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To James Madison from Thomas Jefferson, 3 August 1797

From Thomas Jefferson

Editorial Note

One of the documents Jefferson enclosed in his letter to JM of 3 August 1797 was a draft petition in response to a federal circuit court grand jury presentment handed down in Richmond 22 May. The presentment, issued on a charge given by Judge James Iredell, condemned Samuel J. Cabell and other United States representatives for writing circular letters that endeavored “at a time of real public danger, to disseminate unfounded calumnies against the happy government of the United States” (Richmond Va. Gazette, 24 May 1797).

The grand jury proceeding led to an outburst of criticism in Virginia and elsewhere. Cabell attacked Iredell’s charge to the jury, writing that judges “seem to be making use of their power and influence both personally and officially to control the freedom of individual opinion.” Henry Tazewell agreed, writing to JM that “the Court & the Jury seem to have erected themselves into a tribunal of political Censors, and to have made their own opinions the standard of Truth.” A Marylander waxed poetic in a letter to Jefferson: “Whenever it shall be recognized as a constitutional doctrine that every Man is to be branded as an enemy to his Country who shall dare to speak or write with freedom on Men & measures the fair Fabric which has been erected at so great an expence of blood & Treasure will be erased and the freedom and independance of these United States vanish like mists before the morning Sun” (Philadelphia Aurora General Advertiser, 6 June 1797; Tazewell to JM, 4 June 1797; Peregrine Fitzhugh to Jefferson, 20 June 1797 [DLC: Jefferson Papers]).

Jefferson thought it dangerous to let the attack on the circular letters go unanswered, especially since Cabell was the representative for Jefferson’s own district. His petition focused on the right of representatives to communicate freely with their constituents; such communications “should of right, as of duty also, be free, full, and unawed by any.” To allow the judiciary to interpose itself between an elected official and the people, he wrote, would destroy the separation of powers and restrict the flow of information necessary to an informed electorate. But, more importantly, “the right of free correspondence between citizen and citizen … is a natural right of every individual citizen … placed originally under the protection of our municipal laws.” Because the state was the guardian of civil liberties, Jefferson believed it fell to the House of Delegates to impeach and punish the jurors who had brought the presentment (Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:158, 161–62).

JM, who saw the petition on 4 August, made a few suggestions but felt, on the whole, that “its tenor, cannot certainly be mended.” He did criticize Jefferson’s attacks on naturalized citizens sitting on grand juries, reminding him of the number of Republicans, like Albert Gallatin, who would be disenfranchised by precipitate action on that point. When James Monroe read the petition in early September, he suggested that by having recourse to the Virginia legislature, Jefferson would establish a principle that would “make all the members of the national govt., by a code of crimes & punishmts. amenable to State tribunals,” a measure that was surely unwise (JM to Jefferson, 5 Aug. 1797; Monroe to Jefferson, 5 Sept. 1797, Hamilton, Writings of Monroe description begins Stanislaus Murray Hamilton, ed., The Writings of James Monroe … (7 vols.; New York and London, 1898–1903). description ends , 3:85).

If the implication of Monroe’s argument was that the petition should go to Congress, Jefferson rejected it on pragmatic grounds. Sending the petition to the United States House of Representatives, he wrote, “would make bad worse,” since a majority would probably approve the presentment against Cabell. But more to the point, Cabell’s privilege as a member of the House was not the issue. In this context Jefferson advanced the argument that the right of free communication among citizens was a “natural right” and “not the gift of any municipal law.” To the contrary, “it is one of the objects for the protection of which society is formed & municipal laws established.” The wrong was against Cabell’s constituents and thus a matter for the state government (Jefferson to Monroe, 7 Sept. 1797 [DLC: Jefferson Papers]).

