Constitution grants no general common-law Jurisdiction
To Edmund Randolph Monticello, Aug. 18, 1799
DEAR SIR,
-- I received only two days ago your favor of the 12th, and as it was
on the eve of the return of our post, it was not possible to make so
prompt a despatch of the answer. Of all the doctrines which have ever
been broached by the federal government, the novel one, of the
common law being in force & cognizable as an existing law in their
courts, is to me the most formidable. All their other assumptions of
un-given powers have been in the detail. The [national] bank law, the
treaty doctrine, the sedition act, alien act, the undertaking to change
the state laws of evidence in the state courts by certain parts of the
stamp act, &c., &c., have been solitary, unconsequential, timid things,
in comparison with the audacious, barefaced and sweeping pretension
to a system of law for the U S, without the adoption of their
legislature, and so infinitively beyond their power to adopt. If this
assumption be yielded to, the state courts may be shut up, as there
will then be nothing to hinder citizens of the same state suing each
other in the federal courts in every case, as on a bond for instance,
because the common law obliges payment of it, & the common law
they say is their law. I am happy you have taken up the subject; & I
have carefully perused & considered the notes you enclosed, and find
but a single paragraph which I do not approve. It is that wherein
(page 2.) you say, that laws being emanations from the legislative
department, &, when once enacted, continuing in force from a
presumption that their will so continues, that that presumption fails &
the laws of course fall, on the destruction of that legislative
department. I do not think this is the true bottom on which laws & the
administering them rest. The whole body of the nation is the
sovereign legislative, judiciary and executive power for itself. The
inconvenience of meeting to exercise these powers in person, and
their inaptitude to exercise them, induce them to appoint special organs
to declare their legislative will, to judge & to execute it. It is the
will of the nation which makes the law obligatory; it is their will which
creates or annihilates the organ which is to declare & announce it.
They may do it by a single person, as an Emperor of Russia,
(constituting his declarations evidence of their will,) or by a few
persons, as the Aristocracy of Venice, or by a complication of councils,
as in our former regal government or our present republican one. The
law being law because it is the will of the nation, is not changed by
their changing the organ through which they chuse to announce their
future will; no more than the acts I have done by one attorney lose
their obligation by my changing or discontinuing that attorney. This
doctrine has been, in a certain degree sanctioned by the federal
executive. For it is precisely that on which the continuance of
obligation from our treaty with France was established, and the
doctrine was particularly developed in a letter to Gouverneur Morris,
written with the approbation of President Washington and his
cabinet. Mercer once prevailed on the Virginia Assembly to declare a
different doctrine in some resolutions. These met universal
disapprobation in this, as well as the other States, and if I mistake
not, a subsequent Assembly did something to do away the authority of
their former unguarded resolutions. In this case, as in all others,
the true principle will be quite as effectual to establish the just
deductions, for before the revolution [i.e., under the Articles of
Association], the nation of Virginia had, by the organs they then
thought proper to constitute, established a system of laws, which they
divided into three denominations of
1. common law;
2. statute law;
3. Chancery: or if you please, into two only, of
1. common law;
2. Chancery.
When, by the declaration of Independence, they chose to abolish their
former organs of declaring their will, the acts of will already formally
& constitutionally declared, remained untouched. For the nation [of
Virginia] was not dissolved, was not annihilated; it's will, therefore,
remained in full vigor; and on the establishing the new organs, first of
a convention, & afterwards a more complicated legislature, the old
acts of national will continued in force, until the nation should, by its
new organs, declare it's will changed. The common law, therefore,
which was not in force when we landed here [in Virginia], nor till we
had formed ourselves into a nation [before the revolution], and had
manifested by the organs we constituted that the common law was to
be our law, continued to be our law, because the nation continued in
being, & because though it changed the organs for the future
declarations of its will, yet it did not change its former declarations
that the common law was it's law.
Apply these principles to the present case. Before the revolution there
existed no such nation as the U S; they then first associated as [if] a
nation, but for special purposes only. They had all their laws to make,
as Virginia had on her first establishment as a nation. But they did not,
as Virginia had done, proceed to adopt a whole system of laws ready made
to their hand. As their association as [if] a nation [i.e., the less
perfect Union of the Articles of Confederation] was only for special
purposes, to wit, for the management of their concerns with one another
& with foreign nations, and the states composing the association chose
to give it powers for those purposes & no others, they could not adopt
any general system, because it would have embraced objects on which this
association had no right to form or declare a will. It was not the organ
for declaring a national will in these cases. In the cases confided to
them, they were free to declare the will of the nation, the law; but till
it was declared there could be no law. So that the common law did not
become, ipso facto, law on the new association [i.e., the more perfect
Union of the Constitution]; it could only become so by a positive
adoption, & so far only as they were authorized to adopt.
I think it will be of great importance, when you come to the proper
part, to portray at full length the consequences of this new doctrine,
that the common law is the law of the U S, & that their courts have, of
course, jurisdiction co-extensive with that law, that is to say, general
over all cases & persons. But, great heavens! Who could have conceived in
1789 that within ten years we should have to combat such windmills. Adieu.
