The Writings of Thomas Jefferson, Vol. 7 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and PrivateJefferson, Thomas
Philosophy
The Writings of Thomas Jefferson, Vol. 7 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private
Jefferson, Thomas
United States -- Politics and government -- 1775-1783; United States -- Politics and government -- 1783-1865
Though long estranged from legal reading and reasoning, and little
familiar with the decisions of particular judges, I have considered that
respecting the obligation of the common law in this country as a very
plain one, and merely a question of document. If we are under that law,
the document which made us so can surely be produced; and as far as this
can be produced, so far we are subject to it, and farther we are not. Most
of the States did, I believe, at an early period of their legislation,
adopt the English law, common and statute, more or less in a body, as
far as localities admitted of their application. In these States, then,
the common law, so far as adopted, is the _lex-loci_. Then comes the law
of Congress, declaring that what is law in any State, shall be the rule
of decision in their courts, as to matters arising within that State,
except when controlled by their own statutes. But this law of Congress
has been considered as extending to civil cases only; and that no such
provision has been made for criminal ones. A similar provision, then,
for criminal offences, would, in like manner, be an adoption of more or
less of the common law, as part of the _lex-loci_, where the offence
is committed; and would cover the whole field of legislation for the
general government. I have turned to the passage you refer to in Judge
Cooper's Justinian, and should suppose the general expressions there
used would admit of modifications conformable to this doctrine. It would
alarm me indeed, in any case, to find myself entertaining an opinion
different from that of a judgment so accurately organized as his. But I
am quite persuaded that, whenever Judge Cooper shall be led to consider
that question simply and nakedly, it is so much within his course of
thinking, as liberal as logical, that, rejecting all blind and undefined
obligation, he will hold to the positive and explicit precepts of the
law alone. Accept these hasty sentiments on the subjects you propose,
as hazarded in proof of my great esteem and respect.
TO BARON HUMBOLDT.
MONTICELLO, June 13, 1817.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account