James Madison Papers

To James Madison from Thomas Jefferson, 26 October 1798

From Thomas Jefferson

Oct. 26. 98.

The day after you left us, I sat down and wrote the petition I mentioned to you.1 It is not yet correct enough, & I inclose you a copy to which I pray your corrections, and to return it by the next post, that it may be set in motion. On turning to the judiciary law of the US. I find they established the designation of jurors by lot or otherwise as now practiced in the several states;2 should this prevent, in the first moment the execution of so much of the proposed law, as respects the federal courts, the people will be in possession of the right of electing jurors as to the state courts, and either Congress will agree to conform their courts to the same rule, or they will be loaded with an odium in the eyes of the people generally which will force the matter through. I will send you a copy of the other paper by Richardson.3 Do not send for him till Monday sennight, because that gives us another post-day to warn you of any unexpected delays in winding up his work here for the season, which, tho’ I do not foresee, may yet happen. Adieu affectionately.


To the General Assembly of the Commonwealth of Virginia

The Petition of sundry persons inhabitants of the county of Albemarle, and citizens of the said commonwealth, respectfully sheweth

That though civil government, duly framed & administered be one of the greatest blessings and most p⟨ow⟩erful instruments for procuring safety & happiness to men collected in large societies, yet such is the proneness of those to whom it’s powers are necessarily deputed to pervert them to the attainment of personal wealth & dominion, & to the utter oppression of their fellow-men, that it has become questionable whether the condition of our aboriginal neighbors, who live without laws or magistracies, be not preferable to that of the great mass of the nations of the earth who feel their laws & magistrates but in the weight of their burthens: that the citizens of these United states, impressed with this mortifying truth when they deposed the abusive government under which they had lived, founded their new forms, as well particular as general, in this fact & principle, that the people themselves are the safest deposit of power, & that none therefore should be trusted to others which they can competently exercise themselves: that their own experience having proved that the people are competent to the appointment or election of their agents, that of their chief executive magistrates was reserved to be made at short periods by themselves, or by others chosen by themselves: as was also the choice of their legislatures, whether composed of one or more branches: that in the Judiciary departmen⟨t,⟩ sensible that they were inadequate to difficult questions of law, these were, in ordinary cases, confided to permanent judges, but reserving to juries only, extraordinary cases where bias in the permanent judge might be apprehended,4 & where honest ignorance would be safer than perverted science: and reserving to themselves also the whole department of facts, which constitutes indeed the great mass of judiciary litigations: that the wisdom of these reservations will be apparent on a recurrence to the history of the country from which we chiefly emigrated, where the faint glimmerings of li⟨berty⟩ & safety now remaining to the nation are kept in ⟨feeble⟩ life by the reserved powers of the people only: tha⟨t in⟩ the establishment of the trial by jury however a great ⟨in⟩consistence has been overlooked in this & some other of th⟨e⟩ states, or rather has been copied from their original without due attention; for while the competence of the people to the appointment even of the highest Executive, & of the ⟨le⟩gislative agents is admitted & established, & their ⟨compe⟩tence to be themselves the triers of Judiciary facts, ⟨the⟩ appointment of the special individuals from among themselves who shall be such triers of fact, has not been left in their hands, but has been placed by law in officers, dependant on the Executive or Judiciary bodies: that tri⟨ers⟩ of fact are therefore habitually taken in this state from ⟨a⟩mong accidental bystanders, & too often composed of ⟨foreign⟩ers attending on matters of business, & of idle persons collected for purposes of dissipation; and, in cases interesting to the powers of the public functionaries, may be speci⟨ally⟩ selected from descriptions of persons to be found in every co⟨untry⟩ whose ignorance or dependance renders them pliable to th⟨e⟩ will and designs of power: that in others of these states thi⟨s⟩ germ of rottenness in the institution of juries has been carefully excluded, & their laws have provided, with laudable foresight, for the appointment of jurors by select men, chosen by the people themselves; and to a like restitution of principle, & salutary precaution against the abuse of power by the public functionaries, who never did yet in any country fail to betray & oppress those for the care of whose affairs they were appointed, by force if they possessed it, or by fraud & delusion if they did not, your petitioners pray the timely attention of their legislature, while that legislature (and with a heartfelt satisfaction the petitioners pronounce it) are still honest enough to wish the preservation of the rights of th⟨e⟩ people, and wise enough to circumscribe in time the spread of that gangrene which, sooner than many are aware, may reach the vitals of our political existence.

