Monticello Oct. 15. 24.
I have yet to thank you for your Q.C.N. oration delivered in presence of Genl La Fayette. it is all excellent, much of it sublimely so, well worthy of it’s author and his subject, of whom we may truly say, as was said of Germanicus, ‘fruitur famâ sui.’
Your letter of Sep. 10. gave me the first information that mine to Majr Cartwright had got into the newspapers; and the first notice indeed that he had recieved it. I was a stranger to his person, but not to his respectable and patriotic character. I recieved from him a long and interesting letter, and answered it with frankness, going without reserve into several subjects, to which his letter had led, but on which I did not suppose I was writing for the newspapers. the publication of a letter in such a case, without the consent of the writer, is not a fair practice.
The part which you quote may draw on me the host of judges & divines. they may cavil, but cannot repute it. those who read Prisot’s opinion, with a candid view to understand, and not to chicane it, cannot mistake its meaning. the Reports in the Year books were taken very short. the opinions of the judges were written down sententiously, as notes or memoranda, and not with all the developement which they probably used in delivering them. Prisot’s opinion, to be fully expressed, should be thus paraphrased. ‘to such laws as those of holy church have recorded and preserved in their antient books and writings, it is proper for us to give credence; for so is, or so says, the Common law, or law of the land, on which all manner of other laws rest for their authority, or are founded; that is to say, the Common law, or the law of the land common to us all, and established by the authority of us all, is that from which is derived the authority of all other special and subordinate branches of law, such as the Canon law, law Merchant, law Maritime, law of Gavelkind, Borough English, Corporation laws, local Customs and Usages, to all of which the Common law requires it’s judges to permit authority in the special or local cases belonging to them. the evidence of these laws is preserved in their ancient treatises, books and writings, in like manner our own Common law itself is known, the text of it’s original enactments having been long lost, and it’s substance only preserved in antient and traditionary writings. and if it appears, from their antient books, writings and records, that the bishop, in this case, according to the rules prescribed by these authorities, has some what an Ordinary would have done in such case, then we should adjudge it good, otherwise not.’—to decide this question they would have to turn to the antient writings and records of the Canon law, in which they would find evidence of the laws of advowsons, quare impedit, the duties of Bishops and Ordinaries, for which terms Prisot could never have meant to refer them to the old or new testament, les saincts scriptures, where surely they would not be found. a license which should permit ‘anciens scripture’ to be translated ‘holy scriptures,’ annihilates at once all the evidence of language. with such a licence we might reverse the 6th commandment into ‘thou shalt not omit murder.’ it would be the more extraordinary in this case, where the mistranslation was to effect the adoption of the whole Code of the Jewish and Christian laws into the text of our statutes, to convert religious offences into temporal crimes, to make the breach of every religious precept a subject of indictment, submit the question, of idolatry, for example, to the trial of a jury, and, to a court, it’s punishment to the 3d and 4th generation of the offender. do we allow to our judges this lumping legislation?
The term ‘Common law,’ altho’ it has more than one meaning, is perfectly definite, secundum subjectam materiem. it’s most probable origin was on the conquest of the Heptarchy by Alfred, and the amalgamation of their several codes of law into one, which became common to them all. the authentic text of these enactments has not been preserved; but their substance has been committed to many antient books and writings, so faithfully as to have been deemed genuine from generation to generation, and obeyed as such by all. we have some fragments of them collected by Lambard, Wilkins and others, but abounding with proofs of their spurious authenticity. Magna charta is the earliest statute, the text of which has come down to us in authentic form, and from thence downward we have them entire. we do not know exactly when the Common law, and Statute law, the lex scripta, et non scripta, began to be contradistinguished, so as to give a 2d acceptation to the former term; whether before, or after, Prisot’s day? at which time we know that nearly two centuries and a half of statutes were in preservation.—in later times, on the introduction of the Chancery branch of law, the term Common law began to be used in a 3d sense, as the correlative of Chancery-law. this however having been long after Prisot’s time could not have been the sense in which he used the term. he must have meant the antient lex non scripta, because had he used it as inclusive of the lex scripta he would have put his finger on the statute which had enjoined on the judges a deference to the laws of holy church. but no such statute existing, he must have referred to the Common law in the sense of a lex non scripta. Whenever then the term Common law is used in either of these senses, and it is never employed in any other, it is readily known, in which of them, by the context, and subject matter under consideration. which, in the present case, leaves no room for doubt.
I do not remember the occasion which led me to take up this subject, while a practitioner of the law. but I know I went into it with all the research which a very copious law library enabled me to indulge; and I fear not for the accuracy of any of my quotations. the doctrine might be disproved by many other and different topics of reasoning: but having satisfied myself of the origin of the forgery, and found how, like a rolling snow-ball, it had gathered volume, I leave it’s further pursuit to those who need further proof. and perhaps I have already gone further than the feeble doubt you expressed might require.
MHi: Edward Everett Papers.