Flemington June 30th: 1819
Although I have not the honour of a personal acquaintance with you, yet from the knowledge I have of your character, I trust you will pardon the liberty I have taken in consulting you on an important subject of our national jurisprudence. For in difficult subjects of this nature to whom shall we look, with so much propriety for instruction, as to the author of the Defence of the American constitution—
In my researches into the jurisprudence of our country I find different opinions expressed by different jurists of the obligation of the common law in the municipal code of the United States, considered in their federal and national capacity. Thus Judge Ellsworth, Judge Washington, Judge Peters, and Judge Cooper contend that the United States have adopted (by implication I presume) a lex non scripta or unwritten code. While Judge Chase, Judge Tucker, Mr. Jefferson & Mr. Madison deny this position.
In this State of the subject, finding it a quertis verata et adhuc sub judice est lis, I have taken the liberty of asking your opinion upon this point.
I am aware that Greece, Rome, England and most other countries have had a lex non scripta. I am also aware that this difficulty does not occur in the municipal codes of the several states. For it is agreed by most judicial writers that our ancestors migrating to this country brought with them, as a birth-right such parts of the common law as were applicable to their situation as colonies, Altho’ Judge Blackstone says “the common law as such has no allowance here.
But how and to what extent the national government are invested with a common law or unwritten code is a question of much more difficulty.
The federal constitution, regarded in the light of a federal compact of equal and independent states would seem to cut, up by the roots, every thing like constructive powers.
Upon the whole I should rather incline to the opinion of my friend Judge Cooper, the present professor of Laws in Central University Virginia, under whom my legal studies were conducted, contained in a letter which I had the honour to receive from him a few days ago. Judge Cooper says “I consider it as settled that so much of the common law as necessarily includes the practice of the courts, and the trial by Jury, not expressly enacted by acts of Congress is adopted by the federal courts.—I apprehend that no common law construction of penal laws is in force: all power must be specifically given and not assumed, both as to the civil and penal jurisdiction of those courts.” But Judge Cooper in his notes to Justinian’s Institute would seem to extend the obligation of the common law some what farther.
My friend Mr. Jefferson in a letter which I lately had the honour to receive from him seems to deny the obligatory effect of the common law of England in the Municipal code of the United states altogether.
I am aware I require an apology for thus obtruding myself upon the attention of one whose acquaintance I have never been honoured with, but the interest I feel in the subject. My anxiety to procure all the information upon it in my power, and preeminent abilities to instruct, must be my excuse.
I remain Dr sir / Very respectfully / Yr obt. Servt.
MHi: Adams Papers.