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Subject Area: Political Theory
Topic: The American Revolution and Constitution

1821 - TO JAMES MADISON - Thomas Jefferson, The Works, vol. 12 (Correspondence and Papers 1816-1826) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 12.

Part of: The Works of Thomas Jefferson, 12 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO JAMES MADISON

j. mss.

Monticello, Jan. 13, 21

Dear Sir,

—I return you Mr. Coxe’s letter without saying I have read it. I made out enough to see that it was about the Missouri question, and the printed papers told me on which side he was. Could I have devoted a day to it, by interlining the words as I could pick them out, I might have got at more. The lost books of Livy or Tacitus might be worth this. Our friend would do well to write less and write plainer.

I am sorry to hear of the situation of your family, and the more so as that species of fever is dangerous in the hands of our medical boys. I am not a physician & still less a quack but I may relate a fact. While I was at Paris, both my daughters were taken with what we formerly called a nervous fever, now a typhus, distinguished very certainly by a thread-like pulse, low, quick and every now and then fluttering. Dr. Gem, an English physician, old, & of great experience, & certainly the ablest I ever met with, attended them. The one was about 5. or 6. weeks ill, the other 10. years old was 8. or ten weeks. He never gave them a single dose of physic. He told me it was a disease which tended with certainty to wear itself off, but so slowly that the strength of the patient might first fail if not kept up. That this alone was the object to be attended to by nourishment and stimulus. He forced them to eat a cup of rice, or panada, or gruel, or of some of the farinaceous substances of easy digestion every 2. hours and to drink a glass of Madeira. The youngest took a pint of Madeira a day without feeling it, and that for many weeks. For costiveness, injections were used; and he observed that a single dose of medicine taken into the stomach and consuming any of the strength of the patient was often fatal. He was attending a grandson of Mme. Helvetius, of 10 years old, at the same time, & under the same disease. The boy got so low that the old lady became alarmed and wished to call in another physician for consultation. Gem consented, that physician gave a gentle purgative, but it exhausted what remained of strength, and the patient expired in a few hours.

I have had this fever in my family 3. or 4. times since I have lived at home, and have carried between 20. & 30. patients thro’ it without losing a single one, by a rigorous observance of Dr. Gem’s plan and principle. Instead of Madeira I have used toddy of French brandy about as strong as Madeira. Brown preferred this stimulus to Madeira. I rarely had a case, if taken in hand early, to last above 1. 2. or 3. weeks, except a single one of 7. weeks, in whom when I thought him near his last, I discovered a change in his pulse to regularity, and in 12. hours he was out of danger. I vouch for these facts only, not for their theory. You may on their authority, think it expedient to try a single case before it has shewn signs of danger.

TO FRANCIS EPPES

j. mss.

Monticello, January 19, 1821

Dear Francis,

—Your letter of the 1st came safely to hand. I am sorry you have lost Mr. Elliot, however the kindness of Dr. Cooper will be able to keep you in the track of what is worthy of your time.

You ask my opinion of Lord Bolingbroke and Thomas Paine. They are alike in making bitter enemies of the priests and pharisees of their day. Both were honest men; both advocates for human liberty. Paine wrote for a country which permitted him to push his reasoning to whatever length it would go. Lord Bolingbroke in one restrained by a constitution, and by public opinion. He was called indeed a tory; but his writings prove him a stronger advocate for liberty than any of his countrymen, the whigs of the present day. Irritated by his exile, he committed one act unworthy of him, in connecting himself momentarily with a prince rejected by his country. But he redeemed that single act by his establishment of the principles which proved it to be wrong. These two persons differed remarkably in the style of their writing, each leaving a model of what is most perfect in both extremes of the simple and the sublime. No writer has exceeded Paine in ease and familiarity of style, in perspicuity of expression, happiness of elucidation, and in simple and unassuming language. In this he may be compared with Dr. Franklin; and indeed his Common Sense was, for awhile, believed to have been written by Dr. Franklin, and published under the borrowed name of Paine, who had come over with him from England. Lord Bolingbroke’s, on the other hand, is a style of the highest order. The lofty, rhythmical, full-flowing eloquence of Cicero. Periods of just measure, their members proportioned, their close full and round. His conceptions, too, are bold and strong, his diction copious, polished and commanding as his subject. His writings are certainly the finest samples in the English language, of the eloquence proper for the Senate. His political tracts are safe reading for the most timid religionist, his philosophical, for those who are not afraid to trust their reason with discussions of right and wrong.

