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The Writings of Thomas Jefferson, Vol. 6 (of 9)

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TO MR. GIRARDIN

Monticello, March 12, 1815.

I return the three Cativers, which I have perused with the usual satisfaction. You will find a few pencilled notes merely verbal.

But in one place I have taken a greater liberty than I ever took before, or ever indeed had occasion to take. It is in the case of Josiah Philips, which I find strangely represented by Judge Tucker and Mr. Edmund Randolph, and very negligently vindicated by Mr. Henry. That case is personally known to me, because I was of the legislature at the time, was one of those consulted by Mr. Henry, and had my share in the passage of the bill. I never before saw the observations of those gentlemen, which you quote on this case, and will now therefore briefly make some strictures on them.

Judge Tucker, instead of a definition of the functions of bills of attainder, has given a diatribe against their abuse. The occasion and proper office of a bill of attainder is this: When a person charged with a crime withdraws from justice, or resists it by force, either in his own or a foreign country, no other means of bringing him to trial or punishment being practicable, a special act is passed by the legislature adapted to the particular case. This prescribes to him a sufficient time to appear and submit to a trial by his peers; declares that his refusal to appear shall be taken as a confession of guilt, as in the ordinary case of an offender at the bar refusing to plead, and pronounces the sentence which would have been rendered on his confession or conviction in a court of law. No doubt that these acts of attainder have been abused in England as instruments of vengeance by a successful over a defeated party. But what institution is insusceptible of abuse in wicked hands?

Again, the judge says "the court refused to pass sentence of execution pursuant to the directions of the act." The court could not refuse this, because it was never proposed to them; and my authority for this assertion shall be presently given.

For the perversion of a fact so intimately known to himself, Mr. Randolph can be excused only by our indulgence for orators who, pressed by a powerful adversary, lose sight, in the ardor of conflict of the rigorous accuracies of fact, and permit their imagination to distort and color them to the views of the moment. He was Attorney General at the time, and told me himself, the first time I saw him after the trial of Philips, that when taken and delivered up to justice, he had thought it best to make no use of the act of attainder, and to take no measure under it; that he had indicted him at the common law either for murder or robbery (I forgot which and whether for both); that he was tried on this indictment in the ordinary way, found guilty by the jury, sentenced and executed under the common law; a course which every one approves, because the first object of the act of attainder was to bring him to fair trial. Whether Mr. Randolph was right in this information to me, or when in the debate with Mr. Henry, he represents this atrocious offender as sentenced and executed under the act of attainder, let the record of the case decide.

"Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and afterwards actually executed." I appeal to the universe to produce one single instance from the first establishment of government in this State to the present day, where, in a trial at bar, a criminal has been refused confrontation with his accusers and witnesses, or denied the privilege of calling for evidence in his behalf; had it been done in this case, I would have asked of the Attorney General why he proposed or permitted it. But without having seen the record, I will venture on the character of our courts, to deny that it was done. But if Mr. Randolph meant only that Philips had not these advantages on the passage of the bill of attainder, how idle to charge the legislature with omitting to confront the culprit with his witnesses, when he was standing out in arms and in defiance of their authority, and their sentence was to take effect only on his own refusal to come in and be confronted. We must either therefore consider this as a mere hyperbolism of imagination in the heat of debate, or what I should rather, believe a defective statement by the reporter of Mr. Randolph's argument. I suspect this last the rather because this point in the charge of Mr. Randolph is equally omitted in the defence of Mr. Henry. This gentleman must have known that Philips was tried and executed under the common law, and yet, according to his report, he rests his defence on a justification of the attainder only. But all who knew Mr. Henry, know that when at ease in argument, he was sometimes careless, not giving himself the trouble of ransacking either his memory or imagination for all the topics of his subject, or his audience that of hearing them. No man on earth knew better when he had said enough for his hearers.

Mr. Randolph charges us with having read the bill three times in the same day. I do not remember the fact, nor whether this was enforced on us by the urgency of the ravages of Philips, or of the time at which the bill was introduced. I have some idea it was at or near the close of the session; the journals, which I have not, will ascertain the fact.

After the particular strictures I will proceed to propose, 1st, that the word "substantially," page 92, l. 8., be changed for "which has been charged with," [subjoining a note of reference. 1 Tucker's Blackst. Append., 292. Debates of Virginia Convention.]

