St. George Tucker and the Theology of the Common Law

Legendary scholar Walter Berns had the following to say about the notion that "Christianity" was part of the "common law." As he wrote in Making Patriots:

Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].” 

But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.

Berns then went on to note that to the extent that blasphemy prosecutions survived for a short period of time in the early American republic, it was redefined as something akin to a secular breach of the peace, with blasphemy now stripped of its religious character.

Berns' recitation of the above quoted part of the 1776 New Jersey constitution also illustrates the proper place the common law of England had in the newly founded America, in terms of its priority as a source of law: And that is, common law is below state statutory law. Later court decisions -- notably Erie v. Tompkins -- would hold that there is no such thing as general federal common law, consigning such common law to the state level entirely.

Still, we debate whether some kind of "organic" law exists in the brooding omnipresence in the sky up there, that could potentially inform all sources of law (from higher to lower). That such organic law, if needed, could serve potentially as the ultimate trump existing above the highest source of constitutional positive law.

That's where such a theory becomes controversial. If the uncodified, "brooding omnipresence" is consigned to a place where a state statute can trump it, such seems more contained, hence less controversial. If, on the other hand, it's justiciable by the Supreme Court (and American courts in general) and exists at a place higher than the US Constitution, such a powerful thing in the hands of judges becomes understandably more controversial.

What prevails among the experts in academia, government and the practice of law is legal positivism. Such teaches that "higher law," if it exists at all, is nothing judges may consult in their legal decision making outside of the existing positive law.

I think of someone like the late Justice Scalia, who was a devout Roman Catholic, believing in the natural law as his church taught it. But, he argued, such had no business informing judicial decision making. Rather, it was something legislators could consult in the realm of conscience (the executive could consult such as well when deciding for instance, whether to veto a law).

Just as the other non-judicial branches could, as they exercised their political power, consult whatever kind of specific revelation they wanted: Catholic, Protestant,  Mormon, Jewish, Hindu, Islamic, etc. Or whatever kind of ethical or political theory they fancied: Utilitarianism, Kantianism, Rawlsianism, etc.

After meticulously studying, for many years, the concept of this organic law of the brooding omnipresence as it was understood by America's founders, I have concluded the Christian religion, special revelation, etc. is not the source of such, even though such did often claim to have theistic underpinnings (i.e., the "Laws of Nature and of Nature's God").

Yet, we still have this notion coming from Blackstone himself that "Christianity is part of the common law." As noted above by Professor Berns, Jefferson disputed such a notion. But what might we make of such a notion, if applicable to the newly minted America of the late 18th and early 19th Century?

American founder and preeminent legal authority St. George Tucker (of Virginia) provided the answer as to what he understood the theology of the common law to be. I just completed a series where I reproduced Tucker's lengthy discussion on religion and politics, contained in Philip B. Kurland's "The Founders' Constitution" under the title of "St. George Tucker, Blackstone's Commentaries." In 1:App. 296--97, 2:App. 3--11 of said document, Tucker discusses, at length, his opinions relating to religion and government.

In this 1803 document, Tucker invokes the then existing state laws of Virginia and the US Constitution. He also includes a tremendous amount of words from (the Arian) Richard Price's "Observations on the Importance of the American Revolution and the Means of Making It a Benefit to the World" where Price explicates his Enlightenment ideal of religion and politics. This ideal is not wholly secular, but rather seems informed by an Enlightenment faith more "fit" for that era.

Here is a quotation from such (Tucker quoting Price) that encapsulates such zeitgeist:

It is indeed only a rational and liberal religion; a religion founded on just notions of the Deity, as a Being who regards equally every sincere worshipper, and by whom all are alike favoured as far as they act up to the light they enjoy: a religion which consists in the imitation of the moral perfections of an Almighty but Benevolent Governor of Nature, who directs for the best, all events, in confidence in the care of his providence, in resignation to his will, and in the faithful discharge of every duty of piety and morality from a regard to his authority, and the apprehension of a future righteous retribution. ... This is the religion that every enlightened friend to mankind will be zealous to support. But it is a religion that the powers of the world know little of, and which will always be best promoted by being left free and open.

One might ask, why did Tucker reproduce Price's thoughts on religion and politics in a document meant to capture Blackstone's authoritative teachings on the common law? The answer relates to purpose of Tucker's Blackstone project. Tucker meant more than just to reiterate Blackstone's teachings, but to transform and correct them for America.

 The following article by law professor Kurt Lash uncovers such purpose:

[T]he same generation that adopted the Constitution also challenged the uncritical acceptance of English common law. ...  