The petition circulated among the three men until the end of October 1797. The combined efforts of JM and Monroe succeeded in eliminating from the final draft the call for impeaching members of the grand jury, and the petition was introduced into the House of Delegates on 19 December. Committed to a debate in a Committee of the Whole House on 27 December, it was postponed for a day. The resolution, which included a provision to print and distribute a thousand copies at public expense, was debated the next day and passed, 92–53 (Monroe to Jefferson, 20 Oct. 1797 [DLC: Jefferson Papers]; JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia, Begun and Held at the Capitol, in the City of Richmond. Volumes in this series are designated by the month in which the session began. description ends , Dec. 1797 [Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 34936], pp. 40–41, 59–60, 61–64).

The resolution admonished the members of the grand jury but made no provision for action against them. The resolution was never passed on to the upper house for action, nor was an indictment ever returned against Cabell. But, although the matter sank out of sight when the furor over the XYZ affair erupted in the spring of 1798, the question of what constituted free speech would resurface during the continuing debate over the Alien and Sedition Acts.

(Secondary sources used for this note: Malone, Jefferson and His Time description begins Dumas Malone, Jefferson and His Time (6 vols.; Boston, 1948–81). description ends , 3:334–37; Beeman, The Old Dominion and the New Nation, pp. 170–72; Ammon, James Monroe, pp. 170–71; Cunningham, Circular Letters of Congressmen, 1:xxxvi–xxxix; Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” WMQ description begins William and Mary Quarterly. description ends , 3d ser., 5 [1948]: 152–53; Leonard W. Levy, Emergence of a Free Press [New York, 1985], pp. 276–78.)

Monticello Aug. 3. 97.

Th: J. to J. M.

I scribbled you a line on the 24th. Ult. It missed of the post and so went by a private hand. I perceive from yours by mr. Bringhurst that you had not recieved it. In fact it was only an earnest exhortation to come here with Munroe, which I still hope you will do.1 In the mean time I inclose you a letter from him,2 and wish your opinion on it’s principal subject. The variety of other topics, the day I was with you, kept out of sight the letter to Mazzei imputed to me in the papers,3 the general substance of which is mine, tho’ the diction has been considerably varied in the course of it’s translations from English into Italian, from Italian into French & from French into English. I first met with it at Bladensburgh, and for a moment concieved I must take the field of the public papers: I could not disavow it wholly, because the greatest part was mine in substance tho’ not in form. I could not avow it as it stood because the form was not mine, and in one place the substance very materially falsified. This then would render explanations necessary; nay it would render proofs of the whole necessary, & draw me at length into a publication of all (even the secret) transactions of the administration while I was of it; and embroil me personally with every member of the Executive, with the Judiciary, and with others still. I soon decided in my own mind to be entirely silent. I consulted with several friends at Philadelphia, who, every one of them, were clearly against my avowing or disavowing, & some of them conjured me most earnestly to let nothing provoke me to it. I corrected in conversation with them a substantial misrepresentation in the copy published. The original has a sentiment like this (for I have it not before me) ‘they are endeavoring to submit us to the substance as they already have to the forms of the British government.’ meaning by forms the birth-days, levees, processions to parliament, inauguration pomposities &c but the copy published says ’as they have already submitted us to the form of the British[’] &c making me express hostility to the form of our government, that is to say to the constitution itself. For this is really the difference of the word form, used in the singular or plural in that phrase in the English language. Now it would be impossible for me to explain this publicly without bringing on a personal difference between Genl. Washington & myself, which nothing before the publication of this letter has ever done. It would embroil me also with all those with whom his character is still popular, that is to say nine tenths of the people of the US. And what good would be obtained by my avowing the letter with the necessary explanations? Very little indeed in my opinion to counterbalance a good deal of harm. From my silence in this instance it can never be inferred that I am afraid to own the general sentiments of the letter. If I am subject to either imputation it is to that of avowing such sentiments too frankly both in private & public, often when there is no necessity for it, merely because I disdain every thing like duplicity. Still however I am open to conviction. Think for me on the occasion and advise me what to do, and confer with Colo. Monroe on the subject. Let me entreat you again to come with him. There are other important things to consult on. One will be his affair.4 Another is the subject of the petition now inclosed you to be proposed to our district on the late presentment of our representative by the Grand jury.5 The idea it brings forward is still confined to my own breast. It has never been mentioned to any mortal, because I first wish your opinion on the expediency of the measure. If you approve it, I shall propose to P. Carr or some other to father it, and to present it to the counties at their General muster. This will be in time for our assembly. The presentment going in the public papers just at the moment when Congress was together produced a great effect both on it’s friends & foes in that body, very much to the disheartening & mortification of the latter. I wish this petition, if approved, to arrive there under the same circumstance to produce the counter-effect so wanting for their gratification. I could have wished to recieve it from you again at our court on Monday,6 because P. Carr, & Wilson Nicholas will be there and might also be consulted and commence measures for putting it into motion. If you can return it then with your opinion and corrections7 it will be of importance. Present me affectionately to mrs. Madison & convey to her my intreaties to interpose her good offices & persuasives with you to bring her here, and before we uncover our house, which will yet be some weeks. Salutations & Adieu.

