On June 21, 1807, he again wrote to Wilkinson:

Thomas Jefferson
Jefferson, Thomas
Wilkinson
Wilkinson
Dear Sir,

—I received last night yours of the 16th, and sincerely congratulate you on your safe arrival at Richmond, against the impudent surmises hopes of the band of conspirators, who, because they are as yet permitted to walk abroad, and even to be in the character of witnesses until such a measure of evidence shall be collected as will place them securely at the bar of justice, attempt to cover their crimes under noise and insolence. You have indeed had a fiery trial at New Orleans, but it was soon apparent that the clamorous were only the criminal, endeavoring to turn the public attention from themselves their leader upon any other object.

Having delivered to the Attorney Genl all the papers I possessed, respecting Burr his accomplices, when he went to Richmond, I could only write to him (without knowing whether he was at Philadelphia, Wilmington, or Delaware) for your letter of Oct 21, desired by the court. If you have a copy of it, and chuse to give it in, it will, I think, have a good effect; for it was my intention, if I should receive it from Mr. Rodney, not to communicate it without your consent, after I learnt your arrival. Mr. Rodney will certainly either bring or send it within the course of a day or two, and it will be instantly forwarded to Mr. Hay. For the same reason, I cannot send the letter of J. P. D., as you propose, to Mr. Hay. I do not recollect what name these initials indicate, but the paper, whatever it is, must be in the hands of Mr. Rodney. Not so as to your letter to Dayton; for as that could be of no use in the prosecution, was reserved to be forwarded or not, according to circumstances, I retained it in my own hands, now return it to you. If you think Dayton’s son should be summoned, it can only be done from Richmond. We have no subpœnas here. Within about a month we shall leave this to place ourselves in healthier stations. Before that I trust you will be liberated from your present attendance. It would have been of great importance to have had you here with the Secretary of War, because I am very anxious to begin such works as will render Plaquemine impregnable, and an insuperable barrier to the passage of any force up or down the river. But the Secretary at War sets out on Wednesday, to meet with some other persons at New York, and determine on the works necessary to be undertaken to put that place hors d’insulte, thence he will have to proceed northwardly, I believe. I must ask you, at your leisure, to state to me in writing what you think will answer our views at Plaquemine, within the limits of expense which we can contemplate, of which you can form a pretty good idea.

Your enemies have filled the public ear with slanders, your mind with trouble on that account. The establishment of their guilt will let the world see what they ought to think of their clamors; it will dissipate the doubts of those who doubted for want of knolege, and will place you on higher ground in the public estimate and public confidence. No one is more sensible than myself of the injustice which has been aimed at you. Accept, I pray you, my salutations, assurances of respect esteem.

1

On January 2, 1807, Jefferson further wrote to Gallatin:

I return you the letter of Mr. Gelston respecting the Brutus. From what I learn, she cannot be destined for the Mississippi, because she draws too much water to enter it. However, considering the difficulty Congress finds in enlarging the limits of our preventive powers, I think we should be cautious how we step across those limits ourselves. She is probably bound to St. Domingo. Could not Congress while continuing that law, amend it so as to prevent the abuse actually practised? Affectionate salutations.

2

From a copy courteously furnished by Dr. J. M. Wilson, of Douglas, Wyoming.

1

Hening was just undertaking his well known Statutes at large of Virginia. On Feb. 28, Jefferson further wrote him:

Thomas Jefferson
Jefferson, Thomas
William Waller Hening
Hening, William Waller
Sir,

—It has not been in my power sooner to acknolege your letter of Feb. 4. After repeating that my printed collection of laws which are in strong bound volumes, are at your service, I must observe as to the manuscript volumes, that several of them run into one another in point of time, so that the same act will be found in several volumes, and will require a good deal of collating. But what presents a greater difficulty is, that some of these volumes seem to have been records of the council, and to contain interspersed copies of some laws. These volumes are in a black letter, illegible absolutely but to those habituated to it and far beyond the competence of an ordinary scribe. I have never myself searched up the acts which these volumes contain. I have always expected they would fill up some of the lacunæ in the list I sent to Mr. Wythe. As this compilation can be made but once, because in doing it the originals will fall to pieces, my anxiety that justice shall be done it obliges me to say that it cannot be done till I become resident at Monticello. There I will superintend it myself, freely giving my own labour to whoever undertakes to copy publish, whether on public or private account. The copyist must probably live with me during the work, of course, I must take some part in his choice. Seeing no inconvenience in publishing first the edited secondly the inedited laws, I am in hopes that you may think the former may at once be entered on. Accept my salutations assurances of great esteem respect.

1

From a copy courteously furnished by Mr. John Boyd Thacher, of Albany, N. Y.

1

On February 22, 1807, Jefferson wrote to Gallatin:

I send you Allston’s letter for perusal. He thinks to get over this matter by putting a bold face on it. I have the names of three persons whose evidence, taken together, can fix on him the actual endeavor to engage men in Burr’s enterprise. Some appropriation must certainly be made for provisions, c., arrested. I expect we must pay for them all, and use the provisions for the army. But how is the appropriation to be introduced?

2

Jefferson enclosed this message to the Governor of Louisiana in the following letter:

Thomas Jefferson
Jefferson, Thomas
Feby 3, 07
Washington
Dear Sir,

—I pray you to read the enclosed letter, to seal deliver it. It explains itself so fully, that I need say nothing. I am sincerely concerned for Mr. Reibelt, who is a man of excellent understanding and extensive science. If you had any academical berth, he would be much better fitted for that than for the bustling business of life. I enclose to Genl Wilkinson my message of Jan. 22. I presume, however, you will have seen it in the papers. It gives the history of Burr’s conspiracy, all but the last chapter, which will, I hope, be that of his capture before this time, at Natchez. Your situations have been difficult, and we judge of the merit of our agents there by the magnitude of the danger as it appeared to them, not as it was known to us. On great occasions every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it; his motives will be a justification as far as there is any discretion in his ultra-legal proceedings, by indulgence of private feelings. On the whole, this squall, by shewing with what ease our government suppresses movements which in other countries requires armies, has greatly increased its strength by increasing the public confidence in it. It has been a wholesome lesson too to our citizens, of the necessary obedience to their government. The Feds, the little band of Quids, in opposition, will try to make something of the infringement of liberty by the military arrest deportation of citizens, but if it does not go beyond such offenders as Swartwout, Bollman, Burr, Blennerhasset, Tyler, c., they will be supported by the public approbation. Accept my friendly salutations, assurances of esteem respect.

1

Later the President wrote to the Secretary at War:

Thomas Jefferson
Jefferson, Thomas
Oct 27, 07
Washington
Dear Sir,

—I have reflected on the case of the embodying of the militia in Ohio, and think the respect we owe to the State may overweigh the disapprobation so justly due to the conduct of their Governor pro tem. They certainly had great merit, and have acquired a very general favor thro’ the Union, for the early vigorous blows by which they crushed the insurrection of Burr. We have now again to appeal to their patriotism public spirit in the same case; and should there be war, they are our bulwark in the most prominent point of assault from the Indians. Their good will affection, therefore, should be conciliated by all justifiable means. If we suffer the question of paying the militia embodied to be thrown on their legislature, it will excite acrimonious debate in that body, they will spread the same dissatisfaction among their constituents, and finally it will be forced back on us through Congress. Would it not, therefore, be better to say to Mr. Kirker, that the general government is fully aware that emergencies which appertain to them will sometimes arise so suddenly as not to give time for consulting them, before the State must get into action; that the expenses in such cases, incurred on reasonable grounds, will be met by the general government; and that in the present case, altho’ it appears there was no real ground for embodying the militia, and that more certain measures for ascertaining the truth should have been taken before embodying them, yet an unwillingness to damp the public spirit of our countrymen, the justice due to the individuals who came forward in defence of their country, who could not know the grounds on which they were called, have determined us to consider the call as justifiable, to defray the expenses. This is submitted to you for consideration. Affectionate salutations.

1

In the preparation of this message, the President wrote to Dearborn and Smith:

The H. of Representatives ask what particular ports are proposed to be furnished with gunboats, how many to each. I give you a list of the ports, but instead of saying how many to each, I will throw them into groups, as below, say how many boats to each group. Will you be so good as to state how many you would think necessary for each of the ports below mentd to give them a reasonable measure of protection in time of war? Also to strike out insert ports in the list as you think best.

  • Misipi river }
  • L. Pontchartrain }
  • Mobille River }
  • St. Mary’s }
  • Savanna }
  • Beaufort }
  • Charleston }
  • Cape Fear }
  • Ocracock }
  • Chesapeake Bay waters
  • Delaware bay
  • New York }
  • New London }
  • Newport }
  • Boston }
  • Newburyport }
  • Portsmouth }
  • Portland }
  • Kennebec }
  • Penobscot }
  • Passamaquoddy }
1

The following, evidently prepared for some newspaper was written by Jefferson:

Mr. Elliot in his speech on the subject of gunboats, inserted in the National Intelligencer of Dec. 30, quotes from the President’s message of Feb. 10, 1807 the following passage ‘in the remarkable action between the Russian flotilla of gun-boats gallies, and a Turkish fleet of ships of the line and frigates in the Liman sea in 1788, the latter, commanded by their most celebrated admiral, were completely defeated and several of their ships of the line destroyed’ he adds that he ‘has not only consulted the professed annals of the times, but has obtained some information from a writer who appears to have been personally acquainted with the scene of action’ then he gives such an account of the action as may suit the scope of his argument, but not naming either ‘the professed annals’ or ‘the writer who seems to have been personally acquainted with the scene of action,’ so as to enable his hearers to question his account, it stands on his own personal authority only. Mr. Elliot’s situation probably had not given him an opportunity of consulting the new annual register of 1789, which is certainly among ‘the professed annals of the times’ and the most respectable of them. The following account of the two actions in the Liman of the 19th 28th of June 1788, is copied verbally from that work, pa. 70 ‘a fleet of an inferior sort c—in which they had placed themselves.’ § in the Leyden gazettes of Aug. 1, 22 28, 1788. the reader will find official and more detailed accounts of these two actions from these authorities. Taken together it appears that the Turkish force was 16 ships of the line 9 frigates and many smaller vessels. The Russian force 4 ships of the line, some frigates galleys (under which denomination they include gunboats) making 27 in all. in the 1st action of June 19th the small vessels on both sides alone engaged, the Turks were defeated having lost 4 of their number the residue retired under the protection of their ships of the line. That in the 2d action of the 28th. the Turkish admiral carried his large as well as small vessels into the Liman sea or lake. the Russians had in the meantime been reinforced by 22 gunboats carrying an 18 pounder each. The result was by the annual register 9 vessels ships of the line frigates taken or destroyed by the Leyden account 16. The remainder of the Turkish fleet, the large as well as small vessels, retreating under shelter of the walls of Ocrakow. It does not appear in either account that any part of the Russian force was ever engaged but the flotilla of small vessels which were almost entirely gallies gun boats, and in the second and decisive action were arranged in two lines in the form of a crescent. The reader will now judge for himself whether the statement in the message of Feb. 10. is not a fair summary of these accounts and whether it be true as Mr. Elliot has said that ‘it appears that no such battle as that described in the message of Feb. 10 ever happened.’

