Missouri's 7th District, U.S. House of Representatives




Congressional Issues 2012
The Common Law and Christianity

Congress should:
  • remember the Christian roots of the Common Law

The 7th Amendment of the Constitution says,

"In suits at common law. . . the right of trial by jury shall be preserved; and no fact, tried by a jury, shall be otherwise re-examined in any court of the United States than according to the rules of the common law."

Several unanimous Supreme Court decisions, and virtually every jurist and scholar in the world agrees that the Common Law is based on Christian principles and has a long Christian history. Jefferson, in an anti-Christian fit of irrationalism, claimed otherwise. He was wrong.

Back in 1999, I received an objection to this claim from a secularist:

>Here, many Christians believe that common law came from Christian foundations
>and therefore the Constitution derives from it. They use various quotes from
>Supreme Court Justices proclaiming that Christianity came as part of the laws
>of England, and therefore from its common law heritage.

This is a pretty slippery statement. We don't just quote "Justices," we quote the unanimous US Supreme Court:

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that,
"Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men."
And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on American law, speaking as chief justice of the supreme court of New York, said:
"The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of those doctrines in not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. * * * The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious [143 U.S. 457, 471] subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors."
And in the famous case of Vidal v. Girard's Ex'rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provisions for the creation of a college into which no minister should be permitted to enter, observed:
"it is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania."
Holy Trinity Church vs. United States (1892)

>But one of our principle


>Founding Fathers, Thomas Jefferson, elaborated about
>the history of common law in his letter to Thomas Cooper on February 10,

Jefferson's views on this issue were wacky, and were not accepted by anyone else, and had no impact on the Constitution or the Supreme Court for generations. Only recently have his embarrassing views been exhumed.

>"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. . .

What? "Terminates" the common law? The common law is in effect to this day, unless superceded by statute. Notice the decision of the US Supreme Court against the Mormons in 1890:

It is true, no formal declaration has been made by congress or the territorial legislature as to what system of laws shall prevail there. But it is apparent from the language of the organic act, which was passed September 9, 1850, (9 St. 453,) that it was the intention of congress that the system of common law and equity which generally prevails in this country should be operative in the territory of Utah, except as it might be altered by legislation. In the ninth section of the act it is declared that the supreme and district courts of the territory 'shall possess chancery as well as common-law jurisdiction,' and the whole phraseology of the act implies the same thing. The territorial legislature, in like manner, in the first section of the act regulating procedure, approved December 30, 1852, declared that all the courts of the territory should have 'law and equity jurisdiction in civil cases.' In view of these significant provisions, we infer that the general system of common law and equity, as it prevails in this country, is the basis of the laws of the territory of Utah. We may therefore assume that the doctrine of charities is applicable to the territory, and that congress, in the exercise of its plenary legislative power over it, was entitled to carry out that law and put it in force, in its application to the Church of Jesus Christ of Latter-Day Saints.

The common law was not "terminated" in the middle ages.

>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."

A desperate grasping of straw. After Christians threw out paganism and Christianized the law system, the common law was and since then always has been Christian. As the US Supreme Court held in 1890:

One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by the civil authority. The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced. . Davis Beason, 133 U.S. 333, ante, 299

LDS v. US, 136 U.S. 1, 50

>". . . 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.

Correct. The Christianization became part of the common law.

>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
>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)

an important concession.

>Christianity neither is, nor ever was a part of the common law."

Jefferson is groping desperately.

>In the same letter, Jefferson examined how the error spread about
>Christianity and common law. Jefferson realized that a misinterpretation had
>occurred with a Latin term by Prisot, "ancien scripture", in reference to
>common law history. The term meant "ancient scripture" but people had
>incorrectly interpreted it to mean "Holy Scripture," thus spreading the myth
>that common law came from the Bible. Jefferson writes:
>"And Blackstone repeats, in the words of Sir Matthew Hale, that 'Christianity
>is part of the laws of England,' citing Ventris and Strange ubi surpa. 4.
>Blackst. 59. Lord Mansfield qualifies it a little by saying that 'The
>essential principles of revealed religion are part of the common law." In the
>case of the Chamberlain of London v. Evans, 1767. But he cites no authority,
>and leaves us at our peril to find out what, in the opinion of the judge, and
>according to the measure of his foot or his faith, are those essential
>principles of revealed religion obligatory on us as a part of the common
>Thus we find this string of authorities, when examined to the beginning, all
>hanging on the same hook, a perverted expression of Priscot's, or on one
>another, or nobody."
>The Encyclopedia Britannica, also describes the Saxon origin and adds: "The
>nature of the new common law was at first much influenced by the principles
>of Roman law,

Christianized by Justinian and later kings

>but later it developed more and more along independent lines."
>Also prominent among the characteristics that derived out of common law
>include the institution of the jury, and the right to speedy trial.


