When Christianity Was Part of the Common Law

Law and History Review

Volumn 16, Issue 1, 1998, Pages 27-62

  Banner, Stuart ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 79957382564     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744320     Document Type: Article

References (72)

1. In re Granger, 7 Phila. Rep. 350, 355 (1870); Arthur William Barber, “Christianity and the Common Law,” The Green Bag 14 (1902): 267; Vidal v. Philadelphia, 43 U.S. 127, 198 (1844).
2. Commonwealth ex rel. [sic] v. American Baseball Club of Philadelphia, 290 Pa. 136, 143 (1927); Commonwealth v. Mochan, 111 Pa. Super. 454, 458 (for the maxim), 459 (for the phrase quoted) (1955).
3. Perry Miller, The Life of the Mind in America (New York: Harcourt, Brace & World, 1965), 186-203; Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 28, 30; Merrill D. Peterson, The Jefferson Image in the American Mind (New York: Oxford University Press, 1960), 95. Bradley Chilton argues that the maxim gained currency in seventeenth-century England because of “the ability of seventeenth-century elites to control the printing and dissemination of law books.” See “Cliobernetics, Christianity, and the Common Law,” Law Library Journal 83 (1991): 355, 360. Jayson Spiegel summarizes a few of the important cases discussing the maxim in “Christianity as Part of the Common Law,” North Carolina Central Law Journal 14 (1984): 494.
4. James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought (Norman: University of Oklahoma Press, 1971), 152 (for the quoted language), 118-59 (for the issue generally); Leonard W. Levy, Blasphemy (New York: Knopf, 1993), 400-23; KurtT. Lash, “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1085, 1100-11.
5. Taylor's Case, 1 Vent. 293, 86 Eng. Rep. 189 (K.B. 1676).
6. There were at least seven such prosecutions in secular courts before Taylor's. G. D. Nokes, A History of the Crime of Blasphemy (London: Sweet & Maxwell, 1928), 147. Before these, English blasphemy prosecutions were in ecclesiastical courts. Taylor's Case., 2-20. 1.
7. A Complete Collection of State-Trials and Proceedings upon High-Treason and other Crimes and Misdemeanours; from the Reign of King Richard II to the Reign of King George II, 3d ed. (London: John Walthoe, 1742), vol. 2, 28, 36; W. S. Holdworth, A History of English Law (Boston: Little, Brown, 1926), vol. 8, 403, n. 5.
8. The King v. Curl, 1 Barn. K.B. 29, 94 Eng. Rep. 20 (K.B. 1727); Rex v. Woolston, Fitzg. 64, 94 Eng. Rep. 655 (K.B. 1729); De Costa v. De Paz, 2 Swans. 532, 36 Eng. Rep. 715 (Ch. 1754); William Blackstone, Commentaries on the Laws of England, vol. 4 (1769; reprint, London: Dawsons, 1966), 59. For later English history, see Hypatia Bradlaugh Bonner, Penalties Upon Opinion (London: Watts & Co., 1912); Courtney Kenny, “The Evolution of the Law of Blasphemy,” Cambridge Law Journal 1 (1922): 127.
9. The Works of James Wilson, ed. J. D. Andrews (Chicago: Callaghan & Co., 1896), vol. 2, 425 (the published version of Wilson's lectures cites Blackstone and Rex v. Woolston); Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), vol. 2, 321. In the first American edition of Blackstone, St. George Tucker suggested that blasphemy, “as a civil offense, seems to have been abolished” in Virginia by the state's Bill of Rights, but Tucker did not disagree with the broader notion that Christianity is part of the law. St. George Tucker, Blackstone's Commentaries (1803; microfiche reprint, Littleton, Colo: F. B. Rothman, 1969), vol. 5, 59, n. 9.
10. People v. Ruggles, 8 Johns. 290, 293 (N.Y. 1811). This point had been a staple of Kent's lectures for some time. See James Kent, Dissertations: Being the Preliminary Part of a Course of Law Lectures (1795; reprint, Littleton, Colo.: F. B. Rothman, 1991), 24.
11. N.Y. Const, of 1777, art. 38; Ruggles, 8 Johns, at 295 (emphasis in original), 297. This is not to say, of course, that most New Yorkers were churchgoers or otherwise participated in institutional religious life. See Jon Butler, Awash in a Sea of Faith: Christianizing the American People (Cambridge: Harvard University Press, 1990).
12. Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); State v. Chandler, 2 Del. (2 Harr.) 553 (Del. 1837); City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob 508 (1846); Shover v. State, 10 Ark. 259 (1850); Bell v. State, 31 Tenn. 41 (1851); Melvin v. Easley, 52 N.C. 378 (1860); Goree v. State, 71 Ala. 7 (1881).
