Gautham Rao Assistant Professor of History, American University nyu legal History Colloquium 10/2014

63 Benjamin Lincoln to John Steele, May 3, 1796, Benjamin Lincoln Letterbook, Reel 9. France routinely seized vessels that sailed without the rôle d’equipage. See, for example, Affidavit of William Hodgson, March 6, 1798, Folder 2, French Spoliation Records-Alexandria, RG36, Archives 1; Charles Cotesworth Pinckney to Henry William DeSaussure, November 4, 1797, reprinted in John LaFayette Brittain and Charles Cotesworth Pinckney, “Two Recently Discovered Letters of Charles Cotesworth Pinckney: Another Glimpse into the Mind of an Eighteenth-Century Man of Affairs,” South Carolina Historical Magazine, vol. 76, no. 1 (Jan., 1975), 18-19. On the role, see William Stinchcombe, “Talleyrand and the American Negotiations of 1797-1798,” Journal of American History, vol. 62, no. 3 (Dec., 1975), 581; Gardner Weld Allen, Our Naval War with France (New York: Archon Books, 1967), 32-33.

64 Alexander J. Dallas, ed., The Opinion of Judge Cooper, on the Effect of a Sentence of a Foreign Court of Admiralty (Philadelphia: P. Byrne, 1810), xi, x-xi. Certificate of the New York Insurance Company [Ship Ohio], May 26, 1798. Memorandum of Imperfect Certificates for Merchandise Exported from the District of the City of New York, with their Remarks, n.d. [1798 or 1799]. Marginalia on Protest of Abraham S. Hallett [Ship Favourite], September 16, 1801, Folder Protests of Masters (F-O), French Spoliation Records-New York. John Steele to Joshua Sands, May 28, 1799, Folder Protests of Masters (P-W), French Spoliation Records-New York.

65 The joint resolution of Congress of March 26, 1794, created an embargo for thirty days. Two subsequent resolutions extended the embargo. See, Resolutions of March 26, 1794, April 2, 1794, and April 18, 1794, 1 Statutes at Large 400-401. Sharp, American Politics in the Early Republic, 115.

66 Alexander Hamilton, Circular to Collectors of Customs, March 26, 1794, Reel 2, Treasury Circulars. Cabinet Meeting. Opinion on the Best Mode of Executing the Embargo, March 26, 1794, PAH 16:198.

67 Otho Holland Williams to Alexander Hamilton, June 5, 1794, PAH 16: 462. William Ellery to Alexander Hamilton, April 14, 1794, PAH 16:256. Interestingly, one of the merchants accused of violating the embargo was none other than Welcome Arnold—Providence Collector of Custom’s main antagonist. A more general indictment of American merchants is found in Alexander Hamilton to George Washington, May 1, 1794, PAH 16:366-7.

68 New-York Gazette, March 29, 1794, 3. The report of this incident in the Philadelphia Gazette notes that “the time being too short to call out a detachment from the militia, a number of our patriotic fellow-citizens, of different regiments, stepped into the custom-house boat, under the command of an officer. Philadelphia Gazette and Universal Daily Advertiser, March 31, 1794, 3. The dateline on the Bristol incident was April 5, 1794, Spooner’s Vermont Journal, April 28, 1794. General Advertiser, May 6, 1794, 3.

69 Philadelphia Gazette, May 8, 1794, 3. Salem Gazette, May 13, 1794, 3. Connecticut Gazette, May 15, 1794, 3. Massachusetts Mercury, May 20, 1794, 3.

70 Gould, “Zones of Law,” 475. Jack Coggins, Ships and Seamen of the American Revolution (1969; New York: Dover, 2002), 74. See also, Sidney G. Morse, “The Yankee Privateersmen of 1776,” New England Quarterly, vol. 17, no. 1 (Mar., 1944), 71-86. Impost officials in Annapolis, Maryland, recorded the armaments of nineteen outbound vessels between February, 1780, and January, 1781. See, List of All Vessels Cleared Outward at this Port of Annapolis Between the first day of February 1780 and the fifth day of January 1781..., Letters Received by the Collector (Annapolis), RG 36, Entry 1219A, NARA-Philadelphia.

71 The sharp decline in the number of armed vessels in Baltimore between 1780 and 1786 is seen in Port of Baltimore, Records of Arrivals and Clearances, 1780-1939, Vol. 8 RG 36 #1149, NARA-Phila. Newspaper advertisements suggest that ship owners, states, and even Congress tried to sell their naval armaments between after the war. See, Independent Chronicle, January 3, 1782, 2; Pennsylvania Packet, May 2, 1782, 1; North-American Intelligencer, August 25, 1784, 2; American Mercury, September 13, 1784, 4.

