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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.

to authorities by the judges; because, in | system of religion could not be a part of those days, there were few or none such, the common law, because they were not yet made public. But in later times we take Christians; and if, having their laws from 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; *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

140

Houard, in his Coutumes Anglo-Normandes, I. 87, notices the falsification of 141

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'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 Engox. 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. And 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

TH: JEFFERSON.

INDEX.

Act of Assembly, at what time it commences, | Servants, Indian, 109.
8.

Act of 1727, c. 11, if retrospective, 73.
Appeal, where allowable, 8.

Attachment, on what may be levied, 58.
Bond or free, who are, 87, 90, 109.
Breach of prison, where sheriff liable for, 49.
Churches of Virginia, of what nature, 103.
Clergy of Virginia, who may present, induct,
visit, deprive, 107.

Commissionating, what amounts to, 9.
Deprivation of clerk, by whom may be, 99.
Distribution by husband, administrator to
his wife, 72.

Donation of churches in Virginia, in whom,
107.

Ecclesiastical jurisdiction in Virginia, if in
General Court, 96.

Escape, who answerable for, 49, 59.

Evidence, what shall be, 51, 58.

Farm of office, 59.

Feme, privy acknowledgment of, 62.

Free or bond, who are, 87, 90, 109.

Fresh pursuit, 49.

Gates on the highway, 50.

General Court, jurisdiction of, when sums

below £10. 24.

ecclesiastical jurisdiction of,
96.

Grants elder and younger, what gives pref-
erence to latter, 30.

Highway, obstructions of, 50.

Husband, administrator of wife, if subject to
distribution, 72.

Importation, what is, 8.

Increase of stock, to whom shall go, 123.

Induction of a clerk, in whom, 99.

Joinder in action, 56.

Lapse of lands, evidence on, 10.

of infants before 11 Ann. c.
4, 18.

seating, within what time
prevents it, 19.

Length of time, 15.

[blocks in formation]

Mulatto, to what time shall serve,

87.

where binding necessary,
87.

if alienable, 87, 90.

how they pass on death of

master, 91.

what entitled to, 88.
Survey of lands, how far essential, 30.
Statute 5 G. 2, 58.

Statutes English, which in force here, 60.
Sheriff's office, whether it may be farmed, 59.
deputy, if quit-rents, levies &c., be
discounted with by his creditor,
whether the latter be chargeable
therefor to the sheriff, 14.

Slaves,

who are by law, 90, 109.

what Indians are made so, 109.

what description includes them, 45,

132.

nature of the estate; resemblance

to copyhold, 52, 82.

chattels real, 73.

taille of them when not annexed to
lands, 73.

use of them, may be under statute
of Uses, 72.

of feme in possession, 1, 37.
in action, 72.

tenancy by the courtesy in, whether
could be inter 1705, 73, 85.

increase of, how considered, 5.
unborn, whether they may be be-
queathed, 43.

go with the mother, 67.
in ventre sa mere, 52.

remainder in, limited, 2, 5, 37, 43, 53.
contingent, 52.

reversion of, if younger children
may claim share of value, 86.
residuum of, what it comprehends,
1, 133.

undivided interest in, passes as a
divided one, 1.

value of, where demandable, 52, 86.
at what time, 10.
hotchpot, if it takes place in shar-
ing, 86.

where possession retained to finish
crop, 123.

if during possession for finishing
crop, may be otherwise employed,
129.

who entitled to retain to finish crop,
129.

value, if shared without regard to
former advances, 86.

distribution, if subject to, 73.

acquired after date of will, if they
pass, 132.

devise of, if it passes those acquired
after, 132.

Slaves, assent of executor passes them, 6. | Slaves, who may join in action, 56.
life estate in, what words will con-
vey, 43.

property in conveyed without words
of limitation, 67.

parol gift of, without delivery, 79.
delivery of, if necessary to validate
a parol gift, 79.

detinue for, where the proper action,1.

78

deceit in sale of, 10.

Stock of farm, to wit, cattle and use and in-
crease of, to whom go, 123.

Use of farm stock, what it carries, 123.
Usury, 24.

Visitation of clergy, in whom, 99.
Writ of error, for what sum allowed, 8.

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