Article 2, Section 1, Clause 1
Thomas Jefferson to George Hay17 June 1807Works 10:400--402
In answering your letter of the 9th, which desired a communication of one to me from Genl Wilkinson, specified by it's date, I informed you in mine of the 12th that I had delivered it, with all other papers respecting the charges against Aaron Burr, to the Attorney Genl, when he went to Richmond; that I had supposed he had left them in your possession, but would immediately write to him, if he had not, to forward that particular letter without delay. I wrote to him accordingly on the same day, but having no answer, I know not whether he has forwarded the letter. I stated in the same letter, that I had desired the Secretary at War to examine his office, in order to comply with your further request, to furnish copies of the orders which had been given respecting Aaron Burr and his property; and in a subsequent letter of the same day, I forwarded to you copies of two letters from the Secretary at War, which appeared to be within the description expressed in your letter. The order from the Secretary of the Navy, you said, you were in possession of. The receipt of these papers had, I presume, so far anticipated, and others this day forwarded will have substantially fulfilled the object of a subpoena from the District Court of Richmond, requiring that those officers & myself should attend the Court in Richmond, with the letter of Genl Wilkinson, the answer to that letter, & the orders of the departments of War & the Navy, therein generally described. No answer to Genl Wilkinson's letter, other than a mere acknolegement of it's receipt, in a letter written for a different purpose, was ever written by myself or any other. To these communications of papers, I will add, that if the defendant supposes there are any facts within the knolege of the Heads of departments, or of myself, which can be useful for his defence, from a desire of doing anything our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition, through any persons whom the Court shall authorize to take our testimony at this place. I know, indeed, that this cannot be done but by consent of parties; & I therefore authorize you to give consent on the part of the U S. Mr. Burr's consent will be given of course, if he supposes the testimony useful.
As to our personal attendance at Richmond, I am persuaded the Court is sensible, that paramount duties to the nation at large control the obligation of compliance with their summons in this case; as they would, should we receive a similar one, to attend the trials of Blannerhassett & others, in the Mississippi territory, those instituted at St. Louis and other places on the western waters, or at any place, other than the seat of government. To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from it's station by any co-ordinate authority.
With respect to papers, there is certainly a public & a private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, & other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed; as you will see in the enclosed resolution of the H of Representatives, which produced the message of Jan 22, respecting this case. The respect mutually due between the constituted authorities, in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same candor & integrity to which the nation has in like manner trusted in the disposal of it's judiciary authorities. Considering you as the organ for communicating these sentiments to the Court, I address them to you for that purpose, & salute you with esteem & respect.
The Founders' Constitution
Volume 3, Article 2, Section 1, Clause 1, Document 21
The University of Chicago Press
The Works of Thomas Jefferson. Collected and edited by Paul Leicester Ford. Federal Edition. 12 vols. New York and London: G. P. Putnam's Sons, 1904--5.
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