Thomas Jefferson on Politics & Government

49. Juridical Rights

Fundamental juridical rights, such as the Habeas Corpus and Trial by Jury, help prevent the oppression of individual citizens by limiting the capacity of government officials to persecute persons based on trumped-up charges or non-existent offenses.

"A bill of rights [should provide] clearly and without the aid of sophisms for... the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of nations." --Thomas Jefferson to James Madison, 1787. ME 6:387

49.1 Habeas Corpus

Habeas Corpus, "you should have the body," guarantees that a person can only be arrested pursuant to the law, and not simply at the will of some despotic governing authority. It is a legal procedure in the form of a writ that demands that a person be brought before a magistrate and charged under due process, or else that he be immediately released. It protects the people by preventing government from making arbitrary arrests.

"The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." --Thomas Jefferson to A. H. Rowan, 1798. ME 10:61

"Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government." --Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:322

"Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension." --Thomas Jefferson to James Madison, 1788. ME 7:97

"[The] bill of rights [should provide] clearly and without the aid of sophisms for... the eternal and unremitting force of the habeas corpus laws." --Thomas Jefferson to James Madison, 1787.

"The following [addition to the Bill of Rights] would have pleased me:...No person shall be held in confinement more than __ days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than __ days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than __ hours in any place of a greater distance than __ miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than __ miles distant from the station or encampment of enemies or of insurgents." --Thomas Jefferson to James Madison, 1789.

49.2 Trial by Jury

Trial by jury is another constitutional protection for the rights of the people. By assuring that the people themselves participate in the judicial process, governing authorities are prevented from unjustly prosecuting individuals. Trial by jury assumes that the people themselves are the best guardians of their own rights, and that they will release from custody any person unjustly charged. It also allows the people to make unjust laws of no effect with their power of jury nullification.

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408

"[The people] are not qualified to judge questions of law, but they are very capable of judging question of fact. In the form of juries, therefore, they determine all controverted matters of fact, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283

"With us, the people (by which is meant the mass of individuals composing the society), being competent to judge of the facts occurring in ordinary life, they have retained the functions of judges of facts under the name of jurors." --Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816. ME 14:488

"The following [addition to the Bill of Rights] would have pleased me:... All facts put in issue before any judicature shall be tried by jury except, 1, in cases of admiralty jurisdiction wherein a foreigner shall be interested; 2, in cases cognizable before a court martial concerning only the regular officers and soldiers of the United States or members of the militia in actual service in time of war or insurrection; and, 3, in impeachments allowed by the Constitution." --Thomas Jefferson James Madison, 1789.

"It will be worthy [of] consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those States where they are named by a marshall depending on Executive will, or designated by the court or by officers dependent on them." --Thomas Jefferson: 1st Annual Message, 1801. ME 3:338

49.3 Jury Nullification

"It is left... to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283

"If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system." --Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:179

"The juries [are] our judges of all fact, and of law when they choose it." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:35

"We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283

ME, FE = Memorial Edition, Ford Edition.   See Sources.

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