Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 4
TekstLETTER CLXXXIII.—TO EDWARD EVERETT, October 15, 1824
TO EDWARD EVERETT
Monticello, October 15, 1824.
Dear Sir,
I have yet to thank you for your O. B. K. oration, delivered in presence of General la Fayette. It is all excellent, much of it sublimely so, well worthy of its author and his subject, of whom we may truly say, as was said of Germanicus, ‘Fruitur famâ sui.’
Your letter of September the 10th gave me the first information that mine to Major Cartwright had got into the newspapers; and the first notice, indeed, that he had received it. I was a stranger to his person, but not to his respectable and patriotic character. I received from him a long and interesting letter, and answered it with frankness, going without reserve into several subjects, to which his letter had led, but on which I did not suppose I was writing for the newspapers. The publication of a letter in such a case, without the consent of the writer, is not a fair practice.
The part which you quote, may draw on me the host of judges and divines. They may cavil, but cannot refute it. Those who read Prisot’s opinion with a candid view to understand, and not to chicane it, cannot mistake its meaning. The reports in the Year-books were taken very short. The opinions of the judges were written down sententiously, as notes or memoranda, and not with all the developement which they probably used in delivering them. Prisot’s opinion, to be fully expressed, should be thus paraphrased. ‘To such laws as those of holy church have recorded, and preserved in their ancient books and writings, it is proper for us to give credence; for so is, or so says, the common law, or law of the land, on which all manner of other laws rest for their authority, or are founded; that is to say, the common law, or the law of the land common to us all, and established by the authority of us all, is that from which is derived the authority of all other special and subordinate branches of law, such as the canon law, law merchant, law maritime, law of Gavelkind, Borough English, corporation laws, local customs and usages, to all of which the common law requires its judges to permit authority in the special or local cases belonging to them. The evidence of these laws is preserved in their ancient treatises, books, and writings, in like manner as our own common law itself is known, the text-of its original enactments having been long lost, and its substance only preserved in ancient and traditionary writings. And if it appears, from their ancient books, writings, and records, that the bishop, in this case, according to the rules prescribed by these authorities, has done what an ordinary would have done, in such case, then we should adjudge it good, otherwise not.’ To decide this question, they would have to turn to the ancient writings and records of the canon law, in which they would find evidence of the laws of advowsons, quare impedit, the duties of bishops and ordinaries, for which terms Prisot could never have meant to refer them to the Old or New Testament, les saincts scriptures, where surely they would not be found. A license which should permit ‘ancien scripture’ to be translated ‘holy scripture,’ annihilates at once all the evidence of language. With such a license, we might reverse the sixth commandment into ‘Thou shalt not omit murder.’ It would be the more extraordinary in this case, where the mistranslation was to effect the adoption of the whole code of the Jewish and Christian laws into the text of our statutes, to convert religious offences into temporal crimes, to make the breach of every religious precept a subject of indictment, submit the question of idolatry, for example, to the trial of a jury, and to a court, its punishment, to the third and fourth generation of the offender. Do we allow to our judges this lumping legislation?
The term ‘common law,’ although it has more than one meaning, is perfectly definite, secundum subjectam materiem. Its most probable origin was on the conquest of the Heptarchy by Alfred, and the amalgamation of their several codes of law into one, which became common to them all. The authentic text of these enactments has not been preserved; but their substance has been committed to many ancient books and writings, so faithfully as to have been deemed genuine from generation to generation, and obeyed as such by all. We have some fragments of them collected by Lambard, Wilkins, and others, but abounding with proofs of their spurious authenticity. Magna Charta is the earliest statute, the text of which has come down to us in an authentic form, and thence downward we have them entire. We do not know exactly when the common law and statute law, the lex scripta et non scripta, began to be contra-distinguished, so as to give a second acceptation to the former term; whether before or after Prisot’s day, at which time we know that nearly two centuries and a half of statutes were in preservation. In later times, on the introduction of the chancery branch of law, the term common law began to be used in a third sense, as the correlative of chancery law. This, however, having been long after Prisot’s time, could not have been the sense in which he used the term. He must have meant the ancient lex, non scripta, because, had he used it as inclusive of the lex scripta, he would have put his finger on the statute which had enjoined on the judges a deference to the laws of holy church. But no such statute existing, he must have referred to the common law in the sense of a lex non scripta. Whenever, then, the term common law is used in either of these senses, and it is never employed in any other, it is readily known in which of them by the context and subject matter under consideration; which, in the present case, leave no room for doubt. I do not remember the occasion which led me to take up this subject, while a practitioner of the law. But I know I went into it with all the research which a very copious law library enabled me to indulge; and I fear not for the accuracy of any of my quotations. The doctrine might be disproved by many other and different topics of reasoning; but having satisfied myself of the origin of the forgery, and found how, like a rolling snow-ball, it had gathered volume, I leave its further pursuit to those who need further proof, and perhaps I have already gone further than the feeble doubt you expressed might require, I salute you with great esteem and respect.
