The National Gazette of Jany. 2 contained a publication, edited since in a pamphlet form; from two  sons of the late Mr. Bayard; its object being to vindicate the memory of their father agst. certain passages in the writings of Mr. Jefferson.

The filial anxiety which prompted the publication, was natural & highly commendable. But it is to be regretted, that in performing that duty, they have done great injustice to the memory of Mr. Jefferson, by the hasty & limited views taken of the evidence deducible from the sources to which they had appealed.

The first passage on which they found thus their charges is in the following words.

"February 12. 1801:—Edward Livingston tells me that Bayard applied to day or last night, to General Smith and represented to him the expediency of coming over to the States who vote for Burr; that there was nothing in the way of appointment which he might not command, and particularly mentioned the Secretaryship of the Navy. Smith asked him if he was authorized to make the offer. He said he was authorized. Smith told this to Livingston, and to Wilson Cary Nicholas who confirms it to me." &c. (see Jeffn’s Memoirs Vol. 4. p 52)

From this Statement it appears, that Mr. J--n was told by Mr. Livingston, that he had it from Genl. Smith that Mr. Bayard had applied to him (Genl. Smith) with an offer of a high appointment, if he would come over from the Jefferson party and join that of the rival Candidate for the Presidency. It appears that this information of Mr. Livingston was confirmed to Mr. Jefferson by Mr. W. C. Nicholas, who also said he had it from Genl. Smith: It appears that the communication thus made to Mr. Jefferson was reduced by him to writing on the day on which it was made; and that the incident which was the subject of it, took place on the morning of the same day, or at furthest on the night before. It is found also that what was in this case reduced to writing, made no part of what was first reduced to writing on 15 Apr. 1806; see vol 4 p. 520 but that it was then expressly referred to, as having been reduced to writing at the time.

Opposed to this memorandum of Mr. Jefferson is 1. the declaration of Mr. Livingston on the floor of the Senate of the U. S. after a lapse of about twenty nine years, "that as to the precise question put to him, (touching the application of Mr. Bayard to Genl. Smith) he must say that having taxed his recollection, as far as it could go, on so remote a transaction, he had no remembrance of it" implying that he might have had a conversation with Mr. Jefferson relating to the remote transaction, not within the scope of the precise question. 2. the declaration of Genl. Smith in the same place and after the same lapse of time "that he had not the most distant recollection that Mr. Bayard, had ever made such a proposition to him" adding "that he never received from any man, any such proposition".

On comparing these declarations made after an interval of so many years, with the statement of Mr Jefferson reduced to writing, at the time, it is impossible to regard them as proof, that communications were not made to him by Mr. Livingston & Mr. W. C. Nicholas, which he (Mr. J--n) understood to import that Mr. Bayard had made to Genl. Smith the application, as stated. And if Mr. Jefferson was under that impression, however erroneous it might be; his subsequent opinion and language in reference to Mr. Bayard are at once accounted for, without any resort to the imputations in the publication.

That there has been great error somewhere is apparent; that respect for the several parties requires it to be viewed as involuntary, must be admitted; that being involuntary, it must have proceeded from misapprehensions or failures of memory; that there having been no interval for the failure of the memory of Mr. Jefferson, the error, if with him, must be ascribed to misapprehension. The resulting question therefore is between the probability of misapprehensions by Mr. Jefferson, of the statements made to him at the same time by Mr. L. and Mr. N: and the probability of misapprehensions or failures of memory in some one or more of the other parties. And the decision of this question must be left to an unbiassed and intelligent public.

The other passage is at page 521. Vol: 4. of the Memoirs; and is as follows, under date of April 15. 1806. Referring to a previous conversation with Col. Burr he says—

"I did not commit these things to writing at the time but I do it now, because in a suit between him (Col. Burr) and Cheetham, he had a deposition of Mr. Bayard taken which seems to have no relation to the suit, nor to any other object than to Calumniate me. Bayard pretends to have addressed to me, during the pending of the Presidential Election in Feby. 1801, through Genl. Samuel Smith, certain conditions on which my election might be obtained; and that Genl. Smith after conversing with me gave answers for me. This is absolutely false. No proposition of any kind was ever made to me on that occasion by Genl. Smith, nor any answer authorized by me; and this fact Genl. Smith affirms at this moment."

The reply given to this memorandum by the authors of the publication is a reference to the Depositions of Mr. Bayard & Genl. Smith in the cause of Gillespie & Smith.

