AFTER reading Jefferson’s exposure of the fraud by which “Christianity” was made a part of the common law, which we reprinted last week, the reader may query, how, in the face of such an exposure, it could still be maintained by American judges that Christianity is a part of the common law.
As stated last week, Jefferson’s expose—written in 1824, published in 1829—was a complete answer to the New York and Pennsylvania cases. It destroyed the basis upon which those cases was made to rest. Before a religious despotism could be further perpetuated in this country by the fraud that “Christianity is part of the common law,” this argument of Jefferson’s had to be overridden. This was done by Chief Justice Clayton, of Delaware, in 1837.
In sustaining a conviction for “blasphemy,” Chief Justice Clayton proffered an answer to Jefferson’s argument. Logically this proffered answer is a confirmation of Jefferson’s argument rather than an answer to it; but as it was officially given as an answer, it has been allowed the weight of an answer by those who wanted an established religion, though in fact no such weight justly belongs to it.
Justice Clayton speaks of Jefferson as “this letter-writer“: and says that the “letter is phrased in terms more becoming to the newspaper paragraphs [paragraphers?] of the day than the opinion of a grave jurist who feels respect for the memory of the eminent lawyers of England, because he knows and can appreciate their worth.” It is thus plain at the start that Justice Clayton had more regard for authority than he had for sound argument; and this character he sustains even at the expense of logically confirming Jefferson’s argument while he authoritatively overrides it.
Jefferson had said that “Sir Matthew Hale lays it down in these words: ‘Christianity is parcel of the laws of England.’ But he quotes no authority.” And that “Lord Mansfield qualified a little by saying … 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 measure of his foot or his faith, are those essential principles of revealed religion obligatory upon us as a part of common law.”
To this Justice Clayton says that “they had no occasion to cite any authority”; and that “Sir Matthew Hale was an authority of himself, and is considered as a sufficient authority for a common law principle in every case when there is no contrary authority. What sources of legal knowledge his great erudition may have consulted on this subject, we have no means of certainly knowing nor is it necessary to inquire.”
This is the sum and the substance of his “answer” to Jefferson’s argument. And thus in spite of logic, in spite of sound argument, in spite of the plainly written Constitution which he had taken an oath to uphold, and solely on the dictum of an English judge, he carries over and establishes in Delaware the English and papal principle of established religion.
After all this it is interesting to see what argument he made on his own part, to land himself comfortably in his arbitrary position. He made a distinction “between a religion preferred by law, and a religion preferred by the people without the coercion of law;” and says that “every court in a civilized country is bound to notice what is the prevailing religion of the people” and by common law to protect it “to the full length of punishing any man who outraged the feelings of the people, by wantonly and maliciously reviling or ridiculing the religion which they had freely preferred.”
He then says that if the people should change from the Christian religion and prefer Mahommedanism, then the courts would change their ruling also and punish as blasphemy the reviling or ridiculing of Mahommedanism, while taking no notice of such conduct toward Christianity. Then if the people should drop Mahommedanism and prefer the religion of Judaism or “Joe Smith,” the courts would punish as blasphemy the “malicious reviling of Moses” or of Mr. Smith. And all this change and counter-change because “no human power can restrain them from compelling every man, who lives among them, to respect their feelings.”
It is perfectly plain, therefore, that Chief Justice Clayton would not have been as just as Pilate was; but would have sent the Lord Jesus to the cross upon the high priest’s charge of blasphemy. If any would be inclined to doubt this, then let him read the following:—
“No man could justify himself under the present civil institutions of the State in endangering the public peace [by speaking against the prevailing religion]. He might feel himself impelled by a stern sense of religious duty to brave public opinion and become a martyr for his zeal. All this he might do and justify himself in his own opinion for it before God…. He who forcibly resists a bad religion is thus far like him who resists a bad government: if successful in his resistance he may become a reformer of men or a hero; if unsuccessful, a martyr or a traitor.”
And by this doctrine it would be a settled thing that the courts would be fully enlisted in the “laudable” work of making martyrs and traitors of all such men. A blasphemer, a traitor, and a martyr, are precisely what were made of the Lord Jesus; and it was done by this identical doctrine.
Such is the doctrine, and such the authority for the doctrine, that is couched in the phrase “Christianity is part of the common law.” And such is the means by which that doctrine has been perpetuated in the States of the American Union. For in spite of the splendid efforts of Jefferson and his fellow-workers for religious freedom, and in spite of the constitutional provisions in all the States, Chief Justice Clayton’s decision has ever since been accepted as the standard on that subject.
How appropriate it is that such an enormous fraud should be supported by such a horrible doctrine. Yet what a pity and how astonishing it is that either the fraud or the doctrine should ever have found any countenance by men who ever made any pretentions to enlightenment or justice, or who ever heard of Christianity!