The Writings of Thomas Jefferson, Vol. 6 (of 9)

TO HIS EXCELLENCY GOVERNOR BARBOUR

Monticello, January 22, 1812.

Dear Sir,—Your favor of the 14th has been duly received, and I sincerely congratulate you, or rather my country, on the just testimony of confidence which it has lately manifested to you. In your hands I know that its affairs will be ably and honestly administered.

In answer to your inquiry whether, in the early times of our government, where the council was divided, the practice was for the Governor to give the deciding vote? I must observe that, correctly speaking, the Governor not being a counsellor, his vote could make no part of an advice of council. That would be to place an advice on their journals which they did not give, and could not give because of their equal division. But he did what was equivalent in effect. While I was in the administration, no doubt was ever suggested that where the council, divided in opinion, could give no advice, the Governor was free and bound to act on his own opinion and his own responsibility. Had this been a change of the practice of my predecessor, Mr. Henry, the first governor, it would have produced some discussion, which it never did. Hence, I conclude it was the opinion and practice from the first institution of the government. During Arnold's and Cornwallis' invasion, the council dispersed to their several homes, to take care of their families. Before their separation, I obtained from them a capitulary of standing advices for my government in such cases as ordinarily occur: such as the appointment of militia officers, justices, inspectors, &c., on the recommendations of the courts; but in the numerous and extraordinary occurrences of an invasion, which could not be foreseen, I had to act on my own judgment and my own responsibility. The vote of general approbation, at the session of the succeeding winter, manifested the opinion of the Legislature, that my proceedings had been correct. General Nelson, my successor, staid mostly, I think, with the army; and I do not believe his council followed the camp, although my memory does not enable me to affirm the fact. Some petitions against him for impressment of property without authority of law, brought his proceedings before the next Legislature; the questions necessarily involved were whether necessity, without express law, could justify the impressment, and if it could, whether he could order it without the advice of council. The approbation of the Legislature amounted to a decision of both questions. I remember this case the more especially, because I was then a member of the Legislature, and was one of those who supported the Governor's proceedings, and I think there was no division of the House on the question. I believe the doubt was first suggested in Governor Harrison's time, by some member of the council, on an equal division. Harrison, in his dry way, observed that instead of one governor and eight counsellors, there would then be eight governors and one counsellor, and continued, as I understood, the practice of his predecessors. Indeed, it is difficult to suppose it could be the intention of those who framed the constitution, that when the council should be divided the government should stand still; and the more difficult as to a constitution formed during a war, and for the purpose of carrying on that war, that so high an officer as their Governor should be created and salaried, merely to act as the clerk and authenticator of the votes of the council. No doubt it was intended that the advice of the council should control the governor. But the action of the controlling power being withdrawn, his would be left free to proceed on its own responsibility. Where from division, absence, sickness or other obstacle, no advice could be given, they could not mean that their Governor, the person of their peculiar choice and confidence, should stand by, an inactive spectator, and let their government tumble to pieces for want of a will to direct it. In executive cases, where promptitude and decision are all important, an adherence to the letter of a law against its probable intentions, (for every law must intend that itself shall be executed,) would be fraught with incalculable danger. Judges may await further legislative explanations, but a delay of executive action might produce irretrievable ruin. The State is invaded, militia to be called out, an army marched, arms and provisions to be issued from the public magazines, the Legislature to be convened, and the council is divided. Can it be believed to have been the intention of the framers of the constitution, that the constitution itself and their constituents with it should be destroyed for want of a will to direct the resources they had provided for its preservation? Before such possible consequences all verbal scruples must vanish; construction must be made secundum arbitrium boni viri, and the constitution be rendered a practicable thing. That exposition of it must be vicious, which would leave the nation under the most dangerous emergencies without a directing will. The cautious maxims of the bench, to seek the will of the legislator and his words only, are proper and safer for judicial government. They act ever on an individual case only, the evil of which is partial, and gives time for correction. But an instant of delay in executive proceedings may be fatal to the whole nation. They must not, therefore, be laced up in the rules of the judiciary department. They must seek the intention of the legislator in all the circumstances which may indicate it in the history of the day, in the public discussions, in the general opinion and understanding, in reason and in practice. The three great departments having distinct functions to perform, must have distinct rules adapted to them. Each must act under its own rules, those of no one having any obligation on either of the others. When the opinion first begun that a governor could not act when his council could not or would not advise, I am uninformed. Probably not till after the war; for, had it prevailed then, no militia could have been opposed to Cornwallis, nor necessaries furnished to the opposing army of Lafayette. These, Sir, are my recollections and thoughts on the subject of your inquiry, to which I will only add the assurances of my great esteem and respect.

