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Category Archives: Judiciary

We have TOO many federal judges!

I wish you to consider whether it would not be useful, by a circular to the clerks of the federal courts, to call for a docket of the cases decided in the last twelvemonth, say from July 1. 1801. to July 1. 1802. to be laid before Congress. it will be satisfactory to them, & to all men to see how little is to be done by the federal judiciary, and will effectually crush the clamour still raised on the suppression of the new judges. I think it a proper document to be furnished annually, as it may enable us to make further simplifications of that corps.
To James Madison, August 30, 1802

Patrick Lee’s Explanation
Smart leaders seek documentation for their choices.
Before President Adams left office in 1801, the Federalist Congress greatly increased the number of judges in federal courts. This had the desired effect of saddling the incoming Jefferson administration with a politically hostile judiciary. The new President took whatever steps he could to reverse or curtail those appointments. His actions infuriated the Federalists.

In this letter to his Secretary of State, Jefferson asked his opinion about requiring court clerks to document how many cases each judge had decided in the previous year. He would present that report to the Congress, proving how little work the judges actually did. That should “crush the clamor” that still surrounded his efforts to reduce their number. In addition, if that information was tracked each year, it would provide the basis for reducing the federal judiciary even more.

Madison responded four days later, suggesting this documentation might better be required by the Congress. The Executive Branch had no funding to accomplish it. It also had no authority to require the court clerks to do it, and some might simply refuse. Nevertheless, he would proceed however the President wished.

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Can Americans be trusted with their own government?

we have no interests nor passions different from those of our fellow citizens. we have the same object, the success of representative government. nor are we acting for ourselves alone, but for the whole human race. the event of our experiment is to shew whether man can be trusted with self government. the eyes of suffering humanity are fixed on us with anxiety as their only hope, and on such a theatre & for such a cause we must suppress all smaller passions & local considerations. the leaders of federalism say that man cannot be trusted with his own government.
To David Hall, July 6, 1802

Patrick Lee’s Explanation
Wise leaders let people govern themselves.
Jefferson’s republican supporters in Delaware urged him to dismiss a customs official in Wilmington who had been appointed by a previous federalist administration. Complainers said the office holder was too political in his duties and should be replaced with a loyal republican.

Yet, the offending official had been fully investigated by the court and found innocent.

Jefferson refused to intervene. To do so would be putting himself above the local court. In addition to being wrong, it would play into the hands of his political opponents, who said, “man cannot be trusted with his own government.” Jefferson believed just the opposite, that man was capable of self-government. Local government had acted justly, and he accepted their decision.

“Suffering humanity” around the world was watching the American experiment “as their only hope.” For this experiment to be successful, lesser and local issues, like the complaints lodged with the President, must be suppressed.

“…the entire banquet hall [was] silent …
everyone, including the hotel banquet staff,
paying rapt attention to your portrayal.”
IT Administrative Coordinator
Forestry Conservation Communications Association
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Justice should be just, not harsh.

Whereas Richard Quince Haskins… was convicted before the Circuit Court … of certain misdemeanors in relation to the Post Office [and sentenced] to be publickly whipped, twenty stripes, and be imprisoned and kept at hard labor for the space of three years, pay costs of prosecution, and stand committed ’till sentence be performed: Now therefore be it known that I Thomas Jefferson, President of the United States, do hereby for divers good causes … pardon and remit the whipping aforesaid, the remaining part of the judgment aforesaid to be in no manner affected by this pardon and remission.
Pardon for Richard Quince Haskins, March 1, 1806

Patrick Lee’s Explanation
Humane leaders set a judicious example.
Haskins was a federal clerk in Boston. The charge was not specified, but he was found guilty. The sentence was a public whipping, three years in prison at hard labor, and restitution.

The President said two out of three was enough. He would serve his time and repay the court. However, justice would not be further served by subjecting Haskins to harsh, physical pain and public humiliation. He pardoned the whipping and let the rest of the sentence stand.

