James Madison, fourth President

4 pages (9 7/8 x 7 7/8 in; 250 x 200 mm), "Montpellier," 14 August 1824, to Peter S. Du Ponceau; very light creases and and few minor ink smudges. In a blue half-morocco box. 

The Writings of James Madison IX: 198-202, text taken from Madison's retained draft at the Chicago Historical Society. 

A REMARKABLE LETTER ON LEGAL PHILOSOPHY BY THE "FATHER OF THE CONSTITUTION," ASSERTING THAT THE COMMON LAW HAS NO BEARING ON THE LAWS OF THE UNITED STATES, DISCUSSING THE FRAMERS'S ORIGINAL INTENT IN DRAFTING ARTICLE III OF THE CONSTITUTION, AND EXPRESSING HIS JEFFERSONIAN IDEALS. 

Madison begins his important missive by thanking Du Ponceau for the gift of a copy of his Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (Philadelphia, 1824), claiming to have "found in the volume ample evidence of the distinguished ability of which the public had been made sensible by other fruits of your pen."

A linguist, philosopher and jurist, Du Ponceau emigrated to the United States from France during the American Revolution, where he served on the staff of Baron von Steuben. Although he practiced law after the war, much of his time was devoted to the American Philosophical Society and the study of American Indian languages. The pamphlet he sent to Madison—originally a valedictory address given at the Law Academy of Philadelphia—Du Ponceau asserted that the Common Law was part of United States law only so far as it could be used for adjudication; in his view, it played no role in the matter of jurisdiction.

In this thoughtful and lengthy letter, Madison disputes Du Ponceau's conclusion, claiming that the Common Law is not applicable at all to the Laws of the United States due to Article III, Section II of the Constitution. Madison's perspective reflects the tradition of the Democratic-Republican party. As William W. Crosskey put it in Politics and the Constitution, "it is by no means strange that the Jeffersonian 'Revolutionaries' in 1799, and for many years afterward, were absolutely adamant in their denials that the Common Law had any application to national matters at all. Their position was that, apart from treaties, acts of Congress, and the Constitution, there was no national law … that the Government of the United States, unlike any new government the law of nations had ever seen, was obliged to start from scratch" (p. 633). This argument came to a head in 1798 with the passage of the Alien and Sedition Acts and Jefferson and Madison's response in the Virginia and Kentucky Resolves.

Twenty-five years onward, Madison has not altered his views: "I must say at the same time that I have not been made a convert to the doctrine that the 'Common Law' as such, is a part of the law of the U. States, in their federo-national capacity. I can perceive no legitimate avenue for its admission, beyond the portions fairly embraced by the common law terms used in the Constitution, and by acts of Congress authorized by the Constitution, as necessary & proper for executing the powers which it vests in the Government.

"A characteristic peculiarity of the Govt. of the U. States is, that its powers consist of special grants taken from the general mass of power; whereas other Govts. possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law should be a part of the National Code, have omitted to express or distinctly indicate the intention, when so many far inferior.

"That the Constitution is predicated on the existence of the Common law cannot be questioned, because it borrows therefrom terms which must be explained by Common Law authorities. But this no more implies a general adoption or recognition of it, than the use of terms embracing articles of the Civil Law, would carry such an implication.

"Nor can the Common Law be let in through the authority of the courts. That the whole of it is within their jurisdiction is never alledged; and a separation of the parts suited from those not suited to the peculiar structure and circumstances of the U. S. involves questions of expediency and discretion of a Legislative, not Judicial character. On questions of criminal law & jurisdiction, the strict rule of construction prescribed by the Common law itself, would seem to bar at once an assumption of such a power by the Courts.

"If the Common Law has been called our birthright, it has been done with little regard to any precise meaning. It could have been no more our birthright than the Statute law of England, or than the English Constitution itself. If the one was brought by our ancestors with them, so must the others; and the whole, consequently, as it stood during the dynasty of the Stuarts, the period of their emigration, with no other exceptions than such as resulted of necessity from inapplicability to the colonial State of things. As men, our birthright was from a much higher source than the common or any other human law, and of much greater extent than was imparted or admitted by the Common Law. And as far as it might belong to us, as British subjects, it must, with its correlative obligations, have expired when we ceased to be such. It would seem more correct therefore, and preferable in every respect, to say that the Common Law, even during the Colonial State, was in force, not by virtue of its adhesion to the emigrants & their descendants in their individual capacity, but by virtue of its adoption in their social & political capacity.

"How far this adoption may have taken place thro' the mere agency of the Courts cannot perhaps be readily traced. But such a mode of introducing laws, not otherwise in force, ought rather to be classed among the irregularities incident to the times & the occasion, than referred to any rightful jurisdiction of those Tribunals. The proceeding could receive no countenance even from the encroaching examples in G. Britain, where the Courts, tho' sometimes making legal innovations per saltus, profess that they grow out of a series of adjudications gradually accomodating the law to the gradual change of circumstances, in the ordinary progress of Society. On sound principles no change whatever can be made in the State of the law, but by the Legislative authority; Judicial decisions being not more competent to it than Executive proclamations.

"But whatever may have been the mode or process by which the Common law found its way into the Colonial Codes, no regular passage appears to have been opened for it into that of the U. States, other than through the two channels above mentioned; whilst every plea for an irregular one is taken away by the provident article in the Constitution for correcting its errors and supplying its defects. And altho' a frequent resort to this remedy be very undesireable, it may be a happy relief from the alternative of enduring an evil, or getting rid of it by an open or surreptitious usurpation."

Madison concludes in a conciliatory manner, writing, "I must not forget however that it is not my intention to enter into a critical, much less a controversial examination of the subject. And I turn with pleasure from points on which we may differ, to an important one on which I entirely agree with you. It has always appeared to me impossible to digest the unwritten law, or even the penal part of it, into a text that would be a compleat substitute. A Justinian or Napoleon Code may ascertain, may elucidate, and even improve the existing laws; but the meaning of its complex technical terms, in their application to particular cases, must be sought in like sources as before; and the smaller the compass of the text, the more general must be its terms, and the more necessary the resort to the usual guides in its particular applications."