William Charles Jarvis (1770–1859)
was an American diplomat,
financier and philanthropist best known for introducing
the merino breed of sheep into the United
States from Spain. He was appointed by President Jefferson as U.S.
Consul in Lisbon, Portugal where he served ten years. Mr. Jarvis wrote to
Thomas Jefferson and sent a copy of the "Republican"[1]
where he apparently argued in an article published therein that the federal
judiciary, or Supreme Court, are the “ultimate arbiters of all constitutional
questions.” However, Jefferson respectfully disagrees with Jarvis, discusses the
separation of powers, and states his opinion that the people themselves are sovereign and thus to educate the minds of the people is the ultimate cure for abuses of Constitutional power.
To William Charles Jarvis.
Monticello, September 28, 1820.
Monticello, September 28, 1820.
I thank you, Sir, for the copy of your
Republican which you have been so kind as to send me, and I should have
acknowledged it sooner but that I am just returned home after a long
absence. I have not yet had time to read it seriously, but in looking
over it cursorily I see much in it to approve, and shall be glad if it shall
lead our youth to the practice of thinking on such subjects and for
themselves. That it will have this tendency may be expected, and for that
reason I feel an urgency to note what I deem an error in it, the more requiring
notice as your opinion is strengthened by that of many others. You seem, in
pages 84 and 148, to consider the judges as the ultimate arbiters of all
constitutional questions; a very dangerous doctrine indeed, and one which
would place us under the despotism of an oligarchy. Our judges are as
honest as other men, and not more so. They have, with others, the same
passions for party, for power, and the privilege of their corps. Their
maxim is “boni judicis est ampliare
jurisdictionem,” and their power the more dangerous as they are in office
for life, and not responsible, as the other functionaries are, to the elective
control. The Constitution has erected no such single tribunal, knowing
that to whatever hands confided, with the corruptions of time and party, its
members would become despots. It has more wisely made all the departments
co-equal and co-sovereign within themselves. If the legislature fails to
pass laws for a census, for paying the judges and other officers of government,
for establishing a militia, for naturalization as prescribed by the
Constitution, or if they fail to meet in congress, the judges cannot issue
their mandamus to them; if the President fails to supply the place of a
judge, to appoint other civil or military officers, to issue requisite
commissions, the judges cannot force him. They can issue their mandamus or
distringas to no executive or legislative officer to enforce the fulfilment of
their official duties, any more than the President or legislature may issue
orders to the judges or their officers. Betrayed by English example, and
unaware, as it should seem, of the control of our Constitution in this
particular, they have at times overstepped their limit by undertaking to
command executive officers in the discharge of their executive duties; but
the Constitution, in keeping three departments distinct and independent,
restrains the authority of the judges to judiciary organs, as it does the
executive and legislative to executive and legislative organs. The judges
certainly have more frequent occasion to act on constitutional questions,
because the laws of meum and tuum and of criminal action,
forming the great mass of the system of law, constitute their particular
department. When the legislative or executive functionaries act
unconstitutionally, they are responsible to the people in their elective
capacity. The exemption of the judges from that is quite dangerous
enough. I know no safe depository
of the ultimate powers of the society but the people themselves; and if we
think them not enlightened enough to exercise their control with a wholesome
discretion, the remedy is not to take it from them, but to inform their
discretion by education. This is the true corrective of abuses of
constitutional power. Pardon me, Sir, for this difference of
opinion. My personal interest in such questions is entirely extinct, but
not my wishes for the longest possible continuance of our government on its
pure principles; if the three powers maintain their mutual independence on
each other it may last long, but not so if either can assume the authorities of
the other. I ask your candid re-consideration of this subject, and am
sufficiently sure you will form a candid conclusion. Accept the assurance
of my great respect.
Th: Jefferson
In his Farewell Address, George Washington called for the general education of the people, "Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened." And, in addition to establishing such institutions, James Madison stated in Federalist No. 10 that the people's elected leaders in a republic are to also function as a source of education of the people -- "to refine and enlarge the public views by passing them through the medium of a chosen body of citizens."
___________________________
[1] “…the copy of your Republican” mentioned by Jefferson likely refers to the Bunker Hill Sentinel and Middlesex Republican newspaper which was published in Charlestown (Boston) Massachusetts beginning in June 1820.
