Monticello May 31. 08.
I return you all the papers recieved from you by yesterday’s mail, except Mr. Burnley’s, which I shall send to the Secretary at war. Altho’ all the appointments below field officers are made, it is possible some may decline & open a way for new competition. I have observed that Turreau’s letters have for some time past changed their style unfavorably. I believe this is the first occasion he has had to complain of French deserters being enlisted by us, and if so, the tone of his application is improper. The answer to him however is obvious as to our laws & instructions and the discharge not delivery of the men, for which purpose I presume you will write a line to the Secretary at War. Woodward’s scruples are perplexing, and they are unfounded, because on his own principle, if a law requires an oath to be administered, & does not say by whom, he admits it may be by any judge; if therefore it names a person no longer in existence, it is as if it named nobody. On this construction all the territories have practised, and all the authorities of the national government, even the legislature. It was wrong on a second ground, no judge ever refusing to administer an oath in any useful case, altho he may not consider it as strictly judicial. If it may be valid or useful, he administers it ’ut valeat quantum valere potest that it may be worth as much as it can be worth’. But what is to be done? Would it not be well for you to send the case to the Attorney General, and get him to inclose his opinion to Governor Hull who will use it with Judge Witherall, or some territorial judge or justice? With the quarrel of Judge Vandeberg and his bar we cannot intermeddle. Mercer’s querulous letter is an unreasonable one. How could his offer of service be acted on but by putting it in the hands of those who were to act on all others?
I shall, to-day, direct the Post-rider not to continue his route to this place after to-day, and to take your orders as to the time you would wish him to continue coming to you. I salute you with affectionate esteem & respect.
DLC: Papers of James Madison.