Thomas Jefferson Papers

From Thomas Jefferson to Abigail Smith Adams, 11 September 1804

Monticello. Sep. 11. 04.

Your letter, Madam, of the 18th. of Aug. has been some days recieve’d, but a press of business has prevented the acknolegement of it. perhaps indeed I may have already trespassed too far on your attention. with those who wish to think amiss of me, I have learnt to be perfectly indifferent: but where I know a mind to be ingenuous, & to need only truth to set it to rights, I cannot be as passive. the act of personal unkindness alluded to in your former letter is said in your last to have been the removal of your eldest son from some office to which the judges had appointed him. I conclude then he must have been a Commissioner of bankruptcy. but I declare to you on my honor that this is the first knolege I have ever had that he was so. it may be thought perhaps that I ought to have enquired who were such, before I appointed others. but it is to be observed that the former law permitted the judges to name Commissioners occasionally only for every case as it arose, & not to make them permanent officers. nobody therefore being in office there could be no removal. the judges you well know have been considered as highly federal; and it was noted that they confined their nominations exclusively to federalists. the legislature, dissatisfied with this, transferred the nomination to the President, and made the offices permanent. the very object in passing the law was that he should correct, not confirm, what was deemed the partiality of the judges. I thought it therefore proper to enquire, not whom they had employed, but whom I ought to appoint to fulfil the intentions of the law. in making these appointments I put in a proportion of federalists equal I believe to the proportion they bear in numbers through the union generally. had I known that your son had acted, it would have been a real pleasure to me to have preferred him to some who were named in Boston in what were deemed the same line of politics. to this I should have been led by my knolege of his integrity as well as my sincere dispositions towards yourself & mr Adams.

You seem to think it devolved on the judges to decide on the validity of the sedition law. but nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both magistracies are equally independant in the sphere of action assigned to them. the judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that instrument meant that it’s co-ordinate branches should be checks on each other. but the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.    Nor does the opinion of the unconstitutionality & consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth & falsehood in the US. The power to do that is fully possessed by the several state–legislatures. it was reserved to them, & was denied to the general government, by the constitution according to our construction of it. while we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so. they have accordingly, all of them, made provisions for punishing slander, which those who have time and inclination resort to for the vindication of their characters. in general the state laws appear to have made the presses responsible for slander as far as is consistent with their usual freedom. in those states where they do not admit even the truth of allegations to protect the printer, they have gone too far.

The candour manifested in your letter, & which I ever believed you to possess, has alone inspired the desire of calling your attention once more to those circumstances of fact and motive by which I claim to be judged. I hope you will see these intrusions on your time to be, what they really are, proofs of my great respect for you. I tolerate with the utmost latitude the right of others to differ from me in opinion without imputing to them criminality. I know too well the weakness & uncertainty of human reason to wonder at it’s different results. both of our political parties, at least the honest portion of them, agree conscientiously in the same object, the public good: but they differ essentially in what they deem the means of promoting that good. one side believes it best done by one composition of the governing powers. the other by a different one. one fears most the ignorance of the people: the other the selfishness of rulers independant of them. which is right, time & experience will prove. we think that one side of this experiment has been long enough tried, and proved not to promote the good of the many: & that the other has not been fairly and sufficiently tried. our opponents think the reverse. with whichever opinion the body of the nation concurs, that must prevail. my anxieties on the subject will never carry me beyond the use of fair & honorable means, of truth and reason: nor have they ever lessened my esteem for moral worth, nor alienated my affections from a single friend, who did not first withdraw himself. wherever this has happened I confess I have not been insensible to it: yet have ever kept myself open to a return of their justice.    I conclude with sincere prayers for your health & happiness that yourself & mr Adams may long enjoy the tranquility you desire and merit, and see, in the prosperity of your family, what is the consummation of the last and warmest of human wishes.

Th: Jefferson

MHi: Adams Papers.

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