The Constitutional Principle: Separation of Church and State
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Is Christianity part of English Common Law

One of the major points of contention between Thomas Jefferson and Joseph Story was on the subject of whether or not Christianity was part of the English Common law.

by Jim Allison


BACKGROUND

Thomas Jefferson as early as perhaps 1764 had decided it wasn't. He had developed his reasoning and had written it in his commonplace book as well as the appendix of Jefferson's Reports of Cases Determined in the General Court of Virginia.

In 1814 and again in 1824 he had written in part or in total his thoughts on the subject in letters to Dr. Thomas Cooper, January 16, 1814; John Adams, January 24, 1814; Dr. Thomas Cooper, February 10, 1814; Maj. John Cartwright, June 5, 1824.


In 1824, the year of Updegraph's case, Thomas Jefferson wrote a letter to the English radical Major John Cartwright. The letter became celebrated because of its attack on the doctrine that Christianity was part and parcel of the law of the land. Separationists used the letter, which had been widely republished, to help support Jefferson's doctrine that "a wall of separation" should exist between church and state. Cartwright had reached the conclusion that no foundation existed for the doctrine of the common law's incorporation of Christianity, because he had a theory that the common law had existed before the Anglo-Saxons knew about Christianity. Jefferson sought to extend his argument. . . Jefferson thought the doctrine [that Christianity was part of the Common Law] was a sort of judicial "forgery"; the judges had "stole this law upon us," he said, describing the doctrine as "the most remarkable instance of Judicial legislation, that has ever occurred in English jurisprudence, or perhaps in any other. "21

FOOTNOTE:

21. Jefferson to Cartwright, June 5, 1824, in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C., 1907, 20 vols.), VOL 15, pp. 48-51. In the appendix to his Reports of Cases Determined in the General Court of Virginia (Charlottesville, 1829), a posthumous publication, Jefferson expanded his letter to Cartwright into a "disquisition" on Christianity and the common law, pp. 137-41, and see preface, p. vi.

Source of Information:

Blasphemy, Verbal Offense against the Sacred from Moses to Salman Rushdie, Leonard W. Levy. The University of North Carolina Press, Chapel Hill & London. (1995) p. 409.


After the unauthorized publication of Jefferson's letter to Major John Cartwright, Professor Edward Everett, a professor at Harvard University, wrote Justice Joseph Story sending him a copy of that published letter. Story, in turn replied back to Everett on September 18th , 1824. The letter contained a weak rebuttal of Jefferson's thinking. Shortly thereafter, Story wrote a longer more detailed rebuttal of Jefferson's position but for whatever reason withheld it well after Jefferson's death, when it was finally published as "Christianity a part of the Common Law" by Joseph Story, in The American Jurist and Law Magazine, 9 (April 1833): 346-348.


Justice Joseph Story of the United States Supreme Court, a devout Unitarian who believed that Christianity bulwarked the social order, deplored Jefferson's view that Christianity was not part of the common law. Parliamentary law had fixed the death penalty for heresy, and many statutes had been enacted to enforce Christian rites and doctrines, Story observed.22 He was right, but proved nothing as to the question whether the common law, as distinguished from statutory and ecclesiastical law, embodied Christianity.

In a short piece in American jurist, published in 1833, Story expanded his argument against Jefferson. In an effort to disprove Jefferson, Story contended first that "ancien scripture" had in fact referred to the Bible, not just old church law. But that was a silly conclusion, because the case in which Prisot had made the statement translated by Finch involved an advowson or ecclesiastical office, about which the Bible says nothing but the church law says a great deal. Story stood on firmer ground when observing that the formative common-law cases did not rely on Prisot or Finch, but Jefferson never said that they did. Story stood on the firmest ground when adding that Christianity had the support of the common law in the enforcement of laws establishing the Church of England, and that the common law regarded reviling the establishment as a criminal libel.23 Nevertheless, that fact took for granted the point to be proved: whether reviling was criminal because Christianity was part of the common law.

The doctrine did not mean that anyone was lawfully obligated to believe Christianity. Story claimed that he took its "true sense . . . to be no more than that Christianity is recognized as true, and as the established religion of England."24 But if it meant only that, it would have slight foundation in the United States, given the First Amendment and the fact that the last state religious establishment died in 1833. If the doctrine meant only that the moral teachings of Christianity underlay the common law, no justification existed for not sustaining the moral teachings of other religions, let alone of Christian sects that repudiated Church of England doctrines and rites. What the doctrine meant was by no means clear, and Story's assault on Jefferson's criticism hardly justified the opinion of an American state court in reading the English doctrine into its common law.

In an 1844 opinion for the court, Story mentioned that that doctrine was part of Pennsylvania's common law. But its truth, he added, must be qualified, because the state constitution completely protected every variety of opinion on religion, including infidelity. "So that we are compelled to admit, that although Christianity be a part of the common law of the State, yet it is so in this qualified sense,-that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public." That, he added, was the holding in Updegraph.25 Thus, in the end, Story's support of the doctrine boiled down to its being the basis for prosecuting blasphemy, a subject on which anything he said was obiter dictum.

Because Jefferson opposed prosecutions for blasphemy, he attacked the doctrine, as Story supported it to justify them. . .

FOOTNOTES:

22. Story to Edward Everett, Sept. 15, 1824, in William Wetmore Story, The Life and Letters of Joseph Story (Boston, 1851, 2 vols.), Vol. 1, p. 430.

23. Ibid., pp. 431-33, reprints Story's piece.

24. Story to Everett, Sept. 15, 1824, in ibid., P. 430.

25. Vidal v. Mayor of Philadelphia, 2 Howard 127, 198 (1844).

Source of Information:

Blasphemy, Verbal Offense against the Sacred from Moses to Salman Rushdie, Leonard W. Levy. The University of North Carolina Press, Chapel Hill & London. (1995) p. 410-11.