It appears that Mr. Jefferson attending merely to the matter of Mr. Bayards deposition, did not distinguish between the suit of Burr & Cheetham, and that of Gillespie & Smith; in the latter of which the deposition of Genl. Smith as well as that of Mr. Bayard was taken.

The part of the deposition of Mr. Bayard referred to by Mr. Jefferson, is as follows:

"I (Mr. B.) told him (Genl. Smith) I should not be satisfied, nor agree to yield, till I had the assurance from Mr. Jefferson himself; but that if he Genl. Smith would consult Mr. Jefferson, and bring the assurance from him, the election should be ended. The Genl. made no difficulty in consulting Mr. J--n: and proposed giving me his answer in the next morning. The next day upon our meeting; Genl. S. informed me that he had seen Mr. J-- and stated to him the points mentioned; and was authorized by him to say that they corresponded with his views & intentions; and that we (Mr B &c) might confide in him accordingly. The opposition of Vermont &c &c was immediately withdrawn & Mr. Jefferson was made President by the Vote of ten States."

Here it is explicitly stated, on the authority of Genl. Smith that an assurance in the nature of a pledge, was authorized by Mr Jefferson to be given to Mr. Bayard that he, (Mr. Jefferson) would conform to the conditions on which his election was to be obtained.

The terms used by Mr Jefferson in denouncing the fact deposed by Mr Bayard are accounted for by the odious light in which it presented itself, by his consciousness that he had never authorized it, by the impressions unfavorable to Mr. Bayard which had been made upon him by the information, as he understood it, given him by Mr. Livingston & Mr. Nicholas and especially by the denial of the fact by Genl. Smith at the moment.

Certain it is that there is a direct contrariety between the deposition of Mr. Bayard & the memorandum of Mr. J--n involving a question between Genl Smith, and Mr. Bayard on the one hand, and between Mr. J--n & Genl. S. on the other.

That Mr. B. understood Genl. Smith to have borne an authorized pledge from Mr. J--n is attested by the fact that he proceeded forthwith to execute the purpose of which such a pledge was the condition.

Passing to the deposition of Genl. Smith, given 12 days after that of Mr. Bayard & on the same day on which the memorandum of Mr. J--n is dated, let it be seen what light is furnished by that document.

The assertion of Mr. Jef–n in the memorandum is that no proposition of any kind was ever made to him, nor any answer authorized by him, and this fact Genl. S. affirms to me at this moment.

In accordance with this assertion of Mr. J--n and confirmation by Genl. Smith is the passage in the deposition of Genl. S. which declares "that he knew of no bargains or agreements, which took place at the time of the balloting," and the other passage which states "that he (Mr. J--n) had told me (Genl. S) "that any opinion he should give at this time might be attributed to improper motives. That to me (Genl. Smith) he had no hesitation in saying that as to the public debt &c. &c. he had not changed his opinion &c &c." This was so far from authorizing any use of what he said that might be attributed to improper motives, that it was expressed as between themselves, and consequently with a view to guard agst. any such use.

The passage in the deposition of Gen. Smith on which particular reliance seems to be placed, as contradicting the Statement of Mr. Jefferson is the following:

"He (Mr. B.) then stated that he had it in his power (and was so disposed) to terminate the election, but he wished information as to Mr. Jefferson’s opinions on certain subjects, and mentioned (I think) the same three points already alluded to as asked by Col: Parker and General Dayton, and received from me the same answer in substance (if not in words) that I had given to General Dayton. He added a fourth, to wit: What would be Mr. Jefferson’s conduct as to the public officers? He said he did not mean confidential officers, but, by way of elucidating his question, he added, such as Mr. Latimer of Philadelphia, and Mr. McLane of Delaware. I answered that I had never heard Mr. Jefferson say any thing on that subject. He requested that I would inquire, and inform him the next day. I did so. And the next day (Saturday) told him, that Mr. Jefferson had said that he did not think such officers ought to be dismissed on political grounds only, except in cases where they had made improper use of their offices, to force the officers under them to vote contrary to their judgments. That as to Mr. McLane, he had already been spoken to in his behalf by Major Eacleston, and from the character given him by that gentleman, he considered him a meritorious officer, of course that he would not be displaced, or ought not to be displaced. I further added that Mr. Bayard might rest assured (or words to that effect) that Mr. Jefferson would conduct as to those points agreeably to the opinions I had stated as his. Mr. Bayard then said, we will give the vote on Monday, & we separated."

