Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 3

The President has appointed, and the Senate approved, Rufus King, to enter into a treaty of commerce with the Russians, at London, and William Smith (Phocion), Envoy Extraordinary and Minister Plenipotentiary, to go to Constantinople to make one with the Turks. So that as soon as there is a coalition of Turks, Russians, and English, against France, we seize that moment to countenance it as openly as we dare, by treaties, which we never had with them before. All this helps to fill up the measure of provocation towards France, and to get from them a declaration of war, which we are afraid to be the first in making. It is certain the French have behaved atrociously towards neutral nations, and us particularly; and though we might be disposed not to charge them with all the enormities committed in their name in the West Indies, yet they are to be blamed for not doing more to prevent them. A just and rational censure ought to be expressed on them, while we disapprove the constant billingsgate poured on them officially. It is at the same time true, that their enemies set the first example of violating neutral rights, and continue it to this day: insomuch, that it is declared on all hands, and particularly by the insurance companies, and denied by none, that the British spoliations have considerably exceeded the French during the last six months. Yet not a word of these things is said officially to the legislature.

Still further, to give the devil his due (the French), it should be observed that it has been said without contradiction, and the people made to believe, that their refusal to receive our Envoys was contrary to the law of nations, and a sufficient cause of war: whereas every one who ever read a book on the law of nations knows, that it is an unquestionable right in every power, to refuse to receive any minister who is personally disagreeable. Martens, the latest and a very respected writer, has laid it down so clearly and shortly in his ‘Summary of the Law of Nations,’ B. 7. ch. 2. sect. 9. that I will transcribe the passage verbatim. ‘Section 9. Of choice in the person of the minister. The choice of the person to be sent as minister depends of right on the sovereign who sends him, leaving the right, however, of him to whom he is sent, of refusing to acknowledge any one, to whom he has a personal dislike, or who is inadmissible by the laws and usages of the country.’ And he adds notes proving by instances, &c. This is the whole section.

Notwithstanding all these appearances of peace from France, we are, besides our existing army of five thousand men, and additional army of nine thousand (now officered and levying), passing a bill for an eventual army of thirty regiments (thirty thousand) and for rigimenting, brigading, officering, and exercising at the public expense our volunteer army, the amount of which we know not. I enclose you a copy of the bill, which has been twice read and committed in Senate. To meet this expense, and that of the six seventy-fours and six eighteens, part of the proposed fleet, we have opened a loan of five millions at eight per cent., and authorize another of two millions: and, at the same time, every man voting for these measures acknowledges there is no probability of an invasion by France. While speaking of the restoration of our vessel, I omitted to add, that it is said that our government contemplate restoring the Frenchmen taken originally in the same vessel, and kept at Lancaster as prisoners. This has furnished the idea of calling her a cartel vessel, and pretending that she came as such for an exchange of prisoners, which is false. She was delivered free and without condition, but it does not suit to let any new evidence appear of the desire of conciliation in France.

I believe it is now certain that the commissioners on the British debts can proceed together no longer. I am told that our two have prepared a long report, which will perhaps be made public. The result will be, that we must recur again to negotiation, to settle the principles of the British claims. You know that Congress rises on the 3rd of March, and that if you have acceded to my prayers, I should hear from you at least a week before our rising. Accept my affectionate salutations, and assurances of the sincere esteem with which I am, Dear Sir, your friend and servant,

Th: Jefferson.

LETTER CCXLIX.—TO JAMES MADISON, February 19, 1799

TO JAMES MADISON

Philadelphia, February 19, 1799.

