Dear Sir,
—I at length find myself, tho not quite well, yet sufficiently so to resume business in a moderate degree. I have therefore to answer your two favors of Apr 23 & May 3, and in the first place to thank you for your attention to the Paccan, Gloucester & European walnuts which will be great acquisitions at Monticello. I will still ask your attention to Mr. Foster’s boring machine, lest he should go away suddenly, & so the opportunity of getting it be lost.—I enquired of Mr. Hamilton the quantity of coal imported; but he tells me there are not returns as yet sufficient to ascertain it; but as soon as there shall be I shall be informed. I am told there is a considerable prejudice against our coal in these Northern states. I do not know whence it proceeds: perhaps from the want of attention to the different species, and an ignorant application of them to cross-purposes. I have not begun my meteorological diary; because I have not yet removed to the house I have taken. I remove tomorrow: but as far as I can judge from it’s aspects there will not be one position to be had for the thermometer free from the influence of the sun both morning & evening. However, as I go into it, only till I can get a better, I shall hope ere long to find a less objectionable situation. You know that during my short stay at Monticello I kept a diary of the weather. Mr. Madison has just received one, comprehending the same period, kept at his father’s in Orange. The hours of observation were the same, and he has the fullest confidence in the accuracy of the observer. All the morning observations in Orange are lower than those of Monticello, from one to, I believe, 15 or 16 degrees: the afternoon observations are near as much higher than those of Monticello. Nor will the variations permit us to ascribe them to any supposed irregularities in either tube, because, in that case, at the same point the variations would always be the same, which it is not. You have often been sensible that in the afternoon, or rather evening, the air has become warmer in ascending the mountain. The same is true in the morning. This might account for a higher station of the mercury in the morning observations at Monticello. Again when the air is equally dry in the lower & higher situations, which may be supposed the case in the warmest part of the day, the mercury should be lower on the latter, because, all other circumstances the same, the nearer the common surface the warmer the air. So that on a mountain it ought really to be warmer in the morning & cooler in the heat of the day than on the common plain; but not in so great a degree as these observations indicate. As soon as I am well enough I intend to examine them more accurately.—Your resolution to apply to the study of the law is wise in my opinion, & at the same time to mix it with a good degree of attention to the farm. The one will relieve the other. The study of the law is useful in a variety of points of view. It qualifies a man to be useful to himself, to his neighbors, & to the public. It is the most certain stepping stone to preferment in the political line. In political economy I think Smith’s wealth of nations the best book extant, in the science of government Montesquieu’s spirit of laws is generally recommended. It contains indeed a great number of political truths; but also an equal number of heresies: so that the reader must be constantly on his guard. There has been lately published a letter of Helvetius who was the intimate friend of Montesquieu & whom he consulted before the publication of his book. Helvetius advised him not to publish it: & in this letter to a friend he gives us a solution for the mixture of truth & error found in this book. He sais Montesquieu was a man of immense reading, that he had commonplaced all his reading, & that his object was to throw the whole contents of his commonplace book into systematical order, & to shew his ingenuity by reconciling the contradictory facts it presented. Locke’s little book on government is perfect as far as it goes. Descending from theory to practice there is no better book than the Federalist. Burgh’s Political disquisitions are good also, especially after reading De Lolme. Several o Hume’s political essays are good. There are some excellent books of Theory written by Turgot & the economists of France. For parliamentary knowlege, the Lex parliamentaria is the best book.—On my return to Virginia in the fall, I cannot help hoping some practicable plan may be devised for your settling in Albemarle, should your inclination lead you to it. Nothing could contribute so much to my happiness were it at the same time consistent with yours. You might get into the assembly for that county as soon as you should please. A motion has been made in the Senate to remove the federal government to Philadelphia. There was a trial of strength on a question for a week’s postponement. On that it was found there would be 11 for the removal & 13 against it. The motion was therefore withdrawn & made in the other house where it is still depending, & of very incertain event.—The question of the assumption is again brought on. The parties were so nearly equal on the former trial that it is very possible that with some modifications it may yet prevail. The tonnage bill will probably pass, and must, I believe, produce salutary effects. It is a mark of energy in our government, in a case where I believe it cannot be parried. The French revolution still goes on well, tho the danger of a suspension of paiment is very imminent. Their appeal to the inhabitants of their colonies to say on what footing they wish to be placed, will end, I hope, in our free admission into their islands with our produce. This precedent must have consequences. It is impossible the world should continue long insensible to so evident a truth as that the right to have commerce & intercourse with our neighbors is a natural right. To suppress this neighborly intercourse is an exercise of force, which we shall have a just right to remove when the superior force.