Th: Jefferson.
LETTER CLXXXIV.—TO JOSEPH C. CABELL, January 11, 1825
TO JOSEPH C. CABELL.
Monticello, January 11, 1825.
Dear Sir,
We are dreadfully nonplussed here by the non-arrival of our three Professors. We apprehend that the idea of our opening on the 1st of February prevails so much abroad (although we have always mentioned it doubtfully), as that the students will assemble on that day without awaiting the further notice which was promised. To send them away will be discouraging, and to open an University without Mathematics or Natural Philosophy would bring on us ridicule and disgrace. We therefore publish an advertisement, stating that on the arrival of these Professors, notice will be given of the day of opening the institution.
Governor Barbour writes me hopefully of getting our fifty thousand dollars from Congress. The proposition has been originated in the House of Representatives, referred to the committee of claims, the chairman of which has prepared a very favorable report, and a bill conformable, assuming the repayment of all interest which the State has actually paid. The legislature will certainly owe to us the recovery of this money; for had they not given it in some measure the reverenced character of a donation for the promotion of learning, it would never have been paid. It is to be hoped, therefore, that the displeasure incurred by wringing it from them at the last session, will now give way to a contrary feeling, and even place us on a ground of some merit. Should this sentiment take place, and the arrival of our Professors, and filling our dormitories with students on the 1st of February, encourage them to look more favorably towards us, perhaps it might dispose them to enlarge somewhat their order on the same fund. You observe the Proctor has stated in a letter accompanying our Report, that it will take about twenty-five thousand dollars more than we have to finish the Rotunda. Besides this, an Anatomical theatre (costing about as much as one of our hotels, say about five thousand dollars,) is indispensable to the school of Anatomy. There cannot be a single dissection until a proper theatre is prepared, giving an advantageous view of the operation to those within, and effectually excluding observation from without. Either the additional sums, therefore, of twenty-five thousand and five thousand dollars will be wanting, or we must be permitted to appropriate a part of the fifty thousand to a theatre, leaving the Rotunda unfinished for the present. Yet I should think neither of these objects an equivalent for renewing the displeasure of the legislature. Unless we can carry their hearty patronage with us, the institution can never flourish. I would not, therefore, hint at this additional aid, unless it were agreeable to our friends generally, and tolerably sure of being carried without irritation.
In your letter of December the 31st, you say my ‘hand-writing and my letters have great effect there,’ i.e. at Richmond. I am sensible, my dear Sir, of the kindness with which this encouragement is held up to me. But my views of their effect are very different. When I retired from the administration of public affairs, I thought I saw some evidence that I retired with a good degree of public favor, and that my conduct in office had been considered, by the one party at least, with approbation, and with acquiescence by the other. But the attempt, in which I have embarked so earnestly, to procure an improvement in the moral condition of my native State, although, perhaps, in other States it may have strengthened good dispositions, it has assuredly weakened them within our own. The attempt ran foul of so many local interests, of so many personal views, and so much ignorance, and I have been considered as so particularly its promoter, that I see evidently a great change of sentiment towards myself. I cannot doubt its having dissatisfied with myself a respectable minority, if not a majority of the House of Delegates. I feel it deeply, and very discouragingly. Yet I shall not give way. I have ever found in my progress through life, that, acting for the public, if we do always what is right, the approbation denied in the beginning will surely follow us in the end. It is from posterity we are to expect remuneration for the sacrifices we are making for their service, of time, quiet, and good will. And I fear not the appeal. The multitude of fine young men whom we shall redeem from ignorance, who will feel that they owe to us the elevation of mind, of character, and station they will be able to attain from the result of our efforts, will insure their remembering us with gratitude. We will not, then, be ‘weary in well-doing.’ Usque ad aras amicus tuus,
Th: Jefferson.
LETTER CLXXXV.—TO THOMAS JEFFERSON SMITH, February 21, 1825
THOMAS JEFFERSON TO THOMAS JEFFERSON SMITH.
This letter will, to you, be as one from the dead. The writer will be in the grave before you can weigh its counsels. Your affectionate and excellent father has requested that I would address to you something which might possibly have a favorable influence on the course of life you have to run, and I too, as a namesake, feel an interest in that course. Few words will be necessary, with good dispositions on your part. Adore God. Reverence and cherish your parents. Love your neighbor as yourself, and your country more than yourself. Be just. Be true. Murmur not at the ways of Providence. So shall the life, into which you have entered, be the portal to one of eternal and ineffable bliss. And if to the dead it is permitted to care for the things of this world, every action of your life will be under my regard. Farewell.
