I intended to have made Report, not of the Doings but of the Nullities of the Circuit Court; but I have been busy in other Matters, & added to other Concerns, I have been sick, with my old Tormentor the Vertigo. A Bleeding I have had. A Cupping in Addition, will give him his Quietus, Why dont you build, as you have long threatned, at some Place distant from Mount Vernon? which every body says, venerable as it is, is unhealthy? I hope you are now staunch & seaworthy; & the better for staying at Home, in Port.

There was a general Consent as to all civil Business, at the Court; & Nothing was done, or attempted. Save some Routine Business which required no great Head-Piece to get thro'. Little or no Process to this Term—A Bill or two in Chancery to delight you‑One against myself; which I hope will rid me of an old Trust, whereof I have been long heartily sick & tired. I was not asked to sit in this.

The Criminal Business was pushed, with hypocritical Vehemence. Both Sides pretended to be ready. I agreed to be the Scape Goat; & utterly refused to try the Causes; because they involved Points on which Doctors differ; & I would have them settled in a full Court. Some of the Bars diverted themselves with my Simile of the Scape Goat. I supported the Allusion; as one so apposite, that it ran on all-fours. There was only one Bill found by the Grand Jury. For Treason; against one Pryor; a Yankee Captain; who, it is alleged, contracted with Beresford to supply Bullocks for his Fleet. Went on a Progress to fulfil the Contract; but was nabb'd before he had done anything. There was, I found, a tough Point, about Jurisdiction; & the Case being prima Impressionis, I skirted it, & bailed the Defendant; as I also did Jones, Pickles & Co.—the old Pirates in fact, tho' not (as Judge Johnson &c. say)—in Law. I saw Johnson's Opinion. It seems there is a Comma too much or too little, in the Act of the U.S. on the Subject. So that a Comma has saved the Plunderers, from arriving at a Period. No Common Law Definition of Robbery on Land, will do. Congress must define it.

I have a Libel in the Dist.-Court against the Owners of the Revenge; to bring in the Proceeds of the Plunder, for Adjudication. I have heard the Testimony; & never had before me a more rascally & atrocious Enormity. The Owners say it was Piracy; (contrary to the Southern Judge's Opinion) & they are not responsible. I shall serve up this Dish, for you, next April. How I shall dress it; I yet know no more than my Grand Mother's Ghost.

I recieved your Letter, announcing your wise Resolution of Commerancy; on Friday Afternoon, before the Monday of the Court. I enquired for your Stock Charge at the Office; but Caldwell returned N.E.I. I was in a Quandary. Dallas said a Charge there must be, & a Charge I made at full Gallop. I had to touch a new String; Adhering to the Enemy, & giving aid & Comfort. The old one of Levying War, I had played many a Tune on; to very little Purpose. Rawle asked me how I had made out— I told him—as I now tell you, that I had put a Head & Tail Piece of Declamation; & between them I had explained the Law very gravely. My Head, or Frontispiece, I told him, was¹ expressed in a few Words. "Handle Treason with Mittens on; it is a thorny Subject." He exclaimed—  "My-G—d-not in those Words"! I left him to his Speculations. The Tail Piece exhibits the Grand Jury as important Bipeds; & concludes with the usual Insipidity. Dallas has got this Choice Morsel; & I am relieved from sending you anymore of it, than what I have stated as the Law; to the—"Effect following; that is to say." I send it to you for Consideration; thus it may be better digested, than I had time for doing. Perhaps you will think it up to the Hubs. Be it so'— I had not time for Caution. Here ensueth the Law—from Books, when I had them.

"Whensoever, in our Statutes, Crimes are defined, which might have amounted to Treason or Overt Cuts to constitute that Crime; I deem it the safest Course to confine ourselves to the Words, & Intention of those Statues. Yet I will not say, that there can be no Case, in which the Law may not warrant a paramount Consideration. At least, Acts committed, which are punishable by specified Enactments, may also be Evidence of Treason, when those Acts amount to Overt Acts, or only constitute a Part of the Transaction; & became Proofs of the Fact of Intention, on which a Jury must decide. Yet the Evidence, in such Cases, should be strong & conclusive. It should be presumed, that the Legislature meant, so far as they could, consistently with the Constitution, to narrow the Ground. But I have, in an Admiralty Case, been of Opinion that the Fines & Punishments prescribed are, in some such Cases, only cumulative. I refer, now, to the Act of Congress prohibiting Trade with Enemies, either by Sea or Land; passed, 6th July. 1812.

The Law, in Regard to the Point I have deemed it necessary to discuss, appears to be,

1. Joining with Enemies, in Acts of Hostility, by Sea or Land, will make a Man a Traitor, within both the Clauses of our Constitution, relating to levying War, & Adherence to Enemies. But if this be done thro' Fear of Death, (not slight Apprehension,) & while the Party is under actual Force, & he takes the first Opportunity of escaping; he is excused. But the more Apprehension of having Houses burnt, or Property destroyed, furnishes no Ground of Excuse.

