Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 4

June the 23rd, 1801. Andrew Ellicot tells me, that in a conversation last summer with Major William Jackson of Philadelphia, on the subject of our intercourse with Spain, Jackson said we had managed our affairs badly; that he himself was the author of the papers against the Spanish minister signed Americanus; that his object was irritation; that he was anxious, if it could have been brought, about, to have plunged us into a war with Spain, that the people might have been occupied with that, and not with the conduct of the administration, and other things they had no business to meddle with.

December the 13th, 1803. The Reverend Mr. Coffin of New England, who is now here soliciting donations for a college in Greene county, in Tennessee, tells me that when he first determined to engage in this enterprise, he wrote a paper recommendatory of the enterprise, which he meant to get signed by clergymen, and a similar one for persons in a civil character, at the head of which he wished Mr. Adams to put his name, he being then President, and the application going only for his name, and not for a donation. Mr. Adams, after reading the paper and considering, said, ‘he saw no possibility of continuing the union of the States; that their dissolution must necessarily take place; that he therefore saw no propriety in recommending to New England men to promote a literary institution in the south; that it was in fact giving strength to those who were to be their enemies, and therefore, he would have nothing to do with it.’

December the 31st. After dinner to-day, the pamphlet on the conduct of Colonel Burr being the subject of conversation, Matthew Lyon noticed the insinuations against the republicans at Washington, pending the Presidential election, and expressed his wish that every thing was spoken out which was known; that it would then appear on which side there was a bidding for votes, and he declared that John Brown of Rhode Island, urging him to vote for Colonel Burr, used these words. ‘What is it you want, Colonel Lyon? Is it office, is it money? Only say what you want, and you shall have it.’

January the 2nd, 1804. Colonel Hitchburn, of Massachusetts, reminding me of a letter he had written me from Philadelphia, pending the Presidential election, says he did not therein give the details. That he was in company at Philadelphia with Colonel Burr and – that in the course of the conversation on the election, Colonel Burr said, ‘We must have a President, and a constitutional one, in some way.’ ‘How is it to be done,’ says Hitchburn; ‘Mr. Jefferson’s friends will not quit him, and his enemies are not strong enough to carry another.’ ‘Why,’ says Burr, ‘our friends must join the federalists, and give the President.’ ‘The next morning at breakfast, Colonel Burr repeated nearly the same, saying, ‘We cannot be without a President, our friends must join the federal vote.’ ‘But,’ says Hitchburn, ‘we shall then be without a Vice-President; who is to be our Vice-President?’ Colonel Burr answered, ‘Mr. Jefferson.’

January the 26th. Colonel Burr, the Vice-President, calls on me in the evening, having previously asked an opportunity of conversing with me. He began by recapitulating summarily, that he had come to New York a stranger, some years ago; that he found the country in possession of two rich families (the Livingstons and Clintons); that his pursuits were not political, and he meddled not. When the crisis, however, of 1800 came on, they found their influence worn out, and solicited his aid with the people. He lent it without any views of promotion. That his being named as a candidate for Vice-President was unexpected by him. He acceded to it with a view to promote my fame and advancement, and from a desire to be with me, whose company and conversation had always been fascinating to him. That, since, those great families had become hostile to him, and had excited the calumnies which I had seen published. That in this Hamilton had joined, and had even written some of the pieces against him. That his attachment to me had been sincere, and was still unchanged, although many little stories had been carried to him, and he supposed to me also, which he despised; but that attachments must be reciprocal, or cease to exist, and therefore he asked if any change had taken place in mine towards him; that he had chosen to have this conversation with myself directly, and not through any intermediate agent. He reminded me of a letter written to him about the time of counting the votes (say February, 1801), mentioning that his election had left a chasm in my arrangements; that I had lost him from my list in the administration, &c. He observed, he believed it would be for the interest of the republican cause for him to retire; that a disadvantageous schism would otherwise take place; but that were he to retire, it would be said he shrunk from the public sentence, which he never would do; that his enemies were using my name to destroy him, and something was necessary from me to prevent and deprive them of that weapon, some mark of favor from me which would declare to the world that he retired with my confidence.

