1764
WHETHER CHRISTIANITY IS PART OF THE COMMON LAW?*
(1764?)
In Quare impedit, in C.B. 34. H. 6. fo. 38, the defendant, Bishop of
Lincoln, pleads that the church of the plaintiff became void by the death
of the incumbent; that the plaintiff and I.S. each
pertending a right, presented two several clerks; that the church being
thus rendered litigious, he was not obliged, by the ecclesiastical law, to
admit either until an inquisition 'de jure patronatus' in the
ecclesiastical court; that, by the same law, this inquisition was to be at
the suit of either claimant, and was not 'ex officio' to be instituted by
the Bishop, and at his proper costs; that neither party had desired such an
inquisition; that six months passed; whereon it belonged to him of right to
present as on a lapse, which he had done. The plaintiff demurred. A
question was, How far the ecclesiastical laws was to be respected in this
matter by the Common law court? And Prisot c. 5. in the course of his
arguement, uses this expression, "a tiels leis que ils de seint eglise ont
en ancien scripture, covient a nous a donner credence; car ceo common ley
sur quel touts manners leis sont fonds. Et auxy, Sir, nous sumus obliges de
conuste lour ley de saint eglise. Et semblablement ils sont obliges de
conustre nostre ley, et, sir, si poit apperer or a nous que l'evesque ad
fait come in Ordinary fera en tiel cas, adonq nous devons ceo adjuger bon,
ou auterment nemy," etc. It does not appear what judgment was given. Y.B.
ubi supra, 3. c. Fitzh. Abr., Qu. imp. 89. Bro. Qu. imp. 12. Finch
mis-states this in the following manner: "to such laws of the church as
have warrant in 'holy scripture,' our laws giveth credence;" and cites the
above case, and the words of Prisot in the margin. Finch's law, b 1. c. 3.
published 1613. Here we find "ancien scripture," converted into "holy
scripture," whereas it can only mean the antient written laws of the
church. It cannot mean the scriptures, 1st. Because the term 'antient
scripture must then be understood as meaning the Old Testament in
contradistinction to the New, and to the exclusion of that; which would be
absurd, and contrary to the wish of those who cite this passage to prove
that the scriptures, or Christianity, is a part of the common law. 2nd.
Because Prisot says "ceo (est) Common ley sur quel touts manners leis sont
fondes." Now it is true that the ecclesiastical law, so far as admitted in
England, derives its authority from the common law. But it would not be
true that the scriptures so derive their authority. 3rd. The whole case and
arguments shew, that the question was, How far the ecclesiastical law in
general should be respected in a common law court? And in Bro's Abr. of
this case, Littleton says, "les juges del Common ley prendra conusans quid
est lex ecclesiae vel admiralitatis et hugus modi." $th. Because the
particular part of the ecclesiastical law then in question, viz. the right
of the patron to present to his advowson, was not founded on the law of
God, but subject to the modification of the law-giver; and so could not
introduce any such general position as Finch pretends. Yet Wingate (in
1658) thinks proper to erect this false quotation into amaxim of the common
law, expressing it in the very words of Finch, but citing Prisot. Wing.
Max. 3. Next comes Sheppard (in 1675) who states in it the same words of
Finch, and quotes the Y.B. Finch and Wingate. 3 Shep. Abr. tit. "Religion."
In the case of the King and Taylor, Sir Matthew Hale lays it down in these
words; "Christianity is parcel of the laws of England." 1 Ventr. 293. 3
Keb. 607. But he quotes no authory. It was from this part of the supposed
common law, that he derived his authory for burning whiches. So strong was
this doctrine in 1728, by additions and repetitions from one another, that
in the case of the King v. Woolston, the court would not suffer it to be
debated, Whether to write against Christianity was punishable in the
temporal courts, at common law? saying it had been so settled in Taylor's
case, ante, 2 Stra. 834. Therefore Wood, in his Institute, lays it down,
that all blasphemy and profaneness are offences by the common law, and
cites Strange, ubi supra. Wood, 409. and Blackstone (above 1763) repeats,
in the words of Sir Matthew Hale, that "Christianity is part of the laws of
England," citing Ventr. and Stra. ubi supra. 4 Bl. 59. Lord Mansfield
qualified it a little, by saying in the case of the Chamberlain of London
v. Evans, 1767, that "the essential principles of revealed religion are
part of the common law." 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
measures of his foot or his faith, are these essential principles of
revealed religion, obligatory on us as a part of the common law. Thus we
find this string of authotities, when, examined to the beginning, all
hanging on the same hook; a perverted expression of Prisot's; or on
nothing. For they all quote Prisot, or one another, or nobody. Thus, Finch
quotes Prisot; Wingate also; Sheppard quotes Prisot, Finch and Wingate;
Hale cites nobody; the court, in Woolston's case, cite Hale; Wood cites
Woolaton's case; Blackstone that and Hale; and Lord Mansfield, like Hale,
ventures it on his own authority.In the earlier ages of the law, as in the
Year books for instance, we do not expect much recurrence to authorities by
the judges; because, in those days, there were few or none such, made
public. But in later times we take no judge's word for what the law is,
further than he is warranted by the authorities he appeals to. His decision
may bind the unfortunate individual who happens to be the particular
subject of it; but it cannot alter the law. Although the common law 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 all those laws
were only oral, or communicated from former ages to the latter merely, by
word. For all these laws have their several monuments in writing, where-by
they are transferred from one age the 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 antient times, and still extant in writing: Hale's Com. Law,
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
291
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 particular of
which, has its foundation in common law, or has received the "esto" of the
legislator. 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, to the date of
the '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 converse 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, therefore, was adopted into the
common law, it must have been between the introduction of Christianity and
the date of the 'Magna Charta. But of the law 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 peroid to the close of the common law, we are 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 treatis 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 may consider this
book as the more valuable, as it was written about the time which divides
the common and statue law; and therefore 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 E.I., are equally silent. So also is
Glanvil, an earlier writer than any of them, to wit, temp. H. 2.; but his
subject, perhaps, might not
292
have led him to mention it. It was reserved for Finch, five hundred years
after, in the time of Charles II., by a falsification of a phrase in the
Year book, to open this new doctrine, and for his successors to join
full-mouth in the cry, and give to the fiction the sound of fact. Justice
Fortescue Aland, who possessed more Saxton learning than all the judges and
writers before mentioned put together, places this subject on limited
ground. Speaking of the laws of the Saxon Kings, he says, "the ten
commandments were made part of their law, 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." Pref. to
Fortescus's Rep. xvii. The good reason is found in the denial of the fact.