You have asked my opinion of these persons, and, to you, I have given it freely. But, remember, that I am old, that I wish not to make new enemies, nor to give offence to those who would consider a difference of opinion as sufficient ground for unfriendly dispositions. God bless you, and make you what I wish you to be.

TO AROHIBALD THWEAT

j. mss.

Monticello, January 19, 1821

Dear Sir,

—I duly received your favor of the 11th, covering Judge Roane’s letter, which I now return. Of the kindness of his sentiments expressed towards myself I am highly sensible; and could I believe that my public services had merited the approbation he so indulgently bestows, the satisfaction I should derive from it would be reward enough to his wish that I would take a part in the transactions of the present day. I am sensible of my incompetence. For first, I know little about them, having long withdrawn my attention from public affairs, and resigned myself with folded arms to the care of those who are to care for us all. And, next, the hand of time pressing heavily on me, in mind as well as body, leaves to neither sufficient energy to engage in public contentions. I am sensible of the inroads daily making by the federal, into the jurisdiction of its co-ordinate associates, the State governments. The legislative and executive branches may sometimes err, but elections and dependence will bring them to rights. The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. Against this I know no one who, equally with Judge Roane himself, possesses the power and the courage to make resistance; and to him I look, and have long looked, as our strongest bulwark. If Congress fails to shield the States from dangers so palpable and so imminent, the States must shield themselves, and meet the invader foot to foot. This is already half done by Colonel Taylor’s book; because a conviction that we are right accomplishes half the difficulty of correcting wrong. This book is the most effectual retraction of our government to its original principles which has ever yet been sent by heaven to our aid. Every State in the Union should give a copy to every member they elect, as a standing instruction, and ours should set the example. Accept with Mrs. Thweat the assurance of my affectionate and respectful attachment.1

TO JOHN ADAMS

j. mss.

Monticello, January 22, 1821

I was quite rejoiced, dear Sir, to see that you had health and spirits enough to take part in the late convention of your State, for revising its constitution, and to bear your share in its debates and labors. The amendments of which we have as yet heard, prove the advance of liberalism in the intervening period; and encourage a hope that the human mind will some day get back to the freedom it enjoyed two thousand years ago. This country, which has given to the world the example of physical liberty, owes to it that of moral emancipation also, for as yet it is but nominal with us. The inquisition of public opinion overwhelms in practice, the freedom asserted by the laws in theory.

Our anxieties in this quarter are all concentrated in the question, what does the Holy Alliance in and out of Congress mean to do with us on the Missouri question? And this, by-the-bye, is but the name of the case, it is only the John Doe or Richard Roe of the ejectment. The real question, as seen in the States afflicted with this unfortunate population, is, are our slaves to be presented with freedom and a dagger? For if Congress has the power to regulate the conditions of the inhabitants of the States, within the States, it will be but another exercise of that power, to declare that all shall be free. Are we then to see again Athenian and Lacedemonian confederacies? To wage another Peloponnesian war to settle the ascendency between them? Or is this the tocsin of merely a servile war? That remains to be seen; but not, I hope, by you or me. Surely, they will parley awhile, and give us time to get out of the way. What a Bedlamite is man? But let us turn from our own uneasiness to the miseries of our southern friends. Bolivar and Morillo, it seems, have come to the parley, with dispositions at length to stop the useless effusion of human blood in that quarter. I feared from the beginning, that these people were not yet sufficiently enlightened for self-government; and that after wading through blood and slaughter, they would end in military tyrannies, more or less numerous. Yet as they wished to try the experiment, I wished them success in it; they have now tried it, and will possibly find that their safest road will be an accommodation with the mother country, which shall hold them together by the single link of the same chief magistrate, leaving to him power enough to keep them in peace with one another, and to themselves the essential power of self-government and self-improvement, until they shall be sufficiently trained by education and habits of freedom, to walk safely by themselves. Representative government, native functionaries, a qualified negative on their laws, with a previous security by compact for freedom of commerce, freedom of the press, habeas corpus and trial by jury, would make a good beginning. This last would be the school in which their people might begin to learn the exercise of civil duties as well as rights. For freedom of religion they are not yet prepared. The scales of bigotry have not sufficiently fallen from their eyes, to accept it for themselves individually. much less to trust others with it. But that will come in time, as well as a general ripeness to break entirely from the parent stem. You see, my dear Sir, how easily we prescribe for others a cure for their difficulties, while we cannot cure our own. We must leave both, I believe, to heaven, and wrap ourselves up in the mantle of resignation, and of that friendship of which I tender to you the most sincere assurances.

