TO JAMES MONROE.

J. MSS. WASHINGTON, May 26th, 1801.

DEAR SIR,-In mine of the 22d I forgot to write on the subject of Callender, tho' I had reserved that, for some time, to make a part of the letter. D. M. R.

“The correspondence on this subject with the attorney of the district will shew more fully the details of the proceedings in this case." On the subject of this message Jefferson wrote to Gallatin :

"November 12, 1801.

The enclosed rough draft of a message I had prepared for the Senate will show you the views in conformity with which were all the instructions which went from hence relative to the Senatorial complaint against Duane. My idea of new prosecution was not that our Attorney should ever be heard to urge the common law of England as in force otherwise than so far as adopted in any particular State, but that, Ist, he should renew it in the Federal court if he supposed there was any Congressional statute which had provided for the case (other than the Sedition Act,) or if he thought he could show that the Senate had made or adopted such a lex parliamentaria as might reach the case; or, 2d, that he should bring the prosecution in the State court of Pennsylvania, if any statute of that State, or statutory adoption of the common law of England, had made the offence punishable. These are my views. They were not particularly given by way of instruction to the Attorney, because it was presumed they would occur to him, and we did not choose, by prescribing his line of procedure exactly, to take on ourselves an unnecessary responsibility. I will thank you to return the paper, as well for this message as for the sketches, on the back of it, of some paragraphs of the first message to Congress, of which, in a day or two, I shall ask your revisal. In that the Sedition law will be presented under another view. Health and good wishes."

Jefferson also wrote to Edward Livingston :

WASHINGTON, Nov. 1. 1801. DEAR SIR,-I some days ago received a letter from Messrs. Denniston & Cheetham of the most friendly kind, asking the general grounds on which the nolle prosequi in Duane's case ought to be presented to the public, which they proposed to do. You are sensible I must avoid committing myself in that channel of justification, and that were I to do it in this case I might be called on by other printers in other cases where it might be inexpedient to say anything. Yet to so civil an application I cannot reconcile myself to the incivility of giving no answer. I have thought therefore of laying your friendship under contribution and asking you to take the trouble of seeing them, and of saying to them, that the question being in the line of the law I had desired you to give them the explanation necessary. My text of explanation would be this. The

has contrived to put the money in such a situation that I find we could not lay our hands on it without giving room for specious criticisms. That would be

a gratification to which he is not entitled. It will moreover strengthen the reasons for laying the whole subject before Congress that they may not only refund but indemnify the sufferers under the sedition. act. To take from Callender particularly all room for complaint I think with you we had better refund his fine by private contributions. I inclose you an order on Gibson & Jefferson for 50. D. which I believe is one fourth of the whole sum.

There is considerable reason to apprehend that Spain cedes Louisiana and the Floridas to France. It is a policy very unwise in both, and very ominous Accept assurances of my affectionate respect.

to us.

DEAR SIR, I am late in answering your favor of the 4th because the navy department from an extraordinary press of business, could not till within this

President is to have the laws executed. He may order an offence then to be prosecuted. If he sees a prosecution put into a train which is not lawful, he may order it to be discontinued and put into legal train. I found a prosecution going on against Duane for an offence against the Senate, founded on the sedition act. I affirm that act to be no law, because in opposition to the constitution; and I shall treat it as a nullity, wherever it comes in the way of my functions. I therefore directed that prosecution to be discontinued and a new one to be commenced, founded on whatever other law might be in evidence against the offence. This was done and the Grand Jury finding no other law against it, declined doing anything under the bill. There appears to be no weak part in any of these positions or inferences. There is however in the application to you to trouble yourself with the question. For this I owe apology, and build it on your goodness & friendship.

day or two furnish me the enclosed papers. You will see by them that the money for Gosport (12,000 D.) has been placed in Norfolk at Mr. Hopkins's command ever since the last week in January. Why it should have been withheld so long he will probably explain to you.

As to the mode of correspondence between the General and particular executives, I do not think myself a good judge. Not because my position gives me any prejudice on the occasion; for if it be possible to be certainly conscious of anything, I am conscious of feeling no difference between writing to the highest or lowest being on earth, but because I have ever thought that forms should yield to whatever should facilitate business. Comparing the two governments together it is observable that in all those cases where the independent or reserved rights of the states are in question, the two executives if they are to act together, must be exactly coordinate; they are, in those cases, each the supreme head of an independent government. Such is the case in the beginning of this letter where the two executives were to treat de pair en pair. In other cases, to wit, those transferred by the constitution to the general government, the general executive is certainly preordinate-e. g. in a question respecting the militia, and others easily to be recollected. Were there therefore to be a stiff adherence to etiquette, I should say that in the former cases the correspondence should be between the two heads, and that in the latter the governor must be subject to receive orders from the War Department as any

other subordinate officer would. And were it observed that either party set up unjustifiable pretentions, perhaps the other might be right in opposing them by a tenaciousness of his own rigorous right. But I think the practice in Genl. Washington's administration was most friendly to business and was absolutely equal. Sometimes he wrote to the governors, and sometimes the heads of departments wrote. If a letter is to be on a general subject, I see no reason why the President should not write: but if it is to go into details, these being known only to the head of the department, it is better he should write directly, otherwise the correspondence must involve circuities. If this be practised promiscuously in both classes of cases, each party setting examples of neglecting etiquette, both will stand on equal ground, and convenience alone will dictate through whom any particular communication is to be made. All the governors have freely corresponded with the heads of departments, except Hancock who refused it. But his legislature took advantage of a particular case which justified them in interfering, and they obliged him to correspond with the head of a department. Genl. Washington sometimes wrote to them. presume Mr. Adams did, as you mention his having written to you. On the whole I think a free correspondence best and shall never hesitate to write myself to the governors, even in a federal case, where the occasion presents itself to me particularly.

I

Accept assurances of my sincere & constant affection & respect.

TO JAMES MONROE.

J. MSS. WASHINGTON May 29, 1801. DEAR SIR,-Since mine of the 26th Callender is arrived here. He did not call on me; but understanding he was in distress I sent Captain Lewis to him with 50. D. to inform him we were making some inquiries as to his fine which would take a little time, and lest he should suffer in the meantime I had sent him &c. His language to Captain Lewis was very high-toned. He intimated that he was in possession of things which he could and would make use of in a certain case: that he received the 50. D. not as a charity but a due, in fact as hush money; that I knew what he expected, viz. a certain office, and more to this effect. Such a misconstruction of my charities puts an end to them forever. You will therefore be so good as to make no use of the order I enclosed you. He knows nothing of me which I am not willing to declare to the world myself. I knew him first as the author of the political progress of Britain, a work I had read with great satisfaction, and as a fugitive from persecution for this very work. I gave to him from time to time such aids as I could afford, merely as a man of genius suffering under persecution, and not as a writer in our politics. It is long since I wished he would cease writing on them, as doing more harm than good.

Your two letters of May 23 have come to hand. You would afterwards receive mine of the 22d as to the mode of correspondence. I still think the mode therein proposed would place it on the footing most