The Jeffersonian cyclopedia; a comprehensive collection of the views of Thomas Jefferson classified and arranged in alphabetical order under nine thousand titles relating to government, politics, law, education, political economy, finance, science, art, literature, religious freedom, morals, etc.; |
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| 1433a. |
| 1433b. |
1444. COMMON LAW, The Constitution and.— |
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 | The Jeffersonian cyclopedia; |  |
1444. COMMON LAW, The Constitution and.—
I consider all the encroachments made on the Constitution, heretofore, as
nothing, as mere retail stuff compared with
the wholesale doctrine, that there is a Common
Law in force in the United States of
which, and of all the cases within its provi
complete consolidation. [Judges] Ellsworth
and Iredell have openly recognized it. [Bushrod] Washington has squinted at it, and
I have no doubt it has been decided to cram
it down our throats.—
To Charles Pinckney. Ford ed., vii, 398.
(M. Oct. 1799)
The subjoined extracts from Jefferson's Anas,
bear on the assertion of this doctrine in the United
States Senate:
1—Mr. Dexter, Mr. Hillhouse and Mr. Read insisted
[in the Senate] in the fullest and most explicit terms,
that the Common Law of England is in force in these
States, and may be the rule of adjudication in all
cases where the laws of the United States have made
no provision. Mr. Livermore seemed to urge the
same, though he seemed to think that in criminal
cases it might be necessary to adopt by an express
law. Mr. Tracy was more reserved on this occasion.
He only said that Congress might by a law adopt
the provisions of the Common Law on any subjects
by a reference to that, without detailing the particulars;
as in this bill it was proposed that the marshals
should summon juries “according to the practice of
the Common Law”.
The Anas.
Ford ed., i, 288. (April 1800.)
2—Dexter maintained that the Common Law as to
crimes is in force in the courts of the United States.
Chipman says that the principles of common right
are Common Law. And he says the Common Law
of England is in force here. There being no law in
Vermont for appointing juries which the marshal
can follow, he says he may appoint them as provided
by the Common Law of England, though that part
of the Common Law was never adopted in Vermont.
The Anas.
Ford ed., i, 286. (March 19, 1800.)
3—Heretical doctrines maintained in Senate on
the motion against the Aurora * * * that the
Common Law authorizes the proceeding proposed
against the Aurora, and is in force here. By Read.
* * * Tracy says he would not exactly say that
the Common Law of England in all its extent is in
force here; but common sense, reason and morality,
which are the foundations of the Common Law, are
in force here and establish a Common Law. He held
himself so nearly half way between the Common
Law of England and what everybody else has called
natural law, and not Common Law, that he could
hold to either the one or the other, as he should find
expedient. Dexter maintained that the Common
Law, as to crimes, is in force in the United States.
Chipman says that the principles of common right
are Common Law.—
The Anas.ix, 198.
Ford ed., i, 285.
1800)
4—The jury bill before the Senate. Mr. Read says
that, if from any circumstances of inaptitude the
marshal cannot appoint a jury analogously with
the State juries, the Common Law steps in, and he
may name them according to that. And March 12,
same bill, Mr. Chipman speaking of the case of Vermont,
where a particular mode of naming jurors
was in force under a former law of that State, when
the law of the United States passed declaring that
juries shall be appointed in their courts in the several
States in the mode “now” in use in the same
State. Vermont has since altered their mode of
naming them. Mr. Chipman admits the Federal
courts cannot adopt the new mode, but in that case
he says their marshal may name them according to
the rules of the Common Law. Now observe that
that is a part of the Common Law which Vermont
had never adopted, but, on the contrary, had made
a law of their own, better suited to their circumstances.—
The Anas. Ford ed., i, 286. (March 11,
1800.)
5—See in the Wilmington Mirror of Feb. 14th, Mr.
Bayard's elaborate argument to prove that the Common
Law, as modified by the laws of the respective
States at the epoch of the ratification of the Constitution,
attached to the courts of the United States.—
The Anasix, 203.
Ford ed., i, 291. (Feb. 1801.)
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