You heard in due time from London of the signature of a treaty there

between Great Britain and the United States. By a letter we received in

January from our ministers at London, we found they were making up

their minds to sign a treaty, in which no provision was made against the

impressment of our seamen, contenting themselves with a note received

in the course of their correspondence, from the British negotiators,

assuring them of the discretion with which impressments should be

conducted, which could be construed into a covenant only by inferences,

against which its omission in the treaty was a strong inference; and in

its terms totally unsatisfactory. By a letter of February the 3rd, they

were immediately informed that no treaty, not containing a satisfactory

article on that head, would be ratified, and desiring them to resume the

negotiations on that point. The treaty having come to as actually in the

inadmissible shape apprehended, we, of course, hold it up until we know

the result of the instructions of February the 3rd. I have but little

expectation that the British government will retire from their habitual

wrongs in the impressment of our seamen, and am certain, that without

that we will never tie up our hands by treaty, from the right of passing

a non-importation or non-intercourse act, to make it her interest to

become just. This may bring on a war of commercial restrictions. To

show, however, the sincerity of our desire for conciliation, I have

suspended the non-importation act. This state of things should be

understood at Paris, and every effort used on your part to accommodate

our differences with Spain, under the auspices of France, with whom

it is all-important that we should stand in terms of the strictest

cordiality. In fact, we are to depend on her and Russia for the

establishment of neutral rights by the treaty of peace, among which

should be that of taking no persons by a belligerent out of a neutral

ship, unless they be the soldiers of an enemy. Never did a nation

act towards another with more perfidy and injustice than Spain has

constantly practised against us: and if we have kept our hands off of

her till now, it has been purely out of respect to France, and from the

value we set on the friendship of France. We expect, therefore, from

the friendship of the Emperor, that he will either compel Spain to do us

justice, or abandon her to us. We ask but one month to be in possession

of the city of Mexico.

No better proof of the good faith of the United States could have

been given, than the vigor with which we have acted, and the expense

incurred, in suppressing the enterprise meditated lately by Burr against

Mexico. Although at first he proposed a separation of the western

country, and on that ground received encouragement and aid from Yrujo,

according to the usual spirit of his government towards us, yet he very

early saw that the fidelity of the western country was not to be

shaken, and turned himself wholly towards Mexico. And so popular is an

enterprise on that country in this, that we had only to lie still, and

he would have had followers enough to have been in the city of Mexico

in six weeks. You have doubtless seen my several messages to Congress,

which gave a faithful narrative of that conspiracy. Burr himself, after

being disarmed by our endeavors of all his followers, escaped from the

custody of the court of Mississippi, but was taken near Fort Stoddart,

making his way to Mobile, by some country people, who brought him on

as a prisoner to Richmond, where he is now under a course for trial.

Hitherto we have believed our law to be, that suspicion on probable

grounds was sufficient cause to commit a person for trial, allowing time

to collect witnesses till the trial. But the judges here have decided,

that conclusive evidence of guilt must be ready in the moment of arrest,

or they will discharge the malefactor. If this is still insisted on,

Burr will be discharged; because his crimes having been sown from Maine,

through the whole line of the western waters, to New Orleans, we cannot

bring the witnesses here under four months. The fact is, that the

federalists make Burr’s cause their own, and exert their whole influence

to shield him from punishment, as they did the adherents of Miranda. And

it is unfortunate that federalism is still predominent in our judiciary

department, which is consequently in opposition to the legislative and

executive branches, and is able to baffle their measures often.

Accept my friendly salutations, and assurances of great esteem and

respect.

Th: Jefferson.

LETTER XLIII.--TO WILLIAM B. GILES, April 20, 1807

TO WILLIAM B. GILES.

Monticello, April 20, 1807.

Dear Sir,

Your favor of the 6th instant, on the subject of Burr’s offences, was

received only four days ago. That there should be anxiety and doubt in

the public mind, in the present defective state of the proof, is not

wonderful; and this has been sedulously encouraged by the tricks of the

judges to force trials before it is possible to collect the evidence,

dispersed through a line of two thousand miles from Maine to Orleans.

