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.
I rejoice exceedingly that our war with England was single-handed. In that of the Revolution, we had France, Spain, and Holland on our side, and the credit of its success was given to them. On the late occasion, unprepared and unexpecting war, we were compelled to declare it, and to receive the attack of England, just issuing from a general war, fully armed, and freed from all other enemies, and have not only made her sick of it, but glad to prevent, by peace, the capture of her adjacent possessions, which one or two campaigns more would infallibly have made ours. She has found that we can do her more injury than any other enemy on earth, and henceforward will better estimate the value of our peace. But whether her government has power, in opposition to the aristocracy of her navy, to restrain their piracies within the limits of national rights, may well be doubted. I pray, therefore, for peace, as best for all the world, best for us, and best for me, who have already lived to see three wars, and now pant for nothing more than to be permitted to depart in peace. That you also, who have longer to live, may continue to enjoy this blessing with health and prosperity, through as long a life as you desire, is the prayer of yours affectionately.
P. S. June the 14th.—Before I had sent my letter to the post office, I received the new treaty of the allied powers, declaring that the French nation shall not have Bonaparte, and shall have Louis XVIII. for their ruler. They are all then as great rascals as Bonaparte himself. While he was in the wrong, I wished him exactly as much success as would answer our purposes, and no more. Now that they are wrong and he in the right, he shall have all my prayers for success, and that he may dethrone every man of them.
TO MR. MAURY
Monticello, June 15, 1815.
I congratulate you, my dear and ancient friend, on the return of peace, and the restoration of intercourse between our two countries. What has passed may be a lesson to both of the injury which either can do the other, and the peace now opened may show what would be the value of a cordial friendship; and I hope the first moments of it will be employed to remove the stumbling block which must otherwise keep us eternal enemies. I mean the impressment of our citizens. This was the sole object of the continuance of the late war, which the repeal of the orders of council would otherwise have ended at its beginning. If according to our estimates, England impressed into her navy 6,000 of our citizens, let her count the cost of the war, and a greater number of men lost in it, and she will find this resource for manning her navy the most expensive she can adopt, each of these men having cost her £30,000 sterling, and a man of her own besides. On that point we have thrown away the scabbard, and the moment an European war brings her back to this practice, adds us again to her enemies. But I hope an arrangement is already made on this subject. Have you no statesmen who can look forward two or three score years? It is but forty years since the battle of Lexington. One-third of those now living saw that day, when we were about two millions of people, and have lived to see this, when we are ten millions. One-third of those now living, who see us at ten millions, will live another forty years, and see us forty millions; and looking forward only through such a portion of time as has passed since you and I were scanning Virgil together, (which I believe is near three score years,) we shall be seen to have a population of eighty millions, and of not more than double the average density of the present. What may not such a people be worth to England as customers and friends? and what might she not apprehend from such a nation as enemies? Now, what is the price we ask for our friendship? Justice, and the comity usually observed between nation and nation. Would there not be more of dignity in this, more character and satisfaction, than in her teasings and harassings, her briberies and intrigues, to sow party discord among us, which can never have more effect here than the opposition within herself has there; which can never obstruct the begetting children, the efficient source of growth; and by nourishing a deadly hatred, will only produce and hasten events which both of us, in moments of sober reflection, should deplore and deprecate. One half of the attention employed in decent observances towards our government, would be worth more to her than all the Yankee duperies played off upon her, at a great expense on her part of money and meanness, and of nourishment to the vices and treacheries of the Henrys and Hulls of both nations. As we never can be at war with any other nation, (for no other nation can get at us but Spain, and her own people will manage her,) the idea may be generated that we are natural enemies, and a calamitous one it will be to both. I hope in God her government will come to a sense of this, and will see that honesty and interest are as intimately connected in the public as in the private code of morality. Her ministers have been weak enough to believe from the newspapers that Mr. Madison and myself are personally her enemies. Such an idea is unworthy a man of sense; as we should have been unworthy our trusts could we have felt such a motive of public action. No two men in the United States have more sincerely wished for cordial friendship with her; not as her vassals or dirty partisans, but as members of co-equal States, respecting each other, and sensible of the good as well as the harm each is capable of doing the other. On this ground there was never a moment we did not wish to embrace her. But repelled by their aversions, feeling their hatred at every point of contact, and justly indignant at its supercilious manifestations, that happened which has happened, that will follow which must follow, in progressive ratio, while such dispositions continue to be indulged. I hope they will see this, and do their part towards healing the minds and cooling the temper of both nations. The irritation here is great and general, because the mode of warfare both on the maritime and inland frontiers has been most exasperating. We perceive the English passions to be high also, nourished by the newspapers, that first of all human contrivances for generating war. But it is the office of the rulers on both sides to rise above these vulgar vehicles of passion; to assuage angry feelings, and by examples and expressions of mutual regard in their public intercourse, to lead their citizens into good temper with each other. No one feels more indignation than myself when reflecting on the insults and injuries of that country to this. But the interests of both require that these should be left to history, and in the meantime be smothered in the living mind. I have indeed little personal concern in it. Time is drawing her curtain on me. But I should make my bow with more satisfaction, if I had more hope of seeing our countries shake hands together cordially. In this sentiment I am sure you are with me, and this assurance must apologize for my indulging myself in expressing it to you, with that of my constant and affectionate friendship and respect.