For a more in depth treatment of this topic see:

Blasphemy, Verbal Offense against the Sacred from Moses to Salman Rushdie, Leonard W. Levy. The University of North Carolina Press, Chapel Hill & London. (1995) pp.400-424)


This (Whether Christianity is Part of the Common Law?) 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 toward its introduction or confirmation."

Source of Information:

The Writings of Thomas Jefferson, Edited by Paul Leicester Ford, 1895 - ten vols. Vol. 1, page 360.

Whether Christianity is Part of the Common Law?*

(1764?)

* 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 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 menifest forgery."


JANUARY 16, 1814

MONTICELLO, January 16, 1814.

DEAR SIR,--Your favor of November 8th, if it was rightly dated, did not come to hand till December 13th, and being absent on a long journey, it has remained unanswered till now. The copy of your introductory lecture was received and acknowledged in my letter of July 12, 1812, With which I Sent you Tracy's first volume on Logic. Your Justinian came safely also, and I have been constantly meaning to acknowledge it, but I wished, at the same time, to say something more. I possessed Theopilus', Vinnius' and Harris' editions, but read over your notes and the addenda et corrigenda, and especially the parallels with the English law, with great satisfaction and edification. Your edition will be very useful to our lawyers, some of whom will need the translation as well as the notes. But what I had wanted to say to you on the subject, was that I much regret that instead of this work, useful as it may be, you had not bestowed the same time and research rather on a translation and notes on Bracton, a work which has never been performed for us, and which I have always considered as one of the greatest desiderata in the law. The laws of England, in their progress from the earliest to the present times, may be likened to the road of a traveller, divided into distinct stages or resting places, at each of which a review. is taken of the road passed over so far. The first of these was Bracton's De legibus Angliae; the second, Coke's Institutes; the third, the Abridgment of the law by Matthew Bacon; and the fourth, Blackstone's Commentaries. Doubtless there were others before Bracton which have not reached us. ALfred, in the preface to his laws, says they were compiled from those of Ina, Offa, and Aethelbert, into which, or rather preceding them, the clergy have interpolated the 20th , 21st , 22nd , 23rd and 24th chapters of Exodus, so as to place Alfred's preface to what was really his, awkwardly enough in the body of the work. An interpolation the more glaring, as containing laws expressly contradicted by those of Alfred. This pious fraud seems to have been first noted by Howard, in his Contumes Anglo Normandes (188), and the pious judges of England have had no inclination to question it; [or this disposition in these judges, I could give you a curious sample from a note in my common-place book, made while I was a student, but it is too long to be now copied. Perhaps I may give it to you with some future letter. This digest of Alfred of the laws of the Heptarchy into a single code, common to the whole kingdom, by him first reduced into one, was probably the birth of what is called the common law. We has been styled, "Magnus Juris Anglicani Conditor;" and his code, the Dom-Dec, or doom-book. That which was made afterwards under Edward the Confessor, was but a restoration of Alfred's, with some intervening alterations. And this was the code which the English so often, under the Norman princes, petitioned to have restored-to them. But, all records previous to the Magna Charta having been early lost, Bracton's is the first digest of the whole body of law which has come down to us entire. What materials for it existed in his time we know not, except the unauthoritative collections of Lambard and Wilkins, and the treatise of Glanville, tempore H. 2. Bracton's is the more valuable, because being written a very few years after the Magna Charta, which commences what is called the statute law, it gives us the state of the common law In its ultimate form, and exactly at the point of division between the common and statute law. It is a most able work, complete in its matter and luminous in its method.

2. The statutes which introduced changes began now to be preserved; applications of the law to new cases by the courts, began soon after to be reported in the year-books, these to be methodized and abridged by Fitzherbert, Broke, Rolle, and others; individuals continued the business of reporting; particular treatises were written by able men, and all these, by the time of Lord Coke, had formed so large a mass of matter as to call for a new digest, to bring it within reasonable compass. This he undertook in his Institutes, harmonizing all the decisions and opinions which were reconcilable, and rejecting those not so. This work is executed with so much learning and judgment, that I do not recollect that a single position in it has ever been judicially denied And although the work loses much of its value by its chaotic form, it may still be considered as the fundamental code of the English law.

3. The same processes re-commencing of statutory changes, new divisions, multiplied reports, and special treatises, a new accumulation had formed, calling for new reduction, by the time of Matthew Bacon His work, therefore, although not pretending to the textual merit of Bracton's, or Coke's, was ver acceptable. His alphabetical arrangement, indeed although better than Coke's jumble, was far inferior to Bracton's. But it was a sound digest of the materials existing on the several alphabetical heads under which he arranged them. His work was not admitted as authority in Westminster Hall; yet it was the manual of every judge and lawyer, and, what better proves its worth, has been its daily growth in the general estimation.

4. A succeeding interval of changes and additions of matter produced Blackstone's Commentaries, the most lucid in arrangement which had yet been written, correct in its matter, classical in style, and rightfully taking its place by the side of the Justinian Institutes. But, like them it was only an elementary book. It did not present all the subjects of the law in all their details. It still left it necessary to recur to the original works of which it was the summary. The great mass of law books from which it was extracted, was still to be consulted on minute investigations. It wanted, therefore, a species of merit which entered deeply into the value of those of Bracton, Coke and Bacon. They had in effect swept the shelves of all the materials preceding them. To give Blackstone, therefore, a full measure of value, another work is still wanting, to wit: to incorporate with his principles a compend of the particular cases subsequent to Bacon, of which they are the essence. This might be done by printing under his text a digest like Bacon's continued to Black- stone's time. It would enlarge his work, and increase its value peculiarly to us, because just there we break off from the parent stem of the English law, unconcerned in any of its subsequent changes or decisions.