For example, St. George Tucker’s 1803 edition of Blackstone’s Commentaries was a hugely successful and influential effort to “translate” the rules of English common law so that they made better sense for a people whose legal system presumed the ultimate sovereignty of the people themselves.31 The United States was not just a new and independent legal entity, the country and its citizens had operationalized a new legal theory. The status of the government and the role of its courts were different on American soil, rendering problematic any wholesale adoption of Blackstonian common law. As historian Davison Douglas writes:  

"While serving as a law professor at The College of William and Mary during the 1790s, Tucker had his students read Blackstone, but he supplemented that reading with lectures in which he analyzed the ways that law in the United States—and specifically Virginia—had departed from English legal principles as a result of the American Revolution, the Virginia Constitution, and the United States Constitution. These lectures were “the first systematic effort by any figure in American law to describe the contours of the new system created by the amended Constitution.” Drawing extensively on his William and Mary lectures, Tucker’s Blackstone included eight hundred pages of essays on a variety of legal and political topics and more than one thousand footnotes in which Tucker examined Blackstone in light of American and Virginian law. Tucker worried about the effect Blackstone’s Tory sensibilities might have on his students. He thus emphasized to his students that the American Revolution and its aftermath had produced a revolution “not only in the principles of our government,” but in a variety of legal principles, such as the law of inheritance, that reflected the new nation’s republican values and that rendered Blackstone an unreliable guide to certain aspects of American law."

St. George Tucker’s “translation” of Blackstone found an eager audience. Again, according to Douglas, 

"Tucker’s Blackstone, the first major legal treatise on American law, was one of the most influential legal works of the early nineteenth century and the most comprehensive treatise on American constitutional law until around 1820. Not surprisingly, it was also one of the legal texts most frequently cited by the United States Supreme Court and relied upon by lawyers appearing before the Court during the first few decades of the nineteenth century."33

So I'm guessing that all of the material on religion and government complete with Richard Price's ideal kind of theology was Tucker's answer to Blackstone's claim that "Christianity is part of the common law."

Frazer's New Book Review at Christianity Today

Check it out here. A taste:

This book is a righteous tribute to Loyalist pastors, who took up their cause with integrity, erudition, and a sincere spirit of peace. Far from being dupes of the British elite or proxies of a tyrant, the Loyalist clergy saw themselves as true lovers of America who were equally committed to the flourishing of their communities. Frazer aims “to show that the Loyalists do not fit nicely into a simplistic category, were not ideologically shallow, and were not motivated by fear. They were ... well-meaning and seeking what they thought was best for their home: America.” 

One reason the Loyalist clergy have been misunderstood is that much of their writing was destroyed during the Revolution. Another reason, to put the matter simply, is that the Patriots were victorious, and the victorious party typically has the upper hand in shaping how the contest will be remembered. 

[...]

In grounding their support of the mother country in Scripture, Loyalist clergy often handled God’s Word more conscientiously than their Patriot counterparts. Frazer points out that pro-revolution pastors frequently read their own biases into passages like Romans 13, consistent with Jonathan Mayhew’s precedent-setting 1750 sermon on the 101st anniversary of the execution of Charles I, “A Discourse concerning Unlimited Submission and Non-Resistance to Higher Powers.” Furthermore, Frazer asserts that while the Loyalists appealed mainly to Scripture, history, and the law, Patriot clergy relied on “theory, fear, and John Locke.”  

The Bible formed the cohesive foundation for the Loyalists’ argument, and their commitment to a plain reading of Scripture stands in stark contrast to the often allegorical and typological interpretive methods favored by the Patriots. ...

Q&A with Christopher Grasso, author of Skepticism and American Faith: ...

Check it out at The Junto here. A taste:

Christopher Grasso earned his PhD from Yale in 1992, taught at St. Olaf College, and came to William and Mary in 1999.  From 2000 to 2013 he served as the Editor of the William and Mary Quarterly. ... 

JUNTO: Skepticism and American Faith is organized into four thematic parts, arranged chronologically: “Revolutions, 1775-1815,” “Enlightenments, 1790-1840,” “Reforms, 1820-1850,” and “Sacred Causes, 1830-1865.” What does attention to religious skepticism and faith tell us about revolution, enlightenment(s), reform, and the Civil War? 

GRASSO: Debates over the meaning of the American and French Revolutions prominently featured arguments about the role that religious faith ought to have in public life and patriotic citizenship. Was America a Christian nation? Did religious liberty include the freedom to be irreligious? With the separation of church and state, how could a Christian majority legitimately exert its power over non-believers in a democracy? Believing and doubting were rarely just matters of private predilection. From the founding, these issues linked the personal to the political. 

