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

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.

TO COLONEL WILLIAM PRESTON2

Staunton, Aug. 18, 1768.

Dear Sir,

—I sit down to petition your suffrage in favor of a friend whose virtues and abilities have made him much to me, and will give him equal place in your esteem whenever you have an opportunity of becoming acquainted with them. The gentleman I speak of is the Rev. James Fontaine, who offers himself as a candidate for the place of chaplain to the House of Burgesses. I do not wish to derogate from the merit of the gentleman who possessed the office last, but I cannot help hoping that every friend of genius, when the other qualities of the competitors are equal, will give a preference to superior abilities; integrity of heart and purity of manners recommend Messrs. Price and Fontaine equally to our esteem, but in acuteness of penetration, accuracy of judgement, elegance of composition, propriety of performing the divine service, and in every work of genius, the former is left a great distance behind the latter. I do not ask your favor on a bare assurance of this from me, but from that knowledge of Mr. Fontaine’s superiority, which you will obtain on enquiring of others. I have heard that the other has been possessed of the office; an argument which with you will need no confutation. These small preferments should be reserved to reward and encourage genius, and not be strowed with an indiscriminating hand among the common herd of competitors.1

RESOLUTIONS OF THE VIRGINIA HOUSE OF BURGESSES.2

Monday, the 8th of May, 9th GEO. III., 1769.

Resolved, Nemine contradicente, That a most humble and dutiful Address be presented to his Excellency the Governor, returning Thanks for his very affectionate Speech at the Opening of the Session;

Expressing our firm Attachment to his Majesty’s sacred Person and Government, and a lively Sense of his Royal Favour, manifested by frequent Approbations of our former Conduct; by extending his Paternal Regard to all his Subjects, however remote; and, by his gracious Purpose, that our Chief Governor shall, in future, reside among us;

Declaring, that we esteem, as a peculiar Mark of his Attention to our Happiness, the Appointment of his Lordship to preside over this Colony; and, that his Virtues and Abilities, manifested ever since his Arrival here, are to us the firmest Assurance, that Wisdom and Benevolence will distinguish his Administration;

Joining, in Congratulations on the Birth of another Princess, and the happy Restoration of her Majesty’s Health;

Assuring his Excellency, that we shall, with Candour, proceed to the important Business on which we are met in General Assembly; and that, if in the Course of our Deliberations, any Matters shall arise, which may in any wise affect the Interests of Great-Britain, these shall ever be discussed on this ruling Principle, that her Interests, and ours, are inseparably the same; And finally, offering our Prayers, that Providence, and the Royal Pleasure, may long continue his Lordship the happy Ruler of a free and happy People.

TO JOHN PAGE

Charlottesville, Feb. 21, 1770.

Dear Page,

—I am to acquaint Mrs. Page of the loss of my favorite pullet; the consequence of which will readily occur to her. I promised also to give her some Virginia silk which I had expected, and I begin to wish my expectation may not prove vain. I fear she will think me but an ungainly acquaintance. My late loss may perhaps have reached you by this time; I mean the loss of my mother’s house by fire, and in it of every paper I had in the world, and almost every book. On a reasonable estimate I calculate the cost of the books burned to have been £200 sterling. Would to God it had been the money, then had it never cost me a sigh! To make the loss more sensible, it fell principally on my books of Common Law, of which I have but one left, at that time lent out. Of papers too of every kind I am utterly destitute. All of these, whether public or private, of business or of amusement, have perished in the flames. I had made some progress in preparing for the succeeding General Court; and having, as was my custom, thrown my thoughts into the form of notes, I troubled my head no more with them. These are gone, and like the baseless fabric of a vision, leave not a trace behind. The records also, and other papers which furnished me with states of the several cases, having shared the same fate, I have no foundation whereon to set out anew. I have in vain attempted to recollect some of them; the defect sometimes of one, sometimes of more circumstances, rendering them so imperfect that I can make nothing of them. What am I to do then in April? The resolution which the Court has declared of admitting no continuances of causes seemed to be unalterable; yet it might surely be urged, that my case is too singular to admit of their being often troubled with the like excuse. Should it be asked, what are the misfortunes of an individual to a Court? The answer of a Court, as well as of an individual, if left to me, should be in the words of Terence, “homo sum; humani nil a me alienum uto”—but a truce with this disagreeable subject.

