The Writings of Thomas Jefferson, Vol. 1 (of 9)

I trouble you with the copy of a letter from Scheveighauser and Dobrec, on a subject with which I am quite unacquainted. Their letter to Congress of November the 30th, 1780, gives their state of the matter. How far it be true and just can probably be ascertained from Dr. Franklin, Dr. Lee, and other gentlemen now in America. I shall be glad to be honored with the commands of Congress on this subject. I have inquired into the state of their arms, mentioned in their letter to me. The principal articles were about thirty thousand bayonets, fifty thousand gunlocks, thirty cases of arms, twenty-two cases of sabres, and some other things of little consequence. The quay at Nantes, having been overflowed by the river Loire, the greatest part of these arms were under water, and they are now, as I am informed, a solid mass of rust, not worth the expense of throwing them out of the warehouse, much less that of storage. Were not their want of value a sufficient reason against reclaiming the property of these arms, it rests with Congress to decide, whether other reasons are not opposed to this reclamation. They were the property of a sovereign body, they were seized by an individual, taken cognizance of by a court of justice, and refused, or at least not restored by the sovereign within whose States they had been arrested. These are circumstances which have been mentioned to me. Dr. Franklin, however, will be able to inform Congress, with precision, as to what passed on this subject. If the information I have received be anything like the truth, the discussion of this matter can only be with the court of Versailles. It would be very delicate, and could have but one of two objects; either to recover the arms, which are not worth receiving, or to satisfy us on the point of honor. Congress will judge how far the latter may be worth pursuing against a particular ally, and under actual circumstances. An instance, too, of acquiescence on our part under a wrong, rather than disturb our friendship by altercations, may have its value in some future case. However, I shall be ready to do in this what Congress shall be pleased to direct.

I enclose the despatches relative to the Barbary negotiation, received since my last. It is painful to me to overwhelm Congress and yourself continually with these voluminous papers. But I have no right to suppress any part of them, and it is one of those cases where, from a want of well-digested information, we must be contented to examine a great deal of rubbish, in order to find a little good matter.

The gazettes of Leyden and France, to the present date, accompany this, which, for want of direct and safe opportunities, I am obliged to send by an American gentleman, by the way of London. The irregularity of the French packets has diverted elsewhere the tide of passengers, who used to furnish me occasions of writing to you, without permitting my letters to go through the post office. So that when the packets go now, I can seldom write by them.

I have the honor to be, with sentiments of the highest esteem and respect, Sir, your most obedient, and most humble servant.

[The annexed is a translation of the paper referred to in the preceding letter, on the subject of the instructions given to Sir Guy Carleton.]

An extract of English political news, concerning North America. July 14th, 1786.

General Carleton departs in a few days with M. de La Naudiere, a Canadian gentleman. He has made me acquainted with the Indian, Colonel Joseph Brandt. It is certain that he departs with the most positive instructions to distress the Americans as much as possible, and to create them enemies on all sides.

Colonel Brandt goes loaded with presents for himself, and for several chiefs of the tribes bordering on Canada. It would be well for the Americans to know in time, that enemies are raised against them, in order to derange their system of government, and to add to the confusion which already exists in it. The new possessions of England will not only gain what America shall lose, but will acquire strength in proportion to the weakening of the United States.

Sooner or later, the new States which are forming will place themselves under the protection of England, which can always communicate with them through Canada; and which, in case of future necessity, can harass the United States on one side by her shipping, and on the other by her intrigues. This system has not yet come to maturity, but it is unfolded, and we may rely upon the instructions given to Colonel Brandt.

TO COLONEL MONROE

Paris, August 11, 1786.

Dear Sir,—I wrote you last on the 9th of July; and, since that, have received yours of the 16th of June, with the interesting intelligence it contained. I was entirely in the dark as to the progress of that negotiation, and concur entirely in the views you have taken of it. The difficulty on which it hangs is a sine qua non with us. It would be to deceive them and ourselves, to suppose that an amity can be preserved, while this right is withheld. Such a supposition would argue, not only an ignorance of the people to whom this is most interesting, but an ignorance of the nature of man, or an inattention to it. Those who see but half way into our true interest, will think that that concurs with the views of the other party. But those who see it in all its extent, will be sensible that our true interest will be best promoted, by making all the just claims of our fellow citizens, wherever situated, our own, by urging and enforcing them with the weight of our whole influence, and by exercising in this, as in every other instance, a just government in their concerns, and making common cause even where our separate interest would seem opposed to theirs. No other conduct can attach us together; and on this attachment depends our happiness.

The King of Prussia still lives, and is even said to be better. Europe is very quiet at present. The only germ of dissension, which shows itself at present, is in the quarter of Turkey. The Emperor, the Empress, and the Venetians seem all to be picking at the Turks. It is not probable, however, that either of the two first will do anything to bring on an open rupture, while the King of Prussia lives.

