great loss. loss. If If your mistress can spare you a little time, your friends here would be very glad to see you, particularly Small and myself, as every thing is now ready for taking the height of this place above the water of the creeks. Fleming's relapse will justly afford you great matter of triumph, after rallying you so much on being in love.

Adieu, dear Page.

P. S. Walker is just arrived he goes out of town on Wednesday, and will return again in about three weeks.

WHETHER CHRISTIANITY IS PART OF THE COMMON LAW?1

[1764?]

In Quare impedit, in C. B. 34. H. 6. fo. 38, the defendant, Bishop of Lincoln, pleads that the church of the plaintiff became void by the death of the incumbent; that the plaintiff and I. S. each pretending a right, presented two several clerks; that the church being thus rendered litigious, he was not obliged, by the ecclesiastical law, to admit either until an inquisition de jure patronatus in the ecclesiastical court; that, by the same law, this inquisition was to be at the suit of either claimant, and was not ex officio to be instituted by the Bishop, and at his proper costs;

'This is printed in the appendix of Jefferson's Reports of Cases Determined in the General Court of Virginia, in the preface of which he states: "I have added also a Disquisition of my own on the most remarkable instance of Judicial legislation that has ever occurred in English jurisprudence or perhaps in any other. It is that of the adoption in mass of the whole code of another nation, and its incorporation into the legitimate system by usurpation of the Judges alone, without a particle of legislative will having ever been called on, or exercised towards its introduction or confirmation."

64

It is not dated, but in his letter to Thomas Cooper of Feb. 10, 1814, Jefferson, in enclosing an abbreviated and somewhat altered copy, as an extract from his Common Place Book, 873," writes of it:

'In my letter of January 16, I promised you a sample from my commonplace book, of the pious disposition of the English judges, to connive at the

that neither party had desired such an inquisition; that six months passed; whereon it belonged to him of right to present as on a lapse, which he had done. The plaintiff demurred. A question was, How far the ecclesiastical law was to be respected in this matter by the Common law court? And Prisot c. 5. in the course of his argument, uses this expression, “à tiels leis que ils de seint eglise ont en ancien scripture, covient à nous à donner credence; car ceo common ley sur quel touts manners leis sont fondés. Et auxy, Sir, nous sumus obligés de conustre lour ley de saint eglise. Et semblablement ils sont obligés de conustre nostre ley, et, Sir, si poit apperer or à nous que l'evesque ad fait come un Ordinary fera en tiel cas, adonq nous devons ceo adjuger bon, ou auterment nemy," etc. It does not appear what judgment was given. Y. B. ubi supra, 3. c. Fitzh. Abr., Qu. imp. 89. Bro. Abr. Qu. imp. 12. Finch mis-states this in the following manner : to such laws of the church as have warrant in holy scripture, our law giveth credence;" and cites the above case, and the words of Prisot in the margin. Finch's law, b l. c. 3. published 1613. Here we find "ancien scripture," converted into "holy scripture," whereas it can only mean the antient written laws of the church. It cannot mean the scriptures, 1st. Because the term antient scripture must then be understood as meaning the Old Testament in contradistinction to the New, and to the exclusion of that; which would be absurd, and contrary to the wish of those who cite this passage to prove that the scriptures, or Christianity, is a part of the common law. 2nd. Because Prisot says, ceo (est) Common ley sur quel touts manners leis sont fondés." Now it is true that the ecclesiastical law,

frauds of the clergy, a disposition which has often rendered them faithful allies in practice. When I was a student of the law, now half a century ago, after getting through Coke Littleton, whose matter cannot be abridged, I was in the habit of abridging and common-placing what I read meriting it, and of sometimes mixing my own reflections on the subject. I now enclose you the extract from these entries which I promised. They were written at a time of life when I was bold in the pursuit of knowledge, never fearing to follow truth and reason to whatever results they led, and bearding every authority which stood in their way. This must be the apology, if you find the conclusions bolder than historical facts and principles will warrant. Accept with them the assurances of my great esteem and respect.”