13. Nathan Dane, A General Abridgment and Digest of American Law (Boston: Cummings, Hilliard & Co., 1823), vol. 6, 667, 675; Joseph Story, “Christianity a Part of the Common Law,” The American Jurist 9 (1833): 346; Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law (New York: J. S. Voorhies, 1857), 17; Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868), 472; Fortunatus Dwarris, A General Treatise on Statutes, ed. Platt Potter (Albany: W. Gould & Sons, 1871), 559; Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: F. H. Thomas Law Book Co., 1886), 167.
14. P. Emory Aldrich, “The Christian Religion and the Common Law,” American Antiquarian Society Proceedings 6 (April 1889): 18, 33-34.
15. On the status of blasphemy in the United States in the late eighteenth and early nineteenth centuries, see Chester James Antieau, Arthur T. Downey, and Edward C. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee: Bruce Publishing, 1964), 184-87.
16. Levy, Blasphemy, 260-61; Body of Liberties, sect. 94(3) (1641); The General Laws and Liberties of the Massachusetts Colony 14 (1672); Massachusetts Province Laws 1692-1699, ed. John D. Cushing (Wilmington: Michael Glazier, 1978), 115.
17. Levy, Blasphemy, 264-67. The decline in blasphemy prosecutions was part of a broader decline in the prosecution of religion-based offenses. See A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill: University of North Carolina Press, 1981), 187-88; Hendrik Hartog, “The Public Law of a County Court: Judicial Government in Eighteenth-Century Massachusetts,” American Journal of Legal History 20 (1976): 299-308; William E. Nelson, “Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective,” New York University Law Review 42 (1967): 450-66.
18. Ruggles, 8 Johns, at 293, 296, 295.
19. Laws of the State of New-York, vol. 2, 195 (1813). Blasphemy had earlier been criminalized by a statute of 1708, The Colonial Laws of New York, vol. 1, 617 (1894), a statute which by 1813 had either been repealed or forgotten. (New York's colonial statutes that had not been repealed or amended remained in effect until 1828. 8 Johns, at vii.)
20. Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New-York, 462-63 (1821).
21. 11 Serg. & Rawle at 400, 398, 403, 405-6.
22. Del. (2 Harr.) at 555-56, 562, 567-69.
23. Harvey v. Boies, 1 Pen. & W. 12 (1829); Vidal v. Philadelphia, 43 U.S. 127, 198 (1844); Andrew v. The New York Bible and Common Prayer Book Society, 6 N. Y. Super. 156, 182 (1850). See also Lindenmuller v. People, 33 Barb. 548, 560 (1861) (maxim true only “in a qualified sense,” that blasphemy may be punished by state).
24. Sedgwick, Statutory and Constitutional Law, 17. For similar discussions, see Dwarris, A General Treatise, 559; Thomas M. Cooley, Blackstone's Commentaries, 2d ed. (Chicago: Callaghan, 1872), vol. 2, 331-32, n. 7; Tiedeman, Limitations of Police Power, 167-70.
25. Updegraph, 11 Serg. & Rawle at 399; State v. Mockus, 120 Me. 84 (1921).
26. Bell v. State, 31 Tenn. 41, 44 (1851); Goree v. State, 71 Ala. 7, 9 (1881); State v. Graham, 35 Tenn. 134 (1855); Ex parte Delaney, 43 Cal. 478 (1872).
27. See Ruggles, 8 Johns, at 294-96; Updegraph, 11 Serg. & Rawle at 400-3; Chandler, 2 Del. at 564-72.
28. Mass. (20 Pick.) 206 (1838). Kneeland generated a large pamphlet literature at the time, much written by Abner Kneeland himself, which has been collected by Leonard Levy and published as Blasphemy in Massachusetts: Freedom of Conscience and the Abner Kneeland Case, ed. Leonard W. Levy (New York: Da Capo Press, 1973). For Levy's view of this “most important and colorful of all American blasphemy cases,” see also Blasphemy, 413-23 (the quote is at page 413), and The Law of the Commonwealth and Chief Justice Shaw (Cambridge: Harvard University Press, 1957), 43-58. See also Henry Steele Commager, “The Blasphemy of Abner Kneeland,” New England Quarterly 8 (1935): 29.
29. Mass, at 217, 221.
30. City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob.) 508, 509, 521-24 (1846); Shoverv. State, 10 Ark. 259,263 (1850); Lindenmuller v. People, 33 Barb. 548, 560-65 (1861). On popular support for and opposition to the Sunday laws of the period, see Richard R. John, “Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture,” Journal of the Early Republic 10 (1990): 517-67.
