Thomas Jefferson Papers

From Thomas Jefferson to Philip Mazzei, November 1785

To Philip Mazzei

Paris Nov.  1785.

Dr. 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 and 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 and 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 preceded that is lost. It’s substance however has been retained in the memory of the people and 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 or 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 are1 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 and the circumstances which produced it. In antient times, when contracts and transfers of property were more rare, and their objects 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 and the rules of it’s decisions were assimilated to those of the Roman law. The distinction in that system between the jus praetorium, or discretion of the Praetor, and the general law is well known. Among the Romans and in most modern nations these were and are exercised by the same person. But the Chancellors of England, finding the ordinary courts in possession of the administration of general law, and confined to that, assumed to themselves by degrees that of the jus praetorium, 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 authorised by the laws in the earlier periods of history. Ld. Bacon first introduced regularity into their proceedings and 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 acknowleged at this day, is to relieve

  • 1. where the Common law gives no remedy.
  • 2. where it’s 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 judicature, which superintends all the courts and receives appeals from them, corrects it’s encroachments and 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 shew 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, and has been the subject of so many decisions in the court of Chancery as to have been seen there under all circumstances, and in all it’s combinations, and the rules for it’s decision are modified accordingly and thoroughly digested, the legislatures 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 acts of the legislature. But jealousy uncorrected by reason or experience, sees certainty whereever there is a possibility, and sensible men still think that the danger from this court overweighs it’s 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 clamours 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 witheld, 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, and 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 pretorian discretion, to wander into it’s equity, and the whole legal2 system becomes incertain. This has been it’s fate in every country where the fixed, and 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. Mansfeild, a man of the clearest3 head and most seducing eloquence, coming from a country where the powers of the common law and chancery are united in the same court, has been able4 since his admission to the bench of judges in England, to persuade the courts of Common law to revive the practice of construing their text equitably. The object of former judges has been to render the law more and 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 whatever 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, and 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 my letter I will further observe5 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 enquiries; 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,

Th: Jefferson

PrC (DLC). The date, left blank in MS, is entered in SJL as 28 Nov. There are numerous alterations in text, chiefly in matters of phraseology; some of these were made by TJ after PrC had been made from RC. The more significant alterations are indicated below.

Mazzei took full advantage of TJ’s authorization to extract such of these details as will fulfill your object. The complete letter (more properly an essay) was translated by Mazzei and, with a few additional phrases of his own, published without acknowledgment in his Recherches historiques et politiques sur les Etats-Unis, Paris, 1787, ii, 101–12.

1This word interlined after PrC had been made, and “were” deleted.

2This word interlined after PrC had been made, and “judiciary” deleted.

3This word interlined after PrC had been made, and “soundest” deleted.

4Preceding three words interlined after PrC had been made, and “been able” deleted.

5After TJ had made PrC, he wrote at the foot of last page the two preceding sentences (“His plan of rendering … by general rules”) and the connecting words (“Before I end my letter I will further observe”), which he keyed to the text at this point.

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