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.