Monticello, January 2, 1814.
Dear Sir,—Your favor of November the 25th reached this place December the 21st, having been near a month on the way. How this could happen I know not, as we have two mails a week both from Fredericksburg and Richmond. It found me just returned from a long journey and absence, during which so much business had accumulated, commanding the first attentions, that another week has been added to the delay.
I deplore, with you, the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write for them; and I enclose you a recent sample, the production of a New England judge, as a proof of the abyss of degradation into which we are fallen.These ordures are rapidly depraving the public taste, and lessening its relish for sound food. As vehicles of information, and a curb on our functionaries, they have rendered themselves useless, by forfeiting all title to belief. That this has, in a great degree, been produced by the violence and malignity of party spirit, I agree with you; and I have read with great pleasure the paper you enclosed me on that subject, which I now return. It is at the same time a perfect model of the style of discussion which candor and decency should observe, of the tone which renders difference of opinion even amiable, and a succinct, correct, and dispassionate history of the origin and progress of party among us. It might be incorporated as it stands, and without changing a word, into the history of the present epoch, and would give to posterity a fairer view of the times than they will probably derive from other sources. In reading it with great satisfaction, there was but a single passage where I wished a little more development of a very sound and catholic idea; a single intercalation to rest it solidly on true bottom. It is near the end of the first page, where you make a statement of genuine republican maxims; saying, "that the people ought to possess as much political power as can possibly exist with the order and security of society." Instead of this, I would say, "that the people, being the only safe depository of power, should exercise in person every function which their qualifications enable them to exercise, consistently with the order and security of society; that we now find them equal to the election of those who shall be invested with their executive and legislative powers, and to act themselves in the judiciary, as judges in questions of fact; that the range of their powers ought to be enlarged," &c. This gives both the reason and exemplication of the maxim you express, "that they ought to possess as much political power," &c. I see nothing to correct either in your facts or principles.
You say that in taking General Washington on your shoulders, to bear him harmless through the federal coalition, you encounter a perilous topic. I do not think so. You have given the genuine history of the course of his mind through the tryingscenes in which it was engaged, and of the seductions by which it was deceived, but not depraved. I think I knew General Washington intimately and thoroughly; and were I called on to delineate his character, it should be in terms like these.
His mind was great and powerful, without being of the very first order; his penetration strong, though not so acute as that of a Newton, Bacon, or Locke; and as far as he saw, no judgment was ever sounder. It was slow in operation, being little aided by invention or imagination, but sure in conclusion. Hence the common remark of his officers, of the advantage he derived from councils of war, where hearing all suggestions, he selected whatever was best; and certainly no General ever planned his battles more judiciously. But if deranged during the course of the action, if any member of his plan was dislocated by sudden circumstances, he was slow in re-adjustment. The consequence was, that he often failed in the field, and rarely against an enemy in station, as at Boston and York. He was incapable of fear, meeting personal dangers with the calmest unconcern. Perhaps the strongest feature in his character was prudence, never acting until every circumstance, every consideration, was maturely weighed; refraining if he saw a doubt, but, when once decided, going through with his purpose, whatever obstacles opposed. His integrity was most pure, his justice the most inflexible I have ever known, no motives of interest or consanguinity, of friendship or hatred, being able to bias his decision. He was, indeed, in every sense of the words, a wise, a good, and a great man. His temper was naturally irritable and high toned; but reflection and resolution had obtained a firm and habitual ascendency over it. If ever, however, it broke its bonds, he was most tremendous in his wrath. In his expenses he was honorable, but exact; liberal in contributions to whatever promised utility; but frowning and unyielding on all visionary projects, and all unworthy calls on his charity. His heart was not warm in its affections; but he exactly calculated every man's value, and gave him a solid esteem proportioned to it. His person, you know, was fine, his stature exactly what one would wish, hisdeportment easy, erect and noble; the best horseman of his age, and the most graceful figure that could be seen on horseback. Although in the circle of his friends, where he might be unreserved with safety, he took a free share in conversation, his colloquial talents were not above mediocrity, possessing neither copiousness of ideas, nor fluency of words. In public, when called on for a sudden opinion, he was unready, short and embarrassed. Yet he wrote readily, rather diffusely, in an easy and correct style. This he had acquired by conversation with the world, for his education was merely reading, writing and common arithmetic, to which he added surveying at a later day. His time was employed in action chiefly, reading little, and that only in agriculture and English history. His correspondence became necessarily extensive, and, with journalizing his agricultural proceedings, occupied most of his leisure hours within doors. On the whole, his character was, in its mass, perfect, in nothing bad, in few points indifferent; and it may truly be said, that never did nature and fortune combine more perfectly to make a man great, and to place him in the same constellation with whatever worthies have merited from man an everlasting remembrance. For his was the singular destiny and merit, of leading the armies of his country successfully through an arduous war, for the establishment of its independence; of conducting its councils through the birth of a government, new in its forms and principles, until it had settled down into a quiet and orderly train; and of scrupulously obeying the laws through the whole of his career, civil and military, of which the history of the world furnishes no other example.
