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St. George Tucker and the Theology of the Common Law

Thomas Jefferson disagreed with Blackstone’s notion that “Christianity is part of the common law.” Legal jurist St. George Tucker may have provided an Enlightenment alternative to Jefferson’s notion while revising Blackstone for America.

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.

Organic Law/The Brooding Omnipresence in the Sky

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”).

Christianity and the Common Law

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 linked 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.”

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Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer. ...more →

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7 thoughts on “St. George Tucker and the Theology of the Common Law

  1. Organic Law/The Brooding Omnipresence in the Sky

    I think it’s a lot more likely that The Gods of the Copybook Headings are up there and more than willing to come back and explain stuff to us again.

    I’m also reminded of Donald Kingsbury’s quotation.“Tradition is a set of solutions for which we have forgotten the problems. Throw away the solution and you get the problem back. Sometimes the problem has mutated or disappeared. Often it is still there as strong as it ever was.”

    Christianity probably taps into The Gods of the Copybook Headings in some strange and oblique ways that successfully fence off a handful of problems we forgot we had once. Christianity in the US has evolved a *LOT* over the last 250 years. (I imagine that it’d be mutually incomprehensible. One church would see the other as downright pagan, the reverse would see the first as downright atheist (or satanic!).

    I guess we’re lucky that most of the old problems have disappeared rather than mutating or coming back with a vengeance.

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  2. “Blackstone, and other theorists, are fatally mistaken when they think they get “one general will” by a concurrence of vote. Many influences may decide a vote contrary to the feelings and views of the voters; and, more than this, perhaps no two in twenty will understand or appreciate a measure, or foresee its consequences alike, even while they are voting for it. There may be ten thousand hidden, unconscious diversities among the voter which cannot be made till the measure comes to be put in practice ; when, perhaps, nine out of ten of the voters will be more or less disappointed, because the result does not coincide with their particular individual expectation.

    Those inventions are all too short-sighted and too defective to be allowed to govern the great Interests of mankind” -J.W. pg. 24 True Civilization

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  3. I don’t know how Berns could claim that “liberty of conscience was widely accepted at the time of the Founding.” Most of the original states had religious tests enshrined in their constitutions. I think the situation in Virginia was not widely accepted, which is why Jefferson took such pride in securing the Statute for Religious Freedom. It was hard.

    OTOH, I am not familiar with the argument stemming from Blackstone’s comment on Christianity being part of the common law. The portions of Blackstone that I’ve read are lacking religious sentiments. Abraham Lincoln learned the law by thorough reading of Blackstone in the 1830s, and he was a fervent admirer because he had made the law accessible to someone like himself who lacked formal education and he had provided an orderly, logical structure out of judge-made law.

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  4. Hi,

    As to your second point, Blackstone just plainly said that Christianity is part of the common law.

    As to your first point, … it’s complicated. Berns is no dummy. He’s walking a line between the ideals of the American Founding as contained in their Lockean documents done under the auspices of natural right, and the other realities.

    A lot of it depends on how we might understand the notion of “widely accepted.”

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  5. 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.

    This is the danger that natural law enthusiasts haven’t ever really addressed, at least not to my satisfaction. The Constitution is malleable and fallible, but it is also legible. We can know, if nothing else, its words. The “law” of the Christian faith (or indeed any faith) is not just powerful but dangerous when put in the hands of those who would be required to view it through their own personal religious lenses as well as their political lenses, and all too easy for results politically convenient to those who otherwise would be bound to a contrary result under the law to produce some revelation, interpretation, or other pronouncement of this higher “natural” law to save their convenient result.

    Better they be principled, of course, but if we are to have legislators and judges pronouncing upon the law in a self-interested way, then at minimum they should do so openly. Hiding the pronouncements of the lawgivers behind the vestments of theology embeds today’s political and religious fashion into stone, a result that will quickly prove untrue to the law, untrue to the faithful, and untrue to the will of the people.

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  6. Tucker also noted that states retain the right of denization, as they didn’t surrender that right to the federal government under the Constitution, and had been exercising that right under the Articles of Confederation. It would be easy to argue that granting state drivers licenses and special priviliges (like sanctuary) to illegals is an act of denization. He also noted that such rights could not be transfered across state borders. If someone took that argument to court, there’s no telling what the outcome would be.

    Some European legal scholars have also brought up denization to cover the status of rather stateless migrants who are locked out of full citizenship but still granted a lesser status, such as residency, and noting that countries have recreated the status of denizen without realizing what they were doing in a legal context, and thus leaving a patchwork of contradictory policies that have no real grounding in law or tradition.

    This would be an example of a problem that the common law had dealt with long ago, but which is completely forgotten today.

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