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| The Judicial Branch |
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The Judicial Branch must be
independent of other branches of government, but not independent of the nation itself. It
is rightly responsible to the people for irregular and censurable decisions, and judges
should be appointed for limited terms with reappointments resulting from approved conduct.
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"With us, all the branches
of the government are elective by the people themselves, except the judiciary, of whose
science and qualifications they are not competent judges. Yet, even in that department, we
call in a jury of the people to decide all controverted matters of fact, because to that
investigation they are entirely competent, leaving thus as little as possible, merely the
law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray,
1823. ME 15:482
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"It has been thought that
the people are not competent electors of judges learned in the law. But I do not
know that this is true, and, if doubtful, we should follow principle. In this, as in many
other elections, they would be guided by reputation, which would not err oftener, perhaps,
than the present mode of appointment." --Thomas Jefferson to Samuel Kercheval, 1816.
ME 15:36
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"Render the judiciary
respectable by every means possible, to wit, firm tenure in office, competent salaries and
reduction of their numbers." --Thomas Jefferson to Archibald Stuart, 1791. ME 8:277
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"The judiciary... is a body
which, if rendered independent and kept strictly to their own department, merits great
confidence for their learning and integrity." --Thomas Jefferson to James Madison,
1789. ME 7:309
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"The judges... should always
be men of learning and experience in the laws, of exemplary morals, great patience,
calmness and attention; their minds should not be distracted with jarring interests; they
should not be dependent upon any man or body of men. To these ends they should hold
estates for life in their offices, or, in other words, their commissions should be during
good behavior, and their salaries ascertained and established by law." --Thomas
Jefferson to George Wythe, 1776. ME 4:259, Papers 1:410
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"The dignity and stability
of government in all its branches, the morals of the people and every blessing of society
depend so much upon an upright and skillful administration of justice, that the judicial
power ought to be distinct from both the legislative and executive and independent upon
both, that so it may be a check upon both, as both should be checks upon that."
--Thomas Jefferson to George Wythe, 1776. Papers 1:410
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"The Constitution of the
United States having divided the powers of government into three branches, legislative,
executive, and judiciary, and deposited each with a separate body of magistracy,
forbidding either to interfere in the department of the other, the executive are not at
liberty to intermeddle in [a] question [that] must be ultimately decided by the Supreme
Court." --Thomas Jefferson to Charles Hellstedt, 1791. ME 8:126
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"It will be said, that [a
federal] court may encroach on the jurisdiction of the State courts. It may. But there
will be a power, to wit, Congress, to watch and restrain them. But place the same
authority in Congress itself, and there will be no power above them, to perform the same
office. They will restrain within due bounds, a jurisdiction exercised by others, much
more rigorously than if exercised by themselves." --Thomas Jefferson to James
Madison, 1787. ME 6:133
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Not Independent of the Nation |
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"A judiciary independent of
a king or executive alone is a good thing; but independence of the will of the nation is a
solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie,
1820. ME 15:298
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"Over the Judiciary
department, the Constitution [has] deprived [the nation] of their control." --Thomas
Jefferson to Spencer Roane, 1819. ME 15:212
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"The original error [was in]
establishing a judiciary independent of the nation, and which, from the citadel of the
law, can turn its guns on those they were meant to defend, and control and fashion their
proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807. FE 9:68
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"The principal [leaders of
the political opposition] have retreated into the judiciary as a stronghold, the tenure of
which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow,
1801. ME 10:223
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"It is a misnomer to call a
government republican in which a branch of the supreme power is independent of the
nation." --Thomas Jefferson to James Pleasants, 1821. FE 10:198
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"In England, where judges
were named and removable at the will of an hereditary executive, from which branch most
misrule was feared and has flowed, it was a great point gained by fixing them for life, to
make them independent of that executive. But in a government founded on the public will,
this principle operates in an opposite direction and against that will. There, too, they
were still removable on a concurrence of the executive and legislative branches. But we
have made them independent of the nation itself. They are irremovable but by their own
body for any depravities of conduct, and even by their own body for the imbecilities of
dotage." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:34
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"It is not enough that
honest men are appointed judges. All know the influence of interest on the mind of man,
and how unconsciously his judgment is warped by that influence. To this bias add that of
the esprit de corps, of their peculiar maxim and creed that 'it is the office of a good
judge to enlarge his jurisdiction,' and the absence of responsibility, and how can we
expect impartial decision between the General government, of which they are themselves so
eminent a part, and an individual state from which they have nothing to hope or
fear?" --Thomas Jefferson: Autobiography, 1821. ME 1:121
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"We have... [required] a
vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where
any defense is made before men of ordinary prejudices and passions, that our judges are
effectually independent of the nation. But this ought not to be. I would not indeed make
them dependent on the Executive authority, as they formerly were in England; but I deem it
indispensable to the continuance of this government that they should be submitted to some
practical and impartial control, and that this, to be impartial, must be compounded of a
mixture of state and federal authorities." --Thomas Jefferson: Autobiography, 1821.