2. That the whole of the quotations from Tucker, Randolph and Henry, be struck out, and instead of the text beginning page 92 l. 12, with the words "bills of attainder, &.," to the words "so often merited," page 95 l. 4, be inserted the following, to-wit:

"This was passed on the following occasion. A certain Josiah Philips, laborer of the parish of Lynhaven, in the county of Princess Anne, a man of daring and ferocious disposition, associating with other individuals of a similar cast, spread terror and desolation through the lower country, committing murders, burning houses, wasting farms, and perpetrating other enormities, at the bare mention of which humanity shudders. Every effort to apprehend him proved abortive. Strong in the number of his ruffian associates, or where force would have failed resorting to stratagem and ambush, striking the deadly blow or applying the fatal torch at the midnight hour, and in those places which their insulated situation left almost unprotected, he retired with impunity to his secret haunts, reeking with blood, and loaded with plunder. [So far the text of Mr. Girardin is preserved.] The inhabitants of the counties which were the theatre of his crimes, never secure a moment by day or by night, in their fields or their beds, sent representations of their distresses to the governor, claiming the public protection. He consulted with some members of the legislature then sitting, on the best method of proceeding against the atrocious offender. Too powerful to be arrested by the sheriff and his posse comitatus, it was not doubted but an armed force might be sent to hunt and destroy him and his accomplices in their morasses and fastnesses wherever found. But the proceeding concluded to be most consonant with the forms and principles of our government, was that the legislature should pass an act giving him a reasonable but limited day to surrender himself to justice, and to submit to a trial by his peers. According to the laws of the land, to consider a refusal as a confession of guilt, and divesting him as an outlaw of the character of citizen, to pass on him the sentence prescribed by the law; and the public officer being defied, to make every one his deputy, and especially those whose safety hourly depended on his destruction. The case was laid before the legislature, the proofs were ample, his outrages as notorious as those of the public enemy, and well known to the members of both houses from those counties. No one pretended then that the perpetrator of crimes who could successfully resist the officers of justice, should be protected in the continuance of them by the privileges of his citizenship, and that baffling ordinary process, nothing extraordinary could be rightfully adopted to protect the citizens against him. No one doubted that society had a right to erase from the roll of its members any one who rendered his own existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary. An enemy in lawful war, putting to death in cold blood the prisoner he has taken, authorizes retaliation, which would be inflicted with peculiar justice on the individual guilty of the deed, were it to happen that he should be taken. And could the murders and robberies of a pirate or outlaw entitle him to more tenderness? They passed the law, therefore, and without opposition. He did not come in before the day prescribed; continued his lawless outrages; was afterwards taken in arms, but delivered over to the ordinary justice of the county. The Attorney General for the commonwealth, the immediate agent of the government, waiving all appeal to the act of attainder, indicted him at the common law as a murderer and robber. He was arraigned on that indictment in the usual forms, before a jury of his vicinage, and no use whatever made of the act of attainder in any part of the proceedings. He pleaded that he was a British subject, authorized to bear arms by a commission from Lord Dunmore; that he was therefore a mere prisoner of war, and under the protection of the law of nations. The court being of opinion that a commission from an enemy could not protect a citizen in deeds of murder and robbery, overruled his plea; he was found guilty by his jury, sentenced by the court, and executed by the ordinary officer of justice, and all according to the forms and rules of the common law."

I recommend an examination of the records for ascertaining the facts of this case, for although my memory assures me of the leading ones, I am not so certain in my recollection of the details. I am not sure of the character of the particular crimes committed by Philips, or charged in his indictment, whether his plea of alien enemy was formally put in and overruled, what were the specific provisions of the act of attainder, the urgency which caused it to be read three times in one day, if the fact were, &c., &c.

TO MR. WENDOVER. ¹³

Monticello, March 13, 1815.

Sir,—Your favor of January the 30th was received after long delay on the road, and I have to thank you for the volume of discourses which you have been so kind as to send me. I have gone over them with great satisfaction, and concur with the able preacher in his estimate of the character of the belligerents in our late war, and lawfulness of defensive war. I consider the war, with him, as "made on good advice," that is, for just causes, and its dispensation as providential, inasmuch as it has exercised our patriotism and submission to order, has planted and invigorated among us arts of urgent necessity, has manifested the strong and the weak parts of our republican institutions, and the excellence of a representative democracy compared with the misrule of kings, has rallied the opinions of mankind to the natural rights of expatriation, and of a common property in the ocean, and raised us to that grade in the scale of nations which the bravery and liberality of our citizen soldiers, by land and by sea, the wisdom of our institutions and their observance of justice, entitled us to in the eyes of the world. All this Mr. McLeod has well proved, and from those sources of argument particularly which belong to his profession. On one question only I differ from him, and it is that which constitutes the subject of his first discourse, the right of discussing public affairs in the pulpit. I add the last words, because I admit the right in general conversation and in writing; in which last form it has been exercised in the valuable book you have now favored me with.

