Thomas Jefferson Papers
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From Thomas Jefferson to John Cartwright, 5 June 1824

Monticello in Virginia. June 5. 24.

Dear and Venerable Sir.

I am much indebted for your kind letter of Feb. 29. and for your valuable volume on the English constitution. I have read this with pleasure, and much approbation, and think it has deduced the constitution of the English nation from it’s rightful root, the Anglo-Saxon. it is really wonderful that so many able and learned men should have failed in their attempts to define it with correctness. no wonder then that Paine, who thought more than he read, should have credited the great authorities who have declared that the will of parliament is the Constitution of England. so Marbois, before the French revolution, observed to me, that the Almanac Royal, was the Constitution of France. Your derivation of it from the Anglo-Saxons seems to be made on legitimate principles. having driven out the former inhabitants of that part of the island, called England, they became Aborigines as to you, and your lineal Ancestors. they doubtless had a constitution; and altho’ they have not left it in a written formula, to the precise text of which you may always appeal, yet they have left fragments of their history and laws from which it may be inferred with considerable certainty. whatever their history and laws shew to have been practised with approbation, we may presume was permitted by their constitution whatever was not so practised, was not permitted. and altho’ this constitution was violated and set at nought by Norman force, yet force cannot change right. a perpetual claim was kept up by the nation by their perpetual demand of a restoration of their Saxon laws; which shews they were never relinquished by the will of nation. in the pullings and haulings for these antient rights between the nation and it’s kings of the races of Plantagenets, Tudors & Stuarts, there was sometimes gain, and sometimes loss, until the final reconquest of their rights from the Stuarts. the destitution and expulsion of this race broke the thread of pretended inheritance extinguished all regal usurpations, and the nation re-entered into all it’s rights; and altho’ in their bill of rights they specifically reclaimed some only, yet the omission of the others was no renunciation of the right to assume their exercise also, whenever occasions should occur the new king recieved no rights or powers but those expressly granted to him. it has ever appeared to me that the difference between the whig and tory of England is, that the whig deduces his rights from the A-Saxon source, and the tory from the Norman. and Hume, the great Apostle of toryism, says, in so many words, Note AA. to Chapter 42. that, in the reigns of the Stuarts, ‘it was the people who encroached upon the sovereign. not the sovereign who attempted, as is pretended, to usurp upon the people.’ this supposes the Norman usurpations to be rights in his successors. and again C.59. ‘the Commons established a principle, which is noble in itself and seems specious, but is belied by all history and experience, that the people are the origin of all just power.’ and where else will this degenerate son of science, this traytor to his fellow-men, find the origin of just powers, if not in the Majority of the society? will it be in the Minority? or in an individual of that minority?

Our revolution commenced on more favorable ground. it presented us an Album on which we were free to write what we pleased. we had no occasion to search into musty records, to hunt up Royal parchments, or to investigate the laws & institutions of a semi-barbarous ancestry. we appealed to those of nature, and found them engraved in our hearts. yet we did not avail ourselves of all the advantages of our position. we had never been permitted to exercise self-government. when forced to assume it, we were Novices in it’s science. it’s principles and forms had entered little into our former education. we established however some, altho’ not all it’s important principles. the constitutions of most of our states assert that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, both fact and law, in all judiciary cases in which any fact is involved) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person; freedom of religion; freedom of property; and freedom of the press. in the structure of our legislatures we think experience has proved the benefit of subjecting questions to two separate bodies of deliberants; but in constituting these, natural right has been mistaken, some making one of these bodies, and some both, the representatives of property instead of persons; whereas the double deliberation might be as well obtained without any violation of true principle, either by requiring a greater age in one of the bodies, or by electing a proper number of representatives of persons, dividing them by lots into two chambers, and renewing the division at frequent intervals, in order to break up all Cabals. Virginia, of which I am myself a native and resident, was not only the first of the states, but I believe I may say, the first of the nations of the earth, which assembled it’s wise men peaceably together to form a fundamental constitution, to commit it to writing, and place it among their archives, where every one should be free to appeal to it’s text. but this act was very imperfect. the other states, as they proceeded successively to the same work, made successive improvements; and several of them, still further corrected by experience, have, by conventions, still further amended their first forms. my own state has gone on so far with it’s premiere ebauche; but it is now proposing to call a convention for amendment. among other improvements, I hope they will adopt the subdivision of our counties into wards. the former may be estimated at an average of 24. miles square; the latter should be about 6. miles square each; and would answer to the Hundreds of your Saxon Alfred. in each of these might be 1. an Elementary school. 2. a company of militia, with it’s officers. 3. a justice of the peace and constable. 4. each Ward should take care of their own poor. 5. their own roads. 6. their own police. 7. elect within themselves one or more jurors to attend the courts of justice. and 8. give in, at their Folk-house, their votes for all functionaries reserved to their election. each Ward would thus be a small republic within itself, and every man in the state would thus become an acting member of the common government, transacting in person a great portion of it’s rights and duties, subordinate indeed, yet important, and entirely within his competence. the wit of men cannot devise a more solid basis for a free, durable and well administered republic.

With respect to our state and federal governments, I do not think their relations correctly understood by foreigners. they generally suppose the former subordinate to the latter. but this is not the case. they are co ordinate departments of one simple, and integral whole. to the State governments are reserved all legislation and administration in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other states; these functions alone being made federal. the one is the domestic the other the foreign branch of the same government; neither having controul over the other, but within it’s own department. there are one or two exceptions only to this partition of power. but, you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them? in cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground: but if it can neither be avoided nor compromised, a Convention of the states must be called to ascribe the doubtful power to that department which they may think best. you will percieve by these details that we have not yet so far perfected our constitutions as to venture to make them unchangeable. but still, in their present state, we consider them not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: they are until than the Lex legum.