72 Garitee, Republic’s Private Navy, 118. An extremely detailed account of the process of arming vessels is, Brian Lavery, The Arming and Fitting of English Ships of War, 1600-1815 (London: Conway Maritime Press, 1987), 126-134. An instance of supply by public vendue is Baltimore Daily Intelligencer, December 21, 1793, 4. After Congress authorized the construction of naval vessels in 1794, Hamilton assigned Commissioner of the Revenue Tench Coxe to locate foundries capable of producing several hundred cannons and carriages. This correspondence gives a basic sense of the foundries to which American merchants might also have turned to procure naval armaments. Henry Knox to Alexander Hamilton, April 21, 1794, PAH 16:304-6; Tench Coxe to Alexander Hamilton, June 27, 1794, PAH 16:533; Coxe to Hamilton, June 30, 1794, PAH 16:540. See also, Coxe’s advertisement on behalf of the Treasury, Baltimore Daily Intelligencer, April 23, 1794, 3. On Coxe’s misery in tending to this purview, see Cooke, Tench Coxe and the Early Republic, 239-259.

73 Edward Preble, quoted in Christopher McKee, Edward Preble: A Naval Biography, 1761-1807 (1972; Annapolis, MD: United States Naval Institute, 1972), 46. Ibid., 48. Thomas Bee’s opinion in British Consul v. Ship Mermaid (1795), Reports of Cases…, 71.

74 Benjamin Moodie to Phineas Bond, December 17, 1794, reprinted in DHSCUS 7:77. Thomas Bee’s opinion in British Consul v. Ship Mermaid (1795), Reports of Cases…, 71. McKee, 48. Oliver Wolcott, Jr., to Sharp Delany, November 16, 1795, Reel 8, Wolcott Papers.

75 Wolcott to Delany, November 16, 1795. 1 Stat. 381, 383 (1794).

76 Wolcott to Delany, November 16, 1795. Oliver Wolcott, Jr., to William Heth, November 24, 1797, Wolcott Papers [emphasis in original].

77 Justice James Iredell’s Notes of Arguments, Moodie v. Ship Mermaid, DHSCUS 7:94.

78 Oliver Wolcott, Jr., Circular to Collectors of Customs, April 8, 1797, ASP-C&N 1:811. Wolcott’s division between East Indian commerce, subject to piracy, and West Indian and European commerce, subject to the rule of law, suggests a cultural legitimation of violence against North Africans and Arabs, and a countervailing cultural reluctance against violence toward Europeans. See, Robert J. Allison, Crescent Obscured: The Legacy of the Barbary Wars (Chicago: University of Chicago Press, 1997). Dael A. Norwood makes a more nuanced claim that the East India trade was a lens through which Americans sought to understand a large gamut of political events and ideologies until the Civil War. Dael A. Norwood, “Trading in Liberty: The Politics of the American China Trade, c. 1784-1862,” Ph.D. Dissertation, Princeton University, 2012.

79 Alexander Hamilton to Oliver Wolcott, Jr., April 13, 1797, Reel 1, Wolcott Papers. Frederick C. Leiner, Millions for Defense: The Subscription Warships of 1798 (Annapolis: Naval Institute Press, 2000), 20, 122, 125, 141, 149; Benjamin Stoddard to James Sheafe, July 16, 1798, quoted in ibid., 30.

80 Gazette of the United States, January 1, 1798 3. Massachusetts Mercury, April 10, 1798, 2.

81 Harrison Gray Otis to William Heath, March 30, 1798, reprinted in the Massachusetts Spy: Or, the Worcester Gazette, April 25, 1798, 1. Adams’ transmitted the instructions lifting the ban on “vessels of the United States from sailing in an armed condition” through a Treasury Department circular to Collector of Customs. See, Wolcott, Circular to Collectors of Customs, March 21, 1798, in ASP-C&N 1:811.

82 1 Statutes at Large 572, 573 (1798). Between July, 1798, and December, 1800, the New York Customhouse issued an average of six Letters of Marque per month, with the highest traffic occurring in January, 1799 (22). Merchant Thomas Buchanan, described by historian Joseph Scoville as a “king among merchants” in New York, received the most Letters of Marque with five. Bonds for Letters of Marque, 1789-1801, RG 56, #948, Archives I. Scoville, Old Merchants of New York City (New York: Carleton, 1864), 45.

