Mr. Jefferson, in a letter to Major Cartwright, recently published, insists that the maxim, that Christianity is a part of the common law, has no foundation in the cases cited to support it, they all referring to the Year Book, 34 Henry VI. 38, 40; which he says has no such meaning.
The substance of the case in 34 Henry, VI. 38, 40, is this. It was a quare impedit against the bishop and others; and the bishop pleaded, that the church was in litigation between the plaintiff and his co-defendant, as to the right of patronage. The argument by counsel in one part of the case was, that every advowson and right of patronage depended upon both laws, namely, the law of the church and the common law ; For every presentment commenced at the common law and took effect by the law of the church, as to the ability or non-ability of the clerk presented or his being criminal. And it was said by Ashton, that if the bishop should refuse the clerk on account of alleged inability, and a quare impedit was brought, and the bishop excused himself on that account, and the parties were at issue upon the fact of ability, another judge should decide that, namely, the metropolitan. But that was denied by Danby, who said it should be tried by the jury. Ashton, however, persisted in his opinion, arguing that the right of advowuon must be tried by both laws, and that before judgment wag given, knowledge ought to be of the ecclesiatical law. Prisot then said: "A tiels leys gue eux de sainte Esgliue, ont en auncien Scripture convenit pui nous a doner credence, quia ceo est comen ley, sur quel toutes maners leys sont foudues; et, auxi, sir, nous sumus obliges de conustre leur ley de saint Esglise; et semble, ils sount obliges de coniustre- notre ley." The literal traslation is, "As to those laws which those of holy church have in ancient scripture, it behooves us to give them credence, for this is common law, upon which all manner of laws are founded; and thus, sir, we are obliged to take notice of their law of holy church; and it seems they are obliged to notice of our law."
Mr. Jefferson supposes that the words "ancien scripture" do not refer to the Holy Scriptures or Bible, but. to writings, or the written code of the church.
But if this be so, how could Prisot have said that they were common law, upon which all manner of laws are founded? Do not these words suppose that he was speaking of some superior law, having a foundation in nature or the Divine appointment, and not merely a positive ancient code Of the church ?
Mr. Jefferson asserts, that in subsequent cases, which he refers to, the expression has been constantly understood referring to the Holy Scriptures; but he thinks it a mistake of Prisot's meaning. Now it is some argument in favor of the common interpretation, that it has always been cited as clear -- Mr. J.'s interpretation is novel.
This case is cited in Brook's Abrid.s. Title Quare Impedit, pl..12, and in Fitzherbert's Abridg. s. t. 89; but no notice is taken of Prisot's saying.
Mr. Jefferson quotes sundry cases, where this saying been relied on in proof of the maxim, that Christianity is a part of the common law.
Thus, in Taylor's case, 1 Vent. 293, indictment for blasphemous words, Hale, C. J., said, Such blasphemous words are not only an offense against God and religion, but a crime against the laws and government, and therefore punishable in this court, &c.; and Christianity is a part of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law. In the same case in 3 Keble, 607, Hale, C. J. is reported to have said, "Religion is a part of the law itself, therefore, injuries to God are as punishable as to the King, or any common power." The case of 34 Hen. VI. 38, 40, is not here cited by the Court as a foundation of their opinion. But it proceeds upon a general principle.
So in Rex v. Woolston, 2 Strange, R. 834, S. C. Fitzgibb. 64, the Court said they could not suffer it to be debated whether to write against Christianity in general was not an offence punishable in the temporal courts, at common law, it having been settled so to be in Taylor's case, 1 Vent. R. 293, and Rex. v. Hall, 1 Strange, R. 416. No reference was here made to the case in 84 Hen. VI.
A reference is made by Mr. J. to Sheppard's Abridgment, title Religion; but the only position there found is, "that to such laws as have warrant in Holy Scripture our law giveth credence;" and "laws made against the known law of God are void;" and for these positions, he cites, among others, the case of 34 Hen. VI. 40.