1

On the draft of this message, Gallatin wrote the following notes:

MESSAGE RESPECTING GUNBOATS.

2d Paragraph. Might not this be altogether omitted? It is true that the resolution of the House has arisen from the debate on fortifications vs. gunboats. But as it does ask information only on the last subject, it is not necessary to allude to the other subject: such allusion will be construed as taking sides against N. York fortifications: and the expression of that opinion of the President is necessary neither to prevent too large a fortification appropn, nor to shew the efficiency of gunboats. On the contrary, the third paragraph with some trifling alterations in its introduction would present the whole system contemplated by the Executive (which in fact embraced, under the name of land batteries, a species of fortifications), without giving offence, or interfering with the question of permanent detached fortifications. It may be added that Castle William reg. Mud Island, Fort Johnson, and, even the works now going on on Governor’s Island must be considered as regular fortifications, not properly embraced under the designations of land batteries, and from their insular detached situation to be necessarily manned by a standing military force.

5th Paragraph. Omit or modify the words ‘inhabited by c. whose system like ours is peace defence’: Otherwise Algiers will be stated as having a system of peace defence exclusively.

Omit the sentence already pencilled relating to our squadron; it is not I think altogether correct in point of fact; we wanted gunboats there to attack theirs in shallow water even to attack their batteries; but our frigates never avoided them; for their ground (of the frigates) was on the high seas where the Tripolitan boats dared not come.

To gunboats properly so called I do not think that the British have much resorted in the channel; but they did under Curtis in completing the destruction of the floating batteries at Gibraltar: It is well known that during that long siege, they found it indispensable to have such an armament to meet a similar enemies force. The Swedes Russians have used them to a greater extent than any other nation. The most splendid achievement by gunboats was the destruction (on the 28th 29th June 1788) of a great part of the Turkish fleet under their celebrated capitan Pacha Hassan Aly, in the Liman or mouth of the Dnieper by the Russian flotilla under Prince of Nassau. Nassau had twenty-two one gunboats and 27 galleys. Hassan attacked him, in order to force the passage and besiege Kimburn, with 16 ships of the line several frigates, lost nine of his ships.

The latter part of this paragraph commencing with the words ‘and indeed’ to the end, might be omitted.

7th Paragraph. ‘ the 127 c would cost from 5 to 600 thd dollars.’ Query whether any gunboats fit for sea including rigging guns c. have actually been built for less than five thousand dollars; and whether it be intended that they should all be built of a size that will cost no more? Are also the appropriations already made sufficient to compleat the first 73? For the idea conveyed is that less than 600 thd dollars will complete the whole number of 200. If there be any uncertainty on that point, such modification in the expressions should be made as will avoid a premature commitment.

‘Having regard c. it has been thought that ½ might be built this year the other half the next.’ I am clearly of opinion that we ought to build now all those that are wanted for the Mississippi, also that number which it may be thought proper to keep afloat in time of European war in the other ports. The number for the Mississippi is stated in the message at 40: that to be kept afloat generally in time of European war is stated in the 8th paragraph at 24 at most. This makes at the utmost 64; and there are already 73 building. It does not seem to me that there is any necessity to build beforehand any greater number for the others are expressly stated in the message to be wanted only in case the U. States are at war. If any length of time was necessary to build such vessels, it might be proper to be at all times prepared with the whole number wanted. But of all the species of force which war may require, armies ships of war fortifications, gunboats, there is none which can be obtained in a shorter time than gunboats, none therefore that it is less necessary to provide beforehand. I think that within sixty days, perhaps half the time, each of the seaports of Boston, New York, Philada Baltimore might build fit out thirty; and the smaller ports together as many; especially if the timber was prepared beforehand. But beyond that preparation I would not go: for exclusively of the first expense of building the interest of capital thus laid out, I apprehend that notwithstanding the care which may be taken they will infallibly decay in a given number of years will be a perpetual bill of costs for repairs and maintenance. Sheds will be of use provided the boats are built not launched; but if once in the water they must share the fate of all other vessels whether public or private. It will be an economical measure for every naval station to burn their navy at the end of a war, to build a new one when again at war, if it was not that time is necessary to build ships of war. The principle is the same as to gunboats; and the objection of time necessary to build does not exist. I also think that in this as in everything else connected with a navy naval departments, the annual expense of maintenance will far exceed what is estimated; and I would not be in the least astonished, if supposing two hundred gunboats were actually built, it should add half a million dollars a year to our annual expenses for the support of that establishment. I would therefore suggest that the latter part of this paragraph which contemplates the building of 123 in 2 years should be omitted: and at the end of the 8th paragraph to omit also the words ‘without the expense for repairs or maintenance,’ and to insert the substance of that part of the 7th paragraph which submits the question to the legislature, but with a modification so as to read in substance; with the legislature it will rest to decide on the number sufficient for the ‘object the time of building.’

Indorsed “recd Feb. 8th 07.”

1

A Judge of the Court of Appeals.

1

An official of the “Territory of Columbia,” now known as the District.

1

In reference to the British treaty, Jefferson had previously written Madison:

Thomas Jefferson
Jefferson, Thomas
Feb. 1, 07
Madison
Madison

The more I consider the letter of our minister to London, the more seriously it impresses me. I believe the sine qua non we made is that of the nation, that they would rather go on without a treaty than with one which does not settle this article. Under this dilemma, and at this stage of the business, had we not better take the advice of the Senate? I ask a meeting at 11 o’clock to-morrow, to consult on this question.

1

Jefferson further wrote to Robert R. Livingston:

Thomas Jefferson
Jefferson, Thomas
March 24th, 1807
Washington
Robert R. Livingston
Livingston, Robert R.
Dear Sir,

—The two receipts of Paucin’s have come safely to hand. The account has been settled without difficulty. The Federal papers appear desirous of making mischief between us England, by putting speeches into my mouth which I never uttered. Perceiving, by a letter received in January, that our comrs were making up their mind to sign a treaty which contained no provision against impressment, we immediately instructed them not to do so; if done, to consider the treaty as not accepted, to resume their negociations to supply an article against impressment. We therefore hold the treaty in suspense, until we hear what is done in consequence of our last instructions. Probably we shall not hear till midsummer, we reserve till that time the question of calling the Senate. In the meantime, to shew the continuance of a friendly spirit, we continue the suspension of the non-importation act by proclamation. Another cause for not accepting the treaty was a written declaration by the British commrs at the time of signing, reserving a right, if we did not oppose the French decree to their satisfaction, to retaliate in their own way, however it might affect the treaty; so that, in fact, we were to be bound, they left free. I think, upon the whole, the emperor cannot be dissatisfied at the present state of things between us England, that he must rather be satisfied at our unhesitating rejection of a proposition to make common cause against him, for such in amount it was. Burr has indeed made a most inglorious exhibition of his much over-rated talents. He is now on his way to Richmond for trial. Accept my friendly salutations, assurances of constant esteem respect.

He also wrote to Levi Lincoln, March 25, 1807:

I expect you are at a loss to understand the situation of the British treaty, on which the newspapers make so many speeches for me which I never made. It is exactly this. By a letter received from our negociators in January, we found they were making up their minds to sign a treaty containing no provision against the impressment of our seamen. We instantly (Feb. 3) instructed them not to do so; and that if such a treaty had been forwarded, it could not be ratified; that therefore they must immediately resume the negociations to supply that defect, as a sine quâ non. Such a treaty having come to hand, we of course suspend it, until we know the result of the instructions of Feb. 3, which probably will not be till mid-summer. We reserve ourselves till then to decide the question of calling the Senate. In the meantime, I have, by proclamation, continued the suspension of the non-importation law, as a proof of the continuance of friendly dispositions. There was another circumstance which would have prevented the acceptance of the treaty. The British Commissioners, at the time of signing, gave in a written declaration, that until they knew what we meant to do in the subject of the French decree, the king reserved to himself the right of not ratifying, and of taking any measures retaliating on France which he should deem proper, notwithstanding the treaty. This made the treaty binding on us; while he was loose to regard it or not, and clearly squinted at the expectation that we should join in resistance to France, or they would not regard the treaty. We rejected this idea unhesitatingly.

I expected to have paid a short visit to Monticello before this, but have been detained by the illness of my son-in-law, Mr. Randolph, and now by an attack of periodical headache on myself. This leaves me but an hour a half each morning capable of any business at all. A part of this I have devoted to write you this letter, and to assure you of my constant friendship and respect.

1

From the Southern Bivouac, II., 635.

1

For convenience, all the letters written by Jefferson to Hay during the Burr trial follow:

Thomas Jefferson
Jefferson, Thomas
May 26, 07
Washington
George Hay
Hay, George
Dear Sir,

—We are at this moment informed by a person who left Richmond since the 22d, that the prosecution of Burr had begun under very inauspicious symptoms by the challenging rejecting two members of the Grand Jury, as far above all exception as any two persons in the U. S. I suppose our informant is inaccurate in his terms, and has mistaken an objection by the criminal voluntary retirement of the gentlemen with the permission of the court, for a challenge rejection, which, in the case of a Grand Jury is impossible. Be this as it may, and the result before the formal tribunal, fair or false, it becomes our duty to provide that full testimony shall be laid before the Legislature, through them the public. For this purpose, it is necessary that we be furnished with the testimony of every person who shall be with you as a witness. If the Grand Jury find a bill, the evidence given in court, taken as verbatim as possible, will be what we desire. If there be no bill, consequently no examination before court, then I must beseech you to have every man privately examined by way of affidavit, and to furnish me with the whole testimony. In the former case, the person taking down the testimony as orally delivered in court, should make oath that he believes it to be substantially correct. In the latter case, the certificate of the magistrate administering the oath, and signature of the party, will be proper; and this should be done before they receive their compensation, that they may not evade examination. Go into any expense necessary for this purpose, meet it from the funds provided by the Attorney general for the other expenses. He is not here, or this request would have gone from him directly. I salute you with friendship respect.