Present my warm affections to the girls. I am afraid they do not follow my injunctions of answering by the first post the weekly letter I address to them. I inclose some letters for Patsy from Paris, and the newspapers for yourself with assurances of the sincere & cordial esteem of Dear Sir Your Affectionate friend.
P. S. I must refer the description of the Mould board to another occasion. The President is well enough to do business. Colo. Bland dangerously ill.
(Source: http://oll.libertyfund.org/)
The Secretary of the Treasury conceives it to be his duty most respectfully to represent to the President of the United States that there are in his judgment objections of a very serious and weighty nature to the resolutions of the two Houses of Congress of the twenty-first instant, concerning certain arrears of pay, due to the officers and soldiers of the lines of Virginia and North Carolina.
The third of these resolutions directs that in cases where payment has not been made to the original claimant in person, or to his representative, it shall be made to the original claimant, or to such person or persons only as shall produce a power of attorney duly attested by two justices of the peace of the county in which such person or persons reside, authorizing him or them to receive a certain specified sum.
By the laws of most if not all the States, claims of this kind are in their nature assignable for a valuable consideration; and the assignor may constitute the assignee his attorney or agent to receive the amount. The import of every such assignment is a contract, express or implied, on the part of the assignor, that the assignee shall receive the sum assigned to his own use. In making it no precise form is necessary, but any instrument competent to conveying with clearness and precision the sense of the parties, suffices; there is no need of the co-operation of any justice of the peace, or other magistrate whatever.
The practice of the Treasury and of the public officers in other departments, in the adjustment and satisfaction of claims upon the United States, has uniformly corresponded with the rules of that law.
A regulation, therefore, having a retrospective operation, and prescribing with regard to past transactions new and unknown requisites, by which the admission of claims is to be guided, is an infraction of the rights of individuals, acquired under pre-existing laws, and a contravention of the public faith, pledged by the course of public proceedings. It has consequently a tendency not less unfriendly to public credit than to the security of property.
Such is the regulation contained in the resolution above referred to. It defeats all previous assignments not accompanied with a power of attorney attested by two justices of the peace of the county where the assignor resides; a formality which, for obvious reasons, cannot be presumed to have attended any of them, and which does not appear to have been observed with respect to those upon which application for payment has hitherto been made.
It is to be remarked that the assignee has no method of compelling the assignor to perfect the transfer by a new instrument in conformity to the rule prescribed; if even the existence of such a power, the execution of which would involve a legal controversy, could be a satisfactory cause for altering by a new law that state of things which antecedent law and usage had established between the parties.
It is, perhaps too, questionable whether an assignee, however equitable his pretensions were, could, under the operation of the provision which has been recited, have any remedy whatever for the recovery of the money or value which he may have paid to the assignor.
It is not certain that a legislative act decreeing payment to a different person, would not be a legal bar; but if the existence of such a remedy were certain, it would be but a very inconclusive consideration. The assignment may have been a security for a precarious or desperate debt, which security will be wrested from the assignee; or it may have been a composition between an insolvent debtor and his creditor, and the only resource of the latter; or the assignor may be absent and incapable either of benefiting by the provision, or of being called to an account. And in every case the assignee would be left to the casualty of the ability of the assignor to repay; to the perplexity, trouble, and expense of a suit at law. In respect to the soldiers, the presumption would be, in the greater number of cases, that the pursuit of redress would be worse than acquiescence in the loss. To vary the risks of parties, to supersede the contracts between them, to turn over a creditor without his consent from one debtor to another, to take away a right to a specific thing, leaving only the chance of a remedy for retribution, are not less positive violations of property than a direct confiscation.
