Jan. 27. 05.
Th: J. to mr Gallatin.
On the question Who are to pay the petty jurors in the courts of the US. in private cases? it must be admitted there is room for doubt. the act of 1792 c. 36. § 3. says ‘the compensations shall be to each grand & petit juror so much to witnesses summoned in any of the courts of the US. so much’ Etc. without saying who should pay either; whether the US. should pay all the jurors & witnesses or none? if it had rested on this ground only, it would have been satisfactorily decided by the principle of law ‘qui sentit commodum sentire debet et onus’, or that every one should pay his own. but the expressions of the 4th. section explaining that as to witnesses it was intended that the US. should pay their own only, and giving no explanation as to jurors, placed the question under a doubt which the 3d. § would not have produced. those who were to act on the law, & who were of course it’s expositors, expounded the meaning to be that every one should pay their own jurors & witnesses, and so acted on it, as I understand, many years. thus what was before uncertain was now rendered certain, and according to the usual doctrine of our courts, these precedents had fixed the law. this would have justified a continuance of that exposition even if, on sounder examination it had been afterwards thought incorrect. but the question is not now presented on that ground. the practice has been changed. the contrary exposition of the doubt as to jurors has been adopted & acted on for some years. the same principle therefore now directs that we should abide by our precedents, and consider them as having corrected & fixed the law, so that the legislature alone may now change it. but I think it sufficiently doubtful what their intention was, & sufficiently important, to bring it under their review; & the method you propose seems to be the best: and that the committee should be made to understand the ground of the doubt. affectionate salutations.
DLC: Papers of Thomas Jefferson.