To John Tyler
Monticello June 17. 12.
Your acceptable letter of May 17. came to hand ten days after date, and I duly estimate your approbation of my rudiments of the case of the Batture. I observe by the papers that Livingston’s suit against the Marshal for the same trespass, came before the federal court of Orleans, on the 24th of April, on the plea that he was not a citizen of New York, in which character he had sued that he might have the benefit of the same court which had already decided in his favor. a jury found him to be a citizen of New York. a new trial was asked on the ground that the verdict was contrary to evidence, which was to be discussed on the 2d of May. but after such a verdict by a jury which confounds all the states, and removes the barriers between federal & state jurisdiction, we have nothing to expect from a court, already committed for the plaintiff. ‘boni judicis est ampliare jurisdictionem’ has grown into a maxim with the courts. some copies of my statement would get there about a fortnight or three weeks after that, & perhaps before the argument on the main question. my strictures on their usurpation of Chancery jurisdiction were not calculated to throw the bias of the court on the side of the defendant. it is unfortunate that there is no appeal from the decision of that court. for notwithstanding the seductive character of Marshall’s opinions, their weight in the supreme court, and the personal bitterness against the denouncer of Burr, which would have inspired his efforts there, could he have carried, as he wished, my case to the supreme court of the US. I have ever had entire confidence that the ultimate decision of that bench would have been what that of all mankind would be, on a thorough investigation of the case. I shall be anxious to see it’s course in Orleans.
On the other subject of your letter, the application of the common Law to our present situation, I deride, with you, the ordinary doctrine that we brought with us from England the Common Law rights. this narrow notion was a favorite in the first moment of rallying to our rights against Great Britain. but it was that of men, who felt their rights before they had thought of their explanation. the truth is that we brought with us the rights of men, of ex-patriated men. on our arrival here the question would at once arise, By what law will we govern ourselves? the resolution seems to have been, By that system with which we are familiar, to be altered by ourselves occasionally, and adapted to our new situation. the proofs of this resolution are to be found in the form of the oaths of the judges. 1. Hening’s stat. 169. 187. of the Governor ib. 504. in the act for a provisional government ib. 372. in the preamble to the laws of 1661.2. the uniform current of opinions and decisions, and in the general recognition of all our statutes framed on that basis. but the state of the English law at the date of our emigration, constituted the system adopted here. we may doubt therefore the propriety of quoting in our courts English authorities subsequent to that adoption, still more the admission of authorities posterior to the declaration of Independance, or rather to the accession of that king, whose reign, ab initio, was that very tissue of wrongs which rendered the Declaration at length necessary. the reason for it had inception at least as far back as the commencement of his reign. this relation to the beginning of his reign, would add the advantage of getting us rid of all Mansfield’s innovations, or civilisations of the Common law. for however I admit the superiority of the Civil, over the Common law code, as a system of perfect justice, yet an incorporation of the two would be like Nebuchadnezzar’s image of metals & clay, a thing without cohesion1 of parts. the only natural improvement of the common law, is thro’ it’s homogeneous ally, the Chancery, in which new principles are to be examined, concocted, and digested. but when by repeated decisions & modifications they are rendered pure & certain, they should be transferred by statute to the courts of common law, & placed within the pale of juries. the exclusion from the courts of the malign influence of all authorities after the Georgium sidus became ascendant, would uncanonise Blackstone, whose book, altho’ the most elegant & best digested of our law catalogue, has been perverted more than all others2 to the degeneracy of legal science. a student finds there a smattering of every thing, and his indolence easily persuades him that if he understands that book, he is master of the whole body of the law. the distinction between these, & those who have drawn their stores from the deep and rich mines of Coke Littleton, seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyers to these Ephemeral insects of the law.