The federalists, too, give all their aid, making Burr’s cause their

own, mortified only that he did not separate the union or overturn the

government, and proving, that had he had a little dawn of success, they

would have joined him to introduce his object, their favorite monarchy,

as they would any other enemy, foreign or domestic, who could rid them

of this hateful republic for any other government in exchange.

The first ground of complaint was the supine inattention of the

administration to a treason stalking through the land in open day. The

present one, that they have crushed it before it was ripe for execution,

so that no overt acts can be produced. This last may be true; though I

believe it is not. Our information having been chiefly by way of letter,

we do not know of a certainty yet what will be proved. We have set on

foot an inquiry through the whole of the country which has been the

scene of these transactions, to be able to prove to the courts, if they

will give time, or to the public by way of communication to Congress,

what the real facts have been. For obtaining this, we are obliged to

appeal to the patriotism of particular persons in different places, of

whom we have requested to make the inquiry in their neighborhood, and on

such information as shall be voluntarily offered. Aided by no process

or facilities from the federal courts, but frowned on by their new-born

zeal for the liberty of those whom we would not permit to overthrow

the liberties of their country, we can expect no revealments from the

accomplices of the chief offender. Of treasonable intentions, the

judges have been obliged to confess there is probable appearance. What

loop-hole they will find in the case, when it comes to trial, we cannot

foresee. Eaton, Stoddart, Wilkinson, and two others whom I must not

name, will satisfy the world, if not the judges, of Burr’s guilt. And I

do suppose the following overt acts will be proved. 1. The enlistment

of men, in a regular way. 2. The regular mounting of guard round

Blannerhassett’s island, when they expected Governor Tiffin’s men to be

on them _modo guerrino arraiati_. 3. The rendezvous of Burr with his

men at the mouth of Cumberland. 4. His letter to the acting Governor of

Mississippi, holding up the prospect of civil war. 5. His capitulation,

regularly signed with the aid of the Governor, as between two

independent and hostile commanders.

But a moment’s calculation will show that this evidence cannot be

collected under four months, probably five, from the moment of deciding

when and where the trial shall be. I desired Mr. Rodney expressly to

inform the Chief Justice of this, inofficially. But Mr. Marshall says,

‘More than five weeks have elapsed since the opinion of the Supreme

Court has declared the necessity of proving the overt acts, if they

exist. Why are they not proved.’ In what terms of decency can we

speak of this? As if an express could go to Natchez, or the mouth of

Cumberland, and return in five weeks, to do which has never taken less

than twelve. Again, ‘If, in November or December last, a body of

troops had been assembled on the Ohio, it is impossible to suppose the

affidavits, establishing the fact, could not have been obtained by the

last of March.’ But I ask the Judge, where they should have been lodged?

At Frankfort? at Cincinnati? at Nashville? St. Louis? Natchez? New

Orleans? These were the probable places of apprehension and examination.

It was not known at Washington till the 26th of March, that Burr would

escape from the western tribunals, be retaken and brought to an eastern

one: and in five days after (neither five months nor five weeks, as the

Judge calculated) he says, it is ‘impossible to suppose the affidavits

could not have been obtained.’ Where? At Richmond he certainly meant,

or meant only to throw dust in the eyes of his audience. But all the

principles of law are to be perverted which would bear on the

favorite offenders, who endeavor to overturn this odious republic. ‘I

understand,’ says the Judge, ‘probable cause of guilt to be a case

made out of proof furnishing good reason to believe,’ &c. Speaking as a

lawyer, he must mean legal proof, i.e. proof on oath, at least. But this

is confounding probability and proof. We had always before understood

that where there was reasonable ground to believe guilt, the offender

must be put on his trial. That guilty intentions were probable, the

Judge believed. And as to the overt acts, were not the bundle of letters

of information in Mr. Rodney’s hands, the letters and facts published in

the local newspapers, Burr’s flight, and the universal belief or rumor

of his guilt, probable ground for presuming the facts of enlistment,

military guard, rendezvous, threat of civil war, or capitulation, so as

to put him on trial? Is there a candid man in the United States who

does not believe some one, if not all, of these overt acts to have taken

place?

If there ever had been an instance in this or the preceding

administrations, of federal judges so applying principles of law as to

condemn a federal or acquit a republican offender, I should have judged

them in the present case with more charity. All this, however, will work

well. The nation will judge both the offender and judges for themselves.

