The Writings of Thomas Jefferson, Vol. 5 (of 9)

I have another enterprise to propose for some good printer. I have in my possession a MS. work in French, confided to me by a friend, whose name alone would give it celebrity were it permitted to be mentioned. But considerations insuperable forbid that. It is a Commentary and Review of Montesquieu's Spirit of Laws. The history of that work is well known. He had been a great reader, and had commonplaced everything he read. At length he wished to undertake some work into which he could bring his whole commonplace book in a digested form. He fixed on the subject of his Spirit of Laws, and wrote the book. He consulted his friend Helvetius about publishing it, who strongly dissuaded it. He published it, however, and the world did not confirm Helvetius' opinion. Still, every man who reflects as he reads, has considered it as a book of paradoxes; having, indeed, much of truth and sound principle, but abounding also with inconsistencies, apochryphal facts and false inferences. It is a correction of these which has been executed in the work I mention, by way of commentary and review; not by criticising words or sentences, but by taking a book at a time, considering its general scope, and proceeding to confirm or confute it. And much of confutation there is, and of substitution of true for false principle, and the true principle is ever that of republicanism. I will not venture to say that every sentiment in the book will be approved, because, being in manuscript, and the French characters, I have not read the whole, but so much only as might enable me to estimate the soundness of the author's way of viewing his subject; and, judging from that which I have read, I infer with confidence that we shall find the work generally worthy of our high approbation, and that it everywhere maintains the preëminence of representative government, by showing that its foundations are laid in reason, in right, and in general good. I had expected this from my knowledge of the other writings of the author, which have always a precision rarely to be met with. But to give you an idea of the manner of its execution, I translate and enclose his commentary on Montesquieu's eleventh book, which contains the division of the work. I wish I could have added his review at the close of the twelve first books, as this would give a more complete idea of the extraordinary merit of the work. But it is too long to be copied. I add from it, however, a few extracts of his reviews of some of the books, as specimens of his plan and principles. If printed in French, it would be of about 180 pages 8vo, or 23 sheets. If any one will undertake to have it translated and printed on their own account, I will send on the MS. by post, and they can take the copyright as of an original work, which it ought to be understood to be. I am anxious it should be ably translated by some one who possesses style as well as capacity to do justice to abstruse conceptions. I would even undertake to revise the translation if required. The original sheets must be returned to me, and I should wish the work to be executed with as little delay as possible.

I close this long letter with assurances of my great esteem and respect.

TO ALBERT GALLATIN, ESQ

Monticello, August 16, 1810.

