The Writings of Thomas Jefferson, Vol. 6 (of 9)

TO SAMUEL M. BURNSIDE, SECRETARY OF THE AMERICAN ANTIQUARIAN SOCIETY

Monticello, January 9, 1814.

Sir,—I have duly received your favor of the 13th of December, informing me of the institution of the American Antiquarian Society, and expressing its disposition to honor me with an admission into it, and the request of my co-operation in the advancement of its objects. No one can be more sensible of the honor and the favor of these dispositions, and I pray you to have the goodness to testify to them all the gratitude I feel on receiving assurances of them. There has been a time of life when I should have entered into their views with zeal, and with a hope of not being altogether unuseful. But, now more than septuagenary, retired from the active scenes and business of life, I am sensible how little I can contribute to the advancement of the objects of their views; but I shall certainly, and with great pleasure, embrace any occasion which shall occur, of rendering them any services in my power. With these assurances, be so good as to accept for them and for yourself, those of my high respect and consideration.

TO DOCTOR THOMAS COOPER

Monticello, January 16, 1814.

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 Tracy's 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 corrifenda, 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 Bracton's De legibus Angliæ; the second, Coke's Institutes; the third, the Abridgment of the law by Matthew Bacon; and the fourth, Blackstone's 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 Alfred's 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 Anglicani Conditor;" and his code, the Dom-Dec, or doom-book. That which was made afterwards under Edward the Confessor, was but a restoration of Alfred's, 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, Bracton's 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 & Wilkins, and the treatise of Glanville, tempore H. 2. Bracton's 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 Bracton's, or Coke's, was very acceptable. His alphabetical arrangement, indeed, although better than Coke's jumble, was far inferior to Bracton's. 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 Blackstone's 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 Bacon's continued to Blackstone's 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.8 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.9

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, Bollman's 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 for 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 burthen 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 Robin's alive, 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.10

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 author's 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.11

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.

TO OLIVER EVANS, ESQ

Monticello, January 16, 1814.

Sir,—In August last I received a letter from Mr. Isaac McPherson of Baltimore, on the controversies subsisting between yourself and some persons in that quarter interested in mills. These related to your patent rights for the elevators, conveyors, and hopper-boys; and he requested any information I could give him on that subject. Having been formerly a member of the patent board, as long as it existed, and bestowed in the execution of that trust much consideration on the questions belonging to it, I thought it an act of justice, and indeed of duty, to communicate such facts and principles as had occurred to me on the subject. I therefore wrote the letter of August 13, which is the occasion of your favor to me of the 7th instant, just now received, but without the report of the case tried in the circuit court of Maryland, or your memorial to Congress, mentioned in the letter as accompanying it. You request an answer to your letter, which my respect and esteem for you would of themselves have dictated; but I am not certain that I distinguish the particular points to which you wish a specific answer. You agree in the letter, that the chain of buckets and Archimedes screw are old inventions; that every one had, and still has, a right to use them and the hopper-boy, if that also existed previously, in the forms and constructions known before your patent; and that, therefore, you have neither a grant nor claim, to the exclusive right of using elevators, conveyors, hopper-boys, or drills, but only of the improved elevator, the improved hopper-boy, &c. In this, then, we are entirely agreed, and your right to your own improvements in the construction of these machines is explicitly recognized in my letter. I think, however, that your letter claims something more, although it is not so explicitly defined as to convey to my mind the precise idea which you perhaps meant to express. Your letter says that your patent is for your improvement in the manufacture of flour by the application of certain principles, and of such machinery as will carry those principles into operation, whether of the improved elevator, improved hopper-boy, or (without being confined to them) of any machinery known and free to the public. I can conceive how a machine may improve the manufacture of flour; but not how a principle abstracted from any machine can do it. It must then be the machine, and the principle of that machine, which is secured to you by your patent. Recurring now to the words of your definition, do they mean that, while all are free to use the old string of buckets, and Archimedes' screw for the purposes to which they had been formerly applied, you alone have the exclusive right to apply them to the manufacture of flour? that no one has a right to apply his old machines to all the purposes of which they are susceptible? that every one, for instance, who can apply the hoe, the spade, or the axe to any purpose to which they have not been before applied, may have a patent for the exclusive right to that application? and may exclude all others, under penalties, from so using their hoe, spade, or axe? If this be the meaning, my opinion that the legislature never meant by the patent law to sweep away so extensively the rights of their constituents, to environ everything they touch with snares, is expressed in the letter of August 13, from which I have nothing to retract, nor ought to add but the observation that if a new application of our old machines be a ground of monopoly, the patent law will take from us much more good than it will give. Perhaps it may mean another thing, that while every one has a right to the distinct and separate use of the buckets, the screw, the hopper-boy, in their old forms, the patent gives you the exclusive right to combine their uses on the same object. But if we have a right to use three things separately, I see nothing in reason, or in the patent law, which forbids our using them all together. A man has a right to use a saw, an axe, a plane separately; may he not combine their uses on the same piece of wood? He has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject? Such a law, instead of enlarging our conveniences, as was intended, would most fearfully abridge them, and crowd us by monopolies out of the use of the things we have.

