University of Virginia Library

TO PETER S. DUPONCEAU.

Dr. Sir I recd. the copy of your discourse on
the Jurisdiction of the courts of the U. S. with which
you favoured me, at a time when I could not conveniently
read it; and I have since been obliged to
do it with such interruptions that I am not sure of
having done entire justice to your investigations.[66]

I have certainly found in the volume ample evidence
of the distinguished ability of which the public had
been made sensible by other fruits of your pen.

I must say at the same time that I have not been
made a convert to the doctrine that the "Common
Law" as such is a part of the law of the U. S. in their
federo-national capacity. I can perceive no legitimate
avenue for its admission beyond the portions
fairly embraced by the Common law terms used
in the Constitution, and by acts[67] of Congress authorized
by the Constitution as necessary & proper
for executing the powers which it vests in the
Government.

A characteristic peculiarity of the Govt. of the
U. States is, that its powers consist of special grants
taken from the general mass of power, whereas
other Govts. possess the general mass with special
exceptions only. Such being the plan of the Constitution,
it cannot well be supposed that the
Body which framed it with so much deliberation,
and with so manifest a purpose of specifying
its objects, and defining its boundaries, would, if
intending that the Common Law shd. be a part of
the national code, have omitted to express or distinctly
indicate the intention; when so many far
inferior provisions are so carefully inserted, and
such appears to have been the public view taken of
the Instrument, whether we recur to the period of

its ratification by the States, or to the federal practice
under it.

That the Constitution is predicated on the existence
of the Common Law cannot be questioned;
because it borrows therefrom terms which must
be explained by Com: Law authorities: but this no
more implies a general adoption or recognition of
it, than the use of terms embracing articles of the
Civil Law would carry such an implication.

Nor can the Common Law be let in through the
authority of the Courts. That the whole of it is
within their jurisdiction, is never alledged, and a
separation of the parts suited from those not suited
to the peculiar structure & circumstances of the
U. States involves questions of expediency & discretion,
of a Legislative not Judicial character. On
questions of criminal law & jurisdiction the strict
rule of construction prescribed by the Com: Law
itself would seem to bar at once an assumption of
such a power by the Courts.

If the Common Law has been called our birthright,
it has been done with little regard to any
precise meaning. It could have been no more our
birthright than the Statute law of England, or than
the English Constitution itself. If the one was
brought by our ancestors with them, so must the
others; and the whole consequently as it stood during
the Dynasty of the Stuarts, the period of their emigration,
with no other exceptions than such as
necessarily resulted from inapplicability to the colonial
state of things. As men our birthright was

from a much higher source than the common or
any other human law and of much greater extent
than is imparted or admitted by the common law.
And as far as it might belong to us as British subjects
it must with its correlative obligations have
expired when we ceased to be such. It would seem
more correct therefore & preferable in every respect
that the common law, even during the Colonial
State, was in force not by virtue of its adhesion to
the emigrants & their descendants in their individual
capacity but by virtue of its adoption in their social
& political capacity.

How far this adoption may have taken place
through the mere agency of the courts cannot perhaps
be readily traced. But such a mode of introducing
laws not otherwise in force ought rather to
be classed among the irregularities incident to the
times & the occasion, than referred to any in G.
Britain, where the courts though sometimes making
legal innovations per saltus profess that these should
grow out of a series of adjudications, gradually accommodating
the law to the gradual change of circumstances
in the ordinary progress of society. On
sound principles, no change whatever in the state
of the Law can be made but by the Legislative
authority; Judicial decisions being not more competent
to it than Executive proclamations.

But whatever may have been the mode or the
process by which the Common law found its way
into the colonial codes, no regular passage appears
to have been opened for it into that of the [U.] S.

other than through the two channels above mentioned;
whilst every plea for an irregular one is
taken away, by the provident article in the constitution
for correcting its errors & supplying its
defects. And although a frequent resort to this remedy
be very undesirable, it may be a happy relief
from the alternative of enduring an evil or getting
rid of it by an open or surreptitious usurpation.

I must not forget however that it is not my intention
to enter into a critical, much less a controversial
examination of the subject; and I turn with pleasure
from points on which we may differ, to an important
one on which I entirely agree with you. It has
always appeared to me impossible to digest the
unwritten law or even the penal part of it, into a
text that would be a compleat substitute. A
Justinian or Napoleon Code may ascertain, may
elucidate, and even improve the existing law, but
the meaning of its complex technical terms, in their
application to particular cases, must be sought in
like sources as before; and the smaller the compass
of the text the more general must be its terms & the
more necessary the resort to the usual guides in its
particular applications.

With assurances of my high esteem I pray you
Sir, to accept my unfeigned good wishes