that he had made the most of his matter. The ground of defence might have been solidly aided by the assurance (which is the absolute fact) that the whole story fathered on Mazzei, was an unfounded falsehood. Dr. Linn, as aware of that, takes care to quote it from a dead man, who is made to quote from one residing in the remotest part of Europe. Equally false was Dr. Linn's other story about Bishop Madison's lawn sleeves, as the Bishop can testify, for certainly Th: J. never saw him in lawn sleeves. Had the Doctor ventured to name time, place, and person, for his third lie, (the government without religion) it is probable he might have been convicted on that also. But these are slander and slanderers, whom Th: Jefferson has thought it best to leave to the scourge of public opinion. He salutes Mr. Clinton with esteem and respect.
TO GEORGE HAY, ESQ
Dear Sir,—We are this moment informed by a person who left Richmond since the 22d, that the prosecution of Burr had begun under very inauspicious symptoms by the challenging and rejecting two members of the Grand Jury, as far above all exception as any two persons in the United States. I suppose our informant is inaccurate in his terms, and has mistaken an objection by the criminal and voluntary retirement of the gentlemen with the permission of the court, for a challenge and rejection, which, in the case of a Grand Jury, is impossible. Be this as it may, and the result before the formal tribunal, fair or false, it becomes our duty to provide that full testimony shall be laid before the Legislature, and through them the public. For this purpose, it is necessary that we be furnished with the testimony of every person who shall be with you as a witness. If the Grand Jury find a bill, the evidence given in court, taken as verbatim as possible, will be what we desire. If there be no bill, and consequently no examination before court, then I must beseech you to have every man privately examined by way of affidavit, and to furnish me with the whole testimony. In the former case, the person taking down the testimony as orally delivered in court, should make oath that he believes it to be substantially correct. In the latter case, the certificate of the magistrate administering the oath, and signature of the party, will be proper; and this should be done before they receive their compensation, that they may not evade examination. Go into any expense necessary for this purpose, and meet it from the funds provided by the Attorney General for the other expenses. He is not here, or this request would have gone from him directly. I salute you with friendship and respect.
TO MR. HAY
Dear Sir,—I have this moment received your letter of the 25th, and hasten to answer it. If the grand jury do not find a bill against Burr, as there will be no examination before a petty jury, Bollman's pardon need not in that case to be delivered; but if a bill be found, and a trial had, his evidence is deemed entirely essential, and in that case his pardon is to be produced before he goes to the book. In my letter of the day before yesterday, I enclosed you Bollman's written communication to me, and observed you might go so far, if he prevaricated, as to ask him whether he did not say so and so to Mr. Madison and myself. On further reflection I think you may go farther, if he prevaricates grossly, and show the paper to him, and ask if it is not his handwriting, and confront him by its contents. I enclose you some other letters of Bollman to me on former occasions, to prove by similitude of hand that the paper I enclosed on the 26th was of his handwriting. I salute you with esteem and respect.
TO COLONEL MONROE
Dear Sir,—I have not written to you by Mr. Purviance, because he can give you vivâ voce all the details of our affairs here, with a minuteness beyond the bounds of a letter, and because, indeed, I am not certain this letter will find you in England. The sole object in writing it, is to add another little commission to the one I had formerly troubled you with. It is to procure for me "a machine for ascertaining the resistance of ploughs or carriages, invented and sold by Winlaw, in Margaret street, Cavendish Square." It will cost, I believe, four or five guineas, which shall be replaced here instanter on your arrival. I had intended to have written you to counteract the wicked efforts which the federal papers are making to sow tares between you and me, as if I were lending a hand to measures unfriendly to any views which our country might entertain respecting you. But I have not done it, because I have before assured you that a sense of duty, as well as of delicacy, would prevent me from ever expressing a sentiment on the subject, and that I think you know me well enough to be assured I shall conscientiously observe the line of conduct I profess. I shall receive you on your return with the warm affection I have ever entertained for you, and be gratified if I can in any way avail the public of your services. God bless you and yours.
TO M. SILVESTRE, SECRETAIRE DE LA SOCIETE D'AGRICULTURE DE PARIS
Sir,—I have received, through the care of Gen. Armstrong, the medal of gold by which the society of agriculture at Paris have been pleased to mark their approbation of the form of a mould-board which I had proposed; also the four first volumes of their memoirs, and the information that they had honored me with the title of foreign associate to their society. I receive with great thankfulness these testimonies of their favor, and should be happy to merit them by greater services. Attached to agriculture by inclination, as well as by a conviction that it is the most useful of the occupations of man, my course of life has not permitted me to add to its theories the lessons of practice. I fear, therefore, I shall be to them but an unprofitable member, and shall have little to offer of myself worthy their acceptance. Should the labors of others, however, on this side the water, produce anything which may advance the objects of their institution, I shall with great pleasure become the instrument of its communication, and shall moreover execute with zeal any orders of the society in this portion of the globe. I pray you to express to them my sensibility for the distinctions they have been pleased to confer on me, and to accept yourself the assurances of my high consideration and respect.
TO GEORGE HAY
Dear Sir,—While Burr's case is depending before the court, I will trouble you, from time to time, with what occurs to me. I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law. 1. Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion, and, as such, of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed. He may withhold or cancel it at pleasure, as he might his private deed in the same situation. The Constitution intended that the three great branches of the government should be co-ordinate, and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch. A judge, I presume, cannot sit on a bench without a commission, or a record of a commission; and the Constitution having given to the judiciary branch no means of compelling the executive either to deliver a commission, or to make a record of it, shows it did not intend to give the judiciary that control over the executive, but that it should remain in the power of the latter to do it or not. Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. Thus, in the case of William Smith, the House of Representatives determined he was a citizen; and in the case of William Duane, (precisely the same in every material circumstance,) the judges determined he was no citizen. In the cases of Callendar and others, the judges determined the sedition act was valid under the Constitution, and exercised their regular powers of sentencing them to fine and imprisonment. But the executive determined that the sedition act was a nullity under the Constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law, which protected the acts of the defendants. From these different constructions of
