Charleston Decemr 10th 1822
My dear Sir
Few Occurrences could have afforded me more Pleasure than the Receipt of your kind and friendy Letter. I had for some Days previous been writhing under the profligate Attack made on me in the No American Review, & had just got over the Vexatious incident to publishing the Notice I though it incumbent on me to take of it in the City Gazette of the 15–20th ult. Since that Time I have been constantly engaged in Court or in the Studies incident to it, or I should have made an earlier Acknowledgment of the Favour I feel conferred upon me, both by the kind Sentiments expressd in Letter, and the Confidence which I feel reposed in me by its Contents. Nor are there wanting other Grounds of self-gratulation. I was really apprehensive that Virginia would espouse the Cause of Coll Lee, and that I should receive from my Friends in that quarter a less favorable Decision than you have conferrd upon me. Nor was I without a Fear that the impudent Falsehood of the No American Review, in charging me with drawing Comparisons between the Troops of Carolina and Virginia unfavorable to the latter, would be suffered to pass, upon the Credit of the Writer. Nothing could have been farther from my Intention, & I trust there is not a Passage in the Book that can be tortured to such a Meaning. But there was still another and a greater Ground of Consolation. By convicting Gouverneur Morris of Monarchical Opinions & intimate Connexions in the Newberg Conspiracy, I have unfortunately verified the Observation “that Party-hatred may doze but never dies.” The whole Remains of the Federal-party are in Arms against me, & joind to the numerous Connexions & more numerous Admirers of Col Lee, they have caused me sensibly to feel, that I never stood in greater Need of the Countenance of my Friends. Yet I think I have conducted myself in such a Way, that those who identify themselves with Morris’s Views or Lee’s Fame must acknowledge that it is of their own invoking.
I agree with you most unequivocally in the Opinion that Genl Washington was the only man who could have conducted us through the War of the Revolution. There was a Momentum necessary, which he alone could have given to the Mighty Operations then going on. I trust I have faithfully persisted in the Acknowledgment of his Preeminence. And yet even here I have not been so fortunate as to avoid giving Offence. But you know the characteristic Selfishness to the Eastward; it would grasp in its Embrace Wealth, Fame, Dominion, every thing. I am told I have even given Umbrage by asserting (& proving) that we to the South had asserted the Principles of the Revolution near a Century before they have been supposed to have been given Birth to in Boston. The North-American Review of my Work, you will observe, speaks of Greene as the most extraordinary Man of the Revolution.
You are pleased to express a Hope that I will give to the Public the Work on the History of Parties to which I allude in the last Paragraph of my second Volume. But what Inducement, my dear Sir, can I have to proceed with that Undertaking? My recent Experience of the Hostility which such a Work must certainly bring upon me, of the poor Return that national or party Gratitude would make for the Vexations which certainly arise from the making of Enemies; of the feeble Patronage which the American People as yet bestow upon American Productions; of the Mortification inseparable from the Carelessness or Ignorance of Printers, and the Vilainy & Extortions of Book Sellers; all conspire to deter from publishing, tho’ I should proceed to complete another Work. I have advanced far in it, & my Notes & Extracts by far the most laborious Part of the Undertaking would enable me to finish it the next Summer. But I acknowledge, when I reflect on the impudent Outrage that I have received in ye No A. Review, & see it quietly tolerated by the American People, I am half inclined to think that they have pronounced me inadequate to such an Undertaking. I was also informed by Judge Todd at the last Session, that Mr Madison was engaged on some Work on that Period, which I have flattered myself was upon the same Subject, or some one intimately connected with it. If so, it would be presumptuous in any other to attempt it. He is now, except yourself the only Man living who could do Justice to it. I regret exceedingly that it has not occupied your Hours of Retirement hitherto; for believe me, we have been all looking up to you for the Vindication of the Purity of our Intentions & Patriotism of our Efforts. We were always under the Impression that you would not publish any Work on the Subject; but, while we should piously deprecate the Event that put us in Possession of it, you cannot be insensible that we have looked up to you as our common Father and will believe me when I assure you that we have hoped for a rich Legacy of History from your Pen. I have been informed, and I hope still it may be time, that you have kept a Journal from the earliest Time of your public Career. If so, pray bequeath it to some Friend who will fearlessly do Justice to the Part you have acted, and vindicate us along with you, from the foul Imputations which have already pass’d into History against us. It is indeed astonishing that we have so long been indifferent to our Vindication against the insidious Libel you allude to. But having falsified it in the Minds of the American Public, we have never turned our Thoughts to the Opinions of Posterity. It was that Libel, that first suggested to me the Attempt at a public Vindication, and to my shame I acknowlede, that I had given the Volume that contains it so cursory a Reading, that it was not until I came to study it attentively with a View to my Work, that I felt the full Force of its Insinuations.
