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that we never shall be safe until we have a selected corps for a
year's distant service at least, the classification of our militia is
now the most essential thing the U S have to do. Whether, on
Bonaparte's plan of making a class for every year between certain
periods, or that recommended in my message, I do not know,
but I rather incline to his. The idea is not new, as you may remember, we adopted it once in Virginia during the revolution, but
abandoned it too soon. It is the real secret of Bonaparte's success.
Could S. H . Smith put better matter into his paper than the 12.
pages above mentioned, & will you suggest it to him ? No effort
should be spared to bring the public mind to this great point. I
salute you with sincere affection.

TO WILLIAM SHORT 1
May 19, 1807.

* * * My determination to retire is the result
of mature reflections, and on various considerations,
not the least weighty of these, is that a consciousness
that a decline of physical faculties can not leave
those mental entirely unimpaired ; and it will be happy
for me if I am the first who shall become sensible of
it. As to a successor there never will be a time
when it will not produce some difficulty, and never
less, I believe, than at present. T h a t some of the
Federalists should prefer my continuance to the uncertainty of a successor I can readily believe. There
are among them men of candor who do not join in
the clamor and condemnation of every thing, nor
pretend that even chance never throws us on a right
measure. There are some who know me personally and who give a credit to my intentions, which
1

From the Southern Bivouac, 11, 635.

 1807]

THOMAS JEFFERSON.

Si

they deny my understanding. Some who may fear
a successor, preferring a military glory of a nation t o
the prosperity and happiness of its individuals. But
to the mass of that political sect, it is not the less true,
the 4th of March, 1809, will be a day of Jubilee, but
it will be a day of greater joy to me. I never did
them an act of injustice nor failed in any duty to
them imposed by my office. O u t of about six hundred offices named by the President there were six
Republicans only when I came into office, and these
were chiefly half-breeds. Out of upwards of three hundred holding during pleasure, I removed about fifteen
or those who had signalized themselves by their own
intolerance in office, because the public voice called
for it imperiously, and it was just that the Republicans
should at length have some participation in the government.
There never was another removal but
for such delinquencies as removed the Republicans
equally. In this horrid drudgery I always felt
myself as a public executioner, an office which no one
who knows me, I hope, supposes very grateful to my
feelings. It was considerably alleviated, however, by
the industry of their newspapers in endeavoring to
excite resentment enough to enable me to meet the
operation. However, I hail the day which is to relieve me from being viewed as an official enemy. In
private life I never had above one or two ; to the
friendship of that situation I look with delight. * * *

 THE WRITINGS

s*

OF

[1807

T O T H E U N I T E D STATES D I S T R I C T A T T O R N E Y FOR V I R G I N I A .
(GEORGE HAY.) 1

J. MSS.
W A S H I N G T O N , May 20, 0 7 .

Bollman, on his arrival here in custody in Jan.,
voluntarily offered to make communications to me, which he accordingly did, Mr. Madison, also being present. I previously &
DEAR SIR.—Dr.

1
For convenience all the letters written by Jefferson to Hay during the Burr
trial follow :

WASHINGTON, May 26, 07.

" 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."
WASHINGTON, May 28, 07.

" DEAR SIR,—I have this moment reed, your letter of the 25th, andhasten 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

 1807]

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JEFFERSON.

53

subsequently assured him, (without, however, his having requested
it,) that they should never be used against himself. Mr. Madison
on the same evening committed to writing, by memory, what he
had said ; & I moreover asked of Bollman to do it himself, which
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."
WASHINGTON, June 2, 07.

" 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. H e 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

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he did, & I now enclose it to you. T h e object is as he is to
be a witness, that you may know how to examine him, & draw
everything from him. I wish the paper to be seen & known
only to yourself and the gentlemen who aid you, & to be rebranches, 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."
WASHINGTON, June 5, 07.

" 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
chance 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. P A forged letter, purporting to be from Geni. Dearborne, was
made to expressnis approbation, and to say that I was absent at Monticello,
but that there was no doubt that, on my return, my approbation of his enter-

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JEFFERSON.