83 On the state of maritime “war quo ad hoc” that made possible privateering program, see Bas v. Tingy, 4 U.S. (4 Dall.) 37, 45-6 (August 15, 1800). On the privateering program, see J. Gregory Sidak, “The Quasi War Cases—And their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War Powers,” Harvard Journal of Law and Policy, vol. 28 (2004-2005), 484-5.

84 1 Stat 565 (1798).

85 Wolcott to Richard Harrison, June 21, 1799, reprinted in DHSCUS 8:327 [emphasis in original].

86 Wolcott to Samuel Smith, January 23, 1800, Reel 3, Wolcott Papers.

87 Wolcott, Report to the President of U.S., July 13, 1800. Reel 3. Extract of a Letter from a merchant in Boston, February 4, 1798, to Nicholas Gilman in Philadelphia, Wolcott Papers, reel 2. Wolcott was also increasingly concerned that his officeholders could no longer be entrusted with public monies. One Treasury investigation revealed that the Collector of Wilmington, North Carolina, had been smuggling massive amounts of goods from French privateers. The Collector of New York, John Lamb, was found to owe large amounts of money to the Federal government. In Alexandria, an elderly customs official had placed his trust in a young deputy who had embezzled government funds. On the events in Wilmington, see Oliver Wolcott, Jr., Report of March 10, 1798, Reel 11, Wolcott Papers; Wolcott to Jedediah Huntington, November 22, 1798, Reel 11. On the travails of John Lamb, see Wolcott to Lamb, February 17, 1797, Reel 11. The events in Alexandria are summarized in Wolcott, Report of July 24, 1799, Reel 11.

88 There is an extensive literature on the concept of empire in Jeffersonian America. The best introduction to this literature is Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press, 2000); Peter S. Onuf and Peter Thompson, ed., State and Citizen: British America and the Early United States (Charlottesville: University of Virginia Press, 2013); James E. Lewis, American Union and the Problem of Neighborhood: the United States and the Collapse of the Spanish Empire, 1783-1829 (Chapel Hill: University of North Carolina press, 1998). Johann M. Neem aptly distinguishes the Jeffersonian vision of the public sphere from its reality: “even if the state aided civil society in myriad ways, it still would be wrong to conclude that America’s post-revolutionary state governments supported the development of an independent civil society.” “Political leaders,” continues Neem, thinking explicitly of Jefferson, “were actively hostile to it” because the constitutive elements of the public sphere, such as “private associations and corporations,” rivaled rather than augmented the sphere of government. Johann M. Neem, Creating a Nation of Joiners: Democracy and Civil Society in Early National Massachusetts (Cambridge: Harvard University Press, 2008), 4-5.

89 Johann M. Neem, “Developing Freedom: Thomas Jefferson, the State, and Human Capability,” Studies in American Political Development, vol. 27, no. 1 (April, 2013), 3, 8.

90 For a thorough study of the Republican ambivalence about imposts and customs duties, see McCoy, “The Virginia Port Bill of 1784.” See also, McCoy, Elusive Republic, 144-147; Crowley, Privileges of Independence, 110-155; Nelson, Liberty and Property, 66-79.

91 Prince, Federalists and the Origins of the U.S. Civil Service, 15, 275 table 1.

92 Thomas Jefferson, Memorandum on Customs Collectors, May, 1793, Thomas Jefferson Papers, Series 1, General Correspondence, LOC [emphasis added]. Prince, 9-10. On the discourse of “collection” in relation to this episode, see Freeman, Affairs of Honor, 98-99.

93 It was internal taxation, rather than import duties, that really stoked the fires of Republican criticism. Charlotte Crain, “Pennington v. Coxe: A Glimpse at the Federal Government at the End of the Federalist Era,” University of Virginia Tax Review, vol. 23 (2003-2004), 417-434. Thomas P. Slaughter, “The Tax Man Cometh: Ideological Opposition to Internal Taxes, 1760-1790,” WMQ, vol. 41, no. 4 (Oct., 1984), 566-91.

94 Albert Gallatin, A Sketch of the Finances of the United States (New York: William A. Davis, 1796), 23. Tench Coxe to Thomas Jefferson, January 10, 1801, PATJ 33:425. The Aurora reprinted in the Philadelphia Gazette, February 6, 1801, 3. Enrolling and Licensing Vessels in the Coasting Trade and Fisheries, 1 Statutes-at-Large 305 (1793).

95 In his 1796 rebuttal to Hamilton’s political-economic reports and the Federalists system writ large, Albert Gallatin conceded both that revenue collection had been effectual, and that “the whole amount of fines and forfeitures” for violations of the revenue laws had been comparatively small. Albert Gallatin, Sketch, 24.