I answered by recapitulating to him what had been my conduct previous to the election of 1800. That I had never interfered directly or indirectly, with my friends or any others, to influence the election either for him or myself; that I considered it as my duty to be merely passive, except that in Virginia I had taken some measures to procure for him the unanimous vote of that State, because I thought any failure there might be imputed to me. That in the election now coming on, I was observing the same conduct, held no councils with any body respecting it, nor suffered any one to speak to me on the subject, believing it my duty to leave myself to the free discussion of the public; that I do not at this moment know, nor have ever heard, who were to be proposed as candidates for the public choice, except so far as could be gathered from the newspapers. That as to the attack excited against him in the newspapers, I had noticed it but as the passing wind; that I had seen complaints that Cheetham, employed in publishing the laws, should be permitted to eat the public bread and abuse its second officer: that as to this, the publishers of the laws were appointed by the Secretary of State, without any reference to me; that to make the notice general, it was often given to one republican and one federal printer of the same place; that these federal printers did not in the least intermit their abuse of me, though receiving emoluments from the government, and that I have never thought it proper to interfere for myself, and consequently not in the case of the Vice-President. That as to the letter he referred to, I remembered it, and believed he had only mistaken the date at which it was written; that I thought it must have been on the first notice of the event of the election of South Carolina; and that I had taken that occasion to mention to him, that I had intended to have proposed to him one of the great offices, if he had not been elected; but that his election, in giving him a higher station, had deprived me of his aid in the administration. The letter alluded to was, in fact, mine to him of December the 15th, 1800. I now went on to explain to him verbally, what I meant by saying I had lost him from my list. That in General Washington’s time, it had been signified to him that Mr. Adams, the Vice-President, would be glad of a foreign embassy; that General Washington mentioned it to me, expressed his doubts whether Mr. Adams was a fit character for such an office, and his still greater doubts, indeed, his conviction, that it would not be justifiable to send away the person who, in case of his death, was provided by the constitution to take his place: that it would moreover appear indecent for him to be disposing of the public trusts, in apparently buying off a competitor for the public favor. I concurred with him in the opinion, and, if I recollect rightly, Hamilton, Knox, and Randolph were consulted, and gave the same opinions. That when Mr. Adams came to the administration, in his first interview with me, he mentioned the necessity of a mission to France, and how desirable it would have been to him if he could have got me to undertake it; but that he conceived it would be wrong in him to send me away, and assigned the same reasons General Washington had done; and therefore, he should appoint Mr. Madison, &c. That I had myself contemplated his (Colonel Burr’s) appointment to one of the great offices, in case he was not elected Vice-President; but that as soon as that election was known, I saw it could not be done, for the good reasons which had led General Washington and Mr. Adams to the same conclusion; and therefore, in my first letter to Colonel Burr, after the issue was known, I had mentioned to him that a chasm in my arrangements had been produced by this event. I was thus particular in rectifying the date of this letter, because it gave me an opportunity of explaining the grounds on which it was written, which were, indirectly, an answer to his present hints. He left the matter with me for consideration, and the conversation was turned to indifferent subjects. I should here notice, that Colonel Burr must have thought I could swallow strong things in my own favor, when he founded his acquiescence to the nomination as Vice-President, to his desire of promoting my honor, the being with me, whose company and conversation had always been fascinating with him, &c. I had never seen Colonel Burr till he came as a member of Senate. His conduct very soon inspired me with distrust. I habitually cautioned Mr. Madison against trusting him too much. I saw afterwards, that under General Washington’s and Mr. Adams’s administrations, whenever a great military appointment or a diplomatic one was to be made, he came post to Philadelphia to show himself, and in fact that he was always at market, if they had wanted him. He was indeed told by Dayton in 1800, he might be Secretary at War; but this bid was too late! His election as Vice-President was then foreseen. With these impressions of Colonel Burr, there never had been an intimacy between us, and but little association. When I destined him for a high appointment, it was out of respect for the favor he had obtained with the republican party, by his extraordinary exertions and success in the New York election in 1800.

