University of Virginia Library

4496. LAW, Federal, State and Common.—

Of all the doctrines which have ever
been broached by the Federal Government,
the novel one, of the common law being in
force and cognizable as an existing law in
their courts, is to me the most formidable.
All their other assumptions of un-given powers
have been in the detail. The bank law, the
treaty doctrine, the Sedition act, Alien act,
the undertaking to change the State laws of
evidence in the State courts by certain parts
of the Stamp act, &c., &c., have been solitary,
unconsequential, timid things, in comparison
with the audacious, bare-faced and sweeping
pretension to a system of law for the United
States, without the adoption of their Legilature,
and so infinitely beyond their power to
adopt. If this assumption be yielded to, the
State courts may be shut up, as there will then
be nothing to hinder citizens of the same State
suing each other in the Federal courts in every
case, as on a bond for instance, because the
common law obliges payment of it, and the
common law they say is their law. I am
happy you have taken up the subject; and I
have carefully perused and considered the
notes you enclosed, and find but a single
paragraph which I do not approve. It is that
wherein you say, that laws being emanations
from the legislative department, and, when
once enacted, continuing in force from a presumption
that their will so continues, that that
presumption fails and the laws of course fall,
on the destruction of that legislative department.
I do not think this is the true bottom
on which laws and the administering them
rest. The whole body of the nation is the
sovereign legislative, judiciary, and executive
power for itself. The inconvenience of meeting
to exercise these powers in person, and their
inaptitude to exercise them, induce them to
appoint special organs to declare their legislative
will, to judge and to execute it. It is
the will of the nation which makes the law
obligatory; it is their will which vacates or
annihilates the organ which is to declare and
announce it. They may do it by a single person,
as an Emperor of Russia (constituting
his declarations evidence of their will), or by
a few persons, as the aristocracy of Venice,
or by an application of councils, as in our
former regal government, or our present republican
one. The law being law because it
is the will of the nation, is not changed by
their changing the organ through which they
choose to announce their future will; no more
than the acts. I have done by one attorney
lose their obligation by my changing or discontinuing
that attorney. This doctrine has
been, in a certain degree, sanctioned by the
Federal Executive. For it is precisely that
on which the continuance of obligation from
our treaty with France was established, and
the doctrine was particularly developed in a
letter to Gouverneur Morris, with the approbation
of President Washington and his Cabinet.
Mercer once prevailed on the Virginia
Assembly to declare a different doctrine in
some resolutions. These met universal disapprobation
in this, as well as the other

States, and if I mistake not, a subsequent
Assembly did something to do away the authority
of their former unguarded resolutions.
In this case, as in all others, the true principle
will be quite as effectual to establish the
just deductions. Before the Revolution, the
nation of Virginia had, by the organs they
then thought proper to constitute, established
a system of laws, which they divided into
three denominations of 1, common law; 2,
statute law; 3, chancery; or, if you please,
into two only of 1, common law; 2, chancery.
When, by the Declaration of Independence,
they chose to abolish their former organs of
declaring their will, the acts of will already
formally and constitutionally declared, remained
untouched. For the nation was not
dissolved, was not annihilated; its will, therefore,
remained in full vigor, and on the establishing
the new organs, first of a convention,
and afterwards a more complicated legislature,
the old acts of national will continued
in force, until the nation should, by
its new organs, declare its will changed. The
common law, therefore, which was not in
force when we landed here, nor till we had
formed ourselves into a nation, and had manifested
by the organs we constituted that the
common law was to be our law, continued
to be our law, because the nation continued
in being, and because though it changed the
organs for the future declarations of its will,
yet it did not change its former declarations
that the common law was its law. Apply
these principles to the present case. Before
the Revolution there existed no such nation as
the United States; they then first associated
as a nation, but for special purposes only.
They had all their laws to make, as Virginia
had on her first establishment as a nation.
But they did not, as Virginia had done, proceed
to adopt a whole system of laws ready
made to their hand. As their association as
a nation was only for special purposes, to
wit, for the management of their concerns
with one another and with foreign nations,
and the States composing the association
chose to give to it powers for those purposes
and no others, they could not adopt any general
system, because it would have embraced
objects on which this association had no right
to form or declare a will. It was not the organ
for declaring a national will in these
cases. In the cases confided to them, they
were free to declare the will of the nation,
the law; but until it was declared there could
be no law. So that the common law did not
become, ipso facto, law on the new association; it could only become so by a positive
adoption, and so far only as they were authorized
to adopt. I think it will be of great
importance when you come to the proper part,
to portray at full length the consequences
of this new doctrine, that the common law is
the law of the United States, and that their
courts have, of course, jurisdiction coextensive
with that law, that is to say, general over
all cases and persons. But, great heavens!
Who could have conceived in 1789, that
within ten years we should have to combat
such windmills?—
To Edmund Randolph. Washington ed. iv, 301. Ford ed., vii, 383.
(M. Aug. 1799)