George Hay
Hay, George
May 28, 07
Washington
Thomas Jefferson
Jefferson, Thomas
Dear Sir,

—I have this moment recd. your letter of the 25th, and hasten to answer it. If the grand jury do not find a bill against Burr, as there will be no examination before a petty jury, Bollman’s pardon need not in that case to be delivered; but if a bill be found, and a trial had, his evidence is deemed entirely essential, in that case his pardon is to be produced before he goes to the book. In my letter of the day before yesterday, I enclosed you Bollman’s written communication to me, observed you might go so far, if he prevaricated, as to ask him whether he did not say so so to Mr. Madison and myself. On further reflection I think you may go farther, if he prevaricates grossly, shew the paper to him, and ask if it is not his handwriting, confront him by its contents. I enclose you some other letters of Bollman to me on former occasions, to prove by similitude of hand that the paper I enclosed on the 26th was of his handwriting. I salute you with esteem respect.

Bollman
Bollman
June 2, 07
Washington
George Hay
Hay, George
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, altho’ they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial 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 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, independent of each other. As to acts, therefore, which are to be done by either, it has given no controul to another branch. A judge, I presume, cannot sit on a bench without a commission, or a record of a commission; 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, shews it did not intend to give the judiciary that controul 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 without appeal, under any law, they may give to it different and opposite constructions. Thus, in the case of William Smith, the H of R 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 Callendar some others, the judges determined the sedition act was valid under the Constitution, and exercised their regular powers of sentencing them to fine 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 Senate act on the construction, that until delivery from the executive department, a commission is in their possession, within their rightful power; and in cases of commissions not revocable at will, where, after the Senate’s approbation the President’s signing sealing, new information of the unfitness of the person has come to hand before the delivery of the commission, new nominations have been made 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 Senate within their peculiar department. I presume, therefore, that in a case where our decision is by the Constitution the supreme one, that which can be carried into effect, it is the constitutionally authoritative one, and that that by the judges was coram non judice, 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, denounced as not law; 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 extrajudicially 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 development as a case, incidental only, might render proper. I salute you with friendship and respect.

Thomas Jefferson
Jefferson, Thomas
June 5, 07
Washington
George Hay
Hay, George
Dear Sir,

—Your favor of the 31st 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; tho’ the same views of protecting the offender may again reduce the number to 16., in order to lessen the change of getting 12. to concur. It is understood, that wherever Burr met with subjects who did not chuse 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 Genl. Dearborne, 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, gave another proof of being a great man in little things, while he is really small in great ones. I must add General Dearborne’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 anything 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 respect.

George Hay
Hay, George
June 12, 07
Washington
Thomas Jefferson
Jefferson, Thomas
Sir,

—Your letter of the 9th is this moment received. Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, to whom, I assure you of my readiness under that restriction, voluntarily to furnish on all occasions, whatever the purposes of justice may require. But the letter of Genl Wilkinson, of Oct 21, requested for the defence of Colonel Burr, with every other paper relating to the charges against him, which were in my possession when the Attorney General went on to Richmond in March, I then delivered to him; and I have always taken for granted he left the whole with you. If he did, the bundle retains the order in which I had arranged it, you will readily find the letter desired, under the date of it’s receipt, which was Nov 25; but lest the Attorney General should not have left those papers with you, I this day write to him to forward this one by post. An uncertainty whether he is at Philadelphia, Wilmington, or New Castle, may produce delay in his receiving my letter, of which it is proper you should be apprized. But, as I do not recollect the whole contents of that letter, I must beg leave to devolve on you the exercise of that discretion which it would be my right duty to exercise, by withholding the communication of any parts of the letter, which are not directly material for the purposes of justice.

With this application, which is specific, a prompt compliance is practicable. But when the request goes to ‘copies of the orders issued in relation to Colo Burr, to the officers at Orleans, Natchez, c., by the Secretaries of the War Navy departments,’ it seems to cover a correspondence of many months, with such a variety of officers, civil military, all over the U S, as would amount to the laying open the whole executive books. I have desired the Secretary at War to examine his official communications; and on a view of these, we may be able to judge what can ought to be done, towards a compliance with the request. If the defendant alleges that there was any particular order, which, as a cause, produced any particular act on his part, then he must know what this order was, can specify it, and a prompt answer can be given. If the object had been specified, we might then have had some guide for our conjectures, as to what part of the executive records might be useful to him; but, with a perfect willingness to do what is right, we are without the indications which may enable us to do it. If the researches of the Secretary at War should produce anything proper for communication, pertinent to any point we can conceive in the defence before the court, it shall be forwarded to you.

I salute you with respect and esteem.

Note. On the same day I rec d . from the Sec r at War copies of 2 letters to the Gov r . of Missipi, Orleans, which I immediately inclosed to G. Hay.

Thomas Jefferson
Jefferson, Thomas
June 17, 1807
Washington
George Hay
Hay, George
Sir,

—In answering your letter of the 9th, which desired a communication of one to me from Genl Wilkinson, specified by it’s date, I informed you in mine of the 12th that I had delivered it, with all other papers respecting the charges against Aaron Burr, to the Attorney Genl, when he went to Richmond; that I had supposed he had left them in your possession, but would immediately write to him, if he had not, to forward that particular letter without delay. I wrote to him accordingly on the same day, but having no answer, I know not whether he has forwarded the letter. I stated in the same letter, that I had desired the Secretary at War to examine his office, in order to comply with your further request, to furnish copies of the orders which had been given respecting Aaron Burr and his property; and in a subsequent letter of the same day, I forwarded to you copies of two letters from the Secretary at War, which appeared to be within the description expressed in your letter. The order from the Secretary of the Navy, you said, you were in possession of. The receipt of these papers had, I presume, so far anticipated, and others this day forwarded will have substantially fulfilled the object of a subpœna from the District Court of Richmond, requiring that those officers myself should attend the Court in Richmond, with the letter of Genl Wilkinson, the answer to that letter, the orders of the departments of War the Navy, therein generally described. No answer to Genl Wilkinson’s letter, other than a mere acknolegement of it’s receipt, in a letter written for a different purpose, was ever written by myself or any other. To these communications of papers, I will add, that if the defendant supposes there are any facts within the knolege of the Heads of departments, or of myself, which can be useful for his defence, from a desire of doing anything our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition, through any persons whom the Court shall authorize to take our testimony at this place. I know, indeed, that this cannot be done but by consent of parties; I therefore authorize you to give consent on the part of the U S. Mr. Burr’s consent will be given of course, if he supposes the testimony useful.

As to our personal attendance at Richmond, I am persuaded the Court is sensible, that paramount duties to the nation at large control the obligation of compliance with their summons in this case; as they would, should we receive a similar one, to attend the trials of Blannerhassett others, in the Mississippi territory, those instituted at St. Louis and other places on the western waters, or at any place, other than the seat of government. To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from it’s station by any co-ordinate authority.

With respect to papers, there is certainly a public a private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed; as you will see in the enclosed resolution of the H of Representatives, which produced the message of Jan 22, respecting this case. The respect mutually due between the constituted authorities, in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same candor integrity to which the nation has in like manner trusted in the disposal of it’s judiciary authorities. Considering you as the organ for communicating these sentiments to the Court, I address them to you for that purpose, salute you with esteem respect.

Thomas Jefferson
Jefferson, Thomas
June 19, 07
Washington
George Hay
Hay, George
Dear Sir,

—Yours of the 17th was received last night. Three blank pardons had been (as I expect) made up forwarded by the mail of yesterday, and I have desired 3. others to go by that of this evening. You ask what is to be done if Bollman finally rejects his pardon, the Judge decides it to have no effect? Move to commit him immediately for treason or misdemeanor, as you think the evidence will support; let the Court decide where he shall be sent for trial; and on application, I will have the marshall aided in his transportation, with the executive means. And we think it proper, further, that when Burr shall have been convicted of either treason or misdemeamor, you should immediately have committed all those persons against whom you should find evidence sufficient, whose agency has been so prominent as to mark them as proper objects of punishment, especially where their boldness has betrayed an inveteracy of criminal disposition. As to obscure offenders repenting ones, let them lie for consideration.

I enclose you the copy of a letter received last night, and giving singular information. I have inquired into the character of Graybell. He was an old revolutionary captain, is now a flour merchant in Baltimore, of the most respectable character, whose word would be taken as implicitly as any man’s for whatever he affirms. The letter writer, also, is a man of entire respectability. I am well informed, that for more than a twelvemonth it has been believed in Baltimore, generally, that Burr was engaged in some criminal enterprise, that Luther Martin knew all about it. We think you should immediately despatch a subpœna for Graybell; while that is on the road, you will have time to consider in what form you will use his testimony; e. g. shall L M be summoned as a witness against Burr, Graybell held ready to confront him? It may be doubted whether we could examine a witness to discredit our own witness. Besides, the lawyers say that they are privileged from being forced to breaches of confidence, and that no others are. Shall we move to commit L M, as particeps criminis with Burr? Graybell will fix upon him misprision of treason at least. And at any rate, his evidence will put down this unprincipled impudent federal bull-dog, and add another proof that the most clamorous defenders of Burr are all his accomplices. It will explain why L M flew so hastily to the aid of his ‘honorable friend,’ abandoning his clients their property during a session of a principal court in Maryland, now filled, as I am told, with the clamors ruin of his clients. I believe we shall send on Latrobe as a witness. He will prove that A B endeavored to get him to engage several thousand men, chiefly Irish emigrants, whom he had been in the habit of employing in the works he directs, under pretence of a canal opposite Louisville, or of the Washita, in which, had he succeeded, he could with that force alone have carried everything before him, and would not have been where he now is. He knows, too, of certain meetings of Burr, Bollman, Yrujo, one other whom we have never named yet, but have him not the less in our view.

I salute you with friendship respect.

P. S. Will you send us half a dozen blank subpœnas?

Since writing the within I have had a conversation with Latrobe. He says it was 500. men he was desired to engage. The pretexts were, to work on the Ohio canal, be paid in Washita lands. Your witnesses will some of them prove that Burr had no interest in the Ohio canal, that consequently this was a mere pretext to cover the real object from the men themselves, and all others. Latrobe will set out in the stage of to-morrow evening, be with you Monday evening.

Thomas Jefferson
Jefferson, Thomas
June 20, 1807
Washington
George Hay
Hay, George
Dear Sir,

—Mr. Latrobe now comes on as a witness against Burr. His presence here is with great inconvenience dispensed with, as 150 workmen require his constant directions on various public works of pressing importance. I hope you will permit him to come away as soon as possible. How far his testimony will be important as to the prisoner, I know not; but I am desirous that those meetings of Yrujo with Burr and his principal accomplices, should come fully out, and judicially, as they will establish the just complaints we have against his nation.