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Debt cannot result in lifetime imprisonment.

procure the opinion of the judge before whom he was convicted, whether he considers the prisoner a proper object of pardon within the views of the law? and if imprisonment until he pays his fine should, from his poverty be equivalent to perpetual imprisonment, which the law could never intend, then what term of imprisonment, should be substituted for the fine, after which & not before he should recieve a pardon.
To David Howell, July 21, 1805

Patrick Lee’s Explanation
Compassionate leaders seek justice for others.
Jefferson had received a petition from a David Briggs, requesting a pardon from imprisonment “for a breach of the revenue laws.” Not being familiar with the case, Jefferson asked Howell to ask the opinion of the sentencing judge: Were there legal grounds for pardon?

The President was concerned about justice, too. Was Briggs was imprisoned until his fine was paid? Had incarceration impoverished Briggs, making it impossible for him to pay? If so, this was a life sentence, nothing that justice intended. Jefferson wanted to know what sentence would suffice for the fine, after which Briggs could be set free.

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How do you pick the best out of three good choices?

… I cannot decide between Andrew Alexander, John Alexander, & John Caruthers, recommended by different persons for the Marshall’s office. pray write me your opinion, which appointment would be most respected by the public, for that circumstance is not only generally the best criterion of what is best, but the public respect can alone give strength to the government.
To Archibald Stuart, April 25, 1801

Patrick Lee’s Explanation
Wise leaders are careful to maintain the public’s respect.
Stuart was a Virginia jurist, and Jefferson asked his opinion on which of three recommended candidates would make the best marshal. That officer selected jurors for jury trials, and impartiality was critical.

Apparently all three candidates were qualified, so Jefferson asked Stuart’s opinion on one question only: Who would be the “most respected by the public”? Why that standard?
– Public opinion was usually correct in such cases.
– Honoring the public in that way built confidence in the government.

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He was very flexible and easily adjusted his program to meet the audience.”
Executive Direction, Fort Mandan Foundation, Washburn, ND
You will find Patrick wonderful, too.
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He caused one death. Not another!

… an officer who is entrusted by the law with the sacred duty of naming judges [jurors] of life & death for his fellow citizens, and who selects them exclusively from among his political & party enemies, ought never to have in his power a second abuse of that tremendous magnitude … I only condemn an officer … who selects judges [jurors] for principles which lead necessarily to condemnation. he might as well lead his culprits to the scaffold at once without the mockery of trial. the sword of the law should never fall but on those whose guilt is so apparent as to be pronounced by their friends as well as foes.
To Sarah Mease, March 26, 1801

Patrick Lee’s Explanation
Principled leaders know right decisions can still be painful.
Sarah Mease, a highly educated woman from Philadelphia, wrote a respectful and gracious letter on behalf of “Mr. Hall,” a marshal in that city. He was likely to be dismissed from his job, where he had served under the staunchly Federalist administration. Marshals selected jurors for jury trials.

Hall had a wife and eight children to support. She testified to his character and suggested Federalist office-holders dictated Hall’s jury selections. In other words, he was just doing what he was told to do.

We don’t know the details of Hall’s offense. It appears, in a capital case, he selected jurors who were political enemies of the defendant, who found him guilty and put him to death.

Jefferson made an equally thoughtful reply, summarized here:
1. A large family to support prevailed unless “more weighty” factors were involved.
2. It was neither custom nor wise to explain publicly his reasons for Hall’s dismissal.
3. Out of respect for her motives, he would explain privately and confidentially.
4. Hall’s partisan actions allowed the death of one man. It must not happen again.
5. Hall made a mockery of the trial. The defendant could have been hung without one.
6. Capital punishment should apply only when even a man’s friends acknowledge his guilt.
7. He acknowledged the dismissal was “a painful one,” but it was his duty to do so.

These two letters were the only correspondence between Mease and Jefferson.

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How deep are your convictions?

I shall be perfectly happy if either of you are named, as I consider the substituting, in the place of Cushing, a firm unequivocating republican, whose principles are born with him, and not an occasional ingraftment … (italics added)
To Gideon Granger, October 22, 1810

Patrick Lee’s Explanation
Solid leaders have solid convictions.
Granger wrote Jefferson about the death of Associate Supreme Court Justice William Cushing of Massachusetts, appointed by President Washington in 1789. Granger was interested in the job, as were several others he named and whose qualifications (or lack thereof) he listed. Jefferson replied that either Granger or his former Attorney General, Levi Lincoln, Sr., would be suitable replacements.