Dear Sir,—Yours of July 14th, with the welcome paper it covered, has been most thankfully received. I had before received from your office and that of State, all the printed publications on the subject of the batture, that is to say, the opinion of the Philadelphia lawyers and of G. Livingston himself, the publications of Derbigny, Thierry, Poydras, and the pièces probantes. I had been very anxious to get Moreau's memoire, which is only in manuscript, having heard it was the best of all. After waiting long and in vain for it, I was informed by my counsel that they were ruled to plead, and must be furnished with the grounds of defence. I was obliged, therefore, to take up the subject—had got through it and put it into the hands of Mr. Hay, when the observations you were so kind as to furnish, came to hand. Although it was too late to give to everything its shape which these, at an earlier stage, might have suggested, I was still enabled to avail myself of them usefully. The question of the chancery jurisdiction of the Orleans judges had particularly escaped me, and entirely. When Mr. Hay returned the paper therefore, I was enabled, by re-copying a sheet or two at the close, to introduce this question in its proper place. I had also, till then, been uninformed of the circumstances under which Bertrand Gravier left France, and therefore had not been aware of the reasons for which John Gravier had chosen to come in by purchase. This information enabled me to extend and strengthen much of what I had before said on that subject; and by interleaving and recopying a part, to get that also into its proper place. On the whole, you will see, with the benefit of these amendments, what I had conceived to be a true statement of the fact and law of the case. But the paper is very voluminous, and I could not shorten it. It is now in the hands of the President, who will enclose it to you by the same post which carries this; when you shall have perused it, be so good as to re-enclose it to me, as I wish to submit it to our other fellow-laborers, after such amendments as Mr. Madison and yourself will be so good as to suggest. I wish the ground I take to meet all your approbations. The uninformed state in which the debates of the last session proved Congress to be, as to this case, makes me fear they may, at the next, under the intrigues and urgency of Livingston, be induced to take some step which might have an injurious effect on the opinion of a jury. I think, therefore, to ask a member or two of each house to read this statement, merely to make themselves masters of the subject, and be enabled to prevent any unfavorable interference of Congress. Perhaps, if they see the case in the light I do, they may think of doing more—of having the Attorney General desired to attend to the case as of public concern: for really it is so. I have no concern at all in maintaining the title to the batture. It would be totally unnecessary for me to employ counsel to go into the question at all for my own defence. That is solidly built on the simple fact, that if I were in error, it was honest, and not imputable to that gross and palpable corruption or injustice which makes a public magistrate responsible to a private party. I know that even a federal jury could not find a verdict against me on this head. But I go fully into the question of title, because our characters are concerned in it, and because it involves a most important right of the citizens, and one which, if decided against them, would be a precedent of incalculable evil. The detention, too, has been so long the act of Congress itself, that for this reason I have supposed they might think it entitled to their attention, and direct the Attorney General to take care of the public interest in it, as has lately been done by the House of Commons, in the action of Sir Francis Burdett against their Speaker. But on this subject I wish to be advised by yourself and my other friends, rather than trust to my own judgment, too likely to be under bias. If I send the case to be perused by two or three members, it will be under a strong injunction not to let its contents get into other hands, my counsel having strongly advised against apprizing them of the topics of defence, as well from apprehensions of subornation of witnesses as to material facts, as from other considerations. Pray advise me on this head. My counsel are Hay, Wist and Janewell.

I have seen with infinite grief the set which is made at you in the public papers, and with the more as my name has been so much used in it. I hope we both know one another too well to receive impression from circumstances of this kind. A twelve years' intimate and friendly intercourse must be better evidence to each of the dispositions of the other than the letters of foreign ministers to their courts, or tortured influences from facts true or false. I have too thorough a conviction of your cordial good will towards me, and too strong a sense of the faithful and able assistance I received from you, to relinquish them on any evidence but of my own senses. With entire faith in your assurance of these truths, I shall add those only of my constant affection and high respect.

TO COLONEL WM. DUANE

Monticello, September 16, 1810.