I did not see till last night the opinion of the Judge on the subpœna duces tecum against the President. Considering the question there as coram non judice, I did not read his argument with much attention. Yet I saw readily enough, that, as is usual where an opinion is to be supported, right or wrong, he dwells much on smaller objections, and passes over those which are solid. Laying down the position generally, that all persons owe obedience to subpœnas, he admits no exception unless it can be produced in his law books. But if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his constant agency in the concerns of 6. millions of people. Is the law paramount to this, which calls on him on behalf of a single one? Let us apply the Judge’s own doctrine to the case of himself his brethren. The sheriff of Henrico summons him from the bench, to quell a riot somewhere in his county. The federal judge is, by the general law, a part of the posse of the State sheriff. Would the Judge abandon major duties to perform lesser ones? Again; the court of Orleans or Maine commands, by subpœnas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual? The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each, to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive. Again; because ministers can go into a court in London as witnesses, without interruption to their executive duties, it is inferred that they would go to a court 1000. or 1500. miles off, and that ours are to be dragged from Maine to Orleans by every criminal who will swear that their testimony ‘may be of use to him.’ The Judge says, ‘ it is apparent that the President’s duties as chief magistrate do not demand his whole time, are not unremitting.’ If he alludes to our annual retirement from the seat of government, during the sickly season, he should be told that such arrangements are made for carrying on the public business, at and between the several stations we take, that it goes on as unremittingly there, as if we were at the seat of government. I pass more hours in public business at Monticello than I do here, every day; and it is much more laborious, because all must be done in writing. Our stations being known, all communications come to them regularly, as to fixed points. It would be very different were we always on the road, or placed in the noisy crowded taverns where courts are held. Mr. Rodney is expected here every hour, having been kept away by a sick child.

I salute you with friendship and respect.

George Hay
Hay, George
June 23, 1807
Washington
Thomas Jefferson
Jefferson, Thomas
Dear Sir,

—In mine of the 12th I informed you I would write to the Atty General to send on the letter of General Wilkinson of Oct. 21, referred to in my message of Jany 22. He accordingly sent me a letter of that date, but I immediately saw that it was not the one desired, because it had no relation to the facts stated under that reference. I immediately, by letter, apprized him of this circumstance, and being since returned to this place, he yesterday called on me with the whole of the papers remaining in his possession, he assured me he had examined carefully the whole of them, and that the one referred to in the message was not among them, nor did he know where it would be found. These papers have been recurred to so often, on so many occasions, and some of them delivered out for particular purposes, that we find several missing, without being able to recollect what has been done with them. Some of them were delivered to the Attorney of this district, to be used on the occasions which arose in the District Court, a part of them were filed, as is said, in their office. The Atty General will examine their office to day, and has written to the District Attorney to know whether he retained any of them. No researches shall be spared to recover this letter, if recovered, it shall immediately be sent on to you. Compiling the message from a great mass of papers, and pressed in time, the date of a particular paper may have been mistaken, but we all perfectly remember the one referred to in the message, that its substance is there correctly stated. Genl Wilkinson probably has copies of all the letters he wrote me, having expressed a willingness to furnish the one desired by the Court, the defendant can still have the benefit of it. Or should he not have the particular one on which that passage in the message is founded, I trust that his memory would enable him to affirm that it is substantially correct. I salute you with friendship respect.

Thomas Jefferson
Jefferson, Thomas
Aug. 7, 07
Monticello
George Hay
Hay, George
Dear Sir,

—I inclose you a letter received yesterday on the subject of Genl. Presley Nevil. With respect to both him his son I believe there is no doubt of a participation in Burr’s designs but I suppose that after the issue of the principal trial will be the proper time to decide what subordinate offenders may be laid hold of.

I learn by the newspapers that I am to have another subpœna duces tecum for Eaton’s declaration. With respect to my personal attendance higher duties keep me here. During the present ensuing months I am here to avoid the diseases of tide water situations and all communications on the business of my office, by arrangements which have been taken, will be daily received and transacted here. With respect to the paper in question it was delivered to the Attorney Genl with all the other papers relating to Burr. I have therefore neither that nor any of the others in my possession. Possibly the Atty Genl may have delivered it to you. If not, he has it, he is the person to whom a subpœna to bring that or any others into court, may be at once addressed. I salute you with friendship respect.

The most interesting of this series, however, is a mere draft of a letter to Hay, which may never have been sent, but which is of the utmost importance.

The enclosed letter is written in a spirit of conciliation with the desire to avoid conflicts of authority between the high branches of the govmt which would discredit it equally at home abroad. That Burr his counsel should wish to [struck out “divert the public attention from him to this battle of giants was to be”] convert his Trial into a contest between the judiciary Exve Authorities was to be expected. But that the Ch. Justice should lend himself to it, and take the first step to bring it on, was not expected. Nor can it be now believed that his prudence or good sense will permit him to press it. But should he contrary to expectation, proceed to issue any process which should involve any act of force to be committed on the persons of the Exve or heads of depmts, I must desire you to give me instant notice, by express if you find that can be quicker done than by post; and that moreover you will advise the marshall on his conduct, as he will be critically placed between us. His safest way will be to take no part in the exercise of any act of force ordered in this case. The powers given to the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of preeminence, every individual also from judiciary vengeance, and the marshal may be assured of it’s effective exercise to cover him. I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature he may have means provided for giving to individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. Will not the associate judge assume to divide his court and procure a truce at least in so critical a conjuncture.

George Hay
Hay, George
August 20, 1807
Monticello
Thomas Jefferson
Jefferson, Thomas
Dear Sir,

—I received yesterday your favor of the 11th. An error of the post office had occasioned the delay. Before an impartial jury, Burr’s conduct would convict himself, were not one word of testimony to be offered against him. But to what a state will our law be reduced by party feelings in those who adminster it? Why do not Blannerhassett, Dayton, c., demand private comfortable lodgings? In a country where an equal application of law to every condition of man is fundamental, how could it be denied to them? How can it ever be denied to the most degraded malefactor? The enclosed letter of James Morrison, covering a copy of one from Alston to Blannerhassett, came to hand yesterday. I enclosed them, because it is proper all these papers should be in one deposit, because you should know the case all its bearings, that you may understand whatever turns up in the cause. Whether the opinion of the letter writer is sound, may be doubted. For, however these, other circumstances which have come to us, may induce us to believe that the bouncing letter he published, the insolent one he wrote to me, were intended as blinds, yet they are not sufficient for legal conviction. Blannerhassett his wife could possibly tell us enough. I commiserate the suffering you have to go through in such a season, and salute you with great esteem and respect.

Thomas Jefferson
Jefferson, Thomas
Sep, 7, 07
Monticello
George Hay
Hay, George
Dear Sir,

—I received, late last night, your favor of the day before, and now re-enclose you the subpœna. As I do not believe that the district courts have a power of commanding the executive government to abandon superior duties attend on them, at whatever distance, I am unwilling, by any notice of the subpœna, to set a precedent which might sanction a proceeding so preposterous. I enclose you, therefore, a letter, public for the court, covering substantially all they ought to desire. If the papers which were enclosed in Wilkinson’s letter may, in your judgment, be communicated without injury, you will be pleased to communicate them. I return you the original letter.

I am happy in having the benefit of Mr. Madison’s counsel on this occasion, he happening to be now with me. We are both strongly of opinion, that the prosecution against Burr for misdemeanor should proceed at Richmond. If defeated, it will heap coals of fire on the head of the Judge; if convicted, it will give time to see whether a prosecution for treason against him can be instituted in any, and what other court. But we incline to think, it may be best to send Blannerhasset Smith (Israel) to Kentucky, to be tried both for the treason misdemeanor. The trial of Dayton for misdemeanor may as well go on at Richmond.

I salute you with great esteem respect.

George Hay
Hay, George
September 7, 1807
Monticello
Thomas Jefferson
Jefferson, Thomas
Sir,

—Understanding that it is thought important that a letter of Nov. 12, 1806, from General Wilkinson to myself, should be produced in evidence on the charges against Aaron Burr, depending in the District Court now sitting in Richmond, I send you a copy of it, omitting only certain passages, the nature of which is explained in the certificate subjoined to the letter. As the attorney of the United States, be pleased to submit the copy certificate to the uses of the Court. I salute you with great esteem and respect.

The certificate read:

On re-examination of a letter of Nov. 12, 1806, from Genl. Wilkinson to myself, (which having been for a considerable time out of my possession, and now returned to me,) I find in it some passages entirely confidential, given for my information in the discharge of my executive functions, and which my duties the public interest forbid me to make public. I have therefore given above a correct copy of all those parts which I ought to permit to be made public. Those not communicated are in nowise material for the purposes of justice on the charges of treason or misdemeanor depending against Aaron Burr; they are on subjects irrelevant to any issues which can arise out of those charges, could contribute nothing towards his acquittal or conviction. The papers mentioned in the 1st and 3d paragraphs, as enclosed in the letters, being separated therefrom, not in my possession, I am unable, from memory, to say what they were. I presume they are in the hands of the attorney for the U. S. Given under my hand this 7th day of September, 1807.

1

This was A Vindication of Thomas Jefferson, against the charges contained in a Pamphlet entitled Serious Considerations. By Grotius. N. Y. 1800.

1

From the Southern Bivouac, II., 635.

1

A letter of the same purport was written to Dearborn. Later the President wrote to Gallatin.

Thomas Jefferson
Jefferson, Thomas
July 1, 1807
Gallatin
Gallatin

I received last night your letter from Havre de Grace, in which you count on being here to-day by two o’clock. It will save a day in the measures we may determine to take if I can see you soon after your arrival. If you arrive before half after three, come and take a family dinner with me, that I may put you in possession of what is under contemplation, so that you may have to reflect on it till to-morrow, when, as you will see by another note, I have asked a meeting. Affectionate salutations.

1

The following are the President’s letters to the Governor of Virginia concerning the steps to be taken consequent upon the Chesapeake outrage:

Thomas Jefferson
Jefferson, Thomas
July 8, 07
Washington
Sir,

—You will have received from the Secretary at War a letter, requesting that the quota of the State of Virginia of 100,000 militia be immediately organized and put in readiness for service at the shortest warning, but that they be not actually called out until further requisition. The menacing attitudes which the British ships of war have taken in Hampton Road, the actual blockade of Norfolk, their having sounded the entrance, as if with a view to pass up to the city, render it necessary that we should be as well prepared there as circumstances will permit. The Secretary at War being gone to N York to arrange a plan of defence for that city, it devolves on me to request that, according to the applications you may receive from the officers charged with the protection of the place, and the information which you are more at hand to obtain than we are here, you will order such portions of the militia as you shall think necessary most convenient to enter immediately on duty, for the defence of the place protection of the country, at the expense of the U. S. We have, moreover, 4 gunboats hauled up at Hampton, 4 others on the stocks in Matthews county, under the care of Commodore Samuel Barron, which we consider as in danger. I must request you also to order such aids of militia, on the application of that officer, as you shall think adequate to their safety. Any arms which it may be necessary to furnish to the militia for the present objects, if not identically restored to the State, shall be returned in kind or in value by the U S. I have thought I could not more effectually provide for the safety of the places menaced, than by committing it to your hands, as you are nearer the scene of action, have the necessary powers over the militia, can receive information, give aid so much more promptly than can be done from this place. I will ask communications from time to time of your proceedings under this charge. I salute you with great esteem respect.