55

turned to me. If he should prevaricate, I should be willing
you should go so far as to ask him whether he did not say so & so
to Mr. Madison & myself. In order to let him see that his prevarications will be marked, Mr. Madison will forward you a pardon
prises 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 o n e s j 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."
WASHINGTON, June 12, 07.

" SIR,—Your letter of the gth 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 Geni 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 &

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[1807

for him, which we meau should be delivered previously. It
is suspected by some he does not intend to appear. If he does
not, I hope you will take effectual measures to have him immediately taken into custody. Some other blank pardons are sent
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? from the Secr at War copies of 2 letters to
the Gov; of Missipi, & Orleans, which I immediately inclosed to G. Hay."
WASHINGTON, June 17,

1807.

" SIR,—In answering your letter of the gth, which desired a communication
of one to me from Geni 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 Geni, 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 subpcena from the District Court
of Richmond, requiring that those officers & myself should attend the Court in
Richmond, with the letter of Geni Wilkinson, the answer to that letter, & the
orders of the departments of War & the Navy, therein generally described. No
answer to Geni Wilkinson's letter, other than a mere acknolegment of it's re-

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JEFFERSON.

57

on to be filled up at your discretion, if you should find a defect of
evidence, & believe that this would supply it, by avoiding to give
them to the gross offenders, unless it be visible that the principal
will otherwise escape. I send you an affidavit of importance
ceipt, 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."

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received last night. If General Wilkinson gets on in time,
I expect he will bring Dunbaugh on with him. At any rate it
may be a ground for an arrest & commitment for treason. Accept
my friendly salutations, & assurances of great esteem and respect.
WASHINGTON, June 19, 07.

" 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 misdemeanor, 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 subpoena 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, zs,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 Louis-

 i8o 7 l

THOMAS

JEFFERSON.

TO DE W I T T C L I N T O N .
WASHINGTON, May 24,

59
J. MSS.
1807.

Th : Jefferson presents his compliments to Mr.
Clinton, & his thanks for the pamphlet sent him. 1
H e recollects the having read it at the time with a
ville, 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 subpoenas ?
" 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."
WASHINGTON, June 20, 1807.

" 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.
" 1 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 subpoenas, 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
1
This was " A Vindication of Thomas Jefferson, against the charges contained
m a Pamphlet entitled Serious Considerations. By Grotius. N. Y. 1800."

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[1807

due sense of his obligation to the author, whose name
was surmised, tho' not absolutely known, and a conviction that he had made the most of his matter.
T h e ground of defence might have been solidly aided
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 subpoenas, 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."

WASHINGTON, June 23,

1807.

" DEAR SIR,—In mine of the 12th I informed you I would write to theAtty
General to send on the letter of General Wilkinson of Oct. 21, referred to in my

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61

by the assurance (which is the absolute fact) that the
whole story fathered on Mazzei, was an unfounded
falsehood. Dr. Linn, as aware of that, takes care to
quote it from a dead man, who is made to quote from
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. Geni 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."
MONTICELLO, Aug. 7, 07.

' ' DEAR SIR,—I inclose you a letter received yesterday on the subject of Geni.
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 subpcena 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 Geni with all the other papers relating to Burr. I have therefore

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one residing in the remotest part of Europe. Equally
false was Dr. Linn's other story about Bishop Madison's lawn sleeves, as the Bishop can testify, for certainly T h : J. never saw him in lawn sleeves. H a d
neither that nor any of the others in my possession. Possibly the Atty Geni
may have delivered it to you. If not, he has it, & he is the person to whom
a subpoena 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 inclosed 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
k

\

government. Will not the associate judge assume to divide his court and procure a truce at least in so critical a conjuncture."
MONTICELLO, August 20, 1807.

" DEAR SIR,—I received yesterday your favor of the n t h . 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 administer 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

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the Doctor ventured to name time, place, & person,
for his third lie, (the government without religion) it
is probable he might have been convicted on that also.
But these are slander & slanderers, whom T h : J. has
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."
MONTICELLO, Sep, 7, 07.

" DEAR SIR,—I received, late last night, your favor of the day before, and
now re-enclose you the subpcena. 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 subpoena, 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."
MONTICELLO, September 7, 1807.
" 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

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thought it best to leave to the scourge of public
opinion. H e salutes Mr. Clinton with esteem &
respect.