TO GEORGE A. OTIS

j. mss.

Monticello, Feb. 15. 21

Dear Sir,

—I have just now received your favor of Jan. 30. and confirm, by my belief, Mr. Jay’s criticism on the passages quoted from Botta. I can answer for it’s truth from this state southwardly and Northwardly, I believe, to New York, for which state Mr. Jay is himself a competent witness. What, Eastward of that, might be the dispositions towards England before the commencement of hostilities I know not. Before that I never had heard a whisper of disposition to separate from Great Britain. And after that, it’s possibility was contemplated with affliction by all. Writing is so slow and painful to me that I cannot go into details, but must refer you to Girardin’s history of Virginia pa. 134. and Appendix No. 12, where you will find some evidence of what the sentiment was at the moment, and given at the moment. I salute you with great esteem & respect.

TO JUDGE SPENCER ROANE

j. mss.

Monticello, March 9, 1821

Dear Sir,

—I am indebted for your favor of February 25th, and especially for your friendly indulgence to my excuses for retiring from the polemical world. I should not shrink from the post of duty, had not the decays of nature withdrawn me from the list of combatants. Great decline in the energies of the body import naturally a corresponding wane of the mind, and a longing after tranquillity as the last and sweetest asylum of age. It is a law of nature that the generations of men should give way, one to another, and I hope that the one now on the stage will preserve for their sons the political blessings delivered into their hands by their fathers. Time indeed changes manners and notions, and so far we must expect institutions to bend to them. But time produces also corruption of principles, and against this it is the duty of good citizens to be ever on the watch, and if the gangrene is to prevail at last, let the day be kept off as long as possible. We see already germs of this, as might be expected. But we are not the less bound to press against them. The multiplication of public offices, increase of expense beyond income, growth and entailment of a public debt, are indications soliciting the employment of the pruning-knife; and I doubt not it will be employed; good principles being as yet prevalent enough for that.

The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiously the special governments into the jaws of that which feeds them. The recent recall to first principles, however, by Colonel Taylor, by yourself, and now by Alexander Smith, will, I hope, be heard and obeyed, and that a temporary check will be effected. Yet be not weary of well doing. Let the eye of vigilance never be closed.

Last and most portentous of all is the Missouri question. It is smeared over for the present; but its geographical demarcation is indelible. What it is to become, I see not; and leave to those who will live to see it. The University will give employment to my remaining years, and quite enough for my senile faculties. It is the last act of usefulness I can render, and could I see it open I would not ask an hour more of life. To you I hope many will still be given; and, certain they will all be employed for the good of our beloved country, I salute you with sentiments of especial friendship and respect.1

TO SAMUEL H. SMITH

j. mss.

Monticello, Apr. 12. 21

Dear Sir,

—I received yesterday your favor of the 5th and now inclose for Mr. Barton a letter of introduction to M. de la Fayette, the only personal acquaintance I have, now living in France.

On politics I can say little to you, having withdrawn all attention to them from the day of my retirement. My confidence in both my successors has been so entire, that assured that all was going on for the best under their care I have not enquired what was going on. I am sorry to see our expences greater than our income. Debt & revolution are inseparable as cause and effect. It is the point of peculiar sensibility in our people, and one which they will not long endure. Parties will be arrayed on the principle of reformation, and there can be no doubt which will be the strongest. It would do some good if it would obliterate the geographical division which threatened and still threatens our separation. This last is a most fatal of all divisions as no minority will submit to be governed by a majority acting merely on a geographical principle. It has ever been my creed that the continuance of our union depends entirely on Pennsylve & Virginia, if they hold together nothing North or South will fly off. I firmly believe all the governments of Europe will become representative. The very troops sent to quell the spirit of reformn. in Naples will catch the fever & carry it back to their own country. We owe to all mankind the sacrifice of those morbid passions which would break our confederacy, the only anchor to which the hopes of the world are moored. Our thoughts and conversations are often turned to Mrs. Smith & yourself, and always affectionately. In these sentiments the family now joins me, and in tendering to you our affectionate souvenirs.

TO HENRY DEARBORN

j. mss.