You will perceive, by the letters I enclose to Mr. Jay, that Lambe, under the pretext of ill health, declines returning either to Congress, Mr. Adams, or myself. This circumstance makes me fear some malversation. The money appropriated to this object being in Holland, and, having been always under the care of Mr. Adams, it was concerted between us that all the drafts should be on him. I know not, therefore, what sums may have been advanced to Lambe; I hope, however, nothing great. I am persuaded that an angel sent on this business, and so much limited in his terms, could have done nothing. But should Congress propose to try the line of negotiation again, I think they will perceive that Lambe is not a proper agent. I have written to Mr. Adams on the subject of a settlement with Lambe. There is little prospect of accommodation between the Algerines, and the Portuguese and Neapolitans. A very valuable capture, too, lately made by them on the Empress of Russia, bids fair to draw her on them. The probability is, therefore, that these three nations will be at war with them, and the probability is, that could we furnish a couple of frigates, a convention might be formed with those powers, establishing a perpetual cruise on the coast of Algiers, which would bring them to reason. Such a convention, being left open to all powers willing to come into it, should have for its object a general peace, to be guaranteed to each, by the whole. Were only two or three to begin a confederacy of this kind, I think every power in Europe would soon fall into it, except France, England, and perhaps Spain and Holland. Of these, there is only England, who would give any real aid to the Algerines. Morocco, you perceive, will be at peace with us. Were the honor and advantage of establishing such a confederacy out of the question, yet the necessity that the United States should have some marine force, and the happiness of this, as the ostensible cause for beginning it, would decide on its propriety. It will be said, there is no money in the treasury. There never will be money in the treasury, till the confederacy shows its teeth. The States must see the rod; perhaps it must be felt by some one of them. I am persuaded, all of them would rejoice to see every one obliged to furnish its contributions. It is not the difficulty of furnishing them, which beggars the treasury, but the fear that others will not furnish as much. Every rational citizen must wish to see an effective instrument of coercion, and should fear to see it on any other element than the water. A naval force can never endanger our liberties, nor occasion bloodshed; a land force would do both. It is not in the choice of the States, whether they will pay money to cover their trade against the Algerines. If they obtain a peace by negotiation, they must pay a great sum of money for it; if they do nothing, they must pay a great sum of money, in the form of insurance; and in either way, as great a one as in the way of force, and probably less effectual.

I look forward with anxiety to the approaching moment of your departure from Congress. Besides the interest of the confederacy and of the State, I have a personal interest in it. I know not to whom I may venture confidential communications, after you are gone. I take the liberty of placing here my respects to Mrs. Monroe, and assurances of the sincere esteem with which I am, dear Sir, your friend and servant.

1

See Appendix, note A.

2

The name of a public room in the Raleigh.

3

Life of Washington, vol. ii, p. 151.

4

See Appendix, note B.

5

See Appendix, note C.

6

See Girardin's History of Virginia, Appendix No. 12. note.

7

See Appendix, note D.

8

Here, in the original manuscript, commence the "two preceding sheets" referred to by Mr. Jefferson, , as containing "notes" taken by him "whilst these things were going on." They are easily distinguished from the body of the MS. in which they were inserted by him, being of a paper very different in size, quality and color, from that in which the latter is written.

9

July 9.

10

In this publication, the parts struck out are printed in Italics and inclosed in brackets.

11

See Appendix, note B.

12

The above note of the author is on a slip of paper, pasted in at the end of the Declaration. Here is also sewed into the MS. a slip of newspaper containing, under the head "Declaration of Independence," a letter from Thomas M'Kean, to Messrs. William M'Corkle & Son, dated "Philadelphia, June 16, 1817." This letter is to be found in the Port Folio, Sept. 1817, p. 249.

13

Here terminate the author's notes of the "earlier debates on the confederation," and recommences the MS. begun by him in 1821.

14

See Appendix, note A.

15

See Appendix, note E.

16

His ostensible character was to be that of a merchant, his real one that of agent for military supplies, and also for sounding the dispositions of the government of France, and seeing how far they would favor us, either secretly or openly. His appointment had been by the Committee of foreign correspondence, March, 1776.

17

See Appendix, note F.

18

Vattel L. 2, § 156. L. 4, § 77. 1. Mably Droit D'Europe, 86.

19

In the original MS., the paragraph ending "fell through," terminates page 81 between this page and the next, there is stitched in, a leaf of old writing, constituting a memorandum, whereof note G in the Appendix, is a copy.

20

The Crimea.

