Adams Papers

To John Adams from Thomas Boylston Adams, 3 March 1802

Philadelphia 3d: March 1802

My dear Sir

The task assigned me by your Letter of the 1st: ultimo, “to enquire, ascertain and establish all those points of the Common law, which are now in force in the United States, and in the individual States; and on the contrary those points, which have been altered by Statutes or by the Revolution and the Constitutions of Government, which have been established in consequence of it;” has magnified to such an extent, since I bent my thoughts in that direction, that I find myself under the necessity of availing myself of the assistance you kindly promised me, in the prosecution of the enquiry. When you were informed that the Abbé de Mably was about to undertake the history of the United States, you drew an outline for him, which from its generality no less than its minuteness, was sufficient to terrify any foreigner from advancing in that region, unless his pursuit were fable instead of history. The Essay on the Common law, which you say is much wanted, would swell to a volume in the hands of any one, who should attempt to follow the track marked out by you; and I cannot help pleading my utter incompetency to the undertaking, unpossessed, as I am, of documents, destitute of assistance from any prior investigation, and above all wanting experience in my profession. The Statute book of each individual State in the Union, ought to be in some degree familiar, to the investigator of this subject; their particular Constitutions, customs and usages, should also be thoroughly understood. Even the forms of practice, which prevail by adoption in every State, all of which are variant from the practice of the English Courts, in some particulars, should be known, in order to make the proper discrimination. Such an Essay as that which passes under the title of Law tracts, & of which Ld Kaime’s was the author, seems to me to be a fit model for this interesting enquiry relative to the Common law. The learned author of those tracts, observes in his preface, that the particular discourses selected by him for publication, have a relation to subjects, common to the law of England & of Scotland.” The enquiry might be pursued with almost a parity of object, as avowed by that author; viz to demonstrate, that this whole Continent was once subject to the same law, that prevailed in Great Britain and that the revolution, which severed the Colonies from that Country, did not extinguish the common law, unless by the Statutes of any State, particularly denying its operation. For confirmation of this fact, the authority of Judge Addison, might be deemed sufficient, when he affirms, that “there was a Common law in each State before the declaration of Independence, and it remained after this declaration.” But how can we deny the operation of the Common law? It is so interwoven with every fibre & ligament of our social state, that should its operation be obstructed, (if indeed it could be done) convulsions would soon succeed to stupefaction, and the political surgeons might venture to predict; that in such a case, nothing could prevent an apoplectic termination to the disease.

I am better satisfied with <the> judge Addisons remarks upon the common law than any that have come under my eye. In his “Analysis of the Report of the Committee of the Virginia Assembly,” &ca: he says, “The Common law is founded on the law of nature & the revelation of God, to which all men are subject; on the law of nations, to which every nation is, as a nation, and the individuals composing it, subject towards every other, and on certain maxims or usages, which have long prevailed and been sanctioned by judicial authority, as naturally arising out of the circumstances, by which the subjects of that government were connected with each other; and therefore imposing duties on the individuals of that nation towards each other.”

The treatises wherein the Common law is treasured as an historical relic, would be most proper to consult in order to ascertain the extent of its application in the transactions of the social state; how to detect or discover its influence among us, in this Country, I am at a loss for a guide, and I therefore pray you Sir, to refer me where I may find a directory.

I am, respectfully & affectionately your Son

T B Adams

MHi: Adams Papers.

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