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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 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 Cullendar 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 concientiae_； 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