alt.education

Conspiracy of Doves wrote:

>:|On Mar 27, 7:32 am, buckeye wrote:
>:|> Antonin Scalia v. Thomas Jefferson http://www.misterthorne.org/ESSAYS/scalia_v_jefferson.htm
>:|>
>:|
>:|>
>:|> The author of The Declaration of Independence of the Thirteen Colonies
>:|> wouldn't agree that our laws and our government are based on the Ten
>:|> Commandments. Thomas Jefferson criticized the notion that Christianity
>:|> had any part in it. He argued that the common law of England - the
>:|> basis of the laws of the colonies - couldn't have been influenced by
>:|> Christianity, much less the Ten Commandments. His argument? The common
>:|> law existed in England for 200 years before Christianity arrived
>:|> there. His conclusion? "Christianity neither is, nor ever was a part
>:|> of the common law."

>:|
>:|I did some googling on the history of english common law but had a
>:|hard time finding out when it started. Christianity was there at least
>:|as far back as 597ad when Augustine arrived there.

(1)
Let me begin by saying there is a decent amount of info on this topic to be
found here

Is Christianity part of English Common Law
http://candst.tripod.com/joestor4.htm

(2) One day the Internet will actually be a source of truly valid and rich
scholarly research for the average person. It isn't even close to being
that today.

There is far too much un cited bogus crap put there still. Unless one has
affiliation with a college, university, library etc, they do not have
access to a great deal of good material. material that is protected by
outfits such as JSTOR and others like that. Protected by professional
organizations, or libraries, universities, museums and so on.

One has to still rely on real books, real journals, real reviews and the
like

Just a few days ago I was able to download vis the local Branch of Kent
State U the following article When Christianty Was Part of the Common Law
by Stuart Banner Law and History Review, Spring 1998, Vol. 16, No 1, pp.
27 - 62

This was one of these articles that was protected from the average person
by JSTOR

From the above titled article:

[excerpt 1]

Nineteenth-century American judges and lawyers often claimed that
Christianity was part of the common law. From Kent and Story in the early
part of the century, to Cooley and Tiedeman toward the end, the maxim that
"Christianity is part and parcel of the common law" (or some variant
thereof) was heard so often that later commentators could refer to it as a
matter "decided over and over again," one which "Next writers have
reiterated and courts have affirmed." The maxim even received an
endorsement of sorts from the Supreme Court, which in 1844 affirmed that
"the Christian religion is part of the common law of Pennsylvania."'
This notion would have few adherents today. No state supreme court has held
that Christianity is part of the common law since 1927, when the
Pennsylvania Supreme Court cited the maxim en route to barring the
Philadelphia A's from playing Sunday baseball. No court of any kind has
relied on the maxim since a 1955 Pennsylvania Superior Court decision
affirming a conviction for making "persistent lewd, immoral and filthy"
telephone calls.' And cases like these are rarities. Apart from such
occasional flareups, the doctrine died out around the turn of the century.
Twentieth-century judges and lawyers have only rarely stated that
Christianity is not part of the common law; more often, they simply let the
maxim fade into disuse.

This article seeks to understand what the maxim actually meant to lawyers
and judges in the nineteenth century and to explain why it faded away. The
issue was present in some high-profile cases in the nineteenth century and
was the subject of ardent debate among well-known nineteenth-century
American lawyers. These days, it is a dark, barely explored corner of legal
history. The countless books and articles written about the historical
relationship between law and religion contain scarcely any mention of the
issue.

In the few instances when historians have mentioned it, much of what they
have said has been incorrect. Perry Miller, for instance, suggests that
lawyers advanced the theory that Christianity is part of the common law to
assure skeptical nonlawyers that law was not so technical as to be amoral.
In addition, he believes that the issue was put to rest by the Supreme
Court's 1844 decision in Vidal v. Philadelphia. Mark DeWolfe Howe claims
that many cases were "controlled" by the maxim and that it "permitted the
transformation of Christian principles into rules of law." Merrill Peterson
asserts that the maxim was "the legal cornerstone" of a larger
"conservative theory" of the relationship between church and state. He adds
that Thomas Jefferson was the maxim's only "authoritative" opponent. The
evidence presented in this article will show the error in such statements.'

