To James Monroe
Monticello Sep. 7. 97.
Th:J. to J. Monroe
The doubt which you suggest as to our jurisdiction over the case of the grand jury v. Cabell, had occurred to me, and naturally occurs on first view of the question. But I knew that to send the petition to the H. of Represent. in Congress, would make bad worse, that a majority of that house would pass a vote of approbation. On examination of the question too it appeared to me that we could maintain the authority of our own government over it.
A right of free correspondence between citizen and citizen, on their joint interests, whether public or private, and under whatsoever laws these interests arise, (to wit, of the state, of Congress, of France, Spain or Turkey) is a natural right: it is not the gift of any municipal law either of England, of Virginia, or of Congress, but in common with all our other natural rights, is one of the objects for the protection of which society is formed and municipal laws established.
The courts of this commonwealth (and among them the General court as a court of impeachment) are originally competent to the cognisance of all infractions of the rights of one citizen by another citizen: and they still retain all their judiciary cognisances not expressly alienated by the federal constitution.
The federal constitution alienates from them all cases arising 1st. under that constitution, 2dly. under the laws of Congress, 3dly. under treaties &c. But this right of free correspondence, whether with a public representative in General assembly, in Congress, in France, in Spain, or with a private one charged with a pecuniary trust, or with a private friend the object of our esteem or any other, has not been given to us under 1st. the federal constitution, 2dly. any law of Congress, or 3dly. any treaty, but as before observed, by nature. It is therefore not alienated, but remains under the protection of our courts.
Were the question ever doubtful, it is no reason for abandoning it. The system of the General government is to sieze all doubtful ground. We must join in the scramble or get nothing. Where first occupancy is to give a right, he who lies still loses all. Besides it is not right for those who are only to act in a preliminary form, to let their own doubts preclude the judgment of the court of ultimate decision. We ought to let it go to the H. of delegates for their consideration, and they, unless the contrary be palpable, ought to let it go to the General court, who are ultimately to decide on it.
It is of immense consequence that the States retain as complete authority as possible over their own citizens. The withdrawing themselves under the shelter of a foreign jurisdiction, is so subversive of order and so pregnant of abuse, that it may not be amiss to consider how far a law of praemunire should be revived and modified against all citizens who attempt to1 carry their causes before any other than the state courts in cases where those other courts have no right to their cognisance.2 A plea to the jurisdiction of the courts of their state, or a reclamation of a foreign jurisdiction, if adjudged valid3 would be safe, but if adjudged invalid, would be followed by the punishment of praemunire for the attempt.
Think further of the preceding part of this letter, and we will have further conference on it. Adieu.
P.S. Observe that it is not the breach of Mr. Cabell’s privilege which we mean to punish: that might lie with Congress. It is the wrong done to the citizens of our district. Congress has no authority to punish that wrong. They can only take cognisance of it in vindication of their member.
RC (DLC: Monroe Papers); the most significant emendations are noted below. PrC (DLC).
1. TJ here canceled a word, possibly “draw.”
2. Following this sentence TJ canceled “The risk of fai.”
3. Word interlined in place of “[sound].”