From Thomas Jefferson to James Madison, [before 29 May 1805]
To James Madison
[before 29 May 1805]
I have made some small verbal changes on the following grounds
1. the law recognises the right of the sheriff to use his posse comitatus without consulting any body. it is only on his opinion that his posse is insufficient, that the act comes into his aid by authorising him to apply to a judge or justice for an order to an officer for a military force. the law allows him to make the application without consulting us, but then it submits him to our direction in the use of it: and we, taking advantage of that, say he shall not use it at all unless he has previously been advised by a governor or Mayor so to do. this is an additional precaution for preserving peace which the law permits us to prescribe when once the Govr. or Mayor has advised, the marshall is then1 to proceed with his armed force as the law directs, that is to say by demanding a surrender of the offender &c
RC (DLC: Madison Papers); undated; written on verso of a sheet addressed: “The President of the UStates”; addressed: “The Secretary of State.”
TJ was responding to Madison’s draft, not found, of instructions directed to federal marshals regarding the enforcement of a law “for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction,” passed 3 Mch. TJ’s changes reflected his belief that, in the event armed force became necessary during the execution of warrants on crew members of foreign vessels and timely consultation with the federal executive was impractical, local civil authorities should play a regulatory role. TJ subsequently received copies of Madison’s “Circular to the Marshals,” which was enclosed in a “Circular to the Governors of the Several States,” both dated 29 May (printed copies in DLC, with governors’ circular endorsed by TJ as received from the State Department on 7 June and “act preservn. peace in harbors” and so recorded in SJL; , 2:339-42; , 9:413-15).
1. Preceding three words interlined in place of “Mayor is.”