The system of justice will either protect citizens from tyranny or be one means by which tyranny is exercised over them. A just society rests upon an equal application of the law to each and every citizen; it protects the rights of individuals regardless of the inconveniences caused thereby. It is of inestimable importance to the happiness and security of the people that justice be administered strictly, according to the established forms of the law.
"The most sacred of the duties of a government [is] to do equal and impartial justice to all its citizens." --Thomas Jefferson: Note in Destutt de Tracy, "Political Economy," 1816. ME 14:465
"It is the duty of the General Government to guard its subordinate members from the encroachments of each other, even when they are made through error or inadvertence, and to cover its citizens from the exercise of powers not authorized by law." --Thomas Jefferson: Official Opinion, 1790. ME 3:88
"Were it made a question, whether no law, as among the savage Americans, or too much law, as among the civilized Europeans, submits man to the greatest evil, one who has seen both conditions of existence would pronounce it to be the last; and that the sheep are happier of themselves, than under care of the wolves." --Thomas Jefferson: Notes on Virginia Q.XI, 1782. ME 2:129
"Law is often but the tyrant's will, and always so when it violates the right of an individual." --Thomas Jefferson to Isaac H. Tiffany, 1819.
"Equal and exact justice to all men, of whatever state or persuasion, religious or political, I deem [one of] the essential principles of our Government, and consequently [one of] those which ought to shape its administration." --Thomas Jefferson: 1st Inaugural Address, 1801. ME 3:321
"Justice is the fundamental law of society." --Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816. ME 14:490
"An equal application of law to every condition of man is fundamental." --Thomas Jefferson to George Hay, 1807. ME 11:341
"It is certainly for the good of the whole nation to assimilate as much as possible all its parts, to strengthen their analogies, obliterate the traits of difference, and to deal law and justice to all by the same rule and the same measure." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:80
"As [Emerich de] Vattel says himself... 'All the tranquility, the happiness and security of mankind rest on justice, on the obligation to respect the rights of others.'" --Thomas Jefferson: Opinion on French Treaties, 1793. ME 3:239
30.1 Citizens Under the Law
"The laws of the land are the inheritance and the right of every man before whatever tribunal he is brought." --Thomas Jefferson: Notes on Stevens Case, 1804. ME 17:396
"No man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third." --Thomas Jefferson to Francis Gilmer, 1816. ME 15:24
"We lay it down as a fundamental, that laws, to be just, must give a reciprocation of rights; that without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience." --Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:199
"The sword of the law should never fall but on those whose guilt is so apparent as to be pronounced by their friends as well as foes." --Thomas Jefferson to Mrs. Sarah Mease, 1801. FE 8:35
"[Montesquieu wrote in Spirit of the Laws, VI,c.2:] 'In moderate governments, where the life of the meanest subject is deemed precious, no man is stripped of his honor or property until after a long inquiry; and no man is bereft of life till his very country has attacked him--an attack that is never made without leaving him all possible means of making his defense. Hence it is when a person renders himself absolute, he immediately think of reducing the number of laws. In a government thus constituted, they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.'" --Thomas Jefferson: copied into his Commonplace Book.