ME 1:120
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"Having found from
experience that impeachment is an impracticable thing, a mere scarecrow, [the Judiciary]
consider themselves secure for life." --Thomas Jefferson to Thomas Ritchie, 1820. ME
15:297
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"Impeachment is a farce
which will not be tried again." --Thomas Jefferson to William B. Giles, 1807. ME
11:191
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Appointments for Limited Terms |
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"Our different States have
differently modified their several judiciaries as to the tenure of office. Some appoint
their judges for a given term of time; some continue them during good behavior, and
that to be determined on by the concurring vote of two-thirds of each legislative
house. In England they are removable by a majority only of each house. The last is
a practicable remedy; the second is not. The combination of the friends and associates of
the accused, the action of personal and party passions and the sympathies of the human
heart will forever find means of influencing one-third of either the one or the other
house, will thus secure their impunity and establish them in fact for life. The first
remedy is the better, that of appointing for a term of years only, with a capacity of
reappointment if their conduct has been approved." --Thomas Jefferson to A. Coray,
1823. ME 15:486
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"Let the future appointments
of judges be for four or six years and renewable by the President and Senate. This will
bring their conduct at regular periods under revision and probation, and may keep them in
equipoise between the general and special governments. We have erred in this point by
copying England, where certainly it is a good thing to have the judges independent of the
King. But we have omitted to copy their caution also, which makes a judge removable on the
address of both legislative houses." --Thomas Jefferson to William T. Barry, 1822. ME
15:389
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"If this would not be
independence enough, I know not what would be such short of the total irresponsibility
under which we are acting and sinning now... We require a majority of one house and
two-thirds of the other [for removal of a judge]--a concurrence which in practice has been
and ever will be found impossible; for the judicial 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 canvass of their conduct which would be open to
both houses regularly every sixth year." --Thomas Jefferson to James Pleasants, 1821.
FE 10:198
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"If a member of the
Executive or Legislature does wrong, the day is never far distant when the people will
remove him. They will see then and amend the error in our Constitution which makes any
branch independent of the nation." --Thomas Jefferson to William Branch Giles, 1807.
ME 11:191
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Irregular and Censurable
Decisions
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"Contrary to all correct
example, [the Federal judiciary] are in the habit of going out of the question before
them, to throw an anchor ahead and grapple further hold for future advances of power. They
are then in fact the corps of sappers and miners, steadily working to undermine the
independent rights of the States and to consolidate all power in the hands of that
government in which they have so important a freehold estate." --Thomas Jefferson:
Autobiography, 1821. ME 1:121
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"The judges... are
practicing on the Constitution by inferences, analogies, and sophisms, as they would on an
ordinary law. They do not seem aware that it is not even a Constitution formed by a single
authority and subject to a single superintendence and control, but that it is a compact of
many independent powers, every single one of which claims an equal right to understand it
and to require its observance." --Thomas Jefferson to Edward Livingston, 1825. ME
16:113
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"[The] 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." --Thomas Jefferson to
William Johnson, 1823. ME 15:447
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"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 engulfing
insidiously the special governments into the jaws of that which feeds them." --Thomas
Jefferson to Spencer Roane, 1821. ME 15:326
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"The judiciary of the United
States is the subtle corps of sappers and miners constantly working under ground to
undermine the foundations of our confederated fabric. They are construing our Constitution
from a co-ordination of a general and special government to a general and supreme one
alone. This will lay all things at their feet, and they are too well versed in English law
to forget the maxim, 'boni judicis est ampliare jurisdictionem.'" --Thomas
Jefferson to Thomas Ritchie, 1820. ME 15:297
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"It has long been my
opinion, and I have never shrunk from its expression,... that the germ of dissolution of
our Federal Government is in the constitution of the Federal Judiciary--an irresponsible
