by: David Arthur Walters. (Speical to City Debate) Thomas Jefferson learned and said much about various subjects during the course of his illustrious career. He naturally contradicted himself from time to time and was undoubtedly unaware of many of his self-contradictions. He changed his mind from time to time, just as a whole people may change or amend their constitutions. His opinion was unsettled on certain subjects, and he sometimes found it politically expedient to reverse himself, if he did not do so to effect what he thought was a greater or higher cause. Fortunately for our independence as individuals, we are given a number of occasions to employ Jefferson’s corpus to contradict each other, to cite him, for instance, in support of free trade, or to cite his statement that trade must be restrained for the time being.
We claim our founding fathers as we do our gods, i.e. with all their goods and evils, and we often disagree over which is which. Now we hear Jefferson cited by the postmodern Tea Party, a discombobulated political phenomenon rife with contradictions. And Jefferson has been adopted by the patriot movement although Andrew Jackson would have been a much better match. The point is that Jefferson’s diverse opinions may be used to refute the so-called patriotic conservative ideology as well as to support it.
Of course, Jefferson was not altogether inconsistent in his passions. For example, he was vehemently opposed to an independent judiciary: he tried to use the impeachment process, which he confessed was a political “farce”, to smother the Supreme Court in its crib.
Many strict constructionists and conservatives, who would have us abide by the letter of the legal codes when it suits their purposes, tend to sympathize with Jefferson’s antipathy to a federal judiciary that claims it has independent powers, purportedly inherent in the Constitution, to act in unspecified ways, at least to the extent that its decisions discomfit them, particularly at the highest court of appeal but god’s. It appears to them that the judiciary is a high priesthood chanting a political theology opposed to law-abiding people, who would rather be ruled by the will of a mysterious divine god almighty revealed to conservatives by way of intuition that he might not be called as a witness against them.
Justices who make law daily scoff at the very notion that judges should not make law. After all, legal codes must often be interpreted by judges in order to be applied to the facts of cases that differ one from the other, and sometimes there is no law appertaining although the iniquitous injury is at hand. As for the common or English law, as distinguished from the written codes of the so-called Roman law, it is irrational and hardly common to everyone, as can be seen in our disagreements with the particular judgments handed down; then the only common thing about the common law is that we abide by the decisions of judges who manufacture it on the spot, sometimes saying they are only following the law. One might say that the irrational English law is better suited for a free people than the rationalizations handed down as imperial pragma. One day some law professor, when asked to teach common law, may say, as a certain rabbi did when asked to teach the Kabala, “I cannot teach you nonsense but I can teach the history of nonsense.”
The English kings who conceived of themselves as the unimpeachable source of law found themselves and their high councils restrained by a recalcitrant elite that came to dominate parliament and common law courts in their own interest. The freedom implicit in the irrationality of the English common law once decided by chiefs in tribal councils was employed to establish a bench and bar independent not only of the legislature and sovereign but of the people and subjects, wherefore the kings found themselves championing the people against courts and a corrupt power elite, employing, for example, the once popular Star Chamber – the King’s Council sitting in the Starry Chamber at Westminster – to bring powerful persons to heel. But the Star Chamber and its kings became hated for good reason, and today commoners find themselves as cattle ruled in all walks of life by lawyers dominant over all supposedly independent branches of government – now people who still have a conscience cry in vain for star chambers or runaway grand juries independent of the judiciary to rein in the legal locusts blanketing the country and exhausting its resources in the name of freedom.
Now the Christian right would have us believe that the laws of the United States are fundamentally Christian, but as Judeo-Christians they confuse Mosaic Law with Love. Marcion established a counter-Church that ignored the cruel and wrathful god of old, embracing the loving God, who was a stranger or alien to that violent world, Jesus being his salvational phantasm. Joachim of Flora believed that the religious motive evolved or progressed from Law to Faith to Love: at first, people obeyed their god from fear of punishment, then with faith in obtaining the just reward of righteousness, and then out of love for the ultimate good. Furthermore, we are mindful that the more recent protesting antinomians believed that, if people loved each other in common, there would be no need for the law because love would render it obsolete; but they were overruled by freedom-in-order conservatives who held that Jesus had come to fulfill the Mosaic Law and not to repudiate it. Wherefore free-love radicals lost hope of obtaining freedom, especially free love unfettered by the written codes published by Rome in the imperial fashion of the supplanted pagans. Wherefore Christianity, as we know it today, is definitely not the religion of love wanted by free lovers or even by its founders who wanted to break with the law and be judged by their deeds instead of whether or not they had foreskins.
The love of so-called fundamentalist Christianity, which is not really fundamentalist, is hate-others based self-love; anyone who dares to love and think freely is deemed an atheist and doomed to burn forever in hell; but those enemies are not hate, it may be reasoned; they are actually loved because we want to save them, or at least forgive them before we execute them.
During a televised appearance on September 5, 2003, Dr. James Dobson, an influential speaker for the religious right and founder of Focus on the Family, congratulated the Bush Administration for its war on Iraq and voiced his displeasure with the judiciary for ruling against his god and in favor of homosexuals – he thanked God that the president was sponsoring a federal law prohibiting same-sex marriage. The main concern of the political and religious right is the proper deployment of the sexual organs, which are idolized as instruments of power. One president is rumored to have suffered a recurring nightmare about homosexual coupling with repeated thuds, awakening with the vision of a man’s head bursting through the wall of his bedroom.
