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 Christianity and the Common Law.

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CHRISTIANITY AND THE COMMON LAW. Bv Arthur William Barber. The massive cathedral of the Catholic; the Epis copalian church with its lofty spire pointing heaven ward; the plain temple of the Quaker; the log church of the hardy pioneer of the wilderness; the mementos and memorials round and about us; the consecrated graveyards, their tombstones and epitaphs, their silent vaults, their mouldering con tents all attest it. The dead prove it as well as the living. The generations that are gone before speak to it and pronounce it from the tomb. We feel it. All, all proclaim that Christianity, general, toler ant Christianity, Christianity independent of sects and parties, that Christianity to which the sword and the fagot are unknown, general, tolerant Chris tianity, is the law of the land. — Daniel Webster. IN the foregoing passage, a great American statesman and jurist has recorded his opinion of the place of Christianity in the common law of our race. Text writers have reiterated and courts have affirmed this maxim that Christianity is part and parcel of the common law. Owing its origin to so eminent a jurist as Lord Chief Justice Hale,1 it has received the sanction of Blackstone,3 of Wilson,3 and, in a measure, of Story 4 and of Kent.5 On the other hand, the proposi tion has excited the ardent wrath and un sparing denunciation of that high priest of democracy, Thomas Jefferson, who pro nounced this " adoption in mass of the whole code of another nation and its incorporation into the legislative system by usurpation of the judges alone, without a particle of legis lative will having ever been called on, or exercised toward its introduction or confir mation . . . the most remarkable instance of judicial legislation that has ever occurred in 1 King v. Taylor, 1 Ventr., 293: 3 Keb., 607. 3 Blackstone's Commentaries, Vol. IV, p. 59. 3 Wilson's Lectures on Law, Vol. Ill, p. 112. 1 People v. Ruggles, 8 John. (N. Y.), 289.
 * Vidal f. Girard's Executors, 2 How., 127 (198).

English jurisprudence or perhaps in any other." 6 Others perhaps have been as ready to accept the doctrine and echo the maxim as Jefferson was eager to reject and over throw it, without finding it necessary to understand or explain its meaning, or to examine the grounds upon which it rests. The importance of the proposition, how ever, will well repay a searching inquiry into its history, its justification, and its scope. And, perhaps, after all, it will then be found that, like many another time-honored maxim, it needs to be explained and limited, rather than defended or disproved, and that when it is thus elucidated and confined it will cease to be a subject of dispute. Much of the argument heretofore expended upon it has doubtless been misdirected, and many of the controversies to which it has given rise have been due to misunderstanding, rather than to essential and irreconcilable differ ences of opinion. If Christianity as a religion, as a system of doctrines based on faith and sanctioned by a divine approval, is part of the common law, it must be one of the functions of our courts, — and surely none can be more important, — to determine the standard of Christian faith, to pass upon the correctness and con formity of religious belief, and to punish by appropriate penalties, as offences against the State, non-conformity in opinion or disobe dience in conduct to the precepts and doc trines of Christianity as judicially interpreted and declared. Unless this power is inherent in our courts, Christianity is a law without a sanction, and becomes an absurdity in logic 6 Reports of Cases etc. (Virginia), by Thomas Jeffer son, Charlottesville. Published by F. Carr & Co., 1829. Appendix.