suspension at the convenience of either party, without inconvenience to
the other. Hence this tardy acknowledgment of your favor of April the
11th. I learn from that with great pleasure, that you have resolved on
continuing your history of parties. Our opponents are far ahead of us in
preparations for placing their cause favorably before posterity. Yet
I hope even from some of them the escape of precious truths, in angry
explosions or effusions of vanity, which will betray the genuine
monarchism of their principles. They do not themselves believe what
they endeavor to inculcate, that we were an opposition party, not on
principle, but merely seeking for office. The fact is, that at the
formation of our government, many had formed their political opinions
on European writings and practices, believing the experience of old
countries, and especially of England, abusive as it was, to be a safer
guide than mere theory. The doctrines of Europe were, that men in
numerous associations cannot be restrained within the limits of order
and justice, but by forces physical and moral, wielded over them by
authorities independent of their will. Hence their organization of
kings, hereditary nobles, and priests. Still further to constrain the
brute force of the people, they deem it necessary to keep them down by
hard labor, poverty, and ignorance, and to take from them, as from bees,
so much of their earnings, as that unremitting labor shall be necessary
to obtain a sufficient surplus barely to sustain a scanty and miserable
life. And these earnings they apply to maintain their privileged orders
in splendor and idleness, to fascinate the eyes of the people, and
excite in them an humble adoration and submission, as to an order of
superior beings. Although few among us had gone all these lengths of
opinion, yet many had advanced, some more, some less, on the way. And in
the convention which formed our government, they endeavored to draw
the cords of power as tight as they could obtain them, to lessen the
dependence of the general functionaries on their constituents, to
subject to them those of the States, and to weaken their means of
maintaining the steady equilibrium which the majority of the convention
had deemed salutary for both branches, general and local. To recover,
therefore, in practice, the powers which the nation had refused, and to
warp to their own wishes those actually given, was the steady object of
the federal party. Ours, on the contrary, was to maintain the will
of the majority of the convention, and of the people themselves. We
believed, with them, that man was a rational animal, endowed by nature
with rights, and with an innate sense of justice; and that he could
be restrained from wrong and protected in right, by moderate powers,
confided to persons of his own choice, and held to their duties
by dependence on his own will. We believed that the complicated
organization of kings, nobles, and priests, was not the wisest nor best
to effect the happiness of associated man; that wisdom and virtue were
not hereditary; that the trappings of such a machinery consumed, by
their expense, those earnings of industry they were meant to protect,
and, by the inequalities they produced, exposed liberty to sufferance.
We believed that men, enjoying in ease and security the full fruits of
their own industry, enlisted by all their interests on the side of
law and order, habituated to think for themselves, and to follow their
reason as their guide, would be more easily and safely governed, than
with minds nourished in error, and vitiated and debased, as in Europe,
by ignorance, indigence, and oppression. The cherishment of the people
then was our principle, the fear and distrust of them, that of the other
party. Composed, as we were, of the landed and laboring interests of the
country, we could not be less anxious for a government of law and order
than were the inhabitants of the cities, the strong holds of federalism.
And whether our efforts to save the principles and form of our
constitution have not been salutary, let the present republican freedom,
order, and prosperity of our country determine. History may distort
truth, and will distort it for a time, by the superior efforts at
justification of those who are conscious of needing it most. Nor will
the opening scenes of our present government be seen in their true
aspect, until the letters of the day, now held in private hoards, shall
be broken up and laid open to public view. What a treasure will be found
in General Washington’s cabinet, when it shall pass into the hands of
as candid a friend to truth as he was himself! When no longer, like
Caesar’s notes and memorandums in the hands of Anthony, it shall be open
to the high priests of federalism only, and garbled to say so much, and
no more, as suits their views.