It appears from the debates in the House of Representatives, and it may be inferred from the nature of the proceeding, that a suggestion of fraud has been the occasion of it. Fraud is certainly a good objection to any contract, and where it is properly ascertained invalidates it. But the power of ascertaining it is the peculiar province of the Judiciary Department. The principles of good government conspire with those of justice to place it there. ’T is there only that such an investigation of the fact can be had as ought to precede a decision. ’T is there only the parties can be heard, and evidence on both sides produced; without which surmise must be substituted to proof, and conjecture to fact.
This, then, is the dilemma incident to legislative interference. Either the Legislature must erect itself into a court of justice and determine each case upon its own merits, after a full hearing of the allegations and proofs of the parties; or it must proceed upon vague suggestions, loose reports, or at best upon partial and problematical testimony, to condemn, in the gross and in the dark, the fairest and most unexceptionable claims, as well as those which may happen to be fraudulent and exceptionable. The first would be an usurpation of the judiciary authority, the last is at variance with the rules of property, the dictates of equity, and the maxims of good government.
All admit the truth of these positions as general rules. But, when a departure from it is advocated for any particular purpose, it is usually alleged that there are exceptions to it, that there are certain extraordinary cases in which the public good demands and justifies an extraordinary interposition of the Legislature.
This doctrine in relation to extraordinary cases is not to be denied; but it is highly important that the nature of those cases should be carefully distinguished.
It is evident that every such interposition deviating from the usual course of law and justice, and infringing the established rules of property, which ought as far as possible to be held sacred and inviolable, is an overleaping of the ordinary and regular bounds of legislative discretion; and is in the nature of a resort to first principles. Nothing, therefore, but some urgent public necessity, some impending national calamity, something that threatens direct and general mischief to society, for which there is no adequate redress in the established course of things, can, it is presumed, be a sufficient cause for the employment of so extraordinary a remedy. An accommodation to the interests of a small part of the community, in a case of inconsiderable magnitude, on a national scale, cannot, in the judgment of the Secretary, be entitled to that character.
If partial inconveniences and hardships occasion legislative interferences in private contracts, the intercourses of business become uncertain, the security of property is lessened, the confidence in government destroyed or weakened.
The Constitution of the United States interdicts the States individually from passing any law impairing the obligation of contracts. This, to the more enlightened part of the community, was not one of the least recommendations of that Constitution. The too frequent intermeddlings of the State Legislatures, in relation to private contracts, were extensively felt, and seriously lamented; and a constitution which promises a preventive, was, by those who felt and thought in that manner, eagerly embraced. Precedents of similar interferences by the Legislature of the United States cannot fail to alarm the same class of persons, and at the same time to diminish the respect of the State Legislatures for the interdiction alluded to. The example of the National Government in a matter of this kind may be expected to have a far more powerful influence than the precepts of the Constitution.
The present case is that of a particular class of men, highly meritorious indeed, but inconsiderable in point of numbers, and the whole of the property in question less than fifty thousand dollars, which, when distributed among those who are principally to be benefited by the regulation, does not exceed twenty-five dollars per man. The relief of the individuals who may have been subjects of imposition, in so limited a case, seems a very inadequate cause for a measure which breaks in upon those great principles that constitute the foundations of property.
The eligibility of the measure is more doubtful, as the courts of justice are competent to the relief which it is the object of the resolution to give, as far as the fact of fraud or imposition or undue advantage can be substantiated. It is true that many of the individuals would probably not be in a condition to seek that relief from their own resources; but the aid of government may in this respect be afforded, in a way which will be consistent with the established order of things. The Secretary, from the information communicated to him, believing it to be probable that undue advantages had been taken, had conceived a plan for the purpose, of the following kind: That measures should be adopted for procuring the appointment of an agent or attorney, by the original claimants, or if deceased, by their legal representatives; that payment of the money should be deferred until this had been effected; that the amount of the sums due should then be placed in the hands of the proper officer for the purpose of payment; that a demand should be made upon him, on behalf of the original claimants, by their agent, and as a like demand would of course be made by the assignees, that the parties should be informed that a legal adjudication was necessary to ascertain the validity of their respective pretensions; and that in this state of things the Attorney-General should be directed either to prosecute or defend for the original claimants, as should appear to him most likely to insure justice. A step of this kind appeared to the Secretary to be warranted and dictated, as well by a due regard to the defenceless situation of the parties who may have been prejudiced, as by considerations resulting from the propriety of discouraging similar practices.
