Monticello, September 7, 1803.
Dear Sir,—Your favor of the 3d was delivered me at court; but we were much disappointed at not seeing you here, Mr. Madison and the Governor being here at the time. I enclose you a letter from Monroe on the subject of the late treaty. You will observe a hint in it, to do without delay what we are bound to do. There is reason, in the opinion of our ministers, to believe, that if the thing were to do over again, it could not be obtained, and that if we give the least opening, they will declare the treaty void. A warning amounting to that has been given to them, and an unusual kind of letter written by their minister to our Secretary of State, direct. Whatever Congress shall think it necessary to do, should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty. I am aware of the force of the observations you make on the power given by the Constitution to Congress, to admit new States into the Union, without restraining the subject to the territory then constituting the United States. But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the United States, I cannot help believing the intention was not to permit Congress to admit into the Union new States, which should be formed out of the territory for which, and under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, &c. into it, which would be the case on your construction. When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President and Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time and trial show are still wanting. But it has been taken too much for granted, that by this rigorous construction the treaty power would be reduced to nothing. I had occasion once to examine its effect on the French treaty, made by the old Congress, and found that out of thirty odd articles which that contained, there were one, two, or three only which could not now be stipulated under our present Constitution. I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.
No apologies for writing or speaking to me freely are necessary. On the contrary, nothing my friends can do is so dear to me, and proves to me their friendship so clearly, as the information they give me of their sentiments and those of others on interesting points where I am to act, and where information and warning is so essential to excite in me that due reflection which ought to precede action. I leave this about the 21st, and shall hope the District Court will give me an opportunity of seeing you.
Accept my affectionate salutations, and assurances of cordial esteem and respect.
TO DOCTOR BENJAMIN RUSH.
Washington, October 4, 1803.
Dear Sir,—No one would more willingly than myself pay the just tribute due to the services of Captain Barry, by writing a letter of condolence to his widow, as you suggest. But when one undertakes to administer justice, it must be with an even hand, and by rule; what is done for one, must be done for every one in equal degree. To what a train of attentions would this draw a President? How difficult would it be to draw the line between that degree of merit entitled to such a testimonial of it, and that not so entitled? If drawn in a particular case differently from what the friends of the deceased would judge right, what offence would it give, and of the most tender kind? How much offence would be given by accidental inattentions, or want of information? The first step into such an undertaking ought to be well weighed. On the death of Dr. Franklin, the King and Convention of France went into mourning. So did the House of Representatives of the United States: the Senate refused. I proposed to General Washington that the executive department should wear mourning; he declined it, because he said he should not know where to draw the line, if he once began that ceremony. Mr. Adams was then Vice President, and I thought General Washington had his eye on him, whom he certainly did not love. I told him the world had drawn so broad a line between himself and Dr. Franklin, on the one side, and the residue of mankind, on the other, that we might wear mourning for them, and the question still remain new and undecided as to all others. He thought it best, however, to avoid it. On these considerations alone, however well affected to the merit of Commodore Barry, I think it prudent not to engage myself in a practice which may become embarrassing.
Tremendous times in Europe! How mighty this battle of lions and tigers! With what sensations should the common herd of cattle look on it? With no partialities, certainly. If they can so far worry one another as to destroy their power of tyrannizing, the one over the earth, the other the waters, the world may perhaps enjoy peace, till they recruit again.
Affectionate and respectful salutations.