Of the four digests noted, the three last are possessed and understood by every one. But the first, the fountain of them all, remains in its technical Latin, abounding in terms antiquated, obsolete, and unintelligible but to the most learned of the body of lawyers. To give it to us then in English, with a glossary of its old terms, is a work for which I know nobody but yourself possessing the necessary learning and industry. The latter part of it would be furnished to your hand from the glossaries of Wilkins, Lambard, Spelman, Somner in the X. Scriptores, the index of Coke and the law dictionaries. Could not such an undertaking be conveniently associated with your new vocation of giving law lectures! I pray you to think of it. A further operation indeed, would still be desirable. To take up the doctrines of Bracton, separatim et seriatim, to give their history through the periods of Lord Coke and Bacon, down to Blackstone, to show when and how some of them have become extinct, the successive alterations made in others, and their progress to the state in which Blackstone found them. But this might be a separate work, left for your greater leisure or for some future pen.

I have long had under contemplation, and been collecting materials for the plan of an university in Virginia which should comprehend all the sciences useful to us, and none others. The general idea is suggested in the Notes on Virginia, Qu. 14. This would probably absorb the functions of William and Mary College, and transfer them to a healthier and more central position: perhaps to the neighborhood of this place. The long and lingering decline of William and Mary, the death of its last president, its location and climate, force on us the wish for a new institution more convenient to our country generally, and better adapted to the present state of science. I have been told there will be an effort in the present session of out legislature, to effect such an establishment. I confess, however, that I have not great confidence that this will be done. Should it happen, it would offer places worthy of you, and of which you are worthy. It might produce, too, a bidder for the apparatus and library of Dr. Priestley, to which they might add mine on their own terms. This consists of about seven or eight thousand volumes, the best chosen collection of its size probably in America, and containing a great mass of what is most rare and valuable, and especially of what relates to America.

You have given us, in your Emporium, Bellman's medley on Political Economy. It is the work of one who sees a little of everything, and the whole of nothing; and were it not for your own notes on it, a sentence of which throws more just light on the subject than all his pages, we should regret the place it occupies of more useful matter. The bringing our countrymen to a sound comparative estimate of the vast value of Internal commerce, and the disproportionate importance of what is foreign, is the mast salutary effort which can be made for the prosperity of these States, which are entirely misled from their true interests by the infection of English prejudices, and illicit attachments to English interests and connections. I look to you for this effort. It would furnish a valuable chapter for every Emporium; but I would rather see it also in the newspapers, which alone find access to every one.

Everything predicted by the enemies of banks, in the beginning, is now coming to pass. We are to be ruined now by the deluge of bank paper, as we were formerly by the old Continental paper. It is cruel that such revolutions in private fortunes should be at the mercy of avaricious adventurers, who, instead of employing their capital, if any they have, in manufactures, commerce, and other useful pursuits, make it an instrument to burden all the interchanges of property with their swindling profits, profits which are the price of no useful industry of theirs. Prudent men must be on their guard in this game of Robin's alive, and take care that the spark does not extinguish in their hands. I am an enemy to all banks discounting bills or notes for anything but coin. But our whole country is so fascinated by this Jack-lantern wealth, that they will not stop short of its total and fatal explosion.

Have you seen the memorial to Congress on the subject of Oliver Evans' patent rights? The memorialists have published in it a letter of mine containing some views on this difficult subject. But I have opened it no further than to raise the questions belonging to it. I wish we could have the benefit of your lights on these questions. The abuse of the frivolous patents is likely to cause more inconvenience than is countervailed by those really useful.We know not to what uses we may apply implements which have been in our hands before the birth of our government, and even the discovery of America. The memorial is a thin pamphlet, printed by Robinson of Baltimore, a copy of which has been laid on the desk of every member of Congress.

You ask if it is a secret who wrote the commentary on Montesquieu? It must be a secret during the author's life. I may only say at present that it was written by a Frenchman, that the original MS. in French is now in my possession, that it was translated and edited by General Duane, and that I should rejoice to see it printed in its original tongue, if any one would undertake it. No book can suffer more by translation, because of the severe correctness of the original in the choice of its terms. I have taken measures for securing to the author his justly-earned fame, whenever his death or other circumstances may render it safe for him. Like you, I do not agree with him in everything, and have had some correspondence with him on particular points. But on the whole, it is a most valuable work, one which I think will form an epoch in the science of government, and which I wish to see in the hands of every American student, as the elementary and fundamental institute of that important branch of human science.

I have never seen the answer of Governor Strong to the judges of Massachusetts, to which you allude, nor the Massachusetts reports in which it is contained. But I am sure you join me in lamenting the general defection of lawyers and judges, from the free principles of government. I am sure they do not derive this degenerate spirit from the father of our science, Lord Coke. But it may be the reason why they cease to read him, and the source of what are now called "Blackstone lawyers:"

Go on in all your good works, without regard to the eye "of suspicion and distrust with which you may be viewed by some," and without being weary. in well doing, and be assured that you are justly estimated by the impartial mass of our fellow citizens, and by none more than myself.

Source of Information:

Letter written by Thomas Jefferson to Dr. Thomas Cooper, January 16, 1814, The Writings of Thomas Jefferson, Library Edition, Ed Albert Ellery Bergh, Vol XIV, Issued under the Auspices of The Thomas Jefferson Memorial Association, Washington D C, 1903, pp 54-63.


JANUARY 24, 1814

Monticello Jan. 24, 1814.

DEAR SIR --1 have great need of the indulgence so kindly extended to me in your favor of Dec. 25. of permitting me to answer your friendly letters at my leisure. My frequent and long absences from home are a first cause of tardiness in my correspondence, and a 2d. the accumulation of business during my absence, some of which imperiously commands first attentions. I am now in arrears to you for your letters of Nov. 12. 14. 16. Dec. 3. 19. 25.

I have made some enquiry about Taylor's book,(24) and I learn from a neighbor of his that it has been understood for some time that he was writing a political work. We had not heard of it's publication, nor has it been announced in any of our papers. But this must be the book of 630 pages which you have received; and certainly neither the style nor the stuff of the author of Arator can ever be mistaken. In the latter work, as you observe, there are some good things, but so involved in Quaint. in farfetched, affected, mystical concepts, and flimsy theories, that who can take the trouble of getting at them?

