1440. COMMON LAW, Christianity and.—
I was glad to find in your book a formal contradiction 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 heard the name of Christ pronounced,
or knew that such a character had
ever existed. But it may amuse you, to show
when, and by what means, they stole this law
in upon us. In a case of quare impedit in the
Year Book 34, H. 6, folio 38 (anno 1458.) a
question was made, how far the ecclesiastical
law was to be respected in a common law
court? And Prisot, Chief Justice, gives his
opinion in these words: “A tiel leis qu'ils de
seint eglise ont en ancien scripture, covient à
nous à donner credence; car ceo common ley
sur quels touts manners leis sont fondés. Et
auxy, Sir, nous sumus oblègés de conustre
lour ley de saint eglisse; et semblablement
its sont obligés de consustre nostre ley. Et,
Sir, si poit apperer or à nous que l'evesque ad
fait come un ordinary fera en tiel cas, adong
nous devons cee adjuger bon, ou auterment
nemy,” æc. See S. C. Fitzh. Abr. Qu. imp.
89, Bro. Abr. Qu. imp. 12. Finch in his first
book c. 3, is the first afterwards who quotes
this case and mistakes it thus: “To such
laws of the church as have warrant in holy
scripture, our law giveth credence.” And
cites Prisot; mistranslating “ancien scripture,
” into “holy scripture.” Whereas Prisot
palpably says, “to such laws as those of holy
church have in 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, Wing. Max. 3. And
Sheppard, title, “Religion,” in 1675, copies
the same mistranslation, quoting the Y. 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 he 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 court at common
law? Wood, therefore, 409, ventures still to
vary the phrase, and say, that all blasphemy
and profaneness are offences 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 laws of England,”
citing Ventris and Strange. And finally, Lord
Mansfield, with a little qualification, in Evans'
case, in 1767, says, that “the essential principles
of revealed religion are part of the common
law.” Thus ingulphing Bible, Testament
and all into the common law, without
citing any authority. And thus we find this
chain of authorities, hanging link by link, one
upon another, and all ultimately on one and
the same hook, and that a mistranslation of
the words “ancien 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 scrip of
authority for this judiciary forgery; and I
might go on further to show, how some of
the Anglo-Saxon priests interpolated into the
text of Alfred's laws, the 20th, 21st, 22d, and
23d chapters of Exodus, and the 15th, of the
Acts of the Apostles, from the 23d to the
29th verses. But this would lead my pen and
your patience too far. What a conspiracy
this between Church and State!—
To John Cartwright. Washington ed. vii, 359.
(M.
1824)