31. S.C.L. at 522, 524; 33 Barb, at 560; see also 10 Ark. at 263-64.
32. Specht v. Commonwealth, 8 Pa. 312 (1848); Ex pane Andrews, 18 Cal. 679 (1861). Andrews overruled Ex parte Newman, 9 Cal. 502 (1858), one of the rare nineteenth-century decisions (if not the only one) to find a Sunday law inconsistent with the religion clause of a state constitution. Justice Field dissented in Newman; he pointed out that in every other state to consider the question, “without exception, the constitutionality of the law has been affirmed.” Id. at 525. Three years later, by the time of Andrews, Field was the only member of the Newman panel left on the court. For more on these cases, see Gerald F. Uelmen, “The Know Nothing Justices on the California Supreme Court,” Western Legal History 2 (1989): 90, 101-2.
33. State v. Petit, 74 Minn. 376, 379 (1898); Moss v. State, 131 Tenn. 94, 110 (1914); Benjamin, 33 S.C.L. at 529; Specht, 8 Pa. at 323.
34. Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401, 432-52 (1867) (Read, J., concurring). For similar (if murkier) reasoning on a closely related issue, see Commonwealth v. Shipley, 35 Pa. C. 132(1908).
35. American Baseball Club, 290 Pa. at 141-43 (the quote is at 141). For another irrelevant citation of the maxim in this context, see Hudgins v. State, 22 Ala. App. 403,404 (1928).
36. Mohney v. Cook, 26 Pa. 342, 347, 349 (1855); Melvin v. Easley, 52 N.C. 356, 360-61 (1860).
37. U.S. 127, 133 (1844); The Writings and Speeches of Daniel Webster (Boston: Little, Brown, 1903), vol. 11, 139.
38. U.S. at 198, 199, 200. Leo Pfeffer asserts that in Vidal, “the Supreme Court ruled that the Christian religion is part of the common law of all the states in the Union.” See Pfeffer, “Madison's ‘Detached Memoranda': Then and Now,” in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History, ed. Merrill D. Peterson and Robert C. Vaughan (Cambridge: Cambridge University Press, 1988), 283, 295. This is incorrect: Vidal only discussed the common law of Pennsylvania.
39. On the attention Vidal received at the time, see Carl B. Swisher, The Taney Period 1836-64 (New York: Macmillan, 1974), 217; Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1937), vol. 2, 124-33; Robert A. Ferguson, “The Girard Will Case: Charity and Inheritance in the City of Brotherly Love,” in Philanthropy and American Society, ed. Jack Salzman (New York: Center for American Culture Studies, 1987), 1-16.
40. Pa. 465, 466, 469-70, 470-71, 471 (1870).
41. Church of the Holy Trinity v. United States, 143 U.S. 457, 471, 458, 462-65, 465-70,470-71 (1892).
42. Commonwealth v. Sigman, 3 Pa. L.J. 252, 256 (Lehigh Cty. Quarter Sessions 1843); Snavely v. Booth, 36 Del. 378, 388 (Del. Super. 1935); Scranton Broadcasters, Inc. v. American Communications Assn., 48 Lackawanna Jurist 241, 245, 250 (1947). I have found only three later examples of purported reliance on the maxim in published opinions. In 1950, a New Jersey trial judge upheld the constitutionality of school prayer; his opinion contains a long excerpt from Holy Trinity, including the portion that quotes Updegraph, Ruggles, and Vidal. Doremus v. Board of Education, 7 N.J. Super. 442, 449 (1950). In 1955, a Superior Court panel in Pennsylvania cited the maxim in affirming a conviction for making obscene telephone calls. Commonwealth v. Mochan, 177 Pa. Super. 454, 458 (1955). And in 1958, when the same court upheld the constitutionality of a Sunday law, a dissenting judge mentioned the maxim only to suggest that it offered no support for the statute at issue. Commonwealth v. Taber, 188 Pa. Super. 415, 419 (1958) (Gunther, J., dissenting).
43. Works of James Wilson, vol. 2, 425 and n. 6. Story's comments were published first as Joseph Story, “Christianity a Part of the Common Law,” American Jurist 9 (1833): 346-
44. Bloom v. Richards, 2 Ohio St. 387, 391 (1853); Ex pane Newman, 9 Cal. 502, 513 (1858) (Burnett, J., concurring); Ex parte Andrews, 18 Cal. 679 (1861).