You ask me if I have ever seen the work of J. W. Goethens Schristen? Never. Nor did the question ever occur to me before, Where get we the ten commandments? The book indeed gives them to us verbatim. But where did it get them! For itself tells us they were written by the finger of god on tables of stone, which were destroyed by Moses: it specifies those on the 2d. set of tables in different form and substance, but still without saying how the others were recovered. But the whole history of these books is so defective and doubtful that it seems vain to attempt minute enquiry into it; and such tricks have been plaid with their text, and with the tests of other books relating to them, that we have a right, from that cause, to entertain much doubt what parts of them are genuine. In the New testament there is internal evidence that parts of it have proceeded from an extraordinary man; and that other parts are of the fabric of very inferior minds. It is as easy to separate those parts, as to pick out diamonds from dunghills The matter of the first was such as would be preserved in the memory of the hearers. and handed on by tradition for a long time; the latter such stuff as might be gathered up, for embedding it, any where, and at any time.

I have nothing of Vives, or Budaeus, and little of Erasmus. If the familiar histories of the saints, the want of which they regret, would have given us the histories of those tricks which these writers acknowledge to have been practiced, and of the lies they agree have been invented for the sake of religion, I join them in their regrets. These would be the only parts of their histories worth reading. It is not only the sacred volumes they have thus interpolated, gutted, and falsified, but the works of others relating to them, and even the laws of the land. We have a curious instance of one of these pious frauds in the Laws of Alfred. He composed, you know, from the laws of the Heptarchy, a Digest for the government of the United kingdom, and in his preface to that work he tells us expressly the sources from which he drew it, to wit, the laws of Ina, of Offa and Aethelbert, (not naming the Pentateuch.) But his pious Interpolator, very awkwardly, premises to his work four chapters of Exodus (from the 20th to the 23rd.) as a part of the laws of the land; so that Alfred's preface is made to stand in the body of the work. Our judges too have lent a ready hand to further these frauds, and have been willing to lay the yoke of their own opinions on the necks of others; to extend the coercions of municipal law to the dogmas of their religion, by declaring that these make a part of the law of the land. In the Year Book 34. H. 6, fo. 38. in Quare impedit,(25) where the question was how far the Common law takes notice of the Ecclesiastical law, Prisot, Chief Justice, in the course of his argument says 'a tiels leis que ils de Seint eglise ont en ancien scripture, covient a nous a donner credence; car ces Common ley sur quels touts manners leis sent fondes: et auxy, Sir, nous sumus obliges de conustre lour ley de saint eglise Etc.' (26) Finch begins the business of falsification by mistranslating and mistating the words of Prisot thus 'to such laws of the church as have warrant in holy scripture our law giveth credence, ' citing the above case and the words of Prisot in the margin, Finch's law. B. I. c. 3. Here then we find ancient scripture, ancient writing, translated 'holy scripture.' This, Wingate in 1658. erects into a Maxim of law, in the very words of Finch, but citing Prisot, and not Finch. And Sheppard tit. Religion, in 1675 laying it down in the same words of Finch, quotes the Year Book, Finch and Wingate Then comes Sr. Matthew Hale, in the case of the King v. Taylor I Ventr 293. 3 Keb. 607· and declares that 'Christianity is parcel of the laws of England.' Citing nobody, and resting it, with his judgment against the witches. (27) on his own authority, which indeed was sound and good in all cases into which no superstition or bigotry could enter. Thus strengthened, the court in 1718 in the King v. Woolston, would not suffer it to be questioned whether to write against Christianity was punishable at Common law, saying it had been so settled by Hale in Taylor's case. 2 Stra. 834· Wood therefore, 409· Without scruple, lays down as a principle that all blasphemy and profaneness are offenses at the Common law, and cites Strange. Blackstone, in 1763. repeats in the words of Sr. Matthew Hale that 'Christianity is part of the laws of England,' citing Ventris and Strange ubi supra. And Ld. Mansfield in the case of the Chamberlain of London v. Evans, in 1767· qualifying somewhat the position, says that 'the essential principles of revealed religion are part of the Common law.(28) Thus we find this string of authorities all hanging by one another on a single hook, a by Finch of the words of Prisot, or on nothing. For all quote Prisot, or one another, or nobody. Thus Finch misquotes Prisot; Wingate also, but using Finch's words; 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 Ld. Mansfield volunteers his own ipse dixit. And who now can question but that the whole Bible and Testament are a part of the Common law? And that Connecticut, in her blue laws, laying it down as a principle that the laws of god should be the laws of their land, except where their own contradicted them, did anything more than express, with a salve, what the English judges had less cautiously declared without any restriction? And what I dare say our cunning Chief Justice [Marshall] would swear to, and find as many sophisms to twist it out of the general terms of our Declarations of rights, and even the stricter text of the Virginia act for the freedom of religion' as he did to twist Burr's neck out of the halter of treason.(29) May we not say then with him who was all candor and benevolence 'Woe unto you, ye lawyers, for ye lade men with bur dens grievous to bear.'

[The remainder of the letter goes into other things not related to the above subject material.] Footnotes to the above material are:

FOOTNOTES:

(24.) Taylor, An Inquiry into the Government of the United States.

(25.) Reports of cases in the YEAR BOOK cover the period from Edward I (1292) to Henry VITT (1536) The reference is to a law of the thirty-fourth year of Henry Vi's reign, folio 38. Cases in Quare impedit are actions in English law brought only in the Court of Common Pleas to recover the right of a patron over a church or benefice.

(26.) "To such laws of the church as have warrant in ancient writing our law giveth credence; for it is the common law on which all laws are based; and also, Sir. we are obliged to recognize the law of the church, etc."

(27.) In King v. Taylor, 1551-62, at the Bury St. Edmonds Assizes two women were tried for witchcraft. In directing the jury Hale stated there was no doubt of the existence of witches as proved by the Bible, the general consent, and acts of Parliament.