The mass of human concerns, moral and physical, is so vast, the field of knowledge requisite for man to conduct them to the best advantage is so extensive, that no human being can acquire the whole himself, and much less in that degree necessary for the instruction of others. It has of necessity, then, been distributed into different departments, each of which, singly, may give occupation enough to the whole time and attention of a single individual. Thus we have teachers of Languages, teachers of Mathematics, of Natural Philosophy, of Chemistry, of Medicine, of Law, of History, of Government, &c. Religion, too, is a separate department, and happens to be the only one deemed requisite for all men, however high or low. Collections of men associate together, under the name of congregations, and employ a religious teacher of the particular sect of opinions of which they happen to be, and contribute to make up a stipend as a compensation for the trouble of delivering them, at such periods as they agree on, lessons in the religion they profess. If they want instruction in other sciences or arts, they apply to other instructors; and this is generally the business of early life. But I suppose there is not an instance of a single congregation which has employed their preacher for the mixed purposes of lecturing them from the pulpit in Chemistry, in Medicine, in Law, in the science and principles of Government, or in anything but Religion exclusively. Whenever, therefore, preachers, instead of a lesson in religion, put them off with a discourse on the Copernican system, on chemical affinities, on the construction of government, or the characters or conduct of those administering it, it is a breach of contract, depriving their audience of the kind of service for which they are salaried, and giving them, instead of it, what they did not want, or, if wanted, would rather seek from better sources in that particular art or science. In choosing our pastor we look to his religious qualifications, without inquiring into his physical or political dogmas, with which we mean to have nothing to do. I am aware that arguments may be found, which may twist a thread of politics into the cord of religious duties. So may they for every other branch of human art or science. Thus, for example, it is a religious duty to obey the laws of our country; the teacher of religion, therefore, must instruct us in those laws, that we may know how to obey them. It is a religious duty to assist our sick neighbors; the preacher must, therefore, teach us medicine, that we may do it understandingly. It is a religious duty to preserve our own health; our religious teacher, then, must tell us what dishes are wholesome, and give us recipes in cookery, that we may learn how to prepare them. And so, ingenuity, by generalizing more and more, may amalgamate all the branches of science into any one of them, and the physician who is paid to visit the sick, may give a sermon instead of medicine, and the merchant to whom money is sent for a hat, may send a handkerchief instead of it. But notwithstanding this possible confusion of all sciences into one, common sense draws lines between them sufficiently distinct for the general purposes of life, and no one is at a loss to understand that a recipe in medicine or cookery, or a demonstration in geometry, is not a lesson in religion. I do not deny that a congregation may, if they please, agree with their preacher that he shall instruct them in Medicine also, or Law, or Politics. Then, lectures in these, from the pulpit, become not only a matter of right, but of duty also. But this must be with the consent of every individual; because the association being voluntary, the mere majority has no right to apply the contributions of the minority to purposes unspecified in the agreement of the congregation. I agree, too, that on all other occasions, the preacher has the right, equally with every other citizen, to express his sentiments, in speaking or writing; on the subjects of Medicine, Law, Politics, &c., his leisure time being his own, and his congregation not obliged to listen to his conversation or to read his writings; and no one would have regretted more than myself, had any scruple as to this right withheld from us the valuable discourses which have led to the expression of an opinion as to the true limits of the right. I feel my portion of indebtment to the reverend author for the distinguished learning, the logic and the eloquence with which he has proved that religion, as well as reason, confirms the soundness of those principles on which our government has been founded and its rights asserted.

These are my views on this question. They are in opposition to those of the highly respected and able preacher, and are, therefore, the more doubtingly offered. Difference of opinion leads to inquiry, and inquiry to truth; and that, I am sure, is the ultimate and sincere object of us both. We both value too much the freedom of opinion sanctioned by our constitution, not to cherish its exercise even where in opposition to ourselves.

