The Writings of Thomas Jefferson, Vol. 6 (of 9)

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.

TO DR. JOHN MANNERS

Monticello, February 22, 1814.

Sir,—The opinion which, in your letter of January 24, you are pleased to ask of me, on the comparative merits of the different methods of classification adopted by different writers on Natural History, is one which I could not have given satisfactorily, even at the earlier period at which the subject was more familiar; still less, after a life of continued occupation in civil concerns has so much withdrawn me from studies of that kind. I can, therefore, answer but in a very general way. And the text of this answer will be found in an observation in your letter, where, speaking of nosological systems, you say that disease has been found to be an unit. Nature has, in truth, produced units only through all her works. Classes, orders, genera, species, are not of her work. Her creation is of individuals. No two animals are exactly alike; no two plants, nor even two leaves or blades of grass; no two crystallizations. And if we may venture from what is within the cognizance of such organs as ours, to conclude on that beyond their powers, we must believe that no two particles of matter are of exact resemblance. This infinitude of units or individuals being far beyond the capacity of our memory, we are obliged, in aid of that, to distribute them into masses, throwing into each of these all the individuals which have a certain degree of resemblance; to subdivide these again into smaller groups, according to certain points of dissimilitude observable in them, and so on until we have formed what we call a system of classes, orders, genera and species. In doing this, we fix arbitrarily on such characteristic resemblances and differences as seem to us most prominent and invariable in the several subjects, and most likely to take a strong hold in our memories. Thus Ray formed one classification on such lines of division as struck him most favorably; Klein adopted another; Brisson a third, and other naturalists other designations, till Linnæus appeared. Fortunately for science, he conceived in the three kingdoms of nature, modes of classification which obtained the approbation of the learned of all nations. His system was accordingly adopted by all, and united all in a general language. It offered the three great desiderata: First, of aiding the memory to retain a knowledge of the productions of nature. Secondly, of rallying all to the same names for the same objects, so that they could communicate understandingly on them. And Thirdly, of enabling them, when a subject was first presented, to trace it by its character up to the conventional name by which it was agreed to be called. This classification was indeed liable to the imperfection of bringing into the same group individuals which, though resembling in the characteristics adopted by the author for his classification, yet have strong marks of dissimilitude in other respects. But to this objection every mode of classification must be liable, because the plan of creation is inscrutable to our limited faculties. Nature has not arranged her productions on a single and direct line. They branch at every step, and in every direction, and he who attempts to reduce them into departments, is left to do it by the lines of his own fancy. The objection of bringing together what are disparata in nature, lies against the classifications of Blumenbach and of Cuvier, as well as that of Linnæus, and must forever lie against all. Perhaps not in equal degree; on this I do not pronounce. But neither is this so important a consideration as that of uniting all nations under one language in Natural History. This had been happily effected by Linnæus, and can scarcely be hoped for a second time. Nothing indeed is so desperate as to make all mankind agree in giving up a language they possess, for one which they have to learn. The attempt leads directly to the confusion of the tongues of Babel. Disciples of Linnæus, of Blumenbach, and of Cuvier, exclusively possessing their own nomenclatures, can no longer communicate intelligibly with one another. However much, therefore, we are indebted to both these naturalists, and to Cuvier especially, for the valuable additions they have made to the sciences of nature, I cannot say they have rendered her a service in this attempt to innovate in the settled nomenclature of her productions; on the contrary, I think it will be a check on the progress of science, greater or less, in proportion as their schemes shall more or less prevail. They would have rendered greater service by holding fast to the system on which we had once all agreed, and by inserting into that such new genera, orders, or even classes, as new discoveries should call for. Their systems, too, and especially that of Blumenbach, are liable to the objection of giving too much into the province of anatomy. It may be said, indeed, that anatomy is a part of natural history. In the broad sense of the word, it certainly is. In that sense, however, it would comprehend all the natural sciences, every created thing being a subject of natural history in extenso. But in the subdivisions of general science, as has been observed in the particular one of natural history, it has been necessary to draw arbitrary lines, in order to accommodate our limited views. According to these, as soon as the structure of any natural production is destroyed by art, it ceases to be a subject of natural history, and enters into the domain ascribed to chemistry, to pharmacy, to anatomy, &c. Linnæus' method was liable to this objection so far as it required the aid of anatomical dissection, as of the heart, for instance, to ascertain the place of any animal, or of a chemical process for that of a mineral substance. It would certainly be better to adopt as much as possible such exterior and visible characteristics as every traveller is competent to observe, to ascertain and to relate. But with this objection, lying but in a small degree, Linnæus' method was received, understood, and conventionally settled among the learned, and was even getting into common use. To disturb it then was unfortunate. The new system attempted in botany, by Jussieu, in mineralogy, by Haüy, are subjects of the same regret, and so also the no-system of Buffon, the great advocate of individualism in opposition to classification. He would carry us back to the days and to the confusion of Aristotle and Pliny, give up the improvements of twenty centuries, and co-operate with the neologists in rendering the science of one generation useless to the next by perpetual changes of its language. In botany, Wildenow and Persoon have incorporated into Linnæus the new discovered plants. I do not know whether any one has rendered us the same service as to his natural history. It would be a very acceptable one. The materials furnished by Humboldt, and those from New Holland particularly, require to be digested into the Catholic system. Among these, the Ornithorhyncus mentioned by you, is an amusing example of the anomalies by which nature sports with our schemes of classification. Although without mammæ, naturalists are obliged to place it in the class of mammiferæ; and Blumenbach, particularly, arranges it in his order of Palmipeds and toothless genus, with the walrus and manatie. In Linnæus' system it might be inserted as a new genus between the anteater and manis, in the order of Bruta. It seems, in truth, to have stronger relations with that class than any other in the construction of the heart, its red and warm blood, hairy integuments, in being quadruped and viviparous, and may we not say, in its tout ensemble, which Buffon makes his sole principle of arrangement? The mandible, as you observe, would draw it towards the birds, were not this characteristic overbalanced by the weightier ones before mentioned. That of the Cloaca is equivocal, because although a character of birds, yet some mammalia, as the beaver and sloth, have the rectum and urinary passage terminating at a common opening. Its ribs also, by their number and structure, are nearer those of the bird than of the mammalia. It is possible that further opportunities of examination may discover the mammæ. Those of the Opossum are asserted, by the Chevalier d'Aboville, from his own observations on that animal, made while here with the French army, to be not discoverable until pregnancy, and to disappear as soon as the young are weaned. The Duckbill has many additional particularities which liken it to other genera, and some entirely peculiar. Its description and history needs yet further information.

