Common Law/Natural Law

Scripture & Common-Law Authority

Brent Allan Winters © 2018

 I verily believe Christianity necessary to the support of civil society.
One of . . . [our] beautiful boasts is that Christianity is a part of the Common Law. . .
There has never been a period in which the common law did not
recognize Christianity as lying at its foundations.
[1]

Christianity has been the quickening principle of our common-law tradition. Even if one ignores the biblical warrant ingrained in the common law’s foundations, the habits resulting from these bring benefit. Others beside Justice Joseph Story have held steadfast that Christianity is the heart of the common law, supplying its authority and limiting government power:

Christianity is a part of the common law from which it seeks its sanction of its rights and by which it endeavors to regulate its doctrine. And, notwithstanding the specious objection of one of our distinguished statesman, the boast is as true as it is beautiful. There has never been a period in which the common law did not recognize Christianity as lying at its foundations. For many ages it was almost exclusively administered by those who held its ecclesiastical dignities. It now repudiates every act done in violation of its duties of perfect obligation. It pronounces illegal every contract offensive to its morals. It recognizes with profound humility its holydays and its festivals, and obeys them as dies non juridici [a day not juridical: exempting holidays and Sundays from court proceedings]. It still attaches to persons believing in its Divine authority the highest degree of competency as witnesses.[2]

Courts in the United States have also held that the common law draws its life from Christianity.[3] From the Saxon kings to Sir John Fortescue, on through to Sir William Blackstone and into modern times, the history of the common law gives steady evidence of its accord with Scripture.[4] “Christianity,” said Supreme Court Justice James Wilson, “is part of the common law.”[5] Though from time out of memory[6] courts have observed that Christianity lies at the foundation of the common-law tradition, not until the eighteenth century, in response to rationalism from the continent, did common lawyers articulate Christianity’s relationship with the common law.

It is “[o]ne of the basic principles of the common law . . .” says Heward, “that a man should not injure his neighbor and it is in this sense that the 18th century lawyers regard Christianity as part of the common law . . . .”[7] Thus, for example, the Constitution’s bankruptcy provisions are Christian in spirit. A government that never offers relief “from a slavery of mind and body,” by ending the debt of the unfortunate debtor trapped for life, says Justice Story, “is incompatible with the first precepts of Christianity; and is a living reproach to the nations of Christendom, carrying them back to the worst ages of paganism.”[8]

To recognize, however, that Christianity is the life force of the common law is not recognition of any ecclesia-cracy:[9] government-compelled allegiance all must pay to the rule of some church hierarchy or power. Indeed, such forced homage trespasses upon one’s freedom of conscience and of action. Ecclesiacracy is better understood when contrasted with theocracy: ecclesiacracy is a government of men claiming to rule in the stead of God; theocracy is one’s individual freedom to exercise the direct rule of God over all of one’s life and responsibilities. In short, ecclesiacracy attributes total sovereignty over timeless and temporal matters to some earthbound government; theocracy attributes total sovereignty over timeless and temporal government of one’s life to the maker of heaven and earth. Ecclesiacracy, then, is men usurping God’s right to rule direct over the individual, as in the ancient and modern forms of Babylonish priesthoods.[10] Because the civil-law tradition imposes the state between God and the individual by claiming final authority, civil-law is ecclesiacracy in fact. Theocracy, by contrast, is God’s direct lordship over the individual and his conscience. Indeed, polity of church ecclesiastics is the civil-law state.

Standards of human morality found in Scripture and those of heathen religions are at times alike—albeit for different reasons—, such as forbidding to lie, steal, and murder. Nevertheless, fundamental differences between Scripture and all other religions inflame hatred and hostility toward Christianity.[11] In the same way, history and present experience demonstrate that civil-lawyers react with arrogant hostility toward common-law ideals of law and government, such as freedom of conscience, association, and use of the Jury.

Common-law countries, however, have proven better able—by far and away—to withstand the storms of political strife and threat of revolutionary upheaval attending transfers of government power than have civil-law nations. Where the common-law is rooted in the soul of a country, steadfast stability results; Christianity is the letter and spirit that ingrains the ideals of the common law into the mind and conscience. The gravity[12] of the Church’s presence and the fearless daring that arises from respect for God’s Word written strengthens the common-law, displacing notions of civil law.[13] What the individual Christian desires and does is the direct result of what he is. The true Christian’s hunger for Scripture, therefore, results from his being, which, in turn, determines the law and government he demands. In short, because the common-law tradition is consonant with Scripture, the true Church has affinity for its principles.[14]

