James Madison Papers

Peter S. Du Ponceau to James Madison, 13 September 1824

Philada. 13th. Sepr. 1824

Dear Sir

I was out on a Journey to New York & Boston, when the letter which you did me the honor to write to me on the 14th. ulto. reached here. I have but lately returned home & lose no time in returning you my thanks for the kind & condescending Notice which you have been pleased to take of the little work which I took the liberty of Sending to you. The approbation of yourself & such Men as you is the highest reward that I could expect, or rather that I could aim at, & is, indeed, what I have laboured to attain.

I am well aware that the Doctrine which I have maintained on the Subject of an American Common law, is one on which much may be said on both sides of the question; I have long hesitated before I came to a final determination upon it, & after all, I have only Submitted my Arguments to those who are better able to decide on it than myself. Of this, however, I am satisfied, that if ever the Supreme Court of the United States were to establish by a Solemn decree the negative of this question, they would not have the power to carry this decision into effect, & the Common law would still govern tho’ under another name. Whether it is not best to admit it at once as the foundation of our American Jurisprudence, (except as to conferring power, which the Constitution & laws alone can do) & to endeavour to give it a right direction, is a question which I leave for my Masters to decide. Such, at any rate, is the plan which I have endeavoured to pursue, too well knowing how little legislative bodies are attentive to Subjects of Jurisprudence, & that their attention is almost exclusively reserved to fiscal & party objects. It is now 35 Years since our Constitution has been in operation, & you See how little has been done on the Subject of general law, & that little how unsatisfactory. Years will yet elapse before the void, if there is to be one, will be filled up, & you well know that a vacuum in Jurisprudence is of all things to be deprecated. The Common law has been abused to Subserve party views; I have freely pointed out the faults that have been committed in this respect, & endeavoured to shew the remedy, which I think is nothing else than Republican & liberal principles fixed on the basis of the Common law. If these principles predominate, the Common law will assume a proper Shape; Should it be otherwise, it will matter little whether the Common law is or not admitted as a National System; abuses will creep in, more easily perhaps, without the Common law than with it

You may be Sure, Sir, that the period of Servility to English opinions is gone by, in the North, as well as in the South; of this I have fully Satisfied myself in my late Journey, & indeed, it appears to me that the Spirit of innovation is rather to be checked than too much encouraged—Reformation is wanted, but not Revolution; since the late War a more National Spirit has prevailed than existed theretofore, & I have not the least doubt that rational improvement, if properly directed by those who think & write, will find its way into our System of Jurisprudence, which will not be the worse for having been erected on the foundations of the Common law—To a Statesman like you, reasons of expediency may be adduced, which the Men of professional routine neither would nor could understand.

I am happy to find that you agree with me on the Subject of the difficulty of Codification, which the Benthams of the age seem to consider as an infallible Nostrum. If Codes, then, cannot be, at least immediately made, I would Submit it to you, whether so great a Vacuum can be left in our legislation as the absence of a National Common law would make? After all, I have said too much, perhaps, on this insignificant Essay of mine, which must be left to take its fate, & probably, in a little while to be forgotten. I am too happy to find that it has attracted your enlightened Notice, & that is enough to Satisfy my literary ambition—While I possess your esteem, I shall always have enough to be proud of, & the Study of my life shall be to continue to deserve it——

I beg you will be so good as to present my homage to Mrs. Madison, who, I hope, has preserved enough of her Philadelphia feelings to remember her old fellow Citizens & friends. I have the honor to be With the highest veneration & respect Sir Your most obedt. humble Servant

Peter S. Du Ponceau

RC (DLC). Docketed by JM.

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