In what I have said on the method of classing, I have not at all meant to insinuate that that of Linnæus is intrinsically preferable to those of Blumenbach and Cuvier. I adhere to the Linnean because it is sufficient as a ground-work, admits of supplementary insertions as new productions are discovered, and mainly because it has got into so general use that it will not be easy to displace it, and still less to find another which shall have the same singular fortune of obtaining the general consent. During the attempt we shall become unintelligible to one another, and science will be really retarded by efforts to advance it made by its most favorite sons. I am not myself apt to be alarmed at innovations recommended by reason. That dread belongs to those whose interests or prejudices shrink from the advance of truth and science. My reluctance is to give up an universal language of which we are in possession, without an assurance of general consent to receive another. And the higher the character of the authors recommending it, and the more excellent what they offer, the greater the danger of producing schism.

I should seem to need apology for these long remarks to you who are so much more recent in these studies, but I find it in your particular request and my own respect for it, and with that be pleased to accept the assurance of my esteem and consideration.

JOHN ADAMS TO THOMAS JEFFERSON

Quincy, February, 1814.

Dear Sir,—I was nibbing my pen and brushing my faculties, to write a polite letter of thanks to Mr. Counsellor Barton, for his valuable memoirs of Dr. Rittenhouse, (though I could not account for his sending it to me), when I received your favor of January 25th. I now most cordially endorse my thanks over to you. The book is in the modern American style, an able imitation of Marshall's Washington, though far more entertaining and instructive; a Washington Mausoleum; an Egyptian pyramid. I shall never read it any more than Taylor's aristocracy. Mrs. Adams reads it with great delight, and reads to me what she finds interesting, and that is indeed the whole book. I have not time to hear it all.

Rittenhouse was a virtuous and amiable man, an exquisite mechanician, master of the astronomy known in his time; an expert mathematician, a patient calculator of numbers. But we have had a Winthrop, an Andrew Oliver, a Willard, a Webber, his equals, and we have a Bowditch his superior in all these particulars, except the mechanism. But you know Philadelphia is the heart, the censorium, the pineal gland of the United States.

In politics, Rittenhouse was a good, simple, ignorant, well-meaning, Franklinian democrat, totally ignorant of the world. As an anchorite, an honest dupe of the French Revolution; a mere instrument of Jonathan Dickinson Sargent, Dr. Hutchinson, Genet, and Mifflin, I give him all the credit of his Planetarium. The improvement of the Orrery to the Planetarium was an easy, natural thought, and nothing was wanting but calculations of orbits Distranus, and periods of revolutions; all of which were made to his hands long before he existed. Patience, perseverance, and sleight of hand, is his undoubted merit and praise. I had read Taylor in the Senate, till his style was so familiar to me that I had not read three pages, before I suspected the author. I wrote a letter to him, and he candidly acknowledged that the six hundred and fifty pages were sent me with his consent. I wait with impatience for the publication, and annunciation of the work. Arator ought not to have been adulterated with politics, but his precept "Gather up the fragments that nothing be lost," is of inestimable value in agriculture and horticulture. Every weed, cob, husk, stalk, ought to be saved for manure.

Your researches in the laws of England establishing Christianity as the law of the land, and part of the common law, are curious and very important. Questions without number will arise in this country. Religious controversies, and ecclesiastical contests, are as common, and will be as sharp as any in civil politics, foreign and domestic. In what sense, and to what extent the Bible is law, may give rise to as many doubts and quarrels as any of our civil, political, military, or maritime laws, and will intermix with them all, to irritate factions of every sort. I dare not look beyond my nose into futurity. Our money, our commerce, our religion, our National and State Constitutions, even our arts and sciences, are so many seed plots, of division, faction, sedition and rebellion. Everything is transmuted into an instrument of electioneering. Election is the grand Brahma, the immortal Lama, I had almost said, the Juggernaut; for wives are almost ready to burn upon the pile, and children to be thrown under the wheel. You will perceive, by these figures, that I have been looking into oriental history, and Hindoo religion. I have read voyages, and travels, and everything I could collect, and the last is Priestley's "Comparison of the Institutions of Moses with those of the Hindoos, and other Ancient Nations," a work of great labor, and not less haste. I thank him for the labor, and forgive, though I lament the hurry. You would be fatigued to read, and I, just recruiting from a little longer confinement and indisposition than I have had for thirty years, have not strength to write many observations. But I have been disappointed in the principal points of my curiosity: