The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Itinerary and Chronology of Thomas Jefferson 1743–1770. 1
• Autobiography 1743–1790
• The Anas 1 1791–1806
• Correspondence and Miscellaneous Writings 1760–1774
• 1760 - to John Harvey 1
• 1762 - to John Page 1
• 1763 - to John Page
• To John Page
• To William Fleming 1
• To John Page
• 1764 - to John Page
• To John Page
• To William Fleming 1
• To John Page
• Whether Christianity Is Part of the Common Law? 1
• 1768 - to Colonel William Preston 2
• 1769 - Resolutions of the Virginia House of Burgesses. 2
• 1770 - to John Page
• Argument In the Case of Howell Vs. Netherland 2
• To Thomas Adams, 1 Merchant
• To Peyton Randolph

TO JOHN PAGE

Devilsburg,1 January 19, 1764.

The contents of your letter have not a little alarmed me; and really, upon seriously weighing them with what has formerly passed between — and myself, I am somewhat at a loss what to conclude; your “semper saltat, semper ridet, semper loquitur, semper solicitat,” &c., appear a little suspicious; but good God! it is impossible! I told you our confab in the Apollo; but I believe I never told you that we had on another occasion. I then opened my mind more freely, and more fully. I mentioned the necessity of my going to England, and the delays which would consequently be occasioned by that. I said in what manner I should conduct myself till then, and explained my reasons, which appears to give that satisfaction I could have wished; in short, I managed in such a manner that I was tolerably easy myself, without doing anything which could give αδνιλεβ’ς friends the least umbrage, were the whole that passed to be related to them. I asked no question which would admit of a categorical answer; but I assured αδνιλεβ that such questions would one day be asked—in short, were I to have an-another interview with him, I could say nothing now which I did not say then; and were I, with a view of obtaining one, licentiam solicitandi aliis, quibus degit postulare, it would be previously necessary to go the rounds cum custodibus; and after all this, he could be in no other situation than he is at present. After the proofs I have given of my sincerity, he can be under no apprehension of a change in my sentiments; and were I to do as my friends advise me, I would give no better security than he has at present. He is satisfied that I shall make him an offer, and if he intends to accept of it, he will disregard those made by others; my fate depends on αδνιλεβ’ς present resolutions, by them I must stand or fall—if they are not favorable to me, it is out of my power to say anything to make them so which I have not said already; so that a visit could not possibly be of the least weight, and it is, I am sure, what he does not in the least expect. I hear you are courting F—y B—l,1 but shall not listen to it till I hear it from you. When I was up the country, I wrote a letter to you, dated Fairfield, Dec. 25, 1763; let me know if you have received such a one. As I suppose you do not use your Statutes of Britain, if you can lend them to me, till I can provide myself with a copy, it will infinitely oblige me. Adieu, dear Page.

TO JOHN PAGE

Devilsburg, January 23, 1764.

Dear Page,

—I received your letter of Wednesday, the 18th instant; in that, of this day, you mention one which you wrote last Friday, and sent by the Secretary’s boy; but I have neither seen nor heard of such a one. God send, mine of Jan 19 to you may not have shared the same fate; for, by your letter, I am uncertain whether you have received it or not; you therein say, “you hope to have received an answer from me by this time,” by which I judge it has miscarried; but you mention mine of Dec 25, which put me in spirits again, as I do not know how you should have got intelligence that I had wrote such a one, unless you had seen my letter of Jan. 19, in which it was mentioned—yes, there is one other way by which you might have received such intelligence. My letter of Jan. 19 may have been opened, and the person who did it may have been further incited by curiosity, to ask you if you had received such a letter as they saw mentioned therein; but God send, and I hope this is not the case. Sukey Potter, to whom I sent it, told me yesterday she delivered it to Mr. T. Nelson, the younger, who had delivered it to you—I hope with his own hand. I wish I had followed your example, and wrote it in Latin, and that I had called my dear campana in die instead of αδνιλεβ.

We must fall on some scheme of communicating our thoughts to each other, which shall be totally unintelligible to every one but to ourselves. I will send you some of these days Shelton’s Tachygraphical Alphabet, and directions. Jack Walker is engaged to Betsey Moore, and desired all his brethren might be made acquainted with his happiness. But I hear he will not be married this year or two. Put campana in die in mind of me; tell him I think as I always did. I have sent my horses up the country, so that it is out of my power to take even an airing on horseback at any time. My paper holds out no longer, so must bid you adieu.

TO WILLIAM FLEMING1

Wmsburg, March 20, 1764, 11 o’clock at night.