Am I never more to have a letter from you? Why the devil don’t you write? But I suppose you are always in the moon, or some of the planetary regions. I mean you are there in idea; and, unless you mend, you shall have my consent to be there de facto; at least during the vacations of the Court and Assembly. If your spirit is too elevated to advert to sublunary subjects, depute my friend Mrs. Page to support your correspondences. Methinks I should, with wonderful pleasure, open and peruse a letter written by so fair, and (what is better) so friendly hands. If thinking much of you would entitle me to the civility of a letter, I assure you I merit a very long one. If this conflagration, by which I am burned out of a home, had come before I had advanced so far in preparing another, I do not know but I might have cherished some treasonable thoughts of leaving these my native hills; indeed I should be much happier were I nearer to Rosewell and Severn hills—however, the Gods, I fancy, were apprehensive that if we were placed together, we should pull down the moon, or play some such devilish prank with their works. I reflect often with pleasure on the philosophical evenings I passed at Rosewell in my last visits there. I was always fond of philosophy, even in its drier forms; but from a ruby lip, it comes with charms irresistible. Such a feast of sentiment must exhilarate and lengthen life, at least as much as the feast of the sensualist shortens it—in a word, I prize it so highly, that, if you will at any time collect the same Belle Assemblée, on giving me three days previous notice, I shall certainly repair to my place as a member of it. Should it not happen before I come down, I will carry Sally Nicholas in the green chair to Newquarter, where your periagua (how the — should I spell that word?) will meet us, automaton-like, of its own accord. You know I had a wagon which moved itself—cannot we construct a boat then which shall row itself? Amicus noster Fons,1quo modo agit, et quid agit? You may be all dead for anything we can tell here. I expect he will follow the good old rule of driving one passion out by letting another in. Clavum clavo pangere was your advice to me on a similar occasion. I hope you will watch his immersion as narrowly as if he were one of Jupiter’s satellites; and give me immediate notice, that I may prepare a dish of advice. I do not mean, Madam, to advise him against it. On the contrary, I am become an advocate for the passion; for I too am cœlo tactus, Currus1bene se habet. He speaks thinks, and dreams of nothing but his young son. This friend of ours, Page, in a very small house, with a table, half a dozen chairs, and one or two servants, is the happiest man in the universe. Every incident in life he so takes as to render it a source of pleasure. With as much benevolence as the heart of man will hold, but with an utter neglect of the costly apparatus of life, he exhibits to the world a new phenomenon in philosophy—the Samian sage in the tub of the cynic. Name me sometimes homunculo tuo, not forgetting little dic mendacium. I am determined not to enter on the next page, lest I should extend this nonsense to the bottom of that also. A dieu je vous commis, not doubting his care of you both.

[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.”

[2 ]From the original in the possession of Dr. Thomas Addis Emmet, of New York.

[1 ]This application met with no success, Rev. Thomas Price being continued in office.

[2 ]From the Journal of the House of Burgesses for 1769, p. 4. It is the first of Jefferson’s public papers, and in a letter to Wirt (Aug. 5, 1815) he writes of it: “On receiving the Governor’s [Botetourt] speech it was usual to move resolutions as heads to an address. Mr. Pendleton asked me to draw the resolutions which I did. They were accepted by the House, and Pendleton, Nicholas, myself and some others were appointed a committee to prepare the address. The committee desired me to do it, but when presented it was thought to pursue too strictly the diction of the resolutions, and that their subjects were not amplified. Mr. Nicholas chiefly objected to it, and was desired by the committee to draw one more at large, which he did with amplification enough, and it was accepted. Being a young man as well as a young member, it made on me an impression proportioned to the sensibility of that time of life.”

[1 ]Probably Mr. William Fontaine, of Hanover County.

[1 ]By this term, he no doubt designated Mr. Dabney Carr, his brother-in-law.