21

Extract from the despatch of the Count de Vergennes, to the Marquis de Verac, Ambassador from France, at the Hague, dated March 1, 1786:

"The King will give his aid, as far as may be in his power, towards the success of the affair, and will, on his part, invite the Patriots to communicate to him their views, their plans, and their discontents. You may assure them that the King takes a real interest in themselves as well as their cause, and that they may rely upon his protection. On this they may place the greater dependence, as we do not conceal, that if the Stadtholder resumes his former influence, the English System will soon prevail, and our alliance become a mere affair of the imagination. The Patriots will readily feel, that this position would be incompatible both with the dignity and consideration of his Majesty. But in case the Chief of the Patriots should have to fear a division, they would have time sufficient to reclaim those whom the Anglomaniacs had misled, and to prepare matters in such a manner, that the question when again agitated, might be decided according to their wishes. In such a hypothetical case, the King authorizes you to act in concert with them, to pursue the direction which they may think proper to give you, and to employ every means to augment the number of the partisans of the good cause. It remains for me to speak of the personal security of the Patriots. You may assure them, that under every circumstance, the King will take them under his immediate protection, and you will make known wherever you may judge necessary, that his Majesty will regard as a personal offence every undertaking against their liberty. It is to be presumed that this language, energetically maintained, may have some effect on the audacity of the Anglomaniacs, and that the Prince de Nassau will feel that he runs some risk in provoking the resentment of his Majesty."

22

In the impeachment of Judge Pickering, of New Hampshire, a habitual and maniac drunkard, no defence was made. Had there been, the party vote of more than one-third of the Senate would have acquitted him.

23

See Appendix, note H.

24

12. C. 2. c. 18. 15. C. 2. c. 11. 25. C. 2. c. 7. 7. 8. W. M. c. 22. 11. W. 34. Anne. 6. C. 2. c. 13.

25

14. G. 3.

26

14. G. 3.

27

On further inquiry, I find two instances of dissolutions before the Parliament would, of itself, have been at an end: viz., the Parliament called to meet August 24, 1698, was dissolved by King William, December 19, 1700, and a new one called, to meet February 6, 1701, which was also dissolved, November 11, 1701, and a new one met December 30, 1701.

28

In this publication, the original Saxon words are given, but, owing to the want of Saxon letter, they are printed in common type.

29

This takes away the punishment of cutting off the hand of a person striking an other, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38. 33. H. 8. c. 12. In an earlier stage of the Common law, it was death. Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwæther he lif age de nage: si quis in regis domo pugnet, perdat omnem suam haereditatem, et in regis sit arbitrio, possideat vitam an non possideat. Ll. Inae. 6. Gif hwa on Cyninges healle gefeohte, oththe his wæpne gebrede, and hine mon gefo, sy thæt on Cyninges dome swa death, swa lif, swa he him forgyfan wille: si quis in aula regia pugnet, vel arma sua extrahat et capiatur, sit in regis arbitrio tam mors quam vita, sicut ei condonare voluerit. Ll. Alfr. 7. Gif hwa on Cyninges hirede gefeohte tholige thæt lifes, buton se Cyning him gearian wille: si quis in regia dimicat, perdat vitam, nisi rex hoc illi condonare velit. Ll. Cnuti. 56. 4. Bl. 125.

30

25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. § 2.

31

Though the crime of an accomplice in treason is not here described, yet, Lord Coke says, the partaking and maintaining a treason herein described, makes him a principal in that treason: it being a rule that in treason all are principals. 3 Inst. 138. 2 Inst. 590. 1 H. 6. 5.

32

These words in the English statute narrow its operation. A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England have been under that branch of the statute which makes the compassing the king's death treason. Foster 196. 197. But as we omit that branch, we must by other means reach this flagrant case.

33

The stat. 25. E. 3. directs all other cases of treasons to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word "it," therefore, and insert "the said cases, and no others." Quære, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.

34

This implies "by the neck." See 2 Hawk. 544. notes n. o.

