Present my high respects to Mrs. Adams, and accept yourself the assurance of my affectionate attachment.
TO MR. W. H. TORRANCE.
Monticello, June 11, 1815.
Sir,—I received a few days ago your favor of May 5th, stating a question on a law of the State of Georgia which suspends judgments for a limited time, and asking my opinion whether it may be valid under the inhibition of our constitution to pass laws impairing the obligations of contracts. It is more than forty years since I have quitted the practice of the law, and been engaged in vocations which furnished little occasion of preserving a familiarity with that science. I am far, therefore, from being qualified to decide on the problems it presents, and certainly not disposed to obtrude in a case where gentlemen have been consulted of the first qualifications, and of actual and daily familiarity with the subject, especially too in a question on the law of another State. We have in this State a law resembling in some degree that you quote, suspending executions until a year after the treaty of peace; but no question under it has been raised before the courts. It is also, I believe, expected that when this shall expire, in consideration of the absolute impossibility of procuring coin to satisfy judgments, a law will be passed, similar to that passed in England, on suspending the cash payments of their bank, that provided that on refusal by a party to receive notes of the Bank of England in any case either of past or future contracts, the judgment should be suspended during the continuance of that act, bearing, however, legal interest. They seemed to consider that it was not this law which changed the conditions of the contract, but the circumstances which had arisen, and had rendered its literal execution impossible; by the disappearance of the metallic medium stipulated by the contract, that the parties not concurring in a reasonable and just accommodation, it became the duty of the legislature to arbitrate between them; and that less restrained than the Duke of Venice by the letter of decree, they were free to adjudge to Shylock a reasonable equivalent. And I believe that in our States this umpirage of the legislatures has been generally interposed in cases where a literal execution of contract has, by a change of circumstances, become impossible, or, if enforced, would produce a disproportion between the subject of the contract and its price, which the parties did not contemplate at the time of the contract.
The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the constitution which has given that power to them more than to the executive or legislative branches. Questions of property, of character and of crime being ascribed to the judges, through a definite course of legal proceeding, laws involving such questions belong, of course, to them; and as they decide on them ultimately and without appeal, they of course decide for themselves. The constitutional validity of the law or laws again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also, whether, under the constitution, they are valid or not. So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control from its co-ordinate branches. And, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities. It may be said that contradictory decisions may arise in such case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries, and authority of public opinion, will generally produce accommodation. Such an instance of difference occurred between the judges of England (in the time of Lord Holt) and the House of Commons, but the prudence of those bodies prevented inconvenience from it. So in the cases of Duane and of William Smith of South Carolina, whose characters of citizenship stood precisely on the same ground, the judges in a question of meum and tuum which came before them, decided that Duane was not a citizen; and in a question of membership, the House of Representatives, under the same words of the same provision, adjudged William Smith to be a citizen. Yet no inconvenience has ensued from these contradictory decisions. This is what I believe myself to be sound. But there is another opinion entertained by some men of such judgment and information as to lessen my confidence in my own. That is, that the legislature alone is the exclusive expounder of the sense of the constitution, in every part of it whatever. And they allege in its support, that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the constitution. It may indeed be answered, that an act may still be valid although the party is punished for it, right or wrong. However, this opinion which ascribes exclusive exposition to the legislature, merits respect for its safety, there being in the body of the nation a control over them, which, if expressed by rejection on the subsequent exercise of their elective franchise, enlists public opinion against their exposition, and encourages a judge or executive on a future occasion to adhere to their former opinion. Between these two doctrines, every one has a right to choose, and I know of no third meriting any respect.
I have thus, Sir, frankly, without the honor of your acquaintance, confided to you my opinion; trusting assuredly that no use will be made of it which shall commit me to the contentions of the newspapers. From that field of disquietude my age asks exemption, and permission to enjoy the privileged tranquillity of a private and unmeddling citizen. In this confidence accept the assurances of my respect and consideration.
TO MR. LEIPER.
Monticello, June 12, 1815.
Dear Sir,—A journey soon after the receipt of your favor of April the 17th, and an absence from home of some continuance, have prevented my earlier acknowledgment of it. In that came safely my letter of January the 2d, 1814. In our principles of government we differ not at all; nor in the general object and tenor of political measures. We concur in considering the government of England as totally without morality, insolent beyond bearing, inflated with vanity and ambition, aiming at the exclusive dominion of the sea, lost in corruption, of deep-rooted hatred towards us, hostile to liberty wherever it endeavors to show its head, and the eternal disturber of the peace of the world. In our estimate of Bonaparte, I suspect we differ. I view him as a political engine only, and a very wicked one; you, I believe, as both political and religious, and obeying, as an instrument, an unseen hand. I still deprecate his becoming sole lord of the continent of Europe, which he would have been, had he reached in triumph the gates of St. Petersburg. The establishment in our day of another Roman empire, spreading vassalage and depravity over the face of the globe, is not, I hope, within the purposes of Heaven. Nor does the return of Bonaparte give me pleasure unmixed; I see in his expulsion of the Bourbons, a valuable lesson to the world, as showing that its ancient dynasties may be changed for their misrule. Should the allied powers presume to dictate a ruler and government to France, and follow the example he had set of parcelling and usurping to themselves their neighbor nations, I hope he will give them another lesson in vindication of the rights of independence and self-government, which himself had heretofore so much abused; and that in this contest he will wear down the maritime power of England to limitable and safe dimensions. So far, good. It cannot be denied, on the other hand, that his successful perversion of the force (committed to him for vindicating the rights and liberties of his country) to usurp its government, and to enchain it under an hereditary despotism, is of baneful effect in encouraging future usurpations, and deterring those under oppression from rising to redress themselves. His restless spirit leaves no hope of peace to the world; and his hatred of us is only a little less than that he bears to England, and England to us. Our form of government is odious to him, as a standing contrast between republican and despotic rule; and as much from that hatred, as from ignorance in political economy, he had excluded intercourse between us and his people, by prohibiting the only articles they wanted from us, that is, cotton and tobacco. Whether the war we have had with England, and the achievements of that war, and the hope that we may become his instruments and partisans against that enemy, may induce him, in future, to tolerate our commercial intercourse with his people, is still to be seen. For my part, I wish that all nations may recover and retain their independence; that those which are overgrown may not advance beyond safe measures of power, that a salutary balance may be ever maintained among nations, and that our peace, commerce, and friendship, may be sought and cultivated by all. It is our business to manufacture for ourselves whatever we can, to keep our markets open for what we can spare or want; and the less we have to do with the amities or enmities of Europe, the better. Not in our day, but at no distant one, we may shake a rod over the heads of all, which may make the stoutest of them tremble. But I hope our wisdom will grow with our power, and teach us, that the less we use our power, the greater it will be.
The federal misrepresentation of my sentiments, which occasioned my former letter to you, was gross enough; but that and all others are exceeded by the impudence and falsehood of the printed extract you sent me from Ralph's paper. That a continuance of the embargo for two months longer would have prevented our war; that the non-importation law which succeeded it was a wise and powerful measure, I have constantly maintained. My friendship for Mr. Madison, my confidence in his wisdom and virtue, and my approbation of all his measures, and especially of his taking up at length the gauntlet against England, is known to all with whom I have ever conversed or corresponded on these measures. The word federal, or its synonyma lie, may therefore be written under every word of Mr. Ralph's paragraph. I have ransacked my memory to recollect any incident which might have given countenance to any particle of it, but I find none. For if you will except the bringing into power and importance those who were enemies to himself as well as to the principles of republican government, I do not recollect a single measure of the President which I have not approved. Of those under him, and of some very near him, there have been many acts of which we have all disapproved, and he more than we. We have at times dissented from the measures, and lamented the dilatoriness of Congress. I recollect an instance the first winter of the war, when, from sloth of proceedings, an embargo was permitted to run through the winter, while the enemy could not cruise, nor consequently restrain the exportation of our whole produce, and was taken off in the spring, as soon as they could resume their stations. But this procrastination is unavoidable. How can expedition be expected from a body which we have saddled with an hundred lawyers, whose trade is talking? But lies, to sow division among us, is so stale an artifice of the federal prints, and are so well understood, that they need neither contradiction nor explanation. As to myself, my confidence in the wisdom and integrity of the administration is so entire, that I scarcely notice what is passing, and have almost ceased to read newspapers. Mine remain in our post office a week or ten days, sometimes, unasked for. I find more amusement in studies to which I was always more attached, and from which I was dragged by the events of the times in which I have happened to live.