Richmond. June 5. 1807.
In consequence of Gen: Dearborn’s letter to me received a few days past, stating that Gen: Wilkinson might be expected here on the 28. or 30th. ulto. I prayed the Court to keep the grand Jury embodied. By tuesday next we may possibly hear of his being on the way.
We have determined not to present the bills until there is a prospect of a trial before a petit jury. A third of ineffectual effort to get a bill found against Burr for treason, would excite a sentiment very unfavorable to a fourth, however well supported by evidence. If I could confide in the witnesses, or if the Grand jury could know in what manner and as to what facts they ought to be severally examined, I should not hesitate to go on now with the prosecution: but Bollman, Swartwout &c. will never utter a word injurious to Burr, unless it is extorted by the force of public interrogation.
The case of Marbury vs. Madison cannot, I conceive be brought to bear on any point worth notice in Burr’s case. If it should, I shall readily avail myself of the remarks which you have been So good as to Communicate. I beg leave to add that they are in exact coincidence with the ideas which I had already formed on this Subject: a subject which learning may obscure, and which ingenuity may perplex, but which Common sense decides in a moment. The grant of the office is not Consummated, until the Commission is delivered to the party appointed or to Some person for him. In the Case of the U:S. vs Hopkins, who claimed a credit for his Salary, until he was notified that his Commission was revoked, by the appointment of a Successor, the Court did not seem to adhere very rigidly to the doctrines advanced in Marbury vs Madison. But upon this point I cannot be clear, as the Court itself seemed to be in some difficulty.
I am, with the highest respect. Yr. mo. ob. Sv.
DLC: Papers of Thomas Jefferson.