James Monroe Assists in Publishing the First Essay on the Impact of the American Revolution on U.S. Law: “How Far the Common Law of England is the Common Law of the United States”

St. George Tucker was an officer in the Revolutionary War, rising to the rank of lieutenant-colonel at Yorktown. He married Frances Bland, a Virginia blue blood and cousin of Thomas Jefferson by her first marriage. After the war Tucker was a delegate from Virginia to the Annapolis Convention that called for the Constitutional Convention. He practiced law and then became a law professor at the College of William and Mary, succeeding Signer George Wythe. In 1804 Tucker would become president judge of the Virginia Court of Appeals and was later appointed a Federal court judge by President Madison. A noted legal scholar and author, Tucker published an annotated edition of “Blackstone’s Commentaries” and an essay “How Far the Common Law of England is the Common Law of the United States”, which assessed the impact of the American Revolution on law in the United States. As Tucker wrote explaining the purpose of this work, “My present purpose, therefore is…to enquire, how far the common law of England, is the law of the federal government of the United States? A question has lately been agitated, whether the common, or, unwritten law of England, has been adopted in America, by the establishment of the constitution of the United States; or, in other words, how far the laws of England, both civil and criminal, make a part of the law of the American States, in their united and national capacity.”

After the Revolution, James Monroe studied law, taking Thomas Jefferson as his mentor. He was elected to the Virginia Assembly in 1782 and then served on the Council of State, which advised the governor. Elected to the Continental Congress in 1783, Monroe worked for expanding the power of Congress, organizing government for the western country, and protecting American navigation on the Mississippi River. A year after the ratification of the U.S. Constitution, in 1790, the state legislature appointed him to the U.S. Senate. There he joined with Madison and Jefferson, with whom he had become friendly in the mid-1780s, to oppose the Federalist policies championed by Vice President John Adams and Secretary of the Treasury Alexander Hamilton. In 1794, President George Washington sent Monroe to Paris as U.S. minister to France. It was an eventful appointment that lasted two years. Out of power momentarily when recalled from France, Monroe returned to Virginia to practice law and attend to his plantations. He was elected governor in 1799 and worked vigorously in support of public education and the election of Thomas Jefferson as President in 1800.

Tucker asked Monroe to read his essay, for which Tucker had yet to find a publisher, and as an attorney Monroe found it stimulating. This is his review on the very important topic Tucker had undertaken to explicate, and his suggestion on how to get it published.

Autograph letter signed, as Governor, Richmond, July 12, 1800, to Tucker. “Immediately on your leaving Richmond I procured the manuscript you authorized me to peruse on the question whether the common law Of England is in force under the Constitution of the United States, and can assure you I was highly gratified by the perusal of it. I think it an excellent essay on that subject & likely to produce a considerable effect, especially with the more enlightened part of the community. It is the first regular analysis I have seen of the change wrought by our revolution on the feudal institutions of Europe, tending to show how complete that revolution was in the principles of our government and legislation. The pamphlet will I think be read generally and referred to in some views as authority in our courts. The only defect I see in it is that it does not in some cases pursue the illustration as far as it might, and ought for many of those who will read it. Some it is true will take the ideas & carry it through without further aid, but others may not be able to do it. This however may be corrected in a republication hereafter, if indeed the objection is a sound one. I returned the paper as soon as I had read it, and being much engaged with public & private concerns since, have not heard in what advance the impression is. It is said the person entrusted with the printing it is to go to the federal town, in consequence whereof that duty may perhaps be neglected. If you will be pleased to direct the delivery of it to Major Coleman, the publication will be attended to. I leave town tomorrow for a short time, but will apprize that gentleman of the possibility of such a commission, and will attend to the discharge of it on my return in case it takes effect.”

The essay was in fact published.