LITMIR.BIZ

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      TO ELBRIDGE GERRY

      Dear Sir,—It has given me great pleasure to receive a letter from you. It seems as if, our ancient friends dying off, the whole mass of the affections of the heart survives undiminished to the few who remain. I think our acquaintance commenced in 1764, both then just of age. We happened to take lodgings in the same house in New York. Our next meeting was in the Congress of 1775, and at various times afterwards in the exercise of that and other public functions, until your mission to Europe. Since we have ceased to meet, we have still thought and acted together, "et idem velle, atque idem nolle, ea demum amicitia est." Of this harmony of principle, the papers you enclosed me are proof sufficient. I do not condole with you on your release from your government. The vote of your opponents is the most honorable mark by which the soundness of your conduct could be stamped. I claim the same honorable testimonial. There was but a single act of my whole administration of which that party approved. That was the proclamation on the attack of the Chesapeake. And when I found they approved of it, I confess I began strongly to apprehend I had done wrong, and to exclaim with the Psalmist, "Lord, what have I done that the wicked should praise me!"

      What, then, does this English faction with you mean? Their newspapers say rebellion, and that they will not remain united with us unless we will permit them to govern the majority. If this be their purpose, their anti-republican spirit, it ought to be met at once. But a government like ours should be slow in believing this, should put forth its whole might when necessary to suppress it, and promptly return to the paths of reconciliation. The extent of our country secures it, I hope, from the vindictive passions of the petty incorporations of Greece. I rather suspect that the principal office of the other seventeen States will be to moderate and restrain the local excitement of our friends with you, when they (with the aid of their brethren of the other States, if they need it) shall have brought the rebellious to their feet. They count on British aid. But what can that avail them by land? They would separate from their friends, who alone furnish employment for their navigation, to unite with their only rival for that employment. When interdicted the harbors of their quondam brethren, they will go, I suppose to ask a share in the carrying trade of their rivals, and a dispensation with their navigation act. They think they will be happier in an association under the rulers of Ireland, the East and West Indies, than in an independent government, where they are obliged to put up with their proportional share only in the direction of its affairs. But I trust that such perverseness will not be that of the honest and well-meaning mass of the federalists of Massachusetts; and that when the questions of separation and rebellion shall be nakedly proposed to them, the Gores and the Pickerings will find their levees crowded with silk stocking gentry, but no yeomanry; an army of officers without soldiers. I hope, then, all will still end well; the Anglomen will consent to make peace with their bread and butter, and you and I shall sink to rest, without having been actors or spectators in another civil war.

      How many children have you? You beat me, I expect, in that count, but I you in that of our grand-children. We have not timed these things well together, or we might have begun a re-alliance between Massachusetts and the Old Dominion, faithful companions in the war of Independence, peculiarly tallied in interests, by each wanting exactly what the other has to spare; and estranged to each other in latter times, only by the practices of a third nation, the common enemy of both. Let us live only to see this re-union, and I will say with old Simeon, "Lord, now lettest thou thy servant depart in peace, for mine eyes have seen thy salvation." In that peace may you long remain, my friend, and depart only in the fulness of years, all passed in health and prosperity. God bless you.

      P. S. June 13. I did not condole with you on the reprobation of your opponents, because it proved your orthodoxy. Yesterday's post brought me the resolution of the republicans of Congress, to propose you as Vice President. On this I sincerely congratulate you. It is a stamp of double proof. It is a notification to the factionaries that their nay is the yea of truth, and its best test. We shall be almost within striking distance of each other. Who knows but you may fill up some short recess of Congress with a visit to Monticello, where a numerous family will hail you with a hearty country welcome.

      TO JUDGE TYLER

      Dear Sir,—* * * * *

      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 expatriated 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 Independence, or rather to the accession of that King, whose reign, ab initio, was the 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 civilizations 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 and clay, a thing without cohesion of parts. The only natural improvement of the common law, is through its homogeneous ally, the chancery, in which new principles are to be examined, concocted and digested. But when, by repeated decisions and modifications, they are rendered pure and certain, they should be transferred by statute to the courts of common law, and 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 uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted more than all others, to the degeneracy of legal science. A student finds there a smattering of everything, 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, and 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, and so much of the English statutes as we have adopted, to a text, is a question of transcendent difficulty. It was discussed at the first meeting of the committee of the revised code, in 1776, and decided in the negative, by the opinions of Wythe, Mason and myself, against Pendleton and Thomas Lee. 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, and 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 and new phrases would have generated. An example of this may be found in the old statutes, and commentaries on them, in Coke's second institute, but more remarkably in the institute of Justinian, and the vast masses explanatory or supplementary of that which fill 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

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