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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO PHILLIP MAZZEI - Thomas Jefferson, The Works, vol. 4 (Notes on Virginia II, Correspondence 1782-1786) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 4.

Part of: The Works of Thomas Jefferson, 12 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO PHILLIP MAZZEI

j. mss.

Paris, Nov. ? 1785.

Dear Sir,

—You desire me to give you an idea of the Origin and Object of our Court of Chancery, the Limits of it’s jurisdiction, and it’s Tendency to render property & liberty more or less secure in a country where that security is infinitely valued. The purpose for which you require this obliges me to be concise, as indeed does my situation here, where, as you know, I am without books which might enable me to enter into details, I shall confine myself therefore to general description only. The terms of this, if presented to professors of the law, would furnish matter for abundant exceptions. But these should be suppressed by the reflection that we mean only to sketch for foreigners a general idea of this Court.

The system of law in most of the United States, in imitation of that of England is divided into two departments, the Common law & the Chancery.

The Common law is a written law the text of which is preserved from the beginning of the 13th century downwards, but what has preceded that is lost, it’s substance, however, has been retained in the memory of the people & committed to writing from time to time in the decisions of the judges and treatises of the jurists, insomuch that it is still considered as a lex scripta, the letter of which is sufficiently known to guide the decisions of the courts. In this department the courts restrain themselves to the letter of the law. Antiently indeed before the improvement of perhaps the existence of the court of Chancery, they allowed themselves greater latitude, extending the provisions of every law not only to the cases within it’s letter but to those also which came within the spirit and reason of it. This was called the equity of the law but it is now very long since certainty in the law has become so highly valued by the nation that the judges have ceased to extend the operation of laws beyond those cases which are clearly within the intention of the legislators. This intention is to be collected principally from the words of the law; only where these are ambiguous they are permitted to gather further evidence from the history of the times when the law was made & the circumstances which produced it. In antient times, when contracts and transfers of property were more rare, and their object more simple, the imperfections of this administration of justice according to the letter of the law were less felt. But when commerce began to make progress, when the transfer of property came into daily use, when the modifications of these transfers were infinitely diversified, when with the improvement of other faculties that of the moral sense became also improved, and learnt to respect justice in a variety of cases which it had not formerly discriminated, the instances of injustice left without remedy by courts adhering to the letter of the law, would be so numerous as to produce a general desire that a power should be found somewhere which would redress them. History renders it probable that appeals were made to the king himself in these cases, and that he exercised this power sometimes in person, but more generally by his Chancellor to whom he referred the case. This was most commonly an Ecclesiastic, learning being rare in any other class at that time. Roman learning, and a prejudice in favour of Roman institutions are known to have been a leading feature in the ecclesiastical character. Hence it happened that the forms of proceeding in the court of Chancery & the rules of its decisions were assimilated to those of the Roman law. The distinction in that system between the jus prætorium, or discretion of the Prætor, and the general law is well known, among the Romans & in most modern nations these were & are exercised by the same person. But the Chancellors of England, finding the ordinary courts in possession of the administration of general law, & confined to that, assumed to themselves by degrees that of the jus prætorium, and made theirs be considered as a court of conscience, or of equity. The history of the struggles between the ordinary, or common law courts, and the court of equity or Chancery would be beyond our purpose, it is sufficient to say that the interpositions of the Chancellor were at first very rare, that they increased insensibly, and were rather tolerated from their necessity, than authorized by the laws in the earlier periods of history. Ld. Bacon first introduced regularity into their proceedings & Finch, Earl of Nottingham, in the reign of Charles the 2d. opened to view that system which has been improving from that time to this. The power of that court as acknowledged at this day, is to relieve:

  • 1. Where the common law gives no remedy.
  • 2. Where its remedy is imperfect.
  • 3. Where it would do injustice by comprehending within it’s letter cases not within it’s reason, nor intended to have been comprehended.

