Common Law and Religious Freedom
ONE of the most tenacious principles of legal practice
centers upon the so-called common law. Common law was said to be
derived from the principles of Scripture. In the seventeenth century, Sir
Matthew Hale declared that the whole Bible made up the common law
of the land (England). William Blakely states that the basis of common law
was established upon fraudulent claims that King Arthur the Great had
established such laws. (William Blakely, American State Papers Bearing
on Sunday Legislation, p. 137) Common law was incorporated
within the legal judgments of England without any recourse to
parliamentary legislation. Soon the arguments were not concerning whether
Christianity was part of the law of England, but simply how far the
ecclesiastical laws were to be respected by the common law courts of
England. So central had biblical Christianity become to the basis of
common law by the eighteenth century that in 1728, the court would not
allow any debate concerning whether violations of Christian principles
were punishable in the temporal courts of the land.
Emphatically Sir Matthew Hale had stated that,
"Christianity is part of the laws of England" (quoted in ibid.
p. 131). In 1767, Lord Mansfield qualified this only slightly by
declaring, "The essential principles of revealed religion are part of
the common law" (quoted in ibid.). Naturally, the emphasis upon common
law became very important to the American Colonies, and in many
colonies similar enactments took place. Further, it was only natural, once
an independent nation had been established after the Revolution, that the
jurists and legislators of America would look very closely to the issue of
common law as it related to the emerging legal foundation of justice in
the United States.
For a moment let us look at the laws that were
established in England on the basis of common law—that is, laws
arising out of the Scriptures.
(1) Apostasy. Quoting the later Roman emperors
who had converted to Christianity, such as Constantine and Julian, it was
stated that those who apostatized from Christianity, by either embracing a
false religion or professing no religion at all, were to suffer
confiscation of goods. Even later Emperors Theodosius and Valentinian
added capital punishment, fearing that the apostate might pervert others
to their same "iniquity." So far did this fearful principle
influence thinking in the American colonies that it was decreed that
apostates would be burned to death.
(2) Heresy consisted, not in the total denial of
Christianity, but in the disavowal of what some held to be the essential
doctrines of the Church. Indeed, often even minor deviations from the
teachings of the established church were adjudged to be heretical. In the
early Christian church, such heresies were first enjoined by
excommunication and ecclesiastical deprivation. Later, however, the
determination of heresy against a person would lead to imprisonment and
confiscation of his goods. Still later it became a capital offense. Thus,
at the level of punishment, heresy was seen in exactly the same light as
full scale apostasy, or atheism, or paganism. In later generations the
same penalty was applied in Britain for the "crime" of heresy,
as in the Dark Ages.
(3) Non-conformity related to offenses against
the religion as practiced by the established church. This could either
come by reviling the church’s ordinances, or by not conforming to its
worship. In the days of Queen Elizabeth and James I, non-attendance at
church resulted in a one-shilling fine to be given to the poor; and twenty
pounds to the monarch if the default continued for a month or more. If any
one kept such a person in his home, he forfeited ten pounds per month.
Others could suffer fines because of a mistaken or perverted zeal.
(4) Blasphemy could include profane scoffing of
the Holy Scriptures and the blasphemous use of the name of God. Such was
punishable by fines, imprisonment, and corporal punishment.
(5) Swearing and cursing were considered a
lesser offense than blasphemy but, nevertheless, they came under the
punishment of the common law.
(6) Witchcraft, conjuration, enchantment, and / or
sorcery. Laws were enacted that those practicing such evil craft were
to be punished by death, as were those who sought counsel from them. Many
women were put to death upon very doubtful evidence of the practice of
witchcraft. This was another ecclesiastical law that was practiced also in
the early days of the American Colonies.
(7) Religious impostors. Those falsely claiming
extraordinary commission from heaven were punished by the temporal courts
with fines, imprisonment and corporal punishment.
(8) Simony is the practice of using religion for
personal profit. This too was severely punished.
(9) Profaning the "Lord’s Day" (Sunday).
This included the practice of conducting secular business and such
transactions on the first day of the week. Work was also prohibited on
Sunday and offenders were fined.
(10) Drunkenness & (11) Lewdness.
There were severe fines for anyone who was considered to exhibit immodesty
in any way.
Most of the offenses in one way or another relate to
the first four of the Ten Commandments—man’s relationship and
obligation to God. As we have maintained throughout this book, civil
government has no right to interfere in man’s relationship to his God.
But government does have an inescapable responsibility to guard
strenuously the rights of all citizens to practice their religion free of
any hindrance or disturbance. The civil governments certainly have
responsibility in terms of the last six of the Ten Commandments—man’s
relationship to man, but there ends their responsibility in protecting the
life, limb, and property of citizens. Blakely affirms that,
It is evident that the idea that Christianity is a part
of the common law of the American People, is not only contrary to the
facts in the case, but it is contrary to reason, human right, and even to
Christianity itself. Ibid., p. 142
He then quotes Jefferson as saying,
Christianity was never intended to be enforced by law,
. . . and all attempts at compulsion are now, and always were,
diametrically opposed to the teachings of the Author of Christianity.
Religious legislation is the heritage that has been handed down to us from
pagan times; and in all these laws can be seen the pagan superstitions.
These superstitious ideas were on the statute books of the Roman Empire,
were adopted by a corrupt Christian church, and carried wherever the
empire extended its dominion; were fraudulently engrafted on the common
law of England by the supporters of the church, and have thus come down
through the Puritans to us today—a relic of the superstitious ideas of
the dark ages. Quoted in ibid.
Yet in spite of the contributions of Jefferson,
Madison, and others, common law as derived from Holy Scriptures has been a
very tenacious part of American jurisdiction. This has been especially so
in regard to blasphemy laws and Sunday laws dealing with the third and
fourth commandments. In the 1880s and 1890s especially, there were strong
efforts to institute laws to preserve the sacredness of Sunday observance.
Once again in contemporary American society there is an
increased call for similar legislation to reintroduce or enforce laws that
are still on the statute books, that require cessation from certain forms
of behavior on Sundays. It is beholden upon every citizen of the United
States, and indeed the citizens of every nation of the world, to resist
any efforts by the legislature or the judiciary to impose upon citizens,
obligations under the guise of common law which are matters of conscience
between individuals and God.