But independently of any weight in any of these authorities, can any man seriously doubt, that Christianity is recognized as true, as a revelation, by the law of England, that is, by the common law? What becomes of her whole ecclesiastical establishment, and the legal rights growing out of it on any other supposition? What of her test acts, and acts perpetually referring to it as a divine system, obligatory upon all? Is not the reviling of any establishment, created and supported by the public law, held a libel by the common law ?
Joseph Story, 1824
LOL. Not one of Story's better...stories, for lack of a better word.
In the Year Book 34. H. 6, fo. 38. in Quare impedit,(25) where the question was how far the Common law takes notice of the Ecclesiastical law, Prisot, Chief Justice, in the course of his argument says 'a tiels leis que ils de Seint eglise ont en ancien scripture, covient a nous a donner credence; car ces Common ley sur quels touts manners leis sent fondes: et auxy, Sir, nous sumus obliges de conustre lour ley de saint eglise Etc.' (26) Finch begins the business of falsification by mistranslating and mistating the words of Prisot thus 'to such laws of the church as have warrant in holy scripture our law giveth credence, ' citing the above case and the words of Prisot in the margin, Finch's law. B. I. c. 3. Here then we find ancient scripture, ancient writing, translated 'holy scripture.' This, Wingate in 1658. erects into a Maxim of law, in the very words of Finch, but citing Prisot, and not Finch. And Sheppard tit. Religion, in 1675 laying it down in the same words of Finch, quotes the Year Book, Finch and Wingate Then comes Sr. Matthew Hale, in the case of the King v. Taylor I Ventr 293. 3 Keb. 607· and declares that 'Christianity is parcel of the laws of England.' Citing nobody, and resting it, with his judgment against the witches. (27) on his own authority, which indeed was sound and good in all cases into which no superstition or bigotry could enter. Thus strengthened, the court in 1718 in the King v. Woolston, would not suffer it to be questioned whether to write against Christianity was punishable at Common law, saying it had been so settled by Hale in Taylor's case. 2 Stra. 834· Wood therefore, 409· Without scruple, lays down as a principle that all blasphemy and profaneness are offenses at the Common law, and cites Strange. Blackstone, in 1763. repeats in the words of Sr. Matthew Hale that 'Christianity is part of the laws of England,' citing Ventris and Strange ubi supra. And Ld. Mansfield in the case of the Chamberlain of London v. Evans, in 1767· qualifying somewhat the position, says that 'the essential principles of revealed religion are part of the Common law.(28) Thus we find this string of authorities all hanging by one another on a single hook, a by Finch of the words of Prisot, or on nothing. For all quote Prisot, or one another, or nobody. Thus Finch misquotes Prisot; Wingate also, but using Finch's words; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court in Woolston s case cite Hale; Wood cites Woolston's case; Blackstone that and Hale; and Ld. Mansfield volunteers his own ipse dixit. And who now can question but that the whole Bible and Testament are a part of the Common law? And that Connecticut, in her blue laws, laying it down as a principle that the laws of god should be the laws of their land, except where their own contradicted them, did anything more than express, with a salve, what the English judges had less cautiously declared without any restriction? And what I dare say our cunning Chief Justice [Marshall] would swear to, and find as many sophisms to twist it out of the general terms of our Declarations of rights, and even the stricter text of the Virginia act for the freedom of religion' as he did to twist Burr's neck out of the halter of treason.(29) May we not say then with him who was all candor and benevolence 'Woe unto you, ye lawyers, for ye lade men with bur dens grievous to bear.'- Thomas Jefferson, 1814
BTW, my guess is that Jefferson and the Virginia Statute for Religious Freedom had some influence on the drafting of the Constitution, particularly the First Amendment. Which part of the Constitution do you suppose ten-year-old Joseph Story chose in order to exercise his influence during the convention?