so far as admitted in England, derives its authority from the common law. But it would not be true that the scriptures so derive their authority. 3rd. The whole case and arguments shew, that the question was, How far the ecclesiastical law in general should be respected in a common law court? And in Bro's Abr. of this case, Littleton says, "les juges del Common ley prendra conusans quid est lex ecclesiae vel admiralitatis et hugus modi." 4th. Because the particular part of the ecclesiastical law then in question, viz. the right of the patron to present to his advowson, was not founded on the law of God, but subject to the modification of the law-giver; and so could not introduce any such general position as Finch pretends. Yet Wingate (in 1658) thinks proper to erect this false quotation into a maxim of the common law, expressing it in the very words of Finch, but citing Prisot. Wing. Max. 3. Next comes Sheppard (in 1675) who states in it the same words of Finch, and quotes the Y. B. Finch and Wingate. 3 Shep. Abr. tit. "Religion." In the case of the King and Taylor, Sir Matthew Hale lays it down in these words; "Christianity is parcel of the laws of England." 1 Ventr. 293. 3 Keb. 607. But he quotes no authority. It was from this part of the supposed common law, that he derived his authority for burning witches. So strong was this doctrine become in 1728, by additions and repetitions from one another, that in the case of the King v. Woolston, the court would not suffer it to be debated, Whether to write against Christianity was punishable in the temporal courts, at common law? saying it had been so settled in Taylor's case, ante, 2 Stra. 834. Therefore Wood, in his Institute, lays it down, that all blasphemy and profaneness are offences by the common law, and cites Strange, ubi supra. Wood, 409. and Blackstone (about 1763) repeats, in the words of Sir Matthew Hale, that "Christianity is part of the laws of England," citing Ventr. and Stra. ubi supra. 4 Bl. 59. Lord Mansfield qualified it a little, by saying in the case of the Chamberlain of London v. Evans, 1767, that "the essential principles of revealed religion are part of the common law." But he cites no authority, and leaves us at our peril to find out what, in the opinion of the judge, and according to the measures of his foot or his faith, are

those essential principles of revealed religion, obligatory on us as a part of the common law. Thus we find this string of authorities, when, examined to the beginning, all hanging on the same hook; a perverted expression of Prisot's; or on nothing. For they all quote Prisot, or one another, or nobody. Thus, Finch quotes Prisot; Wingate also; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court, in Woolston's case, cite Hale; Wood cites Woolston's case; Blackstone that and Hale; and Lord Mansfield, like Hale, ventures it on his own authority. In the earlier ages of the law, as in the Year books for instance, we do not expect much recurrence to authorities by the judges; because, in those days, there were few or none such, made public. But in later times we take no judge's word for what the law is, further than he is warranted by the authorities he appeals to. His decision may bind the unfortunate individual who happens to be the particular subject of it; but it cannot alter the law. Although the common law be termed Lex non scripta, yet the same Hale tells us, "when I call those parts of our laws Leges non scriptæ, I do not mean as if all those laws were only oral, or communicated from the former ages to the latter merely, by word. For all these laws have their several monuments in writing, whereby they are transferred from one age to another, and without which they would soon lose all kind of certainty. They are for the most part extant in records of pleas, proceedings and judgments, in books of reports, and judicial decisions, in tractates of learned men's arguments and opinions, preserved from antient times, and still extant in writing: Hale's Com. Law, 22. Authorities for what is common law, may, therefore, be as well cited as for any part of the lex scripta. And there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities, than the present, where we detect them endeavoring to make law where they found none, and to submit us, at one stroke to a whole system, no particular of which, has its foundation in the common law, or has received the " esto" of the legislaFor we know that the common law is that system of law which was introduced by the Saxons, on their settlement in England, and altered, from time to time, by proper legislative authority, from that, to the date of the Magna Charta, which

tor.

terminates the period of the common law, or lex non scripta, and commences that of the statute law, or lex scripta. This settlement took place about the middle of the fifth century; but Christianity was not introduced till the seventh century; the conversion of the first Christian King of the Heptarchy, having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever, therefore, was adopted into the common law, it must have been between the introduction of Christianity and the date of the Magna Charta. But of the laws of this period, we have a tolerable collection, by Lambard and Wilkins; probably not perfect, but neither very defective; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it; but none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons, to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians; and if, having their laws from that period to the close of the common law, we are able to find among them no such act of adoption; we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was, a part of the common law. Another cogent proof of this truth is drawn from the silence of certain writers on the common law. Bracton gives us a very complete and scientific treatis of the whole body of the common law. He wrote this about the close of the reign of Henry III, a very few years after the date of the Magna Charta. We may consider this book as the more valuable, as it was written about the time which divides the common and statute law; and therefore gives us the former in its ultimate state. Bracton, too, was an ecclesiastic, and would certainly not have failed to inform us of the adoption of Christianity as a part of the common law, had any such adoption ever taken place. But no word of his, which intimates anything like it, has ever been cited. Fleta and Britton, who wrote in the succeeding reign of E. I., are equally