But can they be made unchangeable? can one generation bind another, and all others, in succession for ever? I think not. the Creator has made the earth for the living, not the dead. rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. the dead are not even things. the particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals of a thousand forms. to what then are attached the rights and power they held while in the form of men? a generation may bind itself, as long as it’s majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves. nothing then is unchangeable but the inherent and unalienable rights of man.

I was glad to find in your book a formal contradiction, at length, of the Judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions that Christianity is a part of the Common law. the proof of the contrary which you have adduced is incontrovertible, to wit, that the Common law existed, while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed. but it may amuse you to shew when, and by what means they stole this law in upon us. in a case of Quare impedit in the year-book 24. H. 6. folio. 38. [anno 1458.] a question was made, how far the Ecclesiastical law was to be respected in a common law court? and Prisot C. S. gives his opinion in these words, ‘a tiel leis que ils de seint eglise ont en ancient scripture, covient à nous à donner credence; car ceo Common ley sur quels touts manners leis sont fondés. et auxy, Sir, nous sumus obligés de conustre lour ley de saint eglise: et semblablement ils sont obligés de conustre nostre ley. et, Sir, si poit apperer or á nous que l’evesque ad fait come un Ordinary fera en tiel cas, adong nous devons ceo adjuger bon, ou auterment nemy.’ Etc see S. C. Fitzh. abr. Qu. imp. 89. Bro. abr. Qu. imp. 12. Finch in his 1st B.c. 3. is the first afterwards who quotes this case, and mistakes it thus ‘to such laws of the church as have warrant in holy scripture, our law giveth credence.’ and cites Prisot, mistranslating ‘ancien scripture’ into ‘holy scripture’ whereas Prisot palpably says ‘to such laws as those of holy church have in antient writing it is proper for us to give credence.’ to wit, to their antient written laws. this was in 1613, a century and a half after the dictum of Prisot. Wingate in 1658. erects this false translation into a Maxim of the Common law, copying the words of Finch, but citing Prisot. Wing. Max. 3. and Sheppard, tit. ‘Religion’ in 1675. copies the same mistranslation, quoting the Y. B. Finch and Wingate. Hale expresses it in these words, ‘Christianity is parcel of the laws of England.’ 1. Ventr. 293. 3. Keb. 607. but quotes no authority. by these echoings and re-echoings from one to another, it had become so established in 1728. that in the case of the King v. Woolston. 2. Stra. 834. the court would not suffer it to be debated whether to write against Christianity was punishable in the temporal courts at Common law? Wood therefore 409. ventures still to vary the phrase, and says that ‘all blasphemy and profaneness are offences by the common law,’ and cites 2. Stra. then Blackstone, in 1763. IV. 59. repeats the words of Hale that ‘Christianity is part of the laws of England,’ citing Ventris and Strange. and finally, Ld Mansfield, with a little qualification, in Evans’s case, in 1767. says that ‘the essential principles of revealed religion are part of the Common law.’ thus ingulphing Bible, Testament and all into the Common law, without citing any authority. and thus we find this chain of authorities hanging, link by link, one upon another, and all ultimately on one and the same hook, and that a mistranslation of the words ‘ancien scripture,’ used by Prisot. Finch quotes Prisot; Wingate does the same. Sheppard quotes Prisot, Finch and Wingate. Hale cites nobody. the court, in Woolston’s case, cite Hale. Wood cites Woolston’s case. Blackstone quotes Woolston’s case and Hale. and Ld Mansfield, like Hale, ventures it on his own authority. here I might defy the best read lawyer to produce another scrip of authority for this judiciary forgery; and I might go on further to shew how some of the A-Saxon priests interpolated into the text of Alfred’s laws the 20th 21st 22d and 23d chapters of Exodus, and the 15th of the acts of the Apostles, from the 23d to the 29th verses. but this would lead my pen and your patience too far. what a conspiracy this, between Church and State! sing Tantarara, rogues all, rogues all, Sing Tantararara rogues all!

I must still add to this long and rambling letter my acknolegements for your good wishes to the University we are now establishing in this state. there are some novelties in it. of that of a professorship of the principles of government you express your approbation. they will be founded in the rights of man. that of Agriculture I am sure you will approve. and that also of Anglo-Saxon. as the histories and laws left us, in that type and dialect, must be the text books of the reading of the learners, they will imbibe, with the language, their free principles of government. the volumes you have been so kind as to send, shall be placed in the library of the University. having at this time in England a person, sent for the purpose of selecting some Professors, a mr Gilmer of my neighborhood, I cannot but recommend him to your patronage, counsel, and guardanship against imposition, misinformation, and the deceptions of partial and false recommendations, in the selection of characters. he is a gentleman of great worth and correctness, my particular friend, well educated in various branches of science, & worthy of entire confidence.

Your age of 84. and mine of 81. years ensure us a speedy meeting. we may then commune at leisure, and more fully, on the good and evil which, in the course of our long lives, we have both witnessed; and in the mean time, I pray you to accept assurances of my high veneration and esteem for your person and character.

Th: Jefferson

DLC: Papers of Thomas Jefferson.

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