Let who will undertake the Task of vindicating us, the Work must be incomplete without the Aid of yourself & Mr Madison; & even there I fear official Delicacy will deprive us of a vast deal of the most essential Information.
With regard to the Subject of the Supreme Court, I really am happy to be favoured with an Excuse for expressing myself freely and confidentially to you. Be assured that my Situation there has not been “a Bed of Roses.” But it partakes in so many Respects of the Nature of a Cabinet that a Degree of Circumspection is indispensable in lifting the Curtain; and often, very often, have I wishd for some one whom I could consult on the Course proper to be pursued in discharging the Duties which devolved upon me there. But unfortunately I have never had a single Individual on the Bench with whom I could confer with unlimited Confidence. One thing however I resolved on at a very early Period—to let no private or party Feeling run counter to the great Interests of the United States. If an executive, a legislature and judicial Department, are necessary to the well-being of the Community, it behoves those who fill those Departments always to have an Eye to the Importance of giving a Character to those Departments of preserving that Respectability without which they would cease to answer the Ends proposed in their Institution. While I was on our State-bench I was accustomed to deliver my seriatim Opinions in our appellate Court, and was not a little surprised to find our Chief Justice in the Supreme Court delivering all the Opinions in Cases in which he sat, even, in some Instances when contrary to his own Judgment & vote. But I remonstrated in vain; the Answer was, he is willing to take the Trouble, & it is a Mark of Respect to him. I soon however found out the real Cause. Cushing was incompetent, Chase could not be got to think or write—Patterson was a slow man & willingly declined the Trouble, & the other two Judges you know are commonly estimated as one Judge. Some Case soon occurred in which I differed from my Bretheren, & I thought it a thing of Course to deliver my Opinion. But, during the rest of the Session I heard nothing but Lectures on the Indecency of Judges cutting at each other, and the Loss of Reputation which the Virginia appellate Court had sustained by pursuing such a Course &ca. At length I found that I must either submit to Circumstances or become such a Cypher in our Consultations as to effect no good at all. I therefore bent to the Current, and persevered until I got them to adopt the Course they now pursue, which is to appoint some one to deliver the Opinion of the Majority, but leave it to the Discretion of the rest of the Judges to record their Opinions or not ad Libitum. And I presume it must be known to you, that to enforce a different Rule now, would be attended with just the same Difficulties as existed when I first came on the Bench. If it would compel incompetent Men to quit the Bench I would say enforce it; but I know that it would not, for others would write their Opinions merely to command their Votes.
And now Sir permit me to unfold to you the real Evil that exists in the Constitution of that Court. We are too numerous. Among seven Men you will always find at least one Intriguer, and probably more than who may be acted upon by Intrigue. There will be Cabals; and unfortunately they cannot be exposed. No appellate Court ought to consist of more than four, & it is a theoretical Folly to have a greater number. I would alter the present System thus. Let the US be thrown into a Southern a Western a Middle and an Eastern Division, & have a Judge appointed to the Se Court from each—Give them, Circuit Jurisdiction to the District Court, with a direct Appeal to the Se Court—Make us hold two Sessions pr. An. & confine us to the Duties of the Se Court. Let the Salaries of the three Judges who would be suffered to die or retire, be divided among the District Judges or even a little more, & I think you would have a System cheap, adapted to our Growth, & safe. Then the seriatim Opinions might be required with safety. Whoever may be our next President, he will confer lasting Benefit on the Community by recommending such a System. But there is a strange Habit now growing upon Congress, of wasting their Time in set speeches, & neglecting the great Interests of the Country. For any of us to recommend the Change, would be to expose ourselves to the Imputation of a Design to curtail our Labours. To me the Consequence would be much the Reverse. My circuit duty is nothing in comparison with a second Session at Washington.
