I was glad to find in your book a formal contradition, 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 you have 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 ever existed.- Thomas Jefferson, 1824
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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