TO T H E MARQUIS D E L A F A Y E T T E .

J. MSS.

WASHINGTON, May 26,

07.

M Y D E A R F R I E N D , — I am a bad correspondent ; but
it is not from want of inclination, nor that I do nothing
but that having too much to do, I leave undone that
which admits delay with least injury. Your letter of
Nov. 16 is just now received, and it gives me great
pleasure that a person so well acquainted with the
localities as M. Pitot has been able to give you so
favorable an account of your lands. That his estimates will become just with a little time I believe,
but I am also afraid his esteem for you may have
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
for 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 Geni. 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."

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misled his judgment into some little anticipation of
value. But I speak from ignorance, and he from
knolege. I have no doubt Mr. Duplantier will make
the best location possible. Indeed his zeal had in
one instance led us to fear you would be injured by it.
He had comprehended in his location "not only the
grounds vacant of all title in the vicinity of N. Orleans which had been a principal object in my eye to
enable you speedily to raise a sum of money, but also
grounds which had been reserved and were necessary
for the range of the forts, which had been left open as
a common for the citizens. Knowing this would excite reclamations dangerous to your interests, and
threatening their popularity both there & here, I
wrote immediately to Govr. Claiborne to get him to
withdraw to a certain extent (about point blank shot)
from the fort, the grounds within that being necessary for the public. But in the meantime an alarm
was excited in the town and they instructed their
representative in Congress to claim for the use of the
town & public the whole of the vacant lands in it's
vicinity. Mr. Gallatin however effected a compromise
with him by ceding the grounds next to the fort, so as
to leave your claim clear to all the lands we originally contemplated for you, as formerly explained to
you. I very much wished your presence there during
the late conspiracy of Burr. T h e native inhabitants
were unshaken in their fidelity. But there was a
small band of American adventurers who had fled
from their debts, and who were longing to dip their
hands into the mines of Mexico, enlisted in Burr's
VOL. I X , — 5

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double project of attacking that country & severing
our union. Had Burr had a little success in the upper country these parricides would have joined him.
However the whole business has shewn that neither
he nor they knew anything of the people of this
country. A simple proclamation informing the people of these combinations, and calling on them to
suppress them produced an instantaneous levee en
masse of our citizens wherever there appeared anything to lay hold of, & the whole was crushed in one
instant. It is certain that he never had one hundred
men engaged in his enterprise, & most of these were
made to believe the government patronized it. Which
artifice had been practised by Miranda a short time
before, and had decoyed about 30. Americans to engage in his unauthorized projects. Burr is now under
trial for a misdemeanor, that is for his projected Mexican enterprise, and will be put on his trial for treason
as soon as the witnesses can be collected, for his attempt to sever the Union, and unless his federal
patrons give him an opportunity of running away, he
will unquestionably be convicted on both prosecutions. The enterprise has done good by proving that
the attachment of the people in the west is as firm as
that in the East to the union of our country, and by
establishing a mutual & universal confidence. Your
presence at New Orleans would have been of value,
as a point of union & confidence for the ancient inhabitants American as well as Creole. New Orleans
itself is said to be unhealthy for strangers ; but on the
western side of the river is as healthy & fine a country

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THOMAS JEFFERSON.

67

as in the universe. Your emperor has done more
splendid things, but he never done one which will
give happiness to so great a number of human beings
as the ceding Louisiana to the U. S.
I wrote to Madame de Tesse on the 21st of Feb
and at the same time sent a box of seeds, nuts, acorns
&c. to Baltimore, which were forwarded to Bordeaux
for her, to the care of Mr. Lee our consul there. I
had done the same thing the preceding year. T h a t
vessel was taken by the English, detained, but got to
France in April. It is so difficult in times of war to
get anything carried safely across the Atlantic as
to be very discouraging. I shall not fail, however,
to repeat my endeavours as to such objects as are in
our neighborhood here, until she has a plenty of them.
I am panting for retirement, but am as yet nearly two
years from that goal. T h e general solicitations I
have received to continue another term give me great
consolation, but considerations public as well as personal determine me inflexibly on that measure. Permit me to place here my most friendly respects to M.
& Me de Tesse, & Me. de La Fayette, accept for
yourself my salutations & assurances of sincere &
affectionate esteem.

