From Hugh Henry Brackenridge
Pittsburg January 19th. 1801.
Did not expect an answer to my note, not meaning to draw a person engaged in affairs into a correspondence:
Cum tot sustineas, et tanta negotia—
—In publica commoda peccem,
Si longo sermone morer—
But it may be useful to you in your present and approaching responsible situation to have hints, or indicia of the public mind on occasional subjects. With a view to inform and from a zeal for the credit of your administration I may occasionally communicate such hints as do not reach the Gazettes or are proper to be inserted in them. A draw-back upon me is that I do not write myself, but use an amanuensis. My hand writing is not easily legible, and it cramps my fingers, and hurts my nerves to write. Hence it is that I have avoided all correspondence not absolutely necessary: a loss no doubt in the course of my life, both of honor and profit, but it has saved time; I have had leisure to read the more. But am sensible of the want of that confirmation in actions, or incitement to improvement which communication with philosophic men gives. “As iron sharpeneth iron, so doth the face of a man his friend.”
It is with this view, however slight the assistance, that I subjoin this note on a hint contained in your letter to me, the opening abyss of a probable suspension of the federal government, from the nonelection of a President in the present case of an equality of votes for two persons. In the Capital of this state (Philadelphia) from which I have just returned, and in the Villages of Lancaster, Carlisle &ca. the more violent of the ex-federalists protest against an election at all, or declare for Burr as President. The moderate and discerning reprobate both ideas, and say should such a conduct prevail they will no longer class themselves with such federalists. The ex-federal enrageé give us a reason for their declaration, that it will spite the republicans. Some of them have been heard to use the language that they wished to do all the mischief in their power. Thomas Duncan, a lawyer of eminence in the mid-land counties used this language as reported to me by the Governor, and this law character is considered as an organ of the party.
The more strenuous of the republicans affect to declare themselves for Burr, and tell these ex-federalists, that if Jefferson will err it will be on the side of moderation, and for their part they will prefer Burr made, perhaps, of sterner stuff, & from his long Wars personal and political at New-York more habituated to controversy, and if from no other principle, yet to rebutt all suspicion of conciliation will act with double rigor, and sweep from office every individual of the preceding administration.
An idea by the ex-federalists has been thrown out that the present case will come within that section of the constitution enabling Congress to declare what officer shall act as President in case of the removal of a President, and within a subsequent act of Congress March 1st. 1792 Sec. 9. that in the case of removal “the president of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States” &ca. But the term removal carries with it the idea of impeachment, and the expiration of the term of Presidency is no removal. But a President pro tempore by the constitution can be chosen only in the absence of the Vice-President, or when he shall exercise the office of President. There will be no absence in this case, or exercise of office of Presidency, and so no President pro tempore can be chosen. But should it have been done, or should it be done the present case is not that of a removal, and there is no room under the Act of Congress for the President pro tempore to act. The Constitution supports the construction by Art. 2. Sec. IV. stating a removal from office to be an impeachment &ca. But great liberty has been taken with the constitution on what Lawyers call a liberal or equitable construction, and a President pro tempore may be made and that officer as he will be called may usurp the Government. It was announced to me on my way at Bedford the residence of the family of Woods into which James Ross has married, that he had passed down some weeks ago, and was chosen President pro tempore the day of his arrival. At this place (Pittsburg) it is understood that letters had arrived from Senator Tracy to James Ross, wishing his immediate presence with the Senate for the express purpose of being chosen Vice-President, with a view to take upon himself the office of President on the event of a non election by the Legislature.
In this case what ought to be the measure with the Republicans? The Governor of Pennsylvania stated to me as his opinion and of other men of legal knowledge with whom he had conversed, that it was in the power of the two persons equal in vote to settle this among themselves by writing under hand and seal. This would seem to receive countenance from the Act March 1st. 1792 Section 11. “that the only evidence of a refusal to accept of the office of President or Vice-President shall be an instrument in writing declaring the same, and subscribed by the person refusing to accept, and delivered into the office of secretary of State.” It would seem therefore in the power of one to refuse the acceptance of the higher office. But doubtless the section contemplates a refusal to accept after a special designation by election to the particular office. There cannot be a refusal to accept until there is an offer. A majority of nine states can alone offer the presidency.
