Richmond. Sept: 7th. 1807. monday night.
By the northern mail of this afternoon, I received your letter of the 4th. inst. Your directions with respect to the evidence shall be obeyed. If the testimony is not delivered in Court, I will do whatever is practicable to obtain the affidavits of the witnesses. There are some, who will not, I am persuaded, communicate what they know except in Court. I allude to Dupeistre. Swartwout. Spence. and men of that Stamp. This however is not much to be regretted. Men who are base enough to unite in So vile a confederacy will not speak truth.—
A printed Copy of the opinion of the C. Justice, will, I presume be sufficient, if accompanied by an affidavit from the Editor. that it was taken from the original Ms. furnished by the C.J. himself, and that the proof Sheets were corrected by him.
Your acknowledgement that my colleagues & myself have done our duty, is highly grateful for my feelings. to theirs, when communicated, it will be equally acceptable. But my duty is not yet ended. The late decision presents to the U:States, Several Subjects, entitled to the most Serious consideration. It is time that we should know whether the Com: law of England is in force under the Government of the U.S. or not. Upon this point the C. Justice expressly declares that he gives no opinion, and then very deliberately proceeds, to resort to the common law, as the Substratum, (to use his own word) of his argument and decision. When this discussion is terminated, the regularity of the motion to Arrest the evidence may be effectually controverted, and his opinions, especially on the three last points Stated by himself, clearly refuted. If my health will permit, and time can be taken (from business almost ruined by the preposterous length of this prosecution), I will endeavor to make a few remarks on these topics, in language, which every man, who can read, shall understand.—What I shall say will be intended for the people. Men of information will fully comprehand the Subject, (perhaps) from the arguments which preceded the decision.
I intended to have written to you more at length on the Subject of this decision, and our proceedings here; but I speak truth, when I say, that I have scarcely been able to find time to write this letter, in which I have been already interrupted a dozen times.
I sent an express to you on Saturday. I anxiously await his return.——Permit me to offer you my most sincere and profound respect.—
DLC: Papers of Thomas Jefferson.