Dear Will:

—As the messenger who delivered me your letter, informs me that your boy is to leave town tomorrow morning I will endeavor to answer it as circumstantially as the hour of the night, and a violent headach, with which I have been afflicted these two days, will permit. With regard to the scheme which I proposed to you some time since, I am sorry to tell you it is totally frustrated by Miss R. B’s marriage with Jacquelin Ambler, which the people here tell me they daily expect: I say the people here tell me so, for (can you believe it?) I have been so abominably indolent as not to have seen her since last October, wherefore I cannot affirm that I knew it from herself, though am as well satisfied that it is true as if she had told me. Well, the Lord bless her I say! but S—y P—r is still left for you. I have given her a description of the gentleman who, as I told her, intended to make her an offer of his hand, and asked whether or not he might expect it would be accepted. She would not determine till she saw him or his picture. Now Will, as you are a piece of a limner I desire that you will seat yourself immediately before your looking-glass and draw such a picture of yourself as you think proper: and if it should be defective, blame yourself (mind that I mentioned no name to her). You say you are determined to be married as soon as possible: and advise me to do the same. No, thank ye; I will consider of it first. Many and great are the comforts of a single state, and neither of the reasons you urge can have any influence with an inhabitant and a young inhabitant too of Wmsburgh. Who told you that I reported you was courting Miss Dandridge and Miss Dangerfield? It might be worth your while to ask whether they were in earnest or not. So far was I from it that I frequently bantered Miss J—y T—o1 about you, and told her how feelingly you spoke of her. There is scarcely anything going on here. You have heard I suppose that J. Page is courting Fanny Burwell. W. Bland, and Betsey Yates are to be married thursday se’nnight. The Secretary’s son is expected in shortly. Willis has left town intirely so that your commands to him cannot be executed immediately, but those to the ladies I shall do myself the pleasure of delivering tomorrow night at the ball. Tom: Randolph of Tuckahoe has a suit of Mecklenburgh silk which he offers me for a suit of broadcloth. Tell him that if they can be altered to fit me, I will be glad to take them on them terms, and if they cannot, I make no doubt but I can dispose of them here to his advantage. Perhaps you will have room to bring them in your portmanteau, or can contrive them down by some other opportunity. Let him know this immediately. My head achs, my candle is just going out, and my boy asleep, so must bid you adieu.

TO JOHN PAGE

Devilsburg, April 9th, 1764.

Dear Page,

—This letter will be conveyed to you by the assistance of our friend Warner Lewis. Poor fellow! never did I see one more sincerely captivated in my life. He walked to the Indian camp with her yesterday, by which means he had an opportunity of giving her two or three love squeezes by the hand; and, like a true arcadian swain, has been so enraptured ever since, that he is company for no one. B—y1 has at last bestowed her hand on B—d; and whether it was for money, beauty, or principle, will be so nice a dispute, that no one will venture to pronounce. Two days before the wedding I was not a little surprised, on going to the door at my house, to see him alight from his horse. He stepped up to me, and desired the favour of me to come to Mr. Yates’ at such a time. It was so unexpected, that for some time I could make no reply; at last I said “yes,” and turned about and walked back into my room. I accordingly attended, and to crown the joke, when I got there, was dubbed a bridesman. There were many other curious circumstances too tedious to mention here. Jack Walker is expected in town to-morrow. How does your pulse beat after your trip to the Isle of Wight? What a high figure I should have cut, had I gone! When I heard who visited you there, I thought I had met with the narrowest escape in the world. I wonder how I should have behaved—I am sure I should have been at a great loss. 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; 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, 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 legislator. For 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 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 silent. So also is Glanvil, an earlier writer than any of them, to wit, temp. H. 2.; but his subject, perhaps, might not have led him to mention it. It was reserved for Finch, five hundred years after, in the time of Charles II., by a falsification of a phrase in the Year book, to open this new doctrine, and for his successors to join full-mouth in the cry, and give to the fiction the sound of fact. Justice Fortescue Aland, who possessed more Saxon learning than all the judges and writers before mentioned put together, places this subject on more limited ground. Speaking of the laws of the Saxon Kings, he says, “the ten commandments were made part of their law, and consequently were once part of the law of England; so that to break any of the ten commandments, was then esteemed a breach of the common law of England; and why it is not so now, perhaps, it may be difficult to give a good reason.” Pref. to Fortescue’s Rep. xvii. The good reason is found in the denial of the fact.

