Montpellier June 6. 1832
Your letter of the 1st. instant followed by a copy of your speech on Congressional priviledges, found me in my bed; to which I have been confined for several weeks by a billious fever uniting itself with a severe Rheumatism, which had kept me a cripple, particularly my hands & fingers, & a prisoner in my house for many months. The fever, has I hope ceased but leaves me in much debility. In this condition, you will, I am sure pardon me for not undertaking that thorough consideration of the subject which wd. enable me to do justice to your critical & extensive views of it. I feel safe in saying, that your speech is a very able one, as was to be expected; & I may add that I have always considered the right of self-protection in the discharge of the necessary duties, as inherent in a Legislative bodies, as in courts of Justice; in the State Legislatures as in the British Parliament, & in the Federal Legisture as in both. In the application of this priviledge to emerging cases, difficulties & differences of opinion, may arise. In deciding on these the reason & necessity of the priviledge must be the guide; It is certain that, the priviledge had been abused in British precedents, and may have been in American also.
Previous to the rect. of your letter I had been favoured by Mr Everett of Masts. with a copy of your speech which was send to me; & observing your mistake in supposing me to have drawn the judicial act of 1789, I thought it proper in my answer to furnish the means of correctg. it.———The Bill originated in the Senate of which I was not a member, & was understood, truly I believe, to have proceeded from Mr. Elsworth, availing himself as may be presumed, of consultations with some of his most enlightened colleagues. Those who object to the controll given to the Supreme Court of the U. States over the state Courts, ought to furnish some equivalent mode of preventing the State Governmt. from annulling the laws of U. States through its Judiciary Depart. the annulment having the same anarchical effect, as if brought about thro’ either of its other Departments.
If I were in an ill-humour with you, which I am not & never was—I might here advert to the miss construction which in your controversy<> with Mr. Cooke, you put on the Amendmt. I proposed, in our late Convention, authorizing the Legisture., two thirds of each house concurring, to re apportion the Representation as inequalities might from time to time require. My motives I am conscious, were pure, & the object I still think proper. The right of suffrage & the rule of apportionment of representatives are fundamentals in a free Governt., & ought not to be submitted to Legislative discretion. The former had been fixed by the Constitution, but every attempt to provide a Constitutional rule for the latter had failed; & of course no remedy could be applyed for the greatest in equalities without a Convention at which the general feeling seemed to revolt. In this alternitive it appeared the lesser evil to give the power of redress to the Legislature controuling its discretion, by requiring a concurance of two thirds instead of a mere majority—Shd. the power be duly exercised all will be well; if not the same resorts will be open as if the Amendt. had never been proposed. And I trust I am not too sanguine in anticipating that the claims of Justice with the alternative of refusing it will prevail over local & selfish considerations.
But I pass with pleasure from this reminiscence to a return of my thanks for your communication & a tender of my esteem & my friendly salutations.