If a member of the executive or legislature does wrong, the day is never

far distant when the people will remove him. They will see then, and

amend the error in our constitution, which makes any branch independent

of the nation. They will see that one of the great co-ordinate branches

of the government, setting itself in opposition to the other two, and

to the common sense of the nation, proclaims impunity to that class

of offenders which endeavors to overturn the constitution, and are

themselves protected in it by the constitution itself: for impeachment

is a farce which will not be tried again. If their protection of Burr

produces this amendment, it will do more good than his condemnation

would have done. Against Burr, personally, I never had one hostile

sentiment. I never, indeed, thought him an honest, frank-dealing man,

but considered him as a crooked gun, or other perverted machine, whose

aim or shot you could never be sure of. Still, while he possessed the

confidence of the nation, I thought it my duty to respect in him their

confidence, and to treat him as if he deserved it: and if his punishment

can be commuted now for an useful amendment of the constitution, I shall

rejoice in it. My sheet being full, I perceive it is high time to

offer you my friendly salutations, and assure you of my constant and

affectionate esteem and respect.

Th: Jefferson.

LETTER XLIV.--TO GEORGE HAY, June 2, 1807

TO GEORGE HAY.

Washington, June 2, 1807.

Dear Sir,

While Burr’s case is depending before the court, I will trouble you from

time to time with what occurs to me. I observe that the case of Marbury

v. Madison has been cited, and I think it material to stop at the

threshold the citing that case as authority, and to have it denied to be

law. 1. Because the judges, in the outset, disclaimed all cognizance of

the case; although they then went on to say what would have been their

opinion, had they had cognizance of it. This then was confessedly an

extra-judicial opinion, and, as such, of no authority. 2. Because, had

it been judicially pronounced, it would have been against law; for to

a commission, a deed, a bond, delivery is essential to give validity.

Until, therefore, the commission is delivered out of the hands of the

executive and his agents, it is not his deed. He may withhold or cancel

it at pleasure, as he might his private deed in the same situation. The

constitution intended that the three great branches of the government

should be co-ordinate, and independent of each other. As to acts,

therefore, which are to be done by either, it has given no control to

another branch. A judge, I presume, cannot sit on a bench without a

commission, or a record of a commission: and the constitution having

given to the judiciary branch no means of compelling the executive

either to deliver a commission, or to make a record of it, shows it did

not intend to give the judiciary that control over the executive, but

that it should remain in the power of the latter to do it or not. Where

different branches have to act in their respective lines, finally

and without appeal, under any law, they may give to it different and

opposite constructions. Thus in the case of William Smith, the House of

Representatives determined he was a citizen, and in the case of William

Duane (precisely the same in every material circumstance) the judges

determined he was no citizen. In the cases of Callender and others, the

judges determined the sedition act was valid under the constitution,

and exercised their regular powers of sentencing them to fine and

imprisonment. But the executive determined that the sedition act was

a nullity under the constitution, and exercised his regular power of

prohibiting the execution of the sentence, or rather of executing

the real law, which protected the acts of the defendants. From these

different constructions of the same act by different branches, less

mischief arises, than from giving to any one of them a control over the

others. The executive and Senate act on the construction, that until

delivery from the executive department, a commission is in their

possession, and within their rightful power; and in cases of commissions

not revocable at will, where, after the Senate’s approbation and the

President’s signing and sealing, new information of the unfitness of

the person has come to hand before the delivery of the commission,

new nominations have been made and approved, and new commissions have

issued.

On this construction I have hitherto acted; on this I shall ever act,

and maintain it with the powers of the government, against any control

which may be attempted by the judges in subversion of the independence

of the executive and Senate within their peculiar department. I presume,

therefore, that in a case where our decision is by the constitution

the supreme one, and that which can be carried into effect, it is the

constitutionally authoritative one, and that that by the judges was

_coram non judice_, and unauthoritative, because it cannot be carried

into effect. I have long wished for a proper occasion to have the

gratuitous opinion in Marbury v. Madison brought before the public, and

denounced as not law: and I think the present a fortunate one, because

it occupies such a place in the public attention. I should be glad,

therefore, if, in noticing that case, you could take occasion to express

the determination of the executive, that the doctrines of that case were

given extra-judicially and against law, and that their reverse will be

the rule of action with the executive. If this opinion should not

be your own, I would wish it to be expressed merely as that of the

executive. If it is your own also, you would of course give to the

arguments such a developement, as a case, incidental only, might render

proper.