Monticello, August 17, 1821

Dear Sir,

—Your favor of the 8th came to hand yesterday evening. I hope you will never suppose your letters to be among those which are troublesome to me. They are always welcome, and it is among my great comforts to hear from my ancient colleagues, and to know that they are well. The affectionate recollection of Mrs. Dearborne, cherished by our family, will ever render her health and happiness interesting to them. You are so far astern of Mr. Adams and myself, that you must not yet talk of old age. I am happy to hear of his good health. I think he will outlive us all, I mean the Declaration-men, although our senior since the death of Colonel Floyd. It is a race in which I have no ambition to win. Man, like the fruit he eats, has his period of ripeness. Like that, too, if he continues longer hanging to the stem, it is but an useless and unsightly appendage. I rejoice with you that the State of Missouri is at length a member of our Union. Whether the question it excited is dead, or only sleepeth, I do not know. I see only that it has given resurrection to the Hartford convention men. They have had the address, by playing on the honest feelings of our former friends, to seduce them from their kindred spirits, and to borrow their weight into the federal scale. Desperate of regaining power under political distinctions, they have adroitly wriggled into its seat under the auspices of morality, and are again in the ascendency from which their sins had hurled them. It is indeed of little consequence who governs us, if they sincerely and zealously cherish the principles of union and republicanism.

I still believe that the Western extension of our confederacy will ensure its duration, by overruling local factions, which might shake a smaller association. But whatever may be the merit or demerit of that acquisition, I divide it with my colleagues, to whose counsels I was indebted for a course of administration which, notwithstanding this late coalition of clay and brass, will, I hope, continue to receive the approbation of our country.

The portrait by Stewart was received in due time and good order, and claims, for this difficult acquisition, the thanks of the family, who join me in affectionate souvenirs of Mrs. Dearborne and yourself. My particular salutations to both flow, as ever, from the heart, continual and warm.

TO NATHANIEL MACON

j. mss.

Monticello, Aug. 19. 21

Dear Sir,

—You have probably seen in the newspapers a letter of mine recommending Colo. Taylor’s book to the notice of our fellow-citizens. I am pelted for it in print, and in letters, also complaining of the unfair use made of it by certain commentators. For this misuse I cannot be responsible. But I inclose to you my answer to one of these letters and place it in your hands as the Depository of old & sound principles and as a record of my protest against this parricide tribunal. There are two measures which if not taken, we are undone. 1st. to check these unconstitutional invasions of state rights by the federal judiciary. How? not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines, advanced by the supreme court, are contrary to the constitution: and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others, and oppose their usurpations? 2. To cease borrowing money & to pay off the national debt. If this cannot be done without dismissing the army & putting the ships out of commission, haul them up high and dry, and reduce the army to the lowest point at which it was ever established. There does not exist an engine so corruptive of the government and so demoralizing of the nation as a public debt. It will bring on us more ruin at home than all the enemies from abroad against whom this army and navy are to protect us. What interest have we in keeping ships in service in the Pacific Ocean? To protect a few speculative adventurers in a commerce dealing in nothing in which we have an interest. As if the Atlantic & Mediterranean were not large enough for American capital! As if commerce and not agriculture was the principle of our association! God bless you & long continue your wholesome influence in the public councils.1

TO JAMES MADISON

j. mss.

Monticello, Sep. 16. 21

Dear Sir,

—I have no doubt you have occasionally been led to reflect on the character of the duty imposed by Congress on the importation of books. Some few years ago, when the tariff was before Congress, I engaged some of our members of Congress to endeavour to get the duty repealed and wrote on the subject to some other acquaintances in Congress, and pressingly to the Secretary of the treasury. The effort was made by some members with zeal and earnestness, but it failed. The northern colleges are now proposing to make a combined effort for that purpose as you will see by the inclosed extract of a letter from Mr. Ticknor asking the co-operation of the Southern and Western institutions, & of our university particularly. Mr. Ticknor goes so ably into all the considerations justifying this step, that nothing need be added here, & especially to you; and we have only to answer his questions, whether we think with them on the subject of the tax? What should be the extent of the relaxation solicited? What mode of proceeding we think best? And whether we will co-operate in our visitatorial character? I must earnestly request your thoughts on these questions, fearful of answering them unadvisedly, and on my own opinions alone.

