University of Virginia Library

TO THOMAS JEFFERSON.

Dear Sir I return the copy of your letter to
Judge Johnson inclosed in your favor of the—
instant.[47] Your statement relating to the farewell
Address of Genl. Washington is substantially correct.
If there be any circumstantial inaccuracy, it is in
imputing to him more agency in composing the
document than he probably had. Taking for granted
that it was drawn up by Hamilton, the best conjecture
is that the General put into his hands his
own letter to me suggesting his general ideas, with
the paper prepared by me in conformity with them;
and if he varied the draught of Hamilton at all, it
was by a few verbal or qualifying amendments only.[48]
It is very inconsiderate in the friends of Genl. Washington
to make the merit of the Address a question
between him & Col: Hamilton, & somewhat extraordinary,
if countenanced by those who possess
the files of the General where it is presumed the
truth might be traced. They ought to claim for him
the merit only of cherishing the principles & views

addressed to his Country, & for the Address itself
the weight given to it by his sanction; leaving the
literary merit whatever it be to the friendly pen
employed on the occasion, the rather as it was never
understood that Washington valued himself on his
writing talent, and no secret to some that he occasionally
availed himself of the friendship of others
whom he supposed more practised than himself in
studied composition. In a general view it is to be
regretted that the Address is likely to be presented
to the public not as the pure legacy of the Father
of his Country, as has been all along believed, but
as the performance of another held in different estimation.
It will not only lose the charm of the
name subscribed to it; but it will not be surprizing
if particular passages be understood in new senses,
& with applications derived from the political doctrines
and party feelings of the discovered Author.

At some future day it may be an object with the
curious to compare the two draughts made at different
epochs with each other, and the letter of Genl.
W. with both. The comparison will shew a greater
conformity in the first with the tenor & tone of the
letter, than in the other; and the difference will be
more remarkable perhaps in what is omitted, than
in what is added in the Address as it stands.

If the solicitude of Genl. Washington's connexions
be such as is represented, I foresee that I shall share
their displeasure, if public use be made of what
passed between him & me at the approaching
expiration of his first term. Altho' it be impossible

to question the facts, I may be charged with indelicacy,
if not breach of confidence, in making them
known; and the irritation will be the greater, if the
Authorship of the Address continue to be claimed
for the signer of it; since the call on me on one
occasion, will favor the allegation of a call on another
occasion. I hope therefore that the Judge will not
understand your communication as intended for the
new work he has in hand. I do not know that your
statement would justify all the complaint its public
appearance might bring on me; but there certainly
was a species of confidence at the time in what
passed, forbidding publicity, at least till the lapse
of time should wear out the seal on it, & the truth
of history should put in a fair claim to such
disclosures.

I wish the rather that the Judge may be put on
his guard, because with all his good qualities, he
has been betrayed into errors which shew that his
discretion is not always awake. A remarkable
instance is his ascribing to Gouverneur Morris the
Newburg letters written by Armstrong, which has
drawn from the latter a corrosive attack which must
pain his feelings, if it should not affect his standing
with the Public. Another appears in a stroke at
Judge Cooper in a letter to the Education Committee
in Kentucky, which has plunged him into an envenomed
dispute with an antagonist, the force of
whose mind & pen you well know. And what is
worse than all, I perceive from one of Cooper's
publications casually falling within my notice, that,

among the effects of Judge Johnson's excitement,
he has stooped to invoke the religious prejudices
circulated agst. Cooper.

Johnson is much indebted to you for your remarks
on the definition of parties. The radical distinction
between them has always been a confidence of one,
and distrust of the other, as to the capacity of
Mankind for self Government. He expected far too
much, in requesting a precise demarkation of the
boundary between the Federal & the State Authorities.
The answer would have required a critical
commentary on the whole text of the Constitution.
The two general Canons you lay down would be of
much use in such a task; particularly that which
refers to the sense of the State Conventions, whose
ratifications alone made the Constitution what it is.
In exemplifying the other Canon, there are more
exceptions than occurred to you, of cases in which
the federal jurisdiction is extended to controversies
between Citizens of the same State. To mention
one only: In cases arising under a Bankrupt law,
there is no distinction between those to which
Citizens of the same & of different States are parties.