Jefferson's rant was thoroughly refuted in State v. Chandler, 2 Harr. 553, at 558ff. (Del.Sup.Ct. 1837). The secularist writer above gives us no evidence that a single Founding Father agreed with Jefferson on this issue. Jefferson's argument had no influence on the Framers of the Constitution, as it appeared decades after the Constitution had been ratified. Here's how the Delaware Supreme Court refuted Jefferson:

   The opinion of Lord Mansfield, who was one of the brightest luminaries
   of the common law, palpably misunderstood by [Jefferson], is by him
   denounced as a "judicial forgery."
   Mr. Jefferson endeavors to show that the maxim that Christianity is a
   part of the common law of England is entirely derived from an opinion of
   Prisot in the Year Book 34, H. 6, folio 38, (145-8.)  In a case quare
a question was made, how far the ecclesiastical law was to be
   respected in a common law court. And Prisot gives his opnion in these
   words: "Prisot -- a tiels Leys que ils de saint Eglise ont en auncient
covient pur nous a doner credence; car ceo est common Ley
   sur quels touts manner Leys sont fondues," &c. (See Fitz. abr. qu. im.
   89. Bro. abr. qu. imp. 12.) The whole of Jefferson's complaint is,
   that Finch has mistaken this passage, by translating "auncient scripture"
   holy scripture. Mr. Jefferson translates Prisot's Norman French so as
   to make him decide "that to such laws of holy church as have warrant
   in ancient writing it is proper for us to give credence;" while, says he,
   Finch interprets the passage "to such laws of the church as have warrant
   in holy scripture our law giveth credence." . . .  According to what
   Mr. Jefferson calls Finch's interpretation, the judge decided that the
   sentence of the ecclessiastical tribunal when warranted by the
   holy scriptures, shall be credited in a common law court as the
   decision of a competent tribunal, provided the ecclesiastical tribunal did
   not exceed its jurisdiction. According to Mr. Jefferson's version the judge
   decided that the same sentence, when warranted by the "ancient written
   laws" should be so acknowledged and credited. What these written laws
   were, Mr. Jefferson does not inform us: but the common law was
   emphatically the lex non scripta, or unwritten law as contra-distinguished
   from the statute law, and Mr Jefferson probably knew that he must have
   intended either statutes of parliament or the written laws of the church.
   The statutes of parliament could not have been intended, for they did
   not regulate the ecclesiastical jurisdiction. . . .  For how could [the statutes
   of parliament] be said to be the foundation of all human laws. If by written
   laws, Mr. Jefferson meant the written laws of the church at that day,
   they, at that day, credited the holy scriptures and professed to be built
   upon them. . . .  But the common law judges by yielding up that
   jurisdiction to the ecclesiastical courts, refusing to reverse or to revise
   their decisions when incidentally or collaterally presented in a common
   law court, thus simply recognizing those decisions as ecclesiastical
   and not as common law, did no more intend by that to acknowledge the
   laws of holy church as common law than they intended to acknowledge
   admiralty law as common law when they gave faith and credit to an
   admiralty decision. It is not within our knowledge that any common law
   judge has cited this case in the Year Book, or referred to it in any manner
   to prove his position in deciding a case of blasphemy that the malicious
   reviling of Christianity was punishable at common law.

   Long before Lord Hale declared that Christianity was a part of the laws of
   England, the Court of Kings Bench, 34 Eliz. in Ratcliff's case, 3 Coke Rep.
   40, b. had gone so far as to declare that "in almost all cases, the common law
   was grounded on the law of God, which it was said was causa causans,"
   and the court cited the 27th chapter of Numbers, to show that their judgment
   on a common law principle in regard to the law of inheritance, was founded on
   God's revelation of that law to Moses.
   State v. Thomas Jefferson Chandler, 2 Harr. 553 at 561 (Del.Sup.Ct.1837)

The basis for declaring that the Common Law is based on Christianity is not the judicial fiat of one judge centuries ago. It is an inescapable fact evident over centuries of law, recognized by all scholars (except those with severe axes to grind).

I have mentioned the fact that I am not a member of any church. Jefferson failed to distinguish ecclesiastical law (laws promulgated by churches and denominations) and Biblical Law.

I dare say that every single person who signed the Constitution agreed with John Locke's position:

      [T]he Law of Nature stands as an eternal rule to all men, legislators
      as well as others. The rules that they make for other men's actions
      must . . . be conformable to the Law of Nature, i.e., to the will of
      God.    [L]aws human must be made according to the general laws
      of Nature, and without contradiction to any positive law of Scripture,
      otherwise they are ill made.
      Two Treatises on Government, Bk II sec 135.

Locke here was quoting Hooker's Ecclesiastical Polity which shows the influence of the Puritans. The pattern set by the Puritans was to insert the Biblical references in the margins of the criminal and civil codes. (See the 1641 code from Massachusetts, the "Body of Liberties.")

Jefferson was not infallible. He said many true things, but his diatribe against Christianity in the common law was not one of them.

The US Supreme Court is correct: Christianity is the basis of the Anglo-American Common Law. The Constitution of 1987 did not change that.

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