And lest it should be supposed that the popular appointment of jurors may scarcely be practicable in a state so extensive & circumstanced as ours, your petitioners will undertake to suggest one mode, not presuming to propose it for the adoption of the legislature, but firmly relying that their wisdom will devise a better: they observe then that by a law already passed for the establishment of schools, provision has been made for laying off every county into districts or precincts; that this division which offers so many valuable resources for the purposes of information, of justice, of order, & police, may be recurred to for the object now in contemplation, and may be completed for this purpose, where it has not been done for the other; that the inhabitants of every precinct may meet at a given time & place in their precinct, and in the presence of the constable or other head officer of the precinct, elect from among themselves some one to be a juror; that, from among those so chosen in every county, someone may be designated by lot, who shall attend the ensuing session of the federal court within the state, to act as grand & petty jurors, one of these from every Senatorial district being designated by lot for a grand juror, & the residue5 attending to serve as petty jurors, to be designated in like manner by lot in every particular case: that of the others so chosen in every county composing a district for the itinerant courts of this commonwealth, so many be taken by lot as shall suffice for grand & petty juries for the district court next ensuing their election: and the residue so chosen in each county may attend their own county courts for the same purposes till another election, or, if too numerous, the supernumeraries may be discharged by lot: and that such compensation may be allowed for these services as, without rendering the office an object worth canvassing, may yet protect the juror from actual loss: That an institution on this outline, or such better as the wisdom of the General assembly will devise, so modified as to guard it against the intrigue of parties, the influence of power, or irregularities of conduct, and further matured from time to time as experience shall develope it’s imperfections, may long preserve the trial by jury, in it’s pure and original spirit, as the true tribunal of the people, for a mitigation in the execution of hard laws when the power of preventing their passage is lost, and may afford some protection to persecuted man, whether alien or citizen, which the aspect of the times warns we may want.

And your petitioners, waiving the expression of many important considerations which will offer themselves readily to the reflection of the General assembly, pray them to take the premises into deep & serious consideration, and to do therein for their country what their wisdom shall deem best, & they, as in duty bound, shall ever pray &c.

RC (DLC: Rives Collection, Madison Papers); FC and enclosure (DLC: Jefferson Papers). Unsigned. RC franked and addressed by Jefferson to JM “near Orange courthouse.” The enclosed petition—a press copy in Jefferson’s hand—is dated 11 Mar. 1800 in the Index to the Thomas Jefferson Papers (see nn. 1, 4, and 5). Angle brackets enclose words and parts of words cut off in margins of enclosure and supplied from the signed version of the petition that was presented in the House of Delegates (Vi: Legislative Petitions, Albemarle County).

1The failure of Jefferson’s attempt to strike at the Federalist-controlled judiciary system through the Cabell petition in the 1797 session of the Virginia General Assembly and the threat of persecution embodied in the newly enacted Sedition Law led him to draft the enclosed petition on the election of jurors. The petition was presented to the Virginia House of Delegates on 24 Dec. 1798 from several citizens of Albemarle County but was not acted upon (Jefferson to JM, 3 Aug. 1797, Editorial Note; Malone, Jefferson and His Time description begins Dumas Malone, Jefferson and His Time (6 vols.; Boston, 1948–81). description ends , 3:398–99 and n. 11).

2See section 29 of “An Act to establish the Judicial Courts of the United States,” passed 24 Sept. 1789 (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:88).

3Richard Richardson (b. 1775) was first employed by Jefferson in 1796 as a bricklayer. In the fall of 1797 Jefferson sent him to Philadelphia to learn stone-cutting and plastering. Richardson returned to Monticello in the spring of 1798, trained for the tasks that JM needed done at Montpelier, which were “plaistering [and] adjusting the Stone to the fire places.” Richardson was employed at Monticello until 1801, when he inherited a sugar plantation in Jamaica. Jefferson provided Richardson with a passport that JM signed as secretary of state (JM to Jefferson, 31 Oct. 1798; E. M. Betts and James Bear, Jr., eds., The Family Letters of Thomas Jefferson [1966; Charlottesville, Va., 1986 reprint], pp. 147–48 and n. 2, 162; W. J. Holland, “Thomas Jefferson, Housekeeper,” N.Y. Times, 15 Apr. 1923, sec. 4, p. 2).

4On the press copy the preceding passage on the powers of judges and juries in ordinary and extraordinary cases was rewritten by Jefferson, according to suggestions made by JM in his letter of 31 Oct., to read: “that in the Judiciary department, sensible that they were inadequate to difficult questions of law, these were generally confided to permanent judges, but reserving to juries the decision both of law and fact where in their opinion bias in the permanent judge might be apprehended.” The final version of the petition incorporates the changes (see JM to Jefferson, 31 Oct. 1798).

5JM here interlined “or an allotted portion thereof,” an addition that Jefferson included in the final version of the petition (see JM to Jefferson, 31 Oct. 1798).

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