TO BENJAMIN GALLOWAY, ESQ

Monticello, February 2, 1812.

Sir,—I duly received your favor of the 1st inst., together with the volume accompanying it, for which I pray you to accept my thanks, and to be so kind as to convey them to Mrs. Debutts also, to whose obliging care I am indebted for its transmission. But especially my thanks are due to the author himself for the honorable mention he has made of me. With the exception of two or three characters of greater eminence in the revolution, we formed a group of fellow laborers in the common cause, animated by a common zeal, and claiming no distinction of one over another.

The spirit of freedom, breathed through the whole of Mr. Northmore's composition, is really worthy of the purest times of Greece and Rome. It would have been received in England, in the days of Hampden and Sidney, with more favor than at this time. It marks a high and independent mind in the author, one capable of rising above the partialities of country, to have seen in the adversary cause that of justice and freedom, and to have estimated fairly the motives and actions of those engaged in its support. I hope and firmly believe that the whole world will, sooner later, feel benefit from the issue of our assertion of the rights of man. Although the horrors of the French revolution have damped for awhile the ardor of the patriots in every country, yet it is not extinguished—it will never die. The sense of right has been excited in every breast, and the spark will be rekindled by the very oppressions of that detestable tyranny employed to quench it. The errors of the honest patriots of France, and the crimes of her Dantons and Robespierres, will be forgotten in the more encouraging contemplation of our sober example, and steady march to our object. Hope will strengthen the presumption that what has been done once may be done again. As you have been the channel of my receiving this mark of attention from Mr. Northmore, I must pray you to be that of conveying to him my thanks, and an assurance of the high sense I have of the merit of his work, and of its tendency to cherish the noblest virtues of the human character.

On the political events of the day I have nothing to communicate. I have retired from them, and given up newspapers for more classical reading. I add, therefore, only the assurances of my great esteem and respect.

TO MR. EZRA SARGEANT

Monticello, February 3, 1812.

Sir,—Observing that you edit the Edinburgh Review, reprinted in New York, and presuming that your occupations in that line are not confined to that single work, I take the liberty of addressing the present letter to you. If I am mistaken, the obviousness of the inference will be my apology. Mr. Edward Livingston brought an action against me for having removed his intrusion on the beach of the river Mississippi opposite to New Orleans. At the request of my counsel I made a statement of the facts of the case, and of the law applicable to them, so as to form a full argument of justification. The case has been dismissed from court for want of jurisdiction, and the public remain uninformed whether I had really abused the powers entrusted to me, as he alleged. I wish to convey to them this information by publishing the justification. The questions arising in the case are mostly under the civil law, the laws of Spain and of France, which are of course couched in French, in Spanish, in Latin, and some in Greek; and the books being in few hands in this country, I was obliged to make very long extracts from them. The correctness with which your edition of the Edinburgh Review is printed, and of the passages quoted in those languages, induces me to propose to you the publication of the case I speak of. It will fill about 65 or 70 pages of the type and size of paper of the Edinburgh Review. The MS. is in the handwriting of this letter, entirely fair and correct. It will take between four and five sheets of paper, of sixteen pages each. I should want 250 copies struck off for myself, intended principally for the members of Congress, and the printer would be at liberty to print as many more as he pleased for sale, but without any copyright, which I should not propose to have taken out. It is right that I should add, that the work is not at all for popular reading. It is merely a law argument, and a very dry one; having been intended merely for the eye of my counsel. It may be in some demand perhaps with lawyers, and persons engaged in the public affairs, but very little beyond that. Will you be so good as to inform me if you will undertake to edit this, and what would be the terms on which you can furnish me with 250 copies? I should want it to be done with as little delay as possible, so that Congress might receive it before they separate; and I should add as a condition, that not a copy should be sold until I could receive my number, and have time to lay them on the desks of the members. This would require a month from the time they should leave New York by the stage. In hopes of an early answer I tender you the assurances of my respect.

