u enclosed, and find but a single paragraph which I do not
approve. It is that wherein (page 2) you say, that laws being emanations
from the legislative department, and, when once enacted, continuing
in force from a presumption that their will so continues, that that
presumption fails, and the laws of course fall, on the destruction of
that legislative department. I do not think this is the true bottom on
which laws and the administering them rest. The whole body of the nation
is the sovereign legislative, judiciary, and executive power for itself.
The inconvenience of meeting to exercise these powers in person, and
their inaptitude to exercise them, induce them to appoint special organs
to declare their legislative will, to judge, and to execute it. It is
the will of the nation which makes the law obligatory; it is their will
which creates or annihilates the organ which is to declare and
announce it. They may do it by a single person, as an Emperor of Russia
(constituting his declarations evidence of their will), or by a few
persons, as the aristocracy of Venice, or by a complication of councils,
as in our former regal government, or our present republican one. The
law being law because it is the will of the nation, is not changed by
their changing the organ through which they choose to announce their
future will; no more than the acts I have done by one attorney lose
their obligation by my changing or discontinuing that attorney. This
doctrine has been, in a certain degree, sanctioned by the federal
executive. For it is precisely that on which the continuance of
obligation from our treaty with France was established, and the doctrine
was particularly developed in a letter to Gouverneur Morris, written
with the approbation of President Washington and his cabinet. Mercer
once prevailed on the Virginia Assembly to declare a different doctrine
in some resolutions. These met universal disapprobation in this, as well
as the other States, and if I mistake not, a subsequent Assembly
did something to do away the authority of their former unguarded
resolutions. In this case, as in all others, the true principle will
be quite as effectual to establish the just deductions. Before the
revolution, the nation of Virginia had, by the organs they then thought
proper to constitute, established a system of laws, which they divided
into three denominations of, 1. common law; 2. statute law; 3. chancery:
or if you please, into two only, of