“How Christianity Became Part of the Common Law of England” The American Sentinel 8, 4, pp. 26, 27.

THE following letter from Thomas Jefferson, which was published in the Gospel Advocate, Buffalo, N. Y., August 25, 1826, is specially interesting just now in view of the fact that the Supreme Courts of several of the States of the Union have, following the lead of the English courts, decided that Christianity is part of the common law of their respective States; while, in the same general line, the Supreme Court of the United States has declared that this is a Christian Nation. Mr. Jefferson’s letter, published originally in an English work, “Life and Correspondence of Major Cartwright,” is as follows:—

Monticello, in Virginia, June 5, 1824.

Dear and Venerable Sir: I am much indebted for your kind letter of Feb. 29th, and for your valuable volume on the English constitution. I have read this with pleasure and much approbation; and I think it has deduced the constitution inherited by the English nation, from its rightful root, the Anglo-Saxon.

It has ever appeared to me, that the difference between the whig and the tory of England is, that the whig deduces his rights from the Anglo-Saxon source, the tory, from the Norman; and Hume, the great apostle of toryism, says, in so many words (note as to chap. 42), that in the reign of the Stuarts, it was the people who encroached upon the sovereign who attempted as is pretended to usurp upon the people; this supposes the Norman usurpations to be rights in his successors; and again (c. 59), the commons established a principle which is noble in itself, and seems specious, but is belied by all history and experience, that the people are the origin of all just power! And where else will this degenerate son of science, this traitor to his fellowmen, find the origin of just power, if not in the majority of the society? Will it be in the minority, or in an individual of that minority?

You will perceive by these details, that we have not so far perfected our constitutions as to venture to make them unchangeable—but still, in their present state we consider them not otherwise changeable, than by the immediate authority of the people, or a special election of representatives for that purpose expressly. They are till then the lex legum.

But can they be made unchangeable? Can one generation bind another, and all others in succession for ever? I think not. The Creator hath made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things; not to mere matter unendowed with will—the dead are not even things. The particles of matter which composed their bodies make part now of the bodies of animals, vegetables, or minerals of a thousand forms. To what then are attached the rights and powers they hold while in the form of man? A generation may bind itself as long as its majority continues in life. When that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves; nothing then is unchangeable but the inherent and unalienable rights of man.