TO JOHN W. EPPES.

j . Mss.

WASHINGTON, May 28, 07.

arrived here the night before
last & delivered safely yours of the 22d. I learn with
great pleasure the good health of yourself & the good
DEAR SIR,—Martin

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family of Eppington & particularly of our dear Francis. I have little fear but that he will outgrow those
attacks which have given us such frequent uneasiness.
1 shall hope to see him well here next winter and that
our grounds will be in such a state as to admit him to
be more in the open air in the neighborhood of the
house. Your mare is not as fat as she was, but is in
good traveling order. I have advised Martin to go
round by the bridge for fear of accident to the foal
crossing in the boat. W e have nothing new except
an uncommonly friendly letter from the Bey of Tunis :
and good reason to believe that Melli-Melli carried
to his government favorable & friendly impressions.
T h e news is now all with you. W e have heard as
yet only the proceedings of the 1st day of Burr's trial,
which from the favor of the marshal & judge promises
him all which can depend on them. A grand jury of
2 feds, 4 Quids & 10 republicans does not seem to be
a fair representation of the state of Virginia. But all
this will show the original error of establishing a judiciary independent of the nation, and which, from the
citadel of the law can turn it's guns on those they
were meant to defend, & controul & fashion their
proceedings to it's own will. I have always entertained a high opinion of the marshal's integrity &
political correctness. But in a state where there are
not more than 8 Quids, how 5 of them should have
been summoned on one jury is difficult to explain
from accident. Affectionate salutations & constant
esteem to you all.

 1807]

THOMAS

JEFFERSON.

TO T H E SECRETARY

69

OF T R E A S U R Y .

j . MSS.

(ALBERT GALLATIN.)

June 1, '07.

I gave you, some time ago, a project of a more equal tariff on
wines than that which now exists. But in that I yielded considerably to the faulty classification of them in our law. I have now
formed one with attention, and according to the best information
I possess, classing them more rigorously. I am persuaded that
were the duty on cheap wines put on the same ratio with the dear,
it would wonderfully enlarge the field of those who use wine, to
the expulsion of whiskey. The introduction of a very cheap
wine (St. George) into my neighborhood, within two years past,
has quadrupled in that time the number of those who keep wine,
and will ere long increase them tenfold. This would be a great
gain to the treasury, & to the sobriety of our country. I will
here add my tariff, wherein you will be able to chuse any rate of
duty you please, and to decide whether it will not, on a fit occasion, be proper for legislative attention. Affectn salutns.

TO WILLIAM SHORT.1
June 12, 1807.

* * * The proposition in your letter of May
16th, as adding an umpire to our discordant negotiators at Paris, struck me favorably on reading it, and
reflection afterward strengthened my first impressions. I made it, therefore, a subject of consultation with my coadjutors, as is our usage. For our
government although in theory subject to be directed
by the unadvised will of the President, is, and from
its origin has been, a very different thing in practice.
The minor business in each department is done by
1

From the Southern Bivouac, I I . , 635.

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the head of the department on consultation with the
President alone ; but all matters of importance or
difficulty are submitted to all the heads of departments composing the cabinet. Sometimes, by the
President's consulting them separately and successively, as they happen to call on him, but in the
gravest cases calling them together, discussing the
subject maturely, and finally taking the vote, on
which the President counts himself but as one. So
that in all important cases the Executive is in fact
a directory, which certainly the President might control ; but of this there was never an example either
in the first or the present administration. I have
heard, indeed, that my predecessor sometimes decided
things against his counsel by dashing and trampling
his wig on the floor. This only proves what you
and I know, that he had a better heart than head.
* * * I see with extreme concern that you
have received an impression that my attachment to
you has become lessened and that you have drawn
this inference from circumstances taking place while
you were in Washington. W h a t these circumstances
could be is to me incomprehensible, but one thing
I certainly know, that they have been misconstrued.
T h a t this change could not be previous to my retirement from the government in 1794, your appointments to France, to Holland, to Spain are proofs.
And if, during my present place in the government,
I have not met your desires, the public motives which
have been frankly declared have given the real
grounds. You think them not founded in fact ; but