Thomas Jefferson
Jefferson, Thomas
July 19, 1807
Washington
Sir,

—Your letter of the 15th was received yesterday, and the opinion you have given to General Matthews against allowing any intercourse between the British Consul the ships of his nation remaining in our waters, in defiance of our authority, is entirely approved. Certainly while they are conducting themselves as enemies de facto, intercourse should be permitted only as between enemies, by flags under the permission of the commanding officers, with their passports. My letter of the 16th mentioned a case in which a communication from the British officers should be received if offered. A day or two ago, we permitted a parent to go on board the Bellona with letters from the British minister, to demand a son impressed; and others equally necessary will occur, but they should be under the permission of some officer having command in the vicinity.

With respect to the disbanding some portion of the troops, altho I consider Norfolk as rendered safe by the batteries, the two frigates, the 8 gun-boats present, and 9 others a bomb-vessel which will be there immediately, consequently that a considerable proportion of the militia may be spared, yet I will pray you to let that question lie a few days, as in the course of this week we shall be better able to decide it. I am anxious for their discharge the first moment it can be done with safety, because I know the dangers to which their health will be exposed in that quarter in the season now commencing. By a letter of the 14th from Col. Tatham, stationed at the vicinities of Lynhaven Bay to give us daily information of what passes, I learn that the British officers men often go ashore there, that on the day preceding, 100 had been at the pleasure-house in quest of fresh provisions water, that negroes had begun to go off to them. As long as they remain there, we shall find it necessary to keep patroles of militia in the neighborhood sufficiently strong to prevent them from taking or receiving supplies. I presume it would be thought best to assign the tour for the three months to come, to those particular corps who being habituated to the climate of that part of the country, will be least likely to suffer in their health; at the end of which time others from other parts of the country may relieve them, if still necessary. In the meantime, our gun-boats may all be in readiness, and some preparations may be made on the shore, which may render their remaining with us not eligible to themselves. These things are suggested merely for consideration for the present, as by the close of the week I shall be able to advise you of the measures ultimately decided on. I salute you with friendship respect.

Thomas Jefferson
Jefferson, Thomas
July 24, 1807
Washington
Sir,

—Yours of the 20th has been duly received. The relation in which we stand with the British naval force within our waters is so new, that differences of opinion are not to be wondered at respecting the captives, who are the subject of your letter. Are they insurgents against the authority of the laws? Are they public enemies, acting under the orders of their sovereign? or will it be more correct to take their character from the act of Congress for the preservation of peace in our harbors, which authorizes a qualified war against persons of their demeanor, defining it’s objects, limiting it’s extent? Considering this act as constituting the state of things between us them, the captives may certainly be held as prisoners of war. If we restore them it will be an act of favor, and not of any right they can urge. Whether Great Britain will give us that reparation for the past security for the future, which we have categorically demanded, cannot as yet be foreseen; but we have believed we should afford an opportunity of doing it, as well from justice the usage of nations, as a respect to the opinion of an impartial world, whose approbation esteem are always of value. This measure was requisite, also, to produce unanimity among ourselves; for however those nearest the scenes of aggression irritation may have been kindled into a desire for war at short hand, the more distant parts of the Union have generally rallied to the point of previous demand of satisfaction war if denied. It was necessary, too, for our own interests afloat on the ocean, under the grasp of our adversary; and, added to all this, Great Britain was ready armed on our lines, while we were taken by surprise, in all the confidence of a state of peace, needing time to get our means into activity. These considerations render it still useful that we should avoid every act which may precipitate immediate general war, or in any way shorten the interval so necessary for our own purposes; and they render it advisable that the captives, in the present instance, should be permitted to return, with their boat, arms, c., to their ships. Whether we shall do this a 2d, a 3d, or a 4th time, must still depend on circumstances. But it is by no means intended to retire from the ground taken in the proclamation. That is to be strictly adhered to. And we wish the military to understand that while, for special reasons, we restore the captives in this first instance we applaud the vigilance activity which, by taking them, have frustrated the object of their enterprise, and urge a continuance of them, to intercept all intercourse with the vessels, their officers and crews, and to prevent them from taking or receiving supplies of any kind; and for this purpose, should the use of force be necessary, they are unequivocally to understand that force is to be employed without reserve or hesitation. I salute you with great esteem respect.

Thomas Jefferson
Jefferson, Thomas
July 27, 1807
Washington
Sir,

—The Secretary at War having returned from New York, we have immediately taken up the question respecting the discharge of the militia, which was the subject of your two last letters, and which I had wished might remain undecided a few days. From what we have learnt of the conduct of the British squadron in the Chesapeake, since they have retired from Hampton roads, we suppose that, until orders from England, they do not contemplate any further acts of hostility, other than those they are daily exercising, by remaining in our waters in defiance of the national authority, and bringing-to vessels within our jurisdiction. Were they even disposed to make an attempt on Norfolk, it is believed to be sufficiently secured by the two frigates Cybele and Chesapeake, by the 12 gun-boats now there, 4 more from Matthews county expected,—by the works of Fort Nelson; to all of which we would wish a company of artillery, of the militia of the place, to be retained trained, putting into their hands the guns used at Norfolk, and a company of Cavalry to be employed on the bay shore between Norfolk Cape Henry, to cut off from these vessels all supplies, according to the injunctions of the proclamation, to give immediate notice to Norfolk should any symptoms of danger appear,—to oppose which the militia of the borough and the neighboring counties should be warned to be in constant readiness to march at a moment’s warning. Considering these provisions as quite sufficient for the safety of Norfolk, we are of opinion that it will be better immediately to discharge the body of militia now in service, both on that the other side of James river. This is rendered expedient, not only that we may husband from the beginning those resources which will probably be put to a long trial, but from a regard to the health of those in service, which cannot fail to be greatly endangered during the sickly season now commencing, and the discouragement, which would thence arise, to that ardor of public spirit now prevailing. As to the details necessary on winding up this service, the Secretary at War will write fully, as he will, also, relative to the force retained in service, and whatever may hereafter concern them or their operations, which he possesses so much more familiarly than I do, have been gone into by myself immediately, only on account of his absence on another service.

The diseases of the season incident to most situations on the tidewaters, now beginning to show themselves here, to threaten some of our members, together with the probability of a uniform course of things in the Chesapeake, induce us to prepare for leaving this place during the two sickly months, as well for the purposes of health as to bestow some little attention to our private affairs, which is necessary at some time of every year. Our respective stations will be fixed known, so that everything will find us at them, with the same certainty as if we were here; and such measures of intercourse will be established as that the public business will be carried on at them, with all the regularity dispatch necessary. The present arrangements of the post office admit an interchange of letters between Richmond and Monticello twice a week, if necessary, and I propose that a third shall be established during the two ensuing months, of which you shall be informed. My present expectation is to leave this place for Monticello, about the close of this or the beginning of the next week. The Secretary at War will continue in this neighborhood until we shall further see that the course of things in the Chesapeake will admit of his taking some respite. I salute you with great esteem and respect.

Thomas Jefferson
Jefferson, Thomas
August 7, 07
Monticello
Dear Sir,

—Your letters of July 31 Aug 5 were received yesterday. The ground taken in conformity with the Act of Congress, of considering as public enemies British armed vessels in or entering our waters, gives us the benefit of a system of rules, sanctioned by the practice of nations in a state of war, and consequently enabling us with certainty satisfaction to solve the different cases which may occur in the present state of things. With these rules most officers are acquainted, and especially those old enough to have borne a part in the revolutionary war.

1. As to the enemy within our waters, intercourse, according to the usages of war, can only be by flag; and the ceremonies respecting that are usually a matter of arrangement between the adverse officers commanding in the neighborhood of each other. If no arrangement is agreed on, still the right of sending a flag is inherent in each party, whose discretion will direct him to address it to the proper adverse authority; as otherwise it would be subject to delay or rejection. Letters addressed by flag to persons in authority with the adverse power, may be sent sealed, should be delivered. But, if to others, or to their own friends happening to be within the limits of the adversary, they must be open. If innocent in the judgment of the receiving officer, courtesy requires their delivery; if otherwise, they may be destroyed or returned by him; but in a case of only suspended amity, as ours, they should be returned. Letters sent from the interdicted vessels to their consul in Norfolk must be open; and the propriety of delivering them judged of by our officer, tempering his judgment however with liberality and urbanity. Those to their minister plenipoty here, sealed or unsealed, should be sent to the Secretary of State without any delay. As to the demand of fugitive slaves, it was the custom during the late war, for the owner to apply to our commander for a flag, and to go himself with that, to exhibit his claim and receive the fugitive. And with respect to Americans detained on board their ships, the application should be still, as heretofore, made through the Secretary of State, to whom proper documents are to be furnished. But without waiting for his application, the British officer, knowing them to be Americans freemen, cannot but feel it a duty to restore them to their liberty on their own demand.

2. As to the residue of the British nation, with whom we are as yet in peace, their persons vessels, unarmed, are free to come into our country without question or molestation. And even armed vessels, in distress, or charged, under due authority, with despatches addressed to the government of the U. S., or its authorized agents, are, by a proviso in the proclamation, to be received. This exception was meant to cover the British packets coming to New York, which are generally armed, as well as to keep open, through other channels, the communication between the governments. Such a vessel (as the Columbine ) needs no flag, because she is not included in the interdict. Her repairs supplies are to be regulated by the collector of the port, who may permit them liberally (if no abuse be justly suspected) so far as wanted to carry her back to the port from whence she came. The articles of intercourse, stay departure, are to be specially superintended by such person as the government shall authorize instruct.

I have thus far, in compliance with your request, stated the practice of nations so generally as to meet the cases which may arise in the neighborhood of Norfolk. In doing this, I may, in some cases, have mistaken the practice. Where I have done so, I mean that my opinion shall be subject to correction from that practice. On determining that the militia should be disbanded, except so small a portion as would require only a major to command, we concluded that so long as Capt. Decatur should remain in his present station, he should be the officer to receive, authorize regulate intercourse by flag, with the British squadron in the Chesapeake. He has accordingly, I expect, received instructions to that effect, from the Secretary of the Navy, and I shall communicate to him a copy of this letter to assist him in that duty.

The Secretary at War, I presume, has written to you on the appointment of a Major to command the militia retained. In your selection of the officer, I have no doubt you will be sensible of the importance of naming one of intelligence activity as on him we are to rely for daily information from that interesting quarter.

