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much of it sublimely so, well worthy of its author and his subject, of whom we may truly say, as was said of Germanicus, “fruitur famâ sui.”
Your letter of September the 10th gave me the first information that mine to Major Cartwright had got into the newspapers; and the first notice, indeed, that he had received it.
I was a stranger to his person, but not to his respectable and patriotic character. I received 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 and divines. They may cavil but cannot refute 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 development 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 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 own 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 scripture” 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 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, its punishment, to the third and fourth generation of the offender. Do we allow to our judges this lumping legislation ?
The term “common law,” although it has more than one meaning, is perfectly definite, secundum subjectam materiem. Its 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 ancient 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 an authentic form, and 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 contra-distinguished, so as to give a second
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 third 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 ancient 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, leave 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 its further pursuit to those who need further proof, and perhaps I have already gone further than the feeble doubt you expressed might require.
I salute you with great esteem and respect.
MONTICELLO, December 22, 1824. DEAR SIR,—The proposition to remove William and Mary College to Richmond with all its present funds, and to add to it a musical school, is nothing more nor less than to remove the University also to that place. Because, if both remain, there will not be students enough to make either worthy the acceptance of men of the first order of science. They must each fall down to the level of our present academies, under the direction of common teachers, and our state of education must stand exactly where it now is. Few of the States have been able to maintain one university, none two. Surely the legislature, after such an expense incurred for a real university, and just as it is prepared to go into action under hopeful auspices, will not consent to destroy it by this side-wind. As to the best course to be taken with William and Mary, I am not so good a judge as our colleagues on the spot. They have under their eyes the workings of the enemics of the University, masked and unmasked, and the intrigues of Richmond, which, after failing to obtain it in the first instance, endeavors to steal its location at this late hour. And they can best see what measures are most likely to counteract these insidious designs. On the question of the removal, I think our particular friends had better take no active part, but vote silently for or against it, according to their own judgment as to the public utility; and if they divide on the question, so much the better perhaps. I am glad the visitors and professors have invoked the interference of the legislature, because it is an acknowledgment of its authority on behalf of the State to superintend and control it, of which I never had a doubt. It is an institution established for the public good, and not for the personal emolument of the professors, endowed from the public lands and organized by the executive functionary whose legal office it was. The acquiescence of both corporations under the authority of the legislature, removes what might otherwise have been a difficulty with some. If the question of removal be decided affirmatively, the next is, how shall their funds be disposed of most advantageously for the State in general ? These are about one hundred thousand dollars too much for a secondary or local institution. The giving a part of them to a school at Winchester, and part to Hampden Sidney, is well, as far as it goes; but does not go far enough. Why should not every part of the Stats participate equally of the benefit of this reversion of right which
accrues to the whole equally ? This would be no more a violation of law than the giving it to a few. You know that the Rockfish report proposed an intermediate grade of schools between the primary and the university. In that report the objects of the middle schools are stated. See page 10 of the copy I now enclose you. In these schools should be taught Latin and Greek, to a good degree, French also, numerical arithmetic, the elements of geometry, surveying, navigation, geo raphy, the use of the globes, the outlines of the solar system, and elements of natural philosophy. Two professors would suffice for these, to wit: one for languages, the other for so much of mathematics and natural philosophy as is here proposed. This degree of education would be adapted to the circumstances of a very great number of our citizens, who, being intended for lives of business, would not aim at an university education. It would give us a body of yeomanry, too, of substantial information, well prepared to become a firm and steady support to the government; as schools of ancient languages, too, they would be preparatories for the University.
You have now an happy opportunity of carrying this intermediate establishment into execution without laying a cent of tax on the people, or taking one from the treasury. Divide the State into college districts of about eighty miles square each. There would be about eight such districts below the Alleghany, and two beyond it, which would be necessarily of larger extent because of the sparseness of their population. The only advance these colleges would call for, would be for a dwelling house for the teacher, of about one thousand two hundred dollars cost, and a boarding house with four or five bed rooms, and a school room for probably about twenty or thirty boys. The whole should not cost more than five thousand dollars, but the funds of William and Mary would enable you to give them ten thousand dollars each. The districts might be so laid off that the principal towns and the academies now existing might form convenient sites for their colleges; as, for example, Williamsburgh, Richmond, Fredericksburg, Hampden Sidney, Lynchburg or Lexing