It is with reluctance and pain the Secretary is induced to make this representation to the President. The respect which he entertains for the decisions of the two Houses of Congress; the respect which is due to those movements of humanity toward the supposed sufferers, and of indignation against those who are presumed to have taken an undue advantage; an unwillingness to present before the mind of the President, especially at the present juncture, considerations which may occasion perplexity or anxiety, concur in rendering the task peculiarly unwelcome. Yet the principles which appear to the Secretary to have been invaded, in this instance, are, in his estimation, of such fundamental consequence to the stability, character, and success of the government, and at the same time so immediately interesting to the department intrusted to his care, that he feels himself irresistibly impelled by a sense of duty, as well to the Chief Magistrate as to the community, to make a full communication of his impressions and reflections.
He is sensible that an inflexible adherence to the principles contended for must often have an air of rigor, and will sometimes be productive of particular inconveniences. The general rules of property, and all those general rules which form the links of society, frequently involve, in their ordinary operation, particular hardships and injuries; yet the public order and the general happiness require a steady conformity to them. It is perhaps always better that partial evils should be submitted to, than that principles should be violated. In the infancy of our present government, peculiar strictness and circumspection are called for, by the too numerous instances of relaxations, which in other quarters, and on other occasions, have discredited our public measures.
The Secretary is not unaware of the delicacy of an opposition to the resolutions in question, by the President, should his view of the subject coincide with that of the Secretary; yet he begs leave on this point to remark that such an opposition in a case in which a small part of the community only is directly concerned would be less likely to have disagreeable consequences than in one which should affect a very considerable portion of it; and the prevention of an ill precedent, if it be truly one, may prove a decisive obstacle to other cases of greater extent and magnitude, and of a more critical tendency. If the objections are as solid as they appear to the Secretary to be, he trusts they cannot fail, with the sanction of the President, to engage the approbation, not only of the generality of considerate men, but of the community at large. And if momentary dissatisfaction should happen to exist in particular parts of the Union, it is to be hoped it will be speedily removed by the measures which, under the direction of the President, may be pursued for obtaining the same end in an unexceptionable mode; for the success of which the Secretary will not fail to exert his most zealous endeavors.
It is proper that the President should be informed that if objections should be made by him, they will in all probability be effectual, as the resolutions passed in the Senate with no greater majority than twelve to ten.
The Secretary feels an unreserved confidence in the justice and magnanimity of the President; that, whatever may be his view of the subject, he will at least impute the present representation to an earnest and anxious conviction in the mind of the Secretary of the truth and importance of the principles which he supports, and of the inauspicious tendency of the measure to which he objects, co-operating with a pure and ardent zeal for the public good, and for the honor and prosperity of the administration of the Chief Magistrate.
(Source: http://oll.libertyfund.org/)
Dear Sir,
— J. Walker is appointed Senator in the room of Grayson, & arrived here with his family yesterday. It was carried in his favor against Monroe by a Majority of a single vote in council. Many think he may be dropped by the assembly. In my preceding letters I did not mention to whom you should address such of my things as are to go directly to Virginia. To Capt. Maxwell at Norfolk if you please, or Mr. James Brown Mercht. at Richmond, according to the destination of the vessel. On conversing with Mr. Hamilton yesterday, I find that the funds in the hands of the W. W. V. Stap. & Hub. are exhausted. Should the joint houses therefore make any difficulties about answering your bills for my purposes, I think the latter one will not: be so good as to assure them (in case it comes to that) that their advances for me shall be reimbursed as soon as made known. * * *
The management of the foreign establishment awaits the passage of a bill on the subject. One conversation only has taken place, but no resolutions reached are discernible. A minister will certainly be appointed, and from among the veterans on the public stage, if I may judge from the names mentioned. I will write you the moment I know it myself. I would advise you to pass some time in London in as high a circle as you can before you come over, in order to add the better knowledge of the country to your qualifications for future office.