2. Furnishing Enemies, with Money, Arms, Amunition, or other Necessaries, will be, prima facie, Evidence of Treason.² But if Enemies come with a superior force; & exact Contributions; Submission is not criminal. As to any Remuneration made & recieved, for Acts of Depredation, it must be left to the Jury; as an Act of Intention & Preconcert, exciting Suspicion; but not absolutely conclusive.

3. The base sending Money or Provisions, (except under the Circumstances before stated), or, worst of all, sending Intelligence to Enemies engaged in hostile Operations, will amount to Treason, in giving "Aid & Comfort"; tho' the Money Provisions, or Intelligence, be intercepted. The Act was complete in the Part of the Traitor, tho' it had not the intended Effect.

Supplying with Provisions or Refreshments, hostile Ships, Fleets, or Troops, blockading our Ports, & beleaguering & ravaging our Coasts, is a most aggravated Offence. It tends, immediately & directly, to promote & assist hostile Operations; & is a Species of "Aid & Comfort,["] peculiarly deserving condign Punishment. Intelligence given to such Ships, Fleets, or Troops, is doubly reprehensible & mischievous, for evident Reasons. The Merchants of a European Nation, who in times long past, supplied their Enemy with Powder, to batter down the Walls of their own Cities, are hung up, by History, to everlasting Infamy. Yet their Cupidity & Defection, were not more base; than are the Conduct & Motives of those, who are guilty of the Offence I have just mentioned.

Writing Letters, continuing Intelligence of a hostile Nature, & merely putting them into the Post Office; where they were stopped; has been adjudged to be Treason, under the Words "giving Aid & Comfort." But merely expressing Opinions, tho' they may be adverse to public Measures, unless done with a View to influence & direct the Enemy, in hostile Operations; is not the kind of Intelligence considered thus criminal; though it were better omitted. Mere Correspondence with an Enemy, is not criminal, treasonable, or unlawful. The Subject Matter alone gives it a Character. In our Situation, epistolary Correspondence & other innocent Intercourse, are indispensable to the Business & Affairs of those, whose lawful Pursuits & Connexions, have been, suddenly & unexpectedly, cut off by the War.

4. Inlisting, or procuring Persons to inlist, in the Service of the Enemy, is Treason; tho' no actual Hostility be committed‑ But marching, or some other Overt Act, must be shewn.

5. Taking a Commission to cruise in an Enemy's Ship, against the U.S. is Treason; if the Party go on board that Ship; which is an Act of Hostility, although he commit no other. So it is with an Engagement in Enemy's Service, in any Capacity; if there be any Advance, or Overt Act, in Execution of the Agreement.

6. A Conspiracy, with Intent to "aid & comfort," is not an Overt Act of Adherence; unless Aid & Comfort be afterwards given. And then it is Treason, in every one of the Conspirators; for there are no Accessaries in Treason; all are principals; according to english Authorities, adopted here; though some respectable Opinions are otherwise.

7. Words or Writings, are not Overt Acts. But if such Acts be afterwards actually committed by the Party; they may be Evidence of Intention, upon which the Jury must decide. Acts, & not Words, are the Ingredients. Writings never promulgated, are—less than all, Evidence of Treason. Algernon Sidney's Case is well known. His Sacrifice continues to excite unqualified Detestation.

8. Mere Residence in a State at War, is not, of itself, an Act of Adherence.

9. Whatever Difference of Opinion there may have, heretofore, been as to the Term "Enemies"; in our present Situation, there can be no Doubt.

The Evidence must support the Charge of Adherence; & the Overt Act must be designated; & proved according to the Words & Meaning of the Constitution. What are Overt Acts? I have endeavourd to shew. The Treason is adhering; the Doing any of the specified Things, is the Overt Act; constituting the Adherence & Treason.

Two Witnesses are essentially required, before the Petty Jury; &, I think, though Authorities differ, that two Witnesses are also necessary, before the Grand Jury; who should be, in so high a Crime, doubly careful of the Character & Life of a Fellow Citizen.

Although it is clear, that the Confession of the Crime, must be in open Court, yet it has been held, that Proof by two Witnesses of the Confession of an Overt Act is sufficent; although it be not made in open Court. Two Witnesses to the same Overt Act; & not one Witness to one Overt Act, & another Witness to a distinct Overt Act, are legally required.

An Overt Act must be charged; & proved to have been committed within the District; or on the high Seas, within the Jurisdiction of the Court. But when this is proved, it seems to be settled, that Proofs of other Overt Acts, of the same Treason, may be admitted; tho occurring in another District, or Place.

Intention with which the Overt Act was committed, may be shewn by Circumstances, as well as positive Proof. Intention, like any other Fact, is for the Jury to decide. Although these Circumstances may be proved in the Mode required in Proof of Circumstances in any other Cases of Intention; yet the Overt Act must be first established, according to the Directions of the Constitution."

You will have full time, & I hope full Health, to ponder over these hasty Sketches, & tell me what you think; so that they may be rectified if erroneous—in banco pleno.

Dallas wants me to agree to have the Charge published. Because he thinks, it will prevent People from getting into Scrapes, from Ignorance, real or pretended, of the Law. I should like to have your Opinion as to the Law. I am keeping him at Arms Length; tho' I agreed that he should take a Copy. He says, that the Bar thought well of my Statement of the Law.³ Yours very affectionately