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.
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.
| Illinois Conservative "It is impossible to rightly govern a nation without God and the Bible" ~George Washington |
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| Selected Papers of Thomas Jefferson |