Page:The Green Bag (1889–1914), Volume 14.pdf/306

 Christianity and the Common Law.

269

foreign to our law could not make it in fact church, was a part and an important part of a part of that law, but a system which by the the English law; but that one form of Chris growth of centuries had acquired the right to tianity should condemn another to the stake be regarded as the foundation of ethics, and were no argument for the existence of Chris the determinant of right and wrong in con tianity as a faith in the body of English law, duct, may well have received at the hands of common or statutory. The established error this eminent jurist its first judicial recogni in the evidence upon which he relied has, tion, its first official reception into the body however, discredited the opinion of Lord of English law. Certainly we need see in Chief Justice Hale, and has taken from his this utterance of the learned Chief Justice1 maxim whatever weight it may have had as only the acknowledgment of an accomplished authority for the common law jurisdiction of fact, not the arbitrary enunciation of a novel the courts in matters of religious faith. The principle. It is thus that systems of juris writ was in fact an invention of the church, prudence grow. It is never the growth that which coerced the state for unholy ends.* It may now therefore be confidently as is recorded but the results thereof. However, a reference to other utterances serted that the common law of England knows of the same judge enables us to understand no prosecution for religious belief; that there the meaning which he attached to the words has never been a single instance, from Saxon in question, and shows that he meant them times to our own day, of punishment inflicted in the strictest sense, that nonconformity for erroneous opinions upon rites or modes with the established religion was punishable ' of worship save by force of some positive as a crime by the common law of England; law; that apostasy, heresy and nonconform for he has declared - that a heretic convicted ity and all that class of offences against the by the diocese and refusing to abjure might established church are creatures of express by the common law be delivered over to the legislation and exist only on the statute secular power for punishment, by virtue of books 5; that Christianity as a system of the writ de haretico comburendo, and the ex theology miraculously revealed is not the istence of such a writ in the register is basis nor any portion of the common law.6 pointed out as evidence of the fact. But the As for the jurisprudence of America, any authority of this evidence has been destroyed alliance between religion and the state is as by Lord Commissioner Whitlock, who shows3 foreign to our religious ideas as to our prin that the writ did not occur in the ancient ciples of polity. The golden rule of Chris manuscript registers, but was of later date, tianity cannot be enforced by the sword of brought in by Archbishop Arundel in the civil authority. The weapons of its faith are reign of Henry IV. for the suppression of the spiritual not temporal, and by these must it Lollards. However that may be, the exist 4 Pollock and Maitland's History of English Law, ence of such a writ were poor authority for Vol. II, pp. 549, 550. 5 Harrison v. Evans, 2 Bum's Ec. Law, 218: s. c. 3 the assertion that Christianity is part of the Bro. Pari. Cas., 470; 4 Blackstone's Commentaries, common law. Doubtless it might show that Chap. 4; Commonwealth v. Kneeland, 20 Pick. (Mass.), sectarian Christianity, that of the established 206 (235). 'Coggsz-. Bernard, 2 Lord Raymond, 919; Burr v. ' King v. Taylor, 1 Vent., 293 : 3 Keb., 607. Parish, 9 Mass., 298; Field v. Field, 9 Wend. (N. Y.), 2 1 Hale's Pleas of the Crown, 392. 405. 709; 4 Black- 401; Miller v. Gable, 2 Denio, (N. Y.), 517; Hale v. stone's Commentaries, 97; Hale v. Everett, 53 N. H., 1 Everett, 53 N. H., 1 (205); State v Chandler, 2 Harr. (208). (Del.), 553; Board of Education v. Minor, 23 Ohio St., 'Nayer's Case, 5 How. St. Tr., 825; Commonwealth 210; Uptegraff v. Com., .11 Serg. & R. (Penn.), 407; v. Kneeland, 20 Pick. (Mass.), 206 (235). Andrews v. Bible Society, 3 Sandf., 351 (378).