Dear Sir,

I wrote you last on the 11th; yesterday the bill for the eventual army of thirty regiments (thirty thousand) and seventy-five thousand volunteers, passed the Senate. By an amendment, the President was authorized to use the volunteers for every purpose for which he can use militia, so that the militia are rendered completely useless. The friends of the bill acknowledge that the volunteers are a militia, and agreed that they might properly be called the ‘Presidential militia.’ They are not to go out of their State without their own consent. Consequently, all service out of the State is thrown on the constitutional militia, the Presidential militia being exempted from doing duty with them. Leblane, an agent from Desfourneaux, of Guadaloupe, came in the Retaliation. You will see in the papers Desfourneaux’s letter to the President, which will correct some immaterial circumstances of the statement in my last. You will see the truth of the main fact, that the vessel and crew were liberated without condition. Notwithstanding this, they have obliged Leblane to receive the French prisoners, and to admit, in the papers, the terms, ‘in exchange for prisoners taken from us,’ he denying at the same time that they consider them as prisoners, or had any idea of exchange. The object of his mission was not at all relative to that; but they choose to keep up the idea of a cartel, to prevent the transaction from being used as evidence of the sincerity of the French government towards a reconciliation. He came to assure us of a discontinuance of all irregularities in French privateers from Guadaloupe. He has been received very cavalierly. In the mean time, a Consul General is named to St. Domingo: who may be considered as our Minister to Toussaint.

But the event of events was announced to the Senate yesterday. It is this: it seems that soon after Gerry’s departure, overtures must have been made by Pichon, French Chargé d’Affaires at the Hague, to Murray. They were so soon matured, that on the 28th of September, 1798, Talleyrand writes to Pichon, approving what had been done, and particularly of his having assured Murray that whatever Plenipotentiary the government of the United States should send to France to end our differences, would undoubtedly be received with the respect due to the representative of a free, independent, and powerful nation; declaring that the President’s instructions to his Envoys at Paris, if they contain the whole of the American government’s intentions, announce dispositions which have been always entertained by the Directory; and desiring him to communicate these expressions to Murray, in order to convince him of the sincerity of the French government, and to prevail on him to transmit them to his government. This is dated September the 28th, and may have been received by Pichon October the 1st; and nearly five months elapse before it is communicated. Yesterday the President nominated to the Senate William Vans Murray Minister Plenipotentiary to the French republic, and added, that he shall be instructed not to go to France, without direct and unequivocal assurances from the French government that he shall be received in character, enjoy the due privileges, and a minister of equal rank, title, and power, be appointed to discuss and conclude our controversy by a new treaty. This had evidently been kept secret from the federalists of both Houses, as appeared by their dismay. The Senate have passed over this day without taking it up. It is said they are graveled and divided; some are for opposing, others do not know what to do. But in the mean time, they have been permitted to go on with all the measures of war and patronage, and when the close of the session is at hand it is made known. However, it silences all arguments against the sincerity of France, and renders desperate every further effort towards war. I enclose you a paper with more particulars. Be so good as to keep it till you see me, and then return it, as it is the copy of one I sent to another person, and is the only copy I have. Since I began my letter I have received yours of February the 7th and 8th, with its enclosures; that referred to my discretion is precious, and shall be used accordingly.

Affectionate salutations to Mrs. Madison and yourself, and adieu.

Th: Jefferson,

LETTER CCL.—TO GENERAL KOSCIUSKO, February 21, 1799

TO GENERAL KOSCIUSKO.

Philadelphia, February 21, 1799.

My Dear Friend,

On politics I must write sparingly, lest it should fall into the hands of persons who do not love either you or me. The wonderful irritation produced in the minds of our citizens by the X. Y. Z. story, has in a great measure subsided. They begin to suspect and to see it coolly in its true light. Mr. Gerry’s communications, with other information, prove to them that France is sincere in her wishes for reconciliation; and a recent proposition from that country, through Mr. Murray, puts the matter out of doubt. What course the government will pursue, I know not. But if we are left in peace, I have no doubt the wonderful turn in the public opinion now manifestly taking place and rapidly increasing, will, in the course of this summer, become so universal and so weighty, that friendship abroad and freedom at home will be firmly established by the influence and constitutional powers of the people at large. If we are forced into war, we must give up political differences of opinion, and unite as one man to defend our country. But whether at the close of such a war, we should be as free as we are now, God knows. In fine, if war takes place, republicanism has every thing to fear; if peace, be assured that your forebodings and my alarms will prove vain; and that the spirit of our citizens now rising as rapidly as it was then running crazy, and rising with a strength and majesty which show the loveliness of freedom, will make this government in practice, what it is in principle, a model for the protection of man in a state of freedom and order. May Heaven have in store for your country a restoration of these blessings, and you be destined as the instrument it will use for that purpose. But if this be forbidden by fate, I hope we shall be able to preserve here an asylum where your love of liberty and disinterested patriotism will be for ever protected and honored, and where you will find in the hearts of the American people, a good portion of that esteem and affection which glow in the bosom of the friend who writes this; and who with sincere prayers for your health, happiness, and success, and cordial salutations, bids you, for this time, adieu.