Monticello, February 21, 1825.
The Portrait of a Good Man, by the most sublime of Poets, for your imitation.
Lord, who’s the happy man that may to thy blest courts repair;
Not stranger-like to visit them, but to inhabit there?
‘Tis he, whose every thought and deed by rules of virtue moves;
Whose generous tongue disdains to speak the thing his heart disproves.
Who never did a slander forge, his neighbor’s fame to wound;
Nor hearken to a false report, by malice whispered round.
Who vice, in all its pomp and power, can treat with just neglect;
And piety, though clothed in rags, religiously respect.
Who to his plighted vows and trust has ever firmly stood;
And though he promise to his loss, he makes his promise good.
Whose soul in usury disdains his treasure to employ;
Whom no rewards can ever bribe the guiltless to destroy.
The man, who, by this steady course, has happiness insured,
When earth’s foundations shake, shall stand, by Providence secured.
A Decalogue of Canons for observation in practical life.
1. Never put off till to-morrow what you can do to-day.
2. Never trouble another for what you can do yourself.
3. Never spend your money before you have it.
4. Never buy what you do not want, because it is cheap; it will be dear to you.
5. Pride costs us more than hunger, thirst, and cold.
6. We never repent of having eaten too little.
7. Nothing is troublesome that we do willingly.
8. How much pain have cost us the evils which have never happened.
9. Take things always by their smooth handle.
10. When angry, count ten before you speak; if very angry, an hundred.
LETTER CLXXXVI.—TO JAMES MADISON, December 24, 1825
TO JAMES MADISON.
Monticello, December 24, 1825.
Dear Sir,
I have for sometime considered the question of internal improvement as desperate. The torrent of general opinion sets so strongly in favor of it as to be irresistible. And I suppose that even the opposition in Congress will hereafter be feeble and formal, unless something can be done which may give a gleam of encouragement to our friends, or alarm their opponents in their fancied security. I learn from Richmond, that those who think with us there are in a state of perfect dismay, not knowing what to do, or what to propose. Mr. Gordon, our representative, particularly, has written to me in very desponding terms, not disposed to yield, indeed, but pressing for opinions and advice on the subject. I have no doubt you are pressed in the same way, and I hope you have devised and recommended something to them. If you have, stop here and read no more, but consider all that follows as non avenue. I shall be better satisfied to adopt implicitly any thing which you may have advised, than any thing occurring to myself. For I have long ceased to think on subjects of this kind, and pay little attention to public proceedings. But if you have done nothing in it, then I risk for your consideration what has occurred to me, and is expressed in the enclosed paper. Bailey’s propositions, which came to hand since I wrote the paper, and which I suppose to have come from the President himself, show a little hesitation in the purposes of his party; and in that state of mind, a bolt shot critically may decide the contest, by its effect on the less bold. The olive-branch held out to them at this moment may be accepted, and the constitution thus saved at a moderate sacrifice. I say nothing of the paper, which will explain itself. The following heads of consideration, or some of them, may weigh in its favor.
It may intimidate the wavering. It may break the western coalition, by offering the same thing in a different form. It will be viewed with favor in contrast with the Georgia opposition and fear of strengthening that. It will be an example of a temperate mode of opposition in future and similar cases. It will delay the measure a year at least. It will give us the chance of better times and of intervening accidents; and in no way place us in a worse than our present situation. I do not dwell on these topics; your mind will develope them.
The first question is, whether you approve of doing any thing of the kind. If not, send it back to me, and it shall be suppressed; for I would not hazard so important a measure against your opinion, nor even without its support. If you think it may be a canvass on which to put something good, make what alterations you please, and I will forward it to Gordon, under the most sacred injunctions that it shall be so used as that not a shadow of suspicion shall fall on you or myself, that it has come from either of us. But what you do, do as promptly as your convenience will admit, lest it should be anticipated by something worse. Ever and affectionately yours,
Th: Jefferson.
The solemn Declaration and Protest of the Commonwealth of Virginia, on the Principles of the Constitution of the United, States of America, and on the Violations of them.
We, the General Assembly of Virginia, on behalf and in the name of the people thereof, do declare as follows.
The States in North America which confederated to establish their independence on the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independent States, and, as such, authorized to constitute governments, each for itself, in such form as it thought best.
They entered into a compact (which is called the Constitution of the United States of America), by which they agreed to unite in a single government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified. They retained at the same time, each to itself, the other rights of independent government, comprehending mainly their domestic interests.
For the administration of their federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and judiciary, in the manner settled in that compact: while to each, severally and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary, also, for administering the domestic branch of their respective governments.