There is no Subject on which I feel myself more at a Loss than that of the present State of Parties. Here we are all in Confusion. The Victory is gained and the Troops are scattered over the Field stripping the Slain. For the Spolia opima there is a portentous Contest impending among ourselves. This is a Crisis in the Affairs of the United States. I was in hopes that the late War wd have elicited Characters so commanding as to have directed our Choice of a President for many Years to come. But it has not done so & we are left to a Choice among Men who boast of neither Scars nor Triumphs, Men who with all their Merits, are not sufficiently removed beyond the Pretensions of those who elect them. I look forward with trembling Anticipation, to the Time when a Multitude of Competitors shall start up for the high Office. It is disgusting to read the Calumnies which are already finding their Way into the Papers against some of the Candidates. But what are these to the Broils and Intrigues and Compromises to which these Struggles seem to be drawing?
When the Population of a free State has been once divided into two Parties by an acknowledged Line of Demarkation, the Annihilation of one Party seems necessarily to imply the Extinction of the other. Yet it is impossible for things long to continue in that State. New Parties must arise & indeed ought to be desired. The Office of good Men is to temper their Zeal and direct it to useful Purposes. Along with the Monarchists and Consolidators who calld themselves the Federal-party, there were always a great many good Men, who seriously had the best Interests of the Country at heart, & who would never have into the Excesses to which their Leaders may have been disposed to carry them. These Men abandoned their Party in Disgust during the late War, & many others did the same from a Desire to claim a Participation in the Credit which many Incidents and Consequences of the War gave to the Party that had declared it.
Their Leaders then found themselves so decidedly in the Minority, that they appear to have abandoned the Struggle in Despair, & manifested a great Desire to make themselves agreeable to their former Opponents. But, altho’ the Seceders on Principle have been cordially received, I agree with you that there has been no Amalgamation; & tranquil as the Mass of Federalism appears; it exists separately and will shew itself on the first Occasion. The next presidential Election is looked to anxiously as the Occasion that is to bring them again into Notice—perhaps into Power. Should they ever again be able to give a Tone to the Measures of Government, I cannot anticipate what Course they will pursue. The Acquisition of Louisiana in my Opinion put down among the ones, all Idea of ever establishing a general Monarchy; the Extent of our Territory and the Scope given to the Propagation of that Class of Men who never can be yoked to the Car of Despotism, ought to have satisfied them that such a Project was ridiculous. The same Cause also, I am inclined to think, produced an Abandonment of the Project of general Consolidation; and I fear caused the Adoption of a Plan as pregnant of Evil as either of the others—A separation of the States, as the only Means of restoring the Predominance of Massachusetts with in the section that she might draw off with her. Hence the unprincipled and ungrateful separation of her Views and Interests during the late War,—cappd by the Hartford Convention. Here again Louisiana seems to me to have saved us; for its rich Commerce and vast carrying Trade were not to be surrendered—If Great Britain had succeeded in possessing herself of that Country, perhaps it would not have been. The Mississipi Manouvre succeeded; a measure which besides throwing into the Hands of the white Population of the East the Tillage of our Lands, the Building of our Houses, and finally all the Wealth of our Country, secured the Trade of the Mississipi by associating the States North of the Ohio in the Interests of the East. It was a cold hearted, selfish, ungenerous Effort. Thank Heaven it was successfully resisted; and it is a happy Omen, that the good Sense of the People appears already to have overcome the Impulse that was given to these Passions by a Measure so insidiously masked under the best Feelings of our Nature.
