TO MR. JOHN CLARKE
Monticello, January 27, 1814.
Sir,—Your favor of December 2d came to hand some time ago, and I perceive in it the proofs of a mind worthily occupied on the best interests of our common country. To carry on our war with success, we want able officers, and a sufficient number of soldiers. The former, time and trial can alone give us; to procure the latter, we need only the tender of sufficient inducements and the assiduous pressure of them on the proper subjects. The inducement of interest proposed by you, is undoubtedly the principal one on which any reliance can be placed, and the assiduous pressure of it on the proper subjects would probably be better secured by making it the interest and the duty of a given portion of the militia, rather than that of a mere recruiting officer. Whether, however, it is the best mode, belongs to the decision of others; but, satisfied that it is one of the good ones, I forwarded your letter to a member of the government, who will make it a subject of consideration by those with whom the authority rests. Whether the late discomfiture of Bonaparte will have the effect of shortening or lengthening our war, is uncertain. It is cruel that we should have been forced to wish any success to such a destroyer of the human race. Yet while it was our interest and that of humanity that he should not subdue Russia, and thus lay all Europe at his feet, it was desirable to us that he should so far succeed as to close the Baltic to our enemy, and force him, by the pressure of internal distress, into a disposition to return to the paths of justice towards us. If the French nation stand by Bonaparte, he may rally, rise again, and yet give Great Britain so much employment as to give time for a just settlement of our questions with her. We must patiently wait the solution of this doubt by time. Accept the assurances of my esteem and respect.
TO MR. SAMUEL GREENHOW
Monticello, January 31, 1814.
Sir,—Your letter on the subject of the Bible Society arrived here while I was on a journey to Bedford, which occasioned a long absence from home. Since my return, it has lain, with a mass of others accumulated during my absence, till I could answer them. I presume the views of the society are confined to our own country, for with the religion of other countries my own forbids intermeddling. I had not supposed there was a family in this State not possessing a Bible, and wishing without having the means to procure one. When, in earlier life, I was intimate with every class, I think I never was in a house where that was the case. However, circumstances may have changed, and the society, I presume, have evidence of the fact. I therefore enclose you cheerfully, an order on Messrs. Gibson & Jefferson for fifty dollars, for the purposes of the society, sincerely agreeing with you that there never was a more pure and sublime system of morality delivered to man than is to be found in the four evangelists. Accept the assurance of my esteem and respect.
TO JOSEPH C. CABELL
Monticello, January 31, 1814.
Dear Sir,—Your favor of the 23d is received. Say had come to hand safely. But I regretted having asked the return of him; for I did not find in him one new idea upon the subject I had been contemplating; nothing more than a succinct, judicious digest of the tedious pages of Smith.
You ask my opinion on the question, whether the States can add any qualifications to those which the constitution has prescribed for their members of Congress? It is a question I had never before reflected on; yet had taken up an off-hand opinion, agreeing with your first, that they could not; that to add new qualifications to those of the constitution, would be as much an alteration as to detract from them. And so I think the House of Representatives of Congress decided in some case; I believe that of a member from Baltimore. But your letter having induced me to look into the constitution, and to consider the question a little, I am again in your predicament, of doubting the correctness of my first opinion. Had the constitution been silent, nobody can doubt but that the right to prescribe all the qualifications and disqualifications of those they would send to represent them, would have belonged to the State. So also the constitution might have prescribed the whole, and excluded all others. It seems to have preferred the middle way. It has exercised the power in part, by declaring some disqualifications, to wit, those of not being twenty-five years of age, of not having been a citizen seven years, and of not being an inhabitant of the State at the time of election. But it does not declare, itself, that the member shall not be a lunatic, a pauper, a convict of treason, of murder, of felony, or other infamous crime, or a non-resident of his district; nor does it prohibit to the State the power of declaring these, or any other disqualifications which its particular circumstances may call for; and these may be different in different States. Of course, then, by the tenth amendment, the power is reserved to the State. If, wherever the constitution assumes a single power out of many which belong to the same subject, we should consider it as assuming the whole, it would vest the General Government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning appears to me to be sound; but, on so recent a change of view, caution requires us not to be too confident, and that we admit this to be one of the doubtful questions on which honest men may differ with the purest motives; and the more readily, as we find we have differed from ourselves on it.
I have always thought that where the line of demarcation between the powers of the General and the State governments was doubtfully or indistinctly drawn, it would be prudent and praiseworthy in both parties, never to approach it but under the most urgent necessity. Is the necessity now urgent, to declare that no non-resident of his district shall be eligible as a member of Congress? It seems to me that, in practice, the partialities of the people are a sufficient security against such an election; and that if, in any instance, they should ever choose a non-resident, it must be one of such eminent merit and qualifications, as would make it a good, rather than an evil; and that, in any event, the examples will be so rare, as never to amount to a serious evil. If the case then be neither clear nor urgent, would it not be better to let it lie undisturbed? Perhaps its decision may never be called for. But if it be indispensable to establish this disqualification now, would it not look better to declare such others, at the same time, as may be proper? I frankly confide to yourself these opinions, or rather no-opinions, of mine; but would not wish to have them go any farther. I want to be quiet; and although some circumstances, now and then, excite me to notice them, I feel safe, and happier in leaving events to those whose turn it is to take care of them; and, in general, to let it be understood, that I meddle little or not at all with public affairs. There are two subjects, indeed, which I shall claim a right to further as long as I breathe, the public education, and the sub division of counties into wards. I consider the continuance of republican government as absolutely hanging on these two hooks. Of the first, you will, I am sure, be an advocate, as having already reflected on it, and of the last, when you shall have reflected. Ever affectionately yours.
TO THOMAS COOPER, ESQ
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 fondés: et auxy, sin, nous sumus obligès de conustre nostre ley; et, sin, si poit apperer or á nous que liévesque 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" [ancient writing] 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 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 fondés." Now, it is true that the ecclesiastical law, so far as admitted in England, derives its authority from the common law. But it would not be true that the Scriptures so derive their authority. 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 ecclesiæ, 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 about 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 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 Scriptæ, 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 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'œuvre of some pious copyist. This awkward monkish fabrication makes the preface to Alfred's genuine laws stand in the body of the work, and the very words of Alfred himself prove the fraud; for he declares, in that preface, that he has collected these laws from those of Ina, of Offa, Aethelbert and his ancestors, saying nothing of any of them being taken from the 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. 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 Cullender and Amy Duny, 16 Car. 2, (1662,) on whose trial he declared "that there were such creatures as witches he made no doubt at all; for 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 concientiæ; 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.