RC and first enclosure (DLC); FC (DLC: Jefferson Papers). For first enclosure, see n. 2. For second enclosure, see n. 5.

1After a short visit by the Monroes to Montpelier at the end of August, the Madisons accompanied them to Monticello. JM and his wife were Jefferson’s guests during the first week of September 1797 before returning home to host Dolley Madison’s mother and sisters and the comte de Volney (Dolley Madison to Mary Eliza Coles, 7 Sept. 1797 [ViU: Carter-Smith Family Papers]; Jefferson to John Francis Mercer, 5 Sept. 1797, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:171).

2Monroe to Jefferson, 12 July 1797 (2 pp.; docketed by Jefferson, “recd. July 31”). The letter discussed Monroe’s conversations in New York and Philadelphia with Hamilton about the Reynolds affair; it also urged Jefferson to acknowledge publicly his controversial letter to Philip Mazzei (Hamilton, Writings of Monroe description begins Stanislaus Murray Hamilton, ed., The Writings of James Monroe … (7 vols.; New York and London, 1898–1903). description ends , 3:69–70).

3Jefferson’s private letter to Philip Mazzei (24 Apr. 1796) had been published in the Philadelphia newspapers in early May (Gazette of the U.S. and Porcupine’s Gazette, 4 May 1797; Aurora General Advertiser, 5 May 1797) and read by Jefferson on his way to Philadelphia for the first session of the Fifth Congress. The letter was denounced by Federalists as “treasonable,” and pressure was placed on Jefferson to avow or disavow it. For a discussion of the letter and the furor that surrounded its publication, see Malone, Jefferson and His Time description begins Dumas Malone, Jefferson and His Time (6 vols.; Boston, 1948–81). description ends , 3:302–7.

4See JM to Jefferson, 24 Aug. 1797, and n. 3.

5The editors have been unable to locate or reconstruct the draft of the petition JM received. It is unlikely that JM saw the first version of the petition (DLC: Jefferson Papers)—crudely drawn and messy as it is. The final draft (ibid.) already includes the several substantive points that Jefferson incorporated into the petition according to the suggestions in JM’s letter of 5 Aug. 1797. Thus JM must have seen another version that can be placed chronologically between the two—a version that apparently has not survived.

The petition protested the interference of the judiciary in the free exchange of ideas between a representative and his constituents. It recognized the exchange to be so important that specific safeguards had been designed to preserve its special character, among them legislative privilege and the frank. The right of communication, “deemed sacred under all the forms in which our government has hitherto existed,” had been violated by the presentment against Samuel J. Cabell. And the actions of the grand jury had contravened the separation of powers by allowing the judiciary to control actions of the legislative branch (Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:158–64).

6The next session of the Albemarle County court, fixed for the first Monday of every month, was 7 Aug. 1797 (Moore, Albemarle: Jefferson’s County, pp. 160–61).

7Jefferson interlined “and corrections” on the RC but not on the FC.

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