But this court whilst developing and systematising it’s powers has found, in the jealousy of the nation and it’s attachment to certain and impartial law, an obstacle insuperable beyond that line. It has been obliged therefore to establish for itself certain barriers as the limitations of it’s power which whenever it transcends, the general jurisdiction which superintends all the Courts & receives appeals from them corrects it’s encroachments & reverses it’s decisions. This is the house of lords in England, and the Court of Appeals in Virginia. These limitations are 1. That it cannot take cognisance of any case wherein the common law can give complete remedy. 2. That it cannot interpose in any case against the express letter and intention of the legislature. If the legislature means to enact an injustice, however palpable, the court of Chancery is not the body with whom a correcting power is lodged. 3. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule. This is to prevent partiality. When a Chancellor pretends that a case is distinguished from all others, it is thought better that that singular case should go without remedy, than that he should be at liberty to cover partial decisions under pretence of singular circumstances, which ingenious men can always invent. Hence all the cases remediable in chancery are reduced to certain classes. When a new case presents itself, not found in any of these classes it is dismissed as irremediable. If in the progress of commerce, and of the developments of moral duties the same case is presented so often that the Chancellor can seize certain leading features which submit it to a general description and show that it is a proper object for the application of some moral rule—here is a new class of cases formed and brought within the regular relief of the court of Chancery, which thus continues the administration of justice progressive almost in equal pace with the progress of commerce and refinement of morality. One practice only is wanting to render this court completely valuable. That is that when a class of cases has been formed & has been the subject of so many decisions in the Court of Chancery as to have been seen there under all circumstances, & in all its combinations and the rules for its decision are modified accordingly & thoroughly digested, the legislature should reduce these rules to a text and transplant them into the department of the common law, which is competent then to the application of them, and is a safer depository for the general administration of justice. This would be to make the Chancery a nursery only for the forming new plants for the Department of the common law. Much of the business of Chancery is now actually in a state of perfect preparation for removal into the common law.

It has often been predicted in England that the Chancery would swallow up the common law, during many centuries however, that these two courts have gone on together, the jurisdiction of the common law has not been narrowed in a single article: on the contrary it has been enlarged from time to time by act of the legislature; but jealousy uncorrected by reason or experience, sees certainty where ever there is a possibility and sensible men still think that the danger from this court overweighs its utility.

Even some of the states in our Union have chosen to do without this court; and it has been proposed to others to follow their example in this case. One of two consequences must follow. Either, 1—the cases now remediable in Chancery must be left without remedy, in which event the clamorers for justice which originally begat this court, would produce it’s re-institution; or 2—the courts of common law must be permitted to perform the discretionary functions of the Chancery. This will be either by adopting at once all the rules of the Chancery, with the consent of the legislature, or if that is withheld, these courts will be led, by the desire of doing justice, to extend the text of the law according to it’s equity as was done in England before the Chancery took a regular form. This will be worse than running on Scylla to avoid Charybdis, for at present nine tenths of our legal contestations are perfectly remedied by the common law, & can be carried before that judicature only. This proportion then of our rights is placed on sure ground. Relieve the judges from the rigour of text law, and permit them, with prætorian discretion, to wander into its equity, & the whole legal system becomes incertain. This has been it’s fate in every country where the fixed, & the discretionary law have been committed into the same hands. It is probable that the singular certainty, with which justice has been administered in England, has been the consequence of their distribution into two distinct departments. Unhappily for that country, however, a very unexpected revolution is working in their laws of late years. Ld. Mansfield, a man of the clearest head & most seducing eloquence coming from a country where the powers of the common law & chancery are united in the same court, has been able since his admission to the bench of judges in England, to persuade the courts of common law to revise the practice of construing their text equitably. The object of former judges has been to render the law more & more certain. That of this personage to render it more incertain under pretence of rendering it more reasonable. No period of the English law of what ever length it be taken, can be produced wherein so many of it’s settled rules have been reversed as during the time of this judge. His decisions will be precious in those states where no chancery is established, but his accession to the bench should form the epoch, after which all recurrence to English decisions should be proscribed in those states which have separated the two courts. His plan of rendering the chancery useless by administering justice in the same way in the courts of common law has been admirably seconded by the celebrated Dr. Blackstone, a judge in the same department, who has endeavored seriously to prove that the jurisdiction of the Chancery is a chaos, irreducible to system, insusceptible of fixed rules, & incapable of definition or explanation. Were this true, it would be a monster whose existence should not be suffered one moment in a free country wherein every power is dangerous which is not bound up by general rules.

Before I end up my letter I will further observe, to guard still more effectually against the dangers apprehended from a court of Chancery, the legislature of Virginia have very wisely introduced into it the trial by jury for all matters of fact.

I have thus gone over, with much rapidity the subject of your inquiries, yet I fear I have been more lengthy than you wished. You can, however, extract such of these details as will fulfill your object, neglecting those which go beyond it. I shall close therefore with assurances of the sincere esteem with which I am Dear Sir, Your friend & servant.