April the 15th, 1806. About a month ago, Colonel Burr called on me, and entered into a conversation, in which he mentioned, that a little before my coming into office, I had written to him a letter intimating that I had destined him for a high employ, had he not been placed by the people in a different one; that he had signified his willingness to resign as Vice-President, to give aid to the administration in any other place; that he had never asked an office, however; he asked aid of nobody, but could walk on his own legs and take care of himself; that I had always used him with politeness, but nothing more; that he aided in bringing on the present order of things; that he had supported the administration; and that he could do me much harm: he wished, however, to be on different ground: he was now disengaged from all particular business—willing to engage in something—should be in town some days, if I should have any thing to propose to him. I observed to him, that I had always been sensible that he possessed talents which might be employed greatly to the advantage of the public, and that, as to myself, I had a confidence that if he were employed, he would use his talents for the public good: but that he must be sensible the public had withdrawn their confidence from him, and that in a government like ours it was necessary to embrace in its administration as great a mass of public confidence as possible, by employing those who had a character with the public, of their own, and not merely a secondary one through the executive. He observed, that if we believed a few newspapers, it might be supposed he had lost the public confidence, but that I knew how easy it was to engage newspapers in any thing. I observed, that I did not refer to that kind of evidence of his having lost the public confidence, but to the late Presidential election, when, though in possession of the office of Vice-President, there was not a single voice heard for his retaining it. That as to any harm he could do me, I knew no cause why he should desire it, but, at the same time, I feared no injury which any man could do me: that I never had done a single act, or been concerned in any transaction, which I feared to have fully laid open, or which could do me any hurt, if truly stated: that I had never done a single thing with a view to my personal interest, or that of any friend, or with any other view than that of the greatest public good: that, therefore, no threat or fear on that head would ever be a motive of action with me. He has continued in town to this time; dined with me this day week, and called on me to take leave two or three days ago.

I did not commit these things to writing at the time, but I do it now, because in a suit between him and Cheetham, he has had a deposition of Mr. Bayard taken, which seems to have no relation to the suit, nor to any other object than to calumniate me. Bayard pretends to have addressed to me, during the pending of the Presidential election in February, 1801, through General Samuel Smith, certain conditions on which my election might be obtained, and that General Smith, after conversing with me, gave answers from me. This is absolutely false. No proposition of any kind was ever made to me on that occasion by General Smith, nor any answer authorized by me. And this fact General Smith affirms at this moment.

For some matters connected with this, see my notes of February the 12th and 14th, 1801, made at the moment. But the following transactions took place about the same time, that is to say, while the Presidential election was in suspense in Congress, which, though I did not enter at the time, they made such an impression on my mind, that they are now as fresh, as to their principal circumstances, as if they had happened yesterday. Coming out of the Senate chamber one day, I found Gouverneur Morris on the steps. He stopped me, and began a conversation on the strange and portentous state of things then existing, and went on to observe, that the reasons why the minority of States was so opposed to my being elected, were, that they apprehended that, 1. I would turn all federalists out of office; 2. put down the navy; 3. wipe off the public debt. That I need only to declare, or authorize my friends to declare, that I would not take these steps, and instantly the event of the election would be fixed. I told him, that I should leave the world to judge of the course I meant to pursue, by that which I had pursued hitherto, believing it to be my duty to be passive and silent during the present scene; that I should certainly make no terms; should never go into the office of President by capitulation, nor with my hands tied by any conditions which should hinder me from pursuing the measures which I should deem for the public good. It was understood that Gouverneur Morris had entirely the direction of the vote of Lewis Morris of Vermont, who, by coming over to Matthew Lyon, would have added another vote, and decided the election. About the same time, I called on Mr. Adams. We conversed on the state of things. I observed to him, that a very dangerous experiment was then in contemplation, to defeat the Presidential election by an act of Congress declaring the right of the Senate to name a President of the Senate, to devolve on him the government during any interregnum: that such a measure would probably produce resistance by force, and incalculable consequences, which it would be in his power to prevent by negativing such an act. He seemed to think such an act justifiable, and observed, it was in my power to fix the election by a word in an instant, by declaring I would not turn out the federal officers, nor put down the navy, nor spunge the national debt. Finding his mind made up as to the usurpation of the government by the President of the Senate, I urged it no further, observed, the world must judge as to myself of the future by the past, and turned the conversation to something else. About the same time, Dwight Foster of Massachusetts called on me in my room one night, and went into a very long conversation on the state of affairs, the drift of which was to let me understand, that the fears above mentioned were the only obstacle to my election, to all of which I avoided giving any answer the one way or the other. From this moment he became most bitterly and personally opposed to me, and so has ever continued. I do not recollect that I ever had any particular conversation with General Samuel Smith on this subject. Very possibly I had, however, as the general subject and all its parts were the constant themes of conversation in the private tête-à-têtes with our friends. But certain I am, that neither he nor any other republican ever uttered the most distant hint to me about submitting to any conditions, or giving any assurances to any body; and still more certainly, was neither he nor any other person ever authorized by me to say what I would or would not do.

[The following official opinion, though inadvertently omitted in its proper place, is deemed of sufficient importance to be inserted here.]

