vicious, which would leave the nation under the most dangerous emergencies without a directing will. The cautious maxims of the bench, to seek the will of the legislator, and his words only, are proper and safer for judicial government. They act ever on an individual case only, the evil of which is partial, and gives time for correction. But an instant of delay in executive proceedings may be fatal to the whole nation. They must not, therefore, be laced up in the rules of the judiciary department. They must seek the intention of the legislator in all the circumstances which may indicate it in the history of the day, in the public discussions, in the general opinion and understanding, in reason and in practice. The three great departments having distinct functions to perform, must have distinct rules adapted to them. Each must act under its own rules, those of no one having any obligation on either of the others. When the opinion first began that a governor could not act when his council could not or would not advise, I am uninformed. Probably not till after the war; for, had it prevailed then, no militia could have been opposed to Cornwallis, nor necessaries furnished to the opposing army of Lafayette. These, Sir, are my recollections and thoughts on the subject of your inquiry, to which I will only add the assurances of my great esteem and respect.

TO JAMES MADISON.

J. MSS. MONTICELLO Feb. 19. 12

DEAR SIR,-Yours of the 12th has been duly received. I have much doubted whether, in case of a war, Congress would find it practicable to do their part of the business. That a body containing 100 lawyers in it, should direct the measures of a war, is, I fear, impossible; and that thus that member of our Constitution, which is its bulwark, will prove to be an impracticable one from it's cacoethes loquendi. It may be doubted how far it has the power, but I am sure it has not the resolution to reduce the right of talking to practicable limits.

*

TO WILLIAM WIRT.

J. MSS.

MONTICELLO Apr. 12. 12 DEAR SIR, Mr. Livingston's suit having gone off on the plea to the jurisdiction, it's foundation remains of course unexplained to the public. I have therefore concluded to make it public thro' the ordinary channel of the press. An earlier expectation of the pamphlets and the desire to send one has delayed, from post to post, my sooner acknowleging your kind aid in this case, and praying your acceptance of the remuneration I now inclose, for the trouble I gave you in reading so much stuff on the subject, and your exertions in the defence. The debt of gratitude however is of a different nature, & is sincerely felt. Considering the infinite trouble which the question of right to the Batture, & the immense volume of evidence to be taken, at New Orleans, would have given to my counsel and myself, I am well satisfied to be relieved from it, altho' I had a strong desire that the public should have been satisfied by a trial on the merits, & the abler discussion of them by my counsel.

A love of peace and tranquility, strengthened by age and a lassitude of business, renders it extremely disquieting to me to be harrassed by vexatious lawsuits by persons who have no earthly claim on me, in cases where I have been merely acting for others. In Nov. last I was served with a subpoena in chancery at the suit of the executors of Mrs. Randolph (mother to Mr. E. R.) in which Mr. Norborne Nicholas, & perhaps a dozen others, are also named defendants. The object of this I cannot devine : I never had any matter of business with Mrs. Randolph, nor ever saw a farthing of hers. I once indeed transacted a single affair of hers as a friend, at her earnest sollicitation, to relieve her from pressing distress, and under a regular power of attorney. How this can have subjected me to pass the remainder of my life in a court of chancery is as incomprehensible, as it is discouraging to the indulgence of our feelings in the services asked from us by our friends. I have taken measures to get a copy of the bill; and if a substantive defence is required from me, I shall ask the favor of your attention to it, as I have done in the same case of Mr. Hay.

The enclosed paper written for you a year or two ago, has laid by me with a view still to add something to it, but on reflection, I send it as it is.' The additional matter contemplated respected Mr. Henry's ravenous avarice, the only passion paramount to his love of popularity. The facts I have heard on that subject are not

I The following is the paper alluded to:

My acqce with mr Henry commenced in the winter of 1759-60. On my way to college I passed the Xmas holidays at Colo Dandridge's, in Hanover, to whom mr Henry was a near neighbor. During the festivity of the season I met him in society every day, & we became well acquainted, altho I was much his junior, being then but in my 17th year & he a married man. The spring following he came to Wmsbg to obtain a license as a lawyer, & he called on me at college. He told me he had been reading law only 6. weeks. Two of the examiners, however, Peyton & John Randolph, men of great facility of temper, signed his license with as much reluctance as their dispositions would permit them to shew. Mr Wythe absolutely refused. Rob: C. Nicholas refused also at first, but on repeated importunities and promises of future reading, he signed. These facts I had afterwds from the gentlemen themselves, the two Randolphs acknoleging he was very ignorant of law, but that they perceived him to be a young man of genius, & did not doubt he would soon qualify himself.

He was some time after elected a representative of the county of Hanover and brought himself into public notice on the following occasion, which I think took place in 1762, or a year sooner or later. The gentlemen of this country had at that time become deeply involved in that state of indebtment which has since ended in so general a crush of their fortunes. Robinson the speaker was also Treasurer, an officer always chosen by the Assembly. He was an excellent man, liberal, friendly and rich. He had been drawn in to lend on his own account great sums of money to persons of this description, & especially those who were of the assembly. He used freely for this purpose the public money, confiding for it's replacement in his own means & the securities he had taken on those loans. About this time however he became sensible that his deficit to the public was become so enormous as that a discovery must soon take place, for as yet the public had no suspicion of it. He devised therefore with his friends in the assembly a plan for a public loan office to a certain amount, from which monies might be lent on public acct & on good landed security to individuals. This was accordingly brought forward in the House of Burgesses, and had it succeeded, the debts due to Robinson on these loans would have been transferred to the public, & his deficit thus compleetly covered. This state of things however was not yet known; but mr Henry attacked the scheme on other general grounds in that style of bold grand and overwhelming eloquence, for which he became so justly celebrated afterwds. He carried with him all the members of the upper counties, and left a minority composed merely of the aristocracy of the country. From this time his popularity swelled apace,

within my own knolege, & ought not to be hazarded but on better testimony than I possess. And if they are true, you have been in a much better situation than I was to have information of them. I salute you with great & affectionate esteem and respect. & Robinson dying 4. years after, his deficit was brought to light, & discovered the true object of the proposition.