God is the Author of history and origins. He has made mankind (Adam) in His image; therefore, people in general—Christian and pagan[15]—by nature, tend toward right forms and processes of government. Moreover, the Creator has stamped this character into all mankind,[16]  impressing it into each individual’s consciousness—much as the mint strikes an image upon individual coins. It is thus unsurprising that when an individual’s life, liberty, or property is in jeopardy, he will readily discern, anxiously claim, and put to practice common-law protections. But when the life, liberty, or property of another is in jeopardy, though outraged, he will be less likely to act.[17]

For example, England’s preeminent humanist Thomas More followed Thomas Aquinas, requiring that inquisitors, when interrogating those suspected of heresy (disagreement with the Roman pope or priesthood), force the accused, by whatever means necessary, to swear an oath to answer truthfully any and all questions asked, thus forfeiting his right to remain silent.[18] In addition, More held that when such a suspect answered truthfully, but in disagreement with Roman doctrine, the state must execute him for heresy. When the shoe, however, was on the other foot, the tribunal commanding Thomas More to take the same oath, he claimed the common-law’s protection of his conscience and his right to remain silent. Moore refused the oath.[19]

Though each person is able to see and ponder good ideas and even to initiate, institute, and practice such ideas for his own benefit, without the Spirit of Christ working through Scripture, rulers are unable to keep respect, year upon year, for the rights of others.[20] Groups—such as, for example, the early Romans—have set up right forms of government only to see these degenerate and fail because unregenerate rulers lack the moral authority, confidence, and ability to consistently insist upon and practice common-law principles. Personal freedom and political liberty requires a critical mass of individuals morally scrubbed on the inside; only then will truth persist in outward behavior through individual responsibility and self-government.

Because the God-placed natural ability to learn and insist upon the right forms of government arises from each person’s natural being, Sir Edward Coke held in Calvin’s case that the natural law is “written with the finger of God in the heart of man . . . [and it existed] before any judicial [common] or municipal [civil] law.”[21] Without the Spirit, however, man will never sustain the natural. God authors that which is natural; it is necessary and good. Nonetheless, to be of lasting worth, the natural (viz., nature, the physical aspect of life) needs the Spirit’s quickening power or it will deteriorate. Eternal law becomes beneficial to man only as he exercises his divinely given subjective ability—called the law of nature or natural religion—to discern timeless standards from God’s objective revelation (revealed religion): “The eternal principles of natural religion,” said William Murray, “are part of the common law. The eternal principles of revealed religion are part of the common law . . .”[22]

The germination and sprouting of the common-law ideals has arisen among various people groups, but after these arose among the Anglo-Saxons and Danes, these tribes, in the providence of God, transplanted them to British soil, where they matured into a good stand under the watering and sunlight of God’s Word.[23] Scripture has informed the common law, teaching that ultimate and final sovereignty never rests in the Teutons’ gods of fate but in the God of creation alone; all other claims of sovereignty derive from God and depend upon God.

The courts in Britain, from their early days, have acknowledged the common law’s Christian character. “There is no act,” said Chief Justice Best of the Court of Common Pleas, “which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England.”[24] In England, the ideals of common-law tradition survived, growing to maturity and refinement. Settlers then carried these ideals to North America and elsewhere, where their progeny reinforced and built upon its principles.

The Christian religion, when divested of the rags in which they [the priests] have enveloped it, and brought to the original purity and simplicity of its benevolent institutor, is a religion of all others most friendly to liberty,science, and the freest expansion of the human mind.[25]