The bill for establishing a National Bank, undertakes, among other things,

1. To form the subscribers into a corporation.

2. To enable them, in their corporate capacities, to receive grants of land; and so far, is against the laws of Mortmain.18

3. To make alien subscribers capable of holding lands; and so far, is against the laws of Alienage.

4. To transmit these lands, on the death of a proprietor, to a certain line of successors; and so far, changes the course of Descents.

5. To put the lands out of the reach of forfeiture or escheat; and so far, is against the laws of Forfeiture and Escheat.

6. To transmit personal chattels to successors in a certain line; and so far, is against the laws of Distribution.

7. To give them the sole and exclusive right of banking under the national authority; and so far, is against the laws of Monopoly.

8. To communicate to them a power to make laws paramount to the laws of the States; for so they must be construed, to protect the institution from the control of the State legislatures; and so, probably, they will be construed.

I consider the foundation of the constitution as laid on this ground, that all powers not delegated to the United States by the constitution nor prohibited by it to the States, are reserved to the States or to the people.’ (Twelfth amendment.) To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.

The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the constitution.

I. They are not among the powers specially, enumerated. For these are,

1. A power to lay taxes for the purpose of paying the debts of the United States. But no debt is paid by this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senate would condemn it by the constitution.

2. To ‘borrow money.’ But this bill neither borrows money, nor insures the borrowing it. The proprietors of the bank will be just as free as any other money-holders, to lend or not to lend their money to the public. The operation proposed in the bill, first to lend them two millions, and then borrow them back again cannot change the nature of the latter act, which will still be a payment and not a loan, call it by what name you please.

3. ‘To regulate commerce with foreign nations, and among the States, and with the Indian tribes.’ To erect a bank, and to regulate commerce, are very different acts. He who erects a bank creates a subject of commerce in its bills: so does he who makes a bushel of wheat, or digs a dollar out of the mines. Yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the constitution, does not extend to the internal regulation, of the commerce of a State (that is to say, of the commerce between citizen and citizen), which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly, the bill does not propose the measure as a ‘regulation of trade,’ but as ‘productive of considerable advantage to trade.’

Still less are these powers covered by any other of the special enumerations.

II. Nor are they within either of the general phrases, which are the two following.

1. ‘To lay taxes to provide for the general welfare of the United States’; that is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. Congress are not to lay taxes, ad libitum, for any purpose they please: but only to pay the debts, or provide for the welfare of the Union. In like manner, they are not to do any thing they please, to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they pleased. It is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means, was rejected as an end by the convention which formed the constitution. A proposition was made to them, to authorize Congress to open parials, and an amendatory one, to empower them to incorporate. But the whole was rejected; and one of the reasons of rejection urged in debate was, that they then would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on that subject, adverse to the reception of the constitution.

2. The second general phrase is, ‘to make all laws necessary and proper for carrying into execution the enumerated powers.’ But they can all be carried into execution without a bank. A bank, therefore, is not necessary, and consequently, not authorized by this phrase.

It has been much urged, that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the constitution allows only the means which are ‘necessary’ not those which are merely ‘convenient’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase, as to give any non-enumerated power, it will go to every one; for there is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed. Therefore it was, that the constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory.

But let us examine this ‘convenience,’ and see what it is. The report on this subject, page 2, states the only general convenience to be, the preventing the transportation and re-transportation of money between the States and the treasury. (For I pass over the increase of circulating medium ascribed to it as a merit, and which, according to my ideas of paper money, is clearly a demerit.) Every State will have to pay a sum of tax-money into the treasury; and the treasury will have to pay in every State a part of the interest on the public debt, and salaries to the officers of government resident in that State. In most of the States, there will be still a surplus of tax-money, to come up to the seat of government, for the officers residing there. The payments of interest and salary in each State, may be made by treasury orders on the state collector. This will take up the greater part of the money he has collected in his State and consequently prevent the great mass of it from being drawn out of the state. If there be a balance of commerce in favor of that State, against the one in which the government resides, the surplus of taxes will be remitted by the bills of exchange drawn for that commercial balance. And so it must be if there were a bank. But if there be no balance of commerce, either direct or circuitous, all the banks in the world could not bring us the surplus of taxes but in the form of money. Treasury orders, then, and bills of exchange, may prevent the displacement of the main mass of the money collected, without the aid of any bank: and where these fail, it cannot be prevented even with that aid.