I salute you with friendship and respect.

Th: Jefferson.

LETTER XLV.--TO ALBERT GALLATIN, June 3, 1807

THOMAS JEFFERSON TO ALBERT GALLATIN.

I gave you, some time ago, a project of a more equal tariff on wines,

than that which now exists. But in that I yielded considerably to the

faulty classification of them in our law. I have now formed one with

attention, and according to the best information I possess, classing

them more rigorously. I am persuaded, that were the duty on cheap wines

put on the same ratio with the dear, it would wonderfully enlarge

the field of those who use wine, to the expulsion of whiskey. The

introduction of a very cheap wine (St. George) into my neighborhood,

within two years past, has quadrupled in that time the number of those

who keep wine, and will ere long increase them tenfold. This would be a

great gain to the treasury, and to the sobriety of our country. I will

here add my tariff, wherein you will be able to choose any rate of duty

you please; and to decide whether it will not, on a fit occasion, be

proper for legislative attention. Affectionate salutations.

[Illustration: page77]

LETTER XLVI.--TO GEORGE HAY, June 5, 1807

TO GEORGE HAY.

Washington, June 5, 1807.

Dear Sir,

Your favor of the 31st instant has been received, and I think it will be

fortunate if any circumstance should produce a discharge of the present

scanty grand jury, and a future summons of a fuller: though the same

views of protecting the offender may again reduce the number to sixteen,

in order to lessen the chance of getting twelve to concur. It is

understood, that wherever Burr met with subjects who did not choose to

embark in his projects, unless approved by their government, he asserted

that he had that approbation. Most of them took his word for it, but

it is said that with those who would not, the following stratagem was

practised. A forged letter, purporting to be from General Dearborn,

was made to express his approbation, and to say that I was absent

at Monticello, but that there was no doubt that, on my return, my

approbation of his enterprises would be given. This letter was spread

open on his table, so as to invite the eye of whoever entered his room;

and he contrived occasions of sending up into his room, those whom he

wished to become witnesses of his acting under sanction. By this means,

he avoided committing himself to any liability to prosecution for

forgery, and gave another proof of being a great man in little things,

while he is really small in great ones. I must add General Dearborn’s

declaration, that he never wrote a letter to Burr in his life, except

that when here, once in a winter, he usually wrote him a billet of

invitation to dine. The only object of sending you the enclosed letters

is to possess you of the fact, that you may know how to pursue it,

if any of your witnesses should know any thing of it. My intention in

writing to you several times, has been to convey facts or observations

occurring in the absence of the Attorney General, and not to make to

the dreadful drudgery you are going through the unnecessary addition of

writing me letters in answer, which I beg you to relieve yourself from,

except when some necessity calls for it.

I salute you with friendship and respect.

Th: Jefferson.

LETTER XLVII.--TO DOCTOR HORATIO TURPIN, June 10, 1807

TO DOCTOR HORATIO TURPIN.

Washington, June 10, 1807.

Dear Sir,

Your favor of June the 1st has been duly received. To a mind like yours,

capable in any question of abstracting it from its relation to yourself,

I may safely hazard explanations, which I have generally avoided to

others, on questions of appointment. Bringing into office no desires of

making it subservient to the advancement of my own private interests, it

has been no sacrifice, by postponing them, to strengthen the confidence

of my fellow-citizens. But I have not felt equal indifference towards

excluding merit from office, merely because it was related to me.

However, I have thought it my duty so to do, that my constituents may

be satisfied, that, in selecting persons for the management of their

affairs, I am influenced by neither personal nor family interests, and

especially, that the field of public office will not be perverted by

me into a family property. On this subject, I had the benefit of useful

lessons from my predecessors, had I needed them, marking what was to be

imitated and what avoided. But, in truth, the nature of our government

is lesson enough. Its energy depending mainly on the confidence of the

people, in their Chief Magistrate, makes it his duty to spare nothing

which can strengthen him with that confidence.

