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From James Madison to Thomas Jefferson, 5 August 1797

To Thomas Jefferson

Orange Aug. 5. 1797

Dear Sir

Yours of the 3d. arrived safe yesterday. I will converse with Col. Monroe, as you desire, on the subject of his letter to you, & listen to all his reasons for the opinion he gives. My present conviction is opposed to it. I have viewed the subject pretty much in the light you do. I consider it moreover as a ticklish experiment to say publickly yes or no to the interrogatories of party spirit. It may bring on dilemmas, not to be particularly foreseen, of disagreeable explanations, or tacit confessions. Hitherto the Precedents have been the other way. The late President was silent for many years as to the letters imputed to him, and it would seem, deposited in the office of State only, the answer which the zeal of the Secretary communicated to the public.1 Mr. Adams has followed the example with respect to Callendar’s charge, probably well founded, of advising the extermination of the Tories.2 Col. M. thinks that honest men would be encouraged by your owning & justifying the letter to Mazzei. I rather suspect it would be a gratification & triumph to their opponents; & that out of the unfixed part of the Community more converts would be gained by the popularity of Gen: Washington, than by the kind of proof that must be relied on against it.

Wishing to return the “Petition &c” to your Court as you recommend, I must be brief on that subject. It is certainly of great importance to set the public opinion right with regard to the functions of grand juries, and the dangerous abuse of them in the federal Courts: nor could a better occasion occur. If there be any doubts in the case, they must flow from the uncertainty of getting a numerous subscription, or of embarking the Legislature in the business. On these points the two gentlemen you mean to consult can judge much better than I can do. The Petition in its tenor, cannot certainly be mended. I have noted with a pencil, the passages wch. may perhaps be better guarded agst. cavil.

(1) The term “appoint,” strictly taken includes the Senate, as well as Executive.3

(2) Is it true that the foreign members of the late Grand-jury, lie under all the defects ascribed to them? I am a stranger even to their names.4

(3) “within the same” Does not impeachment extend to crimes committed elsewhere, by those amenable to our laws?5

(4) “such as resided within the American lines during the whole war.” Wd. not this apply to persons who came here during the war, & were faithful, to the end of it. Gallatin is an example. Would such a partial disfranchisement of persons already naturalized be a proper precedent? The benefit of stating the evil to the public might be preserved & the difficulty avoided, by confining the remedy to future naturalizations, or by a general reference of it to the wisdom of the Legislature. This last may be a good expedient throughout the Petition, in case the assembly cannot be relied on to adopt the specific remedies prayed for.6

(5) This change is, to avoid the term “expressly” which has been a subject of controversy, and rather decided agst. by the public opinion.7

Your letter of the 24 has come to hand since mine by Mr. B. It is so much our inclination to comply with its invitations that you may be assured it will be done if any wise practicable. I have engagements, however, on hand of sundry kinds which forbid a promise to myself on that head. The situation of my health may be another obstacle. I was attacked the night before last, very severely by something like a cholera morbus or bilious cholic, of which, tho’ much relieved, I still feel the effects, and it is not quite certain what turn the complaint may take. Adieu affecly.

Js. Madison Jr

RC (DLC). Docketed by Jefferson, “recd. Aug. 7.”

1JM referred to a series of letters supposedly written by George Washington that were published in London in 1777 and republished in Philadelphia in 1795. As one of his last official acts as president, Washington wrote a letter to the secretary of state on 3 Mar. 1797 disowning the forgeries. Washington made no mention of publishing the letter and asked only that it be deposited in the State Department. Pickering gave no reason for releasing the letter to the newspapers (Letters from General Washington to Several of His Friends, in June and July, 1776 [Philadelphia 1795; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 28969]; Worthington Chauncey Ford, ed., The Spurious Letters Attributed to Washington [Brooklyn, 1889], p. 26; both Washington’s letter and Pickering’s covering letter of 9 Mar. 1797 are printed in the Philadelphia Gazette of the U.S., 10 Mar. 1797).

2James Thomson Callender in his American Annual Register … for the Year 1796 (Philadelphia, 1797; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 31905), pp. 234–35, quoted from a letter in which Adams wrote that the Tories in London and America “might have been stopt on your side, if the executive officers had not been too timid in a point which I so strenuously recommended at first, namely, to fine, imprison, and hang all inimical to the cause without favour or affection” (John Adams to Thomas Cushing, 15 Dec. 1780, as printed in the Annual Register … for the Year 1781, pt. 1, p. 259).

3See Jefferson to JM, 3 Aug. 1797, n. 5. Jefferson had originally noted that grand jurors were selected by government officers appointed by the executive branch, forgetting the part played by the Senate in “advising and consenting” to executive nominations. Jefferson changed “appointed” in the draft to “nominated” in the final version (“Petition to Virginia House of Delegates,” Aug. 1797, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 7:161).

4Jefferson maintained that grand juries were often composed of “foreigners, of foreign attachments and interests, and little knowledge of the laws they are most improperly called to decide on.” On this point, Jefferson ignored JM’s call to moderate his language (ibid., 7:161).

5Jefferson had originally written that the jurisdiction of the Virginia House of Delegates extended to all persons “within the same.” On JM’s advice, Jefferson substituted “within its limits” for the above phrase and thus broadened the definition of the House’s jurisdiction (ibid., 7:162).

6Jefferson eliminated the phrase “such as resided within the American lines during the whole of the late revolutionary war,” replacing it with “such as were citizens at the date of the treaty of peace which closed our revolutionary war.” By so doing, Jefferson ignored JM’s larger point that by calling for specific remedies for the ills enumerated, Jefferson was restricting the General Assembly to a vote on those remedies rather than leaving the door open to a possible negotiated solution of their own devising (ibid., 7:163).

7Jefferson changed the phrase “expressly given,” replacing it with “enumerated in the grant” (ibid., 7:164). For JM’s rationale for excluding “expressly,” see The Federalist No. 44 (PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 10:423).

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