(28.) In this case Mansfield spoke in favor of a Dissenter's not accepting official appointment which required that he take communion in the Anglican Church and excused him from payment of a fine.

(29.) Aaron Burr was indicted for treason in 1807 in connection with his "conspiracy" in the West and was brought to trial in the United States Circuit Court at Richmond, Va., before Chief Justice John Marshall sitting as circuit judge. The interpretation Marshall gave to tile treason clause in the Constitution so restricted the meaning that Burr was acquitted. The trial had its political overtones in the friction between President Jefferson and the Chief Justice. Thomas P. Abernethy. The Burr Conspiracy (N.Y., 1954), 227-49.

Source of Information:

T. Jefferson to John Adams, January 24, 1814. The Adams-Jefferson Letters, the Complete Correspondence Between Thomas Jefferson and Abigail and John Adams, edited by Lester J Cappon, pages 421-423.


February 10, 1814

Monticello, February 10, 1814.

DEAR SIR, -- In my letter of January 16, I promised you a sample from my common-place book, of the pious disposition of the English judges, to connive at the frauds of the clergy, a disposition which has even 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, 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.

Common-place Book.

873· In Quare imp. in C. B. 34, H. 6, fo. 38, the def. Br, of Lincoln pleads that the church of the pl. became void by the death of the incumbent, that the pl. and J. 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 pl. demurred. A question was, How far the Ecclesiastical later was to be respected in this matter by the common law court? and Prisot C. 3, in the course of his argument uses this expression, "A tiels leis que ils de seint eglise ont en ancien scripture, covient a nous a donner credence; car ces common ley sur quel touts manners leis sent fondes: et auxy, Sir, nous sumus obliges de conustre nostre ley; et. Sir, si polt apperer or a nous que lievesque ad fait comme un ordinary fera en tiel cas, adong nous devons ces adjuger bon autrement nemy," etc. It does not appear that judgment was given. Y. B. ubi sypra. S. C. Fitzh. abr. Qu. imp. 89. Bro, abr. Qu. Imp. 12. Finch mistakes 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 on the margin. Finch's law, B. I, ch. 3, published 1613. Here we find "ancien scripture" [ancient writing] converted into "Holy Scripture," whereas it can only mean the ancient written laws of the church. It cannot mean the Scriptures, I, because the "ancien scripture" must be understood to mean the "Old Testament" or Bible, in opposition to the "New Testament," 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. 2. Because Prisot says, "Ceo [est] common ley, sur quel touts manners leis sent fondes." 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. 3. The whole case and arguments show that the question was how far the Ecclesiastical law in general should be respected in a common law court. And in Bro. abr. of this case, Littleton says, "Les juges del common ley prendra conusans quid est lax ecclesiae, vel admiralitatis, et trujus modi." 4. Because the particular part of the Ecclesiastical law then in question, to wit, 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 lawgiver, 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 Year-Book, Finch and Wingate. 3 Shepp. abr., tit. Religion. In the case of the King v. Taylor, Sir Matthew Hale lays it down in these words, " Christianity is parcel of the laws of England." I Ventr. 293, 3 Keb. 607. But he quotes no authority, resting it on his own, which was good in all cases in which his mind received no bias from his bigotry, his superstitions, his visions about sorceries, demons, etc. The power of these over him is exemplified in his hanging of the witches.So strong was this doctrine become in 1.728, by additions and repetitions from one another, that in the case of the King v. Wolston, 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, z 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 Ventris and Strange ubi supra. 4 Blackst. 59. Lord Mansfield qualifies it a little by saying that "the essential principles of revealed religion are part of the common law." In the case of the Chamberlain of London v. Evans, 1767. 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 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. latter 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. Though the common law may be termed " Lex non Scripta," yet the same Hale tells us "when I call those parts of our laws Leges non Scritae, I do not mean as if those laws were only oral, or communicated from the former ages to the latter merely by word. For all those 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 ancient times and still extant in writing." Hale's H.c.d. 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 particle of which has its foundation in the common law. 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 time to the date of 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 was adopted, therefore, 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 all 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 treatise 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 anything like it, has ever been cited. Fleta and Britton, who wrote in the succeeding reign (of Edward I.), are equally silent. So also is Glanvil, an earlier writer than any of them, (viz.: temp. H. 2,). but his subject perhaps might not have led him to mention it. 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 laws, 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." Preface to Fortescue Aland's reports, xvii. Had he proposed to state with more minuteness how much of the Scriptures had been made a part of the common law, he might have added that in the laws of Alfred, where he found the ten commandments, two or three other chapters of Exodus are copied almost verbatim. But the adoption of a past proves rather a rejection of the rest, as municipal law. We, might as well say that the Newtonian system of philosophy is a part of the common law, as that the Christian religion is. The truth is that Christianity and Newtonianism being reason and verity itself, in the opinion of all but infidels and Cartesians, they are protected under the wings of the common law from the dominion of other sects, but not erected into dominion over them. An eminent Spanish physician affirmed that the lancet had slain more men than the sword. Doctor Sangradb, on the contrary, affirmed that with plentiful bleedings, and draughts of warm water, every disease was to be cued. The common law protects both opinions, but enacts neither into law. See post, 879.