The next great occasion on which he signalised himself was that which may be considered as the dawn of the Revoln in March 1764. The British parliament had passed resolns. preparatory to the levying a revenue on the colonies by a stamp tax. The Virginia assembly at their next session, prepared & sent to England very elaborate representns addressed in separate forms to the King, Lords and Commons, against the right to impose such taxes. The famous stamp act was, however, past in Jan., 1765 and in the session of the Virgi assembly of May following, mr. Henry introduced the celebrated resolns of that date. These were drawn by George Johnson, a lawyer of the Northern neck, a very able, logical and correct speaker. Mr Henry moved and Johnston seconded these resolns successively. They were opposed by Randolph, Blood, Pendleton, Nicholas, Wythe & all the old members whose influence in the house had till then been unbroken. They did it, not from any question of our rights, but on the ground that the same sentiments had been at their preceeding session expressed in a more conciliatory form to which the answers were not yet received. But torrents of sublime eloquence from mr Henry, backed up by the solid reasoning of Johnston, prevailed. The last however, & strongest resoln was carried but by a single vote. The debate on it was most bloody. I was then but a student and was listening at the door of the lobby (for as yet there was no gallery) when Peyton Randolph, after the vote, came out of the house and said, as he entered the lobby “ By god I would have given 500 guineas for a single vote," for as this would have divided the house, the vote of Robinson, the speaker, would have rejected the resolution. Mr. Henry left town that evening and the next morning before the meeting of the house, I saw Peter Randolph, then of the council, but who had formerly been clerk in the house, for an hour or two at the clerk's table searching the old journals for a precedent while he was clerk, of a resolution of the house erased from the journals by a subsequent order of the house. Whether he found it or not I do not remember; but when the house met, a motion was made & carried to erase that resoln; and there being at that day but one printer & he entirely under the controul of the governor, I do not know that this resoln ever appeared in print. I write this from memory, but the impression made on me, at the time, was such as to fix the facts indelibly in my mind.

I came into the Legislature as a burgess for Albemarle in the winter of 1768/9. on the accession of L'd. Botetourt to the government and about 9. years after mr. Henry had entered on the stage of public life. The exact conformity of our political opinions strengthened our friendship, and indeed, the old leaders of the house being substantially firm, we had not after this any

P. S. Altho the pamphlets have been some weeks at Fredsbg and expected by every stage, I am still disappointed in receiving them. I detain my letter therefore no longer, but will inclose one on it's arrival.

differences of opn in the H. of B. on matters of principles, tho sometimes on matters of form. We were dissolved by Ld Botetourt at our first session; but all were re-elected. There being no divisions among us, occasions became very rare for any display of mr H's eloquence. In ordinary business he was a very inefficient member. He could not draw a bill on the most simple subject which wd bear legal criticism, or even the ordinary criticism which looks to correctness of style & ideas, for indeed there was no accuracy of idea in his head. His imagination was copious, poetical, sublime, but vague also. He said the strongest things in the finest language, but without logic, without arrangement, desultoryly. This appeared eminently & in a mortifying degree in the 1st session of the 1st Congress which met in Sep 1774.

Mr Henry & Richard Henry Lee took at once the lead in that assembly, and by the high style of their eloquence were in the first days of the session looked up to as primi inter pares. A petition to the King, an Address to the people of G. Britain, and a Memorial to the people of British America were agreed to be drawn. Lee, Henry & others were appointed for the first, & Lee, Livingston & Jay for the two last. The splendor of their debut occasioned mr Henry to be designated by his commee to draw the petn to the king, with which they were charged, and mr Lee was charged with the address to the people of England. The last was first reported. On reading it every countenance fell and a dead silence ensued for many minutes. At length, it was laid on the table for perusal and considn till the next day when first one member, and then another arose, & paying some faint compliment to the composition observed that there were still certain considerns not expressed in it, which should properly find a place in it. At length mr Livingston (the govr of N. J.) a member of the commee rose and observed that a friend of his had been sketching what he had thought might be proper for such an address, from which he thought some paragraphs might be advantageously introduced into the draught proposed: and he read an address which mr Jay had prepared de bene ese as it were. There was but one sentiment of admirn. The address was recommitted for amendment, and mr Jays draught reported & adopted with scarce any altern. These facts were stated to me by mr Pendleton and Colo Harrison of our own delegation, except that Colo Harrison ascribed the draught to Govr. Livingston & were afterwards confirmed to me by Gov'r Livingston, & I will presently mention an anecdote confirmative of them from mr Jay and R. H. Lee themselves.

Mr. Henry's draught of a petn to the king was equally unsuccessful, and was recommitted for amendment. Mr John Dickenson was added to the commee & a new draught prepared by him was passed.

The occasion of my learning from mr Jay that he was the author of the Ad