*****

Accept assurances of my constant friendship and respect.

Th: Jefferson.

LETTER XLVIII.--TO JOHN NORVELL, June 11, 1807

TO JOHN NORVELL.

Washington, June 11, 1807.

Sir,

Your letter of May the 9th has been duly received. The subjects it

proposes would require time and space for even moderate developement. My

occupations limit me to a very short notice of them. I think there does

not exist a good elementary work on the organization of society

into civil government: I mean a work which presents in one full

and comprehensive view the system of principles on which such an

organization should be founded, according to the rights of nature. For

want of a single work of that character, I should recommend Locke

on Government, Sidney, Priestley’s Essay on the First Principles of

Government, Chipman’s Principles of Government, and the Federalist.

Adding, perhaps, Beccaria on Crimes and Punishments, because of the

demonstrative manner in which he has treated that branch of the subject.

If your views of political inquiry go further, to the subjects of money

and commerce, Smith’s Wealth of Nations is the best book to be read,

unless Say’s Political Economy can be had, which treats the same

subjects on the same principles, but in a shorter compass, and more

lucid manner. But I believe this work has not been translated into our

language.

History, in general, only informs us what bad government is. But as we

have employed some of the best materials of the British constitution in

the construction of our own government, a knowledge of British history

becomes useful to the American politician. There is, however, no general

history of that country which can be recommended. The elegant one of

Hume seems intended to disguise and discredit the good principles of the

government, and is so plausible and pleasing in its style and manner,

as to instil its errors and heresies insensibly into the minds of unwary

readers. Baxter has performed a good operation on it. He has taken the

text of Hume as his ground-work, abridging it by the omission of some

details of little interest, and wherever he has found him endeavoring to

mislead, by either the suppression of a truth, or by giving it a false

coloring, he has changed the text to what it should be, so that we

may properly call it Hume’s history republicanized. He has, moreover,

continued the history (but indifferently) from where Hume left it,

to the year 1800. The work is not popular in England, because it is

republican; and but a few copies have ever reached America. It is a

single quarto volume. Adding to this Ludlow’s Memoirs, Mrs. Macaulay’s

and Belknap’s histories, a sufficient view will be presented of the free

principles of the English constitution.

To your request of my opinion of the manner in which a newspaper should

be conducted, so as to be most useful, I should answer, ‘by restraining

it to true, facts and sound principles only.’ Yet I fear such a paper

would find few subscribers. It is a melancholy truth, that a suppression

of the press could not more completely deprive the nation of its

benefits, than is done by its abandoned prostitution to falsehood.

Nothing can now be believed which is seen in a newspaper. Truth itself

becomes suspicious by being put into that polluted vehicle. The real

extent of this state of misinformation is known only to those who are in

situations to confront facts within their knowledge with the lies of

the day. I really look with commiseration over the great body of my

fellow-citizens, who, reading newspapers, live and die in the belief,

that they have known something of what has been passing in the world in

their time; whereas the accounts they have read in newspapers are just

as true a history of any other period of the world as of the present,

except that the real names of the day are affixed to their fables.

General facts may indeed be collected from them, such as that Europe is

now at war, that Bonaparte has been a successful warrior, that he has

subjected a great portion of Europe to his will, &c. &c.; but no details

can be relied on. I will add, that the man who never looks into a

newspaper is better informed than he who reads them; inasmuch as he

who knows nothing is nearer to truth than he whose mind is filled with

falsehoods and errors. He who reads nothing will still learn the great

facts, and the details are all false.

Perhaps an editor might begin a reformation in some such way as this.

Divide his paper into four chapters, heading the 1st, Truths. 2nd,

Probabilities. 3rd, Possibilities. 4th, Lies. The 1st chapter would be

very short, as it would contain little more than authentic papers, and

information from such sources, as the editor would be willing to risk

his own reputation for their truth. The 2nd would contain what, from a

mature consideration of all circumstances, his judgment should conclude

to be probably true. This, however, should rather contain too little

than too much. The 3rd and 4th should be professedly for those readers

who would rather have lies for their money than the blank paper they

would occupy.

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