Americans in this period did not talk about “The Enlightenment” (a later historiographical construct), but they did argue about what it meant for a person or a society to become “enlightened,” and the role of skeptical reasoning and religious faith in that process. The dialogue of skepticism and faith, therefore, echoed through the effort to produce and disseminate knowledge in the early republic. American Protestants in particular anointed themselves as the vanguard of Western civilization, claiming all the “enlightened” values and practices previously championed by the eighteenth-century philosophes: free inquiry, open debate, the broad dissemination of print, and the triumph over superstition. But they always supplemented and corrected worldly learning with divine revelation. More radical champions of enlightenment argued that the truth claims of the churches and the Bible needed to be investigated, debated, and rationally evaluated just like any others, and rejected if found wanting.

On Gregg Frazer's New Book

Check the story out here. As it reads:

New from the University Press of Kansas: God against the Revolution: The Loyalist Clergy's Case against the American Revolution by Gregg L. Frazer. 

About the book, from the publisher: 

Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.

Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.

For a revolution built on demands for liberty, equality, and fairness of representation, God against the Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.

Thanks to Marshal Zeringue for posting this.

St. George Tucker, Religion & the American Founding, Postscript

A subtitle to this post is "the power of missing quotation marks." You can view the last of my series on St. George Tucker here. 

When it came to sourcing material, America's founders often operated according to a different set of rules. In the material I reproduced from Tucker, at least he explicitly attributes to Richard Price and otherwise puts in quotations some of the things that he quotes exactly. America's founders didn't always do this.

The problem is that Tucker (or perhaps whoever reproduced his work) misses some quotation marks. And it makes a difference. Tucker apparently endorses all of the words he reproduces from Price. But he makes it really hard to tell where his words end and Price's words begin.

Here is a link to the original. What follows is the offending original part of the quotation where quotation marks are not used in Tucker's original writing:

"In liberty of conscience says the elegant Dr. Price, I include much more than toleration." 

This is then followed by a great deal of words. It gives the impression that Tucker is paraphrasing Richard Price's sentiments. The problem is, starting with "[i]n liberty of conscience" Tucker begins quoting Price exactly. It should have read, "In liberty of conscience," says the elegant Dr. Price, "I include much more than toleration." 

Tucker then goes on to quote Richard Price verbatim so much such that arguably Price's exact words make up the majority of words in this document from The Founders' Constitution. 

I'm going to quote below the entire passage of Price's, quoted by Tucker as it should have looked. I've put Tucker's words in bold:

"In liberty of conscience," says the elegant Dr. Price, "I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or pre-eminence over their bretheren. Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all christians, but all men of all religions, ought to be considered by a state as equally entitled to it's protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encouragement of it's own mode of faith and worship a part of the constitution of the state; but at the same time thinks fit to suffer the exercise of other modes of faith and worship. Thanks be to God, the new American states are at present strangers to such establishments. In this respect, as well as many others, they have shewn in framing their constitutions, a degree of wisdom and liberality which is above all praise. 

"Civil establishments of formularies of faith and worship, are inconsistent with the rights of private judgement. They engender strife . . . they turn religion into a trade . . . they shore up error . . . they produce hypocrisy and prevarication . . . they lay an undue bias on the human mind in its inquiries, and obstruct the progress of truth . . . genuine religion is a concern that lies entirely between God and our own souls. It is incapable of receiving any aid from human laws. It is contaminated as soon as worldly motives and sanctions mix their influence with it. Statesmen should countenance it only by exhibiting, in their own example, a conscientious regard to it in those forms which are most agreeable to their own judgments, and by encouraging their fellow citizens in doing the same. They cannot, as public men, give it any other assistance. All, besides, that has been called a public leading in religion, has done it an essential injury, and produced some of the worst consequences. 

"The church establishment in England is one of the mildest sort. But even there what a snare has it been to integrity? And what a check to free inquiry? What dispositions favourable to despotism has it fostered? What a turn to pride and narrowness and domination has it given the clerical character? What struggles has it produced in its members to accommodate their opinions to the subscriptions and tests which it imposes? What a perversion of learning has it occasioned to defend obsolete creeds and absurdities? What a burthen is it on the consciences of some of its best clergy, who, in consequence of being bound down to a system they do not approve, and having no support except that which they derive from conforming to it, find themselves under the hard necessity of either prevaricating or starving? No one doubts but that the English clergy in general could with more truth declare that they do not, than that they do give their unfeigned assent to all and every thing contained in the thirty-nine articles, and the book of common prayer: and, yet, with a solemn declaration to this purpose, are they obliged to enter upon an office which above all offices requires those who exercise it to be examples of simplicity and sincerity . . . Who can help execrating the cause of such an evil? 