"A spirit of disobedience... must be subdued. Laws made by common consent must not be trampled on by individuals. It is very much the good to force the unworthy into their due share of contributions to the public support, otherwise the burden on them will become oppressive, indeed." --Thomas Jefferson to Garret Vanmeter, 1781. ME 4:417, Papers 5:566
"Ignorance of the law is no excuse, in any country. If it were, the laws would lose their effect, because it can be always pretended... With us, there is no power which can suspend the law for a moment." --Thomas Jefferson to Andrew Limozin, 1787. ME 6:401
"In no country on earth is [forcible opposition to the law] so impracticable as in one where every man feels a vital interest in maintaining the authority of the laws and instantly engages in it as in his own personal cause." --Thomas Jefferson to Benjamin Smith, 1808. ME 12:62
"My long and intimate knowledge of my countrymen satisfied and satisfies me, that let there ever be occasion to display the banners of the law and the world will see how few and pitiful are those who will array themselves in opposition." --Thomas Jefferson to James Brown, 1808. ME 12:184
"While the laws shall be obeyed, all will be safe. He alone is your enemy who disobeys them." --Thomas Jefferson: Misc. Notes, 1801?. FE 8:1
30.2 The Administration of Justice
"The principle of Baccaria is sound. Let the legislators be merciful, but the executors of the law inexorable." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:78
"The administration of justice is a branch of the sovereignty over a country and belongs exclusively to the nation inhabiting it. No foreign power can pretend to participate in their jurisdiction, or that their citizens received there are not subject to it." --Thomas Jefferson to George Hammond, 1792. ME 16:257
"No nation however powerful, any more than an individual, can be unjust with impunity. Sooner or later, public opinion, an instrument merely moral in the beginning, will find occasion physically to inflict its sentences on the unjust... The lesson is useful to the weak as well as the strong." --Thomas Jefferson to James Madison, 1804. FE 8:300
"The punishment of all real crimes is certainly desirable as a security to society; the security is greater in proportion as the chances of avoiding punishment are less." --Thomas Jefferson: Report on Spanish Convention, 1792. FE 5:482
"It [is] more dangerous that even a guilty person should be punished without the forms of law, than that he should escape." --Thomas Jefferson to William Carmichael, 1788. ME 7:30
"It [is] more a duty [of the Attorney General] to save an innocent than to convict a guilty man." --Thomas Jefferson: Biographical Sketch of Peyton Randolph. ME 18:139
"When one undertakes to administer justice, it must be with an even hand, and by rule; what is done for one, must be done for everyone in equal degree." --Thomas Jefferson to Benjamin Rush, 1803. ME 10:420
"The public security against a partial dispensation of justice depends on its being dispensed by certain rules. The slightest deviation in one circumstance becomes a precedent for another, that for a third, and so on, without bounds. A relaxation in a case where it is certain no fraud is intended, is laid hold of by others, afterwards, to cover fraud." --Thomas Jefferson to George Joy, 1790. ME 8:10
"Courts of justice all over the world are held by the laws to proceed according to certain forms, which the good of the suitors themselves requires they should not be permitted to depart from." --Thomas Jefferson to Charles Hellstedt, 1791. ME 8:126
"No nation can answer for perfect exactitude of proceedings in all their inferior courts. It suffices to provide a supreme judicature where all error and partiality will be ultimately corrected." --Thomas Jefferson to George Hammond, 1792. ME 16:255
"It is not right for those who are only to act in a preliminary form, to let their own doubts preclude the judgment of the court of ultimate decision." --Thomas Jefferson to James Monroe, 1797. ME 9:423
"Republican attorneys and marshals, being the doors of entrance into the courts, are indispensably necessary as a shield to the republican part of our fellow citizens which, I believe, is the main body of the people." --Thomas Jefferson to William Branch Giles, 1801. ME 10:239
"When [a cabal in the county courts] takes place, it becomes the most afflicting of tyrannies, because its powers are so various, and exercised on everything most immediately around us." --Thomas Jefferson to John Taylor, 1816. ME 15:45
"Transferring the power of judging any person who is under the protection of the laws, from the courts to the President of the United States, is against the article of the Constitution which provides that 'the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior.'" --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:384
"It was fundamentally wrong to submit freemen to laws made by officers of the Executive." --Thomas Jefferson: Charges Against Sinclair, n.d. ME 17:371
30.3 Crimes and Punishments
"The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes,... was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, and I would provide them strict and inflexible, but proportioned to the crime. Death might be inflicted for murder and perhaps for treason, [but I] would take out of the description of treason all crimes which are not such in their nature. Rape, buggery, etc., punish by castration. All other crimes by working on high roads, rivers, gallies, etc., a certain time proportioned to the offence... Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge or of the executive power will be the eccentric impulses of whimsical, capricious designing man." --Thomas Jefferson to Edmund Pendleton, 1776. Papers 1:505
"[Montesquieu wrote in Spirit of the Laws, VI,c.9:] 'The severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or a republic, whose spring is honor and virtue. In moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here, the greatest punishment of a bad action is conviction. The civil laws have therefore a softer way of correcting, and do not require so much force and severity. In those states a good legislator is less bent upon punishing than preventing crimes; he is more attentive to inspire good morals than to inflict penalties.'" --Thomas Jefferson: copied into his Commonplace Book.
