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Letter from Thomas Jefferson

Letter To Dr. Thomas Cooper - Monticello, February 10, 1814

        _To Dr. Thomas Cooper_
        _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, I was in the habit
of abridging and common-placing what I read meriting it, and of
sometimes mixing my own reflections on the subject.  I now enclose
you the extract from these entries which I promised.  They were
written at a time of life when I was bold in the pursuit of
knowledge, never fearing to follow truth and reason to whatever
results they led, and bearding every authority which stood in their
way.  This must be the apology, if you find the conclusions bolder
than historical facts and principles will warrant.  Accept with them
the assurances of my great esteem and respect.
        _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 law_
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 sont fondes: et auxy, sin, nous sumus obliges de conustre nostre
ley; et, sin, si poit apperer or a nous que lievesque ad fait comme
un ordinary fera en tiel cas, adong nous devons ces adjuger bon
autrement nemy," &c.  It does not appear that judgment was given. Y.
B. ubi supra. 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. 1, ch. 3, published 1613.  Here we find "ancien
scripture" converted into "Holy Scripture," whereas it can only mean
the _ancient written_ laws of the church.  It cannot mean the
Scriptures, 1, because the "ancien scripture" must then 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 |P1323|p1 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 sont 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." 1 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
above sorceries, demons, &c.  The power of these over him is
exemplified in his hanging of the witches.  So strong was this
doctrine become in 1728, by additions and repetitions from one
another, that in the case of the King _v_. Woolston, the court would
not suffer it to be debated, whether to write against Christianity
was punishable in the temporal courts at common law, saying it had
been so settled in Taylor's case, ante 2, stra. 834; therefore, Wood,
in his Institute, lays it down that all blasphemy and profaneness are
offences by the _common law_, and cites Strange ubi supra. Wood 409.
And Blackstone [about 1763] repeats, in the words of Sir Matthew
Hale, that "Christianity is part of the laws of England," citing
Ventris and Strange ubi supra. 4. Blackst. 59.  Lord Mansfield
qualifies it a little by saying that "The essential |P1324|p1
principles of revealed religion are part of the common law." In the
case of the Chamberlain of London _v_. Evans, 1767.  But he cities 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
Scriptae, 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 fore
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 part 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 Sangrado, on the
contrary, affirmed that with plentiful bleedings, and draughts of
warm water, every disease was to be cured.  The common law protects
both opinions, but enacts neither into law.  See post. 879.

        879. Howard, in his Contumes Anglo-Normandes, 1.87, notices the
falsification of the laws of Alfred, by prefixing to them four
chapters of the Jewish law, to wit: the 20th, 21st, 22d and 23d
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'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 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 [symbol omitted]
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. 1 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. 1, 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 401 for the calf.  Goring
by an ox was the death of the ox, and the flesh not to be eaten.
Exod. xxi. 28. Pseud. Alfr. 21 by 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. 1, ch. 33, declares was not a felony before the Stat. 1, 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 been 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 life time,
than to the hasty scripture that "at _common law_ 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 concientiae_; 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.