I have no particular interest, however, in these questions, nor any inclination to be the advocate of either party; and I hope I shall be excused from it. I shall acquiesce cheerfully in the decisions in your favor by those to whom the laws have confided them, without blaming the other party for being unwilling, when so new a branch of science has been recently engrafted on our jurisprudence, one with which its professors have till now had no call to make themselves acquainted, one bearing little analogy to their professional educations or pursuits. That they should be unwilling, I say, to admit that one or two decisions, before inferior and local tribunals, before the questions shall have been repeatedly and maturely examined in all their bearings, before the cases shall have presented themselves in all their forms and attitudes, before a sanction by the greater part of the judges on the most solemn investigations, and before the industry and intelligence of many defendants may have excited to efforts for the vindication of the general rights of the citizen; that one or other of the precedents should forever foreclose the whole of a new subject.

To the publication of this answer with your letter, as you request, I have no objection. I wish right to be done to all parties, and to yourself, particularly and personally, the just rewards of genius; and I tender you the assurances of my great esteem and respect.

TO JOSEPH C. CABELL, ESQ

Monticello, January 17, 1814.

Dear Sir,—In your last letter to me you expressed a desire to look into the question whether, by the laws of nature, one generation of men can, by any act of theirs, bind those which are to follow them? I say, by the laws of nature, there being between generation and generation, as between nation and nation, no other obligatory law; and you requested to see what I had said on the subject to Mr. Eppes. I enclose, for your own perusal, therefore, three letters which I wrote to him on the course of our finances, which embrace the question before stated. When I wrote the first, I had no thought of following it by a second. I was led to that by his subsequent request, and after the second I was induced, in a third, to take up the subject of banks, by the communication of a proposition to be laid before Congress for the establishment of a new bank. I mention this to explain the total absence of order in these letters as a whole. I have said above that they are sent for your own perusal, not meaning to debar any use of the matter, but only that my name may in nowise be connected with it. I am too desirous of tranquillity to bring such a nest of hornets on me as the fraternities of banking companies, and this infatuation of banks is a torrent which it would be a folly for me to get into the way of. I see that it must take its course, until actual ruin shall awaken us from its delusions. Until the gigantic banking propositions of this winter had made their appearance in the different legislatures, I had hoped that the evil might still be checked; but I see now that it is desperate, and that we must fold our arms and go to the bottom with the ship. I had been in hopes that good old Virginia, not yet so far embarked as her northern sisters, would have set the example this winter, of beginning the process of cure, by passing a law that, after a certain time, suppose of six months, no bank bill of less than ten dollars should be permitted. That after some other reasonable term, there should be none less than twenty dollars, and so on, until those only should be left in circulation whose size would be above the common transactions of any but merchants. This would ensure to us an ordinary circulation of metallic money, and would reduce the quantum of paper within the bounds of moderate mischief. And it is the only way in which the reduction can be made without a shock to private fortunes. A sudden stoppage of this trash, either by law or its own worthlessness, would produce confusion and ruin. Yet this will happen by its own extinction, if left to itself. Whereas, by a salutary interposition of the legislature, it may be withdrawn insensibly and safely. Such a mode of doing it, too, would give less alarm to the bank-holders, the discreet part of whom must wish to see themselves secured by some circumscription. It might be asked what we should do for change? The banks must provide it, first to pay off their five-dollar bills, next their ten-dollar bills and so on, and they ought to provide it to lessen the evils of their institution. But I now give up all hope. After producing the same revolutions in private fortunes as the old Continental paper did, it will die like that, adding a total incapacity to raise resources for the war.

Withdrawing myself within the shell of our own State, I have long contemplated a division of it into hundreds or wards, as the most fundamental measure for securing good government, and for instilling the principles and exercise of self-government into every fibre of every member of our commonwealth. But the details are too long for a letter, and must be the subject of conversation, whenever I shall have the pleasure of seeing you. It is for some of you young legislators to immortalize yourselves by laying this stone as the basis of our political edifice.

I must ask the favor of an early return of the enclosed papers, of which I have no copy. Ever affectionately yours.

TO MR. R. M. PATTERSON, SECRETARY OF THE AMERICAN PHILOSOPHICAL SOCIETY

Monticello, January 20, 1814.

Sir,—I have duly received your favor of the 7th, informing me that the American Philosophical Society, at their meeting of that day, had been pleased unanimously to elect me as President of the Society. I receive with just sensibility this proof of their continued good will, and pray you to assure them of my gratitude for these favors, of my devotedness to their service, and the pleasure with which at all times I should in any way be made useful to them.