DEAR SIR,

TO GEORGE HAY.

Washington, June 2, 1807.

While Burr's case is depending before the court, I will trouble you from time to time with what occurs to me. I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law. I. Because the judges, in the outset, disclaimed all cognizance of the case; although they then went on to say what would have been their opinion, had they had cognizance of it. This then was confessedly an extrajudicial opinion, and as such of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed. He may withhold or cancel it at pleasure, as he might his private deed in the same situation. The constitution intended that the three great branches of the government should be co-ordinate, and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch. A judge, I presume, cannot sit on a bench without a commission, or a record of a commission: and the constitution having given to the judiciary branch no means of compelling the executive either to deliver a commission, or to make a record of it, shews it did not intend to give the judiciary that control over the executive, but that it should remain in the power of the latter to do it or not. Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. Thus in the case of William Smith, the House of Representatives determined he was a citizen, and in the case of William Duane (precisely the same in every material circumstance), the judges determined he was no citizen. In the cases of Callendar and others, the judges determined the sedition act was valid under the constitution, and exercised their regular powers of sentencing them to fine and imprisonment. But the executive determined that the sedition act was a nullity under the constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of exe

cuting the real law, which protected the acts of the defendants. From these different constructions of the same act by different branches, less mischief arises, than from giving to any one of them a control over the others. The executive and Senate act on the construction, that until delivery from the executive department, a commission is in their possession and within their rightful power; and in cases of commissions not revocable at will, where, after the Senate's approbation and the President's signing and sealing, new information of the unfitness of the person has come to hand before the delivery of the commission, new nominations have been made and approved, and new commissions have issued.

On this construction I have hitherto acted; on this I shall ever act, and maintain it with the powers of the government, against any control which may be attempted by the judges in subversion of the independence of the executive and Senate within their peculiar department. I presume, therefore, that in a case where our decision is by the constitution the supreme one, and that which can be carried into effect, it is the constitutionally authoritative one, and that that by the judges was coram non judice, and unauthoritative, because it cannot be carried into effect. I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law and I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially and against law, and that their reverse will be the rule of action with the executive. If this opinion should not be your own, I would wish it to be expressed merely as that of the executive. If it is your own also, you would of course give to the arguments such a development, as a case, incidental only, might render proper. I salute you with friendship and respect.

TH. JEFFERSON.

THOMAS JEFFERSON TO ALBERT GALLATIN.

I gave you, some time ago, a project of a more equal tariff on wines than that which now exists. But in that Î yielded considerably to the faulty classification of them in our law. I have now formed one with attention, and according to the best information I possess, classing them more rigorously. I am persuaded that were the duty on cheap wines put on the same ratio with the dear, it would wonderfully enlarge the field of those who use wine, to the expulsion of whisky. The introduction of a very cheap wine (St. George) into my neighbourhood within two years past, has quadrupled in that time the number of those who keep wine, and will ere long increase them tenfold. This would be a great gain to the treasury, and to the sobriety of our country. I will here add my tariff, wherein you will be able to choose any rate of duty you please; and to decide whether it will not, on a fit occasion, be proper for legislative attention.

Affectionate salutations.

DEAR SIR,

TO GEORGE HAY.

Washington, June 5, 1807.

Your favour of the 31st instant has been received, and I think it will be fortunate if any circumstance should produce a discharge of the present scanty grand jury, and a future summons of a fuller: though the same views of protecting the offender may again reduce the number to sixteen, in order to lessen the chance of getting twelve to concur. It is understood, that wherever Burr met with subjects who did not choose to embark in his projects, unless approved by their government, he asserted that he had that approbation. Most of them took his word for it, but it is said that with those who would not, the following stratagem was practised. A forged letter, purporting to be from General Dearborne, was made to express his approbation, and to say that I was absent at Monticello, but that there was no doubt that on my return, my approbation of his enterprizes would be given. This letter was spread open on his table, so as to invite the eye of whoever entered his room, and he contrived occasions of sending up into his room those whom he wished to become witnesses of his acting under sanction. By this means he avoided committing himself to any liability to prosecution for forgery, and gave another proof of being a great man in little things, while he is really small in great ones. I must add General Dearborne's declaration, that he never wrote a letter to Burr in his life, except that when here, once in a winter, he usually wrote him a billet of invitation to dine. The only object of sending you the enclosed letters, is to possess you of the fact, that you may know how to pursue it, if any of your witnesses should know any thing of it. My intention in writing to you several times, has been to convey facts or observations occurring in the absence of the Attorney General, and not to make to the dreadful drudgery you are going through the unnecessary addition of writing me letters in answer, which I beg you to relieve yourself from, except when some necessity calls for it.

I salute you with friendship and respect.

TH. JEFFERSON.