Even when historians are not factually incorrect, they treat the subject as
ammunition for modern-day Establishment Clause battles. There is less
attention to understanding what the maxim meant in the nineteenth century.
On the one side, James McClellan uses Story's views on the issue primarily
as a tool with which to argue that "[t]hrough an extraordinary accumulation
of broad interpretations and historical misrepresentations," the post–World
War H Supreme Court has "fabricated a constitutional doctrine nationalizing
the Bill of Rights." On the other side, Leonard Levy discusses a few
celebrated cases involving the maxim in order to criticize
nineteenth-century judges for according insufficient weight to freedom of
conscience. Kurt Lash does the same for the purpose of arguing that the
Establishment Clause is today correctly interpreted to limit the power of
the states as well as the federal government.' Neither stance is conducive
to understanding what the maxim meant to people in the nineteenth century
or why it ceased to exist.

That is a shame, because the maxim's rise and fall provides an unusually
clear view of a transformation in the profession's conception of the common
law, a fundamental change that is ordinarily obscured by the rhetoric of
legal writing—the shift from a common law discovered by judges to a common
law made by judges. By taking a close look at the origin, the uses, and the
decline of the notion that Christianity is part of the common law, we gain
some insight into the development of the modern understanding of the common
law.

After a brief discussion of the doctrine's origin, Part I considers the
function of the doctrine—the sorts of cases in which it was used, the role
it played in determining the outcome of cases, and so on. Part II canvasses
the arguments for and against the doctrine and traces changes in those
arguments over time. This is an attempt to account for the maxim's demise
by situating it in the context of larger changes in conventional thought
about law over the course of the nineteenth century. Part III suggests some
more general conclusions about the nature of this and similar debates.

1. In re Granger; 7 Phila. Rep. 350, 355 (1870); Arthur William
Barber, "Christianity and the Common Law," The Green Bag 14 (1902): 267;
Vidal v. Philadelphia, 43 U.S. 127, 198 (1844).
2. Commonwealth ex rel. [sic) v. American Baseball Club of
Philadelphia, 290 Pa. 136, 143 (1927); Commonwealth v. Mochan, 177 Pa.
Super. 454, 458 (for the maxim), 459 (for the phrase quoted) (1955).
3. Perry Miller, The Life of the Mind in America (New York:
Harcourt, Brace & World, 1965), 186-203; Mark DeWolfe Howe, The Garden and
the Wilderness: Religion and Government in American Constitutional History
(Chicago: University of Chicago Press, 1965), 28, 30; Merrill D. Peterson,
The Jefferson Image in the American Mind (New York: Oxford University
Press, 1960), 95. Bradley Chilton argues that the maxim gained currency in
seventeenth-century England because of "the ability of seventeenth-century
elites to control the printing and dissemination of law books." See
"Cliobernetics, Christianity, and the Common Law," Law Library Journal 83
(1991): 355,360. Jayson Spiegel summarizes a few of the important cases
discussing the maxim in "Christianity as Part of the Common Law," North
Carolina Central Law Journal 14 (1984): 494.
4. James McClellan, Joseph Story and the American Constitution: A
Study in Political and Legal Thought (Norman: University of Oklahoma Press,
1971), 152 (for the quoted language), 118-59 (for the issue generally);
Leonard W. Levy, Blasphemy (New York: Knopf, 1993), 400-23; Kurt T. Lash,
"The Second Adoption of the Establishment Clause: The Rise of the
Nonestablishment Principle," Arizona State Law Journal 27 (1995):
1085,1100-11.

[end excerpt1]

[excerpt 2]

I. Origins and Uses of the Maxim

The earliest recorded suggestion that Christianity is part of the common
law appears in the 1676 English prosecution of John Taylor "for uttering of
divers blasphemous expressions, horrible to hear, (viz.) that Jesus Christ
was a bastard, a whoremaster, religion was a cheat; and that he feared
neither God, the devil, or man." In rebutting an implicit doubt as to the
court's jurisdiction—does a secular court have the authority to punish a
blasphemer?—Hale provided a verbal formula that would be remembered much
longer than the case itself. "[S]uch kind of wicked blasphemous words," he
observed, "were not only an offense to God and religion, but a crime
against the laws, State and Government, and therefore punishable in this
Court." This was so, Hale explained, because "Christianity is parcel of the
laws of England."5

The only thing new about Taylor's Case was the phrasing of this maxim.
Blasphemy had already been prosecuted several times as an offense at common
law.' It was not unusual to equate political and religious principle; at
John Lilburne's 1649 treason trial, for instance, the court noted that "the
law of England is the law of God" and then, in case there was any doubt,
added that "the law of God is the law of England." As Holdsworth suggests,
the "maxim would, from the earliest times, have been accepted as almost
self-evident by English lawyers."'

