James Madison Papers

From James Madison to Jeremy Bentham, 8 May 1816

Washington May 8. 1816


I have a greater debt of apology, I fear, than I can easily discharge, for having so long omitted to answer your letter of 1811. I flatter myself however that you will not do me the injustice to beleive that the failure has proceeded from any insensibility to the importance of its contents, or to the generous motives which dictated it; and as little from a want of respect for the very distinguished character you have established with the world by the inestimable gifts which your pen has made to it.

It happened that your letter was received in the midst of occupations incident to preparations for an anticipated war, which was in fact the result of the anxious crisis. During the period of hostilities, which apparently became more and more uncertain in their duration, there could not be leisure, if there were no impropriety, in opening a correspondence. On the removal of these difficulties, by the happy event of peace, your letter was among the early objects of my recollection. But a variety of circumstances which it would be tedious to explain, deprived me of an opportunity of bestowing the proper attention on it, until the recent busy Session of Congress became a further obstacle which has just ceased with the adjourment of that body.

On perusing your letter, I see much to admire in the comprehensive and profound views taken of its subject; as I do every thing to applaud, in the disinterested and beneficent offer which it makes to the United States; and it is with the feelings naturally flowing from these considerations, that I find myself constrained to decide, that a compliance with your proposals would not be within the Scope of my proper functions.

That a digest of our laws on sound principles, with a purgation and reduction to a text, of the unwritten part of them, would be an invaluable improvement, cannot be questioned; and I cheerfully accede to the opinion of Mr. Brougham, that the task could be undertaken by no hand in Europe so capable as yours. The only room for doubt would be, as to its practability, notwithstanding your peculiar advantages for it, within a space and a time such as appear to have been contemplated.

With respect to the unwritten law, it may not be improper to observe, that the extent of it has been not a little abridged, in this country, by successive events. A certain portion of it was dropped by our emigrant forefathers as contrary to their principles, or in applicable to their new situation. The Colonial Statutes, had a further effect in amending and diminishing the mass. The revolution from Colonies to Independant States, lopped off other portions. And the changes which have been constantly going on Since this last event, have every where made and are daily making, further reductions.

To these remarks I may be permitted to add, that with the best plan for converting the common law into a written law, the evil can not be more than partially cured; the complex technical terms to be employed in the text necessarily requiring a resort for definition and explanation, to the volumes containing that description of law.

These views of the subject, nevertheless, should they have the validity attached to them, still leave sufficient inducements for such a reform in our code, as had employed your thoughts. And altho’ we cannot avail ourselves of them in the mode best in itself, I do not overlook the prospect that the fruits of your labors, may, in some other, not be lost to us; flattering myself that my silence will have no wise diverted or suspended them, as far as the United States may have a particular interest in them. It will be a further gratification if it should experience from your goodness, the pardon which I have ventured to ask. Whatever may be the result, I pray You, Sir, to be assured of my distinguished esteem for your character, and of the due sense I entertain of your Solicitude for the Welfare of my Country.

James Madison

P.S. Be pleased to accept my thanks for the valuable collection of your works which accompanied your letter. I have directed a copy of Blodgets Tables and of Hamiltons works to be procured & forwarded to you, & will endeavour at some further return for your favor, to have added to them a few other publications.


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