Aug. 16. 1807
The post having arrived last night after Eleven OC & the one from below being expected early this morning, I have had but little room for bestowing thought on Dayton’s letter and your drafted answer.
It would be an advantage to know the precise answer given by Mr. Rodney to the application which was made to him on the same subject. I heard this read by Mr. R. but can not sufficiently rely on my recollection of its tenor or its implications, so far as related to the validity of his consent in justifying the Court in deparding from a sale otherwise binding on it. On the supposition that his interference might not be singular, the question would remain whether your interference with him would be equally so. These are points, depending too much on the course of practice to allow any value to my opinion. Judging from the principles which are generally impressed on my mind, I should infer that after a proceeding has been judicially instituted in such a case, it is so purely a matter to which the law and the accused are alone parties. and the authority to decide on it so exclusive in the Court, that neither the consent of the prosecuting officer, nor of the Exe. ought to be admitted into the question. This however may be mere theory, as it may be understood in practice, that the consent of the Executive in favor of the accused, is the consent of the law.
On the supposition that the Theory is not controuled by the practice, I think you are not only right in declining to interfere but that the ground for it could not be better explained; and considering the stile and temper of D’s letter, and the possibility that the cyphered testimony against him, may be a forgery I think such an answer, no improper condescention. I am disposed to think however that it would be better to omit the last sentence of the first paragraph, which might be regarded as either an approbation of the conduct of the Court if made indiscriminate, or a covered animadversion on its indulgence to Col. Burr, and to vary at least the last P, which might not be favorably construed by Wilkinson, tho’ it certainly admits the most unexceptionable construction.
I know not what is meant by the passage which says that the Secy. of State has been applied to for an acct. of the Communication made by Genl. Wilkinson. No such application has been made, nor indeed if it had, could any answer have been given other than a reference to the document. which I suppose to be already in the hands of the Attorney for the U.S.
Yrs. with affecte. attachment
DLC: Papers of Thomas Jefferson.