But after surmounting the difficulty in tracing the
boundary between the General & State Govts. the
problem remains for maintaining it in practice;
particularly in cases of Judicial cognizance. To
refer every point of disagreement to the people in
Conventions would be a process too tardy, too
troublesome, & too expensive; besides its tendency
to lessen a salutary veneration for an instrument

so often calling for such explanatory interpositions.
A paramount or even a definitive Authority in the
individual States, would soon make the Constitution
& laws different in different States, and thus
destroy that equality & uniformity of rights &
duties which form the essence of the Compact; to
say nothing of the opportunity given to the States
individually of involving by their decisions the
whole Union in foreign Contests. To leave conflicting
decisions to be settled between the Judicial
parties could not promise a happy result. The end
must be a trial of strength between the Posse headed
by the Marshal and the Posse headed by the Sheriff.
Nor would the issue be safe if left to a compromise
between the two Govts. the case of a disagreement
between different Govts. being essentially different
from a disagreement between branches of the same
Govt.. In the latter case neither party being able
to consummate its will without the concurrence
of the other, there is a necessity on both to consult
and to accommodate. Not so, with different Govts.
each possessing every branch of power necessary to
carry its purpose into compleat effect. It here
becomes a question between Independent Nations,
with no other dernier resort than physical force.
Negotiation might indeed in some instances avoid
this extremity; but how often would it happen,
among so many States, that an unaccommodating
spirit in some would render that resource unavailing.

We arrive at the agitated question whether the
Judicial Authority of the U. S. be the constitutional

resort for determining the line between the federal
& State jurisdictions. Believing as I do that the
General Convention regarded a provision within
the Constitution for deciding in a peaceable &
regular mode all cases arising in the course of its
operation, as essential to an adequate System of
Govt. that it intended the Authority vested in the
Judicial Department as a final resort in relation to
the States, for cases resulting to it in the exercise of
its functions, (the concurrence of the Senate chosen
by the State Legislatures, in appointing the Judges,
and the oaths & official tenures of these, with the
surveillance of public Opinion, being relied on as
guarantying their impartiality); and that this intention
is expressed by the articles declaring that the
federal Constitution & laws shall be the supreme
law of the land, and that the Judicial Power of the
U. S. shall extend to all cases arising under them:
Believing moreover that this was the prevailing
view of the subject when the Constitution was
adopted & put into execution; that it has so continued
thro' the long period which has elapsed; and
that even at this time an appeal to a national decision
would prove that no general change has taken place:
thus believing I have never yielded my original
opinion indicated in the "Federalist" No. 39 to the
ingenious reasonings of Col: Taylor agst. this construction
of the Constitution.[49]

I am not unaware that the Judiciary career has

not corresponded with what was anticipated. At
one period the Judges perverted the Bench of Justice
into a rostrum for partizan harangues. And latterly
the Court, by some of its decisions, still more by
extrajudicial reasonings & dicta, has manifested a
propensity to enlarge the general authority in
derogation of the local, and to amplify its own
jurisdiction, which has justly incurred the public
censure. But the abuse of a trust does not disprove
its existence. And if no remedy of the abuse be
practicable under the forms of the Constitution,
I should prefer a resort to the Nation for an amendment
of the Tribunal itself, to continual appeals
from its controverted decisions to that Ultimate
Arbiter.

In the year 1821, I was engaged in a correspondence
with Judge Roane, which grew out of the
proceedings of the Supreme Court of the U. S.[50]
Having said so much here I will send you a copy
of my letters to him as soon as I can have a legible
one made, that a fuller view of my ideas with respect
to them may be before you.

I agree entirely with you on the subject of seriatim
opinions by the Judges, which you have placed in
so strong a light in your letter to Judge Johnson,
whose example it seems is in favor of the practice.
An argument addressed to others, all of whose
dislikes to it are not known, may be a delicate
experiment. My particular connexion with Judge
Todd, whom I expect to see, may tempt me to touch

on the subject; and, if encouraged, to present views
of it wch. thro' him may find the way to his intimates.

In turning over some bundles of Pamphlets, I
met with several Copies of a very small one which
at the desire of my political associates I threw out in
1795. As it relates to the state of parties I inclose
a Copy. It had the advantage of being written
with the subject full & fresh in my mind, and the
disadvantage of being hurried, at the close of a
fatiguing session of Congs. by an impatience to return
home, from which I was detained by that Job only.
The temper of the pamphlet is explained if not
excused by the excitements of the period.