Virginia, April 10, 1793. [i.e. 1798]
About the time, or soon after you left home for Congress last, a paper called “the petition of the subscribers, inhabitants of Amherst, Albemarle, Fluvanna and Goochland,” on the subject of a presentment of a grand jury in one of our Federal circuit courts, was presented to the Legislature of Virginia; which, from several circumstances attending it, was supposed to come from your pen. On hearing this opinion, which I thought an injurious, and I hoped an unfounded one respecting you, I had determined to write you a private letter, merely to inform you of its existence, that you might have it in your power to contradict it. But scarcely had I formed this determination before I was convinced, by almost positive proof, that the opinion was too well founded. I then resolved to point out in the most striking and public manner I could, the extreme impropriety of your having engaged in such a business while Vice-President of America, not only as the time it employed was supposed to affect your attendance on Congress at the commencement of its present session, but on the principles laid down in the petition itself.
Having often heard you declare that you never had, nor never would write any thing for public view which did not either bear your name or which you would not readily and openly avow, I cannot help reminding you of that declaration, as a source from whence I derive considerable hope, that the people at least of the district immediately concerned, who are not all possessed of the same testimony of the fact with myself, will be informed, whether or not you were the author of that petition: For although I candidly own, that your silence on the subject of the letter to Mazzei, was no actual deviation from that declaration, since it is not very difficult to conceive that that letter was not one of the things intended by you for public view, yet, you must admit, on the other hand, that a petition intended for the approbation or disapprobation of a whole district, and afterwards for the public consideration and discussion of the General Legislature of a whole state, falls directly and strictly within the right we have to expect a compliance with the conditions of the declaration above alledged.
Whatever may be your reasons for not rendering an answer to the enquiries of an individual citizen on the subject of your conduct, which no one would be more sorry than myself you were obliged to do, yet, you will not deny, I am sure, that the “sovereign people” at large, who have the appointing you, and to whose scrutiny your conduct is subject before the repetition of your election, have a right to know whenever you deviate from those principles on which they have heretofore appointed you. That the majority who elected you, was formed on the belief, that you would give to the government, that republican tone, so far as the exercise of your office could affect it, which it was intended to have, I suppose will not be contested. The American government, if it has a feature likely to become stronger, by its operation, than its republican one, that feature is to be found in the means placed, by the constitution, in the hands of that branch over which you preside. Consequently, much depends upon the conduct of the members of that body.
By the constitution of the United States, the representative part of our government is divided into three distinct parts: the immediate representatives of the people, who are invested solely with legislative powers; the Senate, who are a remove further from the people, and have a mixture of legislative, executive, and in some instances, judiciary authorities; and the President, or executive, in whose hand, among other things, is the nomination of all ministerial officers, a qualified negative over the acts of the other two grand departments of state. The Senate is the body who appoint those ministerial offices, or reject them under the nomination of the President. The senate have the sole power of trying all impeachments; and with the Chief Justice at their head, who they appoint and are the judges of the conduct of in turn, have the trying of the President himself, in case of impeachment. And two thirds of the Senate, in concurrence with two thirds of the House of Representatives, qualify the negative of the President, and render ineffectual, his voice, in the general legislature of the whole.
It is easy to be perceived then, how these different and complicated powers of that body, by a pretended attachment to the principles of republicanism, and a superior degree of attatchment to the rights and interests of the people, may be made to draw into its own vortex, swallow up, and destroy entirely all the powers and independence of all the other departments of government; and thereby produce in reality the reverse of such principles as is pretended. By holding over the head of the President the terror of rejecting his nominations, and thereby fixing on him the character of an enemy to their pretended principles; by shaping their decisions in matters of impeachment by the same pretended rule of patriotism and republicanism; and finally, by intriguing with the immediate representatives of the people; they may, not only destroy all the good which was intended by the President’s nomination of officers; render, the offices thus generated in party spirit and subject to their dismissal, the immediate tools of their projects, and destroy entirely the intended check of the negative of the President; but draw immediately under their feet, all the other departments, and thereby produce all those evil consequences complained of in the petition itself, which has caused this enquiry.
The Senate, sir, not being the immediate representatives of the people, but a refined body; removed from them by the appointment of their representatives in the State Legislatures; but few in number; and chosen for long periods; is to be considered, if there is an aristocratic feature in the formation of our government, of that description. And the influence of that thin and incomplete branch of representation over all the rest, produced by joining with one, and overawing others with the exercise of those various and complicated powers in the way already described, is the only mean by which the effects of aristocracy or an undue executive influence as it is called, is to be felt by the operation of our government in the way complained of.