With respect to his Farewell Address, to the authorship of which, it
seems, there are conflicting claims, I can state to you some facts. He
had determined to decline a re-election at the end of his first term,
and so far determined, that he had requested Mr. Madison to prepare for
him something valedictory, to be addressed to his constituents on his
retirement. This was done: but he was finally persuaded to acquiesce
in a second election, to which no one more strenuously pressed him than
myself, from a conviction of the importance of strengthening, by longer
habit, the respect necessary for that office, which the weight of his
character only could effect. When, at the end of this second term, his
Valedictory came out, Mr. Madison recognised in it several passages of
his draught; several others we were both satisfied were from the pen
of Hamilton, and others from that of the President himself. These he
probably put into the hands of Hamilton to form into a whole, and hence
it may all appear in Hamilton’s hand-writing, as if it were all of his
composition.
I have stated above, that the original objects of the federalists were,
1. To warp our government more to the form and principles of monarchy,
and 2. To weaken the barriers of the State governments as co-ordinate
powers. In the first they have been so completely foiled by the
universal spirit of the nation, that they have abandoned the enterprise,
shrunk from the odium of their old appellation, taken to themselves a
participation of ours, and under the pseudo-republican mask, are now
aiming at their second object, and strengthened by unsuspecting
or apostate recruits from our ranks, are advancing fast towards an
ascendancy. I have been blamed for saying, that a prevalence of the
doctrines of consolidation would one day call for reformation or
revolution. I answer by asking, if a single State of the Union would
have agreed to the constitution, had it given all powers to the General
Government? If the whole opposition to it did not proceed from the
jealousy and fear of every State, of being subjected to the other
States, in matters merely its own? And if there is any reason to believe
the States more disposed now than then, to acquiesce in this general
surrender of all their rights and powers to a consolidated government,
one and undivided?
You request me confidentially, to examine the question, whether the
Supreme Court has advanced beyond its constitutional limits, and
trespassed on those of the State authorities? I do not undertake it, my
dear Sir, because I am unable. Age, and the wane of mind consequent on
it, have disqualified me from investigations so severe, and researches
so laborious. And it is the less necessary in this case, as having been
already done by others with a logic and learning to which I could
add nothing. On the decision of the case of Cohens vs. The State of
Virginia, in the Supreme Court of the United States, in March, 1821,
Judge Roane, under the signature of Algernon Sidney, wrote for the
Enquirer, a series of papers on the law of that case. I considered these
papers maturely as they came out, and confess, that they appeared to me
to pulverize every word which had been delivered by Judge Marshall,
of the extra-judicial part of his opinion; and all was extra-judicial,
except the decision that the act of Congress had not purported to
give to the corporation of Washington the authority claimed by their
lottery-law, of controlling the laws of the States within the States
themselves. But unable to claim that case, he could not let it go
entirely, but went on gratuitously to prove, that notwithstanding the
eleventh amendment of the constitution, a State could be brought, as
a defendant, to the bar of his court; and again, that Congress might
authorize a corporation of its territory to exercise legislation within
a State, and paramount to the laws of that State. I cite the sum and
result only of his doctrines, according to the impression made on my
mind at the time, and still remaining. If not strictly accurate in
circumstance, it is so in substance. This doctrine was so completely
refuted by Roane, that if he can be answered, I surrender human reason
as a vain and useless faculty, given to bewilder, and not to guide us.
And I mention this particular case as one only of several, because it
gave occasion to that thorough examination of the constitutional limits
between the General and State jurisdictions, which you have asked for.
There were two other writers in the same paper, under the signatures of
Fletcher of Saltoun, and Somers, who in a few essays presented some very
luminous and striking views of the question. And there was a particular
paper which recapitulated all the cases in which it was thought the
federal court had usurped on the State jurisdictions. These essays will
be found in the Enquirers of 1821, from May the 10th to July the 13th.
It is not in my present power to send them to you, but if Ritchie can
furnish them, I will procure and forward them. If they had been read in
the other States, as they were here, I think they would have left, there
as here, no dissentients from their doctrine. The subject was taken up
by our legislature of 1821-22, and two draughts of remonstrances were
prepared and discussed. As well as I remember, there was no difference
of opinion as to the matter of right; but there was as to the expediency
of a remonstrance at that time, the general mind of the States being
then under extraordinary excitement by the Missouri question; and it
was dropped on that consideration. But this case is not dead; it only
sleepeth. The Indian Chief said, he did not go to war for every petty
injury by itself, but put it into his pouch, and when that was full,
he then made war. Thank Heaven, we have provided a more peaceable and
rational mode of redress.
