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be found? The most advantageous relation in which she can stand
with her American colonies is that of independent friendship,
secured by the ties of consanguinity, sameness of language, religion,
manners, and habits, and certain from the influence of these, of a
preference in her commerce, if, instead of the eternal irritations,
thwartings, machinations against their new governments, the insults
and aggressions which Great Britain has so unwisely practised
towards us, to force us to hate her against our natural inclinations,
Spain yields, like a genuine parent, to the forisfamiliation of her
colonies, now at maturity, if she extends to them her affections, her
aid, her patronage in every court and country, it will weave a bond
of union indissoluble by time. We are in a state of semi-warfare with
your adjoining colonies, the Floridas. We do not consider this as
affecting our peace with Spain or any other of her former
possessions. We wish her and them well; and under her present
difficulties at home, and her doubtful future relations with her
colonies, both wisdom and interest will, I presume, induce her to
leave them to settle themselves the quarrels they draw on
themselves from their neighbors. The commanding officers in the
Floridas have excited and armed the neighboring savages to war
against us, and to murder and scalp many of our women and
children as well as men, taken by surprise—poor creatures! They
have paid for it with the loss of the flower of their strength, and
have given us the right, as we possess the power, to exterminate or
to expatriate them beyond the Mississippi. This conduct of the
Spanish officers will probably oblige us to take possession of the
Floridas, and the rather as we believe the English will otherwise
seize them, and use them as stations to distract and annoy us. But
should we possess ourselves of them, and Spain retain her other
colonies in this hemisphere, I presume we shall consider them in our
hands as subjects of negociation.
We are now at the close of our second campaign with England.
During the first we suffered several checks, from the want of capable
and tried officers; all the higher ones of the Revolution having died
off during an interval of thirty years of peace. But this second
campaign has been more successful, having given us all the lakes
and country of Upper Canada, except the single post of Kingston, at
its lower extremity. The two immediate causes of the war were the
Orders of Council, and impressment of our seamen. The first having
been removed after we had declared war, the war is continued for
the second; and a third has been generated by their conduct during
the war, in exciting the Indian hordes to murder and scalp the
women and children on our frontier. This renders peace for ever
impossible but on the establishment of such a meridian boundary to
their possessions, as that they never more can have such influence
with the savages as to excite again the same barbarities. The
thousand ships, too, they took from us in peace, and the six
thousand seamen impressed, call for this indemnification. On the
water we have proved to the world the error of their invincibility, and
shown that with equal force and well-trained officers, they can be
beaten by other nations as brave as themselves. Their lying officers
and printers will give to Europe very different views of the state of
their war with us. But you will see now, as in the Revolutionary war,
that they will lie, and conquer themselves out of all their possessions
on this continent.
I pray for the happiness of your nation, and that it may be blessed
with sound views and successful measures, under the difficulties in
which it is involved; and especially that they may know the value of
your counsels, and to yourself I tender the assurances of my high
respect and esteem.
Dear Sir,—I had hoped, when I retired from the business of the
world, that I should have been permitted to pass the evening of life
in tranquillity, undisturbed by the peltings and passions of which the
public papers are the vehicles. I see, however, that I have been
dragged into the newspapers by the infidelity of one with whom I
was formerly intimate, but who has abandoned the American
principles out of which that intimacy grew, and become the bigoted
partisan of England, and malcontent of his own government. In a
letter which he wrote to me, he earnestly besought me to avail our
country of the good understanding which existed between the
executive and myself, by recommending an offer of such terms to
our enemy as might produce a peace, towards which he was
confident that enemy was disposed. In my answer, I stated the
aggressions, the insults and injuries, which England had been
heaping on us for years, our long forbearance in the hope she might
be led by time and reflection to a sounder view of her own interests,
and of their connection with justice to us, the repeated propositions
for accommodation made by us and rejected by her, and at length
her Prince Regent's solemn proclamation to the world that he would
never repeal the orders in council as to us, until France should have
revoked her illegal decrees as to all the world, and her minister's
declaration to ours, that no admissible precaution against the
impressment of our seamen, could be proposed: that the
unavoidable declaration of war which followed these was
accompanied by advances for peace, on terms which no American
could dispense with, made through various channels, and unnoticed
and unanswered through any; but that if he could suggest any other
conditions which we ought to accept, and which had not been
repeatedly offered and rejected, I was ready to be the channel of
their conveyance to the government; and, to show him that neither
that attachment to Bonaparte nor French influence, which they
allege eternally without believing it themselves, affected my mind, I
threw in the two little sentences of the printed extract enclosed in
your friendly favor of the 9th ultimo, and exactly these two little
sentences, from a letter of two or three pages, he has thought
proper to publish, naked, alone, and with my name, although other
parts of the letter would have shown that I wished such limits only
to the successes of Bonaparte, as should not prevent his completely
closing Europe against British manufactures and commerce; and
thereby reducing her to just terms of peace with us.
