The Judicial Branch must be independent of other branches of government, but not independent of the nation itself. It is rightly responsible to the people for irregular and censurable decisions, and judges should be appointed for limited terms with reappointments resulting from approved conduct.
"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to A. Coray, 1823. ME 15:482
"It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true, and, if doubtful, we should follow principle. In this, as in many other elections, they would be guided by reputation, which would not err oftener, perhaps, than the present mode of appointment." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:36
"Render the judiciary respectable by every means possible, to wit, firm tenure in office, competent salaries and reduction of their numbers." --Thomas Jefferson to Archibald Stuart, 1791. ME 8:277
29.1 Judicial Independence
"The judiciary... is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity." --Thomas Jefferson to James Madison, 1789. ME 7:309
"The judges... should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law." --Thomas Jefferson to George Wythe, 1776. ME 4:259, Papers 1:410
"The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that." --Thomas Jefferson to George Wythe, 1776. Papers 1:410
"The Constitution of the United States having divided the powers of government into three branches, legislative, executive, and judiciary, and deposited each with a separate body of magistracy, forbidding either to interfere in the department of the other, the executive are not at liberty to intermeddle in [a] question [that] must be ultimately decided by the Supreme Court." --Thomas Jefferson to Charles Hellstedt, 1791. ME 8:126
"It will be said, that [a federal] court may encroach on the jurisdiction of the State courts. It may. But there will be a power, to wit, Congress, to watch and restrain them. But place the same authority in Congress itself, and there will be no power above them, to perform the same office. They will restrain within due bounds, a jurisdiction exercised by others, much more rigorously than if exercised by themselves." --Thomas Jefferson to James Madison, 1787. ME 6:133
29.2 Not Independent of the Nation
"A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:298
"Over the Judiciary department, the Constitution [has] deprived [the nation] of their control." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212
"The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807. FE 9:68
"The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow, 1801. ME 10:223
"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to James Pleasants, 1821. FE 10:198
29.3 Judicial Accountability
"In England, where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared and has flowed, it was a great point gained by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage." --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:34
"It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that 'it is the office of a good judge to enlarge his jurisdiction,' and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear?" --Thomas Jefferson: Autobiography, 1821. ME 1:121
"We have... [required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. But this ought not to be. I would not indeed make them dependent on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government that they should be submitted to some practical and impartial control, and that this, to be impartial, must be compounded of a mixture of state and federal authorities." --Thomas Jefferson: Autobiography, 1821. ME 1:120
"Having found from experience that impeachment is an impracticable thing, a mere scarecrow, [the Judiciary] consider themselves secure for life." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:297
"Impeachment is a farce which will not be tried again." --Thomas Jefferson to William B. Giles, 1807. ME 11:191
29.4 Appointments for Limited Terms
"Our different States have differently modified their several judiciaries as to the tenure of office. Some appoint their judges for a given term of time; some continue them during good behavior, and that to be determined on by the concurring vote of two-thirds of each legislative house. In England they are removable by a majority only of each house. The last is a practicable remedy; the second is not. The combination of the friends and associates of the accused, the action of personal and party passions and the sympathies of the human heart will forever find means of influencing one-third of either the one or the other house, will thus secure their impunity and establish them in fact for life. The first remedy is the better, that of appointing for a term of years only, with a capacity of reappointment if their conduct has been approved." --Thomas Jefferson to A. Coray, 1823. ME 15:486
"Let the future appointments of judges be for four or six years and renewable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses." --Thomas Jefferson to William T. Barry, 1822. ME 15:389
"If this would not be independence enough, I know not what would be such short of the total irresponsibility under which we are acting and sinning now... We require a majority of one house and two-thirds of the other [for removal of a judge]--a concurrence which in practice has been and ever will be found impossible; for the judicial perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment, therefore, is a bugbear which they fear not at all. But they would be under some awe of the canvass of their conduct which would be open to both houses regularly every sixth year." --Thomas Jefferson to James Pleasants, 1821. FE 10:198
"If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation." --Thomas Jefferson to William Branch Giles, 1807. ME 11:191
29.5 Irregular and Censurable Decisions
"Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." --Thomas Jefferson: Autobiography, 1821. ME 1:121
"The judges... are practicing 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 control, 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 its observance." --Thomas Jefferson to Edward Livingston, 1825. ME 16:113
"[The] practice of Judge Marshall of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable." --Thomas Jefferson to William Johnson, 1823. ME 15:447
29.6 Consolidating Decisions
"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Thomas Jefferson to Spencer Roane, 1821. ME 15:326
"The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, 'boni judicis est ampliare jurisdictionem.'" --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:297
"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Thomas Jefferson to Charles Hammond, 1821. ME 15:331
29.7 Undermining Republican Government
"At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account." --Thomas Jefferson to A. Coray, 1823. ME 15:486
"This member of the government... has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston, 1825. ME 16:114
"I do not charge the judges with wilful and ill-intentioned error; but honest error must be arrested where its toleration leads to public ruin. As for the safety of society, we commit honest maniacs to Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the republic, which is the first and supreme law." --Thomas Jefferson: Autobiography, 1821. ME 1:122
"If, indeed, a judge goes against the law so grossly, so palpably, as no imputable degree of folly can account for, and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong; but not for the error: nor is he liable to action by the party grieved. And our form of government constituting its respective functionaries judges of the law which is to guide their decisions, places all within the same reason, under the safeguard of the same rule." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:130
"One single object... [will merit] the endless gratitude of society: that of restraining the 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." --Thomas Jefferson to Edward Livingston, 1825. ME 16:113
29.8 Seratim Decisions
"I must comfort myself with the hope that the judges will see the importance and the duty of giving their country the only evidence they can give of fidelity to its Constitution and integrity in the administration of its laws; that is to say, by everyone's giving his opinion seriatim and publicly on the cases he decides. Let him prove by his reasoning that he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor. Throw himself in every case on God and country; both will excuse him for error and value him for his honesty. The very idea of cooking up opinions in conclave begets suspicions that something passes which fears the public ear, and this, spreading by degrees, must produce at some time abridgement of tenure, facility of removal, or some other modification which may promise a remedy." --Thomas Jefferson to William Johnson, 1823. ME 15:422
"I... [am] 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." --Thomas Jefferson to Edward Livingston, 1825. ME 16:114
"Lay bare these wounds of our Constitution, expose the decisions seriatim, and arouse, as it is able, the attention of the nation to these bold speculators on its patience." --Thomas Jefferson to Thomas Ritchie, 1820. ME 15:297
ME, FE = Memorial Edition, Ford Edition. See Sources.
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