Sep C&S History Lessons #18
MARCH 12, 1932
CHRISTIANITY NOT PART OF COMMON LAW
Superior Court of Baltimore City
Joshua Levering, Reverend William A. Davis, et al., v. Robert B.
Ennis, et al.
[Decided MARCH 12, 1932]
(PETITION FOR MANDAMUS TO RESTRAIN CITY COUNCIL OF BALTIMORE FROM
HOLDING A REFERENDUM ON QUESTION OF SUNDAY ORDINANCE.)
[The following is from Judge O'Dunne's opinion:]
It is undoubtedly true that in English history, a number of the
English lords have decided, or asserted, that Christianity is part of
the Common Law of England. They were pious, God- fearing Christians,
of the established church, which was established and disestablished,
and another one established in its place, from time to time, depending
upon which party got in power.
Each exercised it [judicial authority] with that religious zeal which
Mr. Marshall characterized as a "sword in one hand and a firebrand in
the other," in order to impress the divinity of Christ upon the questioning
population. A lot of those English Lords and Chief Justices of England (if
I may with becoming respect so refer to such characters) have slopped over
in their judicial expressions, and dispensed religion along with their
conception of the law, unconsciously, because they were imbued with the
faith, and unable to squelch it, or conceal it, or put it aside; so that
a great many of the English decisions are a homeopathic dose of
religion and an allopathic dose of law.
Whether the Christian religion is part of the common law of England,
or whether it is part of the common law of Maryland, approached from a
standpoint of a judicial inquiry, really becomes a legal question to
ascertain. . . .
Now, if Christianity, as a legal proposition, was part of the common
law of England, as distinguished from merely being administered by a
lot of Christian gentlemen who believed in that
faith, and who dispensed it, as Christian gentlemen will discharge
public duties, I say as a legal inquiry, if it came into the body
politic of the common law of England, as a fact, and as a legal fact,
it came in after the introduction of Christianity into England, and
before the passage of Magna Charta. In other words, between the
seventh century and the first Magna Charta; . . . or, if it was not in
that Magna Charta, it was in, or should have been in, the succeeding
one, of Henry III, of the Forest, in 1216. . . .
But there is not a reference to it in either Charter. Therefore, it
is a fair assumption that it was nol part of the common law of
England, in spite of all that the Lord Chief Justices and the
Lords of Parliament later stated to the contrary. . . .
Thomas Jefferson . . . challenges the proposition that Christianity
was ever a part of the common law of England, and sets forth, in a
very much more scientific and classical form, the exact argument I
have thus far presented, . . . as justification for the challenge that
Christianity was never, as a legal proposition, part of the common law
of England. . . .
If we say "established principles of revealed religion" are part of
the common law of this country, and use it in a rhetorical or literary
or poetical sense, I say yes, and we might say the same thing about
the Laws of Moses, and about the Hindu law, and about the leading
principles of a great many of the ancient writers.
Judge Offutt, in his recent address to the Probation Department of
the Supreme Bench, spoke of the expenditure of some eighteen billions
of dollars in the suppression of crime in this
country. That is at least some evidence of the non-conformist
character of the Christians of this country.
The great case that is cited most often because it was recently
decided, in 1917, by the House of Lords, is Bowman v. Secular Society.
I think it is reported in 1917 D of the English Annotated cases. There
is an opinion there, four members of the House of Lords sit in an
appeal from the highest appellate Court in England. . . . The Court of
Appeals had decided that a particular trust was valid. A certain
clause of it was apparently for a nonreligious, and as they
interpreted it, an irreligious and unchristian end. . . .
The Court of Appeals, by its decision, declared that it was a valid
exercise of testamentary disposition. It came up before the House of
Lords, and Lord Finlay, who wrote the first opinion, in a very lengthy
opinion, decided that it was invalid because it was antagonistic to the
Christian religion, and that England could not tolerate through its Courts
the sanctioning of a bequest that went to undermining the Christian
religion. The other three Lords decided just the opposite. Now , in Lord
Finlay's opinion, he decides categorically and flat-footedly, that
Christianity is part of the common law of England, as a legal proposition.
The other three lords decide that it is not so and never was. . . .
