James Madison Papers

Isaac Foster to James Madison, 15 July 1829

Whitewood, Fauquier County July 15th. 1829.

Dear Sir

As we plain farmers, who have always toiled most and paid most taxes, look to you as the first champion in our cause in the ensuing Convention which is to meet to make our civil condition better or worse I take the liberty of taxing your attention with some remarks.

After you have settled the basis of representation and the right of suffrage in doing which we have no doubt you will endeavour to make an equitable settlement between personal rights and the rights of property you will have to settle the principles upon which the administration of Justice shall be conducted—Here you will meet great difficulties & To dismiss the trammels of a thousand years is no easy task: To make the laws so plain and so evidently bottomed upon common sense as to challenge the Understanding and support of all good men will be the great matter to be obtained. It is said that the common law of England is the perfection the transcript of Common sense & Justice; but if so, how is it that no one seams to know exactly what it is let his learning be never so great—One of the greatest of the lawyers in England said a year or two ago that he would defy any man to say what was the law upon a particular point, and I find our greatest lawyers and Judges constantly differing here, Even the Judges and the lawyers of the district seam not to know the law that would govern a plain case of gross fraud upon the public Treasury and when such Doctors disagree what is to become of us clod hoppers for despite of all our laborious and peaceable habits some litigious body will some time or other drag us before the Courts and there cause us to spend our time and our hard earnings to the day of our death while the uncertainty of the law cannot be settled altho’ we are carried from Court to Court in place of being at our ploughs———Is it not possible to make the laws so plain that "He who runs may read"

In the Nat: Intell: July 8th. Judge Thruston admits and deprecates this uncertainty of the law, and alludes to a Judge in Virginia who he says is a very great man and yet cannot administer the law so as to stand the test of the Higher Courts This is a monstrous state of things which we hope to see done away by the Wisdom of the Convention, and we look to you as the [sheet] anchor of our hope.

Judge Thruston and others can understand the Statute Law but not the Common law—We shook off the Government of Great Britain and happily soon after got clear of the whole machinery of Ecclesiastical Tyranny, and why we unlearned ploughmen ask, "can we not get rid of the lumber of the dark ages," Why cannot we call out of the experience of ages in matter of law what suits our condition as we did in theory and practice of Government and reject all the rest [ ] Is this the reason? if we codify so much of the common law as is common sense and plain Justice and reject the balance, the great readers who are now called great Lawyers will not for a time seem to be so much in advance of others & it might seem like derogating from that standing they now occupy—

He who now can muster most books seems to have the preeminence whether he can make it plain or not, that he states the law governing the case—Judge Thruston says that at every Court he is surprized by some new authority--That the reports and speculations on the law are so numerous that no man can buy or read them all—See his sentiments in the paper alluded to.

Sir you done much for your Country (for which we and our posterity will never forget you) when you secured to us the blessings of the federal Constitution—We say secured for we understand that without your efforts Virginia would not have sanctioned that instrument———Now we trust that in this last great effort of your talents and justly acquired influence, you will be able also to redeem us from the direful uncertainty of the law and crushing costs of our Cumbrous Judicial machinery———We have many eminent lawyers who are good men, but owing at least half their celebrity to their knowledge in the miserable mysteries of our present state of law, they cannot be looked to with the same confidence that we look to yourself first and Mr. Monroe next The present system works well for a majority I suppose of the men (great and good men too most of them are) that will form the Convention therefore they cannot be expected to feel its evils in full proportion with others—

The present Chancery system is eating up the prosperity of the Country—A man sues for $40 pays his Attorney at the beginning $[20] and the costs become almost endless.

Our laws should be plain, our Judges should be the ablest men in the state with good salaries—have fewer of them and pay them well. Every Judge should report annually [dagger] the state of his Docket & give the reasons why any cause has remained on it more than year. We do not know how to part with our Justices but all is not right respecting them, They ought to have more legal knowledge, and they, and Juries ought to be paid

As far as I know our Judiciary are as pure as any in the World as free from Corruption as any men, but the state of things about them entangles and prevents them from getting along with that advantage to their Country which is desirable.

I have never seen you and most probably never shall have that pleasure but I hope god will continue to bless you Yr friend & c.

Isaac Foster

+ to the Legislature


* Judge Marshall too is placed by his age, his talents, and fair Judging cast of mind, in a situation to be a hercules in clearing away the Cobwebs of sophistries & perpetuities, of the law which have been accumulating for ages—We include him with yourself, and Mr. Monroe—Judge Marshall might do his Country a great service by recommending a codification of the common law—for at the same time that he would not possess the advantages in the convention that you do, yet being at the head of the law his dictum would carry the majority of the lawyers, who at present are startled at the very mention of such a thing as the revisal of the common law.

Our statute law has been revised several times as experience dictated the necessity, and why should the common law with all its feudal crudities be considered too holy to be approached even by the light of this intelligent age.

The convention cannot legislate but their province will be to say upon what principles legislation should be conducted.

RC (NN). Docketed by JM.

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