How, then, can it be perilous for you to take such a man on your shoulders? I am satisfied the great body of republicans think of him as I do. We were, indeed, dissatisfied with him on his ratification of the British treaty. But this was short lived. We knew his honesty, the wiles with which he was encompassed, and that age had already began to relax the firmness of his purposes; and I am convinced he is more deeply seated in the love and gratitude of the republicans, than in the Pharisaicalhomage of the federal monarchists. For he was no monarchist from preference of his judgment. The soundness of that gave him correct views of the rights of man, and his severe justice devoted him to them. He has often declared to me that he considered our new constitution as an experiment on the practicability of republican government, and with what dose of liberty man could be trusted for his own good; that he was determined the experiment should have a fair trial, and would lose the last drop of his blood in support of it. And these declarations he repeated to me the oftener and more pointedly, because he knew my suspicions of Colonel Hamilton's views, and probably had heard from him the same declarations which I had, to wit, "that the British constitution, with its unequal representation, corruption and other existing abuses, was the most perfect government which had ever been established on earth, and that a reformation of those abuses would make it an impracticable government." I do believe that General Washington had not a firm confidence in the durability of our government. He was naturally distrustful of men, and inclined to gloomy apprehensions; and I was ever persuaded that a belief that we must at length end in something like a British constitution, had some weight in his adoption of the ceremonies of levees, birth-days, pompous meetings with Congress, and other forms of the same character, calculated to prepare us gradually for a change which he believed possible, and to let it come on with as little shock as might be to the public mind.
These are my opinions of General Washington, which I would vouch at the judgment seat of God, having been formed on an acquaintance of thirty years. I served with him in the Virginia legislature from 1769 to the Revolutionary war, and again, a short time in Congress, until he left us to take command of the army. During the war and after it we corresponded occasionally, and in the four years of my continuance in the office of Secretary of State, our intercourse was daily, confidential and cordial. After I retired from that office, great and malignant pains were taken by our federal monarchists, and not entirely without effect,to make him view me as a theorist, holding French principles of government, which would lead infallibly to licentiousness and anarchy. And to this he listened the more easily, from my known disapprobation of the British treaty. I never saw him afterwards, or these malignant insinuations should have been dissipated before his just judgment, as mists before the sun. I felt on his death, with my countrymen, that "verily a great man hath fallen this day in Israel."
More time and recollection would enable me to add many other traits of his character; but why add them to you who knew him well? And I cannot justify to myself a longer detention of your paper.
Vale, proprieque tuum, me esse tibi persuadeas.
Monticello, January 9, 1814.
Sir,—I have duly received your favor of December 22d, informing me that the New York Historical Society had been pleased to elect me an honorary member of that institution. I am entirely sensible of the honor done me by this election, and I pray you to become the channel of my grateful acknowledgments to the society. At this distance, and at my time of life, I cannot but be conscious how little it will be in my power to further their establishment, and that I should be but an unprofitable member, carrying into the institution indeed, my best wishes for its success, and a readiness to serve it on any occasion which should occur. With these acknowledgments, be so good as to accept for the society, as well as for yourself, the assurances of my high respect and consideration.
Monticello, January 9, 1814.
