Jefferson on the common law

Common Law

According to the Constitution's 7th Amendment: "In suits at common law. . . the right of trial by jury shall be preserved; and no fact, tried by a jury, shall be otherwise re-examined in any court of the United States than according to the rules of the common law." Here, many Christians believe that common law came from Christian foundations and therefore the Constitution derives from it. They use various quotes from Supreme Court Justices proclaiming that Christianity came as part of the laws of England, and therefore from its common law heritage.But one of our principle Founding Fathers, Thomas Jefferson, elaborated about the history of common law in his letter to Thomas Cooper on February 10, 1814: "For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta, which terminates the period of the common law. . . This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it." ". . . if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it. But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law."

In the same letter, Jefferson examined how the error spread about Christianity and common law. Jefferson realized that a misinterpretation had occurred with a Latin term by Prisot, "ancien scripture", in reference to common law history. The term meant "ancient scripture" but people had incorrectly interpreted it to mean "Holy Scripture," thus spreading the myth that common law came from the Bible. Jefferson writes:"And Blackstone repeats, in the words of Sir Matthew Hale, that 'Christianity is part of the laws of England,' citing Ventris and Strange ubi surpa. 4. Blackst. 59. Lord Mansfield qualifies it a little by saying that 'The essential principles of revealed religion are part of the common law." In the case of the Chamberlain of London v. Evans, 1767. But he cites no authority, and leaves us at our peril to find out what, in the opinion of the judge, and according to the measure of his foot or his faith, are those essential principles of revealed religion obligatory on us as a part of the common law."

Thus we find this string of authorities, when examined to the beginning, all hanging on the same hook, a perverted expression of Priscot's, or on one another, or nobody." The Encyclopedia Britannica, also describes the Saxon origin and adds: "The nature of the new common law was at first much influenced by the principles of Roman law, but later it developed more and more along independent lines." Also prominent among the characteristics that derived out of common law include the institution of the jury, and the right to speedy trial.

Robert Boston, "Why the Religious Right is Wrong About Separation of Church & State, "Prometheus
Books, 1993, pp. 78-79
Morton Borden, "Jews, Turks and Infidels," Chapel Hill, NC: University of North Carolina Press,
1984)
Charles I. Bevans, "Treaties and Other International Agreements of the United States of America
1776-1949," Vol. II, [ICCN 70600742 // x763]
Merrill D. Peterson, "Thomas Jefferson Writings," The Library of America, 1984 Hunter Miller, ed., "Treaties and other International Acts of the United States of America," Vol. 2, Documents 1-40: 1776-1818, United States Government Printing Office, Washington: 1931 Paul F. Boller, Jr., "George Washington & Religion," Southern Methodist University Press: Dallas, 1963, pp. 87-88
George Seldes, "The Great Quotations," Pocket Books, New York, 1967, p. 145
James Woodress, "A Yankee's Odyssey, the Life of Joel Barlow," J.P. Lippincott Co., 1958
Encyclopedia sources:
Common law: Encyclopedia Britannica, Vol. 6, "William Benton, Publisher, 1969
Declaration of Independence: MicroSoft Encarta 1996 Encyclopedia, MicroSoft Corp., Funk &
Wagnalls Corporation.