Томас Джефферсон
The Writings of Thomas Jefferson, Vol. 5 (of 9)
TO THE SECRETARY AT WAR
Monticello, August 11, 1807.
Dear Sir,—In mine of the day before yesterday, I informed you that to comply with a request of Governor Cabell, I had undertaken to lay down rules of intercourse with the British vessels, at first intended for Captain Decatur only, but afterwards extended with equal power to the officer commanding by land, so that each should have equal power to send and receive flags. I now send you a copy of that letter. Since that I have received from the Governor a letter, pointing out difficulties occurring in the execution of the Volunteer act, from the restriction of issuing commissions until the companies be actually raised, the brigades, &c., organized. Another difficulty, not mentioned in the letter, embarrassed him, with respect to accepting more than the quota of each district. I learnt, through a direct channel, that he was so seriously impressed with these legal obstacles, that no commissions were likely to be issued, and then, certainly, that few volunteers would be raised. In answering his letter, therefore, I have dwelt more on these points than might otherwise have seemed necessary. I enclose the letter for your consideration, that if you find no error in it material enough to require a return of it for correction, you will be so good as to seal and forward it to him without delay. But if you think anything material in it should be corrected before it is sent, I will pray you to suggest the alteration, and return me the letter. I salute you affectionately.
P. S. Be pleased to return the Governor's letter to me.
TO HIS EXCELLENCY GOVERNOR CABELL
Monticello, August 11, 1807.
Dear Sir,—Your favor of the 7th is received. It asks my opinion on several points of law arising out of the act of Congress for accepting thirty thousand volunteers. Although your own opinion, and those of some of your counsellors, more recent in the habit of legal investigation, would be a safer guide for you than mine, unassisted by my ordinary and able associates, yet I shall frankly venture my individual thoughts on the subject, and participate with you in any risks of disapprobation to which an honest desire of furthering the public good may expose us.
In the construction of a law, even in judiciary cases of meum et tuum, where the opposite parties have a right and counter-right in the very words of the law, the Judge considers the intention of the law-giver as his true guide, and gives to all the parts and expressions of the law, that meaning which will effect, instead of defeating, its intention. But in laws merely executive, where no private right stands in the way, and the public object is the interest of all, a much freer scope of construction, in favor of the intention of the law, ought to be taken, and ingenuity ever should be exercised in devising constructions, which may save to the public the benefit of the law. Its intention is the important thing: the means of attaining it quite subordinate. It often happens that, the Legislature prescribing details of execution, some circumstance arises, unforeseen or unattended to by them, which would totally frustrate their intention, were their details scrupulously adhered to, and deemed exclusive of all others. But constructions must not be favored which go to defeat instead of furthering the principal object of their law, and to sacrifice the end to the means. It being as evidently their intention that the end shall be attained as that it should be effected by any given means, if both cannot be observed, we are equally free to deviate from the one as the other, and more rational in postponing the means to the end. In the present case, the object of the act of Congress was to relieve the militia at large from the necessity of leaving their farms and families, to encounter a service very repugnant to their habits, and to permit that service to be assumed by others ardently desiring it. Both parties, therefore, (and they comprehend the whole nation,) would willingly waive any verbal difficulties, or circumstances of detail, which might thwart their mutual desires, and would approve all those views of the subject which facilitate the attainment of their wishes.
It is further to be considered that the Constitution gives the executive a general power to carry the laws into execution. If the present law had enacted that the service of thirty thousand volunteers should be accepted, without saying anything of the means, those means would, by the Constitution, have resulted to the discretion of the executive. So if means specified by an act are impracticable, the constitutional power remains, and supplies them. Often the means provided specially are affirmative merely, and, with the constitutional powers, stand well together; so that either may be used, or the one supplementary to the other. This aptitude of means to the end of a law is essentially necessary for those which are executive; otherwise the objection that our government is an impracticable one, would really be verified.
With this general view of our duty as executive officers, I proceed to the questions proposed by you.
1st. Does not the act of Congress contemplate the association of companies to be formed before commissions can be issued to the Captains, &c.?
2d. Can battalion or field-officers be appointed by either the State or Congressional laws, but to battalions or regiments actually existing?