"But what I wish most to urge is the tendency of religious establishments to impede the improvement of the world. They are boundaries prescribed by human folly to human investigation; and enclosures, which intercept the light, and confine the exertions of reason. Let any one imagine to himself what effects similar establishments would have in philosophy, navigation, metaphisics, medicine, or mathematics. Something like this, took place in logic and philosophy, while the ipse dixit of Aristotle, and the nonsense of the schools, maintained, an authority like that of the creeds of churchmen; and the effect was a longer continuance of the world in the ignorance and barbarity of the dark ages. But civil establishments of religion are more pernicious. So apt are mankind to misrepresent the character of the Deity, and to connect his favour with particular modes of faith, that it must be expected that a religion so settled will be what it has hitherto been . . . a gloomy and cruel superstition, bearing the name of religion. 

"It has been long a subject of dispute, which is worse in it's effects on society, such a religion or speculative atheism. For my own part, I could almost give the preference to the latter . . . Atheism is so repugnant to every principle of common sense, that it is not possible it should ever gain much ground, or become very prevalent. On the contrary, there is a particular proneness in the human mind to superstition, and nothing is more likely to become prevalent . . . Atheism leaves us to the full influence of most of our natural feelings and social principles; and these are so strong in their operation, that, in general, they are a sufficient guard to the order of society. But superstition counteracts these principles, by holding forth men to one another as objects of divine hatred; and by putting them on harrassing, silenceing, imprissoning and burning one another, in order to do God service . . . Atheism is a sanctuary for vice, by taking away the motives to virtue arising from the will of God, and the fear of future judgment. But superstition is more a sanctuary for vice, by teaching men ways of pleasing God, without moral virtue; and by leading them even to compound for wickedness, by ritual services, by bodily penances and mortifications; by adoring shrines, going pilgrimages, saying many prayers, receiving absolution from the priests, exterminating heretics, &c. . . . Atheism destroys the sacredness and obligation of an oath. But is there not also a religion (so called) which does this, by teaching, that there is power which can dispense with the obligation of oaths; that pious frauds are right, and that faith is not to be kept with heretics. 

"It is indeed only a rational and liberal religion; a religion founded on just notions of the Deity, as a Being who regards equally every sincere worshipper, and by whom all are alike favoured as far as they act up to the light they enjoy: a religion which consists in the imitation of the moral perfections of an Almighty but Benevolent Governor of Nature, who directs for the best, all events, in confidence in the care of his providence, in resignation to his will, and in the faithful discharge of every duty of piety and morality from a regard to his authority, and the apprehension of a future righteous retribution. It is only this religion (the inspiring principle of every thing fair and worthy, and joyful, and which, in truth is nothing but the love of God to man, and virtue warming the heart and directing the conduct). It is only this kind of religion that can bless the world, or be an advantage to society. This is the religion that every enlightened friend to mankind will be zealous to support. But it is a religion that the powers of the world know little of, and which will always be best promoted by being left free and open."

Again, what Tucker didn't do was put in the quotation marks that I put in. Right after writing the words "free and open" Tucker then states:

"The following passage from the same author, deserves too much attention to be pretermitted:" ...

And it's correctly followed with quotation marks indicating the words are Price's. 

Below is how it looks, with Tucker's words in bold. But this time the quotation marks are NOT added by me but exist in the original. 

The following passage from the same author, deserves too much attention to be pretermitted: "Let no such monster be known there, [in the United States] as human authority in matters of religion. Let every honest and peaceable man, whatever is his faith, be protected there; and find an effectual defence against the attacks of bigotry and intolerance. In the United States may religion flourish! They cannot be very great and happy if it does not. But let it be a better religion than most of those which have been hitherto professed in the world. Let it be a religion which enforces moral obligations; not a religion which relaxes and evades them . . . A tolerant and catholic religion; not a rage for proselytism . . . A religion of peace and charity; not a religion that persecutes curses and damns. In a word, let it be the genuine gospel of peace, lifting above the world, warming the heart with the love of God and his creatures, and sustaining the fortitude of good men, by the assured hope of a future deliverance from death, and an infinite reward in the everlasting kingdom of our Lord and Saviour."

If what I have written has confused any reader, you can compare the originals. Here is Price's; here is Tucker's.