"In forming a scale of crimes and punishments, two considerations have principal weight. 1. The atrocity of the crime. 2. The peculiar circumstances of a country, which furnish greater temptations to commit it, or greater facilities for escaping detection. The punishment must be heavier to counterbalance this. Were the first the only consideration, all nations would form the same scale. But as the circumstances of a country have influence on the punishment, and no two countries exist precisely under the same circumstances, no two countries will form the same scale of crimes and punishments." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:79
30.4 Grand Juries
"Grand juries are the constitutional inquisitors and informers of the country; they are scattered everywhere, see everything, see it while they suppose themselves mere private persons and not with the prejudiced eye of a permanent and systematic spy. Their information is on oath, is public; it is in the vicinage of the party charged and can be at once refuted. These officers, taken only occasionally from among the people, are familiar to them, the office respected, and the experience of centuries has shown that it is safely entrusted with our character, property, and liberty." --Thomas Jefferson to Edmund Randolph, 1793. ME 9:83
"A grand juror cannot carry on systematic persecution against a neighbor whom he hates, because he is not permanent in the office. The judges generally, by a charge, instruct the grand jurors in the infractions of law which are to be noticed by them; and our judges are in the habit of printing their charges in the newspapers." --Thomas Jefferson to Edmund Randolph, 1793. ME 9:83
"[If] the charges of the Federal judges... [invite] the grand juries to become inquisitors on the freedom of speech, of writing and of principle of their fellow citizens, perhaps the grand juries... may think it incumbent in their next presentment to enter protestations against this perversion of their institution from a legal to a political machine and even to present those concerned in it." --Thomas Jefferson to Peregrine Fitzhugh, 1797. (*) FE 7:137
30.5 Limits on Judicial Powers
"Republicans... deny that Congress can pass any law not authorized by the Constitution, and that the judges can act on any law not authorized by Congress, or by the Constitution in very direct terms." --Thomas Jefferson: Notes on Hardin's Case, 1812. ME 17:414
"The Constitution of the United States [has] delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever... It [is] true as a general principle, and one of the amendments to the Constitution [has] also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." Therefore,... [all] acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution are altogether void and of no force... The power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective States, each within its own territory." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:380
"Libels, falsehood and defamation, equally with heresy and false religion, are withheld from the cognizance of Federal tribunals." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:382
"[If] the barrier of the Constitution... [is] swept away from us all, no rampart [would remain] against the passions and the powers of a majority in Congress to protect from a... grievous punishment the minority of the same body, the legislatures, judges, governors, and counselors of the States, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views or marked by the suspicions of the President, or be thought dangerous to his or their election or other interests, public or personal." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:388
"The imprisonment of a person under the protection of the laws... on his failure to obey the simple order of the President to depart out of the United States,... is contrary to the Constitution, one amendment to which has provided that 'no person shall be deprived of liberty without due process of law,' and... another having provided that 'in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.'" --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:383
"[Montesquieu wrote in his Spirit of the Laws, III,c.3:] 'When, in a popular government, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly undone." --Thomas Jefferson: copied into his Commonplace Book.