Brent Allan Winters © 2018

FOOT NOTES

[1] Joseph Story, Discourse Pronounced upon the Inauguration of the Author as Dane Professor of Law at Harvard University, 25 Aug. 1829, quoted in The Legal Mind in America 176, 178 (Perry Miller ed., 1962) (emphasis added). See, e.g., Levy, supra note 712, for indirect, but nonetheless powerful, examples of this truth. Upon the Anglo-Saxons reception of the Scriptures, their folk law became known as the common law.
[2]
Benjamin F. Morris, The Christian Life and Character of the Civil Institutions of the United States 802 (2007) (1854).
[3]
See, e.g., Strauss v. Strauss, 148 Fla. 23.
[4]
The common law’s strength, during its years of transition from youth into manhood, was that the Word of God dwelt in its forms. One can hardly read a page of Sir John Fortescue without seeing direct reference to the Bible and inference from it, including exposition and application of Scripture’s precepts. To Fortescue, the common-law ideals were the practical outworking of Scripture. For example, in describing the duties and habits of the English judges, Fortescue says, “[T]he justices . . . pass the whole rest of the day in studying the laws . . . [and] reading Holy Scripture . . . .” Concerning princes he exhorts, “Every prince ought to have knowledge of the Holy Scriptures.” Citing 2 Chronicles 19:5–6, Fortescue sums up the source of common-law judgments: common-law judgments are derived wisdom. Exhorting judges, he writes, “The judgments that you give are the judgments of God.” Fortescue persistently justifies the common law’s principles by reference to the Bible. Fortescue, supra note 59, at 129, 137. Without the Word of God revealed, common law is a deflated form; without the common law, the Constitution will collapse; American life as we know it will end.[5] Updegraph v. Commonwealth, 11 Serg, & R. 393, 403 (1824), quoting James Wilson:
Signer of the Declaration of Independence and the Constitution, and Supreme Court Justice appointed by George Washington. Wilson spoke 168 times during the Constitutional Convention.
[6] In the solemnity of our common law, says Blackstone, “time whereof the memory of man runs not contrary.”
[7]
Heward, supra note 386, at 178. See also Sir Edward Coke, Institutes of the Laws of England, pt. IV, 71 (London 1641).
[8]
Story, supra note 89, at 386. Justice Story writes these words in support of the Constitution’s bankruptcy provisions.
[9]
Both ecclesia and ecclesiastic stem from the ancient Greek ekklhsia (pronounced ekklaysia): in the New Testament most-often translated into English with church, by the letters ekklaysia translates, “called out [ones].” The English word “church” is a cognate of the Scots kirk, understood “the Lord’s.” Ancient Greek writers used tay ekklaysia to denote an aggregate of individuals, each having been directly summoned by a common authority (a specific call), under pain of penalty for failure to comply. Such is the sense of tay ecclesia, the term translated “church” in the New Testament and as used by the early Greek writers such as Aristotle and Thucydides, the Septuagint translators (see, e.g., 1 Kings 8:65), first-century writers in the Roman Empire (see Adolf Deissmann, Light From the Ancient East 112 and ff., 1927), and the New Testament writers. That the Church (tay ekklaysia) embraces only those individuals targeted and summoned (by the letters, “called out”) is an accurate description for three reasons: the root of ekklaysia (kalein: kalein), signifies the act of summoning, the prefixed preposition ek (ek) expresses a calling “out from among,” and “summoned” in first-century Greek culture includes the warning of penalty for the summoned one’s failure to obey. Thus, your writer uses ecclesia-cracy to denote rule by such a group.
[10]
See generally § 2.8.2 of this book (discussing pope Gregory VII’s decree claiming of total power over all the earth and its people, even to tax, raise armies, and depose princes). Such also were the Judaism elite of the first century, bedeviling Christ, His disciples, and later, Paul the apostle.
[11]
Following his examination of the Gospel records in the light of the common law of evidence, Simon Greenleaf concludes: The religion of Jesus Christ aims at nothing less than the utter overthrow of all other systems of religion in the world; denouncing them as inadequate to the wants of man, false in their foundations, and dangerous in their tendency. Simon Greenleaf, The Testimony of the Evangelists 7–8 (photo. reprint 1982) (1874) (emphasis added). See generally app. 20 of this book (discussing the latent power available to the Christian).
[12]
God’s glory (dbk: cavodth, meaning weightiness) is the gravity of His presence. Found in the one God has justified, cavodth produces divine agitation to change for the better.
[13] Because God the Holy Spirit indwells the Christian, God’s presence goes where the Christian goes, enabling—even impelling—intrepid behavior.
[14] See generally Matthew 5:13–14 (emphasizing the fruit of God’s people as contrasted with their contrived efforts).
[15]
Your writer does not use pagan in a pejorative sense, but rather, to denote worshippers of creation or some part of it, as distinguished from worshippers of the personal Creator. “Pagan” became synonymous with heathen when Ulfilas used the old English heath (now “heathen,” meaning originally heath dweller: one living in the open fields where the heather flowers grow) to translate the Latin pagus (English “pagan”: a non-city dweller; one living in the country, unrefined and ignorant). Ancient writers used both “pagan” and “heathen” in the Christian context to signify those who had not yet heard the gospel because of their geographic remoteness. In time, however, the two terms distinguished themselves: “pagan” signifying a worshipper of nature, ancient from the speaker’s or writer’s perspective; “heathen” signifying a worshipper of nature contemporaneous with the speaker or writer. For example, the ancient Greeks we call pagan; the present Moslems we call heathen.
