DEAR SIR,Your favor of November 8th, if it was rightly dated, did not come to hand till December 13th, and being absent on a long journey, it has remained unanswered till now. The copy of your introductory lecture was received and acknowledged in my letter of July 12, 1812, with which I sent you Tracys first volume on Logic. Your Justinian came safely also, and I have been constantly meaning to acknowledge it, but I wished, at the same time, to say something more. I possessed Theopilus, Vinnius and Harris editions, but read over your notes and the addenda et corrigenda, and especially the parallels with the English law, with great satisfaction and edification. Your edition will be very useful to our lawyers, some of whom will need the translation as well as the notes. But what I had wanted to say to you on the subject, was that I much regret that instead of this work, useful as it may be, you had not bestowed the same time and research rather on a translation and notes on Bracton, a work which has never been performed for us, and which I have always considered as one of the greatest desiderata in the law. The laws of England, in their progress from the earliest to the present times, may be likened to the road of a traveller, divided into distinct stages or resting places, at each of which a review is taken of the road passed over so far. The first of these was Bractons De legibus Angliæ ; the second, Cokes Institutes ; the third, the Abridgment of the law by Matthew Bacon ; and the fourth, Blackstones Commentaries. Doubtless there were others before Bracton which have not reached us. Alfred, in the preface to his laws, says they were compiled from those of Ina, Offa, and Aethelbert, into which, or rather preceding them, the clergy have interpolated the 20th, 21st, 22d, 23d and 24th chapters of Exodus, so as to place A1freds preface to what was really his, awkwardly enough in the body of the work. An interpolation the more glaring, as containing laws expressly contradicted by those of Alfred. This pious fraud seems to have been first noted by Howard, in his Contumes Anglo Normandes (188), and the pious judges of England have had no inclination to question it ; [of this disposition in these judges, I could give you a curious sample from a note in my common-place book, made while I was a student, but it is too long to be now copied. Perhaps I may give it to you with some future letter.] This digest of Alfred of the laws of the Heptarchy into a single code, common to the whole kingdom, by him first reduced into one, was probably the birth of what is called the common law. He has been styled, Magnus Juris Anlicani Conditor; and his code, the Dom-Dec, or doom-book. That which was made afterwards under Edward the Confessor, was but a restoration of Alfreds, with some intervening alterations. And this was the code which the English so often, under the Norman princes, petitioned to have restored to them. But, all records previous to the Magna Charta having been early lost, Bractons is the first digest of the whole body of law which has come down to us entire. What materials for it existed in his time we know not, except the unauthoritative collections of Lambard and Wilkins, and the treatise of Glanville, tempore H. 2. Bractons is the more valuable, because being written a very few years after the Magna Charta, which commences what is called the statute law, it gives us the state of the common law in its ultimate form, and exactly at the point of division between the common and statute law. It is a most able work, complete in its matter and luminous in its method.
2. The statutes which introduced changes began now to be preserved ; applications of the law to new cases by the courts, began soon after to be reported in the year-books, these to be methodized and abridged by Fitzherbert, Broke, Rolle, and others ; individuals continued the business of reporting ; particular treatises were written by able men, and all these, by the time of Lord Coke, had formed so large a mass of matter as to call for a new digest, to bring it within reasonable compass. This he undertook in his Institutes, harmonizing all the decisions and opinions which were reconcilable, and rejecting those not so. This work is executed with so much learning and judgment, that I do not recollect that a single position in it has ever been judicially denied. And although the work loses much of its value by its chaotic form, it may still be considered as the fundamental code of the English law.
3. The same processes re-commencing of statutory changes, new divisions, multiplied reports, and special treatises, a new accumulation had formed, calling for new reduction, by the time of Matthew Bacon. His work, therefore, although not pretending to the textual merit of Bractons, or Cokes, was very acceptable. His alphabetical arrangement, indeed, although better than Cokes jumble, was far inferior to Bractons. But it was a sound digest of the materials existing on the several alphabetical heads under which he arranged them. His work was not admitted as authority in Westminster Hall ; yet it was the manual of every judge and lawyer, and, what better proves its worth, has been its daily growth in the general estimation.
4. A succeeding interval of changes and additions of matter produced Blackstones Commentaries, the most lucid in arrangement which had yet been written, correct in its matter, classical in style, and rightfully taking its place by the side of the Justinian Institutes. But, like them it was only an elementary book. It did not present all the subjects of the law in all their details. It still left it necessary to recur to the original works of which it was the summary. The great mass of law books from which it was extracted, was still to be consulted on minute investigations. It wanted, therefore, a species of merit which entered deeply into the value of those of Bracton, Coke and Bacon. They had in effect swept the shelves of all the materials preceding them. To give Blackstone, therefore, a full measure of value, another work is still wanting, to wit : to incorporate with his principles a compend of the particular cases subsequent to Bacon, of which they are the essence. This might be done by printing under his text a digest like Bacons continued to Blackstones time. It would enlarge his work, and increase its value peculiarly to us, because just there we break off from the parent stem of the English law, unconcerned in any of its subsequent changes or decisions.
