Thomas Jefferson Papers

From Thomas Jefferson to Edward Livingston, 25 March 1825

Monticello Mar. 25. 25

Dear Sir

I know how apt we are to consider those whom we knew long ago, and have not since seen, to be exactly still what they were when we knew them; and to have been stationary in body and mind as they have been in our recollections. have you not been under that illusion with respect to myself? when I had the pleasure of being a fellow-laborer with you in the public service, age had ripened, but not yet impaired whatever of mind I had at any time possessed. but five and twenty chilling winters have since rolled over my head and whitened every hair of it. worn down by time in bodily strength, unable to walk even into my garden without too much fatigue, I cannot doubt that the mind has also suffered its portion of decay. if reason and experience had not taught me this law of nature, my own consciousness is a sufficient monitor, and warns me to keep in mind the golden precept of Horace,

  ‘Solve senescentem, maturé sances, equum, ne
 Peceet ad extremum ridendus.’—

I am not equal, dear Sir, to the task you have proposed to me. to examine a code of laws newly reduced to system and text, to weigh their bearings on each other in all their parts, their harmony with reason and nature, and their adaptation to the habits and sentiments of those for whom they are prepared, and whom, in this case, I do not know, is a task far above what I am now, or perhaps ever was. I have attended to so much of your work as has been heretofore laid before the public, and have looked, with some attention also, into what you have now sent me. it will certainly arrange your name with the sages of antiquity. time and changes in the condition and constitution of society may require occasional and corresponding modifications. one single object, if your provision attains it, will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation. and with no body of men is this restraint more wanting than with the judges of what is commonly called our General government, but what I call our Foreign department. they are practising on the constitution by inferences, analogies and sophisms, as they would on an ordinary law: they do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and controul: but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require it’s observance. however strong the cord of compact may be, there is a point of tension at which it will break. a few such doctrinal decisions, as barefaced as that of the Cohens, happening to bear immediately on two or three of the large states, may induce them to join in arresting the march of government, and in arousing the co-states to pay some attention to what is passing, to bring back the compact to it’s original principles, or to modify it legitimately by the express consent of the parties themselves, and not by the usurpation of their created agents. they imagine they can lead us into a consolidated government, while their road leads directly to its dissolution. this member of the government was at first considered as the most harmless and helpless of all it’s organs. but it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slily and without alarm, the foundations of the constitution, can do what open force would not dare to attempt. I have not observed whether, in your code, you have provided against caucusing judicial decisions, and for requiring judges to give their opinions seriatim, every man for himself, with his reasons and authorities at large, to be entered of record in his own words. a regard for reputation and the judgment of the world may sometimes be felt where conscience is dormant, or indolence inexcitable. experience has proved that impeachment in our forms is completely inefficient.

I am pleased with the style and diction of your laws. plain and intelligible as the ordinary writings of common sense, I hope it will produce imitation. of all countries on earth of which I have any knolege, the style of the acts of the British parliament is the most barbarous, uncouth, and unintelligible. it can be understood by those alone who are in the daily habit of studying such tautologous, involved and parenthetical jargon. where they found their model I know not. neither ancient nor modern codes, nor even their own early statutes furnish any such example. and, like faithful apes, we copy it faithfully.

In declining the undertaking you so flatteringly propose to me, I trust you will see but an approvable caution for the age of fourscore and two, to avoid exposing itself before the public. the misfortune of a weakened mind is an insensibility of it’s weakness. seven years ago indeed, I embarked in an enterprise, the establishment of an university, which placed me and keeps me still under the public eye. the call was imperious, the necessity most urgent, and the hazard of titubation less by thos[. . .]ears, than it now is. the institution is at length happily advanced to completion and ha[. . .]d under auspices as I could expect. I hope it will prove a blessing to my [. . .]ed not unuseful perhaps to some others. at all hazards, and secured by the aid of my able coadjutors, I shall continue, while I am in being, to contribute to it whatever my weakened and weakening powers can. but assuredly it is the last object for which I shall obtrude myself on the public observation

Wishing anxiously that your great work may obtain compleat success, and become an example for the imitation and improvement of other states, I pray you to be assured of my unabated friendship and respect.

Th: Jefferson

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