Monticello, February 14, 1812.

Thomas Jefferson presents his compliments to Dr. Wheaton, and his thanks for the address he was so kind as to enclose him on the advancement in Medicine. Having little confidence in the theories of that art, which change in their fashion with the ladies' caps and gowns, he has much in the facts it has established by observation. The experience of physicians has proved that in certain forms of disease, certain substances will restore order to the human system; and he doubts not that continued observation will enlarge the catalogue, and give relief to our posterity in cases wherein we are without it. The extirpation of the small pox by vaccination, is an encouraging proof that the condition of man is susceptible of amelioration, although we are not able to fix its extent. He salutes Dr. Wheaton with esteem and respect.

TO MR. CHARLES CHRISTIAN

Monticello, March 21, 1812.

Sir,—I have duly received your favor of the 10th inst. proposing to me to join in a contribution for the support of the family of the late Mr. Cheetham of New York. Private charities, as well as contributions to public purposes in proportion to every one's circumstances, are certainly among the duties we owe to society, and I have never felt a wish to withdraw from my portion of them. The general relation in which I, some time since, stood to the citizens of all our States, drew on me such multitudes of these applications as exceeded all resource. Nor have they much abated since my retirement to the limited duties of a private citizen, and the more limited resources of a private fortune. They have obliged me to lay down as a law of conduct for myself, to restrain my contributions for public institutions to the circle of my own State, and for private charities to that which is under my own observation; and these calls I find more than sufficient for everything I can spare. Nor was there anything in the case of the late Mr. Cheetham, which could claim with me to be taken out of a general rule. On these considerations I must decline the contribution you propose, not doubting that the efforts of the family, aided by those who stand in the relation to them of neighbors and friends, in so great a mart for industry as they are placed in, will save them from all danger of want or suffering. With this apology for returning the paper sent me, unsubscribed, be pleased to accept the tender of my respect.

TO MR. VANDER KEMP

Monticello, March 22, 1812.

Sir,—I am indebted to you for the communication of the prospectus of a work embracing the history of civilized man, political and moral, from the great change produced in his condition by the extension of the feudal system over Europe through all the successive effects of the revival of letters, the invention of printing, that of the compass, the enlargement of science, and the revolutionary spirit, religious and civil, generated by that. It presents a vast anatomy of fact and reflection, which if duly filled up would offer to the human mind a wonderful mass for contemplation.

Your letter does not ascertain whether this work is already executed, or only meditated; but it excites a great desire to see it completed, and a confidence that the author of the analysis is best able to develop the profound views there only sketched. It would be a library in itself, and to our country particularly desirable and valuable, if executed in the genuine republican principles of our constitution. The only orthodox object of the institution of government is to secure the greatest degree of happiness possible to the general mass of those associated under it. The events which this work proposes to embrace will establish the fact that unless the mass retains sufficient control over those intrusted with the powers of their government, these will be perverted to their own oppression, and to the perpetuation of wealth and power in the individuals and their families selected for the trust. Whether our constitution has hit on the exact degree of control necessary, is yet under experiment; and it is a most encouraging reflection that distance and other difficulties securing us against the brigand governments of Europe, in the safe enjoyment of our farms and firesides, the experiment stands a better chance of being satisfactorily made here than on any occasion yet presented by history. To promote, therefore, unanimity and perseverance in this great enterprise, to disdain despair, encourage trial, and nourish hope, are the worthiest objects of every political and philanthropic work; and that this would be the necessary result of that which you have delineated, the facts it will review, and the just reflections arising out of them, will sufficiently answer. I hope, therefore, that it is not in petto merely, but already completed; and that my fellow citizens, warned in it of the rocks and shoals on which other political associations have been wrecked, will be able to direct theirs with a better knowledge of the dangers in its way.

The enlargement of your observations on the subjects of natural history, alluded to in your letter, cannot fail to add to our lights respecting them, and will therefore ever be a welcome present to every friend of science. Accept, I pray you, the assurance of my great esteem and respect.