The Federal Judges, it is to be remembered, owe their appointments immediately to the Senate; and, in case of impeachment are subject entirely to their decisions. If therefore, there be any real reason for apprehending danger from the interference of the executive over other departments, thro’ the medium of its influence over the judiciary, is there not reason for apprehending some danger from the interference and influence of the Senate in the same way? From the abundance of means, certainly in their hands, that body, I think, may be considered the strong and leading part of the government of the United States; and therefore are we led, when we hear so much of the existence of an aristocracy and aristocrats, the undue influence of the executive, &c. particularly from that body itself to turn our eyes there, as the only place where those things, in reality, can possibly exist. And although no such improper, such pretended patriotic attempts have yet been made, at least by two thirds of that body, to tyrannize over the President and the different ministerial branches of government, thereby to absorb the whole of their powers, control the representatives, and erect themselves into an oligarchic assembly; yet it naturally occurs to us, to enquire, from what we have already seen of the dispositions of the minority, what we are likely to be the consequences of the additional weight of an influential head thrown into the scale of their popular pretensions, by way of interference1 among the other departments of government,2 or the people, under the pretence of superior3 patriotism, a great love for liberty and the privileges of the representatives?
The President of the Senate, although he is not appointed directly in the same way with the other members of that body, is appointed in a way, which places him at the same distance, precisely, from the people, appointed immediately with the President, by the same electors being eventually subject to fill his place, and holding the same permanent situation, nearly, in the government with the Senators themselves; his interference in the other branches of government may be considered as falling under either head, of an executive or senatorial usurpation of power, or incroachment on their rights; and it matters not whether that interference be with the open and avowed intention of increasing those executive or senatorial powers, or cloathed in the more artful appearance of increasing the influence of a more popular branch; the effects, when we consider the unnatural course of power operating to the diminution of itself, in favour of a rival authority, it must be expected, will be the same.
And if sir, from the organization of the Senate and the unnatural expectation that men in power and long habituated to power, would enter into a voluntary diminution of that power to encrease the power of others, the reverse is most natural to be expected, does it not result, as naturally, that some danger is to be apprehended, when we behold the head of that body descending from his exalted station, to become the petition drawer, even of the people, to increase the privileges of another branch of government? It is principles, and not professions or men we have to look to for security, as the best of us are liable to deceive ourselves, and the worst are certain to endeavour to deceive others. If therefore, upon principle, it is wrong for the executive, through its influence over the judiciary, to intrude its controul over the representative privileges of the people, is it not, at least suspicious, for one, subject himself to constitute that executive, to intrude his interference, in the management of those popular privileges, in circumscription of those executive wrongs?
Even admitting the professions of such an one to be sincere, in contradiction to the natural propensities of all human nature, it is, in my humble conception, as improper for the representative branch to interfere in the affairs of the executive and judiciary, as it is for the executive and judiciary to interfere in the affairs of the representatives; and considerably more alarming for the head of that body, which holds such strong influences over both the executive and judiciary, to be found intriguing with that representative branch to overawe4 and control those other two. I have already observed, that it has been long easy to be perceived, from the formation of the government, how a Senate pretending an attachment to the principles of republicanism, and an increase of the right of the people, to the lessening of their own, by joining with the immediate representatives of the people, might work the whole of the powers of the government into their own hands, and thereby convert it into an aristocratic republic; but after the alarm of an aristocracy and aristocrats had been so loudly rung, it was hardly to have been expected, that, even amidst that frightful peal, we should have beheld an influential and important character of the only department where those things can ever possibly, in reality, exist, not only engaging with the representatives of the government to which he immediately belongs, but with the people at large, and the state legislatures, who elect the senators over whom he presides, to overawe all the other departments of government. Such an interference stops not at the erection of an aristocracy; it seems to be aiming at nothing less than the absolute grasp of of dictatorial authority itself!
Under this impression, and believing, as many others as well as myself do, that you were the author of the petition alluded to, I cannot do otherwise in justice to myself, and in candor to you, than lay before you those impressions; hoping thereby, if my ideas have been in any way unfounded, as candidly to be set right.
If it shall be asked, why I have thus particularly busied myself in a matter which so generally concerns all America?—I reply—that I am a member of that particular district, which, besides the general interest it has in all our public concerns, is, in my opinion, particularly disgraced in the composition of the petition itself. It is built, sir, I am sorry to say, upon a shameful, erroneous, and uncandid statement of facts; and what is worse, insults us by boldly presenting the falshood to view, as if we dare not, or cannot detect the fraud. The petition is founded on the idea of the Jury’s having presented all correspondence between the representative and constituent; and not only tending to render odious the act itself of such correspondence, but absolutely asserts, it has a tendency to interrupt all private intercourse even “between citizen and citizen.”—Whereas the presentment itself, which is placed in the very middle of those assertions, says, “the circular letters of several members of the late congress, and particularly letters with the signature of Samuel I. Cabell, endeavouring at a time of real public danger to disseminate unfounded calumnies against the happy government of the United States, and thereby to separate the people therefrom, & to increase or produce a foreign influence ruinous to the peace, happiness and independence of the United States.”
Whether these letters were of that description or not, or whether the jury had a right to judge of what description they were, I will confess, depends upon opinion; but whether the jury presented the act itself of letter-writing, between the representative and constituent, and even “between citizen and citizen,” is a matter of fact too plainly contradicted by the presentment itself, to insult the commonest understanding with an observation on. One remark, however, on the subject of the interference of the different branches of government with each other, here presents itself to view.