879· Howard, in his Contumes Anglo-Normandes, I. 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 chapter of the Acts of the Apostles, v. 23, and precepts from other parts of the Scripture. These he calls a hors d'aeuvre of some pious copyist. This awkward monkish fabrication makes the preface toAlfred'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 Scriptures. 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, Le. xxvi., 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 Exodus xxi. 22, 23, and Pseud, Alfr. 18; but by the laws of Alfred ix., pays a Weregild for both woman and child. To smite out an eye, or a tooth, Exod. xxi. 24--27, Pseud. Alfr. 19, 20, if of a servant by his master, is freedom to the servant; in every other case retaliation. But by Alfr. Le. xl. a fixed indemnification is paid. Theft of an ox, or a sheep, by the Jewish law, Exod. xxii. I, was repaid five-fold for the ox and four-fold for the sheep; by the Pseudograph 24, the ox double, the sheep four-fold; but by Alfred Le. xvi., he who stole a cow and a calf was to repay the worth of the cow and forty shillings 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. O 21; by Alfred Le. xxiv., the wounded person had the ox. The Pseudograph makes municipal laws of the ten commandments, 1-10, regulates concubinage, 12, makes it death to strike or to curse father or mother, 14, 15, gives an eye for an eye, tooth for a tooth, hand for hand, foot for foot, burning for burning,. wound for wound, strife for strife, 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, 35; makes the laws of bailment, 28, very different from what Lord Holt delivers in Coggs v. Bernard, ante, 92, and what Sir William Jones tells us they were; and punishes witchcraft with death, 30, which Sir Matthew Hale, 1 H. P. C. B. I, ch. 33, declares was not a felony before the Stat. I Jac. 12. It was Under that statute, and not this forgery, that he hung Rose Cullendar 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 first the Scripture had affirmed so much, secondly the wisdom of all nations had provided laws against such persons, and such hath often the judgment of this kingdom, as appears by that act of Parliament which hath provided punishment proportionable to the quality of the offence." And we must certainly allow greater weight to this position that "it was no felony till James' Statute," laid down deliberately in his H. P. C., a work which he wrote to be printed, finished, and transcribed for the press in his lifetime, than to the hasty scripture that "at common later witchcraft was punished With death as heresy, by writ de Heretico Comburendo" in his Methodical Summary of the P. C. p. 6, a work "not intended for the press, not fitted for it, and which he declared himself he had never read over since it was written;" Pref. Unless we understand his meaning in that to be that witchcraft could not be punished at common law as witchcraft, but as 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 the 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 every lawyer, the English 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 these four surreptitious 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; ante, 873: the first judicial declaration of which was by this same 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 conscientiae; and they, arm the whole with the coercions of municipal law. 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 now 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.

Source of Information: Letter written by Thomas Jefferson to Dr. Thomas Cooper, February 10, 1814, The Writings of Thomas Jefferson, Library Edition, Ed Albert Ellery Bergh, Vol XIV, Issued under the Auspices of The Thomas Jefferson Memorial Association, Washington D C, 1903, pp 85-97.


JUNE 5, 1824

Dear and Venerable Sir,

I am much indebted for your kind letter of February the 29th, and for your valuable volume on the English constitution. I have read this with pleasure and much approbation, and think it has deduced the constitution of the English nation from its rightful root, the Anglo-Saxon.

It is really wonderful, that so many able and learned men should have failed in their attempts to define it with correctness. No wonder then, that Paine, who thought more than he read, should have credited the great authorities who have declared, that the will of parliament is the constitution of England. So Marbois, before the French revolution, observed to me, that the Almanac Royal was the constitution of France.Your derivation of it from the Anglo-Saxons, seems to be made on legitimate principles. Having driven out the former inhabitants of that part of the island called England, they became aborigines as to you, and your lineal ancestors. They doubtless had a constitution; and although they have not left it in a written formula, to the precise text of which you may always appeal, yet they have left fragments of their history and laws, from which it may be inferred with considerable certainty. Whatever their history and laws shew to have been practised with approbation, we may presume was permitted by their constitution; whatever was not so practised, was not permitted. And although this constitution was violated and set at naught by Norman force, yet force cannot change right. A perpetual claim was kept up by the nation, by their perpetual demand of a restoration of their Saxon laws; which shews they were never relinquished by the will of the nation. In the pullings and haulings for these antient rights, between the nation, and its kings of the races of Plantagenets, Tudors and Stuarts, there was sometimes gain, and sometimes loss, until the final re-conquest of their rights from the Stuarts. The destitution and expulsion of this race broke the thread of pretended inheritance, extinguished all regal usurpations, and the nation re-entered into all its rights; and although in their bill of rights they specifically reclaimed some only, yet the omission of the others was no renunciation of the right to assume their exercise also, whenever occasion should occur. The new King received no rights or powers, but those expressly granted to him. It has ever appeared to me, that the difference between the whig and the tory of England is, that the whig deduces his rights from the Anglo-Saxon source, and the tory from the Norman. And Hume, the great apostle of toryism, says, in so many words, note AA to chapter 42, that, in the reign of the Stuarts, `it was the people who encroached upon the sovereign, not the sovereign who attempted, as is pretended, to usurp upon the people.' This supposes the Norman usurpations to be rights in his successors. And again, C, 159, `the commons established a principle, which is noble in itself, and seems specious, but is belied by all history and experience, that the people are the origin of all just power.' And where else will this degenerate son of science, this traitor to his fellow men, find the origin of just powers, if not in the majority of the society? Will it be in the minority? Or in an individual of that minority?

Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press. In the structure of our legislatures, we think experience has proved the benefit of subjecting questions to two separate bodies of deliberants; but in constituting these, natural right has been mistaken, some making one of these bodies, and some both, the representatives of property instead of persons; whereas the double deliberation might be as well obtained without any violation of true principle, either by requiring a greater age in one of the bodies, or by electing a proper number of representatives of persons, dividing them by lots into two chambers, and renewing the division at frequent intervals, in order to break up all cabals. Virginia, of which I am myself a native and resident, was not only the first of the States, but, I believe I may say, the first of the nations of the earth, which assembled its wise men peaceably together to form a fundamental constitution, to commit it to writing, and place it among their archives, where every one should be free to appeal to its text. But this act was very imperfect. The other States, as they proceeded successively to the same work, made successive improvements; and several of them, still further corrected by experience, have, by conventions, still further amended their first forms. My own State has gone on so far with its premiere ebauche; but it is now proposing to call a convention for amendment. Among other improvements, I hope they will adopt the subdivision of our counties into wards. The former may be estimated at an average of twenty-four miles square; the latter should be about six miles square each, and would answer to the hundreds of your Saxon Alfred. In each of these might be,

1. An elementary school.

2. A company of militia, with its officers.

3. A justice of the peace and constable.

4. Each ward should take care of their own poor.

5. Their own roads.

6. Their own police.

7. Elect within themselves one or more jurors to attend the courts of justice. And

8. Give in at their Folk-house, their votes for all functionaries reserved to their election. Each ward would thus be a small republic within itself, and every man in the State would thus become an acting member of the common government, transacting in person a great portion of its rights and duties, subordinate indeed, yet important, and entirely within his competence. The wit of man cannot devise a more solid basis for a free, durable and well administered republic.

With respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole. To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States; these functions alone being made federal. The one is the domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department. There are one or two exceptions only to this partition of power. But, you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground: but if it can neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power to that department which they may think best. You will perceive by these details, that we have not yet so far perfected our constitutions as to venture to make them unchangeable. But still, in their present state, we consider them not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: they are until then the lex legum.

But can they be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things. The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals, of a thousand forms. To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.

I was glad to find in your book a formal contradition, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed. But it may amuse you, to shew when, and by what means, they stole this law in upon us. In a case of quare impedi in the Year-book 34. H. 6. folio 38. (anno 1458,) a question was made, how far the ecclesiastical law was to be respected in a common law court? And Prisot, Chief Justice, gives his opinion in these words, `A tiel leis qu' ils de seint eglise ont en ancien scripture, covient a nous a donner credence; car ceo common ley sur quels touts manners leis sont fondes. Et auxy, Sir, nous sumus obleges 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, adong nous devons ceo adjuger bon, ou auterment nemy,' &c. See S. C. Fitzh. Abr. Qu. imp. 89. Bro. Abr. Qu. imp. 12. Finch in his first book, c. 3. is the first afterwards who quotes this case, and mistakes it thus. `To such laws of the church as have warrant in holy scripture, our law giveth credence.' And cites Prisot; mistranslating ‘ancientancien scripture,'_ into _'holy scripture.'_ Whereas Prisot palpably says, `to such laws as those of holy church have in antient writing, it is proper for us to give credence;' to wit, to their antient written laws. This was in 1613, a century and a half after the dictum of Prisot. Wingate, in 1658, erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot. Wing. Max. 3. And Sheppard, title, `Religion,' in 1675, copies the same mistranslation, quoting the Y. B. Finch and Wingate. Hale expresses it in these words; `Christianity is parcel of the laws of England.' 1 Ventr. 293. 3 Keb. 607. But he quotes no authority. By these echoings and re-echoings from one to another, it had become so established in 1728, that in the case of the King vs. Woolston, 2 Stra. 834, the court would not suffer it to be debated, whether to write against Christianity was punishable in the temporal court at common law? Wood, therefore, 409, ventures still to vary the phrase, and say, that all blasphemy and profaneness are offences by the common law; and cites 2 Stra. Then Blackstone, in 1763, IV. 59, repeats the words of Hale, that `Christianity is part of the laws of England,' citing Ventris and Strange. And finally, Lord Mansfield, with a little qualification, in Evans' case, in 1767, says, that `the essential principles of revealed religion are part of the common law.' Thus ingulphing Bible, Testament and all into the common law, without citing any authority. And thus we find this chain of authorities hanging link by link, one upon another, and all ultimately on one and the same hook, and that a mistranslation of the words `ancien scripture, used by Prisot. Finch quotes Prisot; Wingate does the same. Sheppard quotes Prisot, Finch and Wingate. Hale cites nobody. The court in Woolston's case, cite Hale. Wood cites Woolston's case. Blackstone quotes Woolston's case and Hale. And Lord Mansfield, like Hale, ventures it on his own authority. Here I might defy the best read lawyer to produce another scrip of authority for this judiciary forgery; and I might go on further to shew, how some of the Anglo-Saxon priests interpolated into the text of Alfred's laws, the 20th, 21st, 22nd and 23rd chapters of Exodus, and the 15th of the Acts of the Apostles, from the 23rd to the 29th verses. But this would lead my pen and your patience too far. What a conspiracy this, between Church and State! Sing Tantarara, rogues all, rogues all, Sing Tantarara, rogues all!

I must still add to this long and rambling letter, my acknowledgments for your good wishes to the University we are now establishing in this State. There are some novelties in it. Of that of a professorship of the principles of government, you express your approbation. They will be founded in the rights of man. That of agriculture, I am sure, you will approve: and that also of Anglo-Saxon. As the histories and laws left us in that type and dialect, must be the text books of the reading of the learners, they will imbibe with the language their free principles of government. The volumes you have been so kind as to send, shall be placed in the library of the University. Having at this time in England a person sent for the purpose of selecting some Professors, a Mr. Gilmer of my neighborhood, I cannot but recommend him to your patronage, counsel and guardianship, against imposition, misinformation, and the deceptions of partial and false recommendations, in the selection of characters. He is a gentleman of great worth and correctness, my particular friend, well educated in various branches of science, and worthy of entire confidence.

Your age of eighty-four and mine of eighty-one years, insure us a speedy meeting. We may then commune at leisure, and more fully, on the good and evil, which, in the course of our long lives, we have both witnessed; and in the mean time, I pray you to accept assurances of my high veneration and esteem for your person and character.

Yours, T. Jefferson

Source of Information:

Thomas Jefferson to Maj. John Cartwright--5 June 1824. The Memorial Edition, The Writings of Thomas Jefferson, Andrew A. Lipscomb and Albert Ellery Bergh, eds, The Thomas Jefferson Memoral Association, Washington, D. C. (1905).


1824

TO MR. PROFESSOR EVERETT.

Salem, September 18th, 1824.

MY DEAR, SIR:

I am greatly obliged to you for the copy of your oration which you recently sent me. I have read it with increased interest. I agree, that something of the fascination of the delivery is lost, but it appears to me more than compensated by the extraordinary pleasure of dwelling again and again upon those passages, which awaken the mind to its most profound thoughts, and delight it by their uncommon felicity of expression. Decies repetita, placebit. . .