35

By the stat. 21. Jac. 1. c. 27. and Act Ass. 1170. c. 12. concealment by the mother of the death of a bastard child is made murder. In justification of this, it is said, that shame is a feeling which operates so strongly on the mind, as frequently to induce the mother of such a child to murder it, in order to conceal her disgrace. The act of concealment, therefore, proves she was influenced by shame, and that influence produces a presumption that she murdered the child. The effect of this law then is, to make what, in its nature, is only presumptive evidence of a murder conclusive of that fact. To this I answer, 1. So many children die before or soon after birth, that to presume all those murdered who are found dead, is a presumption which will lead us oftener wrong than right, and consequently would shed more blood than it would save. 2. If the child were born dead, the mother would naturally choose rather to conceal it, in hopes of still keeping a good character in the neighborhood. So that the act of concealment is far from proving the guilt of murder on the mother. 3. If shame be a powerful affection of the mind, is not parental love also? Is it not the strongest affection known? Is it not greater than even that of self-preservation? While we draw presumptions from shame, one affection of the mind, against the life of the prisoner, should we not give some weight to presumptions from parental love, an affection at least as strong, in favor of life? If concealment of the fact is a presumptive evidence of murder, so strong as to overbalance all other evidence that may possibly be produced to take away the presumption, why not trust the force of this incontestable presumption to the jury, who are, in a regular course, to hear presumptive, as well as positive testimony? If the presumption arising from the act of concealment, may be destroyed by proof positive or circumstantial to the contrary, why should the legislature preclude that contrary proof? Objection. The crime is difficult to prove, being usually committed in secret. Answer. But circumstantial proof will do; for example, marks of violence, the behavior, countenance, &c. of the prisoner, &c. And if conclusive proof be difficult to be obtained, shall we therefore fasten irremovably upon equivocal proof? Can we change the nature of what is contestable, and make it incontestable? Can we make that conclusive which God and nature have made inconclusive? Solon made no law against parricide, supposing it impossible that any one could be guilty of it; and the Persians, from the same opinion, adjudged all who killed their reputed parents to be bastards; and although parental be yet stronger than filial affection, we admit saticide proved on the most equivocal testimony, whilst they rejected all proof of an act certainly not more repugnant to nature, as of a thing impossible, unprovable. See Beccaria, § 31.

36

25. G. 2. c. 37.

37

Quære, if the estates of both parties in a duel, should not be forfeited? The deceased is equally guilty with a suicide.

38

Quære, if these words may not be omitted? By the Common law, one witness in treason was sufficient. Foster 233. Plowd. 8. a. Mirror e. 3. § 34. Waterhouse on Fortese. de laud. 252. Carth. 144. per. Holt. But Lord Coke, contra 3 inst. 26. The stat. 1. E. 6. c. 12. & 5. E. 6. c. 11. first required two witnesses in treason. The clause against high treason supra, does the same as to high treason; but it seems if 1st and 5th E. 6. are dropped, Petty treason will be tried and proved, as at Common law, by one witness. But quære, Lord Coke being contra, whose opinion it is ever dangerous to neglect.

39

These words are intended to take away the peremptory challenge of thirty-five jurors. The same words being used 1. 2. Ph. & M. c. 10. are deemed to have restored the peremptory challenge in high treason; and consequently are sufficient to take it away. Foster 237.

40

Petty treason is considered in law only as an aggravated murder. Foster 107. 323. A pardon of all murders, pardons Petty treason. 1 Hale P. C. 378. see 2 H. P. C. 340. 342. It is also included in the word "felony," so that a pardon of all felonies, pardons Petty treason.

41

Manslaughter is punishable at law, by burning in the hands, and forfeiture of chattels.

42

It is best, in this act, to lay down principles only, in order that it may not forever be undergoing change; and, to carry into effect the minuter parts of it, frame a bill "for the employment and government of felons, or malefactors, condemned to labor for the Commonwealth," which may serve as an Appendix to this, and in which all the particulars requisite may be directed; and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More's Utopia p. 50. for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.

43

The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116. 1. Hale's P. C. 569. c. contra.

44

Beccaria. § 32. Suicide. Homicides are, 1. Justifiable. 2. Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The second are in some cases not quite unblamable. These should subject the party to marks of contrition; viz., the killing of a man in defence of property; so also in defence of one's person, which is a species of excusable homicide; because, although cases may happen where these also are commendable yet most frequently they are done on too slight appearance of danger; as in return for a blow, kick, fillip, &c.; or on a person's getting into a house, not animo furandi, but perhaps veneris causa, &c. Bracton says, "si quis furem nocturnum occident ita demum impune foret, si parcere ei sine periculo suo non potuit, si autem potuit, aliter erit. Item erit si quis hamsokne quae dicitur invasio domus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et insultus remanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare eam." L. 3. c. 23. § 3. "Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit; tenetur tamen si possit. Item non tenetur si per infortunium, et non animo et voluntate occidendi, nec dolus, nec culpa ejus inveniatur." L. 3. c. 36. § 1. The stat. 24. H. 8. c. 5. is therefore merely declaratory of the Common law. See on the general subject Puffend. 2. 5. § 10. 11. 12. 16. 17. Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marlbridge, c. 26. and Gloucester, c. 9. first took away this by giving them title to a pardon, as matter of right, and a writ of restitution of their goods. See 2. Inst. 148. 315. 3. Inst. 55. Bracton L. 3. c. 4. § 2. Fleta L. 1. c. 23. § 14. 15. 21. E. 3. 23. But it is believed never to have been capital. 1. H. P. C. 425. 1 Hawk. 75. Foster, 282. 4. Bl. 188. It seems doubtful also, whether at Common law, the party forfeited all his chattels in this case, or only paid a weregild. Foster, ubi supra, doubts, and thinks it of no consequence, as the statute of Gloucester entitles the party to Royal grace, which goes as well to forfeiture as life. To me there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self-defence.