Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 4

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.

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.

Such an editor too, would have to set his face against the demoralizing practice of feeding the public mind habitually on slander, and the depravity of taste which this nauseous aliment induces. Defamation is becoming a necessary of life; insomuch, that a dish of tea in the morning or evening cannot be digested without this stimulant. Even those who do not believe these abominations, still read them with complaisance to their auditors, and instead of the abhorrence and indignation which should fill a virtuous mind, betray a secret pleasure in the possibility that some may believe them, though they do not themselves. It seems to escape them, that it is not he who prints, but he who pays for printing a slander, who is its real author.

These thoughts on the subjects of your letter are hazarded at your request. Repeated instances of the publication of what has not been intended for the public eye, and the malignity with which political enemies torture every sentence from me into meanings imagined by their own wickedness only, justify my expressing a solicitude, that this hasty communication may in nowise be permitted to find its way into the public papers. Not fearing these political bull-dogs, I yet avoided putting myself in the way of being baited by them, and do not wish to volunteer away that portion of tranquillity, which a firm execution of my duties will permit me to enjoy.

I tender you my salutations, and best wishes for your success.

Th: Jefferson.

LETTER XLIX.—TO WILLIAM SHORT, June 12, 1807

TO WILLIAM SHORT

Washington, June 12, 1807.

Dear Sir,

******

The proposition in your letter of May the 16th, of adding an umpire to our discordant negotiators at Paris, struck me favorably on reading it, and reflection afterwards strengthened my first impressions. I made it therefore a subject of consultation with my coadjutors, as is our usage. For our government, although in theory subject to be directed by the unadvised will of the President, is, and from its origin has been, a very different thing in practice. The minor business in each department is done by the Head of the department, on consultation with the President alone. But all matters of importance or difficulty are submitted to all the Heads of departments composing the cabinet; sometimes by the President’s consulting them separately and successively, as they happen to call on him; but in the greatest cases, by calling them together, discussing the subject maturely, and finally taking the vote, in which the President counts himself but as one. So that in all important cases the executive is, in fact, a directory, which certainly the President might control: but of this there was never an example either in the first or the present administration. I have heard, indeed, that my predecessor sometimes decided things against his council.

I adopted in the present case the mode of separate consultation. The opinion of each member, taken separately, was, that the addition of a third negotiator was not at this time advisable. For the present, therefore, the question must rest. Mr. Bowdoin, we know, is anxious to come home, and is detained only by the delicacy of not deserting his post. In the existing temper between him and his colleague, it would certainly be better that one of them should make an opening for re-composing the commission more harmoniously. I salute you with affection and respect.

Th: Jefferson.

LETTER L.—TO GEORGE HAY, June 12, 1807