I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions that Christianity is a part of the common law. The proof of the contrary which is adduced is incontrovertible, to wit, that the common law existed while the Anglo-Saxons were yet pagans; at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had existed. But it may amuse you to show when and by what means they stole this law in upon us. In a case quare impedit, in the year book, 34 H. 6, fo. 38 (1458), a question was made, how far the ecclesiastical law was to be respected in a common law court? And Prisot, c. 5, gives his opinion in these words—“A tiel lies qu’ ils de seint eglise ont en ancien scripture, coveint a nous a donner credence; car ceo common ley sur quels touts manners leis sent fondes. Et auxy, Sir, nous sumus obleges de conustre lour key de saint eglise: et semblablement ils sent obliges de conustre noetre ley. Ex, Sir, si peit apperer or a nous que l’evesque and fait come un ordinary fera en tied cas, adong, nous devons ceo adjuger loc, on auterment nesty,” &c. See S. C. Fitch. Abr. Qu. Limp. 89, Bro. Abr. Qu. Imp. 12. Finch in his first book. C. 3, is the first afterwards who quotes this case, and misstates it thus—“To such laws of the Church as have warrant in holy scripture, our law gives credence,” and cites Prisot, mistranslating “ancient scripture,” into “holy scripture,” where as Prisot palpably says “to such laws as those of holy church have an ancient writing, it is proper for us to give credence; to wit, to their ancient written laws.” This was in 1613, a century and a half after the dictum of Prisot. Wingate, in 1658 erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot. Wingtan max. 3, and Sheppard tit.—“Religion,” in 1675, copies the same mistranslation, quoting the N. B. Finch and Wingate. Hale expresses it in these words, “Christianity is parcel of the laws of England,” 1 Ventr. 293, 3 Keb. 607, but quotes no authority. By these echoings and re-echoings from one to another, it had become so established in 1728, that in the case of the King vs. Woolston, 2 Stra. 834, the court would not suffer it to be debated whether to write against Christianity was punishable in the temporal courts at common law! Wood, therefore, 400, ventures still to vary the phrase and says, “that all blasphemy and profaneness are offenses by the common law,” and cites 2 Stra.; then Blackstone, in 1763, iv. 59, repeats the words of Hale, that “Christianity is part of the common law of England,” citing Ventis and Strange; and finally Lord Mansfield, with a little qualification, in Evan’s case in 1767, says, “that the essential principles of revealed religion are parts of the common law,” thus engulphing Bible, Testament and all, into the common law, without citing any authority. And thus far we find this chain of authorities hanging link by link one upon another, and all ultimately upon one and the same hook, and that a mistranslation of the words “ancient scripture” used by Prisot. Finch quotes Prisot, Wingate does the same; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court, in Woolston’s case, cites Hale; Wood cites Woolston’s case; Blackstone quotes Woolston’s case and Hale; and Lord Mansfield, like Hale, ventures it on his own authority. Here I might defy the best read lawyer to produce another script of authority for this judiciary forgery; and I might go on farther to show how some of the Anglo-Saxon priests interloped into the text of Alfred’s laws, the 20th, 21st, 22nd, and 23rd chapters of Exodus, and the 15th of the Acts of the Apostles, from the 23rd to the 29th verses. But this would lead my pen and your patience too far. What a conspiracy this between Church and State!!!

Your age of eighty-four, and mine of eighty-one years, ensure us a speedy meeting. We may then commune at leisure, and more fully, on the good and evil, which in the course of our long lives, we have both witnessed; and in the meantime, I pray you to accept assurances of my high veneration and, esteem for your person and character.

This letter was not published until after Mr. Jefferson’s death, which occurred in July, 1826. In giving it to the American public, the Gospel Advocate said:—

Anything from the pen of the illustrious statesman, Thomas Jefferson, whose spirit has but recently departed “to be with God,” must be interesting to the inquiring mind. With political matters we desire not to interfere, but the letter has a direct bearing on the subject of toleration, and therefore may be with safety published in a religious paper. We maintain that all men have equal rights in matters of conscience, and should have equal privileges guaranteed to them by the laws of our country. But that all do not enjoy these privileges is evident….

“Judicial blindness” has not always been able to discriminate between Christianity and the dogmas of “orthodoxy”! Now if the reader will examine this subject it will be found that some of our courts, taking it for granted that Christianity is a part of the common law, and that “orthodoxy” is Christianity, have made a serious blunder! By so doing, they have, as with the besom of destruction, abrogated the rights of all but the “orthodox.” …. Perhaps we go too fast; they have not deprived all others of their rights; for those who are hypocritical enough to pretend to believe “orthodoxy”—whether they do believe it or not—are welcomed to participation in all the benefits enjoyed by the faithful!

Things have changed but little since the Advocates comment was written. “Orthodoxy” is still favored by our courts; true, “orthodoxy” is not now just what it was sixty-six years ago, but the principle has not changed; judicial recognition of “Christianity” as a part of the common law, or of any other civil law, is just as mischievous as it ever was. Already the literary blunder that made “Christianity” a part of the common law of England has resulted in this country in the [27] imprisonment of honest, conscientious citizens for quiet Sunday work; and the end is not yet, for in Henry County, Tennessee, on the last Monday in this month, seventeen Adventists out of a total church membership in that neighborhood of less than fifty are to answer before the District Court for their faith, and the prosecuting attorney threatens to prosecute every man, woman, and child of them until they quit their Sunday work. [29]

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