relation to the general law of nations, or to the municipal laws of the nation into whose territories the trade is carried. Let, for the present and in order to avoid confusion of ideas, the definition of illicit trade be confined to that species of commerce which, though not prohibited by the laws of the country to which the traders belong, is contrary either to the acknowledged law of nations or to the regulations of the country with whom the trade is carried.

An illicit trade, if contrary to the law of nations, as in the case of contraband articles, attempt to enter a blockaded port, &c., renders the party liable to capture and condemnation. If contrary to the municipal laws of the country with which carried, whether because absolutely prohibited, as in case of infractions of the colonial commercial system of Spain and other nations, or because done in a manner contrary to the regulations on that subject, as in case of common smuggling or other infractions of the revenue or navigation laws of the country, the party is in same manner liable to capture and condemnation, and, in addition thereto, to such penalties, or even personal punishment, as the laws of the country have provided. In either case, the armed public, revenue, or other authorized vessels of the belligerent power, or of the country whose laws are violated, have a right to capture the offending party; and in either case the courts of the captors are the proper tribunal to try the offence. In either case, also, resistance to an armed vessel duly commissioned and authorized is illegal, becomes by itself a sufficient cause of condemnation, and renders the party liable to distinct punishment. In common cases of illicit trade, of whatever nature that trade may be, the individuals who carry it are responsible for their conduct, and punishable by the aggrieved nation without having a right to call on their own country for protection; but the country to which they belong is not generally bound to pass restrictive laws prohibiting such trade. Neutral nations, though they consider it sometimes to be good policy to do it, are not obliged to enforce the law of nations by positive statutes against their own subjects or citizens; they are not bound, for instance, to prohibit the exportation of even arms or gunpowder, though avowedly exported to the country of either of the belligerent powers. Nor are nations bound to pass laws prohibiting to their subjects or citizens commerce, such as that with the colonies of another nation, which is illicit only by reason of the particular statutes of other nations. But, although this be a good rule in common cases, it will be allowed that there are circumstances under which the conduct of illicit traders might go such length, especially if they shall use force, as would render it necessary for the purpose of preserving national peace that the country to which they belong should, by prohibitory or restrictive statutes, prevent the acts of violence which endanger that peace.

Two questions will, therefore, arise in relation to the San Domingo trade, which is the avowed object of the bill under consideration: 1st, is it illicit? 2d, if illicit, ought the United States, under present circumstances, interfere by restrictive statutes? If those two questions shall be answered in the affirmative, the modifications of which the bill may be susceptible will be a subject of subsequent consideration.

To the first question there can be no hesitation in answering: 1st, that the trade to San Domingo is in itself illicit in toto; 2dly, that it is carried in a manner contrary to the law of nations.