TO THE HONORABLE MR. NELSON

Monticello, April 2d, 1812.

Dear Sir,—Your letter of March 22d has been duly received. By this time a printed copy of my MS. respecting the Batture has I hope been laid on your desk, by which you will perceive that the MS. itself has been received long enough to have been sent to New York, printed and returned to Washington.

On the subject of the omission of the officers of the Virginia State line, in the provisions and reservations of the cession of Congress, my memory enables me to say nothing more than that it was not through inattention, as I believe, but the result of compromise. But of this the President, who was in Congress when the arrangement was settled, can give the best account. I had nothing to do but execute a deed according to that arrangement, made previous to my being a member. Colonel Monroe being a member with me, is more likely to remember what passed at that time; but the best resource for explanation of everything we did, is in our weekly correspondence with the Governor of Virginia, which I suppose is still among the Executive records. We made it a point to write a letter to him every week, either jointly, or individually by turns.

You request me to state the public sentiment of our part of the country as to war and the taxes. You know I do not go out much. My own house and our court yard are the only places where I see my fellow citizens. As far as I can judge in this limited sphere, I think all regret that there is cause for war, but all consider it as now necessary, and would, I think, disapprove of a much longer delay of the declaration of it. As to the taxes, they expect to meet them, would be unwilling to have them postponed, and are only dissatisfied with some of the subjects of taxation; that is to say the stamp tax and excise. To the former I have not seen a man who is not totally irreconcilable. If the latter could be collected from those who buy to sell again, so as to prevent domiciliary visits by the officers, I think it would be acceptable, and I am sure a wholesome tax. I am persuaded the Secretary of the Treasury is mistaken in supposing so immense a deduction from the duties on imports. We shall make little less to sell than we do now, for no one will let his hands be idle; and consequently we shall export not much less, and expect returns. Some part will be taken on the export and some on the import. But taking into account the advance of prices, that revenue will not fall so far short as he thinks; and I have no doubt might be counted on to make good the entire suppression of the stamp tax. Yet, although a very disgusting pill, I think there can be no question the people will swallow it, if their representatives determine on it. I get their sentiments mostly from those who are most in the habit of intercourse with the people than I am myself. Accept the assurance of my great esteem and respect.

TO THE PRESIDENT OF THE UNITED STATES

Monticello, April 17, 1812.

Dear Sir,—The enclosed papers will explain themselves. Their coming to me is the only thing not sufficiently explained.

Your favor of the 3d came duly to hand. Although something of the kind had been apprehended, the embargo found the farmers and planters only getting their produce to market, and selling as fast as they could get it there. I think it caught them in this part of the State with one-third of their flour or wheat and three-quarters of their tobacco undisposed of. If we may suppose the rest of the middle country in the same situation, and that the upper and lower country may be judged by that as a mean, these will perhaps be the proportions of produce remaining in the hands of the producers. Supposing the objects of the government were merely to keep our vessels and men out of harm's way, and that there is no idea that the want of our flour will starve Great Britain, the sale of the remaining produce will be rather desirable, and what would be desired even in war, and even to our enemies. For I am favorable to the opinion which has been urged by others, sometimes acted on, and now partly so by France and Great Britain, that commerce, under certain restrictions and licenses, may be indulged between enemies mutually advantageous to the individuals, and not to their injury as belligerents. The capitulation of Amelia Island, if confirmed, might favor this object, and at any rate get off our produce now on hand. I think a people would go through a war with much less impatience if they could dispose of their produce, and that unless a vent can be provided for them, they will soon become querulous and clamor for peace. They appear at present to receive the embargo with perfect acquiescence and without a murmur, seeing the necessity of taking care of our vessels and seamen. Yet they would be glad to dispose of their produce in any way not endangering them, as by letting it go from a neutral place in British vessels. In this way we lose the carriage only; but better that than both carriage and cargo. The rising of the price of flour, since the first panic is passed away, indicates some prospects in the merchants of disposing of it. Our wheat had greatly suffered by the winter, but is as remarkably recovered by the favorable weather of the spring. Ever affectionately yours.