It was decreed the new acquired slaves did not pass under the will, by the opinions of Lee, Burwell, Fairfax, Page and Wythe's reply, as to its new matter, was confined principally to Harrison's case, shewing that the residuary clause in that case was expressed so peculiarly as to ex- Wormley, against the Secretary T. Nelclude the slaves which came to the testator son, and Byrd. The Governor gave no afterwards, and that the court went on that opinion. exclusion. 72 APPENDIX. Whether Christianity is a Part of the Common Law? prendra conusans quid est lex ecclesiae vel admiralitatis et hujus 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 it in 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 tempora 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 In Quare impedit, in C. B. 34. H. 6. fo. | Littleton says 'les juges del Common ley 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, 'a tels leis que ils de seint eglise ont en ancien scripture, covient a nous a donner credence; car ceo common ley sur quel touts manners leis sont fond s. Et auxy, Sir, nous sumus obliges de conustre lour ley de saint eglise et semblablement ils sont obliges de conustre nostre ley, et, Sir, si poit apperer or a nous que l'evesque ad fait come un Ordinary fera en tiel cas, adonq nous devons ceo adjuger bon, ou auterment nemy,' &c. 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. 1. c. 3. published 1613. it a little, by saying, in the case of the 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 138 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 fondes.' Now it is true that the ecclesias- 139 tical 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, 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 measure 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 nor 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, that one stroke to a whole system, no particle 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; 140 *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 treaties 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 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 any thing 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 then 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 fullmouthed 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, I. 87, notices the falsification of the laws of Alfred, by prefixing to 141 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'oeuvre 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. | of this kingdom, as appears by that act For example, the Jewish legislator, Ex- of parliament which hath provided punishodus, xxi. 12, 13, 14, (copied by the Pseudo ments proportionable to the quality of the Alfred & 13.) makes murder, with the Jews, offence.' And we must certainly allow death. But Alfred himself Ll. xxvi. pun- greater weight to this position that it ishes it by a fine only, called a weregild, was no felony till James's statutes,' delibproportioned to the condition of the person erately laid down in his H. P. C., a work killed. It is remarkable that Hume (Ap- which he wrote to be printed and tranpend. I. to his History) examining this scribed for the press in his lifetime, than article of the laws of Alfred, without per- to the hasty scriptum, that 'at common ceiving the fraud, puzzles himself with law, witchcraft was punished with death accounting for the inconsistency it had as heresy, by writ de heretico comburendo,' introduced. To strike a pregnant woman, in his methodical summary of the P. C. pa. so that she die, is death by Exod. xxi. 22. 6.; a work 'not intended for the press, nor 23. and Pseud. Alfr. 18. But by the L1. fitted for it and which he declared himself Alfred ix. the offender pays a weregild for he had never read over since it was writboth the woman and child. To smite out ten.' Preface. Unless we understand his an eye or a tooth, Exod. xxi. 24-27. Pseud. meaning in that to be, that witchcraft Alfred. 19, 20, if of a servant by his could not be punished at common law as master, is freedom to the servant; in every witchcraft, but as a heresy. In either other case, retaliation. But by Alfred Ll. sense, however, it is a denial of this prexl. a fixed indemnification is paid. Theft tended law of Alfred. Now all men of of an ox or a sheep, by the Jewish law, reading know that these pretended laws of xxii. Exod. 1. was repaid five fold for the homicide, concubinage, theft, retaliation, ox, and four fold for the sheep; by the compulsory marriage, usury, bailment, and Pseudograph 24, double for the ox, and others which might have been cited from four fold for the sheep. But by Alfred L1. this Pseudograph, were never the laws of xvi. he who stole a cow and calf, was to England, not even in Alfred's time; and of repay the worth of the cow, and 40s. for course, that it is a forgery. Yet, palpable the calf. Goring by an ox, was the death as it must be to a lawyer, our judges have of the ox, and the flesh not to be eaten; piously avoided lifting the veil under Exod. xxi. 28; Pseud. Alfr. 21. By Ll. which it was shrouded. In truth, the Alfr. xxiv. the wounded person had the alliance between church and state in EngΟΧ. This Pseudograph makes municipal land, has ever made their judges accomlaws of the ten commandments: 1-10, plices in the frauds of the clergy; and even regulate concubinage; 12, makes it death bolder than they are; for instead of being to strike, or to curse father or mother; contented with the surreptitious introduc14, 15, give an eye for an eye, tooth for tion of these four chapters of Exodus, they tooth, hand for hand, foot for foot, burn- have taken the whole leap, and declared at ing for burning, wound for wound, stripe once that the whole Bible and Testament, for stripe; 19, sells the thief to repay his in a lump, make a part of the common law theft; 24, obliges the fornicator to marry of the land; the first judicial declaration of the woman he has lain with; 29, forbids which was by this Sir Matthew Hale. interest on money; 28, 35, make the laws thus they incorporate into the English of bailment, and very different from what code, laws made for the Jews alone, and Lord Holt delivers in Coggs v. Bernard, the precepts of the gospel, intended by their and what Sir William Jones tells us they benevolent author as obligatory only in foro were; and punishes witchcraft with death, conscientiæ; and they arm the whole with 30, which Sir Matthew Hale 1 P. C. ch. the coercions of municipal law. They do 33, declares was not a felony before the this, too, in a case where the question was, stat. 1, Jac. c. 12. It was under that stat- not at all, whether Christianity was a part ute, that he hung Rose Cullender, and of the law of England, but simply how far 142 Amy Duny, 16 Car. 2. (1662) *on the ecclesiastical law was to be respected whose trial he declared, 'that there by the common law courts of England, in were such creatures as witches, he made no the special case of a right of presentment. doubt at all; for 1st. The scriptures had Thus identifying Christianity with the affirmed so much. 2nd. The wisdom of all ecclesiastical law of England. nations had provided laws against such persons and such hath been the judgment | 75 And TH: JEFFERSON. |