To Thomas Cooper
Monticello Jan. 16. 1814.
Your favor of Nov. 8. if it was rightly dated, did not come to hand till Dec. 13. and being absent on a long journey it has remained unanswered till now. the copy of your introductory lecture was recieved & acknoleged in my letter of July 12. 1812. with which I sent you Tracy’s 1st vol on Logic. your Justinian came safely also, and I have been constantly meaning to acknolege it, but I wished at the same time to say something more. I posessed Theophilus’s, Vinnius’s and Harris’s editions; but read over1 your notes, and the Addenda et corrigenda, and especially the parallels with the English law, with great satisfaction and edification. your edition will be very useful to our lawyers, some of whom will2 need the translation as well as the Notes. but what I had wanted to say to you on the subject was that I much regret that, instead of this work, useful as it may be, you had not bestowed the same time and research rather on a translation and notes on Bracton, a work which has never been performed for us, and which I have always considered as one of the greatest desiderata in the Law. the laws of England, in their progress from the earliest to the present times, may be likened to the road of a traveller, divided into distinct stages, or resting places, at each of which a review is taken of the road passed over so far. the 1st of these was Bracton’s De legibus angliae: the 2’d Coke’s Institutes, the 3d the Abridgment of the law by Matthew Bacon, and the 4th Blackstone’s commentaries. doubtless there were others before Bracton which have not reached us. Alfred, in the preface to his laws, says they were compiled from those of Ina, Offa, and Aethelbert, into which, or rather preceding them, the clergy have interpolated the 20. 21st 22d 23d and 24th chapters3 of Exodus, so as to place Alfred’s preface to what was really his, awkwardly enough, in the body of the work an interpolation the more glaring as containing laws expressly contradicted by those of Alfred.4 this pious fraud seems to have been first noted by Houard in his Coutumes Anglo-Normandes (I. 88.) and the pious judges of England5 have had no inclination to question it. [of this disposition in6 these judges I could give you a curious sample,7 from a note in my commonplace book, made while I was a student; but it is too long to be now copied. perhaps I may give it to you with some future letter.] this Digest by Alfred of the laws of the Heptarchy, into a single code, common to the whole kingdom, by him first reduced into one, was probably the birth of what is called the Common law. he has been styled ‘magnus juris anglicani Conditor,’ and his code the , or doom book. that which was made afterwards under Edward the Confessor was but a restoration of Alfred’s with some intervening alterations. and this was the code which the English so often, under the Norman princes, petitioned to have restored to them. but, all records previous to the Magna charta, having been early lost, Bracton’s is the first digest of the whole body of8 law, which has come down to us entire. what materials for it existed in his time we know not, except the unauthoritative collections by Lambard & Wilkins, and the treatise of Glanville, tempore H. 2. Bracton’s is the more9 valuable, because being written a very few years after the Magna charta, which commences what is called the Statute law, it gives us the state of the Common law in it’s ultimate form, and exactly at the point of division between the Common and Statute law. it is a most able work, complete in it’s matter, and luminous in it’s method. 2. the statutes which introduced changes began now to be preserved, applications of the law to new cases by the courts began soon after to be10 reported in the Year books, these to be methodised and abridged by Fitzherbert, Brooke11 Rolle12 and13 others, individuals continued the business of reporting, particular treatises were written by able men, and all these, by the time of Ld Coke, had formed so large a mass of matter as to call for a new digest, to bring it within reasonable compass. this he undertook in his institutes, harmonising all the decisions and opinions which were reconcilable, and rejecting those not so. this work is executed with so much learning and judgment that I do not recollect that a single position in it has ever been judicially denied. and altho’ the work loses much of it’s value by it’s chaotic form, it may still be considered as the fundamental code of the English law.
3. The same processes recommencing, of Statutory changes, new decisions, multiplied Reports, and special treatises, a new accumulation had formed, calling for new reduction, by the time of Matthew Bacon. his work therefore, altho’ not pretending to the textual merit of Bracton’s or Coke’s, was very acceptable. his Alphabetical arrangement indeed, altho’ better than Coke’s jumble, was far inferior to Bracton’s. but it was a sound digest of the materials existing on the several alphabetical heads under which he arranged them. his work was not admitted as authority in Westminster hall; yet it was the Manual of every judge and lawyer, and, what better proves it’s14 worth, has been it’s daily growth in the general estimation.
