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.7Whereas St.Germain and Coke wrote in general terms, it was Sir HenryFinch s 1627 treatise, Law or a Discourse Thereof, that popularized the idea thatChristianity formed part of the common law by claiming that all types of law(including the common law) were founded on holy scripture. Finch madethe claim based on an apparent mistranslation of a 1458 decision, Bohun v.Broughton, in which the plaintiff had sued the bishop of London at commonlaw to enforce jus patronatus, the right of a patron to name a clergyman for apost.Judge Prisot had held that, in order to resolve the controversy, he had togive credence to such laws as they of the holy church have in ancient writings;for it is common law on which all kinds of law are founded. Writing more thana century and a half later, Finch mistranslated Prisot s Latin opinion, substitut-ing the words Christian Bible for Prisot s phrase en ancien scripture ( ancientwritings ), thus establishing legal authority for the claim that the common lawincorporated Christian scripture and doctrine.Almost 200 years later, ThomasJefferson and Joseph Story would engage in an esoteric dispute over the sig-nificance of Finch s mistranslation.8The first legal decision to firmly articulate the maxim that Christianityformed part of the common law was a 1676 British conviction for blasphemy,Taylor s Case.Yeoman John Taylor had reputedly uttered such vile and offensivewords about the Christian religion that local officials had first considered himto be insane.After the keepers at Bedlam hospital assured the authorities of hissanity, Taylor was tried and convicted of blasphemy before the King s Bench.Inpassing sentence, Lord Matthew Hale asserted that Taylor s words had not onlyoffended God and the Christian religion but had also subverted the laws andgovernment itself. For to say, Religion is a Cheat, is to dissable all those Obli-gations whereby the Civil Societies are preferred, Hale wrote, then added forgood measure that because Christianity is parcel of the laws of England.toreproach the Christian Religion is to speak Subversion of the Law. Taylor wasfined, pilloried three times, and required to provide sureties for the remainderof his life, which ensured his indefinite imprisonment.9Lord Justice Hale s pronouncement in Taylor s Case commanded suchauthority that some fifty-three years later the same court upheld a similar con-viction based solely on the ground that Christianity formed part of the commonlaw.The defendant in Woolston s Case had published several discourses ques-tioning the miracles of Jesus and, when prosecuted, claimed that Christianity L EGAL C HRISTIANITY C ONCEIVED 153could not be part of the law because the common law was the same as it hadbeen before the Reformation when such offenses were under the jurisdictionof church courts.Woolston s counsel argued that it would be a very dangeroustendency to permit blasphemy prosecutions in the Temporal Courts, since itmay give occasion to the carrying on of prosecutions for a meer difference inopinion, which is tolerated by law. The justices summarily rejected Woolston sdefense, with the court reporter writing that they would not suffer it to bedebated whether to write against Christianity in general was not.punishableat common law. Lord Justice Hale had settled the matter in Taylor s Case: Christianity in general is parcel of the common law of England, Chief JusticeRaymond asserted, and therefore to be protected by it. So as to remove anydoubt as to the close connection between the two, Raymond added that what-ever strikes at the very root of Christianity, tends manifestly to a dissolution ofthe civil government. 10According to one British commentator, the pronouncements in the Taylorand Woolston cases that Christianity was part of the common law established a permanent legal doctrine in England.Courts relied on the doctrine in sev-eral later cases.In 1727, a defendant charged with exhibiting two obscenebooks, The Nun in Her Smock and The Art of Flogging, claimed his actions werenot prohibited under the law.Relying on Taylor s Case, the court convicted himanyway, declaring that religion was part of the common law; and thereforewhatever is an offense against that, is evidently an offense against the com-mon law. Twenty-five years later, chancery refused to enforce a £1200 bequestto pay for the daily reading of the Torah, finding that it was for the propaga-tion of the Jewish religion.in contradiction to the Christian religion, whichis a part of the law of the land, which is so laid down by Lord Hale and LordRaymond. 11 By the time of William Blackstone, the verity of the maxim wasbeyond dispute.In his Commentaries (1765), Blackstone noted almost casuallythat blasphemy, as well as other offenses against God and religion, were pun-ishable at common law by fine and imprisonment because Christianity is partof the laws of England. Blackstone cited the Taylor and Woolston cases withoutany further discussion.As late as 1827, a British court would write that thecommon law is founded in our holy religion, and no law can be good whichis not. 12The American publication of Blackstone s Commentaries in 1772 intro-duced a new generation to the relationship between natural law and the com-mon law, as well as to the maxim of Christianity forming part of the commonlaw.Despite Blackstone s positivist leanings, which led him to qualify the prac-tical applications of natural law, his Commentaries reaffirmed the idea of apreeminent higher law.Blackstone agreed that natural law was dictated by 154 L EGAL DISESTABLISHMENTGod himself and was of course superior in obligation to any other [law]. Natural law predated all positive law and was eternal and immutable such that the creator himself in all his dispensations conforms. At the same time,Blackstone distinguished natural law, which was discoverable through reason,from divine or revealed law, which was found only in the holy scriptures.Bothforms emanated from the will of God and were part of the original law ofnature. But revealed law, while holding greater authority than natural law orpositive law, had less application to daily human affairs.There were a greatnumber of indifferent points, in which both the divine law and the naturalleave a man at his own liberty, Blackstone wrote, and herein it is that humanlaws have their greatest force and efficiency. Still, the ultimate authority for alllaw was the divine law of nature.By the time of the American Revolution, over2,500 copies of Blackstone s Commentaries had been sold to the American bar,making the treatise more popular in America than in England, in turn servingto introduce a new generation of lawyers to higher-law notions.13Higher Law in AmericaAs in Britain, the American notion of Christianity being part of the commonlaw had its basis in both general understandings of higher law and specificapplications of the maxim based on the early British cases
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