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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
Scriptae； 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 fore
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'oeuvre_ 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 ＇symbol omitted＇
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