America's Founders, Christianity and the Common Law

The English jurist William Blackstone is properly regarded as the preeminent authority behind English common law. After successfully separating from Great Britain, America retained the common law. There was one problem however: it needed revision to suit America's newfound circumstances. The main problem with Blackstone was that he was a Tory who supported Great Britain over America in the conflict; to the extent that those sentiments existed in the common law, they had to be scrubbed.

But who would do it? Well, a number of founding era figures participated in the project; and ultimately American courts would wade their way through the waters on a case-by-case basis. There were two Founders in particular of whom I am aware who did comprehensive restatements, with proper revisions, of the English common law: James Wilson of Pennsylvania, and St. George Tucker of Virginia.

On the matter of Christianity and its status in "the common law," Blackstone did indeed claim that Christianity was part of the common law. Thomas Jefferson denied this was true and thought Blackstone was in error. The point of this post is not to settle who was right, but rather note some complex dynamics relating to how the common law functioned in America, specifically as it pertains to this particular issue.

Also, the point of this post is not to "deconstruct" the common law; it did and to some extent still does exist in America today at a coherent level. Blackstone, Wilson and Tucker were by in large agreed on the matter. Still, there were complex issues on the margins where they disagreed and over time disagreements in American courts over the content of the common law led to the Supreme Court of the United States to declare that the substance of the common law is simply a matter of state law and they are free to disagree with one another here.

The status of Christianity and its relationship to the common law is one of those "issues," as we have seen above, that engenders disagreement. As noted above, Jefferson disagreed with Blackstone's notion that Christianity was part of the common law. James Wilson stated that Christianity was part of the common law -- though what kind of Christianity Wilson was referring to isn't settled. 

The American founding took place in the backdrop of extreme sectarian squabbles among the different sects. Indeed, such was the driver behind America's concepts of religious liberty, disestablishment and some kind of "separation of church and state." Removing Christianity's status from the civil law -- what Jefferson and James Madison desired -- was one solution to the problem. Though America's founders themselves disagreed on where the lines properly draw here. 

Here is where Tucker's understanding might be of interest. Politically, he seemed more aligned with Jefferson and Madison, so one might expect that Tucker would reject the notion that Christianity is part of the common law and otherwise support principles that separate Christianity's status from civil government. Perhaps he did. But I did uncover him seeming to support integrating a type of "Christianity" into American law. 

It was Richard Price's Enlightenment theology. Tucker quoted from Price verbatim in his notes on Blackstone and the common law. Price's "Christianity" was Arian in its Christology. I put "Christianity" in quotes, by the way, simply to illustrate the fact that certain institutional forces in the 18th Century -- and indeed, long before that, and to some extent today -- don't consider Arianism to be part of "Christianity." 

Here is a taste of Tucker quoting Price in his commentaries on Blackstone and the common law:

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.