I had not seen Mr. Jefferson's letter, my own newspaper having been mislaid or miscarried, until after you referred to it. His reasoning is plausible, but upon looking into the original authorities, I think his construction of the word untenable.

It appears to me inconceivable how any man can doubt that Christianity is part of the Common Law of England, in the true sense of this expression, which I take to be no more than that Christianity is recognized as true, and as the established religion of England. Upon what other foundation stands her whole ecclesiastical system? Yet that system is as old as any part of the Common Law which we can clearly trace. Can you believe, that when heresy was punishable with death, and Statute Laws were made to enforce Christian rites and doctrines, it was no part of the Law of Law of England, that to revile the established religion was a crime. Prisot did not make, or declare the law, in the case referred to; he spoke to a fact. In his age, England was overrun with all sorts of ecclesiastical establishments, nunneries, and monasteries, and Christianity constituted a great part of the public concern of all men. To suppose it had not the entire sanction of the State, is, with reverence be it spoken, to contradict all history.

I am very truly and affectionately, yours,

JOSEPH STORY.

Source of Information:

Story to Edward Everett, Sept. 15, 1824, in William Wetmore Story, The Life and Letters of Joseph Story (Boston, 1851, 2 vols.), Vol. 1, p. 430.


APRIL 1833

CHRISTIANITY A PART OF THE COMMON LAW.

Mr. Jefferson, in a letter to Major Cartwright, recently published, insists that the maxim, that Christianity is a part of the common law, has no foundation in the cases cited to support it, they all referring to the Year Book, 34 Henry VI. 38, 40; which he says has no such meaning.

The substance of the case in 34 Henry, VI. 38, 40, is this. It was a quare impedit against the bishop and others; and the bishop pleaded, that the church was in litigation between the plaintiff and his co-defendant, as to the right of patronage. The argument by counsel in one part of the case was, that every advowson and right of patronage depended upon both laws, namely, the law of the church and the common law ; For every presentment commenced at the common law and took effect by the law of the church, as to the ability or non-ability of the clerk presented or his being criminal. And it was said by Ashton, that if the bishop should refuse the clerk on account of alleged inability, and a quare impedit was brought, and the bishop excused himself on that account, and the parties were at issue upon the fact of ability, another judge should decide that, namely, the metropolitan. But that was denied by Danby, who said it should be tried by the jury. Ashton, however, persisted in his opinion, arguing that the right of advowuon must be tried by both laws, and that before judgment wag given, knowledge ought to be of the ecclesiatical law. Prisot then said: "A tiels leys gue eux de sainte Esgliue, ont en auncien Scripture convenit pui nous a doner credence, quia ceo est comen ley, sur quel toutes maners leys sont foudues; et, auxi, sir, nous sumus obliges de conustre leur ley de saint Esglise; et semble, ils sount obliges de coniustre- notre ley." The literal traslation is, "As to those laws which those of holy church have in ancient scripture, it behooves us to give them credence, for this is common law, upon which all manner of laws are founded; and thus, sir, we are obliged to take notice of their law of holy church; and it seems they are obliged to notice of our law."

Mr. Jefferson supposes that the words "ancien scripture" do not refer to the Holy Scriptures or Bible, but. to writings, or the written code of the church.

But if this be so, how could Prisot have said that they were common law, upon which all manner of laws are founded? Do not these words suppose that he was speaking of some superior law, having a foundation in nature or the Divine appointment, and not merely a positive ancient code Of the church ?

Mr. Jefferson asserts, that in subsequent cases, which he refers to, the expression has been constantly understood referring to the Holy Scriptures; but he thinks it a mistake of Prisot's meaning. Now it is some argument in favor of the common interpretation, that it has always been cited as clear -- Mr. J.'s interpretation is novel.

This case is cited in Brook's Abrid.s. Title Quare Impedit, pl..12, and in Fitzherbert's Abridg. s. t. 89; but no notice is taken of Prisot's saying.

Mr. Jefferson quotes sundry cases, where this saying been relied on in proof of the maxim, that Christianity is a part of the common law.

Thus, in Taylor's case, 1 Vent. 293, indictment for blasphemous words, Hale, C. J., said, Such blasphemous words are not only an offense against God and religion, but a crime against the laws and government, and therefore punishable in this court, &c.; and Christianity is a part of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law. In the same case in 3 Keble, 607, Hale, C. J. is reported to have said, "Religion is a part of the law itself, therefore, injuries to God are as punishable as to the King, or any common power." The case of 34 Hen. VI. 38, 40, is not here cited by the Court as a foundation of their opinion. But it proceeds upon a general principle.

So in Rex v. Woolston, 2 Strange, R. 834, S. C. Fitzgibb. 64, the Court said they could not suffer it to be debated whether to write against Christianity in general was not an offence punishable in the temporal courts, at common law, it having been settled so to be in Taylor's case, 1 Vent. R. 293, and Rex. v. Hall, 1 Strange, R. 416. No reference was here made to the case in 84 Hen. VI.

A reference is made by Mr. J. to Sheppard's Abridgment, title Religion; but the only position there found is, "that to such laws as have warrant in Holy Scripture our law giveth credence;" and "laws made against the known law of God are void;" and for these positions, he cites, among others, the case of 34 Hen. VI. 40.

But independently of any weight in any of these authorities, can any man seriously doubt, that Christianity is recognized as true, as a revelation, by the law of England, that is, by the common law? What becomes of her whole ecclesiastical establishment, and the legal rights growing out of it on any other supposition? What of her test acts, and acts perpetually referring to it as a divine system, obligatory upon all? Is not the reviling of any establishment, created and supported by the public law, held a libel by the common law ?

Source of Information:

"Christianity a part of the Common Law" by Joseph Story, written in 1824 but unpublished until published in The American Jurist and Law Magazine, 9 (April 1833): 346-348. The Life and Letters of Joseph Story, ed William Story, Vol. I, Charles C. Little and James Brown, (1851) pp 429-434.

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