The nation’s judiciary had long been in the control of the Federalists, those who opposed his and now President Madison’s policies. Jefferson wanted a strong republican (small r) counterbalance. What kind of republican qualified?

Not a johnny-come-lately. Not a sometimes-republican. Not one who adopted those principles for political expediency. No, Jefferson wanted someone rock solid, firmly committed to the cause. He compared the commitment he sought to the values an adult would have, one whose views were established because he was born into a family of those same values.

“Your appearance at the … 53rd Annual Convention
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Are judges above the law?

… but the third [branch of the government, the federal judiciary], unfortunately & unwisely, made independant not only of the nation but even of their own conduct, have hitherto bid defiance to the public will, and erected themselves into a political body with the assumed functions of correcting what they deem the errors of the nation.
To Gideon Granger, October 22, 1810

Patrick Lee’s Explanation
ALL leaders should be accountable to their constituents.
Preceding this excerpt, Jefferson expressed his pleasure that the legislative and executive branches remained republican (small r), giving themselves to the “great reformation in our government” that occurred with the election of 1800. The courts were another matter.

Federal judges were appointed for life. Some of the still-serving justices were Federalists, political opponents appointed by President Adams before he left office in 1801. The means of impeaching justices for professional or personal misconduct were unenforceable. That left the judicial branch unanswerable to anyone but themselves. This allowed them to assume a role Jefferson never thought they were meant to have, passing judgment on the actions of the other two branches of the national government.

(Any number of times, I’ve read both Jefferson’s thoughts and others’ analysis of those thoughts regarding the proper role of the judiciary. I still can’t make sense of them.)

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Can Washington make wise decisions for you alone?

Were we directed from Washington when to sow, & when to reap, we should soon want bread.
Autobiography, 1821

Patrick Lee’s Explanation
Wise leaders trust individuals to make their own decisions, for good or bad.
I excised this sentence from the last post (where you see the ellipses near the end) because I wanted to offer it all by itself. You will find this quote at the upper right corner of every page of my web site. It defines Jefferson’s view of the national government.

His view wasn’t critical of that government, so much as it was a statement of what that government should NOT be about. Washington should concern itself only with the limited and specific responsibilities given it by the Constitution. That included only what lesser authorities could not provide:
– National defense
– International relations
– Promotion of commerce
– Protection of individual rights
Every other authority belonged to the states. Wise state leaders would further delegate responsibility to its counties and towns, leaving as much authority as possible in the hands of the individual.

Who knows best when to plant and harvest crops, the farmer himself or the national government? It’s a silly question, with a common sense answer. Jefferson feared unaccountable and over-reaching federal authorities, judges in this case, who entertained such questions far outside their realm and dictated solutions far removed from common sense.

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Where is power exercised most wisely?

But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected. Were not this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within it’s local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by it’s individual proprietor … It is by this partition of cares, descending in gradation from general to particular, that the mass of human affairs may be best managed for the good and prosperity of all.
Autobiography, 1821

Patrick Lee’s Explanation
Wise leaders don’t consolidate power. They delegate it broadly.
This excerpt builds on the previous two posts, where Jefferson lamented:
1.The Constitution let federal judges serve for life, effectively answerable to no one, and
2. Even honest judges could be swayed toward maximizing their control.

For the nation’s first 12 years, all of its federal judges were appointed by Presidents Washington and Adams, who favored a strong, activist national government. Any such government naturally seeks more power, more control. With lifetime appointments, judges’ tenure extended far beyond those administrations

Jefferson’s Presidency was served under an occasionally hostile judiciary, judges who aided in the consolidation of power in the national government.

Jefferson believed exactly the opposite. Good government was not consolidated but diffused and apportioned throughout, from the national level to states to counties to townships and finally, down to the individual land owner. Each entity should do what it could do best for itself.

Where is power exercised most wisely? At the level where people are most affected by it and by those people for themselves.

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