The doctrine itself was nothing new. But there must have been something in
Hale's formulation of it that caught the imagination of readers because his
maxim began popping up in subsequent opinions. When the author of two early
eighteenth-century obscene books—"the one stil'd, The Nun in her Smock; the
other, The Art of Flogging"—argued that obscenity was not a crime at common
law, the King's Bench cited Taylor in support of the proposition that
"religion was part of the common law." In Rex v. Woolston, another
blasphemy prosecution, Chief Justice Raymond acknowledged his debt to Hale
after observing that "Christianity in general is parcel of the common law
of England." Chancellor Hardwicke pointed out two decades later that,
because "the Christian religion . is a part of the law of the land, which
is so laid down by Lord Hale and Lord Raymond," a Jewish testator could not
be permitted to leave money for the teaching of Judaism. Thus, by the time
Blackstone sat down to write his Commentaries, it took no great imagination
to explain why blasphemy was a common law crime. Citing Taylor and
Woolston, but without any further discussion, Blackstone quietly noted that
"christianity is part of the laws of England."'

The ubiquity of Blackstone's Commentaries in late eighteenth-century North
America ensured that the maxim would gain currency among American lawyers
as well. Those who attended James Wilson's lectures at the College of
Philadelphia in the early 1790s learned that "[p]rofaneness and blasphemy
are offenses, punishable by fine and imprisonment," because "Christianity
is a part of the common law." A few years later, Zephaniah Swift likewise
cited Blackstone as support for the proposition that blasphemy is a common
law crime.'

The maxim's transplantation from England became complete in People v.
Ruggles (1811), when the New York Supreme Court, in an opinion by James
Kent, affirmed a conviction of common law blasphemy for the statement that
"Jesus Christ was a bastard, and his mother must be a whore." Kent began
with a brief discussion of Taylor, Woolston, and Blackstone to demonstrate
that blasphemy was a common law crime in England because "christianity was
parcel of the law." The only question remaining for the New York courts,
therefore, was whether the doctrine was part of the law of New York as
well. No reason of policy suggested the contrary:

And why should not the language contained in the indictment be still an
offence with us? There is nothing in our manners or institutions which has
prevented the application or the necessity of this part of the common law.
We stand equally in need, now as formerly, of all that moral discipline,
and of those principles of virtue, which help to bind society together.'°
Nor had the maxim been superseded by any homemade law. Although New York's
constitution guaranteed "the free exercise and enjoyment of religious
profession and worship, without discrimination or preference," the common
law could hardly ignore the empirical truth that Christianity was the
dominant religion in New York. The state was not, Kent explained,
bound, by any expressions in the constitution, as some have strangely
supposed, either not to punish at all, or to punish indiscriminately the
like attacks upon the religion of Mahomet or of the grand Lama; and for
this plain reason, that the case assumes that we are a christian people,
and the morality of the country is deeply ingrafted upon christianity, and
not upon the doctrines or worship of those impostors.

As a result, in New York as in England, "Christianity, in its enlarged
sense, as a religion revealed and taught in the Bible, is not unknown to
our law.""

Ruggles was the first reported American decision to discuss whether or not
Christianity would be part of the developing American common law. Largely
on the strength of Ruggles, Christianity was soon recognized as part of the
common law by courts in Pennsylvania, Delaware, South Carolina, Arkansas,
Tennessee, North Carolina, and Alabama.12 Treatise writers repeated the
max-

im, citing these cases as support." By the end of the century, an American
writer could correctly assert that "the proposition, that Christianity is a
part of the common law, is supported by the very highest judicial authority
both in England and in this country."14 But what exactly did that mean?

