I am happy in having the benefit of Mr. Madison’s counsel on this occasion, he happening to be now with me.  We are both strongly of opinion, that the prosecution against Burr for misdemeanor should proceed at Richmond.  If defeated, it will heap coals of fire on the head of the Judge:  if successful, it will give time to see whether a prosecution for treason against him can be instituted in any, and what other court.  But, we incline to think, it may be best to send Blannerhasset and Smith (Israel) to Kentucky, to be tried both for the treason and misdemeanor.  The trial of Dayton for misdemeanor may as well go on at Richmond.

I salute you with great esteem and respect.

Th:  Jefferson.

LETTER LXIII.—­TO THE REV.  MR. MILLAR, January 23, 1808

TO THE REV.  MR. MILLAR,

Washington, January 23, 1808.

Sir,

I have duly received your favor of the 18th, and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with.  I consider the government of the United States as interdicted by the constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.  This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States.  Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government.  It must then rest with the States, as far as it can be in any human authority.  But it is only proposed that I should recommend, not prescribe, a day of fasting and prayer.  That is, that I should indirectly assume to the United States an authority over religious exercises, which the constitution has directly precluded them from.  It must be meant, too, that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription, perhaps in public opinion.  And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed?  I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies, that the General Government should be invested with the power of effecting any uniformity of time or matter among them.  Fasting and prayer are religious exercises; the enjoining them an act of discipline.  Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.