Thomas Jefferson
Jefferson, Thomas
August 11, 1807
Monticello
Dear Sir,

—Your favor of the 7th is received. It asks my opinion on several points of law arising out of the Act of Congress for accepting 30,000 volunteers. Altho’ your own opinion, those of some of your counsellors, more recent in the habit of legal investigation, would be a safer guide for you than mine, unassisted by my ordinary able associates, yet I shall frankly venture my individual thoughts on the subject, and participate with you in any risk of disapprobation to which an honest desire of furthering the public good may expose us.

In the construction of a law, even in judiciary cases of meum et tuum, where the opposite parties have a right counter-right in the very words of the law, the Judge considers the intention of the law-giver as his true guide, and gives to all the parts expressions of the law, that meaning which will effect, instead of defeating, it’s intention. But in laws merely executive, where no private right stands in the way, and the public object is the interest of all, a much freer scope of construction, in favor of the intention of the law, ought to be taken, ingenuity ever should be exercised in devising constructions, which may save to the public the benefit of the law. Its intention is the important thing: the means of attaining it quite subordinate. It often happens that, the Legislature prescribing details of execution, some circumstance arises, unforeseen or unattended to by them, which would totally frustrate their intention, were their details scrupulously adhered to, deemed exclusive of all others. But constructions must not be favored which go to defeat instead of furthering the principal object of their law, and to sacrifice the end to the means. It being as evidently their intention that the end shall be attained as that it shall be effected by any given means, if both cannot be observed, we are equally free to deviate from the one as the other, and more rational in postponing the means to the end. In the present case, the object of the act of Congress was to relieve the militia at large from the necessity of leaving their farms families, to encounter a service very repugnant to their habits, and to permit that service to be assumed by others ardently desiring it. Both parties, therefore, ( they comprehend the whole nation,) would willingly waive any verbal difficulties, or circumstances of detail, which might thwart their mutual desires, would approve all those views of the subject which facilitate the attainment of their wishes.

It is further to be considered that the Constitution gives the executive a general power to carry the laws into execution. If the present law had enacted that the service of 30,000 volunteers should be accepted, without saying anything of the means, those means would, by the Constitution, have resulted to the discretion of the executive. So if means specified by an act are impracticable, the constitutional power remains, supplies them. Often the means provided specially are affirmative merely, and, with the constitutional powers, stand well together; so that either may be used, or the one supplementary to the other. This aptitude of means to the end of a law is essentially necessary for those which are excutive; otherwise the objection that our government is an impracticable one, would really be verified.

With this general view of our duty as executive officers, I proceed to the questions proposed by you.

1. Does not the act of Congress contemplate the association of companies to be formed before commissions can be issued to the Captains, c.?

2. Can battalion or field-officers be appointed by either the State or Congressional laws, but to battalions or regiments actually existing.

3. The organization of the companies into battalions and regiments belonging to the President, can the Governor of the State issue commissions to these officers before that organization is made announced to him?

4. Ought not the volunteers tendering their services, under the act of Feb. 24, 07, to be accepted by the President before the commissions can issue?

Had we no other executive powers but those given in this act, the 1 st ., 2 d ., 3 d . questions would present considerable difficulties, inasmuch as the act of Congress does appear, as you understand it, to contemplate that the companies are to be associated, the battalions, squadrons, regiments, brigades, divisions organized, before commissions are to issue. And were we to stop here the law might stop also; because I verily believe that it will be the zeal activity alone of those destined for commands, which will give form body to the floating ardor of our countrymen to enter into this service, and bring their wills to a point of union effect. We know from experience that individuals having the same desires are rarely brought into an association of them, unless urged by some one assuming an agency, that in military associations the person of the officer is a material inducement. Whether our constitutional powers to carry the laws into execution, would not authorize the issuing a previous commission (as they would, had nothing been said about commissions in the law), is a question not necessary now to be decided; because they certainly allow us to do what will be equally effectual. We may issue instructions or warrants to the persons destined to be captains, c., authorizing them to superintend the association of the companies, to perform the functions of a captain c., until commissions may be regularly issued, when such a commission will be given to the bearer, or a warrant authorizing the bearer to superintend the organization of the companies associated in a particular district, into battalions, squadrons, c., and otherwise to perform the functions of a colol. c., until a commission may regularly issue, when such a commission will be given to the bearer. This is certainly within the constitutional powers of the executive, and with such a warrant, I believe, the person bearing it would act with the same effect as if he had the commission.

As to the 4th question, the execution of this law having been transferred to the State Executives, I did consider all the powers necessary for it’s execution as delegated from the President to them. Of this I have been so much persuaded that, to companies offering their services under this law, I have answered that the power of acceptance was in the Governor, and have desired them to renew their offer to him. If the delegation of this power should be expressly made, it is hereby fully delegated.

To the preceding I will add one other observation. As we might still be disappointed in obtaining the whole number of 11,563, were they apportioned among the several districts, each restrained to it’s precise apportionment (which some might fail to raise), I think it would better secure the complete object of the law to accept all proper offers, that the excess of some districts may supply the deficiencies of others. When the acceptances are all brought together, the surplus, if any, will be known, and, if not wanted by the U. S., may be rejected; and in doing this, such principles of selection may be adopted as, without any imputation of partiality, may secure to us the best offers. For example, 1. we may give a preference to all those who will agree to become regulars, if desired. This is so obviously for the public advantage that no one could object to it. 2. we may give a preference to 12 month volunteers over those for 6. months; and other circumstances of selection will of course arise from the face of the offers, such as distribution, geographical position, proportion of cavalry, riflemen, c.

I have thus, without reserve, expressed my ideas on the several doubts stated in your letters, I submit them to your consideration. They will need it the more, as the season and other circumstances occasioning the members of the administration to be in a state of separation at this moment, they go without the stamp of their aid approbation. It is our consolation encouragement that we are serving a just public, who will be indulgent to any error committed honestly, relating merely to the means of carrying into effect what they have manifestly willed to be a law.

I salute you with great esteem and respect.

Thomas Jefferson
Jefferson, Thomas
Sep. 7, 1807
Monticello
Dear Sir,

—I now return you Majr. Newton’s letters. The intention of the squadron in the bay is so manifestly pacific, that your instructions to him are perfectly proper, not to molest their boats merely for approaching the shore. While they are giving up slaves citizen seamen, attempting nothing ashore, it would not be well to stop this by any new restriction. If they come ashore indeed, they must be captured, or destroyed if they cannot be captured, because we mean to enforce the proclamation rigorously in preventing supplies. So the instructions already given as to intercourse by flag, as to sealed unsealed letters, must be strictly adhered to. It is so material that the seaport towns should have artillery militia duly trained, that I think you have done well to permit Captain Nestell’s company to have powder and ball to exercise. With respect to gun-carriages, furnaces clothes, I am so little familiar with the details of the War department that I must beg those subjects to lie till the return of the Secretary at War, which will be in three weeks. Proposing to be absent from this place from the 9th to the 16th instant, our daily post will be suspended during that interval. I salute you with great esteem respect.

Thomas Jefferson
Jefferson, Thomas
Nov. 1, 1807
Washington
Dear Sir,

—Your late letters have been regularly referred to the Secretary at War, who has already answered their several enquiries, or will do it immediately. I am inclined to believe that the departure of the British vessels from our waters must be in consequence of orders from England to respect the authorities of the country. Within about a fortnight we think we may expect answers from England which will decide whether this cloud is to issue in a storm or calm. Here we are pacifically inclined, if anything comes which will permit us to follow our inclinations. But whether we have peace or war, I think the present Legislature will authorize a complete system of defensive works, on such a scale as they think we ought to adopt. The state of our finances now permits this. To defensive works by land they will probably add a considerable enlargement of the force in gun-boats. A combination of these, will, I think, enable us to defend the Chesapeake at it’s mouth, and save the vast line of preparation which the defence of all it’s interior waters would otherwise require. I salute you with great esteem and respect.

1

Madison’s draft:

A free use of their harbors waters, the means of refitting refreshment, of succor to their sick suffering have at all times and on equal principles, been extended to all; and this too while the officers of one of the belligerents recd among us were in a continued course of insubordination to the laws, of violence to the persons of our citizens, and of trespass on their property. These abuses of the laws of hospitality have become habitual to commanders of British armed ships hovering on our coasts and frequenting our harbors. They have been the subject of repeated representations to their govt.: assurances have been given that proper orders should restrain them within the limits of the rights the respect due to a friendly nation: but these orders and assurances have been without effect; nor has a single instance of punishment of past wrongs taken place. Even the murder of a citizen peaceably pursuing his occupation within the limits of our jurisdiction remains unpunished; and omitting late insults as gross as language could offer, the public sensibility has at length been brought to a serious crisis by an act transcending all former outrages. A frigate of the U. S. which had just left her port on a distant service, trusting to a state of peace therefore unprepared for defence, has been surprised and attacked by a vessel of superior force, being one of a squadron then lying in our waters to cover the transaction, has been disabled for service with the loss of a number of men killed wounded. This enormity was not merely without provocation or any justifiable cause; it was committed with the avowed insulting purpose of violating a ship of war under the American flag, and taking from her by force a part of her crew; a pretext the more flagrant as the British commander was not unapprised that the seamen in question were native citizens of the U. States. Having effected her lawless bloody purpose, the British vessel returned immediately to anchor with her squadron within our jusridiction. Hospitality under such circumstances ceases to be a duty; and a continuance of it with such uncontrouled abuses, would tend only by multiplying injuries irritations, to bring on a rupture which it is the interest, and it is hoped the inclination of both nations to avoid. In this light the subject cannot but present itself to the British govt.; and strengthen the motives to an honorable reparation for the wrong which has been done, and to that effectual controul of its naval commanders, which alone can justify the govt. of the U. S. in the exercise of those hospitalities which it is constrained to discontinue, and maintain undiminished all the existing relations between the two nations.

Indorsed “Department of State Recd. June 29, 07 Proclmn.”