TO MR. MAURY
Monticello, June 16, 1815.
My Dear Sir,—Just as I was about to close my preceding letter, yours of April 29th is put into my hands, and with it the papers your kindness forwards to me. I am glad to see in them expressions of regard for our friendship and intercourse from one side of the houses of parliament. But I would rather have seen them from the other, if not from both. What comes from the opposition is understood to be the converse of the sentiments of the government, and we would not there, as they do here, give up the government for the opposition. The views of the Prince and his ministers are unfortunately to be taken from the speech of Earl Bathurst, in one of the papers you sent me. But what is incomprehensible to me is that the Marquis of Wellesley, advocating us, on the ground of opposition, says that "the aggression which led to the war, was from the United States, not from England." Is there a person in the world who, knowing the circumstances, thinks this? The acts which produced the war were, 1st, the impressment of our citizens by their ships of war, and, 2d, the orders of council forbidding our vessels to trade with any country but England, without going to England to obtain a special license. On the first subject the British minister declared to our Chargé, Mr. Russel, that this practice of their ships of war would not be discontinued, and that no admissible arrangement could be proposed; and as to the second, the Prince Regent, by his proclamation of April 21st, 1812, declared in effect solemnly that he would not revoke the orders of council as to us, on the ground that Bonaparte had revoked his decrees as to us; that, on the contrary, we should continue under them until Bonaparte should revoke as to all the world. These categorical and definite answers put an end to negotiation, and were a declaration of a continuance of the war in which they had already taken from us one thousand ships and six thousand seamen. We determined then to defend ourselves, and to oppose further hostilities by war on our side also. Now, had we taken one thousand British ships and six thousand of her seamen without any declaration of war, would the Marquis of Wellesley have considered a declaration of war by Great Britain as an aggression on her part? They say we denied their maritime rights. We never denied a single one. It was their taking our citizens, native as well as naturalized, for which we went into war, and because they forbade us to trade with any nation without entering and paying duties in their ports on both the outward and inward cargo. Thus to carry a cargo of cotton from Savanna to St. Mary's, and take returns in fruits, for example, our vessel was to go to England, enter and pay a duty on her cottons there, return to St. Mary's, then go back to England to enter and pay a duty on her fruits, and then return to Savanna, after crossing the Atlantic four times, and paying tributes on both cargoes to England, instead of the direct passage of a few hours. And the taking ships for not doing this, the Marquis says, is no aggression. However, it is now all over, and I hope forever over. Yet I should have had more confidence in this, had the friendly expressions of the Marquis come from the ministers of the Prince. On the contrary, we see them scarcely admitting that the war ought to have been ended. Earl Bathurst shuffles together chaotic ideas merely to darken and cover the views of the ministers in protracting the war; the truth being, that they expected to give us an exemplary scourging, to separate from us the States east of the Hudson, take for their Indian allies those west of the Ohio, placing three hundred thousand American citizens under the government of the savages, and to leave the residuum a powerless enemy, if not submissive subjects. I cannot conceive what is the use of your Bedlam when such men are out of it. And yet that such were their views we have evidence, under the hand of their Secretary of State in Henry's case, and of their Commissioners at Ghent. Even now they insinuate the peace in Europe has not suspended the practices which produced the war. I trust, however, they are speaking a different language to our ministers, and join in the hope you express that the provocations which occasioned the late rupture will not be repeated. The interruption of our intercourse with England has rendered us one essential service in planting radically and firmly coarse manufactures among us. I make in my family two thousand yards of cloth a year, which I formerly bought from England, and it only employs a few women, children and invalids, who could do little on the farm. The State generally does the same, and allowing ten yards to a person, this amounts to ten millions of yards; and if we are about the medium degree of manufacturers in the whole Union, as I believe we are, the whole will amount to one hundred millions of yards a year, which will soon reimburse us the expenses of the war. Carding machines in every neighborhood, spinning machines in large families and wheels in the small, are too radically established ever to be relinquished. The finer fabrics perhaps, and even probably, will be sought again in Europe, except broad-cloth, which the vast multiplication of merinos among us will enable us to make much cheaper than can be done in Europe.
Your practice of the cold bath thrice a week during the winter, and at the age of seventy, is a bold one, which I should not, à priori, have pronounced salutary. But all theory must yield to experience, and every constitution has its own laws. I have for fifty years bathed my feet in cold water every morning (as you mention), and having been remarkably exempted from colds (not having had one in every seven years of my life on an average), I have supposed it might be ascribed to that practice. When we see two facts accompanying one another for a long time, we are apt to suppose them related as cause and effect.
Our tobacco trade is strangely changed. We no longer know how to fit the plant to the market. Differences of from four to twelve dollars the hundred are now made on qualities appearing to us entirely whimsical. The British orders of council had obliged us to abandon the culture generally; we are now, however, returning to it, and experience will soon decide what description of lands may continue it to advantage. Those which produce the qualities under seven or eight dollars, must, I think, relinquish it finally. Your friends here are well as far as I have heard. So I hope you are; and that you may continue so as long as you shall think the continuance of life itself desirable, is the prayer of yours sincerely and affectionately.