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Letter from Thomas Jefferson

Letter To Major John Cartwright - Monticello, June 5, 1824


        _To Major John Cartwright_
        _Monticello, June 5, 1824_


        DEAR AND VENERABLE SIR, -- I am much indebted for your kind
letter of February the 29th, 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 its 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 although 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 although this constitution was violated and set
at naught 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 the nation.  In the pullings and haulings
for these antient rights, between the nation, and its kings of the
races of Plantagenets, Tudors and Stuarts, there was sometimes gain,
and sometimes loss, until the final re-conquest 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 its rights; and although 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 occasion should occur.  The new King
received no rights or powers, but those expressly granted to him.  It
has ever appeared to me, that the difference between the whig and the
tory of England is, that the whig deduces his rights from the
Anglo-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 reign 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, 159, `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 traitor 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 and institutions of a
semi-barbarous ancestry.  We appealed to those of nature, and found
them engraved on 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 its science.  Its principles and forms had entered little into our
former education.  We established however some, although not all its
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, 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 its 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 its 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 its _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 twenty-four
miles square; the latter should be about six 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 its
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 its rights and duties,
subordinate indeed, yet important, and entirely within his
competence.  The wit of man 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 control over
the other, but within its 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 perceive 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 then the _lex legum_.


        But can they be made unchangeable?  Can one generation bind
another, and all others, in succession forever?  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 powers they held while in the form
of men?  A generation may bind itself as long as its 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 bo ok a formal contradition, 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 34. 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, Chief Justice, gives
his opinion in these words, `A tiel leis qu' ils de seint eglise ont
en _ancien scripture_, covient a nous a donner credence; car ceo
common ley sur quels touts manners leis sont fondes.  Et auxy, Sir,
nous sumus obleges de conustre lour ley de saint eglise: et
semblablement ils sont obliges de conustre nostre ley.  Et, Sir, si
poit apperer or a nous que l'evesque ad fait come un ordinary fera en
tiel cas, adong nous devons ceo adjuger bon, ou auterment nemy,' &c.
See S. C. Fitzh. Abr. Qu. imp. 89. Bro. Abr. Qu. imp. 12.  Finch in
his first book, 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, title,
`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 he 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 _vs._ Woolston, 2 Stra. 834, the court would not
suffer it to be debated, whether to write against Christianity was
punishable in the temporal court at common law?  Wood, therefore,
409, ventures still to vary the phrase, and say, 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, Lord Mansfield, with a little qualification,
in Evans' 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 Lord 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 Anglo-Saxon priests interpolated
into the text of Alfred's laws, the 20th, 21st, 22nd and 23rd
chapters of Exodus, and the 15th of the Acts of the Apostles, from
the 23rd 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 Tantarara, rogues all!


        I must still add to this long and rambling letter, my
acknowledgments 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 guardianship, 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, and
worthy of entire confidence.


        Your age of eighty-four and mine of eighty-one years, insure 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.