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

TO LEVI LINCOLN.

Monticello, August 30, 1803.

Deak. Sir,

The enclosed letter came to hand by yesterday’s post. You will be sensible of the circumstances which make it improper that I should hazard a formal answer, as well as of the desire its friendly aspect naturally excites, that those concerned in it should understand that the spirit they express is friendly viewed. You can judge also from your knowledge of the ground, whether it may be usefully encouraged. I take the liberty, therefore, of availing myself of your neighborhood to Boston, and of your friendship to me, to request you to say to the Captain and others verbally whatever you think would be proper, as expressive of my sentiments on the subject. With respect to the day on which they wish to fix their anniversary, they may be told, that disapproving myself of transferring the honors and veneration for the great birthday of our republic to any individual, or of dividing them with individuals, I have declined letting my own birthday be known, and have engaged my family not to communicate it. This has been the uniform answer to every application of the kind.

On further consideration as to the amendment to our constitution respecting Louisiana, I have thought it better, instead of enumerating the powers which Congress may exercise, to give them the same powers they have as to other portions of the Union generally, and to enumerate the special exceptions, in some such form as the following.

‘Louisiana, as ceded by France to the United States, is made a part of the United States, its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States, in analogous situations. Save only that as to the portion thereof lying north of an east and west line drawn through the mouth of Arkansas river, no new State shall be established, nor any grants of land made, other than to Indians, in exchange for equivalent portions of land occupied by them, until an amendment of the constitution shall be made for these purposes.

‘Florida also, whensoever it may be rightfully obtained, shall become a part of the United States, its white inhabitants shall thereupon be citizens, and shall stand, as to their rights and obligations, on the same footing with other citizens of the United States, in analogous situations.’

I quote this for your consideration, observing that the less that is said about any constitutional difficulty, the better: and that it will be desirable for Congress to do what is necessary, in silence. I find but one opinion as to the necessity of shutting up the country for some time. We meet in Washington the 25th of September to prepare for Congress. Accept my affectionate salutations, and great esteem and respect.

Th: Jefferson.

TO WILSON C NICHOLAS.

Monticello, September 7, 1803.

Dear Sir,

Your favor of the 3rd was delivered me at court; but we were much disappointed at not seeing you here, Mr. Madison and the Governor being here at the time. 1 enclose you a letter from Monroe on the subject of the late treaty. You will observe a hint in it, to do without delay what we are bound to do. There is reason, in the opinion of our ministers, to believe, that if the thing were to do over again, it could not be obtained, and that if we give the least opening, they will declare the treaty void. A warning amounting to that has been given to them, and an unusual kind of letter written by their minister to our Secretary of State, direct. Whatever Congress shall think it necessary to do, should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty. I am aware of the force of the observations you make on the power given by the constitution to Congress, to admit new States into the Union, without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, that the constitution expressly declares itself to be made for the United States, I cannot help believing the intention was not to permit Congress to admit into the Union new States, which should be formed out of the territory for which, and under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, &tc. into it, which would be the case on your construction. When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President and Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the constitution, those powers which time and trial show are still wanting. But it has been taken too much for granted, that by this rigorous construction the treaty power would be reduced to nothing. I had occasion once to examine its effect on the French treaty, made by the old Congress, and found that out of thirty odd articles which that contained, there were one, two, or three only, which could not now be stipulated under our present constitution. I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.

No apologies for writing or speaking to me freely are necessary. On the contrary, nothing my friends can do is so dear to me, and proves to me their friendship so clearly, as the information they give me of their sentiments and those of others on interesting points where I am to act, and where information and warning is so essential to excite in me that due reflection which ought to precede action. I leave this about the 21st, and shall hope the District Court will give me an opportunity of seeing you. Accept my affectionate salutations, and assurances of cordial esteem and respect.

Th: Jefferson.

TO DOCTOR BENJAMIN RUSH.

Washington, October 4, 1803.

Dear Sir,

No one would more willingly than myself pay the just tribute due to the services of Captain Barry, by writing a letter of condolence to his widow, as you suggest. But when one undertakes to administer justice, it must be with an even hand, and by rule; what is done for one, must be done for every one in equal degree.