Thus am I situated. I receive letters from all quarters, some from
known friends, some from those who write like friends, on various
subjects. What am I to do? Am I to button myself up in Jesuitical
reserve, rudely declining any answer, or answering in terms so
unmeaning as only to prove my distrust? Must I withdraw myself
from all interchange, of sentiment with the world? I cannot do this.
It is at war with my habits and temper. I cannot act as if all men
were unfaithful because some are so; nor believe that all will betray
me, because some do. I had rather be the victim of occasional
infidelities, than relinquish my general confidence in the honesty of
man.
So far as to the breach of confidence which has brought me into the
newspapers, with a view to embroil me with my friends, by a
supposed separation in opinion and principle from them. But it is
impossible that there can be any difference of opinion among us on
the two propositions contained in these two little sentences, when
explained, as they were explained in the context from which they
were insulated. That Bonaparte is an unprincipled tyrant, who is
deluging the continent of Europe with blood, there is not a human
being, not even the wife of his bosom, who does not see: nor can
there, I think, be a doubt as to the line we ought to wish drawn
between his successes and those of Alexander. Surely none of us
wish to see Bonaparte conquer Russia, and lay thus at his feet the
whole continent of Europe. This done, England would be but a
breakfast; and, although I am free from the visionary fears which
the votaries of England have effected to entertain, because I believe
he cannot effect the conquest of Europe; yet put all Europe into his
hands, and he might spare such a force, to be sent in British ships,
as I would as leave not have to encounter, when I see how much
trouble a handful of British soldiers in Canada has given us. No. It
cannot be to our interest that all Europe should be reduced to a
single monarchy. The true line of interest for us, is, that Bonaparte
should be able to effect the complete exclusion of England from the
whole continent of Europe, in order, as the same letter said, "by this
peaceable engine of constraint, to make her renounce her views of
dominion over the ocean, of permitting no other nation to navigate it
but with her license, and on tribute to her, and her aggressions on
the persons of our citizens who may choose to exercise their right of
passing over that element." And this would be effected by
Bonaparte's succeeding so far as to close the Baltic against her. This
success I wished him the last year, this I wish him this year; but
were he again advanced to Moscow, I should again wish him such
disasters as would prevent his reaching Petersburg. And were the
consequences even to be the longer continuance of our war, I would
rather meet them than see the whole force of Europe wielded by a
single hand.
I have gone into this explanation, my friend, because I know you will
not carry my letter to the newspapers, and because I am willing to
trust to your discretion the explaining me to our honest fellow
laborers, and the bringing them to pause and reflect, if any of them
have not sufficiently reflected on the extent of the success we ought
to wish to Bonaparte, with a view to our own interests only; and
even were we not men, to whom nothing human should be
indifferent. But is our particular interest to make us insensible to all
sentiments of morality? Is it then become criminal, the moral wish
that the torrents of blood this man is shedding in Europe, the
sufferings of so many human beings, good as ourselves, on whose
necks he is trampling, the burnings of ancient cities, devastations of
great countries, the destruction of law and order, and demoralization
of the world, should be arrested, even if it should place our peace a
little further distant? No. You and I cannot differ in wishing that
Russia, and Sweden, and Denmark, and Germany, and Spain, and
Portugal, and Italy, and even England, may retain their
independence. And if we differ in our opinions about Towers and his
four beasts and ten kingdoms, we differ as friends, indulging mutual
errors, and doing justice to mutual sincerity and honesty. In this
spirit of sincere confidence and affection, I pray God to bless you
here and hereafter.
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.
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