This practice of Judge Marshall, of travelling out of his case to
prescribe what the law would be in a moot case not before the court, is
very irregular and very censurable. 1 recollect another instance, and
the more particularly, perhaps, because it in some measure bore on
myself. Among the midnight appointments of Mr. Adams, were commissions
to some federal justices of the peace for Alexandria. These were signed
and sealed by him, but not delivered. I found them on the table of the
department of State, on my entrance into office, and 1 forbade their
delivery. Marbury, named in one of them, applied to the Supreme Court
for a Mandamus to the Secretary of State (Mr. Madison), to deliver the
commission intended for him. The Court determined at once, that being an
original process, they had no cognizance of it; and there the question
before them was ended. But the Chief Justice went on to lay down what
the law would be, had they jurisdiction of the case; to wit, that they
should command the delivery.
The object was clearly to instruct any other court having the
jurisdiction, what they should do, if Marbury should apply to them.
Besides the impropriety of this gratuitous interference, could any thing
exceed the perversion of law? For if there is any principle of law never
yet contradicted, it is that delivery is one of the essentials to
the validity of a deed. Although signed and sealed, yet as long as it
remains in the hands of the party himself, it is in fieri only, it is
not a deed, and can be made so only by its delivery. In the hands of a
third person it may be made an escrow. But whatever is in the executive
offices is certainly deemed to be in the hands of the President; and, in
this case, was actually in my hands, because, when I countermanded them,
there was as yet no Secretary of State. Yet this case of Marbury and
Madison is continually cited by bench and bar, as if it were
settled law, without any animadversion on its being merely an obiter
dissertation of the Chief Justice.
It may be impracticable to lay down any general formula of words which
shall decide at once, and with precision, in every case, this limit of
jurisdiction. But there are two canons which will guide us safely in
most of the cases. 1. The capital and leading object of the constitution
was, to leave with the States all authorities which respected their
own citizens only, and to transfer to the United States those which
respected citizens of foreign or other States: to make us several as
to ourselves, but one as to all others. In the latter case, then,
constructions should lean to the general jurisdiction, if the words will
bear it; and in favor of the States in the former, if possible to be so
construed. And indeed, between citizens and citizens of the same
State, and under their own laws, I know but a single case in which a
jurisdiction is given to the General Government. That is, where any
thing but gold or silver is made a lawful tender, or the obligation of
contracts is any otherwise impaired. The separate legislatures had so
often abused that power, that the citizens themselves chose to trust
it to the general, rather than to their own special authorities. 2. On
every question of construction, carry ourselves back to the time when
the constitution was adopted, recollect the spirit manifested in the
debates, and instead of trying what meaning may be squeezed out of the
text, or invented against it, conform to the probable one in which it
was passed. Let us try Cohen’s case by these canons only, referring
always however, for full argument, to the essays before cited.
1. It was between a citizen and his own State, and under a law of his
State. It was a domestic case therefore, and not a foreign one.
