Wednesday, June 22, 2011

Jonathan Mayhew on the Common Law

I've been doing some careful reading of Rev. Jonathan Mayhew -- an enormously influential ("key" if you will) Patriotic Preacher. See for instance, this book of his original writings. JM was a Congregational minister, a "liberal" Christian of his era, but to the orthodox he was no "Christian" at all. He was a Christian-unitarian-universalist or what Dr. Gregg Frazer has termed a "theistic rationalist."

On page 35 of the aforementioned book Mayhew discusses the common law in the context of its religious component. Mayhew does NOT want (obviously speaking) Anglicanism incorporated in the common law, even though Anglicanism was part and parcel of "the law of England."

Claims about Christianity and the common law abound. One claim is that the common law is derived from Christianity and that claim is clearly false. As Mayhew accurately notes (as Jefferson would later -- this was published in 1764) the common law had its origin in heathen nations and was a "complete" system long before the reformation. JM's opponent attempted to argue that the Anglican establishment was smuggled into the American colonies via the common law-law of England or whatever de jure/de facto system of British rule that controlled in the colonies at that time.

It will not, I conclude, be asserted, that all the laws of England, without exception, or of Great Britain, are, as such, binding on the colonies. In order to their being so, it must, I humbly conceive, plainly appear from the language of them, or from their very nature, that they were formally designed for all the King's subjects, as well those in the colonies as those in England. Many of the laws of England are in their own nature local, so that they cannot possibly be obeyed out of England. And I am informed by those that are learned in the laws, and in the customs and usages of the colonies, that it is a clear, indisputable point, that there are many English statutes, in other cases, which are not binding on the colonies. So that jt seems to be only the common law at most, and those statutes that are made in affirmation or explanation of it, that English subjects carry with them when they emigrate, emigrate into colonies, so as to be bound by them. And I conclude, it will not be said that the church of England is established by common law, which had its origin among heathen nations; and was compleat as a system long before the reformation.

Whether common law that is pagan in its origin later incorporated Christianity is a more difficult question.


Angie Van De Merwe said...

I think your last statement is more probable, as all myth, and everything else, in the naturalistic schema is "pagan"..or heathen...Christianity "annointed" or "baptized' pagan ritual, myth, etc. to bring about their "faith" any religion does...philosophy underwrote their commitments and understanding of doctrine.

Angie Van De Merwe said...

But, the religious did nothing different than our Founders did in "baptizing" or "annointing" ancient civilizations, like Rome, and their philosophical foundations in the Greek city states and understanding their downfall.

Tom Van Dyke said...

One claim is that the common law is derived from Christianity and that claim is clearly false.

Jefferson's argument that English common law as a whole being established before Christianity got to Britain is questionable at best. I'm a little astounded to see it asserted as fact on our mainpage.

Further, it's an academic argument, for in real life and in history, Blackstone disagreed and it was Blackstone who was used as the source text in early American law, not Jefferson.

Jefferson lost this battle to the likes of James Wilson* and of course, Joseph Story**, as noted here:


*Wilson: "Christianity is part of the common law."

**Story:"“One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations.”

Jonathan Rowe said...

"Jefferson's argument that English common law as a whole being established before Christianity got to Britain is questionable at best."

Well it's apparently Mayhew's argument as this preceded Jefferson. And I noted, this is a seperate question from whether Christianity later became part of the common law. Jefferson thought it never did. The unitarians story and Marshall disagreed. Something that a unitarian could agree was "Christianity" got incorporated in their minds.

Mark D. said...

I'm going to disagree with Jefferson, Mayhew and Jon on this. From my own study of the common law (and I've published on the common law in my academic work), it grew up as a fusion of Germanic customary law brought to England by the Angles, Saxons and Jutes, and canon law as it had developed in the the Catholic Church in England prior to the Norman Conquest. Virtually all the writing down of the common law was done by priests or monks, and this continued until well after the Conquest. Henri de Bracton, who wrote the first major treatise on English law after the Conquest, was Dean of Exeter Cathedral and a Catholic priest, for example.

There are Germanic elements of the common law that MAY pre-date the conversion of the Anglo-Saxons to Christianity (although even that assertion is heavily disputed), but the common law itself began as a fusion of those elements with deeper and stronger elements from canon law (which itself drew not only on the Bible and Christian teaching, but also on Roman civil law). It isn't a question of a later Christian patina being placed over the common law...

Jonathan Rowe said...


You may be right; and I suppose I'd have to reframe the way of stating the claim. It's clear that whatever the Founders were looking for in continuing to promote the common law, doctrinaire and dogmatic elements of "Christianity" -- certainly not "Roman Catholicism" -- was not on the table.

It could be their Protestant anti-Catholic bigotry put blinders on them. We see that in Mayhew's notion that such "was compleat as a system long before the reformation."

Unknown said...


Interesting post. Lot to think about. But as someone stated, Canon law had at least some influence on common law.

Angie Van De Merwe said...

Many many years ago, I did a paper comparing Canon Law/sacraments with Judiasm, they correlate....Martin Luther's "not under the law", was a suggestion that one was not under religious law, but under grace (liberty). And such a view is similar to Paul's vision of liberty, as well. Humanity was of ultimate value, not "God"....

Atheism affirms such liberty, but accept civil law, as such are not under a religious conscience...but seek to understand what is best for society/the world/humans.