I think that another measure, auxiliary to that of petitioning might be employed with great effect. That is for the several institutions, in their corporate capacities, to address letters to their representatives in both houses of Congress, recommending the proposition to their advocation. Such a recommendation would certainly be respected, and might excite to activity those who might otherwise be indifferent and inactive and in this way a great vote, perhaps a majority might be obtained. There is a consideration going to the injustice of the tax which might be added to those noticed by Mr. Ticknor. Books constitute capital. A library book lasts as long as a house, for hundreds of years. It is not then an article of mere consumption but fairly of capital, and often in the case of professional men, setting out in life it is their only capital. Now there is no other form of capital which is first taxed 18. per cent on the gross, and the proprietor then left to pay the same taxes in detail with others whose capital has paid no tax on the gross. Nor is there a description of men less proper to be singled out for extra taxation. Mr. Ticknor, you observe, asks a prompt answer, and I must ask it from you for the additional reason that within about a week, I set out for Bedford to remain there till the approach of winter. Be so good as to return me also the inclosed extract and be assured of my constant & affectionate friendship.

TO MRS. ELIZABETH PAGE1
[NÉE MISS NELSON.]

Monticello, Dec. 8, ’21

It would give me infinite pleasure, dear Madam, could I have afforded you the information requested in your favor of the 27th of Nov. respecting the sacrifices of property to the relief of his country made by the virtuous General Nelson, your father, while in office during the war of the revolution. I retired from the administration of the government in May 1781. Until that time the paper money, altho’ it had been gradually depreciating from an early period, yet served the purposes of obtaining supplies, and was issued, as wanted, by the legislature. Consequently until that period there had been no occasion for advances of money in aid of the public, by any private individual. I was succeeded as governor by Genl. Nelson. Within his period the credit of the money went rapidly down to nothing, and ceased to be offered or received. At this time came on the Northern & French armies, and to enable these to keep the field during the siege of York was probably the occasion which led the General to take on himself responsibilities for which the public credit might not perhaps be sufficient. I was entirely withdrawn from public affairs, being confined at home, first for many months by a severe domestic loss, until I was sent to Congress and thence to Europe, from whence I did not return until some time after the death of the worthy General. I then first heard mention of his losses by responsibilities for the public: and knowing his zeal, liberality & patriotism, I readily credited what I heard, altho’ I knew nothing of the particulars or of their extent.

It would have been a matter of great satisfaction to me, could I by any knowledge of facts have contributed to obtain a just remuneration and relief for his family, and particularly for Mrs. Nelson, whose singular worth and goodness I have intimately known now more than half a century and whose name revives in my mind the affectionate recollections of my youth. With my regrets at this unprofitable appeal, be so kind as to tender her assurances of my continued and devoted respect, and to accept yourself those of my highest esteem and regard.

TO THE REV. MR. HATCH1

Monticello, Dec. 8. 21

Dear Sir,

—In the antient Feudal times of our good old forefathers when the Seigneur married his daughter, or knighted his son, it was the usage for his vassals to give him a year’s rent extra in the name of an Aid. I think it as reasonable when our Pastor builds a house, that each of his flock should give him an Aid of a year’s contribution. I inclose mine as a tribute of Justice, which of itself indeed is nothing, but as an example, if followed, may become something. In any event be pleased to accept it as an offering of duty, & a testimony of my friendly attachment and high respect.

TO JAMES PLEASANTS

j. mss.

Monticello, Dec. 26. 21

Dear Sir,

—I learn with real regret from your favor of the 10th the several circumstances which have deprived me of the pleasure of seeing, either here or at Poplar Forest, a relation whom I have long been taught to esteem, altho I have not the advantage of his personal acquaintance. I must find my consolation in the French adage that tout ce qui est differe n’est pas perdu, assuring you that no visit will be received with more welcome. My hope too of a reiteration of effort is strengthened by the presumed additional excitement of curiosity to see our University; this now draws to it numerous visitors from every part of the state & from strangers passing thro it. I can assure you there is no building in the US. so worthy of being seen, and which gives an idea so adequate of what is to be seen beyond the Atlantic. There, to be sure they have immensely larger and more costly masses, but nothing handsomer or in chaster style.

The balance which you mention as coming to me from Ronald’s executors be so good as to have paid into the hands of Colo. Bernard Peyton my correspondent in Richmond.

I find you are to be harassed again with a bankrupt law. Could you not compromise between agriculture and commerce by passing such a law which like the bye laws of incorporate towns, should be binding on the inhabitants of such towns only, being the residence of commerce, leaving the agriculturists, inhabitants of the country, in undisturbed possession of the rights & modes of proceedings to which their habits, their interests and their partialities attach them? This would be as uniform as other laws of local obligation.