1

Jefferson further wrote to Cooper:

Thomas Jefferson
Jefferson, Thomas
Sepr. 1, 07
Monticello
Cooper
Cooper
Dear Sir,

—Your favor of the 9th is received, with it the copy of Dr. Priestley’s Memoirs, for which I return you many thanks. I shall read them with great pleasure, as I revered the character of no man living more than his. With another part of your letter I am sensibly affected. I have not here my correspondence with Govr. McKean to turn to, but I have no reason to doubt that the particular letter referred to may have been silent on the subject of your appointment as stated. The facts are these: The opinion I have ever entertained, still entertain as strongly as ever, of your abilities integrity, was such as made it my wish, from the moment I came to the administration, that you should be employed in some public way. On a review, however, of all circumstances, it appeared to me that the State of Pensylva had occasions for your service, which would be more acceptable than any others to yourself, because they would leave you in the enjoyment of the society of Dr. Priestley, to which your attachment was known. I therefore expressed my solicitude respecting you to Gov. McKean, whose desires to serve yourself the public by employing you I knew to be great, of course that you were an object of mutual concern, and I received his information of having found employment for your talents with the sincerest pleasure. But pressed as I am perpetually by an overflow of business, adopting from necessity the rule of never answering any letter, or part of a letter, which can do without answer, in replying to his which related to other subjects, I probably said nothing on that, because my former letter had sufficiently manifested how pleasing the circumstance must be to me, and my time practice did not permit me to be repeating things already said. This is a candid statement of that incident, and I hope you will see in it a silence accounted for on grounds far different from that of a continuance of my estimation good wishes, which have experienced no change. With respect to the schism among the republicans in your State, I have ever declared to both parties that I consider the general government as bound to take no part in it, and I have carefully kept both my judgment, my affections, my conduct, clear of all bias to either. It is true, as you have heard, that a distance has taken place between Mr. Clay myself. The cause I never could learn nor imagine. I had always known him to be an able man, I believed him an honest one. I had looked to his coming into Congress with an entire belief that he would be cordial with the administration, and even before that I had always had him in my mind for a high important vacancy which had been from time to time expected, but is only now about to take place. I feel his loss therefore with real concern, but it is irremediable from the necessity of harmony cordiality between those who are to manage together the public concerns. Not only his withdrawing from the usual civilities of intercourse with me, (which even the federalists with 2 or 3 exceptions keep up,) but his open hostility in Congress to the administration, leave no doubt of the state of his mind as a fact, altho’ the cause be unknown. Be so good as to communicate my respects to Mr. Priestley, and to accept yourself my friendly salutations, assurances of unaltered esteem.

1

On the same day, the President wrote to the Secretary of War:

Thomas Jefferson
Jefferson, Thomas
August 9, 1807
Monticello
Dear Sir,

—I received yesterday yours of the 7th, with the proposition for substituting 32,000 twelve-month volunteers instead of 15,000 regulars as a disposable force, and I like the idea much. It will of course be a subject of consideration when we all meet again, but I repeat that I like it greatly.

On some occasion, a little before I left Washington, when we were together (all, I think, except Mr. Gallatin, but I am not quite so sure as to yourself as the others), conversing on the bungling business which had been made by the officers commanding at Norfolk, with Erskine’s letters, and the more bungling conduct to be expected when the command should devolve on a militia major, Mr. Smith proposed that the whole business of flags should be committed to Decatur. This appeared to obtain at once the general approbation. Thinking it so settled, on lately receiving a letter from Govr. Cabell, asking full explicit instructions as to the mode of intercourse, I endeavored to lay down the general rules of intercourse by flag, as well digested as I could to meet all cases, but concluded by informing him that the whole business was committed to Decatur. Mr. Madison now informs me that either not recollecting or not understanding this to have been the arrangement, instructions have been given to the officer commanding by land, relative to intercourse, which may produce collision. The remedy I think is easy, will on the whole place the matter on more proper ground. That is, to give to the commanding officers by land as well as sea, equal authority to send receive flags. This is the safer, as I see by the papers that Mr. Newton (of Congress) is the Major. I shall accordingly write to Govr. Cabell to-day to correct the error, to inform him that the two commanders stand on an equal footing in the direction of flags.

I wrote you yesterday as to the additional company of infantry employed, and shall await your opinion before I say anything on it to the Governor. I salute you affectionately.

1

Part in brackets struck out.

2

Th. J. to J. M. Shall I send Dayton an answer as above? Shall I leave out the last sentence but one? Or shall I send him no answer?

Note. —This was sent under cover to Mr. Hay, opened for his perusal.—T. J.

1

On the next day, Jefferson wrote to Madison:

. . . It will be very difficult to answer Mr. Erskine’s demand respecting the water casks in the tone proper for such a demand. I have heard of one who, having broke his cane over the head of another, demanded paiment for his cane. This demand might well enough have made part of an offer to pay the damages done to the Chesapeake and to deliver up the authors of the murders committed on board her. I return you the papers received yesterday. The Governor has enclosed me a letter from Genl Mathews of August 13, mentioning the recent arrival of a ship in the Chesapeake, bearing the flag of a Vice-Admiral; from whence he concludes that Barclay has arrived. I salute you affectionately.

1

On the appointment of Shee, the President wrote to James Gamble:

Thomas Jefferson
Jefferson, Thomas
Oct. 21, 07
Washington
James Gamble
Gamble, James
Sir,

—Your favor of the 17th has been duly received. I have long seen, and with very great regret, the schisms which have taken place among the republicans, principally those of Pensylvania New York. As far as I have been able to judge they have not been produced by any difference of political principle, at least any important difference, but by a difference of opinion as to persons. I determined from the first moment to take no part in them, that the government should know nothing of any such differences. Accordingly it has never been attended to in any appointment or refusal of appointment. Genl. Shee’s personal merit universally acknoleged, was the cause of his appointment as Indian Superintendent, and a subsequent discovery that his removal to this place (the indispensable residence of that officer) would be peculiarly unpleasant to him, suggested his translation to another office, to solve the double difficulty. Rarely reading the controversial pieces between the different sections of Republicans, I have not seen the piece in the Aurora, to which you allude; but I may with truth assure you that no fact has come to my knolege which has ever induced any doubt of your continued attachment to the true principles of republican government. I am thankful for the favorable sentiments you are so kind as to express towards me personally, and trust that an uniform pursuit of the principles conduct which have procured, will continue to me an approbation which I highly value. I salute you with great esteem respect.

1

Jefferson further wrote to Paine:

Thomas Jefferson
Jefferson, Thomas
Oct. 9, 07
Washington
Paine
Paine
Dear Sir,

—Your 2d letter on the subject of gunboats came to hand just before my departure from Monticello. In the meantime, the inquiry into the proposition had been referred, agreeably to our usage, or to reason, to the practical persons of the department to which it belonged, deemed most skilful. On my arrival here, I found the answers of the persons to whom it was referred, the substance of which I now enclose you. I am not a judge of their solidity, but I presume they are founded, and the rather as they are from officers entirely favorable to the use of gunboats.

We have as yet no knolege of the arrival of the Revenge in England, but we may daily expect to hear of it; and as we expected she would be detained there in France about a month, it would be a month hence before we can expect her back here. In the meantime, all the little circumstances coming to our knolege are unfavorable to our wishes for peace. If they would but settle the question of impressment from our bottoms, I should be well contented to drop all attempts at a treaty. The other rights of neutral powers will be taken care of by Bonaparte Alexander; and for commercial arrangements we can sufficiently provide by legislative regulations. But as the practice of impressment has taken place only against us, we shall be left to settle that for ourselves; and to do this we shall never again have so favorable a conjuncture of circumstances. Accept my friendly salutations assurances of great esteem respect.

1

On the same day, Jefferson wrote Hay:

Thomas Jefferson
Jefferson, Thomas
September 20, 1807
Monticello
Hay
Hay
Dear Sir,

—General Wilkinson has asked permission to make use, in the statement of Burr’s affair which he is about to publish, of the documents placed in your hands by Mr. Rodney. To this, consent is freely given with one reservation. Some of these papers are expressed to be confidential. Others containing censures on particular individuals, are such as I always deem confidential, therefore cannot communicate, but for regularly official purposes, without a breach of trust. I must therefore ask the exercise of your discretion in selecting all of this character, and of giving to the General the free use of the others. It will be necessary that the whole be returned to the Attorney General by the first week in the next month, as a selection will be made from them to make part of the whole evidence in the case, which I shall have printed and communicated to Congress. I salute you with great esteem respect.

1

The following papers relate to the drafting of this message:

Albert Gallatin
Gallatin, Albert
21 October, 1807
Thomas Jefferson
Jefferson, Thomas
Dear Sir,

—I have kept your message longer than usual, because my objections being less to details than to its general spirit, I was at a loss what alterations to submit to your consideration.

Instead of being written in the style of the Proclamation, which has been almost universally approved at home abroad, the message appears to me to be rather in the shape of a manifesto issued against Great Britain on the eve of a war, than such as the existing undecided state of affairs seems to require. It may either be construed into a belief that justice will be denied; a result not to be anticipated in an official communication; or it may be distorted into an eagerness of seeing matters brought to an issue by an appeal to arms. Although it be almost certain that the expected answer will decide the question, yet unforeseen circumstances may protract its discussion. The British government may, without acceding precisely to your ultimatum, take some new admissible ground, which will require your sanction delay the final arrangement. So long as any hope, however weak, remains of an honorable settlement, it is desirable that no act of the Executive may, by widening the breach or unnecessarily hurting the pride of Great Britain, have a tendency to defeat it. Unless therefore some useful important object can be obtained by the message in its present form, I would wish its general colour expression to be so softened; nothing inserted but what is necessary for assisting Congress in their first deliberations to account for their early meeting; no recapitulation of former outrages further than as connected with the unratified treaty; no expression of a belief that war is highly probable: which last seems either to presuppose absolute injustice on the part of Great Britain, or to acknowledge high pretensions on ours. For unless some important object be in view, those may do harm cannot be productive of any substantial benefit.

If the object be to urge Congress to make the necessary preparations for war, this may be attained by a direct and strong recommendation founded not on the probability but on the uncertainty of the issue. If it be to incite them to a speedy declaration of war, this also seems premature, may as effectually be done at its proper time when the answer of the British Government will be communicated. It may be added that recommendations or incitements to war should not, under our Constitution, be given by the Executive, without much caution; and, above all, that the precise manner time of acting, which Congress should adopt are subjects which have not yet been sufficiently examined.

That the choice of the manner will not probably be left to us is true: that Great Britain will prefer actual war to any system of retaliation short of war which we might select, I do believe. Yet, how far it may be proper to leave the choice to her, deserves at least consideration. Public opinion abroad is to us highly valuable. At home it is indispensable. We will be universally justified in the eyes of the world, unanimously supported by the nation, if the ground of war be England’s refusal to disavow or to make satisfaction for the outrage on the Chesapeake. But I am confident that we will meet with a most formidable opposition should England do justice on that point, and we should still declare war because she refuses to make the proposed arrangement respecting seamen. It is, in that case that measures short of war may become proper, leaving to England, if she chooses the odium of commencing an actual war. But although that policy may be questionable, and decisive measures even under that contingency be thought preferable, the question of time requires most serious consideration.

Under an impression that this month would decide the question of war or peace, it was thought prudent to contemplate (rather than to prepare) immediate offensive operations. To strike a blow the moment war is begun is doubtless important; but it does not follow that war ought to be commenced at this very moment. So far as relates to Canada, it may as easily and, considering the state of our preparations, I might say, ‘more easily,’ be invaded conquered in winter or even early in the spring than this autumn. European reinforcements cannot in the spring reach Montreal, much less Upper Canada, before both shall have been occupied by us. Quebec will certainly be reinforced before the season shall permit regular approaches. No advantage, therefore, will result in that respect from an immediate attack; no inconvenience from the declaration of war being somewhat delayed. In every other respect, it is our interest that actual war should not be commenced by England this autumn; and as for the same reason it is her interest to commence it, if she thinks it ultimately unavoidable, I wish not only that we may not declare it instantaneously, but that her Government and her affairs in America may, until the decision takes place still consider the result as uncertain.

