To Justice William Johnson Monticello, Oct. 27, 1822DEAR SIR,
-- I have deferred my thanks for the copy of your Life of Genl. Greene, until I could have time to read it. This I have done, and with the greatest satisfaction; and can now more understandingly express the gratification it has afforded me. I really rejoice that we have at length a fair history of the Southern war. It proves how much we were left to defend ourselves as we could, while the resources of the Union were so disproportionately devoted to the North. I am glad too to see the Romance of Lee removed from the shelf of History to that of Fable. Some small portion of the transactions he relates were within my own knolege; and of these I can say he has given more falsehood than fact; and I have heard many officers declare the same as to what had passed under their eyes. Yet this book had begun to be quoted as history. Greene was truly a great man, he had not perhaps all the qualities which so peculiarly rendered Genl. Washington the fittest man on earth for directing so great a contest under so great difficulties. Difficulties proceeding not from lukewarmness in our citizens or their functionaries, as our military leaders supposed; but from the pennyless condition of a people, totally shut out from all commerce & intercourse with the world, and therefore without any means for converting their labor into money. But Greene was second to no one in enterprise, in resource, in sound judgment, promptitude of decision, and every other military talent. In addition to the work you have given us, I look forward with anxiety to that you promise in the last paragraph of your book. Lee's military fable you have put down. Let not the invidious libel on the views of the Republican party, and on their regeneration of the government go down to posterity as hypocritically masked. I was myself too laboriously employed, while in office, and too old when I left it, to do justice to those who had labored so faithfully to arrest our course towards monarchy, and to secure the result of our revolutionary sufferings and sacrifices in a government bottomed on the only safe basis, the elective will of the people. You are young enough for the task, and I hope you will undertake it.
There is a subject respecting the practice of the court of which you are a member, which has long weighed on my mind, on which I have long thought I would write to you, and which I will take this opportunity of doing. It is in truth a delicate undertaking, & yet such is my opinion of your candor and devotedness to the Constitution, in it's true spirit, that I am sure I shall meet your approbation in unbosoming myself to you. The subject of my uneasiness is the habitual mode of making up and delivering the opinions of the supreme court of the US.
You know that from the earliest ages of the English law, from the date of the year-books, at least, to the end of the IId George, the judges of England, in all but self-evident cases, delivered their opinions seriatim, with the reasons and authorities which governed their decisions. If they sometimes consulted together, and gave a general opinion, it was so rarely as not to excite either alarm or notice. Besides the light which their separate arguments threw on the subject, and the instruction communicated by their several modes of reasoning, it shewed whether the judges were unanimous or divided, and gave accordingly more or less weight to the judgment as a precedent. It sometimes happened too that when there were three opinions against one, the reasoning of the one was so much the most cogent as to become afterwards the law of the land. When Ld. Mansfield came to the bench he introduced the habit of caucusing opinions. The judges met at their chambers, or elsewhere, secluded from the presence of the public, and made up what was to be delivered as the opinion of the court. On the retirement of Mansfield, Ld. Kenyon put an end to the practice, and the judges returned to that of seriatim opinions, and practice it habitually to this day, I believe. I am not acquainted with the late reporters, do not possess them, and state the fact from the information of others. To come now to ourselves I know nothing of what is done in other states, but in this our great and good Mr. Pendleton was, after the revolution, placed at the head of the court of Appeals. He adored Ld. Mansfield, & considered him as the greatest luminary of law that any age had ever produced, and he introduced into the court over which he presided, Mansfield's practice of making up opinions in secret & delivering them as the Oracles of the court, in mass. Judge Roane, when he came to that bench, broke up the practice, refused to hatch judgments, in Conclave, or to let others deliver opinions for him. At what time the seriatim opinions ceased in the Supreme Court of the US., I am not informed. They continued I know to the end of the 3d Dallas in 1800. Later than which I have no Reporter of that court. About that time the present C. J. came to the bench. Whether he carried the practice of Mr. Pendleton to it, or who, or when I do not know; but I understand from others it is now the habit of the court, & I suppose it true from the cases sometimes reported in the newspapers, and others which I casually see, wherein I observe that the opinions were uniformly prepared in private. Some of these cases too have been of such importance, of such difficulty, and the decisions so grating to a portion of the public as to have merited the fullest explanation from every judge seriatim, of the reasons which had produced such convictions on his mind. It was interesting to the public to know whether these decisions were really unanimous, or might not perhaps be of 4. against 3. and consequently prevailing by the preponderance of one voice only. The Judges holding their offices for life are under two responsibilities only. 1. Impeachment. 2. Individual reputation. But this practice compleatly withdraws them from both. For nobody knows what opinion any individual member gave in any case, nor even that he who delivers the opinion, concurred in it himself. Be the opinion therefore ever so impeachable, having been done in the dark it can be proved on no one. As to the 2d guarantee, personal reputation, it is shielded compleatly. The practice is certainly convenient for the lazy, the modest & the incompetent. It saves them the trouble of developing their opinion methodically and even of making up an opinion at all. That of seriatim argument shews whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another's sleeve. It would certainly be right to abandon this practice in order to give to our citizens one and all, that confidence in their judges which must be so desirable to the judges themselves, and so important to the cement of the union. During the administration of Genl. Washington, and while E. Randolph was Attorney General, he was required by Congress to digest the judiciary laws into a single one, with such amendments as might be thought proper. He prepared a section requiring the Judges to give their opinions seriatim, in writing, to be recorded in a distinct volume. Other business prevented this bill from being taken up, and it passed off, but such a volume would have been the best possible book of reports, and the better, as unincumbered with the hired sophisms and perversions of Counsel.
What do you think of the state of parties at this time? An opinion prevails that there is no longer any distinction, that the republicans & Federalists are compleatly amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at it's birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight.
I have written you a long letter, and committed to you thoughts which I would do to few others. If I am right, you will approve them; if wrong, commiserate them as the dreams of a Superannuate about things from which he is to derive neither good nor harm.
But you will still receive them as a proof of my confidence in the
rectitude of your mind and principles, of which I pray you to receive
entire assurance with that of my continued and great friendship and