Sir,—I have duly received your favor of the 13th of December, informing me of the institution of the American Antiquarian Society, and expressing its disposition to honor me with an admission into it, and the request of my co-operation in the advancement of its objects. No one can be more sensible of the honor and the favor of these dispositions, and I pray you to have the goodness to testify to them all the gratitude I feel on receiving assurances of them. There has been a time of life when I should have entered into their views with zeal, and with a hope of not being altogether unuseful. But, now more than septuagenary, retired from the active scenes and business of life, I am sensible how little I can contribute to the advancement of the objects of their views; but I shall certainly, and with great pleasure, embrace any occasion which shall occur, of rendering them any services in my power. With these assurances, be so good as to accept for them and for yourself, those of my high respect and consideration.
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 theaddenda et corrifenda, and especially the parallelswith 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'sDe legibus Angliæ; 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, 22d, 23d 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 hisContumes Anglo Normandes(188), and the pious judges of England have had no inclination to question it; [of 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. He 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 whichthe English so often, under the Norman princes, petitioned to have restored to them. But, all records previous to theMagna Chartahaving 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 & Wilkins, and the treatise of Glanville,temporeH. 2. Bracton's is the more valuable, because being written a very few years after theMagna 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 very 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 admittedas 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 Blackstone'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.[8]A further operationindeed, 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.[9]
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 our 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, Bollman'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 toa sound comparative estimate of the vast value of internal commerce, and the disproportionate importance of what is foreign, is the most 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 burthen 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 ofRobin'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.[10]
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.[11]
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.
Monticello, January 16, 1814.
Sir,—In August last I received a letter from Mr. Isaac McPherson of Baltimore, on the controversies subsisting between yourself and some persons in that quarter interested in mills. These related to your patent rights for the elevators, conveyors, and hopper-boys; and he requested any information I could give him on that subject. Having been formerly a member of the patent board, as long as it existed, and bestowed in the execution of that trust much consideration on the questions belonging to it, I thought it an act of justice, and indeed of duty, to communicate such facts and principles as had occurred to me on the subject. I therefore wrote the letter of August 13, which is the occasion of your favor to me of the 7th instant, just now received, but without the report of the case tried in the circuit court of Maryland, or your memorial to Congress, mentioned in the letter as accompanying it. You request an answer to your letter, which my respect and esteem for you would of themselves have dictated; but I am not certain that I distinguish the particular points to which you wish a specific answer. You agree in the letter, that the chain of buckets and Archimedes screw are old inventions; that every one had, and still has, a right to use them and the hopper-boy, if that also existed previously, in the forms and constructions known before your patent; and that, therefore, you have neither a grant nor claim, to the exclusive right of using elevators, conveyors, hopper-boys, or drills, but only of the improved elevator, the improved hopper-boy, &c. In this, then, we are entirely agreed, and your right to your own improvements in the construction of these machines is explicitly recognized in my letter. I think, however, that your letter claims something more, although it is not so explicitly defined as to convey to my mind the precise idea which you perhaps meant to express. Your letter says that your patent is for your improvement in the manufacture of flour by the application of certain principles, and of such machinery as will carry those principles into operation,whether of the improved elevator, improved hopper-boy, or (without being confined to them) of any machinery known and free to the public. I can conceive how a machine may improve the manufacture of flour; but not how aprincipleabstracted from any machine can do it. It must then be the machine, and the principle of that machine, which is secured to you by your patent. Recurring now to the words of your definition, do they mean that, while all are free to use the old string of buckets, and Archimedes' screw for the purposes to which they had been formerly applied, you alone have the exclusive right to apply them to the manufacture of flour? that no one has a right to apply his old machines to all the purposes of which they are susceptible? that every one, for instance, who can apply the hoe, the spade, or the axe to any purpose to which they have not been before applied, may have a patent for the exclusive right to that application? and may exclude all others, under penalties, from so using their hoe, spade, or axe? If this be the meaning, my opinion that the legislature never meant by the patent law to sweep away so extensively the rights of their constituents, to environ everything they touch with snares, is expressed in the letter of August 13, from which I have nothing to retract, nor ought to add but the observation that if a new application of our old machines be a ground of monopoly, the patent law will take from us much more good than it will give. Perhaps it may mean another thing, that while every one has a right to the distinct and separate use of the buckets, the screw, the hopper-boy, in their old forms, the patent gives you the exclusive right to combine their uses on the same object. But if we have a right to use three things separately, I see nothing in reason, or in the patent law, which forbids our using them all together. A man has a right to use a saw, an axe, a plane separately; may he not combine their uses on the same piece of wood? He has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject? Such a law, instead of enlarging our conveniences,as was intended, would most fearfully abridge them, and crowd us by monopolies out of the use of the things we have.
