Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson Volume IV Part 9

Was.h.i.+ngton, March 21, 1807.

Dear Sir,

A copy of the treaty with Great Britain came to Mr. Erskine's hands on the last day of the session of Congress, which he immediately communicated to us; and since that, Mr. Purviance has arrived with an original. On the subject of it you will receive a letter from the Secretary of State, of about this date, and one more in detail hereafter. I should not have written, but that I perceive uncommon efforts, and with uncommon wickedness, are making by the federal papers to produce mischief between myself, personally, and our negotiators; and also to irritate the British government, by putting a thousand speeches into my mouth, not one word of which I ever uttered. I have, therefore, thought it safe to guard you, by stating the view which we have given out on the subject of the treaty, in conversation and otherwise; for ours, as you know, is a government which will not tolerate the being kept entirely in the dark, and especially on a subject so interesting as this treaty. We immediately stated in conversation, to the members of the legislature and others, that having, by a letter received in January, perceived that our ministers might sign a treaty not providing satisfactorily against the impressment of our seamen, we had, on the 3rd of February, informed you, that should such an one have been forwarded, it could not be ratified, and recommending, therefore, that you should resume negotiations for inserting an article to that effect; that we should hold the treaty in suspense until we could learn from you the result of our instructions, which probably would not be till summer, and then decide on the question of calling the Senate. We observed, too, that a written declaration of the British commissioners, given in at the time of signature, would of itself, unless withdrawn, prevent the acceptance of any treaty, because its effect was to leave us bound by the treaty, and themselves totally unbound. This is the statement we have given out, and nothing more of the contents of the treaty has been made known. But depend on it, my dear Sir, that it will be considered as a hard treaty when it is known. The British commissioners appear to have screwed every article as far as it would bear, to have taken every thing, and yielded nothing. Take out the eleventh article, and the evil of all the others so much overweighs the good, that we should be glad to expunge the whole. And even the eleventh article admits only that we may enjoy our right to the indirect colonial trade, during the present hostilities. If peace is made this year, and war resumed the next, the benefit of this stipulation is gone, and yet we are bound for ten years, to pa.s.s no non-importation or non-intercourse laws, nor take any other measures to restrain the unjust pretensions and practices of the British. But on this you will hear from the Secretary of State. If the treaty cannot be put into an acceptable form, then the next best thing is to back out of the negotiation as well as we can, letting that die away insensibly; but, in the mean time, agreeing informally, that both parties shall act on the principles of the treaty, so as to preserve that friendly understanding which we so sincerely desire, until the one or the other may be disposed to yield the points which divide us. This will leave you to follow your desire of coming home, as soon as you see that the amendment of the treaty is desperate. The power of continuing the negotiations will pa.s.s oyer to Mr. Pinckney, who, by procrastinations, can let it die away, and give us time, the most precious of all things to us. The government of New Orleans is still without such a head as I wish. The salary of five thousand dollars is too small; but I am a.s.sured the Orleans legislature would make it adequate, would you accept it. It is the second office in the United States in importance, and I am still in hopes you will accept it. It is impossible to let you stay at home while the public has so much need of talents. I am writing under a severe indisposition of periodical headache, without scarcely command enough of my mind to know what I write. As a part of this letter concerns Mr. Pinckney as well as yourself, be so good as to communicate so much of it to him; and with my best respects to him, to Mrs. Monroe, and your daughter, be a.s.sured yourself, in all cases, of my constant and affectionate friends.h.i.+p and attachment.

Th: Jefferson.

LETTER XLI.--M. LE COMTE DIODATI, March 29, 1807

M. LE COMTE DIODATI.

Was.h.i.+ngton, March 29, 1807.