The chambers of commerce, merchants, &c., have indeed acknowledged that so far as that trade might consist of contraband articles it was illicit, and they have affected to consider that question as if the blacks of San Domingo were one of the belligerent powers and France another. But this is not the true state of the question. San Domingo is a French colony, recognized as such by the United States and by every European nation, a colony in a state of rebellion against the mother-country; and the question is whether any nation has a right to carry on commerce with a port, province, or colony in a state of rebellion against that country of which it has heretofore been acknowledged as a part. On that point there does not and there never has existed any doubt. Such trade is, by the common consent of all nations, as well as in conformity with the rules of common justice and common sense, altogether illegal, and will render parties concerned therein liable to capture, condemnation, and such other punishment as the aggrieved nation shall think proper by law to provide. It is clear that in such cases other nations must either continue to acknowledge the supremacy of the nation over its rebellious province or colony, and therefore submit to its laws and regulations respecting the commerce with such province or colony, or acknowledge, at the risk or rather with the certainty of a war, the independence of the rebellious province or colony. During the whole of the Revolutionary American war, England took and condemned every neutral vessel bound to the United States which their vessels met with: there was not on that ground the least objection, not even at the time when the armed neutrality took place; and even France, though she afterwards acknowledged the independence of America, and thereby became a party in the war, did not only, so long as she intended to remain at peace, abstain from asserting the doctrine which she afterwards attempted to uphold on that subject in her declaratory memorial, but went so far as ostensibly to give orders, on the British minister’s complaint, for the detention of such vessels laden with military supplies as were bound for the United States. It is also well known that England made war on Holland because she did not disavow the conduct of Amsterdam in making a conditional treaty of commerce with America; and that the armed neutrality, of which Holland was a member, refused to interfere in her favor, because the powers of which it was composed, anxious as they then were for the freedom of commerce and the doctrine of mare liberum, considered the conduct of Holland as a breach of neutrality, and, in common with all other nations, felt that the principle she had assumed was dangerous to the safety of every government. In that respect the justice or injustice of the nation to its rebellious province or colony is altogether out of the question as it relates to other nations. Of that they have no right to judge unless they think proper to become parties in the civil quarrel; and all they have to do is to wait for the event. Nor is the distinction of government de facto (as different from that de jure) applicable to this case. It is perfectly true that when a revolution takes place which affects a whole country, other nations are bound to consider as the legitimate authority the powers who have the actual possession of government; but they are equally bound to consider every part of the country as under the authority of those who are in possession of the government of the country generally. That doubtful cases might arise, as if the Bourbon family occupied one half of France and Bonaparte the other half, is true; and the prudence of other governments must dictate their conduct in such delicate circumstances; but the instance of San Domingo is no such one: it is a plain one, on which there can be but one opinion. Suppose New Orleans to be in the situation in which San Domingo now is, and let any one answer the question; or even substitute Ireland to San Domingo and England to France, and let Mr. Murray and the New York Chamber of Commerce decide.

But the commerce to San Domingo is not only illicit, but it is carried on in a manner contrary to the law of nations. It has become a trade forced by arms against the public or private armed vessels of France, who, under the law of nations, whether France be considered as a belligerent power, or in the act of preventing her rebellious subjects from receiving any kind of supplies, have an undoubted right to search, capture, and send for adjudication any neutral vessel which they have reason to consider as concerned in such trade. That resistance to such vessels is illegal will not be denied; and it will not be a justification for those illegal acts that resistance may legally be made against other vessels who are not duly commissioned and authorized.

It is for this last reason, it is because the trade to San Domingo, illicit in itself, is carried on, in the most open manner, by force of arms contrary to the law of nations; it is because fleets of armed vessels, insured as if engaged in the most legal trade, openly sail from our ports with the avowed design of forcing their way to San Domingo and of resisting commissioned as well as unauthorized French armed vessels, that the question has acquired national importance, and that legislative interference becomes necessary in order to preserve the peace of the nation which the avidity of a few individuals has already endangered. So long as force was not used, or so long as it was used so rarely as not to create alarm, the United States were not bound to forbid an illicit trade or to provide in a special manner against occasional acts of violence. It is the magnitude of the evil which calls for a remedy.

Three different modes might have been adopted in that respect,—to prohibit the trade altogether; to prohibit arming altogether, or, which is the object of the bill, to restrain only those unlawful acts of violence which had given just cause of complaint to the French government. It will not be denied that the last mode is the mildest, and that which lays the least possible restraint on American commerce.