But you will have a more difficult task in curbing the Judiciary in their enterprises on the constitution. I doubt whether the erection of the Senate into an appellate court on Constitutional questions would be deemed an unexceptionable reliance; because it would enable the judiciary, with the representatives in Senate of one third only of our citizens, and that in a single house, to make by construction what they should please of the constitution, and thus bind in a double knot the other two thirds, for I believe that one third of our citizens chuse a majority of the Senate, and these too of the smaller states whose interests lead to lessen state influence, & strengthen that of the general government. A better remedy I think, and indeed the best I can devise would be to give future commissions to judges for six years (the Senatorial term) with a re-appointmentability by the president with the approbation of both houses. That of the H. of Repr. imports a majority of citizens, that of the Senate a majority of states and that of both a majority of the three sovereign departments of the existing government, to wit, of it’s Executive & legislative branches. If this would not be independance enough, I know not what would be such, short of the total irresponsibility under which we are acting and sinning now. The independance of the judges in England on the King alone is good; but even there they are not independant on the Parliament; being removable on the joint address of both houses, by a vote of a majority of each, but we require a majority of one house and 2/3 of the other, a concurrence which, in practice, has been and ever will be found impossible; for the judiciary perversions of the constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every 6th year. It is a misnomer to call a government republican, in which a branch of the supreme power is independant of the nation. By this change of tenure a remedy would be held up to the states, which altho’ very distant, would probably keep them quiet. In aid of this a more immediate effect would be produced by a joint protestation of both Houses of Congress, that the doctrines of the judges in the case of Cohens, adjudging a state amenable to their tribunal, and that Congress can authorize a corporation of the district of Columbia to pass any act which shall have the force of law within a state, are contrary to the provisions of the Constitution of the US. This would be effectual; as with such an avowal of Congress, no state would permit such a sentence to be carried into execution, within it’s limits. If, by the distribution of the sovereign powers among three branches, they were intended to be checks on one another, the present case calls loudly for the exercise of that duty, and such a counter declaration, while proper in form, would be most salutary as a precedent.

Another most condemnable practice of the supreme court to be corrected is that of cooking up a decision in Caucus & delivering it by one of their members as the opinion of the court, without the possibility of our knowing how many, who, and for what reasons each member concurred. This compleatly defeats the possibility of impeachment by smothering evidence. A regard for character in each being now the only hold we can have of them, we should hold fast to it. They would, were they to give their opinions seriatim and publicly, endeavor to justify themselves to the world by explaining the reasons which led to their opinion. While Edmd Randolph was attorney general, he was charged on a particular occasion by the H. of R. to prepare a digest and some amendments to the judiciary law. One of the amendments he proposed was that every judge should give his individual opinion, and reasons in open court, which opinions and reasons should be recorded in a separate book to be published occasionally in the nature of Reports. Other business prevented Congress from acting then on the bill. Such a provision would produce valuable effect and emulation in forming an opinion and correctly reasoning on it; and would give us Reports, unswelled by the arguments of counsel and within the compass of our reading and book shelves. But these things belong to the present generation, who are to live under them. The machine, as it is, will, I believe, last my time, and those coming after will know how to repair it to their own minds. I cannot help sometimes yielding to senile garrulity on matters not belonging to me, yet I pray not to be quoted, but pardoned for this weakness of age. With my prayers that our constitution may perpetuum durare per aevum accept the assurances of my affectionate esteem and respect.

TO THOMAS MANN RANDOLPH

j. mss.

Monticello, Dec. 31. 21

Dear Sir,

—The inclosed paper was handed to me by our dear Martha with a request that I would consider it, and say to you what I think of it. General Taylor has certainly stated the objections to Mr. Hackley’s claim so fairly, fully and powerfully, that I need not repeat them, observing only that in mentioning the notice which Erving had of the negociation with Alagon, he does not mention Mr. Hackley’s notice, who on the 29th of May 1819 took a conveyance from Alagon with a full knolege that 3. months before, the US. had by treaty become proprietors of the whole province, and with an express annulment of the very title he was purchasing. This is more than a set off against the implied notice of our government thro Erving. However the circumstance of notice, duly examined, has little weight in the case. The effect of the ratification is the true point, & that on which Genl. Taylor very properly rests it, and on which it will turn. On that two questions will arise.