The operations of war, on the part of Great Britain, will consist in the capture of our vessels, attacks on our most exposed seaports defence of Canada. On our part, unable either to protect our commerce or to meet their fleets, our offensive operations must by sea be confined to privateers; and we must, as far as practicable, draw in those vessels we cannot defend, place our ports in a situation to repel mere naval aggressions, organize our militia for occasional defence, raise troops volunteers for permanent garrisons or attack.

Those essential preparations are in some points hardly commenced, in every respect incomplete. Our China East India trade, to an immense amount yet out: no men raised, (indeed nothing more was practicable) beyond a draft of militia: whatever relates to its better selection organization or to the raising of regulars or volunteers wanting the authorization of Congress requiring time for executing: the batteries contemplated at New York not yet commenced, not even a temporary rampart in any part of the city, and hardly a gun mounted on Governor’s Island: how far the works of the two other seaports mentioned in the message as particularly exposed have progressed, I do not know: further appropriations stated to be necessary for the intended batteries at every other harbor. It seems essentially necessary that we should, if permitted, provide such rational practicable means of defence as we think may be effected within a short time, before we precipitate the war. Is it not probable that England will, if she presumes that her answer may lead to a war, immediately dispatch a few ships with contingent orders? And, if Congress were to declare war in November, what would prevent their naval force here, even if not reinforced, to lay New York under contribution before winter? Great would be the disgrace attaching to such a disaster; the Executive would be particularly liable to censure for having urged immediate war, whilst so unprepared against attack; nor need I say that, as a prosperous administration is almost invulnerable, so, adverse events will invariably destroy its popularity. Let it be added that, independent of immense loss to individuals three millions at least of next year’s revenue rest on bonds due by the merchants of that city.

In every view of the subject, I feel strongly impressed with the propriety of preparing to the utmost for war carrying it with vigor if it cannot be honorably avoided; but in the meanwhile of persevering in that caution of language sanction which may give us some more time, and is best calculated to preserve the remaining chance of peace most consistent with the general system of your administration. As to any particular alterations in that part of the message; although I do not feel equal to proposing proper substitutes, a sketch is inclosed intended rather to shew those parts which I think most objectionable, than the proper manner of amending them. With great respect sincere attachment, Your obdt servt

Albert Gallatin.

Alterations Proposed by Gallatin.

Paragraph. —Strike out from ‘ and the moment ’ in 7th line to the word ‘place’ in the last line of the first page insert in substance ‘the many injuries depredations under which our commerce and navigation have been affected on the high seas for years past, the successive innovations on those rules of public law established by the reason and usage of nations, all the circumstances which preceded the extraordinary mission to England are already known to you.’

I will observe on this part of the message that Pierce’s murder was in no ways the cause of the extraordinary mission. Mr. Pinkney’s nomination took place whilst Congress was in session. Pierce was killed immediately after the adjournment. Nay, King’s conduct on that occasion has by some been ascribed to his disappointment at Pinkney being selected instead of himself. The next sentence ending at the word inadmissible in 6th line of the 2d page which gives the history of the negotiation does not seem full enough. I would introduce the idea that the efforts of our ministers were applied to the framing of an arrangement wh. might embrace settle all the points in dispute and also provide for a commercial intercourse on conditions of some equality. I would also modify the declaration of the inadmissibility of the instrument, by saying that, although it had provided in a manner if not altogether satisfactory yet admissible for some of the points in dispute, it had left one more likely to perpetuate collisions altogether unprovided for, and that in other respects it was inadmissible. Such modification is recommended by a desire not to appear to abandon the arrangement respecting the colonial trade, or that of equalization of duties, and also with a view to the opposition party in England on which it is not our interest to bear too hard, lest they should also unite against us.

Same paragraph. Instead of the sentences ‘ on this outrage c its character has been c., ’ I would prefer saying simply ‘ on this outrage no commentaries are necessary.

2d paragraph. I would rather omit altogether this paragraph. The continuation of aggression being the act of the same officers may fairly be considered as part of the same act: Nor do I think a recommendation to exclude ships of war from our ports opportunely introduced at a moment when the question is war or peace. But if the paragraph be preserved, I would omit what relates to demands of additional reparation which more than any other part of the message seems to indicate a determination not to arrange amicably the disputes with Great Britain.

3d paragraph. I would also rather omit under existing circumstances this paragraph. If preserved, I would strike out from the commencement to overlooked in the 4th line of the paragraph insert ‘ another new violation of maritime rights of great magnitude has in the meanwhile taken place. The government of that nation c. ’ And at the end of the paragraph I would add that that order was predicated on a supposed construction of Buonaparte’s decree wh. had been disavowed not acted upon by the French government. If that be not inserted here, it should I think be alluded to in the 5th paragraph, a copy of the decree explanations be sent, stating that although some expressions in the decree had at first caused alarm, yet as its operation, both by their declarations practice, was confined to ports within their own jurisdiction, neither affected maritime rights nor contravened our treaty it could not, tho’ in its effects curtailing our commerce, be complained of as hostile.

It seems to me that the 9th 10th, and particularly the 11th 12th paragraphs should immediately follow the 3d or perhaps the 1st. The two last 11 12 relate to the measures adopted by the Executive in consequence of the outrage on the Chesapeake. That however is only a question of arrangement.

4th Paragraph. The expressions ‘may without further delay be expected to be brought to an issue of some sort’ seem to go farther than Mr. Armstrong’s communications justify. I would rather say ‘ and an expectation is entertained that they may soon be brought c.

Same paragraph. I would strike out the last words ‘during the short period now to intervene before an answer which shall decide our course ’ simply say that ‘no new collisions c. have taken place or seem at present to be apprehended.’

9th paragraph. I perceive by Gen. Dearborn’s statement that appropriations are wanted not only for other ports, but also to a considerable amount for N. York, Charleston N. Orleans. The idea should therefore be introduced I would add something stronger in the shape of recommendations for that object generally.

11th paragraph. Quere. whether the contracts entered into by the Navy Department do not embrace other objects than those here stated? also whether a greater expense than was appropriated has not been incurred for men on the Mississippi elsewhere. At least Mr. Smith states that he has no money to pay off the Constitution he ought to have enough to pay the whole navy to the end of the year.

12th do. I think that there should be here some additional recommendation generally to provide for the worst in case of unfavorable issue—particularly to hint at the necessity of better organization of militia volunteers c.

13th do. I regret that part of what was first intended, particularly as to the effect of late decisions on the trial by jury, has been suppressed. But query how far it may be proper to go whilst Marshall’s decision on the pending motion is not known?

I think the 14th or financial paragraph should precede this.

Thomas Jefferson
Jefferson, Thomas
October 21, 1807

I enclose you the form in which I would wish to place the financial paragraph, with blanks which I must ask you to fill up; also the sequel, which is to conclude the message, for your correction. And I must ask the return of the former part, as it is still to be communicated to Mr. Rodney for his observations, and then will be to be modified and four copies made according to the several amendments which will be proposed. The arrival of the Constitution and Wasp at Boston, where they are awaiting orders, renders it necessary they should be forwarded to-day; and as it is a leading question, if you can call here as soon as you arrive at your office (giving me a few minutes’ previous notice), I will ask the attendance of the other gentlemen for a few moments to decide this single question

T. J.
Thomas Jefferson
Jefferson, Thomas
21 Oct. 1807
Dear Sir,

—I return the financial paragraph conclusion of the message. The blanks I will supply on Monday morning; but as it will be only an approximation, the paragraph should state that all the accounts not being yet received a correct statement will be transmitted by the Treasury; but that in the meanwhile it is ascertained that the receipts have exceeded millions, which c. have enabled us to pay about millions of the principal, omitting altogether mention of interest, unless by introducing after current demands the words ‘including the annual interest on the debt.’ 8th line I do not remember whether in previous messages funded debt has been the expression. There also after debt, should be introduced nearly or more than according to the result wh. I will furnish.

The remainder of the message is in my opinion unexceptionable: Indeed it is precisely in that spirit which I have taken the liberty to advise. Respectfully your obdt servt

Albert Gallatin.

Cæsar A. Rodney’s Notes. (Indorsed: “Received Oct. 23, 07 Message.”)

Page 1 line 2. After ‘fellow citizens’ add ‘entirely unexpected much to be deprecated, threatening a serious change in the enviable state of our country impose the duty of convening you at an earlier period than the day assigned by the Constitution,’ in lieu of the residue of the first sentence.

6. After ‘not’ insert, ‘with all our sincere efforts to preserve tranquility.’

7. Strike out, ‘under which’ insert ‘committed on,’ and also strike out ‘have been inflicted on’ insert ‘upon.’

18. After ‘consideration’ insert, ‘expressly and.’

26. After ‘confidence in it’ insert, ‘But the fact is, it was accompanied with a formal declaration utterly inadmissible.’

Page 2 line 17. Before ‘satisfaction’ insert ‘suitable prompt.’ Strike out ‘assurance’ and insert ‘adequate security.’

Page 7. As Burr has been recognized for further trial, I would submit the propriety of leaving out the paragraph ‘as a part c’ to ‘may be secured.’

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Sent with the following message to the Vice-President and Speaker of the House of Representatives.

Thomas Jefferson
Jefferson, Thomas
Dec. 7, 1807
Sir,

—The papers now communicated to your house for perusal being to be read in the other house also, and, as originals, to be returned to me, Mr. Coles, my Secretary, will attend to receive them, after they shall have been read to the satisfaction of your house; and, having handed them to the other house for the same purpose he will return them to me. I ask the favor of your aid in having this course pursued in preventing their going from the clerk’s table, or copies, or extracts being made from them by any one. I salute you with great esteem respect.

Dec. 8.—The Speaker apprehending it might be necessary for him to read this letter to the house, that the last paragraph might be offensive, I took back this, gave him a copy to the words ‘return them to me,’ and I took back also that to the V. President (not yet delivered) and sent a copy to the word ‘pursued.’

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Jefferson wrote Gallatin:

Thomas Jefferson
Jefferson, Thomas
December 18, 1807
Gallatin
Gallatin

Monroe will be here on Sunday; he will bring us no new information, as far as can be judged from his letter; but on the subject of the proclamation, should the message wait for him? I will keep it back till half after ten o’clock for your opinion, either written or verbal. Affectionate salutations.

I have just received your note, and am clearly for the exception; but come here before half after ten, and let us be together before the message goes out of our hands.