Here let it be observed that from the year 1793, when the war between Great Britain and France took place, to the year 1798, when government resolved to repel the French aggressions by force, arming private vessels was, with the exception of those bound to the East Indies or Mediterranean, absolutely forbidden by a mere Executive act; and that when the President, in 1798, withdrew the prohibition, Congress immediately took up the subject, and, in the same law in which they authorized private vessels to resist in every case armed French vessels, provided against the unlawful use of force as it related to nations in amity with the United States. That Act, passed the 25th of June, 1798, and which would have expired on the 14th of May, 1800, was continued in force by Act of 22d of April, 1800. It expired by its own limitation on the 3d of May, 1802, at which time, Europe being at peace, the subject was unattended to. Subsequent to the renewal of the European war, the President did not think proper to assume the authority which had been exercised by his predecessors, to permit or forbid, at his pleasure, the arming of vessels; and Congress having neglected, during last session, to renew or modify the provisions of the former Act, the effect of an unrestrained permission to arm has been immediately felt. From that view of facts it results that, except since the renewal of the European war, American merchants had been uniformly either prohibited altogether to arm, or placed under restrictions in some degree similar to those proposed by the bill now under consideration, and that they have abused the permission to arm as soon as it was unrestrained and it became their interest to do it.

The principal features of the present bill are, 1st, that the owners shall give bond in a sum equal to double the value of the vessel, arms, &c., conditioned that no unlawful use of the arms of such vessel (generally) shall be made against nations in amity with the United States; 2dly, that the individuals who may make such unlawful use of arms shall be punished for such acts as if committed within the exclusive jurisdiction of the United States.

I cannot perceive that any well-founded objections can be made against either of those two principles. The forfeiture of the bond, as well as the punishment of the individuals, rests altogether on the unlawfulness of the act. As it is lawful to resist, in self-defence, any pirate or non-commissioned or otherwise unauthorized armed vessel, the penalties of the Act cannot attach to any of the cases in which the necessity of using arms has been alleged. It is evident that persons objecting to the principles of the bill must avow an intention to do what they know to be unlawful acts; that they intend, in fact, to resist authorized armed French vessels, and to force at all events an acknowledged illicit trade. Supposing some of the positions which I have assumed respecting the law of nations and an illicit trade to be erroneous, the error will not affect the argument in favor of the principles of the bill; for it is only what is unlawful which is forbidden, and it is left with the courts and juries to decide whether the acts which shall have been committed are lawful or unlawful. By recurring to the memorial of the Chamber of Commerce of New York it will be perceived that the principal act which they omit in their own enumeration of unlawful acts by a neutral, is resistance to the armed vessel of a belligerent which is not a public vessel; they acknowledge resistance to a public armed vessel to be unlawful; by the omission they imply that resistance to a duly commissioned privateer is lawful. I need not say that the distinction is unfounded, and has never been acknowledged, except by special conventions, and only in the case of convoys.

If the principles of the bill are correct, the details alone remain to be examined; and it is principally necessary that they should be such as with certainty to carry the principles into effect. On that subject I have but few observations to make.

In the first section, I think that it would be an improvement if the owners were obliged to give bond in a fixed sum, say ten or twenty thousand dollars, in addition to double the value of the vessel, arms, &c. This would not be liable to the objection which induced the House to strike out the word “cargo,” viz., that in the East India trade the bond would be for an enormous sum; and it would give security in those cases where the vessel itself may be worth but a trifle compared with the value and expected profits of the voyage.

In the same section, it seems to me that there is no reason why the last condition expressed in the 3d Section of the Act of the 25th June, 1798, should not be inserted. The Act is made so mild that the only danger to be apprehended is that its provisions will be inefficient and its intention defeated. The proposed proviso would enable the President to add such restrictions as experience might show to be necessary; and it is not liable to the well-founded objections made against the section rejected by the House, which authorized the President to prevent altogether the sailing of armed vessels under certain circumstances.

The second section is obscure, and, I think, misprinted. Mr. Madison proposes, as a substitute, a much shorter one, which I enclose.

In the third section, the provision which subjects the value of the vessel to forfeiture should be more explicit, by declaring that such value shall be recovered from either the owners or master of the vessel. Penal statutes are construed strictly; in every suit the bias is against the United States; and the penalty might be evaded if the persons from whom it must be recovered, when the vessel cannot be seized, are not described.

I will trouble you no longer, and you must excuse this long, unconnected letter, but I have not time to write either a better or a shorter one.

Believe me to be, with great regard and respect, your very obedient servant.