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From Thomas Jefferson to Edmund Randolph, 18 August 1799

To Edmund Randolph

Monticello Aug. 18. 99.

Dear Sir

I recieved only two days ago your favor of the 12th. and as it was on the eve of the return of our post, it was not possible to make so prompt a dispatch of the answer. Of all the doctrines which have ever been broached by the federal government, the novel one of the common law being in force & cognisable 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 details. the banklaw, 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 timid1 things in comparison of the audacious, barefaced and sweeping pretension to a system of law for the US. without the adoption of their legislature and so infinitely beyond their power to adopt. if this assumption is 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 paiment of it, & the common law they say is their law. I am happy you have taken up the subject; & I have carefully perused & considered the notes you inclosed, and find but a single paragraph which I do not approve. it is that wherein (page 2.) you say that laws being emanations from the legislative department, &, when once enacted, continuing in force from a presumption that their will so continues, that that presumption fails & the laws of course fall, on the destruction of that legislative department. I do not think this is the true bottom on which laws & the form [of] […] [administering] them rest. the whole body of the nation is the sovereign [legislative,] judiciary & executive power for itself. the inconvenience of meeting to exercise these powers in person & their inaptitude to exercise them, induce them to appoint special organs to declare their legislative will, to judge, & to execute it. it is the will of the nation which makes the law obligatory, it is their will which creates or annihilates the organ which is to declare & 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 a complication 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 chuse 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 written 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 as2 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, for 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 dominations 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 Independance they chose to abolish their former organs for declaring their will, the acts of will already formally & constitutionally declared, remained untouched. for the nation was not dissolved, was not annihilated; it’s will therefore remained in full vigour: and on the establishing the new organs, first of a convention, & afterwards a more complicated legislature, the old acts of national will continued in force, until the nation should by it’s new organs declare it’s 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, & because tho’ it changed the organs for the future declarations of it’s will, yet it did not change it’s former declarations that the common law was it’s law. apply these principles to the present case. before the revolution there existed no such nation as the US. they then first associated as a nation but for special purposes only.3 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, proceed4 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 & with foreign nations, and the states composing the association chose to give it powers for those purposes & no others, they could not adopt any general system, because it would have embraced objects on which5 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 till 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. & so far only as they were authorized to adopt.

I think it will be of great importance, when you come to the proper6 part to pourtray at full length the consequences of this new doctrine that the7 common law is the law of the US. and that their courts have of course jurisdiction co-extensive with that law, that is to say general over all cases & persons. but good heavens! who could have conceived in 1789. that within ten years we should have to combat such windmills. Adieu.

Yours affectionately

Th: Jefferson

PrC (DLC); faint; at foot of first page in ink: “Randolph Edmund.”

Randolph’s favor of the 12th, recorded in SJL as received on 16 Aug., has not been located. The Sedition Act and prosecutions for libel made the common law a topic of debate between Federalists and Republicans. Then in the spring of 1799 charges to grand juries by James Iredell and Oliver Ellsworth spurred debate on the existence and desirability of a federal common law of crimes. The question was not finally resolved until 1812, when the Supreme Court ruled that there was no such common law. Notes you inclosed: Randolph’s “Notes on the Common law” ended up with James Madison, who drew upon them to write on the subject in 1800. St. George Tucker, who in that year wrote a pamphlet on the issue, and Edmund Pendleton also saw Randolph’s notes (Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 27 vols. description ends , 17:259–69, 304–5; DHSC description begins Maeva Marcus and others, eds., The Documentary History of the Supreme Court of the United States 1789–1800, New York, 1985–2007, 8 vols. description ends , 3:235, 237, 318–19, 321–3, 330, 343–4, 348, 357–8, 376–80).

In a 12 Mch. 1793 letter to Gouverneur Morris, which contained language and concepts drafted the previous December, TJ, as secretary of state, assured Morris, then U.S. minister to France, of the continuity of French constitutional authority even after the deposition of the king. A nation, according to the letter, “may govern itself according to whatever form it pleases, and change these forms at it’s own will‥‥ The will of the nation is the only thing essential to be regarded” (see Vol. 24:800–2; Vol. 25:367–70). In December 1782 John Francis Mercer wrote a set of resolutions to serve as an instruction from the General Assembly to the state’s congressional delegates. The resolutions upheld the confiscation of British property on the basis that the owners were not parties to the “new social compact.” Writing to Randolph soon after, TJ called the resolutions “a declaration of a doctrine of the most mischeivous tendency.” He later said of their author, who had read law under his supervision: “Vanity and ambition seem to be the ruling passions of this young man and as his objects are impure, so also are his means.” The Virginia House of Delegates adopted the instructions on 17 Dec. 1782 and the Senate concurred on the 23d. Mercer, who had first come to the legislature in the autumn of 1782, won election as one of the delegates to Congress on 18 Dec. (Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 27 vols. description ends , 5:409–10, 425, 454; Leonard, General Assembly description begins Cynthia Miller Leonard, comp., The General Assembly of Virginia, July 30, 1619–January 11, 1978: A Bicentennial Register of Members, Richmond, 1978 description ends , 147; ANB; description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, New York and Oxford, 1999, 24 vols. description ends TJ to Randolph, 15 Feb. 1783; TJ to Madison, 25 Apr. 1784, for the decoding of which see Vol. 7:119).

Letters from Randolph to TJ of 10 Aug. 1798, received from Charlottesville the following day; 26 Dec. 1798, received on 3 Jan.; and 29 July 1799, received on 1 Aug., are recorded in SJL but have not been found. Also recorded in SJL but missing are letters from TJ to Randolph of 21 Jan. and 25 June 1799, the latter of which related, according to TJ’s notation, to two lawsuits, “Kennon’s” and “R. Johnston’s” (i.e., Johnson’s).

1Word interlined.

2Preceding four words interlined.

3Preceding five words interlined.

4Word interlined in place of “choose.”

5TJ first wrote “because it [went] to objects on which they [were not] […] [constit]” before revising the passage to read as above.

6Preceding two words interlined in place of “that.”

7TJ here canceled “[federal courts have].”

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