I have no particular interest, however, in these questions, nor any inclination to be the advocate of either party; and I hope I shall be excused from it. I shall acquiesce cheerfully in the decisions in your favor by those to whom the laws have confided them, without blaming the other party for being unwilling, when so new a branch of science has been recently engrafted on our jurisprudence, one with which its professors have till now had no call to make themselves acquainted, one bearing little analogy to their professional educations or pursuits. That they should be unwilling, I say, to admit that one or two decisions, before inferior and local tribunals, before the questions shall have been repeatedly and maturely examined in all their bearings, before the cases shall have presented themselves in all their forms and attitudes, before a sanction by the greater part of the judges on the most solemn investigations, and before the industry and intelligence of many defendants may have excited to efforts for the vindication of the general rights of the citizen; that one or other of the precedents should forever foreclose the whole of a new subject.
To the publication of this answer with your letter, as you request, I have no objection. I wish right to be done to all parties, and to yourself, particularly and personally, the just rewards of genius; and I tender you the assurances of my great esteem and respect.
Monticello, January 17, 1814.
Dear Sir,—In your last letter to me you expressed a desire to look into the question whether, by the laws of nature, one generation of men can, by any act of theirs, bind those which are to follow them? I say, by the laws of nature, there being between generation and generation, as between nation and nation, no other obligatory law; and you requested to see what I had said on the subject to Mr. Eppes. I enclose,for your ownperusal, therefore, three letters which I wrote to him on the course of our finances, which embrace the question before stated. When I wrote the first, I had no thought of following it by a second. I was led to that by his subsequent request, and after the second I was induced, in a third, to take up the subject of banks, by the communication of a proposition to be laid before Congress for the establishment of a new bank. I mention this to explain the total absence of order in these letters as a whole. I have said above that they are sent foryour own perusal, not meaning to debar any use of the matter, but only that my name may in nowise be connected with it. I am too desirous of tranquillity to bring such a nest of hornets on me as the fraternities of banking companies, and this infatuation of banks is a torrent which it would be a folly for me to get into the way of. I see that it must take its course, until actual ruin shall awaken us from its delusions. Until the gigantic banking propositions of this winter had made their appearance in the different legislatures, I had hoped that the evil might still be checked; but I see now that it is desperate, and that we must fold our arms and go to the bottom with the ship. I had been in hopes that good old Virginia, not yet so far embarked as her northern sisters, would have set the example this winter, of beginning the process of cure, by passing a law that, after a certain time, suppose of six months, no bank bill of less than ten dollars should be permitted. That after some other reasonable term, there should be none less than twenty dollars, and so on, until those only should be left in circulation whose size would be above the common transactions of any but merchants. This would ensure to us an ordinary circulation of metallic money, and would reduce the quantum of paper within the bounds of moderate mischief. And it is the only way in which the reduction can be made without a shock to private fortunes. A sudden stoppage of this trash, either by law or its own worthlessness, would produce confusion and ruin. Yet this will happen by its own extinction, if left to itself. Whereas, by a salutary interposition of the legislature, it may be withdrawn insensibly and safely. Such a mode of doing it, too,would give less alarm to the bank-holders, the discreet part of whom must wish to see themselves secured by some circumscription. It might be asked what we should do for change? The banks must provide it, first to pay off their five-dollar bills, next their ten-dollar bills and so on, and they ought to provide it to lessen the evils of their institution. But I now give up all hope. After producing the same revolutions in private fortunes as the old Continental paper did, it will die like that, adding a total incapacity to raise resources for the war.
