Thomas Jefferson on Politics & Government

28. The Judicial Branch

The Judicial Branch is the only branch not responsible directly to the people, and Jefferson considered this a great drawback. He feared that the judges would be more amenable to the wishes of the person who appointed them and to their own interests rather than to the nation itself.

"It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true, and, if doubtful, we should follow principle. In this, as in many other elections, they would be guided by reputation, which would not err oftener, perhaps, than the present mode of appointment." --Thomas Jefferson to Samuel Kercheval, 1816.

"Render the judiciary respectable by every means possible, to wit, firm tenure in office, competent salaries and reduction of their numbers." --Thomas Jefferson to Archibald Stuart, 1791. ME 8:277

"It is not enough that honest men are appointed judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed that 'it is the office of a good judge to enlarge his jurisdiction,' and the absence of responsibility, and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state from which they have nothing to hope or fear?" --Thomas Jefferson: Autobiography, 1821.

Judicial Decisions

"Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." --Thomas Jefferson: Autobiography, 1821.

"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Thomas Jefferson to Spencer Roane, 1821.

"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Thomas Jefferson to Charles Hammond, 1821.

"At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account." --Thomas Jefferson to A. Coray, 1823.

"I do not charge the judges with wilful and ill-intentioned error; but honest error must be arrested where its toleration leads to public ruin. As for the safety of society, we commit honest maniacs to Bedlam; so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the republic, which is the first and supreme law." --Thomas Jefferson: Autobiography, 1821.

"If, indeed, a judge goes against the law so grossly, so palpably, as no imputable degree of folly can account for and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong; but not for the error." --Thomas Jefferson: The Batture Case, 1812.

Judicial Independence

"The judiciary... is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity." --Thomas Jefferson to James Madison, 1789. ME 7:309

"The judges... should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law." --Thomas Jefferson to George Wythe, 1776. Papers, 1:410

"The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that." --Thomas Jefferson to George Wythe, 1776. Papers, 1:410

"The Constitution of the United States having divided the powers of government into three branches, legislative, executive, and judiciary, and deposited each with a separate body of magistracy, forbidding either to interfere in the department of the other, the executive are not at liberty to intermeddle in [a] question [that] must be ultimately decided by the Supreme Court." --Thomas Jefferson to Charles Hellstedt, 1791. ME 8:126

"It will be said, that [a federal] court may encroach on the jurisdiction of the State courts. It may. But there will be a power, to wit, Congress, to watch and restrain them. But place the same authority in Congress itself, and there will be no power above them, to perform the same office. They will restrain within due bounds, a jurisdiction exercised by others, much more rigorously than if exercised by themselves." --Thomas Jefferson to James Madison, 1787. ME 6:133

Judicial Accountability

"In England, where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared and has flowed, it was a great point gained by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage." --Thomas Jefferson to Samuel Kercheval, 1816.

"A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." --Thomas Jefferson to Thomas Ritchie, 1820.

"We have... [required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. But this ought not to be. I would not indeed make them dependent on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government that they should be submitted to some practical and impartial control, and that this, to be impartial, must be compounded of a mixture of state and federal authorities." --Thomas Jefferson: Autobiography, 1821.

"Having found from experience that impeachment is an impracticable thing, a mere scarecrow, [the Judiciary] consider themselves secure for life." --Thomas Jefferson to Thomas Ritchie, 1820.

"Impeachment is a farce which will not be tried again." --Thomas Jefferson to William B. Giles, 1807. ME 11:191

"Over the Judiciary department, the Constitution [has] deprived [the people] of their control." --Thomas Jefferson to Spencer Roane, 1819.

"The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will." --Thomas Jefferson to John Wayles Eppes, 1807.

"The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." --Thomas Jefferson to Joel Barlow, 1801. ME 10:223

"Our different States have differently modified their several judiciaries as to the tenure of office. Some appoint their judges for a given term of time; some continue them during good behavior, and that to be determined on by the concurring vote of two-thirds of each legislative house. In England they are removable by a majority only of each house. The last is a practicable remedy; the second is not. The combination of the friends and associates of the accused, the action of personal and party passions and the sympathies of the human heart will forever find means of influencing one-third of either the one or the other house, will thus secure their impunity and establish them in fact for life. The first remedy is the better, that of appointing for a term of years only, with a capacity of reappointment if their conduct has been approved." --Thomas Jefferson to A. Coray, 1823.

"Let the future appointments of judges be for four or six years and removable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses." --Thomas Jefferson to William T. Barry, 1822.

"If this would not be independence enough, I know not what would be such short of the total irresponsibility under which we are acting and sinning now... We require a majority of one house and two-thirds of the other [for removal of a judge]--a concurrence which in practice has been and ever will be found impossible; for the judicial perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment, therefore, is a bugbear which they fear not at all. But they would be under some awe of the canvass of their conduct which would be open to both houses regularly every sixth year." --Thomas Jefferson to John Hampden Pleasants, 1821.

"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation." --Thomas Jefferson to John Hampden Pleasants, 1821.

"If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation." --Thomas Jefferson to William Branch Giles, 1807. ME 11:191

Cross References

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