45. Swift, Laws of the State of Connecticut, vol. 2, 323; Ruggles, 8 Johns, at 296; Chandler, 2 Del. at 563; Tiedeman, Limitations of Police Power, 167; Cooley, Constitutional Limitations, 471. See Edwin S. Gaustad, “Religious Tests, Constitutions, and ‘Christian Nation,'” in Religion in a Revolutionary Age, ed. Ronald Hoffman and Peter J. Albert (Charlottesville: University Press of Virginia, 1994), 218-35.
46. Bell v. State, 31 Tenn. 41, 44 (1851); Shover v. State, 10 Ark. 259, 263 (1850); Commonwealth v. Shipley, 35 Pa. C. 132, 134 (1908).
47. The speech is reported in full in The Miscellaneous Writings of Joseph Story, ed. William W. Story (Boston: Little, Brown, 1852), 503-48 (the quoted material in the text is at 517; the emphasis is my addition).
48. Thomas Cooper, A Treatise on the Law of Libel and the Liberty of the Press (1830; reprint, New York: Da Capo Press, 1970), 119; Specht v. Commonwealth, 8 Pa. 312, 315-16(1848).
49. Hale v. Everett, 53 N.H. 1, 209 (1868) (Doe, J., dissenting). For more on Doe's 143-page dissent, see John Phillip Reid, Chief Justice: The Judicial World of Charles Doe (Cambridge: Harvard University Press, 1967), 238-43.
50. Langabier v. The Fairbury, Pontiac and Northwestern R.R. Co., 64 111. 243, 247 (1872); Robert G. Ingersoll, Trial ofC. B. Reynolds for Blasphemy (New York: C. P. Farrell, 1888), 12.
51. Theodore Schroeder, Law of Blasphemy: The Modern View Exhibited in Model Instructions to a Jury (New York: Free Speech League, 1919), 5-6; see also Theodore Schroeder, Blasphemy and Free Speech (New York: Free Speech League, 1918), 355-56.
52. R. W. Lee, “The Law of Blasphemy,” Michigan Law Review 16 (1918): 149, 151; Frank Swancara, Obstruction of Justice by Religion (Denver: Courtright Publishing, 1936). 229; Ohio v. Woodville Appliance, 13 Ohio Op. 2d 46,48 (1960); Romeo v. Union Free School District No. 3, 368 N.Y.S.2d 726, 731 (Sup. 1975); Commonwealth v. Taber, 188 Pa. Super. 415, 422 (1958) (Gunther, J., dissenting).
53. Roger Finke and Rodney Stark, The Churching of America, 1776-1990 (New Brunswick: Rutgers University Press, 1992); Nathan O. Hatch, The Democratization of American Christianity (New Haven: Yale University Press, 1989); Robert C. Post, “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment,” California Law Review 76 (1988): 297, 306-24. One crude indicator of early movement in this direction is the gradual disestablishment of churches by state governments in the late eighteenth and early nineteenth centuries. See Leonard W. Levy, The Establishment Clause, 2d ed. (Chapel Hill: University of North Carolina Press, 1994), 27-78.
54. Miscellaneous Writings of Joseph Story, 517; City Council v. Benjamin, 33 S.C.L. 508, 521 (1846); Wylly v. Collins, 9 Ga. 223, 237 (1851); John Norton Pomeroy, An Introduction to Municipal Law (New York: D. Appleton & Co., 1865), 193; Cooley, Constitutional Limitations, 472.
55. Updegraph, 11 Serg. & Rawle at 406; Writings and Speeches of Daniel Webster, vol. 11, 176 (emphasis in original); Mohney v. Cook, 26 Pa. 342, 347 (1855); Sedgwick, Statutory and Constitutional Law, 17-18(1857). The only instance discovered of this argument having been made after the 1850s is in Aldrich, “Christian Religion and Common Law,” 26-29.
56. James Kent, Commentaries on American Law, 2d ed. (New York: O. Halsted, 1832), vol. 1, 473; Peter S. Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (1824; reprint, New York: Arno Press, 1972), 91.
57. On the phrase's currency, see Chandler, 2 Del. at 562. For the phrase itself, see Joseph Chitty, A Practical Treatise on Pleading (New York: R. M. M'dermut, 1809), vol. 1, 220. The analogy is inexact at its root-Chitty goes on to explain that the almanac is part of the law of the land because it has “been established by different statutes.” Commentaries on American Law. But the statutes were English, while Chitty's phrase was nevertheless current among lawyers in Delaware, who most likely picked it up from one of Chitty's American editions.