2. Can it be believed, that under the jealousies prevailing against
the General Government, at the adoption of the constitution, the States
meant to surrender the authority of preserving order, of enforcing moral
duties, and restraining vice, within their own territory? And this is
the present case, that of Cohen being under the ancient and general law
of gaming. Can any good be effected, by taking from the States the moral
rule of their citizens, and subordinating it to the general authority,
or to one of their corporations, which may justify forcing the meaning
of words, hunting after possible constructions, and hanging inference on
inference, from heaven to earth, like Jacob’s ladder? Such an intention
was impossible, and such a licentiousness of construction and inference,
if exercised by, both governments, as may be done with equal right,
would equally authorize both to claim all powers, general and
particular, and break up the foundations of the Union. Laws are made for
men of ordinary understanding, and should, therefore, be construed by
the ordinary rules of common sense. Their meaning is not to be sought
for in metaphysical subtleties, which may make any thing mean every
thing or nothing, at pleasure. It should be left to the sophisms of
advocates, whose trade it is, to prove that a defendant is a plaintiff,
though dragged into court, torto collo, like Bonaparte’s volunteers into
the field in chains, or that a power has been given, because it ought
to have been given, et alia talia. The States supposed, that, by their
tenth amendment, they had secured themselves against constructive
powers. They were not lessoned yet by Cohen’s case, nor aware of the
slipperiness of the eels of the law. I ask for no straining of words
against the General Government nor yet against the States. I believe the
States can best govern our home concerns, and the General Government
our foreign ones. I wish, therefore, to see maintained that wholesome
distribution of powers, established by the constitution for the
limitation of both; and never to see all offices transferred to
Washington, where, further withdrawn from the eyes of the people, they
may more secretly be bought and sold, as at market.
But the Chief Justice says, ‘there must be an ultimate arbiter
somewhere.’ True, there must; but does that prove it is either party?
The ultimate arbiter is the people of the Union, assembled by their
deputies in convention, at the call of Congress, or of two thirds of the
States. Let them decide to which they mean to give an authority claimed
by two of their organs. And it has been the peculiar wisdom and felicity
of our constitution, to have provided this peaceable appeal, where that
of other nations is at once to force.
I rejoice in the example you set of _seriatim_ opinions. I have heard it
often noticed, and always with high approbation. Some of your brethren
will be encouraged to follow it occasionally, and in time, it may be
felt by all as a duty, and the sound practice of the primitive court
be again restored. Why should not every judge be asked his opinion, and
give it from the bench, if only by yea or nay? Besides ascertaining the
fact of his opinion, which the public have a right to know, in order
to judge whether it is impeachable or not, it would show whether the
opinions were unanimous or not, and thus settle more exactly the weight
of their authority.
The close of my second sheet warns me that it is time now to relieve
you from this letter of unmerciful length. Indeed, I wonder how I have
accomplished it, with two crippled wrists, the one scarcely able to move
my pen, the other to hold my paper. But I am hurried sometimes beyond
the sense of pain, when unbosoming myself to friends who harmonize with
me in principle. You and I may differ occasionally in details of minor
consequence, as no two minds, more than two faces, are the same in
every feature. But our general objects are the same; to preserve the
republican form and principles of our constitution, and cleave to the
salutary distribution of powers which that has established. These are
the two sheet anchors of our Union. If driven from either, we shall be
in danger of foundering. To my prayers for its safety and perpetuity, I
add those for the continuation of your health, happiness, and usefulness
to your country.
Th: Jefferson.
LETTER CLXXIII.--TO JAMES MADISON, August 30,1823
TO JAMES MADISON.
Monticello, August 30,1823.
Dear Sir,
I received the enclosed letters from the President, with a request that
after perusal I would forward them to you, for perusal by yourself also,
and to be returned then to him.
You have doubtless seen Timothy Pickering’s fourth of July observations
on the Declaration of Independence. If his principles and prejudices,
personal and political, gave us no reason to doubt whether he had truly
quoted the information he alleges to have received from Mr. Adams, I
should then say, that in some of the particulars, Mr. Adams’s memory
has led him into unquestionable error. At the age of eighty-eight, and
forty-seven years after the transactions of Independence, this is not
wonderful. Nor should I, at the age of eighty, on the small advantage
of that difference only, venture to oppose my memory to his, were it
not supported by written notes, taken by myself at the moment and on the
spot. He says, ‘The committee of five, to wit, Doctor Franklin,
Sherman, Livingston, and ourselves, met, discussed the subject, and
then appointed him and myself to make the draught; that, we, as a
sub-committee, met, and after the urgencies of each on the other, I
consented to undertake the task; that, the draught being made, we, the
sub-committee, met, and conned the paper over, and he does not remember
that he made or suggested a single alteration.’ Now these details
are quite incorrect. The committee of five met; no such thing as a
sub-committee was proposed, but they unanimously pressed on myself alone
to undertake the draught. I consented; I drew it: but before I reported
it to the committee, I communicated it separately to Doctor Franklin
and Mr. Adams, requesting their corrections, because they were the two
members of whose judgments and amendments I wished most to have the
benefit, before presenting it to the committee: and you have seen the
original paper now in my hands, with the corrections of Doctor Franklin
and Mr. Adams interlined in their own hand-writings. Their alterations
were two or three only, and merely verbal. I then wrote a fair copy,
reported it to the committee, and from them, unaltered, to Congress.
