“Christianity and the Common Law” The American Sentinel 7, 45, pp. 355, 356.

IN another place in this paper it has been pointed out how that in Tennessee that statute is ignored and the theory of “Christianity as the Common law” is used as the authority for the persecutions there for Sunday work. This doctrine of “Christianity as the Common law” is worth of some attention on its own account; and as this Tennessee history furnishes a living example we take this opportunity to show what the doctrine really amounts to.

It is an undeniable principle of the law that the common law is superseded by the written law. A statute repeals the common law on the same subject: and a Constitution supplants the common law on all points upon which the Constitution speaks.

1. As a statute takes the place of the common law on the same subject, and as the State of Tennessee has a statute on the subject of Sunday work, it follows that any indictment or prosecution, at common law, for Sunday work, is therefore precluded, and is void.

2. As a Constitution supplants the common law in all points upon which the Constitution speaks; as the Constitution of Tennessee expressly declares that “no preference shall ever been given by law to any religious establishment or mode of worship;” and as Christianity is in its every intent and purpose a mode of worship; it follows that when the Supreme Court of Tennessee recognized and established Christianity as a part of the common law of that State, that court did thereby positively give preference by law to that religion and its modes of worship. But this, being in violation of the express provision of the Constitution, is in itself void.

It may be well to give some citations upon this point. The Constitution of California contains substantially the same provisions as does that of Tennessee. And upon this same question the Supreme Court of that State spoke as follows:

We often meet with the expression that Christianity is part of the common law. Conceding that this is true, it is not perceived how it can influence the decision of a constitutional question. The Constitution of this State will not tolerate any discrimination or preference in favor of any religion; and so far as the common law conflicts with this provision, it must yield to the Constitution. Our constitutional theory regards all religions, as such, equally entitled to protection, and all equally unentitled to any preference. Before the Constitution they are all equal. When there is no ground or necessity upon which a principle can rest, but a religious one, then the Constitution steps in and says that you shall not enforce it by authority of law.—9 Lee 513.

The Constitution of Ohio has the same provisions, almost word for word, as has the Constitution of Tennessee. And likewise upon this same question the Supreme Court of that State spoke thus:—

The Constitution of Ohio having declared “that all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority can, in any case whatever, control or interfere with the rights of conscience; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; and that no preference shall ever be given by law to any religious society or mode of worship, and no religious test shall be required as a qualification to any office of trust or profit,” it follows that neither Christianity nor any other system of religion is a part of the law of this State. We sometimes hear it said that all religions are tolerated in Ohio; but the expression is not strictly accurate; much less accurate is it to say that one religion is a part of our law, and all others only tolerated. It is not mere toleration that every individual here is protected in his belief or disbelief. He reposes, not upon the leniency of government, or the liberality of any class or sect of men, but upon his natural, indefeasible rights of conscience, which, in the language of the Constitution, are beyond the control or interference of any human authority.2 Ohio Rep., 387.

The Constitution of New York is substantially the same; and the Supreme Court of that State annihilates the proposition that Christianity is part of the common law, in the following masterly reasoning:—

The maxim that Christianity is part and parcel of the common law has been frequently repeated by judges and text writers; but few have chosen to examine its truth or attempted to explain its meaning. We have, however, the high authority of Lord Mansfield, and his successor, the present Chief Justice of the Queen’s Bench, Lord Campbell, for stating as its true and only sense, that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, that blasphemy is an indictable offense at common law. The truth of the maxim in this very partial and limited sense may be admitted. But if we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning or untrue. If Christianity is a municipal law, in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil power, who refuses to embrace its doctrines and follow its precepts. And if it must be conceded that in this sense the maxim is untrue, it ceases to be intelligible, since a law without a sanction is an absurdity in logic and a nullity in fact.

Let it be admitted, however, that Christianity is a part of the common law, in any sense of the maxim which those who assert its truth may choose to attribute to it. The only effect of the admission is to create new difficulties, quite as impossible to overcome as those that have already been stated. How, we would then ask…. are we to apply the test which Christianity is said to furnish? It will not be pretended that the common law has supplied us with any definition of Christianity. Yet without a judicial knowledge of what Christianity is, how is it possible to determine whether a particular use, alleged to be pious, is or is not consistent with the truths which Christianity reveals?

No religious use has been or can be created, that does not imply the existence and truth of some particular religious doctrine; and hence, when we affirm the validity of a use as pious, we necessarily affirm the truth of the doctrine upon which it is founded, In a country where a definite form of [356] Christianity is the religion established by law, the difficulty to which we refer is not felt, since the doctrines of the established church then supply the criterion which is sought; but with us if can readily be shown that the difficulty is not merely real and serious, but insurmountable.—4 Sandfords Superior Court Reports, pp. 181, 182.

All of this Judge Cooley confirms in these words:—

It is frequently said that Christianity is a part of the law of the land…. But the law does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin. Some of these precepts, though we may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws. That standard of morality which requires one to love his neighbor as himself, we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen; and one could hardly be held responsible to the criminal laws, if in goodness of heart and spontaneous charity he fell something short of the good Samaritan. The precepts of Christianity, moreover, affect the heart and address themselves to the conscience; while the laws of the State can regard the outward conduct only; and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive laws of the State.—Constitutional Limitations, p. 584.

3. This provision of the Constitution of Tennessee is a part of the title, “Bill of Rights.” Now another principle of law and government is, that—

Everything in the declaration of rights contained, is excepted out of the general powers of government, and all laws contrary thereto shall be void.—Idem., p. 46.

As, therefore, the “Declaration of Rights” of the State of Tennessee has provided that “no preference shall ever be given by law to any religious establishment or mode of worship;” as all matters of conscience, religion, and worship are thereby “excepted out of the general powers of government;” and as “all laws contrary thereto shall be void,” it is clearly demonstrated that the preference given to Christianity as by common law is the State of Tennessee, is void.

There is yet another defect in this theory that Christianity is part of the common law. The theory is drawn from the English courts. But “even in England, Christianity was never considered as a part of the common law so far as that for a violation of its injunctions, independent of the established laws of man, and without the sanction of any positive act of Parliament made to enforce these injunctions, any man could be drawn to answer in a common law court,” as was done in this case by the courts of the State of Tennessee.

But Judge Hammond himself goes even further than this, and in a communication printed in the Appeal-Avalanche, Aug. 30, 1891, shows that “in one of the latest cases in England the Lord Chief Justice pronounced former expressions that Christianity is part of the law of the land, as dicta, and not true now.”

True enough! It is not true now, and it never was true by any principle of justice or right. We have not space here to go into the details of this matter. It must suffice here simply to observe that it was introduced by fraud, it was established by falsehood, and it has been perpetuated by imposture. And query: As it is “not true now” in England that Christianity is part of the law of the land, how can it be true that it is true now in Tennessee, which professedly derives the doctrine from England? And further and doubly, How can it be true now in Tennessee in face of the State Constitution, which expressly prohibits it in the declaration that “no human authority can in any case whatever control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishment or mode of worship?”

Thus it is demonstrated by the living principles of American law and government, that the procedure of the Tennessee courts in the case of Mr. King instead of being of absolute authority, as the United State Circuit Court decided, is absolutely void and of no valid authority at all. And the demonstration is complete, the decision of the United States Circuit Court to the contrary, notwithstanding, that King, and Dortch, and Moon, and Stem and Lowry, were deprived of their liberty and property “WITHOUT DUE PROCESS OF LAW.”

A. T. J.

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