To Christopher Clark
Poplar Forest Oct. 2.
Th: Jefferson to mr Clarke.
Reflecting on the case of mr Robertson, which I think a very cruel one, a doubt has occurred to me, which probably has to you also; but lest it should not, I will suggest it. I do not think that information, given in to a grand jury (even if it were false) is perjury in law. a grandjury is no magistracy, no tribunal, has not therefore the power of administering an oath. it is a body merely for enquiry and accusation. they can try nothing. they are merely to say that they have reason to believe that A.B. has committed an illegal act, and that he ought to be put on his defence before a tribunal which can try him. they are formed into a body, that they may fear nothing either for themselves or those who give information to them, & therefore they are sworn to keep their proceedings secret, that the individual among themselves, or who gives them information may not be known or exposed to the enmity or persecution of another. Blackstone (for I have no other law book here) defines perjury, from Ld Coke, to be an offence ‘when the suit is past it’s commencement, and come to trial.’ but the information given to a grandjury is before any suit is commenced. it is an affidavit given out of court, and relating to nothing in court. Blackstone says further that the matter sworn must be ‘material to the issue’; but here is no issue joined, nor as yet any proceeding in court determined on; it is as yet entirely extrajudicial.—again, how does the information of mr Robertson become known? by the disclosure of a grandjuror of course. then that grandjuror is perjured, for he was1 sworn in court not to disclose the transactions before them, and this is specially intended for the safety & assurance of the individual, whether one of themselves or a witness who gives information. it is a high misprision in him for which he ought to be fined & imprisoned. 4. Black. 126. and can that disclosure, which is itself an act of perjury, fix perjury on another[?] does it not destroy itself and render itself null, as being an oath against an oath? the grandjuror, I am sure, has done this unwittingly. so did mr Robertson. both have been unguarded, and said or done what neither meant. mr Robertson was asked a question the true answer to which would have accused himself, and the law authorised him to say ‘I know nothing of it which you have a right to require me to say, and therefore to you, in your office, I have a right to say I know nothing about it.’ with this paraphrase & explanation, what he said was true, and to the grandjuror, immediately after when out of his official character, he gave this very explanation, which proved the sense in which he gave the answer to him officially. the grandjuror has need of much more paraphrase & explanation to exculpate himself. he can only say that in making the disclosure he had forgotten the oath of secresy he had just taken and was breaking by that disclosure. the oath says further that they will present no one thro malice. is this presentment clear of that ingredient? I am sorry mr Robertson permits this persecution to afflict him. his whole life as well as the impossibility of any rational motive in this case,2 has given it the lie, and proved it calumnious; and I am persuaded he will find that the interest it has excited in his behalf will increase the attachment of his friends, and place him on firmer ground than he occupied before. nor is it possible to fear any thing from our judges or jurors. their character in our country is the reverse of straining constructions to infer guilt. the difficulty with us is how to bring the guilty to punishment, and not how to oppress the innocent; and whatever a grandjury may think itself obliged to do, as hearing but one side, I have no fear but that our judges & jurors, hearing both sides, and combining with the formal testimony, the evidence of circumstances, characters & motives, will prove the light in which the prosecution is held. a perfect confidence myself in the character of mr Robertson & a supposition that you are his counsel, have induced me to hazard these suggestions, to which I will only add my friendly salutns.
P.S. surely no Grandjuror would yield to be examd on the trial as to what passed before the grandjury, because he would be forsworn; nor would a judge in his discretion permit a witness to forswear himself even if he were so disposed.
PoC (DLC); partially dated; edge trimmed; ink stained, with obscured word rewritten by TJ; postscript written perpendicularly in left margin of first page; endorsed by TJ as a letter of 2 Oct. 1816 and so recorded in SJL.
mr robertson was most likely the Lynchburg merchant Archibald Robertson, the only correspondent of TJ’s with that surname living near Poplar Forest. William Blackstone defines perjury in his Commentaries on the Laws of England (Oxford, 1765–69; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 1806–7; Poor, Jefferson’s Library description begins Nathaniel P. Poor, Catalogue. President Jefferson’s Library, 1829 description ends , 10 [no. 553]), 4:136–7. In doing so he drew on Edward coke, The Third Part of the Institutes of the Laws of England (London, 1644; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 1784), chap. 74. 4. black. 126: Blackstone, Commentaries, 4:126.
1. Manuscript: “was was.”
2. Preceding twelve words interlined.
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