We have London news to March 26. Paris news only to Feb. 10. Your note with a packet from Miss Botidour for my daughter is come to hand. You will see in the newspapers which accompany this, the details of Dr. Franklin’s death. The house of representatives resolved to wear mourning & do it. The Senate neither resolved it nor do it.—What is become of Rumsey & his steam-ship? Not a word is known here. I fear therefore he has failed. Adieu, my dear Sir, and believe me to be Your affectionate friend & servt.
(Source: http://oll.libertyfund.org/)
Thomas Jefferson's Opinion on the Powers of the Senate
0 comments Posted by HCPS at Saturday, April 24, 2010
Opinion on the Question whether the Senate has the right to negative the grade of persons appointed by the Executive to fill Foreign Missions.
The constitution having declared, that the president “shall nominate, and by and with the advice and consent of the senate shall appoint, ambassadors, other public ministers, and consuls,” the president desires my opinion whether the senate has a right to negative the grade he may think it expedient to use in a foreign mission, as well as the person to be appointed.
I think the senate has no right to negative the grade.
The constitution has divided the powers of government into three branches, legislative, executive, and judiciary, lodging each with a distant magistracy. The legislative it has given completely to the senate and house of representatives; it has declared that “the executive powers shall be vested in the president,” submitting only special articles of it to a negative by the senate; and it has vested the judiciary power in the courts of justice, with certain exceptions also in favor of the senate.
The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly; the constitution itself, indeed, has taken care to circumscribe this one within very strict limits; for it gives the nomination of the foreign agent to the president, the appointment to him and the senate jointly, and the commissioning to the president.
This analysis calls our attention to the strict import of each term. To nominate must be to propose; appointment seems the only act of the will which constitutes or makes the agent; and the commission is the public evidence of it. But there are still other acts previous to these, not specially enumerated in the constitution, — to wit, 1. The destination of a mission to the particular country where the public service calls for it, and, 2. The character or grade to be employed in it. The natural order of all these is, 1. destination, 2. grade, 3. nomination, 4. appointment, 5. commission. If appointment does not comprehend the neighboring acts of nomination or commission, (and the constitution says it shall not, by giving them exclusively to the president) still less can it pretend to comprehend those previous and more remote of destination and grade. The constitution, analyzing the three last, shows they do not comprehend the two first. The fourth is the only one it submits to the senate, shaping it into a right to say that “A or B is unfit to be appointed.” Now, this cannot comprehend a right to say that “A or B is indeed fit to be appointed, but the grade fixed on it is not the fit one to employ,” or “our connections with the country of his destination are not such as to call for any mission.” The senate is not supposed by the constitution to be acquainted with the concerns of the executive department. It was not intended that these should be communicated to them; nor can they, therefore, be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the president; they are only to see that no unfit person be employed.
It may be objected, that the senate may, by continual negatives on the person, do what amounts to a negative on the grade, and so indirectly defeat this right of the president; but this would be a breach of trust, an abuse of the power confided to the senate, of which that body cannot be supposed capable. So, the president has a power to convoke the legislature, and the senate might defeat that power, by refusing to come. This equally amounts to a negative on the power of convoking, yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the constitution had meant to give the senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.
(Source: http://oll.libertyfund.org/)
New York, April 20, 1790
Sir,—
Encroachments being made on the Eastern limits of the United States by settlers under the British government, pretending that it is the western and not the eastern river of the bay Passamaquoddy which was designated by the name of St. Croix, in the treaty of peace with that nation, I have to beg the favor of you to communicate any facts which your memory or papers may enable you to recollect, and which may indicate the true river the commissioners on both sides had in their view to establish as the boundary between the two nations. It will be of some consequence to be informed by what map they traced the boundary.
I have the honor to be, &c.
Thomas Jefferson.