This personal communication and consultation with Mr. Adams, he
has misremembered into the actings of a sub-committee. Pickering’s
observations, and Mr. Adams’s in addition, ‘that it contained no new
ideas, that it is a common-place compilation, its sentiments hacknied
in Congress for two years before, and its essence contained in Otis’s
pamphlet,’ may all be true. Of that I am not to be the judge. Richard
Henry Lee charged it as copied from Locke’s Treatise on Government.
Otis’s pamphlet I never saw, and whether I had gathered my ideas from
reading or reflection I do not know. I know only that I turned to
neither book nor pamphlet while writing it. I did not consider it as
any part of my charge to invent new ideas altogether, and to offer no
sentiment which had ever been expressed before. Had Mr. Adams been
so restrained, Congress would have lost the benefit of his bold and
impressive advocations of the rights of Revolution. For no man’s
confident and fervid addresses, more than Mr. Adams’s, encouraged and
supported us through the difficulties surrounding us, which, like the
ceaseless action of gravity, weighed on us by night and by day. Yet, on
the same ground, we may ask what of these elevated thoughts was new, or
can be affirmed never before to have entered the conceptions of man?
Whether, also, the sentiments of Independence, and the reasons for
declaring it, which makes so great a portion of the instrument, had been
hacknied in Congress for two years before the 4th of July, ‘76, or this
dictum also of Mr. Adams be another slip of memory, let history
say. This, however, I will say for Mr. Adams, that he supported the
Declaration with zeal and ability, fighting fearlessly for every word of
it. As to myself, I thought it a duty to be, on that occasion, a passive
auditor of the opinions of others, more impartial judges than I could
be, of its merits or demerits. During the debate I was sitting by
Doctor Franklin, and he observed that I was writhing a little under
the acrimonious criticisms on some of its parts; and it was on that
occasion, that by way of comfort, he told me the story of John Thomson,
the hatter, and his new sign.
Timothy thinks the instrument the better for having a fourth of it
expunged. He would have thought it still better, had the other three
fourths gone out also, all but the single sentiment (the only one he
approves), which recommends friendship to his dear England, whenever she
is willing to be at peace with us. His insinuations are, that although
‘the high tone of the instrument was in unison with the warm feelings of
the times, this sentiment of habitual friendship to England should never
be forgotten, and that the duties it enjoins should especially be borne
in mind on every celebration of this anniversary.’ In other words, that
the Declaration, as being a libel on the government of England, composed
in times of passion, should now be buried in utter oblivion, to spare
the feelings of our English friends and Angloman fellow-citizens. But it
is not to wound them that we wish to keep it in mind; but to cherish the
principles of the instrument in the besoms of our own citizens: and it
is a heavenly comfort to see that these principles are yet so strongly
felt, as to render a circumstance so trifling as this little lapse of
memory of Mr. Adams’s, worthy of being solemnly announced and supported
at an anniversary assemblage of the nation on its birth-day. In
opposition, however, to Mr. Pickering, I pray God that these principles
may be eternal, and close the prayer with my affectionate wishes for
yourself of long life, health, and happiness.
Th: Jefferson.
LETTER CLXXIV.--TO JOHN ADAMS, September 4, 1823
TO JOHN ADAMS.
Monticello, September 4, 1823.
Dear Sir,