Milan, Huron County, Ohio, April 10th 1822
I write to you on a subject which I think of great importance and because in your life I think you have done a great deal of good because you are in a situation to do much on the subject which I shall mention, and because I think you have been a friend to the people, in stead of favoring a chosen few—You will not Sir, think this a piece of flatery; my situation forbids it—but few Years have past away since the U,S, became a nation, and I venture to say no one has never increased so fast in population extravigance, debt, unnecessary expenses, and I think I may venture to say, iniquity in the administration of the government. The U,S, confederated for great purpose; but for but few the legislative powers given by the constitution are but few; yet we find congress imbrasing or acting on many subjects, not delegated by the constitution—in time of war there might be much for congress to do; but in time of peace, can it be possible, that it is necessary that so many men, at so great and extravigant wages should be so long employed to do so little as there would be, to be done, if they kept strictly to the powers given by the constitution—if because the constitution says the congress shall have power to provide for the general welfare &c, they have power to do everything they please then the power, the government and sovereignty of the states is completely gone—if the clause gives any aditional power at all, then may congress dg canalls, make roads, establish schools coledges, appoint bishops, priests with a good sound salary, build churches meeting houses &c and call it providing for the general welfare—there seems to be considerable said in congress about lessening the expences of government, but the business does not seem to be taken hold of in good earnest—it seems to be much easier to borrow money than to abolish an unnecessary office, and take away the salary from an unnecessary officer—amongst all the retrenchment of expences I hear nothing said about lessening the expence of the U,S, court. The judges marshals and incidental expences must be paid—the marshal has a salary, (I think) besides his fees—he also takes care to summon jurors. mostly his friends from distant parts of the State, and charges traveling fees for each; this alone amounts to a great sum—it appears a little strange to me that the US, should be at so great expence to have so great so learned, so wise judges as the judges of the U,S, court, and then turn the business over to a panel of jurors—if the jurors are more capable of deciding than the court, if not for court decision, yet for saving of expense let the judges stay at home—if the court are to dictate or control the jury there is not nead of the jury—if the jury are to act their own opinion there is no nead of those great judges to be talked to day after day, by lawyer kind, not to tell the truth, not to act fairly and honestly, not to do justice or to endeavor to get justice done to his client, but injustice; in fact to do every thing that their clients could or might do were they to plead their owen case, which would be, not to recover all which he conscientiously thought was due, but all that it was in his power to get, right or wrong—but this is an old practice, and it is for the interest of lawyers it should be persued—it appears to me that the government of the U,S, acts on many [. . .] which does not come within the power delegated; but amongst all the appointments the U,S, court I think the most dangerous and the most usurping—if you think as I do in this subject, I hope before you cease to be usefull you will give it your decided disaprobation—a word from you would by the people be considered of great authority, or worthy of great consideration—the judges of the U,S, see fit to destroy the laws of a state to imprison its citizens without form of law, to reverse the decisions of state courts, and even condemn people to the state prison; what they will soon undertake to do I know not—yet if we look into the constitution to find their delegated powers, we find nothing said about it—how the judges of the U,S, court came to think that they constituted a supervisery court, and had power to revers the decisions of the State courts, is a little strange and appears a little like arogance—say they we will not take jurisdiction if we should not, that is, if we don’t wish to we will not; or else they consider themselves the oracle incapable of error—the power of the U.S. court is given by the constitution, the power of the State court is original—is it possible that a man of as good sense and information as Judge Marshal wishes to be thought, could or should think that the states would submit to have the decisions of their courts set aside by the US, Court—if there is any right belonging to either court to reverse the decision of the other it certainly belongs to the state courts—the state courts act by original and unbounded power, that is by power given by an original government; but the U,S, court acts by powers delegated by the power which constitutes the state court therefore if the U,S, Court should undertake to destroy or disregard the laws of a state, or to imprison its citizens contrary to law, the State courts would have a right to revise and reverse their decision, and set the imprisoned free—The court of the U,S, undertake to say and have so decided, that they are a tribunal constitute by the constitution to decide colisions which may arise between the US, government and the States—if this is really the case than have the states by what is called cunning been cajoled out of their state rights and state soverignty—but if we look into the constitution to find the power which the U,S, judges claim to be delegated, there is nothing of it to be found—the judges say “it must have been the intention of those who framed the constitution to vest the court with this power, otherwise say they a state court might punish a U,S, officer for acting under the revenue laws”—my god—is it to be supposed that the great judges of the US, should cast such an imputation of partiality on the state courts—may not such suspicious judges sometimes (inadvertently) act by the same motive which they suspect in others—if the US may be suspicious of the intergrity of the state courts, the states may be suspicious of the US Court, especially when they take into consideration the very extraordinary decisions they of late have made—The 3d article of the constitution says, the judicial power of the U,S; shall be vested in a supreme court &c what powers it is vested with or to be vested with is not mentioned, only it is to have jurisdiction in certain cases mentioned—most constitutions providing for the judicial department provides that the powers of the courts shall be regulated by law—but as this power could not with propriety, or was not delegated to the US government, because it would be too unlimited or undefined, a question arises, under what laws are those particular cases confided to the US court, to be adjudged and decided—by the laws of the US, or by the laws of the states in which the cases occur—then has the U,S, court a right to act under and put in force a law of a State; and has the U,S, court a right to sit and hold court in a state without its permission—in fact the whole 3d article is so vague and undefined that it hardly contains any specified powers—to permit the court to say such is the meaning of this article because such was the intention of the convention, would be absurd and dangerous; other judges may conjecture something else was their intention,”; and when the times of the present life judges shall be out we may have other judges of different opinion than the present—the advice of Mr Clinton was excilent it is not safe to exercise undelegated or doubtfull powers, because a remedy is at hand—I should be much pleased to, but have no right to expect an answer, as I am an entire stranger, and as You probably have more correspondence than you can well attend to
DLC: Papers of Thomas Jefferson.