58. Jefferson to Thomas Cooper, Feb. 10, 1814 (quoting an entry Jefferson says he made in his commonplace book “half a century ago”), The Writings of Thomas Jefferson (Washington: Thomas Jefferson Memorial Assn., 1905), vol. 14, 93.
59. Daniel R. Ernst, “Church-State Issues and the Law: 1607-1870,” in Church and State in America: A Bibliographical Guide: The Colonial and Early National Periods, ed. John F. Wilson (Westport: Greenwood Press, 1986), 337-39.
60. Jefferson to Cooper, Feb. 10, 1814, Writings, 86-91; Jefferson to John Adams, Jan. 24, 1814, “Church-State Issues and the Law: 1607-1870,”., 73.
61. The letter is reprinted as Appendix III to Cooper, Law of Libel; the quoted material is at 182 and 184.
62. Thomas Jefferson, Reports of Cases Determined in the General Court of Virginia from 1730, to 1740; and from 1768, to 1772 (1829), p. vi, 137-42.
63. Cooper, Law of Libel, 120; George Jacob Holyoake, The History of the Last Trial by Jury for Atheism in England: A Fragment of Autobiography (1851; reprint, New York: Arno Press, 1972), 54.
64. For Story's rebuttal to Jefferson, prompted by the 1824 publication of Jefferson's letter to Cartwright, see Story, “Christianity a Part of the Common Law”; Story to “Mr. Professor Everett,” Sept. 15, 1824, Life and Letters, 430; Miscellaneous Writings, 517 (the 1829 Harvard speech). Story mentioned Jefferson by name in the article and the letter; in the speech, he referred only to “the specious objection of one of our distinguished statesmen.” For another near-contemporary response to Jefferson, see State v. Chandler (whose full name, incidentally, was Thomas Jefferson Chandler), 2 Del. at 558. For twentieth-century support, see Edward Dumbauld, Thomas Jefferson and the Law (Norman: University of Oklahoma Press, 1978), 76-82; Franklin Steiner, Religious Treason in the American Republic (Chicago: American Rationalist Assn., 1927), 33; Levering v. Ennis (Superior Court, Baltimore, 1932), reported in American State Papers and Related Documents on Freedom in Religion, 4th rev. ed. (Washington: Religious Liberty Assn., 1949). For half-support, see Levy, Blasphemy, 409. For opposition, see Nokes, Crime of Blasphemy, 54-55.
65. John Cartwright, The English Constitution Produced and Illustrated (London: R. Taylor, 1823), 391; Hale, 53 N.H. at 203; Cooley, Constitutional Limitations, 472.
66. James T. Ringgold, The Legal Sunday: Its History and Character (Battle Creek, Mich.: International Religious Liberty Assn., 1894), 135, 139; Levering v. Ennis (emphasis in original), American State Papers, 569-70.
67. Specht, 8 Pa. at 316; Andrew, 6 N.Y. Super, at 182; Hale, 53 N.H. at 202, 210 (Doe, C.J., dissenting) (quoting Henry Crabb Robinson's Diary [American ed., Boston: Fields, Osgood, 1869], vol. 1,353).
68. Board of Education of the City of Cincinnati v. Minor, 23 Ohio St. 211, 247 (1872) (emphasis in original); see Barber, “Christianity and the Common Law,” 267; Ringgold, The Legal Sunday, 135.
69. Like most legal changes, this story is most familiar at the top. Compare Swift v. Tyson, 41 U.S. 1, 18 (1842), with Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The common law is not some brooding omnipresence in the sky but the articulate voice of some sovereign”); Black and White Taxicab and Transfer Co. v. Brown and Yellow Taxicab and Transfer Co., 276 U.S. 518, 533-34 (1928) (Holmes, J., dissenting); and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
70. At the very least, one finds in Austin the first systematic exposition widely read in the United States of these two points, that the common law is made, not discovered, by judges, John Austin, Lectures on Jurisprudence, 3d rev. ed., ed. Robert Campbell (London: J. Murray, 1869), vol. 2,655, and that law implies government sanction, Like most legal changes, this story is most familiar at the top., vol. 1,92-94. On Austin's influence in the United States, see Richard A. Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870-1930 (New York: New York University Press, 1987), 110-27.
71. See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment, “I am not so naive [nor do I think our forebears were] as to be unaware that judges in a real sense ‘make’ law. But they make it as judges make it, which is to say as though they were ‘finding’ it-discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be”).
72. To be precise, one of which space will permit discussion. Attributing the death of the maxim to broader changes in thought about religion and law naturally causes one to ask why those changes occurred, but intelligent answers to those questions, if I had them, would be far longer than this article.