Th: Jefferson.

LETTER CCLI.—TO JAMES MADISON, February 26, 1799

TO JAMES MADISON

Philadelphia, February 26, 1799.

Dear Sir,

My last to you was of the 19th; it acknowledged yours of the 8th. In mine I informed you of the nomination of Murray. There is evidence that the letter of Talleyrand was known to one of the Secretaries, therefore probably to all; the nomination, however, is declared by one of them to have been kept secret from them all. He added, that he was glad of it, as, had they been consulted, the advice would have been against making the nomination. To the rest of the party, however, the whole was a secret till the nomination was announced. Never did a party show a stronger mortification, and consequently, that war had been their object. Dana declared in debate (as I have from those who were present) that we had done every thing which might provoke France to war; that we had given her insults which no nation ought to have borne; and yet she would not declare war. The conjecture as to the executive is, that they received Talleyrand’s letter before or about the meeting of Congress: that not meaning to meet the overture effectually, they kept it secret, and let all the war measures go on; but that just before the separation of the Senate, the President, not thinking he could justify the concealing such an overture, nor indeed that it could be concealed, made a nomination, hoping that his friends in the Senate would take on their own shoulders the odium of rejecting it; but they did not choose it. The Hamiltonians would not, and the others could not, alone. The whole artillery of the phalanx, therefore, was played secretly on the President, and he was obliged himself to take a step which should parry the overture while it wears the face of acceding to it. (Mark that I state this as conjecture; but founded on workings and indications which have been under our eyes.) Yesterday, therefore, he sent in a nomination of Oliver Ellsworth, Patrick Henry, and William Vans Murray, Envoys Extraordinary and Ministers Plenipotentiary to the French Republic, but declaring the two former should not leave this country till they should receive from the French Directory assurances that they should be received with the respect due by the law of nations to their character, &c. This, if not impossible, must at least keep off the day, so hateful and so fatal to them, of reconciliation, and leave more time for new projects of provocation. Yesterday witnessed a scandalous scene in the House of Representatives. It was the day for taking up the report of their committee against the alien and sedition laws, &.c. They held a caucus and determined that not a word should be spoken on their side, in answer to any thing which should be said on the other. Gallatin took up the alien, and Nicholas the sedition law; but after a little while of common silence, they began to enter into loud conversations, laugh, cough, &c., so that for the last hour of these gentlemen’s speaking, they must have had the lungs of a vendue-master to have been heard. Livingston, however, attempted to speak. But after a few sentences, the speaker called him to order, and told him what he was saying was not to the question. It was impossible to proceed. The question was taken and carried in favor of the report, fifty-two to forty-eight; the real strength of the two parties is fifty-six to fifty. But two of the latter have not attended this session. I send you the report of their committee. I still expect to leave this on the 1st, and be with you on the 7th of March. But it is possible I may not set out till the 4th, and then shall not be with you till the 10th. Affectionately adieu.

Th: Jefferson.

LETTER CCLII.—TO T. LOMAX, March 12, 1799

TO T. LOMAX

Monticello, March 12, 1799.

Dear Sir,

Your welcome favor of last month came to my hands in Philadelphia. So long a time has elapsed since we have been separated by events, that it was like a letter from the dead, and recalled to my memory very dear recollections. My subsequent journey through life has offered nothing which, in comparison with those, is not cheerless and dreary. It is a rich comfort sometimes to look back on them.