4. a succeeding interval of changes and additions of matter produced Blackstone’s Commentaries, the most lucid in arrangement, which had yet been written, correct in it’s matter, classical in style, and rightfully taking it’s place by the side of the Justinian institutes. but like them, it was only an elementary book. it did not present all the subjects of the law in all their details. it still left it necessary to recur to the original works of which it was the summary. the great mass of law books, from which it was extracted, was still to be consulted on minute investigations. it wanted therefore a species of merit which entered deeply into the value of those of Bracton, Coke & Bacon. they had in effect swept the shelves of all the materials preceding them. to give Blackstone therefore a full measure of value, another work is still wanting, to wit, to incorporate with his principles a compend15 of the particular cases subsequent to Bacon16 of which they are the essence. this might be done by printing under his text a digest like Bacon’s,17 continued to Blackstone’s time. it would enlarge his work18 and increase it’s value peculiarly to us, because just there we break off from the parent stem of the English19 law, unconcerned in any of it’s subsequent changes, or decisions.20
Of the 4. digests noted, the three last are possessed & understood by every one. but the first, the fountain of them all, remains in it’s technical Latin, abounding in terms antiquated, obsolete, and unintelligible but to the most learned of the body of lawyers. to give it to us then in English,21 with a Glossary of it’s old terms, is a work for which I know no body but yourself possessing the necessary learning & industry. the latter part of it would be furnished to your hand from the glossaries of Wilkins, Lambard, Spelman, Somner in the X. Scriptores22 the index of Coke & the law dictionaries. could not such an undertaking be conveniently associated with your new vocation of giving law lectures? I pray you to think of it.† a further operation indeed would still be desirable. to take up the doctrines of Bracton, separatim et seriatim, to give their history thro’ the periods of Ld Coke and Bacon, down to Blackstone; to shew when & how some of them have become extinct, the successive alterations made in others, and their progress to the state in which Blackstone found them. but this might be a separate work, left for your greater leisure, or for some future pen. [this has been done by Reeves in his History of the law]23
I have long had under contemplation, & been collecting materials for the plan of an university in Virginia which should comprehend all the sciences useful to us, & none others. the general idea is suggested in the Notes on Virginia Qu. 14. this would probably absorb the functions of24 Wm & Mary college, and transfer them to a healthier and more central position. perhaps to the neighborhood of this place. the long & lingering decline of Wm & Mary,25 the death of it’s last president, it’s location and climate, force on us the wish for a new institution more convenient to our country generally, and better adapted to the present state of science.26 I have been told there will be an effort in the present session of our legislature to effect such an establishment. I confess however that I have not great confidence that27 this will be done. should it happen it would offer places worthy of you, and of which you are worthy. it might produce too a bidder for the apparatus and library of Dr Priestly, to which they might add mine on their own terms. this consists of about 7. or 828 thousand volumes, the best chosen collection of it’s size probably29 in America, and containing a great mass of what is most rare and valuable, & especially of what relates to America.
You have given us, in your Emporium, Bollman’s medley on political economy. it is the work of one who sees a little of every thing, & the whole of nothing; and were it not for your own notes on it, a sentence of which throws more just light on the subject than all his pages,30 we should regret the place it occupies of more useful matter. the bringing our countrymen to a sound comparative estimate of the vast value of internal commerce, and the disproportionate importance of what is foreign, is the most salutary effort which can be made for the prosperity of these states, which are entirely misled from their true interests by the infection of English prejudices, & illicit attachment to English interests and connections. I look to you for this effort. it would furnish a valuable chapter for every Emporium; but I would rather see it also in the newspapers, which alone find access to every one.31
Every thing predicted by the enemies of banks, in the beginning, is now coming to pass. we are to be ruined now by the deluge of bank paper as we were formerly by the old Continental paper. it is cruel that such revolutions in private fortunes should be at the mercy of avaritious adventurers who, instead of employing their capital, if any they have, in manufactures, commerce & other useful pursuits, make it an instrument to burthen all the interchanges of property with their swindling profits, profits which are the price of no useful industry, of theirs. prudent men must be on their guard in this game of Robin’s alive & take care that the spark does not extinguish in their hands. I am an enemy to all banks discounting bills or notes32 for any thing but coin. but our whole country is so fascinated with this Jack lanthern wealth, that they will not stop short of it’s total and fatal explosion.*
Have you seen the Memorial to Congress on the subject of Oliver Evans’s patent rights? the memorialists have published in it a letter of mine containing some views on this difficult subject. but I have opened it no further than to raise the questions belonging to it. I wish we could have the benefit of your lights on these questions. the abuse of frivolous patents is likely to cause more inconvenience than is countervailed by those really useful. we know not to what uses we may apply implements which have been in our hands before the birth of our government, and even the discovery of America. the memorial is a thin pamphlet printed by Robinson in Baltimore, a copy of which has been laid on the desk of every member of Congress.33
You ask if it is a secret who wrote the Commentary on Montesquieu? it must be a secret during the Author’s life. I may only say at present that it was written by a Frenchman, that the original MS. in French is now in my possession, that it was translated and edited by Genl Duane, and that I should rejoice to see it printed in it’s original tongue, if any one would undertake it. no book can suffer more by translation, because of the severe correctness of the original in the choice of it’s terms. I have taken measures for securing to the author his justly earned fame, whenever his death or other circumstances may render it safe for him. like you, I do not agree with him in every thing, and have had some correspondence with him on particular points. but, on the whole, it is a most valuable work, one which I think will form an epoch in the science of government; and which I wish to see in the hands of every American student, as the elementary and fundamental institute of that important branch of human science.†
I have never seen the answer to Govr Strong of the judges of Massachusets to which you allude, nor the Massachusets reports in which it is contained. but I am sure you join me in lamenting the general defection of lawyers and judges from the free principles of government. I am sure they do not derive this degenerate spirit from the father of our science, Lord Coke. but it may be the reason why they cease to read him, and the source of what are now called ‘Blackstone lawyers.’