[16]
This innate knack to recognize principles of good government, men popularly called natural law. It arises from every person’s natural potential to discern right from wrong, having received it by nature from the Creator. See generally § 5.1.2 of this book (discussing Romans 2:14–15 and natural law as the innate ability to discover and learn the law, not the innate possession of the law).
[17]
Some will say that if the individual will be at times outraged and willing to state his opinion, but often—unless his mind is captive to Scripture—remains unmoved to action respecting the rights of another, the Jury are no better than the inquisitor. To so hold, however, ignores the reason for the Jury seating twelve persons as a local sampling of the country: twelve persons, drawn at random, and empanelled minutes before trial gives good opportunity that one or more will be captive to the truth and willing to act to protect his neighbor’s rights. Besides, inquisitors are minions, sworn to an imperial state, acting upon imperial command, and subject to punishment for disobedience; whereas the juror swears his oath to the law and no other, binding himself to act against his neighbor only if he has a common fellowship of sense with the other eleven. If he knows that the court’s instruction is against truth and law, his oath does not bind him because no oath contrary to truth is binding. An unlawful oath is no oath at all. See Westminster Confession of Faith chap. 22. Moreover, the common law will never punish the juror for his verdict. In short, the inquisitor answers to the state; the juror answers direct to God.
[18]
During the medieval age, Aquinas gave sanction and fashion to the forcing of oaths and, thereby, the denying one’s right to remain silent: once an inquisitor merely suspects that the accused may have information he desires, the civil law justifies him in compelling the suspect, by force or threat of force, to answer incriminating questions. See Thomas Aquinas, Summa Theologica, pt. X, qu. 79, art. 1, reply obj. 1. Thus, under civil and canon law, any magistrate’s claim of suspicion entitled him to commence threats of torture and torture itself. At times, torture was for the sake of torture, without any expectation of information forthcoming from the one tortured.
[19]
See Levy, supra note 712, at 65–70. Thomas More defended, advocated, and used torture and the ex officio law, “by which persons could be arrested on secret information and without being confronted by their accusers be condemned in a secret trial.” Bobrick, supra note 316, at 128.
[20]
A relationship requiring that one act solely for the benefit of another and in disregard of one’s own benefit is the biblical definition of God’s love for His people (Hebrew bh): ‘ahav; Greek agaph: agapay) and His people’s love for one another. The common law calls such a relationship fiduciary.
[21]
7 Co. Rep. I, 77 Eng. Rep. 377 (K.B. 1610), cited in Wu, supra note 39, at 189. Coke’s words are in keeping with the principle of the Anglo-Saxon folk law or Volkriht: law is timeless and unchanging because God is timeless and unchangeable. God’s Word, being settled forever (see Psalm 119:89), the Lord is the same yesterday, today, and forever. See Hebrews 13:8. It is impossible, therefore, for men to make law; men are able only to find, discern, articulate, and affirm law.
[22]
Argument of William Murray before the House of Lords in Chamberlain of London v. Allen Evans, quoted in Heward, supra note 386, at 151. Each individual is to seek first—that is, as soon as one is old enough to ponder—God’s sovereign administration of government (form) and the outworking of God’s, not the individual’s own, righteousness (substance). In pursuance of these, men are to pray, “Your kingdom [basileia  (basileia): God’s sovereign right to administer government] come, your will [God’s righteousness] be done . . . .” Matthew 6:10. Moreover, God’s forms and methods of government are to be an early consideration, that is, in one’s youth. “Remember your Creator,” says Solomon, “in the days of your youth . . . .” Ecclesiastes 12:1 (emphasis added).
[23]
But for the steady glow of God’s written Word in Britain, the civil-law Code would have supplanted the unwritten common-law tradition. John Wyclif, grasping this principle, set about to translate the Bible into English as the remedy against the civil-law Code. Wyclif’s translation succeeded. “Only in England,” writes Bobrick, “was the Bible in any sense a national possession . . . .” By living only on the laurels of their claimed forebears—as did the first-century Jewish rulers—, Americans will cease from freedom. Just as the well being of crops demands provision of necessary elements (air, water, nutrients, and sunshine) and constant warding off danger (disease, devouring insects, drought, and death), the life of our common-law also requires tending. God’s Word outfits the mind to recognize and reject dangerous doctrines, which tout the human mind as the womb of law, the final arbiter of right and wrong.
[24]
Bird v. Holbrook (C.P., 1828. 4 Bingham 628). Bird is the famous English spring-gun case that served as precedent for the controversial mid-twentieth-century spring-gun cases in the United States.
[25]
Quoting Thomas Jefferson. “The common law of England,” argued William Murray, “which is only common reason or usage, knows of no prosecution for mere opinions . . . There is nothing certainly more unreasonable . . . more contrary to the spirit and precepts of the Christian religion . . . than persecution.” Argument of William Murray before the House of Lords in Chamberlain of London v. Allen Evans, quoted in Heward, supra note 386, at 151.



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