Whether we should undertake to reduce the common law, our own, & so much of the English, statutes as we have adopted, to a text, is a question of transcendant difficulty. it was discussed at the first meeting of the committee of the Revised code in 1776. & decided in the negative by the opinions of Wythe, Mason & myself, against Pendleton & Tom Lee. mr Pendleton proposed to take Blackstone for that text, only purging him of what was inapplicable, or unsuitable to us. in that case the meaning of every word of Blackstone would have become a source of litigation until it had been settled by repeated legal decisions. and to come at that meaning, we should have had produced, on all occasions, that very pile of authorities from which it would be said he drew his conclusion, & which of course would explain it, and the terms in which it is couched. thus we should have retained the same chaos of law-lore from which we wished to be emancipated, added to the evils of the uncertainty which a new text, & new phrases would have generated. an example of this may be found in the old statutes and commentaries on them in Coke’s 2d institute; but more remarkably in the Institute of Justinian, & the vast masses, explanatory, or supplementory of that which fills the libraries of the Civilians. we were deterred from the attempt by these considerations, added to which, the bustle of the times did not admit leisure for such an undertaking.
Your request of my opinion on this subject has given you the trouble of these observations. if your firmer mind in encountering difficulties would have added your vote to the minority of the committee, you would have had on your side one of the greatest men of our age, and, like him, have detracted nothing from the sentiments of esteem and respect which I bore to him, and tender, with sincerity, the assurance of to yourself.
PoC (DLC); at foot of first page: “Judge Tyler.”
The proceedings in the case of Livingston v. D’orgenoy had been sent to TJ in 1810. In 1812 Edward Livingston began a new round of litigation by suing John Michael Fortier, who succeeded Francis Joseph Le Breton D’orgenoy as federal marshal in New Orleans and who removed Livingston a second time from the Batture Sainte Marie. Repeating a finding of the previous month, a jury ruled on 4 May that Livingston was a citizen of new york and therefore entitled to pursue his case in the federal court in New Orleans, where it was argued on its merits on 22 May 1812 (Thomas B. Robertson to TJ, 7 Dec. 1810; Claiborne, Letter Books description begins Dunbar Rowland, ed., Official Letter Books of W. C. C. Claiborne, 1801–1816, 1917, repr. 1972, 6 vols. description ends , 6:34–5, 104; Philadelphia Poulson’s American Daily Advertiser, 19 June 1812). boni judicis est ampliare jurisdictionem: “good justice is broad jurisdiction.”
1. hening’s stat. 169. 187 relate to oaths of 1631 by which commissioners swear to “doe equall right, to the poore and to the rich … and after the lawes and customes of this colony, and as neere as may be after the lawes of the realme of England and statutes thereof made”; governor ib. 504 relates to the governor’s oath of 1658 that “I will … do equall right and justice vnto all persons in all causes when I shall bee therevnto called, according to the knowne laws of England or acts of Assembly which are or shall be in force for the time being”; the 1652 act for a provisional government provided that the powers of the governor, secretary, and governor’s council “be prescribed by the parliament in England, the known laws of England, & the grand assembly of Virginia”; and the preamble to the laws of 1661.2. adopted the common law but provided that any laws made thereafter “be reputed the laws of this country, by which all courts of judicature are to proceed in giveing of sentence, and to which all persons are strictly required to yeild all due obedience” (Hening, description begins William Waller Hening, ed., The Statutes at Large; being a Collection of all the Laws of Virginia, Richmond, 1809–23, 13 vols. description ends 1:169, 187, 371–2, 504, 2:42–3).
that king refers to George III of Great Britain. The Babylonian king Nebuchadnezzar had a dream of a great image, which the prophet Daniel interpreted as being composed of gold, silver, iron, brass, and feet of clay, symbolizing the king’s great strength and great weakness (Bible, Daniel 2). Used here as a satirical reference to George III’s ascension to the throne in 1760, the georgium sidus (“George’s star”) was the name originally given to the newly discovered planet Uranus in 1781 by its discoverer, Sir William Herschel. For TJ’s account of the committee that considered a revised code of laws for Virginia, see his 28 July 1809 letter to Skelton Jones. TJ owned at least one English-language edition of the institute of justinian: D. Justiniani Institutionum libri quatuor. The Four Books of Justinian’s Institutions, ed. and trans. George Harris (London, 1761; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2191). Despite their disagreement over the use of Sir William Blackstone in digesting Virginia law, TJ regarded Edmund Pendleton as one of the greatest men of our age.
1. Reworked from “adhesion.”
2. Reworked from “any other.”
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