Houard, in his Coutumes Anglo-Normandes, 1. 87, notices the falsification of the laws of Alfred, by prefixing to them, four chapters of the Jewish law, to wit, the 20th, 21st, 22nd and 23rd chapters of Exodus; to which he might have added the 15th of the Acts of the Apostles, v. 23 to 29, and precepts from other parts of the scripture. These he calls Hors d’œuvre of some pious copyist. This awkward monkish fabrication, makes the preface to Alfred’s genuine laws stand in the body of the work. And the very words of Alfred himself prove the fraud; for he declares in that preface, that he has collected these laws from those of Ina, of Offa, Aethelbert and his ancestors, saying nothing of any of them being taken from the scripture. It is still more certainly proved by the inconsistencies it occasions. For example, the Jewish legislator, Exodus, xxi. 12, 13, 14, (copied by the Pseudo Alfred § 13) makes murder, with the Jews, death. But Alfred himself, Ll. ccvi. punishes it by a fine only, called a weregild, proportioned to the condition of the person killed. It is remarkable that Hume (Append. I. to his history) examining this article of the laws of Alfred, without perceiving the fraud, puzzles himself with accounting for the inconsistency it had introduced. To strike a pregnant woman, so that she die, is death by Exod. xxi. 22, 23, and pseud. Alfr. § 18. But by the Ll. Alfred ix. the offender pays a weregild for both the woman and child. To smite out an eye or a tooth, Exod. xxi. 24–27. Pseud. Alfred. § 19, 20, if of a servant by his master, is freedom to the servant; in every other case, retaliation. But by Alfred Ll. xl. a fixed indemnification is paid. Theft of an ox or a sheep, by the Jewish law, xxii. Exod. 1. was repaid five fold for the ox, and four fold for the sheep; by the Pseudograph § 24, double for the ox and four fold for the sheep. But by Alfred Ll. xvi. he who stole a cow and calf, was to repay the worth of the cow, and 40s. for the calf. Goring by an ox, was the death of the ox, and the flesh not to be eaten; Exod. xxi. 28. Pseud. Alfr. § 21. By Ll. Alfr. xxiv. the wounded person had the ox. This Pseudograph makes municipal laws of the ten commandments: § 1–10, regulate concubinage; § 12, makes it death to strike, or to curse father or mother; § 14, 15, give an eye for an eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe; § 19, sells the thief to repay his theft; § 24, obliges the fornicator to marry the woman he has lain with; § 29, forbids interest on money; § 28, 35, make the laws of bailment, and very different from what Lord Holt delivers in Coggs v. Bernard, and what Sir William Jones tells us they were; and punishes witchcraft with death, § 30, which Sir Matthew Hale 1. P. C. ch. 33, declares was not a felony before the stat. 1. Jac. c. 12. It was under that statute, that he hung Rose Cullender, and Amy Duny, 16. Car. 2. (1662) on whose trial he declared, “that there were such creatures as witches, he made no doubt at all; for 1st. The scriptures had affirmed as much. 2nd. The wisdom of all nations had provided laws against such persons—and such hath been the judgment of this kingdom, as appears by that act of parliament which hath provided punishments proportionable to the quality of the offence.” And we must certainly allow greater weight to this position “that it was no felony till James’s statutes,” deliberately laid down in his H. P. C., a work which he wrote to be printed and transcribed for the press in his lifetime, than to the hasty scriptum, that “at common law, witchcraft was punished with death as heresy, by writ de heretico comburendo,” in his methodical summary of the P. c. pa. 6.; a work “not intended for the press, nor fitted for it and which he declared himself he had never read over since it was written.” Preface. Unless we understand his meaning in that to be, that witchcraft could not be punished at common law as witchcraft, but as a heresy. In either sense, however, it is a denial of this pretended law of Alfred. Now all men of reading know that these pretended laws of homicide, concubinage, theft, retaliation, compulsory marriage, usury, bailment, and others which might have been cited from this Pseudograph, were never the laws of England, not even in Alfred’s time; and of course, that it is a forgery. Yet, palpable as it must be to a lawyer, our judges have piously avoided lifting the veil under which it was shrouded. In truth, the alliance between church and state in England, has ever made their judges accomplices in the frauds of the clergy; and even bolder than they are; for instead of being contented with the surreptitious introduction of these four chapters of Exodus, they have taken the whole leap, and declared at once that the whole Bible and Testament, in a lump, make a part of the common law of the land; the first judicial declaration of which was by this Sir Matthew Hale. And thus they incorporate into the English code, laws made for the Jews alone, and the precepts of the gospel, intended by their benevolent author as obligatory only in foro conscientiæ; and they arm the whole with the coercions of municipal law.1 They do this, too, in a case where the question was, not at all, whether Christianity was a part of the laws of England, but simply how far the ecclesiastical law was to be respected by the common law courts of England, in the special case of a right of presentment. Thus identifying Christianity with the ecclesiastical law of England.

[1 ]A playful name for Williamsburg.

[1 ]Fanny Burwell, sister of Jefferson’s flame.

[1 ]From the Southern Literary Messenger, iii., 305.

[1 ]Jenny Taliaferro.

[1 ]See page 451.

[1 ]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.”

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 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.”

[1 ]In the already alluded to copy of this, sent to Thomas Cooper in 1814, the remainder of this, by what is clearly a long subsequent interpolation, is made to read as follows:

“In doing this, too, they have not even used the Connecticut caution of declaring, as is done in their blue laws, that the laws of God shall be the laws of their land, except where their own contradict them; but they swallow the yea and nay together. Finally, in answer to Fortescue Aland’s question why the ten commandments should not be a part of the common law of England? we may say they are not because they never were made so by legislative authority, the document which has imposed that doubt on him being a manifest forgery.”