October 15

[On October 15, 1824, I wrote to Edward Everett, proving that the "common law" was entirely secular in its origin (lex non scripta, or unwritten custom), meaning that Christian doctrine was never legally adopted as part of the foundational law of the United States.]

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.