body (for impeachment is scarcely a scare-crow), working like gravity by night and by day,
gaining a little today and a little tomorrow, and advancing its noiseless step like a
thief over the field of jurisdiction until all shall be usurped from the States and the
government be consolidated into one. To this I am opposed." --Thomas Jefferson to
Charles Hammond, 1821. ME 15:331
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Undermining Republican Government |
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"At the establishment of our
Constitutions, the judiciary bodies were supposed to be the most helpless and harmless
members of the government. Experience, however, soon showed in what way they were to
become the most dangerous; that the insufficiency of the means provided for their removal
gave them a freehold and irresponsibility in office; that their decisions, seeming to
concern individual suitors only, pass silent and unheeded by the public at large; that
these decisions nevertheless become law by precedent, sapping by little and little the
foundations of the Constitution and working its change by construction before any one has
perceived that that invisible and helpless worm has been busily employed in consuming its
substance. In truth, man is not made to be trusted for life if secured against all
liability to account." --Thomas Jefferson to A. Coray, 1823. ME 15:486
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"This member of the
government... has proved that the power of declaring what the law is, ad libitum,
by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can
do what open force would not dare to attempt." --Thomas Jefferson to Edward
Livingston, 1825. ME 16:114
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"I do not charge the judges
with wilful and ill-intentioned error; but honest error must be arrested where its
toleration leads to public ruin. As for the safety of society, we commit honest maniacs to
Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading
us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the
republic, which is the first and supreme law." --Thomas Jefferson: Autobiography,
1821. ME 1:122
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"If, indeed, a judge goes
against the law so grossly, so palpably, as no imputable degree of folly can account for,
and nothing but corruption, malice or wilful wrong can explain, and especially if
circumstances prove such motives, he may be punished for the corruption, the malice, the
wilful wrong; but not for the error: nor is he liable to action by the party grieved. And
our form of government constituting its respective functionaries judges of the law which
is to guide their decisions, places all within the same reason, under the safeguard of the
same rule." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:130
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"One single object... [will
merit] the endless gratitude of society: that of restraining the judges from usurping
legislation. And with no body of men is this restraint more wanting than with the judges
of what is commonly called our General Government, but what I call our foreign
department." --Thomas Jefferson to Edward Livingston, 1825. ME 16:113
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"I must comfort myself with
the hope that the judges will see the importance and the duty of giving their country the
only evidence they can give of fidelity to its Constitution and integrity in the
administration of its laws; that is to say, by everyone's giving his opinion seriatim
and publicly on the cases he decides. Let him prove by his reasoning that he has read the
papers, that he has considered the case, that in the application of the law to it, he uses
his own judgment independently and unbiased by party views and personal favor or disfavor.
Throw himself in every case on God and country; both will excuse him for error and value
him for his honesty. The very idea of cooking up opinions in conclave begets suspicions
that something passes which fears the public ear, and this, spreading by degrees, must
produce at some time abridgement of tenure, facility of removal, or some other
modification which may promise a remedy." --Thomas Jefferson to William Johnson,
1823. ME 15:422
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"I... [am] against caucusing
judicial decisions, and for requiring judges to give their opinions seriatim, every
man for himself, with his reasons and authorities at large, to be entered of record in his
own words. A regard for reputation, and the judgment of the world, may sometimes be felt
where conscience is dormant, or indolence inexcitable. Experience has proved that
impeachment in our forms is completely inefficient." --Thomas Jefferson to Edward
Livingston, 1825. ME 16:114
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"Lay bare these wounds of
our Constitution, expose the decisions seriatim, and arouse, as it is able, the
attention of the nation to these bold speculators on its patience." --Thomas
Jefferson to Thomas Ritchie, 1820. ME 15:297
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| ME, FE = Memorial Edition, Ford Edition. |
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