The Writings of Thomas Jefferson, Vol. 6 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and PrivateJefferson, Thomas
History
The Writings of Thomas Jefferson, Vol. 6 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private
Jefferson, Thomas
United States -- Politics and government -- 1775-1783; United States -- Politics and government -- 1783-1865
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
Public-domain text, read in full here on John Shaqi.
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