Of the four digests noted, the three last are possessed and understood by every one. But the first, the fountain of them all, remains in its technical Latin, abounding in terms antiquated, obsolete, and unintelligible but to the most learned of the body of lawyers. To give it to us then in English, with a glossary of its old terms, is a work for which I know nobody but yourself possessing the necessary learning and industry. The latter part of it would be furnished to your hand from the glossaries of Wilkins, Lambard, Spelman, Somner in the X. Scriptores, the index of Coke and the law dictionaries. Could not such an undertaking be conveniently associated with your new vocation of giving law lectures ? I pray you to think of it. A further operation indeed, would still be desirable. To take up the doctrines of Bracton, separatim et seriatim, to give their history through the periods of Lord Coke and Bacon, down to Blackstone, to show when and how some of them have become extinct, the successive alterations made in others, and their progress to the state in which Blackstone found them. But this might be a separate work, left for your greater leisure or for some future pen.
I have long had under contemplation, and been collecting materials for the plan of an university in Virginia which should comprehend all the sciences useful to us, and none others. The general idea is suggested in the Notes on Virginia, Qu. 14. This would probably absorb the functions of William and Mary College, and transfer. them to a healthier and more central position : perhaps to the neighborhood of this place. The long and lingering decline of William and Mary, the death of its last president, its location and climate, force on us the wish for a new institution more convenient to our country generally, and better adapted to the present state of science. I have been told there will be an effort in the present session of our legislature, to effect such an establishment. I confess, however, that I have not great confidence that this will be done. Should it happen, it would offer places worthy of you, and of which you are worthy. It might produce, too, a bidder for the apparatus and library of Dr. Priestley, to which they might add mine on their own terms. This consists of about seven or eight thousand volumes, the best chosen collection of its size probably in America, and containing a great mass of what is most rare and valuable, and especially of what relates to America.
You have given us, in your Emporium, Bollmans medley on Political Economy. It is the work of one who sees a little of everything, and the whole of nothing ; and were it not f or your own notes on it, a sentence of which throws more just light on the subject than all his pages, we should regret the place it occupies of more useful matter. The bringing our countrymen to a sound comparative estimate of the vast value of internal commerce, and the disproportionate importance of what is foreign, is the most salutary effort which can be made for the prosperity of these States, which are entirely misled from their true interests by the infection of English prejudices, and illicit attachments to English interests and connections. I look to you for this effort. It would furnish a valuable chapter for every Emporium ; but I would rather see it also in the newspapers, which alone find access to every one.
Everything predicted by the enemies of banks, in the beginning, is now coming to pass. We are to be ruined now by the deluge of bank paper, as we were formerly by the old Continental paper. It is cruel that such revolutions in private fortunes should be at the mercy of avaricious adventurers, who, instead of employing their capital, if any they have, in manufactures, commerce, and other useful pursuits, make it an instrument to burden all the interchanges of property with their swindling profits, profits which are the price of no useful industry of theirs. Prudent men must be on their guard in this game of Robins alives, and take care that the spark does not extinguish in their hands. I am an enemy to all banks discounting bills or notes for anything but coin. But our whole country is so fascinated by this Jack-lantern wealth, that they will not stop short of its total and fatal explosion.
Have you seen the memorial to Congress on the subject of Oliver Evans patent rights? The memorialists have published in it a letter of mine containing some views on this difficult subject. But I have opened it no further than to raise the questions belonging to it. I wish we could have the benefit of your lights on these questions. The abuse of the frivolous patents is likely to cause more inconvenience than is countervailed by those really useful. We know not to what uses we may apply implements which have been in our hands before the birth of our government, and even the discovery of America. The memorial is a thin pamphlet, printed by Robinson of Baltimore, a copy of which has been laid on the desk of every member of Congress.
You ask if it is a secret who wrote the commentary on Montesquieu ? It must be a secret during the authors life. I may only say at present that it was written by a Frenchman, that the original MS. in French is now in my possession, that it was translated and edited by General Duane, and that I should rejoice to see it printed in its original tongue, if any one would undertake it. No book can suffer more by translation, because of the severe correctness of the original in the choice of its terms. I have taken measures for securing to the author his justly-earned fame, whenever his death or other circumstances may render it safe for him. Like you, I do not agree with him in everything, and have had some correspondence with him on particular points. But on the whole, it is a most valuable work, one which I think will form an epoch in the science of government, and which I wish to see in the hands of every American student, as the elementary and fundamental institute of that important branch of human science.
I have never seen the answer of Governor Strong to the judges of Massachusetts, to which you allude, nor the Massachusetts reports in which it is contained. But I am sure you join me in lamenting the general defection of lawyers and judges, from the free principles of government. I am sure they do not derive this degenerate spirit from the father of our science, Lord Coke. But it may be the reason why they cease to read him, and the source of what are now called Blackstone lawyers.
Go on in all your good works, without regard to the eye of suspicion and distrust with which you may be viewed by some, and without being weary in well doing, and be assured that you are justly estimated by the impartial mass of our fellow citizens, and by none more than myself.
1 Bracton has at length been translated in English.
2 This has been done by Reeves, in his History of the Law.
3 This accordingly took place four years after.
4 The original has since been published in France, with the name of its author, M. de Tutt Tracy.
[On the same subject to John Adams on February 24, 1814; and to John Cartwright on June 5, 1824.]