3d. The organization of the companies into battalions and regiments belonging to the President, can the Governor of the State issue commissions to these officers before that organization is made and announced to him?
4th. Ought not the volunteers tendering their services, under the act of February 24th, 1807, to be accepted by the President before the commissions can issue?
Had we no other executive powers but those given in this act, the first, second, and third questions would present considerable difficulties, inasmuch as the act of Congress does appear, as you understand it, to contemplate that the companies are to be associated, and the battalions, squadrons, regiments, brigades, and divisions organized, before commissions are to issue. And were we to stop here the law might stop also; because I verily believe that it will be the zeal and activity alone of those destined for commands, which will give form and body to the floating ardor of our countrymen to enter into this service, and bring their wills to a point of union and effect. We know from experience that individuals having the same desires are rarely brought into an association of them, unless urged by some one assuming an agency, and that in military associations the person of the officer is a material inducement. Whether our constitutional powers to carry the laws into execution, would not authorize the issuing a previous commission (as they would, had nothing been said about commissions in the law), is a question not necessary now to be decided; because they certainly allow us to do what will be equally effectual. We may issue instructions or warrants to the persons destined to be captains, &c., authorizing them to superintend the association of the companies, and to perform the functions of a captain &c., until commissions may be regularly issued, when such a commission will be given to the bearer, or a warrant authorizing the bearer to superintend the organization of the companies associated in a particular district, into battalions, squadrons, &c., and otherwise to perform the functions of a colonel &c., until a commission may regularly issue, when such a commission will be given to the bearer. This is certainly within the constitutional powers of the executive, and with such a warrant, I believe, the person bearing it would act with the same effect as if he had the commission.
As to the fourth question, the execution of this law having been transferred to the State executives, I did consider all the powers necessary for its execution as delegated from the President to them. Of this I have been so much persuaded that, to companies offering their services under this law, I have answered that the power of acceptance was in the Governor, and have desired them to renew their offer to him. If the delegation of this power should be expressly made, it is hereby fully delegated.
To the preceding I will add one other observation. As we might still be disappointed in obtaining the whole number of 11,563, were they apportioned among the several districts, and each restrained to its precise apportionment (which some might fail to raise), I think it would better secure the complete object of the law to accept all proper offers, that the excess of some districts may supply the deficiencies of others. When the acceptances are all brought together, the surplus, if any, will be known, and, if not wanted by the United States, may be rejected; and in doing this, such principles of selection may be adopted as, without any imputation of partiality, may secure to us the best offers. For example, first, we may give a preference to all those who will agree to become regulars, if desired. This is so obviously for the public advantage that no one could object to it. Second, we may give a preference to twelve-month volunteers over those for six months; and other circumstances of selection will of course arise from the face of the offers, such as distribution, geographical position, proportion of cavalry, riflemen, &c.
I have thus, without reserve, expressed my ideas on the several doubts stated in your letters, and I submit them to your consideration. They will need it the more, as the season and other circumstances occasioning the members of the administration to be in a state of separation at this moment, they go without the stamp of their aid and approbation. It is our consolation and encouragement that we are serving a just public, who will be indulgent to any error committed honestly, and relating merely to the means of carrying into effect what they have manifestly willed to be a law.
I salute you with great esteem and respect.
TO THE SECRETARY AT WAR
Monticello, August 12, 1807.
