1441. COMMON LAW, Christianity and.—[continued].
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 development
which they probably used in developing them.
Prisot's opinion, to be fully expressed, should
be thus paraphrased: “To such laws as those
holy church have recorded, and preserved in
their ancient 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 its 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 as our common law itself is
known, the text of its original enactments
having been long lost, and its substance only
preserved in ancient and traditionary writings.
And if it appears, from their ancient
books, writings and records, that the bishop,
in this case, according to the rules prescribed
by these authorities, has done 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 ancient 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 “ancien scrip
ture,” to be translated “holy scripture,” annihilates
at once all the evidence of language.
With such a license, we might reverse
the sixth 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
offenses into temporal crimes, to make
the breach of every religious precept a subject
of indictment; to submit the question of
idolatry, for example, to the trial of a jury,
and to a court, its judgment, to the third and
fourth generation of the offender. Do we allow
our judges this lumping legislation?—
To Edward Everett. Washington ed. vii, 381.
(M.
1824)
