University of Virginia Library

1672. CONSTITUTION (The Federal), Construction of.—[further continued].

My construction of the
Constitution is * * * that each department
is truly independent of the others, and
has an equal right to decide for itself what
is the meaning of the Constitution in the cases
submitted to its action; and especially, where
it is to act ultimately and without appeal. I
will explain myself by examples, which, having
occurred while I was in office, are better
known to me, and the principles which governed
them. A Legislature had passed the
Sedition law. The Federal courts had subjected
certain individuals to its penalties of
fine and imprisonment. On coming into office,
I released these individuals by the power
of pardon committed to executive discretion,
which could never be more properly exercised
than where citizens were suffering without the
authority of law, or, which was equivalent,
under a law unauthorized by the Constitution,
and therefore null. In the case of Marbury
vs. Madison, the Federal judges declared that
commissions, signed and sealed by the President,
were valid although not delivered. I
deemed delivery essential to complete a deed,
which, as long as it remains in the hands of

the party, is as yet no deed, it is in posse only,
but not in esse, and I withheld delivery of the
commissions. They cannot issue a mandamus to the President or Legislature, or to any of
their officers. [102] When the British treaty of—arrived, without any provision against
the impressment of our seamen, I determined
not to ratify it. The Senate thought I should
ask their advice. I thought that would be a
mockery of them, when I was predetermined
against following it, should they advise its
ratification. The Constitution had made their
advice necessary to confirm a treaty, but not
to reject it. This has been blamed by some;
but I have never doubted its soundness. In
the cases of two persons, antenati, under exactly
similar circumstances, the Federal court
had determined that one of them (Duane)
was not a citizen; the House of Representatives
nevertheless determined that the other
(Smith, of South Carolina) was a citizen, and
admitted him to his seat in their body. Duane
was a republican, and Smith a federalist, and
these decisions were made during the federal
ascendency. These are examples of my position,
that each of the three departments has
equally the right to decide for itself what is
its duty under the Constitution, without any
regard to what the others may have decided
for themselves under a similar question.—
To Spencer Roane. Washington ed. vii, 135. Ford ed., x, 141.
(P.F.,,
18191819)gt;