Dear Sir,—I return you all the papers received in yours of the 9th, except Morrison's letter on the subject of Alston, which, although expressed to be confidential, I send to Mr. Hay under that injunction, merely for his information, should there be other bearings on the same point. In my conscience, I have no doubt as to his participation. To your papers I add some others, particularly respecting the defence of St. Mary's and Beaufort, that you may take them into consideration as a part of the general subject of defence. I sincerely wish this business of levying duty on Creek goods could be stopped. We have no right to make them contribute to the support of our government. The conduct of Captain Isaac is nettling. But what can we do while we are in the wrong? I wonder we hear nothing from Hawkins on the subject. I wish Governor Harrison may be able to have the murder of the Kaskaskian by the Kickapoo settled in the Indian way. I think it would not be amiss for him to bring over Decoigne secretly by a douceur, by which he is easily influenced. I think, too, that if the apprehension of the murderer, Rea, could be effected by our making up Harrison's reward of three hundred dollars to one thousand, it would be well laid out. Both the Indians and our own people want some example of punishment for the murder of an Indian. With respect to the prophet, if those who are in danger from him would settle it in their own way, it would be their affair. But we should do nothing towards it. That kind of policy is not in the character of our government, and still less of the paternal spirit we wish to show towards that people. But could not Harrison gain over the prophet, who no doubt is a scoundrel, and only needs his price? The best conduct we can pursue to countervail these movements among the Indians, is to confirm our friends by redoubled acts of justice and favor, and to endeavor to draw over the individuals indisposed towards us. The operations we contemplate, should there be occasion for them, would have an imposing effect on their minds, and, if successful, will indeed put them entirely in our power; if no occasion arises for carrying these operations into effect, then we shall have time enough to get the Indian mind to rights. I think it an unlucky time for Governor Hull to press the purchase of their lands, and hope he will not press it. That is the only point on which the Indians feel very sore towards us. If we have war, those lands cannot now be settled; if peace, any future movement will be more favorable.
I really believe that matters in the Chesapeake will remain quiet until further orders from England, and that so soon as you have set all works of preparation into motion, your visit to your family and affairs may be safely made. Be so good as to inform me how I am to address letters which I wish to go to yourself personally during your absence.
Wishing you a happy meeting with your friends, I salute you with affection and respect.
TO THE SECRETARY OF STATE
Monticello, August 16, 1807.
Dear Sir,—I received yesterday your two letters without date, on the subjects now to be answered. I do not see any objection to the appointment of Mr. Cocke, as agent at Martinique. That of a consul at Mogadore is on more difficult ground. A consul in Barbary is a diplomatic character; although the title does not imply that. He receives a salary fixed by the Legislature; being independent of Simpson, we should have two ministers to the same sovereign. I should therefore think it better to leave the port of Mogadore to an agent of Simpson's appointment, and under his control.
If anything Thrasonic and foolish from Spain could add to my contempt of that government, it would be the demand of satisfaction now made by Foronda. However, respect to ourselves requires that the answer should be decent, and I think it fortunate that this opportunity is given to make a strong declaration of facts, to wit, how far our knowledge of Miranda's objects went, what measures we took to prevent anything further, the negligence of the Spanish agents to give us earlier notice, the measures we took for punishing those guilty, and our quiet abandonment of those taken by the Spaniards. But I would not say a word in recrimination as to the western intrigues of Spain. I think that is the snare intended by this protest, to make it a set-off for the other. As soon as we have all the proofs of the western intrigues, let us make a remonstrance and demand of satisfaction, and, if Congress approves, we may in the same instant make reprisals on the Floridas, until satisfaction for that and for spoliations, and until a settlement of boundary. I had rather have war against Spain than not, if we go to war against England. Our southern defensive force can take the Floridas, volunteers for a Mexican army will flock to our standard, and rich pabulum will be offered to our privateers in the plunder of their commerce and coasts. Probably Cuba would add itself to our confederation. The paper in answer to Florida should, I think, be drawn with a view to its being laid before Congress, and published to the world as our justification against the imputation of participation in Miranda's projects.
TO COLONEL FULTON
Monticello, August 16, 1807.
Sir,—Your letter of July 28th, came to hand just as I was about leaving Washington, and it has not been sooner in my power to acknowledge it. I consider your torpedoes as very valuable means of the defence of harbors, and have no doubt that we should adopt them to a considerable degree. Not that I go the whole length (as I believe you do) of considering them as solely to be relied on. Neither a nation nor those entrusted with its affairs, could be justifiable, however sanguine its expectations, in trusting solely to an engine not yet sufficiently tried, under all the circumstances which may occur, and against which we know not as yet what means of parrying may be devised. If, indeed, the mode of attaching them to the cable of a ship be the only one proposed, modes of prevention cannot be difficult. But I have ever looked to the submarine boat as most to be depended on for attaching them, and though I see no mention of it in your letter, or your publications, I am in hopes it is not abandoned as impracticable. I should wish to see a corps of young men trained to this service. It would belong to the engineers if at hand, but being nautical, I suppose we must have a corps of naval engineers, to practise and use them. I do not know whether we have authority to put any part of our existing naval establishment in a course of training, but it shall be the subject of a consultation with the Secretary of the Navy. General Dearborne has informed you of the urgency of our want of you at New Orleans for the locks there.