Unaccustomed to reserve or mystery in the expression of my opinions, I have opened myself frankly on a question suggested by your letter and present. And although I have not the honor of your acquaintance, this mark of attention, and still more the sentiments of esteem so kindly expressed in your letter, are entitled to a confidence that observations not intended for the public will not be ushered to their notice, as has happened to me sometimes. Tranquillity, at my age, is the balm of life. While I know I am safe in the honor and charity of a McLeod, I do not wish to be cast forth to the Marats, the Dantons, and the Robespierres of the priesthood; I mean the Parishes, the Ogdens, and the Gardiners of Massachusetts.

I pray you to accept the assurances of my esteem and respect.

TO CÆSAR A. RODNEY

Monticello, March 16, 1815.

My Dear Friend and Ancient Colleague,—Your letter of February the 19th has been received with very sincere pleasure. It recalls to memory the sociability, the friendship, and the harmony of action which united personal happiness with public duties, during the portion of our lives in which we acted together. Indeed, the affectionate harmony of our cabinet is among the sweetest of my recollections. I have just received a letter of friendship from General Dearborne. He writes me that he is now retiring from every species of public occupation, to pass the remainder of life as a private citizen; and he promises me a visit in the course of the summer. As you hold out a hope of the same gratification, if chance or purpose could time your visits together, it would make a real jubilee. But come as you will or as you can, it will always be joy enough to me. Only you must give me a month's notice; because I go three or four times a year to a possession ninety miles southwestward, and am absent a month at a time, and the mortification would be indelible of losing such a visit by a mistimed absence. You will find me in habitual good health, great contentedness, enfeebled in body, impaired in memory, but without decay in my friendships.

Great, indeed, have been the revolutions in the world, since you and I have had anything to do with it. To me they have been like the howlings of the winter storm over the battlements, while warm in my bed. The unprincipled tyrant of the land is fallen, his power reduced to its original nothingness, his person only not yet in the mad-house, where it ought always to have been. His equally unprincipled competitor, the tyrant of the ocean, in the mad-house indeed, in person, but his power still stalking over the deep. "Quem deus vult perdere, prius dementat." The madness is acknowledged; the perdition of course impending. Are we to be the instruments? A friendly, a just, and a reasonable conduct on their part, might make us the main pillar of their prosperity and existence. But their deep-rooted hatred to us seems to be the means which Providence permits to lead them to their final catastrophe. "Nullam enim in terris gentem esse, nullum infestiorem populum, nomini Romano," said the General who erased Capua from the list of powers. What nourishment and support would not England receive from an hundred millions of industrious descendants, whom some of her people now born will live to see here? What their energies are, she has lately tried. And what has she not to fear from an hundred millions of such men, if she continues her maniac course of hatred and hostility to them. I hope in God she will change. There is not a nation on the globe with whom I have more earnestly wished a friendly intercourse on equal conditions. On no other would I hold out the hand of friendship to any. I know that their creatures represent me as personally an enemy to England. But fools only can believe this, or those who think me a fool. I am an enemy to her insults and injuries. I am an enemy to the flagitious principles of her administration, and to those which govern her conduct towards other nations. But would she give to morality some place in her political code, and especially would she exercise decency, and at least neutral passions towards us, there is not, I repeat it, a people on earth with whom I would sacrifice so much to be in friendship. They can do us, as enemies, more harm than any other nation; and in peace and in war, they have more means of disturbing us internally. Their merchants established among us, the bonds by which our own are chained to their feet, and the banking combinations interwoven with the whole, have shown the extent of their control, even during a war with her. They are the workers of all the embarrassments our finances have experienced during the war. Declaring themselves bankrupt, they have been able still to chain the government to a dependence on them, and had the war continued, they would have reduced us to the inability to command a single dollar. They dared to proclaim that they would not pay their own paper obligations, yet our government could not venture to avail themselves of this opportunity of sweeping their paper from the circulation, and substituting their own notes bottomed on specific taxes for redemption, which every one would have eagerly taken and trusted, rather than the baseless trash of bankrupt companies; our government, I say, have still been overawed from a contest with them, and has even countenanced and strengthened their influence, by proposing new establishments, with authority to swindle yet greater sums from our citizens. This is the British influence to which I am an enemy, and which we must subject to our government, or it will subject us to that of Britain.