From these Considerations I am inclined to think that if the Monarchists and Consolidaters should, through our Dissensions, again get into Power, their Projects can only be pursued through the Medium of a separation of the States, & that they have already seen it & acted upon it. I feel it my Part to endeavour to persuade every one that whatever be the Result of the ensuing Contest, it is the Duty of every good Citizen, freely to resign himself to the public Will constitutionally expressd. But I see a curious Game going on around me, which I may one Day amuse you with a Development of.
It is very unfortunate for us, that some recent Movements of some of the States, have exhibited such Symptoms of antifederal Feeling, as to alarm the Fears of some of those who feel most sensibly for the Preservation of the Union in the pure Spirit of the Constitution. The Conduct of Massachusetts was unequivocal; Georgia, sometime since levelld a Provision of one of her stop-laws at our Marshall; Pensylvania openly by Law instructed all her public Officers to resist the United States; the recent Manouvre of Kentucky to force her depreciated Paper upon Creditors, and evade the Article of the Constitution which prohibits the States from making any thing but Gold and Silver a legal Tender, would have disgraced the Times of our paper Money. These Occurrences & a variety of others that I could mention, have actually converted some of our best Republicans into qualified Federalists. Or, if any Amalgamation does exist, it is between the pure Men of both Parties, who never were in Principle, very far removed from each other. Hence, too much leaning to that Bane of our civil Tranquillity—the assertion of implied Powers.
I wish the People of the United States would feel as sensibly as I do, the Necessity for a calm and patient Review of those two Articles of the Constitution which relate, the one to the Obligation of Contracts, and the other to the general legislating Power of Congress. We should have very little to be uneasy about if those two Clauses could be adequately explained and modified. But it is in vain to hope to bring any human System to Perfection. Our Security must be found at last, in the Virtue and Intelligence of the People, & in the Firmness & Purity of their Rulers
I fear, my dear Sir, that you will repent having drawn upon you the Visitation of this very long Letter; but I pray you to remember it is not often that I am permitted to loiter in such Company. I have now pass’d my Half-century, and begin to feel lonely among the Men of the present Day. And I am sorry to tell you particularly so in this Place. This last Summer has furnished but too much Cause for Shame and Anguish. I have lived to see what I really never believed it possible I should see,—Courts held with closed Doors, and Men dying by Scores who had never seen the Faces nor heard the Voices of their Accusers. I see that your Governor has noticed the Alarm of Insurrection which prevailed in this Place some Months since. But be assured it was nothing in Comparison with what it was magnified to. But you know the best way in the World to make them tractable is to frighten them to Death; and to magnify Danger is to magnify the Claims of those who arrest it. Incalculable are the Evils which have resulted from the exaggerated Accounts circulated respecting that Affair. Our Property is reduced to nothing. Strangers are alarmed at coming near us; our Slaves rendered uneasy; the Confidence between us and our Domestics destroyed—and all this because of a trifling Cabal of a few ignorant pennyless unarmed uncombined Fanatics, and which certainly would have blown over without an Explosion had it never come to light. Our Governor has so represented it in his Message No 2. but the Shame of some and the Interests of others will I expect prevent its Publication.
When the Court of Magistrates & Freeholders who tried the Slaves implicated were pursuing that Course of sitting in Conclave & convicting Men upon the secret exparte Examination of Slaves without Oath, whose Names were not I believe revealed even to the Owners , the Governor, whose Feeling revolted at this unprecedented & I say, illegal mode of Trial, consulted the Attorney General (the Gentleman lately elected Senator) on the Legality of their Proceedings, and you will be astonished to hear that he gave a direct Opinion in Favour of it. If such be the Law of this Country, this shall not long be my Country. But I will first endeavour to correct the Evil.
And now my dear Sir, permit me to close this unmerciful Letter, by rendering you my sincere Thanks for the very friendly Sentiments with which you honour me. And as there is no one existing whose good Opinion I value above yours, so no one can more sincerely subscribe himself
DLC: Papers of Thomas Jefferson.