My decision is . . . that Christianity is not part of the common law
of Maryland as a legal proposition; that it is not part of the common
law of England, and that it is not the function of any Court in this
country, where church and State are separated, to undertake to infuse into
the law those religious principles in which an individual may believe, and
try to use the medium of law as a vehicle to further Christianity, or to
further his conceptions of Christianity, and to get them incorporated into
the body politic. That is no function of government. We are not a Christian
nation in the legal sense, at all. , . .
To declare that Christianity as such is part of the law of the lard,
as a legal proposition, I cannot do. This I deny. The great danger in
this country is, and will be, the too intimate commingling of religious
views of any sect with government, because if you once tolerate that, you
will simply have a repetition of English history, where when one party is
in power, it is the established faith, and when they get thrown out, and
their enemies come in, theirs is the established faith, and there is
nothing so zealous as converts, and they think it is pleasing to God
to go and persecute those who disagree with them. . . . In late years there
has been continuous agitation and re-agitation of the Sunday question. . .
.. There has been a constant chafing in Baltimore, of some elements in
Baltimore, to be relieved of what they consider too strict legal
requirements for the observance of the Sabbath . . . on economic grounds,
for the conservation of human energy, for the conservation of human
life, for the building of an heroic race. . . .
Of course, I haven't much patience, except as a judge, with putting
it on economic grounds, because, to my mind, that is not intellectual
honesty, yet that is the only ground on which it can come before the
Court, that is the only ground that it can be considered on, and the
difficulty is divorcing human nature from intellectual conception. You
can't entirely divorce the observance of Sunday from whatever
religious or non-religious point of view the individual may entertain,
and still keep one hundred per cent, the idea that it is purely an
economic question. That is the same judicial or legal cant that we go
through, with which we satisfy ourselves when we tell the jury, "That is
stricken out" of the record. Gentlemen of the ,jury, when you retire to
your ,jury room, you must remember that you must not remember the things
you can't help remembering. Now, they say that cures the record if you
tell them that. Honor is saved, Law is gratified, and everybody is
satisfied. . . .
You can't help getting some humor out of the law, because, to a large
extent there is a good deal of ,joke about it, and a good deal of
joker in it.
The only question here is, did the Legislature, in the exercise of
its functions as the responsible custodian of the law-making power of
the Free State, exercise its functions with technically accurate or
legally sufficient mechanics? . . . You have a general Sunday law,
Statewide in character, applicable, therefore, also to Baltimore City,
and Baltimore City is petitioning the Legislature for an opportunity
to change, in its own territorial limits, subject to the will of its
people, not yet ascertained, its form of Sunday legal recreation, and
nobody knows what the result of a ballot will be, if, and when taken, on
the question of Sunday observance, whether the majority of the communities
are in favor of a closed Sunday, as applied to movies and baseball, or
whether they are not. All the Legislature said to the citizens of
Baltimore, or to the municipality, was, We will finally give you your
rights, as we now view them, to determine that question for yourselves. We
don't want you to determine them for us in our counties. We will take care
of that ourselves, but you may have any kind of Sunday that your people
will stand for by majority vote. We will attempt to give you blanket
authority to do that. . . .
We will let you pass an ordinance picking out the kind of ordinance
you think will square with your local public opinion, and then you
take a vote on it, and see whether you have guessed
right or not. . . .
So, gentlemen, as the bill stands before me now, the demurrer to the
answer is overruled, and that is as far as I go.
[NOTE.-This decision of the superior Court of Baltimore City as set
forth above clearly recognizes that these ancient Sunday laws are
religious laws. It also shows conclusively that it is a legal fiction
to say that "Christianity is a part of the common law."]
(SOURCE OF INFORMATION: Excerpt from Joshua Levering, Reverend William
A. Davis, et al., v. Robert B. Ennis, et al. Superior Court of
Baltimore City. (Christianity not part of the Common Law) March 12,
1932.American State Papers on Freedom in Religion. 4th Revised
Edition. Published in 1949 for The Religious Liberty Association,
Washington, D.C. First Edition Compiled by William Addison Blakely, of
the Chicago Bar. (1890) under the Title American State Papers Bearing
on Sunday Legislation. p. 568-572)
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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