Dear Sir,—Your favor of August 17th arrived the day after I had left this place on a visit to one I have near Lynchburg, from whence I am but lately returned. The history of England you describe is precisely Baxter's, of which I wrote you; and if you compare him with Hume, you will find the text preserved verbatim, with particular exceptions only. The French work will accompany this letter. Since writing to you I have gone over the whole, and can assure you it is the most valuable political work of the present age. In some details we all may differ from him or from one another, but the great mass of the work is highly sound. Its title would be "A Commentary on Montesquieu's Spirit of Laws;" perhaps the words "and Review" might be inserted at the–. Helvetius' letter on the same work should be annexed, if it can possibly be procured. It was contained in a late edition of the works of Helvetius published by the Abbé de la Roche. Probably that edition might be found. I never before heard of Williams' lectures on Montesquieu, but I am glad to hear of everything which reduces that author to his just level, as his predilection for monarchy, and the English monarchy in particular, has done mischief everywhere, and here also, to a certain degree. With respect to the Notes on Virginia, I do contemplate some day the making additions and corrections to them; but I am inclined to take the benefit of my whole life to make collections and observations, and let the editing them be posthumous. The anecdote respecting the paper put into my hands by Dr. Franklin has not been handed to you with entire correctness. I returned from France in December 1789, and in March following I went on to New York to take the post assigned me in the new government. On my way through Philadelphia I called on Dr. Franklin, who was then confined to his bed. As the revolution had then begun, indeed was supposed to be closed by the completion of a constitution, and he was anxious to know the part all his acquaintances had taken, he plied me with questions for an hour or two with a vivacity and earnestness which astonished me. When I had satisfied his inquiries, I observed to him that I had heard, and with great pleasure, that he had began the history of his own life, and had brought it down to the revolution, (for so I had heard while in Europe.) "Not exactly so," said he, "but I will let you see the manner in which I do these things." He then desired one of his small grand-children who happened to be in the room, to bring him such a paper from the table. It was brought, and he put it into my hands and said, "there, put that into your pocket and you will see the manner of my writing." I thanked him and said "I should read it with great pleasure, and return it to him safely." "No," said he, "keep it." I took it with me to New York. It was, as well as I recollect, about a quire of paper, in which he had given, with great minuteness, all the details of his negotiations (informal) in England, to prevent their pushing us to extremities. These were chiefly through Lord Howe and a lady, I think the sister of Lord Howe, but of this I am not certain; but I remember noting the particulars of her conversation as marking her as a woman of very superior understanding. He gave all the conversations with her and Lord Howe, and all the propositions he passed through them to their minister, the answers and conversations with the minister reported through them, his endeavors used with other characters, whether with the ministers directly I do not recollect; but I remember well that it appeared distinctly from what was brought to him from the ministers, that the real obstacle to their meeting the various overtures he made was the prospect of great confiscations to provide for their friends, and that this was the real cause of the various shiftings and shufflings they used to evade his propositions. Learning, on his death, which happened soon after, that he had bequeathed all his unpublished writings to his grandson, W. T. Franklin, with a view to the emolument he might derive from their publication, I thought this writing was fairly his property, and notified to him my possession of it, and that I would deliver it to his order. He soon afterwards called on me at New York, and I delivered it to him. He accepted it, and, while putting it into his pocket, observed that his grandfather had retained another copy which he had found among his papers. I did not reflect on this till suspicions were circulated that W. T. F. had sold these writings to the British Minister. I then formed the belief that Dr. Franklin had meant to deposit this spare copy with me in confidence that it would be properly taken care of, and sincerely repented the having given it up; and I have little doubt that this identical paper was the principal object of the purchase by the British government, and the unfortunate cause of the suppression of all the rest. I do not think I have any interesting papers or facts from Dr. Franklin. Should any occur at any time, I will communicate them freely, nobody wishing more ardently that the public could be possessed of everything that was his or respected him, believing that a greater or better character has rarely existed. I am happy to learn that his blood shows itself in the veins of the two of his great grandchildren whom you mention. But I should think medicine the best profession for a genius resembling his, as that of the elder is supposed to do. I have received information of Pestalozzi's mode of education from some European publications, and from Mr. Keefe's book which shows that the latter possesses both the talents and the zeal for carrying it into effect. I sincerely wish it success, convinced that the information of the people at large can alone make them the safe, as they are the sole depository of our political and religious freedom. The idea of antimony in this neighborhood is, I believe, without foundation. Some twenty or thirty years ago a mineral was found about ten miles from this place, which one of those idle impostors, who call themselves mine-hunters, persuaded the proprietor was gold ore. The poor man lost a crop in digging after it. After fruitless assays of the mineral, some other person, knowing as little of the matter, fancied it must be antimony. A third idea was that it was black lead. It was abandoned, and the mine hole filled up, nor can we at this day hear of any piece of the mineral in possession of any one.

You say in your letter that you will send me the proofs of the commentary on Montesquieu for revisal. It is only the translation I should wish to revise. I feel myself answerable to the author for a correct publication of his ideas. The translated sheets may come by post as they are finished off; they shall be promptly returned, the originals coming with them. Accept the assurances of my esteem and respect.

TO J. B. COLVIN

Monticello, September 20, 1810.