The petition states, that to put the representative in jeopardy of criminal prosecution, of vexation, expense, and punishment, before the judiciary, if his communications, private or public, do not exactly square with their ideas of right and fact, or with their designs of wrong, is to put the legislative department under the feet of the judiciary, &c.”—and again, “is to do away the influence of the people over the proceedings of their representatives, by excluding from their knowledge by the terror of punishment, all but such information, or misinformation, as may suit their views;”—and yet, the petition admits, that the judiciary are the proper judges of all the infractions of the laws; and certainly very properly too: The representatives being the passers of the laws, it certainly would be improper for them to undertake to judge of the infraction of those laws, or engage in the execution of them.
To determine whether a thing be an actual infraction of the laws, or a matter of opinion, is certainly itself a judicial, and not a legislative right; and to punish that act, if it be adjudged the former, is properly an executive, and not a representative function. The legislature having no power to judge or punish acts, except those relating immediately to the rights of their own body, and not those but in actual session, how is the simple fact to be decided, whether a communication from a representative to his constituent, or even to an enemy, which shall have come to light after his term of service has expired, is one of those communications, proper to be made, as containing only mere matters of opinion, or an actual infraction of the laws intended to produce treason and sedition? Will any one say that, because such communication flowed from the hand of a representative, it ought not to be judged of, and punished, if found improper? Suppose, for instance, a disappointed minority should set to work, to stir up the people to oppose the proceedings of the majority, or join the enemy (which seems to have been the opinion of the jury, in the case of the letters presented), and that endeavour should only have come to light after the term for which that minority were appointed had expired, is there no tribunal competent to decide, no authority left to punish such an outrage? And yet, if the courts and juries have no right to judge, and the executive to act upon their decisions, it is not very difficult to discern, that there are no authorities left to examine into and punish the most abominable attempts that may be made to destroy the peace, the safety and happiness of the country, provided those attempts come from those most capable of executing them,—the popular representatives of the people!
These, Sir, are not the mere air balloon speculations of a whimsical philosophy, the suggestions of malice, the workings of aristocracy, or the mere chimeras of a distempered imagination; but, the solid and substantial conclusions, resulting from the attempts already made in the senate, by those who are known to agree with you in every instance of your late political persuasions.
In the memorable case of your celebrated electioneering friend, William Blount, it will never be forgotten, that your political friend and adherent, Senator Tazewell, first objected to the expulsion of that worthy brother senator, because he could not be tried again upon an impeachment for the same offence; then, that he could not be tried on the impeachment; but by the introduction of a Jury into the Senate; which farcical doctrine, could it have found patriotic and republican advocates enough to have sustained it, would have been next met by your Virginia election5 doctrine, of the Jury’s having no right to interfere with the letters of our representatives; and consequently, that Mr. Blount’s offence, which was nothing more than just the writing of a little private letter to one of his constituents and friends was not to be punished. I will not suppose Sir, that these different patriotic doctrines have been started in different places and by different influential characters, for the valuable purpose of clearing that honourable and inestimable senator; but must leave it to those who have brought them forward to explain their strong appearances.
At any rate, whatever may have been the motives, the impropriety of the Vice President’s secretly imploying the people to attack the government he is sworn to support; or, what is worse, his secretly engaging with them, in petitioning the legislatures who appoint the senators over whom he presides, to interfere and aid him in abridging the powers of the other branches of the government in which he acts; and the proofs to establish the fact, are too strong, to admit of a justification for your remaining silent in the case.
On my own part, however severe may be the charge, and however unnecessary it may be to subscribe a name which could add no weight to the observations here submitted to the public, I now engage, when you shall have fulfilled your promise of never writing any thing for “public view that shall not be freely and openly avowed,” to render to you that name, as freely, as I shall now give you a fictitious one; Nay, more. Having never uttered a sentiment of any one in my life, which I would not be willing, and even chose to have communicated to them, under my real name if required, in the same way it was meant to be applied in any other, I now inform you, that my true name is with the editor of this paper for your private satisfaction, whilst I subscribe myself for public view (with all that difference and respect to which your real merits intitle you).
Your sincere friend and devoted partizan.
Printed in Porcupine’s Gazette, 28 Apr. 1798; at head of text: “To the Honourable Thomas Jefferson, Esq. Vice-President of America.”
“Americanus” had criticized TJ in a series of articles in the Virginia Gazette and General Advertiser in 1797. George Washington, in an 8 Mch. 1798 letter to Bushrod Washington, identified the “reputed author” of the pieces as “Mr Nicholas,” clerk of Albemarle County and “a respectable man; well disposed to the Government.” He was John Nicholas, Jr. (see Editorial Note to Jefferson’s Letter to Philip Mazzei, Vol. 29:76, 78; Washington, Papers, Ret. Ser., 2:129–30).
Petition: Petition to Virginia House of Delegates, printed under 3 August 1797 (Vol. 29:491–504).”
1. MS: “inteference.”
2. MS: “governmen.”
3. MS: “suporior.”
4. MS: “ouerawe.”
5. MS: “electition.”