These two sets of officers, each independent of the other, constitute thus a whole of government, for each State separately; the powers ascribed to the one, as specifically made federal, exercised over the whole, the residuary powers, retained to the other, exercisable exclusively over its particular State, foreign herein, each to the others, as they were before the original compact.
To this construction of government and distribution of its powers, the Commonwealth of Virginia does religiously and affectionately adhere, opposing, with equal fidelity and firmness, the usurpation of either set of functionaries on the rightful powers of the other.
But the federal branch has assumed in some cases, and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions from those directly given, which this Assembly does declare to be usurpations of the powers retained to the independent branches, mere interpolations into the compact, and direct infractions of it.
They claim, for example, and have commenced the exercise of a right to construct roads, open canals, and effect other internal improvements within the territories and jurisdictions exclusively belonging to the several States, which this Assembly does declare has not been given to that branch by the constitutional compact, but remains to each State among its domestic and unalienated powers, exercisable within itself and by its domestic authorities alone.
This Assembly does further disavow, and declare to be most false and unfounded, the doctrine, that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others.
Nor is it admitted, as has been said, that the people of these States, by not investing their federal branch with all the means of bettering their condition, have denied to themselves any which may effect that purpose; since, in the distribution of these means, they have given to that branch those which belong to its department, and to the States have reserved separately the residue which belong to them separately: and thus by the organization of the two branches taken together, have completely secured the first object of human association, the full improvement of their condition, and reserved to themselves all the faculties of multiplying their own blessings.
Whilst the General Assembly thus declares the rights retained by the States, rights which they have never yielded, and which this State will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister States, co-parties with themselves to this compact. They know and value too highly the blessings of their Union, as to foreign nations and questions arising among themselves, to consider every infraction as to be met by actual resistance. They respect too affectionately the opinions of those possessing the same rights, under the same instrument, to make every difference of construction a ground of immediate rupture. They would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers. It is only when the hope of avoiding this shall become absolutely desperate, that further forbearance could not be indulged. Should a majority of the co-parties, therefore, contrary to the expectation and hope of this Assembly, prefer, at this time, acquiescence in these assumptions of power by the federal member of the government, we will be patient and suffer much, under the confidence that time, ere it be too late, will prove to them also the bitter consequences in which that usurpation will involve us all. In the mean while, we will breast with them, rather than separate from them, every misfortune, save that only of living under a government of unlimited powers. We owe every other sacrifice to ourselves, to our federal brethren, and to the world at large, to pursue with temper and perseverance the great experiment which shall prove that man is capable of living in society, governing itself by laws self-imposed, and securing to its members the enjoyment of life, liberty, property, and peace; and further to show, that even when the government of its choice shall manifest a tendency to degeneracy, we are not at once to despair but that the will and the watchfulness of its sounder parts will reform its aberrations, recall it to original and legitimate principles, and restrain it within the rightful limits of self-government. And these are the objects of this Declaration and Protest.
Supposing then, that it might be for the good of the whole, as some of its co-States seem to think, that the power of making roads and canals should be added to those directly given to the federal branch, as more likely to be systematically and beneficially directed, than by the independent action of the several States, this Commonwealth, from respect to these opinions, and a desire of conciliation with its co-States, will consent, in concurrence with them, to make this addition, provided it be done regularly by an amendment of the compact, in the way established by that instrument, and provided also, it be sufficiently guarded against abuses, compromises, and corrupt practices, not only of possible, but of probable occurrence.
And as a further pledge of the sincere and cordial attachment of this Commonwealth to the union of the whole, so far as has been consented to by the compact called ‘The Constitution of the United States of America,’ (construed according to the plain and ordinary meaning of its language, to the common intendment of the time, and of those who framed it;) to give also to all parties and authorities, time for reflection and for consideration, whether, under a temperate view of the possible consequences, and especially of the constant obstructions which an equivocal majority must ever expect to meet, they will still prefer the assumption of this power rather than its acceptance from the free will of their constituents; and to preserve peace in the mean while, we proceed to make it the duty of our citizens, until the legislature shall otherwise and ultimately decide, to acquiesce under those acts of the federal branch of our government which we have declared to be usurpations, and against which, in point of right, we do protest as null and void, and never to be quoted as precedents of right.
We therefore do enact, and be it enacted by the General Assembly of Virginia, that all citizens of this Commonwealth, and persons and authorities within the same, shall pay full obedience at all times to the acts which may be passed by the Congress of the United States, the object of which shall be the construction of post-roads, making canals of navigation, and maintaining the same, in any part of the United States, in like manner as if the said acts were, totidem verbis, passed by the legislature of this Commonwealth.