1. Did the ratification by the Cortes extend to the 2d & 3d articles only and not to the 8th and it’s subsequent explanations of the extent of these articles? If we are to decide this question for ourselves (doubting the judgment of our government) we should have the act of the Cortes before us, to examine critically it’s precise terms. But that I presume we have not; as Genl. Taylor seems to take his information of it from the recital in the preamble of the Spanish ratification, that the “consent and authority of the general Cortes with respect to the occasion mentioned and stipulated in the 2d and 3d articles, had been first obtained.” May not this mean that they had consented to all the articles which respect the cession mentioned in the 2d and 3d? Is it a necessary inference from this that the Cortes had not consented to any other article, and especially the 8th and it’s explanations which respect the cession mentioned in the 2d and 3d, and their extent? Which is most probable, that the Cortes refused their assent to that article? or that the King omitted to communicate it to them? or that, altho’ the fact of consent might be material, it’s mention in the recital being unnecessary & superfluous, might be neither fully nor critically made? Again, when we consider that our government (informed that grants had been made to Alagon, Punon Rostro & de Vargas, subsequent in truth to Jan. 24. 18. but antedated fraudulently to bring them within the treaty, which grants covered nearly the whole country, from the boundary of the US. to the sea) made their nullification a sine qua non of the treaty, that they pertinaciously continued to refuse concluding it until their nullification was agreed to, can we believe they did conclude without knowing that the ratification of this article was as formal and firm as that of the articles it respected and explained? Did they mean to deceive their country and palm upon us a fallacious instrument? or were they deceived themselves, that is to say, the President, all the heads of departments, the Atty General, and the whole Senate, as having less knolege than we have of what was a valid ratification? I confess that these considerations have weight with me when opposed to the opinion of Genl. Taylor as to the validity of the ratification.

2. But a second question may be made, whether the ratification of the Cortes was necessary? Whether the constitution proposed by them for the colonies had authority in them until accepted in each colony respectively? The inhabitants of the colonies themselves, our government and our nation, certainly deny that it could, on principle, be in force in any colony without it’s consent; and at the date of the ratification, not a single colony had accepted, nor do I know that a single one has done it to this day. I think myself certain that the Floridas have not. The old government continued in them to the day of their surrender; and under the old government, a cession of territory and ratification by the king was conclusive. Of this the cession of the same countries by the king to England, that of a degree of latitude of them to the US. and that of Louisiana to France are sufficient proofs.

It is with real reluctance that I feel or express any doubts adverse to the interests of Mr. Hackley. I do it to yourself only, and with a wish not to be quoted, as well to avoid injury to him, as the implication of myself in anything controversial. I am far from having strong confidence in doubts of what two such able jurists have decided; yet for Mr. Hackley’s sake I anxiously wish that he should not be so far over-confident in the certainty of these opinions as to enter into any warranties of title in the portions he may dispose of. These vast grants of land are entirely against the policy of our government. They have ever set their faces most decidedly against such monopolies. In all their sales of land they have taken every measure they could devise to prevent speculations in them by purchases to sell again, & to provide that sales should be made to settlers alone. On this ground Mr. Hackley will have to contend against prejudices deeply rooted. These might perhaps be somewhat softened if, instead of taking adverse possession, which the President is bound to remove summarily by the military, he were to make to Congress a full and candid statement of the considerations he has paid, or the sacrifices made, of which these lands are the compensation. They might in that case make him such a grant as would amount to a liberal indemnification.

I shall ever studiously avoid expressing to any person any doubt which might injure Mr. Hackley’s prospects from this source, and sincerely wish him the most can be made of them. I renew to yourself affectionate assurances of attachment and respect.

[1 ]Jefferson again wrote to Thweat:

Monticello, Dec. 24, 21

Dear Sir,

—I have duly received your two favors of Nov. 6. & Dec. 13. requesting me to consent to the publication of my opinion on the encroachments of the judiciary of the U.S. expressed in a former letter to you, but my dear Sir, there is a time for things; for advancing and for retiring; for a Sabbath of rest as well as for days of labor, and surely that Sabbath has arrived for one near entering on his 80th year. Tranquility is the summum bonum of that age. I wish now for quiet, to withdraw from the broils of the world, to soothe enmities and to die in the peace and good will of all mankind. The thing too which you request has been done in substance. In the extract of a letter, published with my consent, recommending Colo. Taylor’s book, and in a letter to a Mr. Jarvis, who wrote and sent me a book entitled the Republican, in which letter, I formally combated his heretical doctrine that the judiciary is the ultimate expounder and arbiter of all constitutional questions. You are not aware of the inveterate hatred still rankling in the hearts of some of our old tories. I received the last summer a 4th of July oration from the son of a deceased friend. In my answer I commended it’s principles in moderate and inoffensive terms, expressing at the same time my affections for his father. He published my letter, and it drew on me torrents of abuse, from particular tory papers, in the revived spirit of 96. and 1800. Their columns were filled with Billingsgate against me, for several months. No, my dear friend, permit me at length to retire from the angry passions of mankind and to pass in undisturbed repose the few days remaining to me of life. They will surely be past in sentiments of sincere esteem and respect for yourself, and affectionate attachment to Mrs. Thweat.

