Louisville. May 31st 1825
After much hesitation it is with extreme reluctance that I at length determine to trouble you with the differences which unfortunately distract this State; nor should I now do so, had not your name been industriously, efficiently, and, as I think, most improperly used to procure the passage of an act in our last legislature, which many of the best and wisest men amongst us, believe subversive of one of the best established and most important principles of free government. I am sure it is needless to say that I allude to the act abolishing and establishing anew the Court of Appeals. In a letter to Wm T. Barry Esq. written in the summer of 1822 you make some remarks on the danger to be apprehended from judicial usurpation. These remarks appear to have been made with a single eye to the Supreme Court of the Nation. No man who wishes the existence of the State Sovereignties continued, and who, for the last few years, has at all observed the operations of the Federal Government through its judiciary, can help feeling the deepest alarm at the assumed powers and extending jurisdiction of that all-grasping tribunal. I fear I am so very unfortunate as to differ with you on the means of correcting this evil, and perhaps as to its cause also. It seems to me not to proceed from the too great irresponsibility of the Judges, but from their too great dependence on and subserviency to the other departments of the Federal Government. When the judicial corps belonging to one government operates, by its decisions, on other governments, will not the Judges, in every struggle for power, lean to that side from which they have received their offices, and must continue to receive their salaries? And is not this the source of the danger we fear? In the State governments, it is otherwise, and for very obvious reasons there is less to be apprehended here from the judiciary. Permit me, Sir, to turn from these considerations to our actual institutions, and to ask whether the Supreme Court is created by the constitution or by law?—and whether or not it can be destroyed by ordinary legislation? By the Constitution of Kentucky the Appellate Court of this State stands upon the same footing with the Supreme Court, except that the Judges of our Court of Appeals may be removed from office by the votes of two thirds of each house of the General Assembly. Your letter to Mr Barry was immediately published to answer certain electioneering purposes. The observations contained in it were industriously applied to an object for which they were not intended, and were thus tortured in to a meaning you never designed.
In these circumstances, I hope, Sir, an apology will be found for thus intruding on one who has so long withdrawn himself from all interference in public affairs. I am deeply solicitous for the triumph of right and justice: may I add that I am truly pained when I hear the authority of your name used in support of a measure which I can not but consider destructive of those principles to the establishment and maintenance of which your life has been devoted.
I rejoice to learn that Mr Gilmer has been so very judicious in the selection of professors; and I am delighted to see the University going into operation with such well grounded prospects of success and usefulness. To the tide of congratulation which you must receive on this interesting subject, suffer me to add mine. Pray accept the expression of the gratitude, respect, and veneration with which I am, Dear Sir
D C Terrell
DLC: Papers of Thomas Jefferson.