Go on in all your good works, without regard to the eye ‘of suspicion and distrust with which you may be viewed34 by some’ and without being weary in well doing, and be assured that you are justly estimated by the impartial mass of our fellow citizens, and by none more than my self.
PoC (DLC); brackets in original, with bracketed sections, authorial footnotes, and other emendations made after 1819, most likely to revise the letter when TJ shared a copy with Dabney C. Terrell in 1821; at head of text: “Th: Jefferson to Dr Thomas Cooper”; at foot of first page: “Thomas Cooper esq.” Tr (ViU: TJP); in the hand of Ellen Wayles Randolph (Coolidge); lacking TJ’s footnotes and other revisions and probably based on the letter as it stood before its 1821 revision; incomplete. Tr (NjP: Thomas Jefferson Collection); including TJ’s footnotes and other later revisions. Enclosed in TJ to Terrell, 26 Feb. 1821.
TJ acknowledged the receipt of Cooper’s Introductory Lecture in his letter of 10 July 1812, not july 12. 1812. For the extract from TJ’s legal commonplace book, see TJ to Cooper, 10 Feb. 1814. magnus juris anglicani conditor: “great author of English law.” tempore h. 2: “times of Henry II.” westminster hall in London, the oldest portion of Westminster Palace, housed the law courts of King’s Bench, Common Pleas, and Chancery. separatim et seriatim: “separately and in succession.” The last president of the College of William and Mary, Bishop James Madison, had died in 1812. In the game of robin’s alive a lighted stick is passed from person to person. The one holding it when the flame goes out pays a penalty (William Wells Newell, Games and Songs of American Children , 135–6). The memorialists published TJ’s letter to Isaac McPherson of 13 Aug. 1813 in their Memorial to Congress on Evans’ Patent. Destutt de Tracy’s Commentary and Review of Montesquieu’s Spirit of Laws was first published in france in 1819. The phrase regarding the suspicion and distrust with which you may be viewed by some is loosely quoted by TJ from Cooper’s letter of 8 Nov. 1813.
1. TJ here canceled “again.”
2. Preceding four words interlined in place of “who for the most part.” ViU Tr reproduces TJ’s original wording, while NjP Tr retains the addition, with the verb following it mistranscribed as “read.”
3. Reworked from “the 21st and 22d chapters.”
4. Preceding fourteen words interlined in PoC, absent in ViU Tr, and present in NjP Tr.
5. Preceding two words interlined in PoC, absent in ViU Tr, and present in NjP Tr, which also adds “in the zeal for church and State.”
6. TJ here canceled “our.” ViU Tr retains this word and omits “these.”
7. NjP Tr: “example.”
8. NjP Tr here adds “common.”
9. NjP Tr: “most.”
10. Preceding sixteen words not in NjP Tr.
11. PoC and ViU Tr: “Broke.” NjP Tr: “Brooke.”
12. Word interlined in PoC and ViU Tr.
13. TJ here canceled “perhaps by.” These words are also canceled in ViU Tr.
14. TJ here canceled “merit.”
15. Preceding two words interlined in PoC, replacing (after several intermediate cancellations) “a specification.” ViU Tr retains the original wording, while NjP Tr reproduces the revised text.
16. Preceding three words interlined in PoC, absent in ViU Tr, and present in NjP Tr.
17. Reworked from “the digest of Bacon.” ViU Tr retains the original wording, while NjP Tr reproduces the revised text.
18. In PoC TJ here canceled “to the size of my Lord Coke’s.” Original wording retained in ViU Tr, but absent in NjP Tr. Sir Edward Coke’s Institutes of the Laws of England ran to four folio parts (Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 1781–4).
19. Word interlined in PoC and absent in ViU Tr.
20. Preceding two words not in ViU Tr.
21. Marginal notation in ViU Tr, keyed to this place in the manuscript: “this has been lately done in Engld.”
22. Preceding five words interlined.
23. In PoC TJ interlined above the bracketed note “* insert this as a Note at bottom.” ViU Tr keeps bracketed note at end of paragraph and omits TJ’s interlined instruction. NjP Tr renders the bracketed note as a footnote at the bottom of the page.
24. Preceding three words interlined.
25. TJ here canceled “& finally.”
26. TJ here canceled “all hopes of it’s ever recovering it’s usefulness.”
27. Reworked from “not sufficient confidence in their liberality to expect that.”
28. Preceding three words interlined in place of “ten.”
29. Word interlined.
30. Reworked from “than his whole page.”
31. Paragraph not in NjP Tr.
32. Preceding three words interlined in place of “paper.”
33. Preceding four paragraphs not in ViU Tr, which ends at the conclusion of the following paragraph.
34. Word interlined in place of “looked.”
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