[1 ]Jefferson further wrote to Judge Roane:

Monticello, June 27, 1821

EXTRACT OF A LETTER FROM TH: JEFFERSON TO —.



I have read Colonel Taylor’s book of Constructions Construed, with great satisfaction, and, I will say, with edification; for I acknowledge it corrected some errors of opinion into which I had slidden without sufficient examination. It is the most logical retraction of our governments to the original and true principles of the constitution creating them, which has appeared since the adoption of that instrument. I may not perhaps concur in all its opinions, great and small; for no two men ever thought alike on so many points. But on all its important questions, it contains the true political faith, to which every catholic republican should steadfastly hold. It should be put into the hands of all our functionaries, authoritatively, as a standing instruction, and true exposition of our Constitution, as understood at the time we agreed to it. It is a fatal heresy to suppose that either our State governments are superior to the federal, or the federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made co-ordinate, checking and balancing each other, like the three cardinal departments in the individual States: each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself, or to its coparcenor in government. As independent, in fact, as different nations, a spirit of forbearance and compromise, therefore, and not of encroachment and usurpation, is the healing balm of such a constitution; and each party should prudently shrink from all approach to the line of demarcation, instead of rashly overleaping it, or throwing grapples ahead to haul to hereafter. But, finally, the peculiar happiness of our blessed system is, that in differences of opinion between these different sets of servants, the appeal is to neither, but to their employers peaceably assembled by their representatives in Convention. This is more rational than the jus fortioris, or the cannon’s mouth, the ultima et sola ratio regum.

[1 ]In reply to a question from Macon concerning this letter, Jefferson wrote to him:

Buckspring, Oct. 20, ’21

Absence at an occasional but distant residence prevented my receiving your friendly letter of Oct. 20. [sic] till 3. d. ago. A line from good old friends is like balm to my soul. You ask me what you are to do with my letter of Sep. [sic] 19. I wrote it, my dear Sir, with no other view than to pour my thoughts into your bosom. I knew they would be safe there, and I believed they would be welcome, but if you think, as you say, that ‘good would be done by shewing it to a few well tried friends’ I have no objectn to that. But ultimately you cannot do better than to throw it into the fire. My confidence, as you kindly observed, has been often abused by the publication of my ltres for the purposes of interest or vanity; and it has been to me the source of much pain to be exhibited before the public in forms not meant for them. I receive lres expressed in the most frdly & even affectionate terms, sometimes perhaps asking my opn on some subject. I cannot refuse to answer such letters, nor can I do it dryly & suspiciously. Among a score or two of such correspdts, one perhaps betrays me. I feel it mortifyingly, but conclude I had better incur one treachery than offend a score or two of good people. I sometimes expressly desire that my letters may not be publd, but this is so like requesting a man not to steal or cheat that I am ashamed of it after I have done it.

Our govmt is now taking so steady a course as to shew by what road it will pass to destruction, to wit, by consolidn first, & then corruption, it’s necessary consequence. The engine of consolidn will be the Fedl judiciary, the two other branches the corrupted & corrupting instruments. I fear an explosion in our state legislature, I wish they may confine themselves to a strong but pacific temper. Protestn Virge is not at present in favr with her co-states. An opposn headed by her would determine all the anti-Missouri states to take the contrary side. She had better lie by therefore until the shoe shall pinch an Eastern state. Let the cry be first raised from that quarter & we may fall into it with effect. But I fear our Eastern associates wish for consolidn, in which they would be joined by the smaller states generally, but with a foot in the grave I have no right to meddle with these things. Ever & affectly.

[1 ]From the original in the possession of Dr. Thomas Addis Emmet of New York.

[1 ]From the original in the possession of Mr. F. G. Burnham of Morristown, New Jersey.