Monticello Apr. 20. 07.
Your favor of the 6th. on the subject of Burr’s offences was recieved only 4. days ago. that there should be anxiety & doubt in the public mind in the present defective state of this proof is not wonderful; and this has been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of 2000. miles from Maine to Orleans. the federalists too give all their aid, making Burr’s cause their own, mortified only that he did not separate the union or overturn the government, & proving that had he had a little dawn of success they would have joined him to introduce his object, their favorite monarchy, as they would any other enemy, foreign or domestic, who could rid them of this hateful republic for any other government in exchange. the first ground of complaint was the supine inattention of the Administration to a treason stalking through the land in open day. the present one that they have crushed it before it was ripe for execution, so that no overt acts can be produced. this last may be true; tho’ I believe it is not. our information having been chiefly by way of letter, we do not know of a certainty yet what will be proved. we have set on foot an enquiry through the whole of the country which has been the scene of these transactions, to be able to prove to the courts, if they will give time, or to the public by way of communication to Congress, what the real facts have been. for obtaining this we are obliged to appeal to the patriotism of particular persons in different places, of whom we have requested to make the enquiry in their neighborhood, and on such information as shall be voluntarily offered. aided by no process or facilities from the federal courts, but frowned on by their new born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender. of treasonable intentions the judges have been obliged to confess there is probable appearance. what loophole they will find in it, when it comes to trial, we cannot foresee. Eaton, Stoddert, Wilkerson, and two others whom I must not name, will satisfy the world, if not the judges, on that head. and I do suppose the following overt acts will be proved 1. the enlistment of men, in a regular way. 2. the regular mounting of guard round Blannerhasset’s island when they expected Govr. Tiffin’s men to be on them, modo guerrino arraiati. 3. the rendezvous of Burr with his men at the mouth of Cumberland. 4. his letter to the acting governor of Misipi, on holding up the prospect of civil war. 5. his capitulation regularly signed with the aids–of the governor, as between two independant & hostile commanders. but a moment’s calculation will shew that this evidence cannot be collected under 4. months, probably 5. from the moment of deciding when & where the trial shall be. I desired mr Rodney expressly to in inform the Chief justice of this, inofficially. but mr Marshal says ‘more than 5. weeks have elapsed since the opinion of the Supreme court has declared the necessity of proving the overt acts, if they exist. why are they not proved?’ in what terms of decency can we speak of this? as if an express could go to Natchez or the mouth of Cumberland & return in 5. weeks, which has never taken less than twelve. again ‘if in Nov. or Dec. last a body of troops had been assembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March.’ but I ask the judge where they should have been lodged? at Frankfort? at Cincinnati? at Nashville? St. Louis? Natchez? New Orleans? these were the probable places of apprehension & examination. it was not known at Washington till the 26th. of March that Burr would escape from the Western tribunals, be retaken & brought to an Eastern one: and in 5. days after (neither 5. months nor 5. weeks as the judge calculated) he says it is ‘impossible to suppose the affidavits could not have been obtained.’ where? at Richmond he certainly meant, or meant only to throw dust in the eyes of his audience. but all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic. ‘I understand, sais the judge, probable cause of guilt to be a case made out by proof furnishing good reason to believe’ &c. speaking as a lawyer, he must mean legal proof, i.e. proof on oath at least. but this is confounding probability and proof. we had always before understood that where there was reasonable ground to believe guilt, the offender must be put on his trial. that guilty intentions were probable, the judge believed. and as to the overt acts, were not the bundle of letters of information in mr Rodney’s hands, the letters and facts published in the local newspapers, Burr’s flight, & universal belief or rumor, of guilt probable ground for presuming the facts of enlistment, military guard, rendezvous threat of civil war, or capitulation, so as to put him on trial? is there a candid man in the US. who does not believe some one, if not all, of these overt acts to have taken place?
If there ever had been an instance in this or the preceding administrations of federal judges so applying principles of law as to condemn a federal, or acquit a republican offender, I should have judged them in the present case with more charity. All this however will work well. the nation will judge both the offender, & judges for themselves. if a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him. they will see then & amend the error in our constitution which makes any branch independant of the nation, they will see that one of the great co-ordinete branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the constitution, and are themselves protected in it by the constitution itself: for impeachment is a farce which will not be tried again. if their protection of Burr produces this amendment it will do more good than his condemnation could have done. against Burr personally I never had one hostile sentiment. I never indeed thought him an honest frank-dealing man, but considered him as a crooked gun or other perverted machine whose aim or stroke you could never be sure of. still, while he possessed the confidence of the nation, I thought it my duty to respect in him their confidence, & to treat him as if he deserved it: and if his punishment can be commuted now for an useful amendment of the constitution, I shall rejoice in it.—my sheet being full I percieve it is high time to offer you my friendly salutations and assure you of my constant & affectionate esteem & respect.
DLC: Papers of Thomas Jefferson.