My Dear and Antient Friend,

Your letter of August the 29th reached me the 18th of February. It enclosed a duplicate of that written from Brunswick five years before, but which I never received, or had notice of, but by this duplicate. Be a.s.sured, my friend, that I was incapable of such negligence towards you, as a failure to answer it would have implied. It would illy have accorded with those sentiments of friends.h.i.+p I entertained for you at Paris, and which neither time nor distance has lessened. I often pa.s.s in review the many happy hours I spent with Madame Diodati and yourself on the banks of the Seine, as well as at Paris, and I count them among the most pleasing I enjoyed in France. Those were indeed days of tranquillity and happiness. They had begun to cloud a little before I left you; but I had no apprehension that the tempest, of which I saw the beginning, was to spread over such an extent of s.p.a.ce and time. I have often thought of you with anxiety, and wished to know how you weathered the storm, and into what port you had retired. The letters now received give me the first information, and I sincerely felicitate you on your safe and quiet retreat. Were I in Europe, _pax et panis_ would certainly be my motto. Wars and contentions, indeed, fill the pages of history with more matter. But more blest is that nation whose silent course of happiness furnishes nothing for history to say. This is what I ambition for my own country, and what it has fortunately enjoyed now upwards of twenty years, while Europe has been in constant volcanic eruption. I again, my friend, repeat my joy that you have escaped the overwhelming torrent of its lava.

At the end of my present term, of which two years are yet to come, I propose to retire from public life, and to close my days on my patrimony of Monticello, in the bosom of my family. I have hitherto enjoyed uniform health; but the weight of public business begins to be too heavy for me, and I long for the enjoyments of rural life, among my books, my farms, and my family. Having performed my _quadragena stipendia_, I am ent.i.tled to my discharge, and should be sorry, indeed, that others should be sooner sensible than myself when I ought to ask it. I have, therefore, requested my fellow-citizens to think of a successor for me, to whom I shall deliver the public concerns with greater joy than I received them. I have the consolation too of having added nothing to my private fortune, during my public service, and of retiring with hands as clean as they are empty. Pardon me these egoisms, which, if ever excusable, are so when writing to a friend to whom our concerns are not uninteresting. I shall always be glad to hear of your health and happiness, and having been out of the way of hearing of any of our cotemporaries of the _corps diplomatique_ at Paris, any details of their subsequent history, which you will favor me with, will be thankfully received. I pray you to make my friendly respects acceptable to Madame la Comtesse Diodati, to a.s.sure M. Tronchin of my continued esteem, and to accept yourself my affectionate salutations, and a.s.surances of constant attachment and respect.

Th: Jefferson.

LETTER XLII.--TO MR. BOWDOIN, April 2, 1807

TO MR. BOWDOIN.

Was.h.i.+ngton, April 2, 1807.

Dear Sir,

I wrote you on the 10th of July last; but neither your letter of October the 20th nor that of November the 15th mentioning the receipt of it, I fear it has miscarried. I therefore now enclose a duplicate. As that was to go under cover of the Secretary of State's despatches by any vessel going from our distant ports, I retained the polygraph therein mentioned for a safer conveyance. None such has occurred till now, that the United States' armed brig the Wasp, on her way to the Mediterranean is to touch at Falmouth, with despatches for our ministers at London, and at Brest, with others for yourself and General Armstrong.

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, a.s.suring 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 pa.s.sing 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 s.h.i.+p, 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 friends.h.i.+p of France. We expect, therefore, from the friends.h.i.+p 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 s.h.i.+eld 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 a.s.surances 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 Blannerha.s.sett'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 c.u.mberland. 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 c.u.mberland, 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 a.s.sembled on the Ohio, it is impossible to suppose the affidavits, establis.h.i.+ng 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 Was.h.i.+ngton 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 furnis.h.i.+ng 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 const.i.tution, 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 cla.s.s of offenders which endeavors to overturn the const.i.tution, and are themselves protected in it by the const.i.tution 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 const.i.tution, I shall rejoice in it. My sheet being full, I perceive it is high time to offer you my friendly salutations, and a.s.sure you of my constant and affectionate esteem and respect.

Th: Jefferson.

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

TO GEORGE HAY.

Was.h.i.+ngton, 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 p.r.o.nounced, 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 const.i.tution 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 const.i.tution 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 circ.u.mstance) the judges determined he was no citizen. In the cases of Callender and others, the judges determined the sedition act was valid under the const.i.tution, 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 const.i.tution, 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 const.i.tution the supreme one, and that which can be carried into effect, it is the const.i.tutionally 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 friends.h.i.+p and respect.

Th: Jefferson.

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