Houard, in his countumes 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, 22nd, and 23rd chapters of Exodus; to which he
might have added the 15th of the Acts of the Apostles, v. 23 to 29, and
precepts from other parts of the scripture. These he calls 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 scripture. It
is still more certainly proved by the inconsistencies it occasions. For
example, the Jewish legislator, Exodus, xxi. 12, 13, 14, (copied by the
Psedudo Alfred * 13) makes murder, with the Jews, death. But Alfred
himself, Ll. ccvi. punishes it by fine only, called a weregild,
proportioned to the condition of the person killed. It is remarkable that
Hume (Append. I. to his history) examining this article of the laws of
Alfred, without preceiving the fraud, puzzles himself with accounting for
the inconsistency it had introduced. To strike a pregnant woman, so that
she die, is death by Exod. xxi. 22, 23, and pseud. Alfr. * 18. But by the
Ll. Alfred ix. the offender pays a weregild for both the woman and child.
To smite out an eye or a tooth, Exod. xxi. 24-27. Pseud. Alfred. * 19, 20,
if a servant by his master, is freedom to the servant; in every other case,
retaliation. But by Alfred Li. xl. a fixed indemnification is paid. Theft
of an ox or a sheep, by the Jewish law, xxii. Exod. 1. was repaid five fold
for the ox, and four fold for the sheep; by the Pseudograph * 24, double
for the ox and four fold for the sheep. But by Alfred Ll.xvi. he who stole
a cow and calf, was to repay the worth of the cow, and 40s. 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 Ll. Alfr. xxiv. the wounded person had
the ox. This Pseudograph makes municipal laws
293
of the ten commandments: * 1-10, curse father or mother; * 14, 15, give an
eye for an eye, tooth for tooth, hand for hand, foot for foot, burning for
burning, wound for wound, stripe for stripe; * 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; * 18, 35, make the laws of bailment,
and very different from what Lord Holt delivers in Coggs v. Bernard, and
what Sir William Jones tells us they were; and punishes witchcraft with
death, * 30, which Sir Matthew Hale 1. P.C. ch. 33, declares was not a
felony before the stat. 1. Jac. c. 12.
It was under that statute, that he hung Rose Cullender, 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 1st. The Scriptures had affirmed
as much. 2nd. The wisdom of all nations had provided laws against such
persons - and such hath been the judgement 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
positionn "that it was no felony till Jame's statutes, deliberately laid
down in his H.P.C., a work which he wrote to be printed and transcribed for
the press in his lifetime, than to the hasty 'scriptum,' that "at common
law, witchcraft was punished with death as heresy, by writ 'de heretico
comburendo," in his methodical summary of the P.c.pa. 6.; a work "not
intended for the press, nor fitted for it and which he declared himself he
had never read over since it was written." Preface. Unless we understand
his meaning in that to be, that witchcraft could not be punished at 'common
law as witchcraft,' but as a '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 honicide, concubinage, theft, retaliation,
compulsory marriage, usury, bailment, and others which might have been
cited from this Pseudograph, were never the laws of England. Yet, palpable
as it must be to a lawyer, our 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 the surreptitious introduction of these four 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 of the land; the first
judicial declaration of which was by this 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 conscientioe;' and they arm the whole with the coercions of
municipal law.* They do this, too, in a case where the question was, not at
all, whether Christianity was a part of the laws of England, but simply how
far the 'ecclesiatsical law' was to be respected by the common courts of
England, in the special case of a right of presentment. Thus identifying
Christianity with the ecclesiastical law of England.
* In the already alluded to copy of this, sent to Thomas Cooper in 1814,
the remainder of this, by what is clearly a long subsequent interpolation,
is made to read as follows:
"In doing this, too, they have not even used the Connecticut caution of
declaring, as is done in their blue laws, that the laws of God shall be the
laws of their land, except where their own contradict them; but they
swallow the yea and nay together. Finally, in answer to Fortescue Aland's
question why the ten Commandments should not be part of the common law of
England? we may say they are not because they never were made so by
legislative authority, the document which has imposed that doubt on him
being a menifest forgery."
(SOURCE OF INFORMATION: This (Whether Christianity is Part of the Common
Law?) is
printed in the appendix of Jefferson's Reports of Cases Determined in the
General Court of Virginia, in the preface of which he states: "I have added
also a Disquisition of my own on the most remarkable instance of Judicial
legislation that has ever occurred in English jurisprudence or perhaps in
any other. It is that of the adoption in mass of the whole code of another
nation, and its incorporation into the legitimate system by usurpation of
the Judges alone, without a particle of legislative will having ever been
called on, or exercised toward its introduction or confirmation."
The Writings of Thomas Jefferson, Edited by Paul Leicester Ford, 1895 - Ten
Vols. Vol. 1, page 360.
--------------------------------------------------------------------------------
***************************************************************
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
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . 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)
.. . .
****************************************************************
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.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