I take the liberty of enclosing a letter to Mr. Baylor, open, because I solicit your perusal of it. It will, at the same time, furnish the apology for my not answering you from Philadelphia. You ask for any communication I may be able to make, which may administer comfort to you. I can give that which is solid. The spirit of 1776 is not dead. It has only been slumbering. The body of the American people is substantially republican. But their virtuous feelings have been played on by some fact with more fiction; they have been the dupes of artful manoeuvres, and made for a moment to be willing instruments in forging chains for themselves. But time and truth have dissipated the delusion, and opened their eyes. They see now that France has sincerely wished peace, and their seducers have wished war, as well for the loaves and fishes which arise out of war expenses, as for the chance of changing the constitution, while the people should have time to contemplate nothing but the levies of men and money. Pennsylvania, Jersey, and New York are coming majestically round to the true principles. In Pennsylvania, thirteen out of twenty-two counties had already petitioned on the alien and sedition laws. Jersey and New York had begun the same movement, and though the rising of Congress stops that channel for the expression of their sentiment, the sentiment is going on rapidly, and before their next meeting those three States will be solidly embodied in sentiment with the six southern and western ones. The atrocious proceedings of France towards this country had well nigh destroyed its liberties. The Anglomen and monocrats had so artfully confounded the cause of France with that of freedom, that both went down in the same scale. I sincerely join you in abjuring all political connection with every foreign power: and though I cordially wish well to the progress of liberty in all nations, and would for ever give it the weight of our countenance, yet they are not to be touched without contamination, from their other bad principles. Commerce with all nations, alliance with none, should be our motto.

Accept assurances of the constant and unaltered affection of, Dear Sir, your sincere friend and servant,

Th: Jefferson.

LETTER CCLIII.—TO EDMUND RANDOLPH, August 18, 1799

TO EDMUND RANDOLPH.

Monticello, August 18, 1799

Dear Sir,

I received only two days ago your favor of the 12th, and as it was on the eve of the return of our post, it was not possible to make so prompt a despatch of the answer. Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of ungiven powers have been in the detail. The bank-law, the treaty-doctrine, the sedition-act, alien-act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp-act, &c. &c. have been solitary, inconsequential, timid things, in comparison with the audacious, barefaced, and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitely beyond their power to adopt. If this assumption be yielded to, the State courts may be shut up, as there will then be nothing to hinder citizens of the same State suing each other in the federal courts in every case, as on a bond for instance, because the common law obliges payment of it, and the common law they say is their law. I am happy you have taken up the subject; and I have carefully perused and considered the notes you enclosed, and find but a single paragraph which I do not approve. It is that wherein (page 2) you say, that laws being emanations from the legislative department, and, when once enacted, continuing in force from a presumption that their will so continues, that that presumption fails, and the laws of course fall, on the destruction of that legislative department. I do not think this is the true bottom on which laws and the administering them rest. The whole body of the nation is the sovereign legislative, judiciary, and executive power for itself. The inconvenience of meeting to exercise these powers in person, and their inaptitude to exercise them, induce them to appoint special organs to declare their legislative will, to judge, and to execute it. It is the will of the nation which makes the law obligatory; it is their will which creates or annihilates the organ which is to declare and announce it. They may do it by a single person, as an Emperor of Russia (constituting his declarations evidence of their will), or by a few persons, as the aristocracy of Venice, or by a complication of councils, as in our former regal government, or our present republican one. The law being law because it is the will of the nation, is not changed by their changing the organ through which they choose to announce their future will; no more than the acts I have done by one attorney lose their obligation by my changing or discontinuing that attorney. This doctrine has been, in a certain degree, sanctioned by the federal executive. For it is precisely that on which the continuance of obligation from our treaty with France was established, and the doctrine was particularly developed in a letter to Gouverneur Morris, written with the approbation of President Washington and his cabinet. Mercer once prevailed on the Virginia Assembly to declare a different doctrine in some resolutions. These met universal disapprobation in this, as well as the other States, and if I mistake not, a subsequent Assembly did something to do away the authority of their former unguarded resolutions. In this case, as in all others, the true principle will be quite as effectual to establish the just deductions. Before the revolution, the nation of Virginia had, by the organs they then thought proper to constitute, established a system of laws, which they divided into three denominations of, 1. common law; 2. statute law; 3. chancery: or if you please, into two only, of 1. common law; 2. chancery. When by the Declaration of Independence, they chose to abolish their former organs of declaring their will, the acts of will already formally and constitutionally declared, remained untouched. For the nation was not dissolved, was not annihilated; its will, therefore, remained in full vigor: and on the establishing the new organs, first of a convention, and afterwards a more complicated legislature, the old acts of national will continued in force, until the nation should, by its new organs, declare its will changed. The common law, therefore, which was not in force when we landed here, nor till we had formed ourselves into a nation, and had manifested by the organs we constituted that the common law was to be our law, continued to be our law; because the nation continued in being, and because, though it changed the organs for the future declarations of its will, yet it did not change its former declarations that the common law was its law. Apply these principles to the present case. Before the revolution there existed no such nation as the United States: they then first associated as a nation, but for special purposes only. They had all their laws to make, as Virginia had on her first establishment as a nation. But they did not, as Virginia had done, proceed to adopt a whole system of laws ready made to their hand. As their association as a nation was only for special purposes, to wit, for the management of their concerns with one another and with foreign nations, and the States composing the association chose to give it powers for those purposes and no others, they could not adopt any general system, because it would have embraced objects on which this association had no right to form or declare a will. It was not the organ for declaring a national will in these cases. In the cases confided to them, they were free to declare the will of the nation, the law, but till it was declared there could be no law. So that the common law did not become, ipso facto, law on the new association; it could only become so by a positive adoption, and so far only as they were authorized to adopt.