96 Marcus, ed., DCHSCUS, 8:391-5. Priestman v. United States, 4 U.S. 28 (1800). Gallatin to Jefferson, June 9, 1801, PATJ 34:279. Jefferson lodged a similar inquiry in the case of the prize vessel Betsy Cathcart. See, Jefferson to Levi Lincoln, June 12, 1801; and Lincoln, Opinion on the Betsy Cathcart, July 3, 1801, PATJ:34, 320-1, 497-503.

97 Jefferson to Gideon Granger, August 13, 1800, PATJ 32:96; see also Jefferson to Caesar A. Rodney, December 21, 1800, PATJ 33:336-7. Onuf, Jefferson’s Empire, 100. For a lengthy exposition of this republican governing philosophy, see Appleby, Capitalism and a New Social Order. In private, however, at least one leading Jefferson ally betrayed a desire to use the customhouse for much the same partisan purposes as had the Federalists. As Charles Pinckney wrote to James Madison, “…as soon as We can get the Collectors Place & the very great influence of the Custom house in the hands of a decided & able republica We shall in future be able to make…Charleston one of the strongholds of republicanism [sic].” Charles Pinckney to James Madison, May 26, 1801, in The Papers of James Madison, Secretary of State Series, ed. Robert J. Brugger et al. (Charlottesville: University Press of Virginia, 1986), 1:230.

98 Carl E. Prince, “The Passing of the Aristocracy: Jefferson’s Removal of the Federalists, 1801-1805,” Journal of American History, vol. 57, no. 3 (Dec., 1970), 570. Carl Russell Fish, The Civil Service and the Patronage (Cambridge: Harvard University Press, 1904), 33. Remonstrance of the New Haven Merchants, June 18, 1801, PATJ 34: 381-3. Thomas Jefferson to the New Haven merchants, July 12, 1801, PATJ 34:554-6.

99 Aaron Burr to Albert Gallatin, April 24, 1801, Mary-Jo Kline, Political Correspondence and Public Papers of Aaron Burr (Princeton: Princeton University Press, 1983), 1:570. Jefferson, Notes on New York Patronage, n.d. [after February 17, 1801], PATJ 34:11. Mary-Jo Kline, Political Correspondence and Public Papers of Aaron Burr (Princeton: Princeton University Press, 1983), 1:534-8. For Gelston’s mercantile background, see Gelston & Saltonstall Letter Book, 1791 May-1793 May, NYHS.

100 David Waldstreicher and Stephen R. Grossbart, "Abraham Bishop's Vocation: or, the Mediation of Jeffersonian Politics," Journal of the Early Republic, vol. 18, no. 4 (Winter, 1998), 617-657.

101 Finding Aid, Nathan B. Haswell Papers, University of Vermont. Apparently, Haswell had conveniently blended public office and private enterprise. His firm, Pease & Haswell hosted auctions for goods seized by the customhouse and condemned by the District Court at Burlington. H.N. Muller, “Smuggling into Canada: How the Champlain Valley Defied Jefferson’s Embargo,” Vermont History, vol. 38, no. 1 (Winter, 1970), 15.

102 Douglas Bradburn argues that the Republicans were actually unable to deconstruct the Federalist state because the Federalists “had already dismantled some of the more objectionable elements of their design before they lost all power,” and because “Federalists in the government continued” to pursue their old agenda at the expense of Jefferson’s. Citizenship Revolution, 276-77.

103 The Jeffersonians’ overblown fears of Federalist as “monarchists and aristocrats bent upon destroying America’s republican experiment” owed to the hyperbolic and combustible nature of political communication in the 1790s, argues John R. Howe, Jr., “Republican Thought and the Political Violence of the 1790s,” American Quarterly, vol. 19, no. 2, Part 1 (Summer, 1967), 150.

104 Albert Gallatin, Report on Delinquent Collectors, June 9, 1801, PATJ 34:280.

105 Annals of Congress, 8^th Cong., 2^nd Sess., 1205 (February 23, 1805). The problems within the customhouses transcended funds and records. Some offices lay entirely empty. In one case, Wolcott had not dispatched officials to supervise an entire , revenue-poor western customs district. Gallatin believed that things were even worse with the business of collecting the excise. Gallatin's Report on Collection of Internal Revenues, July 28, 1801, PATJ 34: 651-5. At least one cabinet official also realized that many of the customs positions required real expertise in commercial matters. These were often unsuitable for party sinecures. Edward Livingston to Albert Gallatin, Gallatin Papers 4:767; vol. 33:330, 331-2n.