I salute you with great respect and esteem.
TO GOVERNOR CABELL
Monticello, August 17, 1807.
Dear Sir,—Your favors of the 11th, 12th, and 14th were received yesterday, being the first day for some days past that the obstruction of the water-courses has permitted the post to come through. I now return you the letters of General Matthews and Captain Hardy; I enclose you also two offers of volunteers from Montgomery and Fauquier counties, because they are expressly made under the late act of Congress. I have received a great number of tenders of service at a moment's warning, which, appearing to me to have relation merely to the repelling invasion in the quarter lately violated, and not to intend an absolute engagement for twelve months, I have only accepted generally and vaguely, without relation to the Volunteer Act.
Your letter mentioning the calling into service near the Capes, a company of Infantry, I enclosed to the Secretary at War for his information and opinion, and received his answer yesterday. Your observations satisfy him that Infantry alone can be effectual in that station, and induce him to think that the company of Infantry should be a substitute for that of Cavalry, and that the latter should be discharged. To the weight of his opinion and advice, as the head of the department, is added the apparent fact that the British squadron means to be quiet till orders from England, an intention much strengthened by the complexion of Captain Hardy's letter now returned. The duty therefore of husbanding our resources for the moment of real want, requires that I should approve his opinion, and recommend the discharge of the troop of Cavalry. The company of Infantry will be as vigilant as they can to cut off supplies from the squadron, according to the proclamation; and it is proper that a daily express from the station of the company to the Norfolk Post Office should be established under your Excellency's direction. I salute you with great esteem and respect.
TO THE SECRETARY AT WAR
Monticello, August 18, 1807.
Dear Sir,—Yours of the 14th and 15th were received yesterday. The former is now returned. I shall, in answer to Mr. Nicholas, say that we cannot lend arms but to volunteers training for immediate service, and that as to a deposit in his neighborhood, we shall in due time take up that subject generally, when just attention will be paid to that section of our country. Our separation at this time having been agreed on, I supposed it equally settled as to yourself that you also would take a recess as soon as the affairs of your office would permit; and that no further approbation on my part could be wanting. However, if it were, I hope you considered my letter of the 12th as expressing it fully, so as not to permit yourself to be detained for anything further. Wishing you a pleasant journey and happy meeting with your family, I salute you with affection.
TO THE SECRETARY OF STATE
Monticello, August 18, 1807.
Dear Sir,—I return you the papers received yesterday. Mr. Erskine complains of a want of communication between the British armed vessels in the Chesapeake, or off the coast. If, by off the coast, he means those which, being generally in our waters, go occasionally out of them to cruize or to acquire a title to communicate with their consul, it is too poor an evasion for him to expect us to be the dupes of. If vessels off the coast, and having never violated the proclamation, wish to communicate with their consul, they may send in by any vessel, without a flag. He gives a proof of their readiness to restore deserters, from an instance of the Chichester lying along-side a wharf at Norfolk. It would have been as applicable if Captain Stopfield and his men had been in a tavern at Norfolk. All this, too, a British sergeant is ready to swear to; and further, that he saw British deserters enlisted in their British uniform, by our officer. As this fact is probably false, and can easily be inquired into, names being given, and as the story of the Chichester can be ascertained by Captain Saunders, suppose you send a copy of the paper to the Secretary of the Navy, and recommend to him having an inquiry made. We ought gladly to procure evidence to hang the privates, if no objection or difficulty occur from the place of trial. If the Driver is the scene of trial, where is she? if in our waters, we can have no communication with her, if out of them, it may be inconvenient to send the witnesses. Although there is neither candor nor dignity in soliciting the victualling the Columbine for four months for a voyage of ten days, yet I think you had better give the permission. It is not by these huckstering manœuvres that the great national question is to be settled. I salute you affectionately.