Withdrawing myself within the shell of our own State, I have long contemplated a division of it into hundreds or wards, as the most fundamental measure for securing good government, and for instilling the principles and exercise of self-government into every fibre of every member of our commonwealth. But the details are too long for a letter, and must be the subject of conversation, whenever I shall have the pleasure of seeing you. It is for some of you young legislators to immortalize yourselves by laying this stone as the basis of our political edifice.
I must ask the favor of an early return of the enclosed papers, of which I have no copy. Ever affectionately yours.
Monticello, January 20, 1814.
Sir,—I have duly received your favor of the 7th, informing me that the American Philosophical Society, at their meeting of that day, had been pleased unanimously to elect me as President of the Society. I receive with just sensibility this proof of their continued good will, and pray you to assure them of my gratitude for these favors, of my devotedness to their service, and the pleasure with which at all times I should in any way be made useful to them.
For yourself be pleased to accept the assurance of my great esteem and respect.
Monticello, January 24, 1814.
Dear Sir,—I have great need of the indulgence so kindly extended to me in your favor of December 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 second the accumulation of business during my absence, some of which imperiously commands first attentions. I am now in arrear to you for your letters of November 12, 14, 16, December 3, 19, 25.
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You ask me if I have ever seen the work of I. W. Goethen's Schriften? 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 second 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 inquiry into it; and such tricks have been played with their text, and with the texts 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 imbedding it, anywhere, and at any time. I have nothing of Vives, or Budæus, 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 practised, and ofthe 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,premisesto his work four chapters of Exodus (from the 20th to the 23d) as a part of the laws of the land; so that Alfred'sprefaceis 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, p. 38, inQuære impedit, 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, enancien scripture, covient a nous a donner credence; car ces common luy sur quels touts manners leis sont fondes; et auxy, siv, nous sumus obliges de canustre lour esy de saint eglise,"&c. Finch begins the business of falsification by mistranslating and mistating the words of Prisot thus: "to such laws of the church as have warrant inholy scriptureour law giveth credence." Citing the above case and the words of Prisot in the margin, Finch's law, B. 1, c. 3, here then we findancien 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 Sir Matthew Hale, in the case of the Kingv.Taylor,1 Ventr. 293, 3 Keb. 607, and declares that "Christianity is part and parcel of the laws of England." Citing nobody, and resting it, with his judgment against the witches, 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 1728, in the Kingv.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 blaspheming and profaneness are offences at the common law, and cites Strange. Blackstone, in 1763, repeats, in the words of Sir Matthew Hale, that "Christianity is part of the laws of England," citing Ventris and Strange,ubi supra. And Lord Mansfield, in the case of the Chamberlain of Londonv.Evans, in 1767, qualifying somewhat the position, says that "the essential principles of revealed religion are part of the common law." Thus we find this string of authorities all hanging by one another on a single hook, a mistranslation 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 Lord Mansfield volunteers his ownipse 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 salvo, what the English judges had less cautiously declared without any restriction? And what, I dare say, our cunning Chief Justice 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. May we not say then with him who was all candorand benevolence, "woe unto you, ye lawyers, for ye lade men with burthens grievous to bear."
I think with you, that Priestley, in his comparison of the doctrines of philosophy and revelation, did not do justice to the undertaking. But he felt himself pressed by the hand of death. Enfield has given us a more distinct account of the ethics of the ancient philosophers; but the great work of which Enfield's is an abridgment, Brucker's History of Philosophy, is the treasure which I would wish to possess, as a book of reference or of special research only, for who could read six volumes quarto, of one thousand pages each, closely printed, of modern Latin? Your account of D'Argens' Œileus makes me wish for him also. Œileus furnishes a fruitful text for a sensible and learned commentator. The Abbé Batteaux, which I have, is a meagre thing.
You surprise me with the account you give of the strength of family distinction still existing in your State. With us it is so totally extinguished, that not a spark of it is to be found but lurking in the hearts of some of our old tories; but all bigotries hang to one another, and this in the Eastern States hangs, as I suspect, to that of the priesthood. Here youth, beauty, mind and manners, are more valued than a pedigree.