Here it is to be observed that Genl. Smith does not say that he had made any proposition to Mr Jefferson; or that he should communicate to Mr. B. the conversation then held with Mr. J--n.

The expression having most the aspect of a pledge is, "he (Mr. J--n) considered him (Mr. McLane) a meritorious officer, of course that he would not, be displaced, or ought not to be displaced &c"

It can not be denied that the phrase admits the construction that, "of course &" was a continuation of what was said by Mr J--n, not the inference of Genl. Smith. But to construe the expression as conveying a pledge from Mr. J. is forbidden by 1. by the declaration of Genl. S. in the same deposition, that he (Genl. S) knew of no bargains or agreements, which took place at the time of the balloting. 2. by the caution of Mr. J--n, as stated by Genl. Smith, in expressing even his opinions at a time when they might be attributed to improper motives. 3. by the confirmation given by Genl. S. to Mr. Jefferson’s denial of the fact that any proposition of any kind was ever made to him on any occasion by Genl. Smith, or any answer authorized by him (Mr. J--n)

It is true that Mr. Bayard, as already observed must have understood Genl. Smith in this conversation as meaning that he was authorized by Mr. Jefferson to say "that the points mentioned (the conditions made by Mr. B) corresponded with his (Mr. J--n’s) views and intentions. But whether this discrepancy is to be explained by misapprehensions at the time, or by the lapse of nearly five years, the explanation can not invalidate the positive denial of Mr. J--n that any such authority was given to general S. and his affirmance of the denial, at the moment when it was put into the memorandum by Mr. J--n.

It can never be admitted that the authority of the deliberate statement of Mr. J--n, is impaired by its being without the santion of any oath. Apart from its intrinsic sufficiency, no one can doubt that such a sanction would readily have been added on any occasion calling for it; and with the greater confidence as the fact sworn to would have been reduced to writing at the time; an advantage always duly estimated in cases depending on the accuracy of recollection

The situation of Mr. J--n during the critical period of the Presidential contest in the House of Representatives, was equally marked by its peculiarity, and its importance. He saw the whole Government in a State of convulsion; he saw the danger of an absolute interregnum in its Executive branch, the consequences of which could not be foreseen; he saw what he regarded as the will of the people about to be trampled upon, and the party whose ascendancy he beleived to be of vital importance to the cause of Republican government attempted to be broken down; whilst the escape from all these dangers presented to him was thro’ pledges which might be stigmatized as an ambitious intrigue and a purchase of success at the expence of those principles and feelings which he had avowed and held inviolable. Happily the course of circumstances fulfilled his patriotic wishes without the sacrifice which the accomplishment of them had seemed to require.

The situation of Mr. Bayard was also peculiar and trying. He was justly struck with horror at the prospect of an interregnum in the Government so full of evils, and so fatal in its example; and he was scarcely less alarmed at the danger which threatened what he held to be a vital policy of his Country. But holding at the same time, in his hands, the event on which every thing depended he availed himself of the opportunity of terminating the crisis in a manner which prevented the calamity he most dreaded, and provided as he beleived an adequate security against the other.

Before dismissing the subject a word may be proper with respect to the charge in the publication against Mr. Jefferson of leaving the memorandum referring to Mr. Bayards deposition for posthumous use, when the means of refuting it might be lost.

The suit of Gillespie and Smith which led to the deposition of Mr. Bayard is said to have been a fictitious one, instituted for the purpose of obtaining and perpetuating testimony against the purity of Mr. Jefferson’s conduct during the presidential election in 1801. The cause it is understood never was brought to trial; and it is inferred from the resort to the sources which furnished the copies of the depositions of Mr. Bayard and General Smith, that the depositions were never published. Of their existence however (and in a custody supposed by Mr. Jefferson to be unfriendly) and of the passage in that of Mr. Bayard testifying that he (Mr. Jefferson) has authorized Genl. Smith to accede for him to certain conditions on which his election to the presidency might be obtained. Mr. Jefferson it seems was apprized from some friendly quarter. With this Knowledge of a shaft that might posthumously inflict a deep wound on his reputation, could he do less than provide a shield against it by recording with his own hand, the falsity of the charge, and the affirmance of its falsity at the moment of his doing so, by the individual named as the authority for the charge. What is now before the public proves that a weapon was in reserve by which a posthumous assault on his reputation might be made, and if there be unfairness in the case let candor pronounce on which side it is chargeable, on that of Mr. Jefferson or that not of the deponents (doubtless involuntary) but of the parties to the suit which rendered the precaution necessary.