FROM: THOMAS JEFFERSON
TO: JUDGE ROANE.

Poplar Forest, September 6,1819.

Dear Sir,

I had read in the Enquirer, and with great approbation, the pieces signed Hampden,
and have read them again with redoubled approbation in the copies you have been so
kind as to send me. I subscribe to every tittle of them. They contain the true principles
of the revolution of 1800, for that was as real a revolution in the principles of our
government as that of 1776 was in its form; not effected indeed by the sword, as that,
but by the rational and peaceable instrument of reform, the suffrage of the people.
The nation declared its will by dismissing functionaries of one principle, and electing
those of another, in the two branches, executive and legislative, submitted to their
election.  Over the judiciary department, the constitution had deprived them of their
control. That, therefore, has continued the reprobated system: and although new
matter has been occasionally incorporated into the old, yet the leaven of the old mass
seems to assimilate to itself the new; and after twenty years' confirmation of the
federated system by the voice of the nation, declared through the medium of elections,
we find the judiciary, on every occasion, still driving us into consolidation.

In denying the right they usurp of exclusively explaining the constitution, I go further
than you do, if I understand rightly your quotation from the Federalist, of an opinion
that 'the judiciary is the last resort in relation _to the other departments of the
government_, but not in relation to the rights of the parties to the compact under which
the judiciary is derived.' If this opinion be sound, then indeed is our constitution a
complete _felo de se_.
For intending to establish three departments, co-ordinate and
independent, that they might check and balance one another, it has given, according
to this opinion, to one of them alone, the right to prescribe rules for the government of
the others, and to that one too, which is unelected by, and independent of the nation.
For experience has already shown that the impeachment it has provided is not even a
scare-crow; that such opinions as the one you combat, sent cautiously out, as you
observe also, by detachment, not belonging to the case often, but sought for out of it,
as if to rally the public opinion beforehand to their views, and to indicate the line they
are to walk in, have been so quietly passed over as never to have excited
animadversion, even in a speech of any one of the body entrusted with impeachment.
The constitution, on this hypothesis, is a mere thing of wax in the hands of the
judiciary, which they may twist and shape into any form they please. It should be
remembered, as an axiom of eternal truth in politics, that whatever power in any
government is independent, is absolute also; in theory only, at first, while the spirit of
the people is up, but in practice, as fast as that relaxes.
 Independence can be trusted
no where but with the people in mass. They are inherently independent of all but moral
law. My construction of the constitution is very different from that you quote. It is that
each department is truly independent of the others, and has an equal right to decide
for itself what is the meaning of the constitution in the cases submitted to its action;
and especially, where it is to act ultimately and without appeal. I will explain myself by
examples, which, having occurred while I was in office, are better known to me, and the
principles which governed them. (emphasis added)

A legislature had passed the sedition-law. The federal courts had subjected certain
individuals to its penalties, of fine and imprisonment. On coming into office, I released
these individuals by the power of pardon committed to executive discretion, which
could never be more properly exercised than where citizens were suffering without the
authority of law, or, which was equivalent, under a law unauthorized by the
constitution, and therefore null. In the case of Marbury and Madison, the federal
judges declared that commissions, signed and sealed by the President, were valid,
although not delivered. I deemed delivery essential to complete a deed, which, as long
as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in
esse, and I withheld delivery of the commissions. They cannot issue a mandamus* to
the President or legislature, or to any of their officers. When the British treaty of 180-
arrived, without any provision against the impressment of our seamen, I determined
not to ratify it. The Senate thought I should ask their advice. I thought that would be a
mockery of them, when I was predetermined against following it, should they advise its
ratification. The constitution had made their advice necessary to confirm a treaty, but
not to reject it. This has been blamed by some; but I have never doubted its
soundness. In the cases of two persons, antenati, under exactly similar circumstances,
the federal court had determined that one of them (Duane) was not a citizen; the
House of Representatives nevertheless determined that the other (Smith of South
Carolina) was a citizen, and admitted him to his seat in their body.  Duane was a
republican, and Smith a federalist, and these decisions were during the federal
ascendancy.

* The constitution controlling the common law in this particular.

These are examples of my position, that each of the three departments has equally
the right to decide for itself what is its duty under the constitution, without any regard
to what the others may have decided for themselves under a similar question. But you
intimate a wish that my opinion should be known on this subject. No, dear Sir, I
withdraw from all contests of opinion, and resign every thing cheerfully to the
generation now in place. They are wiser than we were, and their successors will be
wiser than they, from the progressive advance of science. Tranquillity is the _summum
bonum_ of age. I wish, therefore, to offend no man's opinions, nor to draw disquieting
animadversions on my own. While duty required it, I met opposition with a firm and
fearless step. But, loving mankind in my individual relations with them, I pray to be
permitted to depart in their peace; and like the superannuated soldier, '_quadragenis
stipendiis emeritis_'to hang my arms on the post. I have unwisely, I fear, embarked in
an enterprise of great public concern, but not to be accomplished within my term,
without their liberal and prompt support. A severe illness the last year and another
from which I am just emerged, admonish me that repetitions may be expected, against
which a declining frame cannot long bear up. I am anxious therefore to get our
University so far advanced as may encourage the public to persevere to its final
accomplishment. That secured, I shall sing my _Nunc demittas_. I hope your labors will
be long continued in the spirit in which they have always been exercised, in
maintenance of those principles on which I verily believe the future happiness of our
country essentially depends. I salute you with affectionate and great respect.

Th: Jefferson.
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Selected Papers of Thomas Jefferson
Philosophy of
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Socialism in America

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