I do not remember the conversation between us which you mention in yours of November 15th, on your proposition to vest in Congress the exclusive power of establishing banks. My opposition to it must have been grounded, not on taking the power from the States, but on leaving any vestige of it in existence, even in the hands of Congress; because it would only have been a change of the organ of abuse. I have ever been the enemy of banks, not of those discounting for cash, but of those foisting their own paper into circulation, and thus banishing our cash. My zeal against those institutions was so warm and open at the establishment of the Bank of the United States, that I was derided as a maniac by the tribe of bank-mongers, who were seeking to filch from the public their swindling and barren gains. But the errors of that day cannot be recalled. The evils they have engendered are now upon us, and the question is how we are to getout of them? Shall we build an altar to the old paper money of the revolution, which ruined individuals but saved the republic, and burn on that all the bank charters, present and future, and their notes with them? For these are to ruin both republic and individuals. This cannot be done. The mania is too strong. It has seized, by its delusions and corruptions, all the members of our governments, general, special and individual. Our circulating paper of the last year was estimated at two hundred millions of dollars. The new banks now petitioned for, to the several legislatures, are for about sixty millions additional capital, and of course one hundred and eighty millions of additional circulation, nearly doubling that of the last year, and raising the whole mass to near four hundred millions, or forty for one, of the wholesome amount of circulation for a population of eight millions circumstanced as we are, and you remember how rapidly our money went down after our forty for one establishment in the revolution. I doubt if the present trash can hold as long. I think the three hundred and eighty millions must blow all up in the course of the present year, or certainly it will be consummated by the re-duplication to take place of course at the legislative meetings of the next winter. Should not prudent men, who possess stock in any monied institution, either draw and hoard the cash now while they can, or exchange it for canal stock, or such other as being bottomed on immovable property, will remain unhurt by the crush? I have been endeavoring to persuade a friend in our legislature to try and save this State from the general ruin by timely interference. I propose to him, First, to prohibit instantly, all foreign paper. Secondly, to give our banks six months to call in all their five-dollar bills (the lowest we allow); another six months to call in their ten-dollar notes, and six months more to call in all below fifty dollars. This would produce so gradual a diminution of medium, as not to shock contracts already made—would leave finally, bills of such size as would be called for only in transactions between merchant and merchant, and ensure a metallic circulation for those of the mass of citizens. But it will not be done. You might aswell, with the sailors, whistle to the wind, as suggest precautions against having too much money. We must bend then before the gale, and try to hold fast ourselves by some plank of the wreck. God send us all a safe deliverance, and to yourself every other species and degree of happiness.
P. S. I return your letter of November 15th, as it requests, and supposing that the late publication of the life of our good and really great Rittenhouse may not have reached you, I send a copy for your acceptance. Even its episodes and digressions may add to the amusement it will furnish you. But if the history of the world were written on the same scale, the whole world would not hold it. Rittenhouse, as an astronomer, would stand on a line with any of his time, and as a mechanician, he certainly has not been equalled. In this view he was truly great; but, placed along side of Newton, every human character must appear diminutive, and none would have shrunk more feelingly from the painful parallel than the modest and amiable Rittenhouse, whose genius and merit are not the less for this exaggerated comparison of his over zealous biographer.
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 wantableofficers, 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 givenportion 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.
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 thereforeenclose 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.
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 notdeclare, 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 althoughsome 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.
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 thedeath 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 theEcclesiastical lawto admit either, until an inquisitionde jure patronatus, in the ecclesiastical court: that, by the same law, this inquisition was to be at the suit of either claimant, and was notex-officioto 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 theEcclesiastical lawwas 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 enancien 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 inHoly 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 theancient writtenlaws 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 Scripturesso 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 estlax 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 Kingv.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 Kingv.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 thecommon law, and cites Strangeubi 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 Strangeubi 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 Londonv.Evans, 1767. But he cites no authority, and leaves usat 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 lawsLeges 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 theLex 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 knowthat 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, orlex non scripta, and commences that of the statute law, orLex 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 thereforegives 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 hisContumes Anglo-Normandes,1. 87, notices the falsification of the laws of Alfred, by prefixing to themfour 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 ahors d'œuvreof 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 "atcommon lawwitchcraft was punished with death as heresy, by writde 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 inthe 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 inforo 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.