Thomas Jefferson, to Spencer Roane
6 Sept. 1819
Works 12:135--38
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 federal 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 scarecrow; 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 nowhere 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.
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.1
When the British treaty of------ 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.
1. The constitution controlling the common law
in this particular,--T. J.
The Works of Thomas Jefferson. Collected
and edited by Paul Leicester Ford. Federal Edition. 12 vols. New
York and London: G. P. Putnam's Sons, 1904--5.