I think it will be of great importance, when you come to the proper part, to portray at full length the consequences of this new doctrine, that the common law is the law of the United States and that their courts have, of course, jurisdiction co-extensive with that law, that is to say, general over all cases and persons. But great heavens! Who could have conceived in 1789, that within ten years we should have to combat such windmills. Adieu. Yours affectionately.

Th: Jefferson.

LETTER CCLIV.—TO WILSON C. NICHOLAS, September 5, 1799

TO WILSON C. NICHOLAS.

Monticello, September 5, 1799.

Dear Sir,

Yours of August the 30th came duly to hand. It was with great regret we gave up the hope of seeing you here, but, could not but consider the obstacle as legitimate. I had written to Mr. Madison, as I had before informed you, and had stated to him some general ideas for consideration and consultation when we should meet. I thought something essentially necessary to be said, in order to avoid the inference of acquiescence; that a resolution or declaration should be passed, 1. answering the reasonings of such of the States as have ventured into the field of reason, and that of the committee of Congress, taking some notice, too, of those States who have either not answered at all, or answered without reasoning. 2. Making firm protestation against the precedent and principle, and reserving the right to make this palpable violation of the federal compact the ground of doing in future whatever we might now rightfully do, should repetitions of these and other violations of the compact render it expedient. 3. Expressing in affectionate and conciliatory language our warm attachment to union with our sister States, and to the instrument and principles by which we are united; that we are willing to sacrifice to this every thing but the rights of self-government in those important points which we have never yielded, and in which alone we see liberty, safety, and happiness; that not at all disposed to make every measure of error or of wrong, a cause of scission, we are willing to look on with indulgence, and to wait with patience, till those passions and delusions shall have passed over, which the federal government have artfully excited to cover its own abuses and conceal its designs, fully confident that the good sense of the American people, and their attachment to those very rights which we are now vindicating, will, before it shall be too late, rally with us round the true principles of our federal compact. This was only meant to give a general idea of the complexion and topics of such an instrument. Mr. M. who came, as had been proposed, does not concur in the reservation proposed above; and from this I recede readily, not only in deference to his judgment, but because, as we should never think of separation but for repeated and enormous violations, so these, when they occur, will be cause enough of themselves.