106 J.E. Winston, “How the Louisiana Purchase Was Financed,” Louisiana Historical Quarterly, vol. 12, no. 2 (April, 1929), 200.

107 Jefferson, Fourth Annual Message to Congress, Annals of Congress, 8^th Con., 2^nd Sess., 11 (November 8, 1804).

108 Gallatin to Jefferson, n.d. [1804], Writings of Albert Gallatin, 1:211.

109 Dubois, Avengers of the New World, 251. Marietta Marie LeBreton, “A History of the Territory of Orleans, 1803-1812,” Ph.D. Dissertation, Louisiana State University, 1969, 257.

110 Albert Gallatin to Samuel Latham Mitchill, January 3, 1805, Reel 10, Gallatin Papers. Albert Gallatin to Thomas Jefferson, July 2, 1804, Writings of Albert Gallatin, 1:194-6, 197, 198.

111 Diary of Henry Packer Dering, Dering Papers. Alec Dun, “‘What Avenues of Commerce, Will You, Americans, Not Explore!’: Commercial Philadelphia’s Vantage onto the Early Haitian Revolution,” William and Mary Quarterly, Third Series, vol. 62, no. 3 (Jul., 2005), 479. See also, McDonald, “Chance of the Moment,” 459-60.

112 Fulwar Skipwith, American Claims not Submitted…March 14, 1802, Box 9, Causten-Pickett Papers, LOC. Tim Matthewson, “George Washington’s Policy toward the Haitian Revolution,” Diplomatic History, vol. 3 (Summer, 1979), 325; Matthewson, A Proslavery Foreign Policy, 45. Of course, even after their defeat, white Saint Dominguains received a golden parachute from the federal government. In 1793, Congress appropriated $15,000 for “the support of the inhabitants of Saint Domingo, resident within the United States, as shall be found in want of such support.” Annals of Congress, 3rd Cong., 1st Sess., 1417-1418 (1793). See also, Refugees from St. Domingo, January 10, 1794, ASP-FR 1:308; White, Encountering Revolution, 70.

113 Unknown [mutil.] to Charles C. Rogers & Co., March 28, 1796, Correspondence 1796-1818-1827, # 895, RG 36, NARA-NY. Logan, Diplomatic Relations of the United States with Haiti, 1776-1891 (Chapel Hill: University of North Carolina Press, 1941), 126-7, 129. In Philadelphia, the Haiti trade grew steadily from 1794 to 1796 before slackening gradually by 1798. Between 1799 and 1805, the trade steadily declined. Dun, 478 table 1.

114 James, Black Jacobins, 245, 262.

115 Tobias Lear to James Madison, July 20, 1801, July 25, 1801, and July 27, 1801, in Papers of James Madison, 1:445-6, 1:478; and 1:483. Just as problematic as American commerce with black Haitians was the influx of Saint-Dominguan refugees and culture into the United States. See, Carl A. Brasseaux and Glenn R. Conrad, The Road to Louisiana: The Saint-Domingue Refugees, 1792-1809 (Lafayette, LA: Center for Louisiana Studies, 1992), 113-284. On Americans’ cultural confrontation with several dimensions of the Haitian Revolution, see White, Encountering Revolution. For a fine diasporic history of Saint-Dominguan institutions and statuses, see Scott and Hebrard, Freedom Papers.

116 Tobias Lear to James Madison, February 16, 1802; February 26, 1802; February 27, 1802; and March 2, 1802, in The Papers of James Madison, Secretary of State Series, ed. Mary A. Hackett et al. (Charlottesville: University Press of Virginia, 1993), 2:499-500, 519, 519-20, 522. Louis Andre Pichon to James Madison, March 17, 1802, ibid, 42. Speech of William McCreery, Annals of Congress, 8^th Cong., 2^nd Sess., 818 (December 13, 1804).

117 James Madison to Louis Pichon, March 25, 1802, in Papers of James Madison, Secretary of States Series, 3:68-9. See, Logan, 139, and more generally, 129-30, 137-9. According to one account, Jefferson pledged to channel American commerce to France “and to reduce Toussaint to starvation” on the condition that France remain at peace with Great Britain. Carl Ludwig Lokke, “Jefferson and the Leclerc Expedition,” American Historical Review, vol. 33, no. 2 (January, 1928), 324.

118 Anthony Merry to James Madison, August 31, 1804; Louis Pichon to James Madison, June 6, 1804, quoted in Logan, 163-4. Louis Pichon to James Madison, May 7, 1804,

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