Sir,—Your favor of the 14th has been duly received, and I have to thank you for the many obliging things respecting myself which are said in it. If I have left in the breasts of my fellow citizens a sentiment of satisfaction with my conduct in the transaction of their business, it will soften the pillow of my repose through the residue of life.

The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. When, in the battle of Germantown, General Washington's army was annoyed from Chew's house, he did not hesitate to plant his cannon against it, although the property of a citizen. When he besieged Yorktown, he leveled the suburbs, feeling that the laws of property must be postponed to the safety of the nation. While the army was before York, the Governor of Virginia took horses, carriages, provisions and even men by force, to enable that army to stay together till it could master the public enemy; and he was justified. A ship at sea in distress for provisions, meets another having abundance, yet refusing a supply; the law of self-preservation authorizes the distressed to take a supply by force. In all these cases, the unwritten laws of necessity, of self-preservation, and of the public safety, control the written laws of meum and tuum. Further to exemplify the principle, I will state an hypothetical case. Suppose it had been made known to the Executive of the Union in the autumn of 1805, that we might have the Floridas for a reasonable sum, that that sum had not indeed been so appropriated by law, but that Congress were to meet within three weeks, and might appropriate it on the first or second day of their session. Ought he, for so great an advantage to his country, to have risked himself by transcending the law and making the purchase? The public advantage offered, in this supposed case, was indeed immense; but a reverence for law, and the probability that the advantage might still be legally accomplished by a delay of only three weeks, were powerful reasons against hazarding the act. But suppose it foreseen that a John Randolph would find means to protract the proceeding on it by Congress, until the ensuing spring, by which time new circumstances would change the mind of the other party. Ought the Executive, in that case, and with that foreknowledge, to have secured the good to his country, and to have trusted to their justice for the transgression of the law? I think he ought, and that the act would have been approved. After the affair of the Chesapeake, we thought war a very possible result. Our magazines were illy provided with some necessary articles, nor had any appropriations been made for their purchase. We ventured, however, to provide them, and to place our country in safety; and stating the case to Congress, they sanctioned the act.

To proceed to the conspiracy of Burr, and particularly to General Wilkinson's situation in New Orleans. In judging this case, we are bound to consider the state of the information, correct and incorrect, which he then possessed. He expected Burr and his band from above, a British fleet from below, and he knew there was a formidable conspiracy within the city. Under these circumstances, was he justifiable, 1st, in seizing notorious conspirators? On this there can be but two opinions; one, of the guilty and their accomplices; the other, that of all honest men. 2d. In sending them to the seat of government, when the written law gave them a right to trial in the territory? The danger of their rescue, of their continuing their machinations, the tardiness and weakness of the law, apathy of the judges, active patronage of the whole tribe of lawyers, unknown disposition of the juries, an hourly expectation of the enemy, salvation of the city, and of the Union itself, which would have been convulsed to its centre, had that conspiracy succeeded; all these constituted a law of necessity and self-preservation, and rendered the salus populi supreme over the written law. The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the constitution, and his station makes it his duty to incur that risk. But those controlling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. They are not to transfer the information of this place or moment to the time and place of his action; but to put themselves into his situation. We knew here that there never was danger of a British fleet from below, and that Burr's band was crushed before it reached the Mississippi. But General Wilkinson's information was very different, and he could act on no other.

From these examples and principles you may see what I think on the question proposed. They do not go to the case of persons charged with petty duties, where consequences are trifling, and time allowed for a legal course, nor to authorize them to take such cases out of the written law. In these, the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.

I have indulged freer views on this question, on your assurances that they are for your own eye only, and that they will not get into the hands of newswriters. I met their scurrilities without concern, while in pursuit of the great interests with which I was charged. But in my present retirement, no duty forbids my wish for quiet.

Accept the assurances of my esteem and respect.

TO THE SECRETARY OF STATE

Monticello, September 22, 1810.