(Source: http://oll.libertyfund.org/)
New York, April 17, 1790
Dear Sir
An answer to your favor of the 5th has been delayed by my hourly expectation of hearing from Taylor. A few days ago he came to Town and I have had an interview and settlement with him. The balance with the interest at 7 per Ct. was 864 dollars. He has not however executed the conveyance for want of some chart which he could not get here, but has entered into bond to do so by August, with good security. As far as I can learn our bargain is a good one. Land in the vicinity has sold in small parcells at more than 20/. I am told. The present moment however it is said is not favorable to the market. By waiting I think it probable it may be sold to your profit or If you continue to be anxious to get rid of it immediately, I have no objection to taking the whole on myself. Before you decide I would recommend that you consult by letter some of your friends here who can judge better than I can do, and who have more leisure & opportunity for making the requisite enquiry into the prospect. Should you chuse to make me the sole proprietor, it will be most convenient that the deed be executed from Taylor to me. In that event also, I beg you to let me know the state in which the accts. between us was left, by your former advances for me, and my settlemts for your furniture &c.1 My papers on this subject are either not here or so concealed among others that I cannot find them.
The House of Representatives are still at the threshold of the Revenue business. The Assumption of the State debts is the great obstacle. A few days ago it was reconsidered & rejected by 31 agst 29. The measure is not however abandoned. It will be tried in every possible shape by the zeal of its patrons. The Eastern members talk a strange language on the subject. They avow, some of them at least, a determination to oppose all provision for the public debt which does not include this, and intimate danger to the Union from a refusal to Assume. We shall risk their prophetic menaces if we should continue to have a majority.
New York, April 13, 1790
Dear Sir
Your favor of the 4th ult by Col Lee was received from his hands on Sunday last. I have since recd that of the 3d Instant. The antecedent one from Alexandria, though long on the way, was recd. some time before. In all these, I discover strong marks of the dissatisfaction with which you behold our public prospects. Though in several respects they do not comport with my wishes, yet I cannot feel all the despondency which you seem to give way to. I do not mean that I entertain much hope of the Potomac; that seems pretty much out of sight; but that other measures in view, however improper, will be less fatal than you imagine.2
The plan of discrimination has met with the reception in Virginia on which I calculated. The towns would for obvious reasons disrelish it, and for a time they always set public opinion. The country in this region of America, in general, if I am not misinformed, has not been in unison with the cities, nor has any of the latter except this, been unanimous against the measure. Here the sentiment was in its full vigor, and produced every exertion that could influence the result.
I think with you that the Report of the Secretary of the Treasury is faulty in many respects; it departs particularly from that simplicity which ought to be preserved in finance, more than anything else. The novelty and difficulty of the Task he had to execute form no small apology for his errors, and I am in hopes that in some instances they will be diminished, if not remedied.
The proposed assumption of the State debts has undergone repeated discussions, and contradictory decisions. The last vote was taken yesterday in a Committee of the whole and passed in the negative 31 vs. 29. The minority do not abandon however their object, and tis impossible to foretell the final destiny of the measure. It has some good aspects, and under some modifications would be favorable to the pecuniary interests of Virginia, and not inconsistent with the general principle of justice. In any attainable form it would have neither of these recommendations, and is moreover liable to strong objections of a general nature. It would certainly be wrong to force an affirmative decision on so important and controvertible a point by a bare majority, yet I have little hope of forbearance from that scruple. Mass & S. Carolina with their allies of Connecticut & N. York are too zealous to be arrested in their project, unless by the force of an adverse majority.
I have recd your reflections on the subject of a public debt with pleasure; in general they are in my opinion just and important. Perhaps it is not possible to shun some of the evils you point out, without abandoning too much the re-establishment of public credit. But as far as this object will permit I go on the principle that a Public Debt is a Public curse, and in a Rep Govt a greater than in any other.
I have mentioned Mr Lee1 to Mr Jefferson who tells me that he found every place preoccupied, and that he has not thought proper to make changes where no special reasons existed; various applications have been made previous to that in behalf of your friend, several had passed through my hands, some of them from Virginia.
I never heard of the report you mention of the Vice Presdt. It is but justice to say that I cannot believe it to have originated in fact.
I lament with you the inability which impedes arrangements at the Great Falls, which would be of benefit in a Public as well as private view. The prospect of aid in this quarter does not strike me as it seems to do you. Money is destined to other projects at this juncture. Besides I am on no peculiar footing, that could favor an experiment, and could never make it less auspiciously than at present. It gives me much concern that it is not more in my power to forward our object.
Present me most respectfully to Mrs Lee & believe me
Affly yrs.
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