"Treason,... when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government, and acts against the oppressions of the government. The latter are virtues, yet have furnished more victims to the executioner than the former, because real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries." --Thomas Jefferson: Report on Spanish Convention, 1792. FE 5:483
"However desirable it be that the perpetrators of crimes, acknowledged to be such by all mankind, should be delivered up to punishment, yet it is extremely difficult to draw the line between those and acts rendered criminal by tyrannical laws only; hence the first step always, is a convention defining the cases where a surrender [of an accused] shall take place [to a foreign state]." --Thomas Jefferson to George Washington, 1791. ME 8:255
30.6 The Law of Necessity
"The question... whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means." --Thomas Jefferson to John Colvin, 1810. ME 12:418
"Necessity is above all law." --Thomas Jefferson: Report on Navigation of the Mississippi, 1792. ME 3:170
"Unable... to consult his government, a zealous citizen will act as he believes that would direct him were it apprized of the circumstances, and will take on himself the responsibility. In all these cases the purity and patriotism of the motives should shield the agent from blame, and even secure the sanction where the error is not too injurious." --Thomas Jefferson: Special Message, 1806. ME 3:405
"The law of self-preservation overrules the laws of obligation in others." --Thomas Jefferson: Opinion on French Treaties, 1793. ME 3:228
"There are situations when form must be dispensed with. A man attacked by assassins will call for help to those nearest him, and will not think himself bound to silence till a magistrate may come to this aid." --Thomas Jefferson to William Short, 1791. ME 8:263
"Reason, which gives the right of self-liberation from a contract in certain cases, has subjected it to certain just limitations. The danger which absolves us must be great, inevitable and imminent." --Thomas Jefferson: Opinion on French Treaties, 1793. ME 3:229
"A ship at sea in distress for provisions meets another having abundance, yet refusing a supply; the law of self preservation authorizes the distressed to take a supply by force. In all these cases, the unwritten laws of necessity, of self-preservation, and of the public safety control the written laws of meum and tuum." --Thomas Jefferson to John Colvin, 1810. ME 12:419
"In an encampment expecting daily attack from a powerful enemy, self-preservation is paramount to all law." --Thomas Jefferson to James Brown, 1808. ME 12:183
"[The] law of necessity and self-preservation... [render] the salus populi supreme over the written law. The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the Constitution, and his station makes it his duty to incur that risk. But those controlling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. They are not to transfer the information of this place or moment to the time and place of his action; but to put themselves into his situation." --Thomas Jefferson to John Colvin, 1810. ME 12:421
"It is incumbent on those only who accept of great charges to risk themselves on great occasions when the safety of the nation or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended and which involved the most important consequences. The line of discrimination between cases may be difficult, but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives." --Thomas Jefferson to John Colvin, 1810. ME 12:421
"In executive cases, where promptitude and decision are all-important, an adherence to the letter of a law against its probable intentions (for every law must intend that itself shall be executed), would be fraught with incalculable danger. Judges may await further legislative explanations, but a delay of executive action might produce irretrievable ruin." --Thomas Jefferson to James Barbour, 1812. ME 13:128
"The cautious maxims of the bench, to seek the will of the legislator and his words only, are proper and safer for judicial government. They act ever on an individual case only, the evil of which is partial, and gives time for correction. But an instant of delay in executive proceedings may be fatal to the whole nation. They must not, therefore, be laced up in the rules of the judiciary department. They must seek the intention of the legislator in all the circumstances which may indicate it in the history of the day, in the public discussions, in the general opinion and understanding, in reason and in practice." --Thomas Jefferson to James Barbour, 1812. ME 13:128
"[To save] the Republic... is the first and supreme law." --Thomas Jefferson: Autobiography, 1821. ME 1:122
"He is a bad citizen who can entertain a doubt whether the law will justify him in saving his country, or who will scruple to risk himself in support of the spirit of a law where unavoidable accidents have prevented a literal compliance with it." --Thomas Jefferson: to County Magistrates, 1781.
"We judge of the merit of our agents... by the magnitude of the danger as it appeared to them, not as it was known to us. On great occasions, every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it; his motives will be a justification as far as there is any discretion in his ultra-legal proceedings, and no indulgence of private feelings." --Thomas Jefferson to W. C. C. Claiborne, 1807. ME 11:151
"The moment our peace was threatened, I deemed it indispensable to secure a greater provision of those articles of military stores with which our magazines were not sufficiently furnished. To have awaited a previous and special sanction by law would have lost occasions which might not be retrieved. I did not hesitate, therefore, to authorize engagements for such supplements to our existing stock as would render it adequate to the emergencies threatening us; and I trust that the Legislature, feeling the same anxiety for the safety of our country so materially advanced by this protection, will approve when done what they would have seen so important to be done if then assembled." --Thomas Jefferson: 7th Annual Message, 1807. ME 3:450
"Should we have ever gained our Revolution if we had bound our hands by manacles of the law, not only in the beginning, but in any part of the revolutionary conflict? There are extreme cases where the laws become inadequate even to their own preservation, and where the universal resource is a dictator or martial law." --Thomas Jefferson James Brown, 1808. ME 12:183
ME, FE = Memorial Edition, Ford Edition. See Sources.
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