Dear Sir,—I have wanted the occasion of the present enclosure to perform the duty of my thanks for the kind communication of papers from your office in the question between Livingston and myself. These have mainly enabled me to give a correct statement of facts. I deferred proceeding to a particular consideration of the case in hopes of the aid of Moreau's Memoire, which I have understood to be the ablest which has been written. But I was at length forced to proceed without it, my counsel informing me they were ruled to plead, and must therefore know the grounds of defence. You will see what I have made of it by the enclosed, which I forward in the hope you will consider and correct it. I have done this the rather because I presume all my fellow laborers feel an interest in what all approved, and because I think I should urge nothing which they disapprove. Will you then do me the favor to put on paper such corrections as you would advise, and forward them to me, handing on the enclosed paper at the same time to Mr. Rodney? I wrote him by this post that he may expect it from you, and I ask the same favor of correction from him, and above all to delay as little as possible, because time presses to give to this paper its ultimate form. My counsel press me earnestly not to let the topics of defence get out, so as to be known to the adversary. Although I know Congress will be strongly urged, yet I hope they will take no measure which may impress a jury unfavorably, by inferences not intended. And were the case to be thought to belong to the public, still I believe it better they should let it come on, on the footing of a private action. I pray you to be assured of my constant affection and respect.

September 26th. Sent a P. S. verbatim, the same as that to Mr. Rodney.

TO THE ATTORNEY GENERAL OF THE UNITED STATES

Monticello, September 25, 1810.

Dear Sir,—I have to thank you for your kind letter of June 8th, and the suggestions it furnished on the question whether Livingston could maintain an action in Richmond for a trespass committed in Orleans. This being a question of common law, I leave it to my counsel so much more recent than I am in that branch of law. I have undertaken to furnish them with the grounds of my defence under the lex loci. I wished for the aid of Moreau's Memoire because it is understood to be the ablest of any. However, my counsel being ruled to plead, and pressing me for the grounds of defence, I proceeded to consider the case, meaning at first only an outline, but I got insensibly into the full discussion, which became very voluminous, and the more so as it was necessary not only to enter all the authorities at large in the text, because few possess them, but also translations of them, because all do not understand all the languages in which they are. Believing my late associates in the executive would feel an interest in the justification of a conduct in which all concurred, and also in the issue of it, I have thought it a duty to consult them as to the grounds to be taken, and to take none against their advice. My statement has therefore been submitted to the President, Mr. Smith and Mr. Gallatin, and will be forwarded to you by Mr. Smith as soon as he shall have read it. I have to request your consideration and corrections of it, and that you will be so good as to furnish them on a separate paper. I am obliged also to ask an immediate attention to them, because time presses to give to this paper its ultimate shape, to plead, and collect the evidence. Its early return to me therefore is urging. I do not know whether my counsel (Hay, Wist and Tazewell) have pleaded to the jurisdiction. * * * * * The death of Cushing is opportune, as it gives an opening for at length getting a republican majority on the supreme bench. Ten years has the anti-civism of that body been bidding defiance to the spirit of the whole nation, after they had manifested their will by reforming every other branch of the government. I trust the occasion will not be lost; Bidwell's disgrace withdraws the ablest man of the section in which Cushing's successor must be named. The pure integrity, unimpeachable conduct, talents and republican firmness of Lincoln, leave him now, I think, without a rival. He is thought not an able common lawyer. But there is not and never was an able one in the New England States. Their system is sui generis, in which the common law is little attended to. Lincoln is one of the ablest in their system, and it is among them he is to execute the great portion of his duties. Nothing is more material than to complete the reformation of the government by this appointment, which may truly be said to be putting the keystone into the arch. In my statement of the law of Livingston's case, I do not pretend to consider every argument as perfectly sound. I have, as is usual, availed myself of some views, which may have a weight with others which they have not with me. I have no right to assume infallibility, and I present them, therefore, ut valcant ubi possint. Accept the assurances of my constant and affectionate esteem.