It may be said an individual may wave his right of choice where there is equality of votes, under the maxim, Juri pro se introducto quisquis renunciari potest. But this is not a right of the individual exclusive and independent. It is the right of the people to dispose to the office. This proceeding cannot therefore be strictly regular and legally justifiable. It must savor of usurpation. yet well knowing the public mind on this subject it would be a safe usurpation and from the complection of the next Congress, there can be no doubt but that the irregularity would be purged by a subsequent choice of President sanctioning the intermediate acts as necessary and unavoidable to preserve the Government. Ratification is equivalent to original authority. The Maxim is, Omnis rati-habitio retrotrahitur, atque mandato equiparatur.
In the case of President pro tempore usurping the Presidency there is a trespass upon substance as well as form. It is without foundation or color of authority, and on the succession of the legitimate powers of government this officer so called might be liable on a charge of treason; but under the present judicial authority of the United States the prosecution could not be carried into effect. But in the mean time I have no manner of doubt before the legitimate powers of government could come into exercise the usurpers would fortify themselves by an armed power, and attempt the retaining the sovereignty by force. It would be a fairer opportunity than Cromwell had. An army under the name of Volunteers consisting of ex-federalists with Alexander Hamilton at their head could get possession of Forts, Arsenals, Stores and Arms in a short time. I am confident James Ross has boldness enough, ambition and want of principle, with chagrin of disappointment to attempt this in a moment.
Were I in the place of President designate, in my present mind I would not hesitate one moment, to announce myself on the fourth day of March next President, and to convene the legitimate authorities instantly to ratify that annunciation. The consent of the rival candidate if he might be so called, having in the mean time been obtained in Writing, and filed in the Secretary’s office by analogy to the form of proceeding under the Act of March 1st. 1792 in the case of refusal to accept or resignation. In a case of this nature all depends on the decision and rapidity of the movement, the hadrepebalon or fortunate boldness of the Greeks, the coup de main of military men.
But we hope better things, and I think the rascals will tremble at the extremes which they meditate. They will dread the opinion of exfederalists at home, the more wise and moderate whose opinions will begin to reach them. Should they dare the bayonet, or provoke hostilities by their conduct, they will know that valor, virtue and numbers are against them and they must go down on a contest by arms. I cannot but believe that on the approaching day of election there will not only be nine States, but a unanimous vote in favor of Thomas Jefferson President and Aaron Burr Vice-President; but should they elect Burr president, it will give Jefferson afterwards the presidency an amendment to the Constitution having in the mean time taken place, or the designation of President and Vice President ascertained by consent of dropping votes or vote for one or other of the Republican Candidates in some State or States.
John Israel printer and editor of the tree of liberty at this place informs me that he has occasionally transmitted you some numbers. The patronage of this paper has drawn upon me personally much abuse, and ribaldry in the ex-federal prints. They are aware of the great importance of the post which has been seized, and have felt the effects of it. But the republicans are poor in this extreme of the State and but for considerable pecuniary assistance on my part, it could not have been set up or supported. The adversary press of John Scull is supported by private contributions from the party, and has the advantage of support from Government by the publication of the laws of the United States an emolument which we hope to see soon transfered to the Herald and Tree of Liberty.
Having put this Western house so to speak in order as far as can be done by arrangements and support of mine, I mean to withdraw to a more mid-land situation in the State as necessary to the convenient discharge of the duties of the office which I hold, & my being more in the neighborhood of the sea-coast cities, and the seat of the federal government which I might sometimes incline to visit.
Excuse the trouble I have given in this writing and accept of my gratulation on the testimony which America has given of the high respect they entertain for your talents and virtues, and believe me to be an admirer of your simplicity of manners, your science, political demerit and services and irreproachable moral character and liberallity in religious opinions
Your Most Obedient Humble Servant
H H Brackenridge
P.S. Writing for Israel’s paper with a view to assist it, occasionally while at home I have been noting down this morning some lines, I will not say dictated to me by Urania or any other of the Muses,
“Which Nightly me revisits”
But which I meditated, not altogether in my slumbers, but on my bed in the course of the night, and which entitle Jefferson in imitation of Virgil’s Pollio “Sicelides Musæ paulo majora canamus.”