5. Taylor's Case, 1 Vent. 293,86 Eng. Rep. 189 (K.B. 1676).
6. There were at least seven such prosecutions in secular courts
before Taylor's. G. D. Nokes, A History of the Crime of Blasphemy (London:
Sweet & Maxwell, 1928), 147. Before these, English blasphemy prosecutions
were in ecclesiastical courts. Ibid., 2-20.
7. A Complete Collection of State-Trials and Proceedings upon
High-Treason and other Crimes and Misdemeanours; from the Reign of King
Richard II to the Reign of King George II, 3d ed. (London: John Walthoe,
1742), vol. 2, 28, 36; W. S. Holdworth, A History of English Law (Boston:
Little, Brown, 1926), vol. 8, 403, n. 5.
8. The King v. Curl, 1 Barn. K.B. 29, 94 Eng. Rep. 20 (K.B. 1727);
Rex v. Woolston, Fitzg. 64, 94 Eng. Rep. 655 (K.B. 1729); De Costa v. De
Paz, 2 Swans. 532, 36 Eng. Rep. 715 (Ch. 1754); William Blackstone,
Commentaries on the Laws of England, vol. 4 (1769; reprint, London:
Dawsons, 1966), 59. For later English history, see Hypatia Bradlaugh
Bonner, Penalties Upon Opinion (London: Watts & Co., 1912); Courtney Kenny,
"The Evolution of the Law of Blasphemy," Cambridge Law Journal 1 (1922):
127.
9. The Works of James Wilson, ed. J. D. Andrews (Chicago: Callaghan
& Co., 1896), vol. 2, 425 (the published version of Wilson's lectures cites
Blackstone and Rex v. Woolston); Zephaniah Swift, A System of the Laws of
the State of Connecticut (Windham: John Byrne, 1795), vol. 2, 321. In the
first American edition of Blackstone, St. George Tucker suggested that
blasphemy, "as a civil offense, seems to have been abolished" in Virginia
by the state's Bill of Rights, but Tucker did not disagree with the broader
notion that Christianity is part of the law. St. George Tucker,
Blackstone's Commentaries (1803; microfiche reprint, Littleton,
10. People v. Ruggles, 8 Johns. 290, 293 (N.Y. 1811). This point
had been a staple of Kent's lectures for some time. See James Kent,
Dissertations: Being the Preliminary Part of a Course of Law Lectures
(1795; reprint, Littleton, Colo.: F. B. Rothman, 1991), 24.
11. N.Y. Const. of 1777, art. 38; Ruggles, 8 Johns. at 295
(emphasis in original), 297. This is not to say, of course, that most New
Yorkers were churchgoers or otherwise participated in institutional
religious life. See Jon Butler, Awash in a Sea of Faith: Christianizing the
American People (Cambridge: Harvard University Press, 1990).
12. Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824);
State v. Chandler, 2 Del. (2 Harr.) 553 (Del. 1837); City Council of
Charleston v. Benjamin, 33 S.C.L. (2 Strob.)
13. Nathan Dane, A General Abridgment and Digest of American Law
(Boston: Cummings, Hilliard & Co., 1823), vol. 6, 667, 675; Joseph Story,
"Christianity a Part of the Common Law," The American Jurist 9 (1833): 346;
Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation
and Application of Statutory and Constitutional Law (New York: J. S.
Voorhies, 1857), 17; Thomas M. Cooley, A Treatise on the Constitutional
Limitations which Rest Upon the Legislative Power of the States of the
American Union (Boston: Little, Brown, 1868), 472; Fortunatus Dwarris, A
General Treatise on Statutes, ed. Platt Potter (Albany: W. Gould & Sons,
1871), 559; Christopher G. Tiedeman, A Treatise on the Limitations of
Police Power in the United States (St. Louis: F. H. Thomas Law Book Co.,
1886), 167.
14. P. Emory Aldrich, "The Christian Religion and the Common Law,"
American Antiquarian Society Proceedings 6 (April 1889): 18, 33-34.
[end excerpt 2]


(3)
http://groups.google.com/group/alt.society.liberalism/msg/c0bad2642598c595?hl=en&&q=buckeye-elo+++maxim++green++common+law
http://tinyurl.com/yw5dby

Beginning where it says Abstract and continuing to the end of the Steven
Keith Green excerpts


THE RHETORIC AND REALITY OF THE "CHRISTIAN NATION" MAXIM IN AMERICAN LAW,
1810-1920 by Steven Keith Green A unpublished dissertation submitted to
the Faculty of the University of North Carolina at Chapel Hill in partial
fulfillment of the requirements for the degree of Doctor of Philosophy in
the Department of History. Chapel Hill, 1997 )

***************************************************************
You are invited to check out the following:

The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm

American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm

The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/

***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote

"You pilot always into an unknown future;
facts are your only clue. Get the facts!"

That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.

It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.

*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
****************************************************************