Should I finish it I will send it to the press and enclose a copy
I have finished the poem and enclose a copy, though possibly it may be extracted and you may see it in other papers.
In the Aurora of January 10th. by this post I observe the idea which had occurred to me of a seizure of the government by a president pro tempore; and if it is seized, I engage it will be retained. They will not be such fools as to give it up and subject themselves to be called to account for the usurpation, at least if the spirit and counsels of James Ross should prevail. I have known him in law practice capable of every thing short of a falsification of the record and to manage officers. In contracts his character is that of doing any thing that the rigor of law can screen or support. In his canvassing for the election of Governor, and management of it I saw him capable of every thing from general arrangements in the face of the law to the detail of acting on the ground.
It is understood here that he declared before his departure that from the letters of Senator Tracy to himself it was expected that Matthew Lyon of Vermont could be taken off and that State gained, that Lyon could be bribed; farther that it was fixed and he was secured in favor of Burr.
RC (DLC); in a clerk’s hand, signed by Brackenridge; endorsed by TJ as received 30 Jan. and so recorded in SJL. Enclosure: Hugh Henry Brackenridge, Jefferson, in Imitation of Virgil’s Pollio; MS not found, printed in the Pittsburgh Tree of Liberty, 24 Jan. 1801, and reprinted in Claude Milton Newlin, The Life and Writings of Hugh Henry Brackenridge (Princeton, 1932), 232–4; see below.
Cum tot sustineas … morer: an extract from the first four lines of Horace’s Epistulae, book 2, letter 1, meaning “with your burden of so many great public affairs, I should sin against the public good if I delayed you with long talk.”
As iron sharpeneth iron: Proverbs 27:17.
The Senate had no occasion to name a president pro tempore between 28 Nov., when TJ took the chair, and 28 Feb. 1801, when he bade farewell to the chamber. James Ross took his seat on 12 Jan. (JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , 3:110, 115, 134–5).
In the law of contracts, the maxim “quilibet (or cuilibet) potest renunciare juri pro se introducto” stated that an individual could waive a right that existed only for his own benefit. The maxim concerning ratification, often rendered “omnis ratihabitio retrotrahitur et mandato priori æquiparatur,” declared that ratification of an action was retrospective in effect and equal to the original authorization (Herbert Broom, Selection of Legal Maxims, Classified and Illustrated [Philadelphia, 1845], 200–202; Latin for Lawyers [London, 1915], 215, 228–9; Henry Campbell Black, Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, rev. 4th ed. [St. Paul, Minn., 1968], 453, 1239).
Hadrepebalon: translated literally from the Greek, “the power of forming great conceptions.”
John Israel established the tree of liberty in Pittsburgh in 1800 and the Herald of Liberty two years earlier in Washington, Pennsylvania (Vol. 30:286n). The adversary press of John Scull was the Pittsburgh Gazette, founded in 1786 (Brigham, American Newspapers, description begins Clarence S. Brigham, History and Bibliography of American Newspapers, 1690–1820, Worcester, Mass., 1947, 2 vols. description ends 2:965).
In imitation of Virgil’s Pollio: Brackenridge’s title mimicked that of Alexander Pope’s poem Messiah, which first appeared in the Spectator in 1712. Inspired by messianic prophecies he saw both in the book of Isaiah and in Virgil’s fourth Eclogue, which was addressed to Gaius Asinius Pollio, Pope called Messiah “A Sacred Eclogue / In Imitation of Virgil’s Pollio.” The first line of Virgil’s work, quoted above by Brackenridge, translates, “Sicilian muses, let us sing in a loftier strain,” echoed by Brackenridge in the opening of his poem to TJ as “Begin O muse, begin a loftier strain.” Pope’s verse opened, “Ye Nymphs of Solyma! begin the song” (Alexander Pope, Poetical Works, ed. Herbert Davis [London, 1966], 31–2; Paul Baines, The Complete Critical Guide to Alexander Pope [London, 2000], 13–14).
For the report in the Aurora of 10 Jan., see Monroe to TJ, 6 Jan. 1801.