Dr. Dobson was convinced that homosexual activists were abusing the law to destroy the institution of marriage in the heterosexual, monogamous family and that homosexuality itself is a great danger to the world, especially to the next generation. Therefore the judiciary, hell-bent on taking god out of public institutions, must be reigned in from its godless course and be re-submitted to the Christian god of love, without whom no-one can be saved. And not even the Jews can be saved without Jesus, he told Larry King; then he made the standard claim of the religious right, that the foundation of American common law is Judeo-Christian. To support his position, Dr. Dobson cited our foremost founding father, Thomas Jefferson.
Thomas Jefferson broached the foundational subject in a letter to Major John Cartwright dated June 5, 1824, at Monticello. Cartwright had abandoned a promising career in the British Navy to support the American colonists; he became an English reformer, urging the political combination of radical workers and middle-class moderates; he founded the first Hampden Club, and formed the Society for Constitutional Information. Jefferson thanked Cartwright for sending him a copy of his “valuable volume”, The English Constitution.
“I was glad to find in your book,” wrote Jefferson, “a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet pagans, at the time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.”
Jefferson had done some lawyering himself. He cited a few cases in his letter to Cartwright, to demonstrate how the Christian judges “stole this law upon us.” A certain Chief Justice Prisot had used the phrase ancient scripture in one of his opinions, stating that the written laws of the church, meaning those church laws that were in ancient writing, should be recognized as laws. Thereafter the phrase was taken out of context and misconstrued to mean that Holy Scripture was part of the law of the land.
For instance, England’s greatest jurist since Edward Coke, Lord Chief Justice Matthew Hale, declared that “Christianity is parcel of the laws of England.” (I Ventr. 293, 3 K.B.. 607). This is the same Hale who personally ordered the execution of two women for witchcraft. In early 1676, in the case of John Taylor, it was Hale on the King’s Bench who rendered the most important decision during that dark part of English history which virtually made Christianity the law of the land, when blasphemy or heresy was called “nonconformity” and deemed seditious under the common law.
Taylor, a yeoman, had uttered what was deemed the most “horrendous blasphemy” to date: he called Christ a “whore master.” He explained that he meant Christ was the master of the whore of Babylon – the Catholic Church. He said religion was a “cheat” and Christianity a “cloak”, and that no man fears God but a hypocrite. He denied calling Christ a bastard, but he admitted to saying “God damn and confound all your gods.” Now that is understandably insulting to believers although infidels might believe there is some truth to it. Taylor was believed to be off his rocker for saying this: “All the earth is mine, and I am a king’s son. My father sent me hither and made me a fisherman to take vipers, and I neither fear God, devil, nor man, and I am a younger brother to Christ, an angel of God.” He was locked up in the madhouse (Bedlam) but the keeper reported that Taylor was not mad, and was just a blasphemer, so he was tried and found guilty. The fine of 1,000 marks amounted to a life sentence since he had not the wherewithal or sponsors to pay it. One court reporter reported that Justice Hale said:
“And… such kind of wicked blasphemous words were not only an offense to God and religion, but a crime against the laws, State and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach, the Christian religion is to speak in subversion of the law.”
Jefferson tracked the alleged insertion of Christianity into the common law to Blackstone, who repeated, in 1763, “Christianity is part of the laws of England,” and to Lord Mansfield who said in the Evans case in 1767 that “the essential principles of revealed religion are part of the common law. Jefferson complains that the judges do all this gratuitous citing on their own authority. Furthermore, he notes that even some of the Anglo-Saxon priests had interpolated some of Exodus and Acts into Alfred’s laws.
“Here I might defy the best-read lawyer to produce another scrip of authority for this judicial forgery; and I might go on further to show, how some of the Anglo-Saxon priests interpolated into the text of Alfred’s laws, the 20th, 21st, 22nd, and 23rd chapters of Exodus, and the 15th of the Acts of the Apostles, from 23rd to the 29th verses. But this would leave my pen and your patience too far. What a conspiracy this, between Church and State!
“‘Sing Tantarara, rogues all, rogues all, Sing Tantarara, rogues all!’” sang Jefferson to Cartwright, quoting The Cavalier, an old anti-roundhead song of the Glorious Revolution, a song favoring the King in opposition to Oliver Cromwell and Parliament.
However, after centuries of research into early English history, it appears that the controversial “incontrovertible” assumption that English common law is rooted in primitive Anglo-Saxon law is in fact controvertible. Jefferson may have been correct in his view that the common law was not and is not and should never be Christian, but mistaken in his view that its origin is somehow Anglo-Saxon. No doubt human freedom, a rebellious “free will” possessed by every individual, was not unique to the Merry Isles, although it was less restrained by codified or “Roman” law in England as the papal authority was resented.
Of course, this question, on the whole, might seem moot and even absurd to members of the human race, citizens of the cosmos, and residents of the city of God who has transcended such trivial pursuits. Nevertheless, since the disputes continue to have some influence over our mundane lives on Earth, we may return to the discussion of the Anglo-Saxon controversy elsewhere, and argue that Western law is far more Roman than we think, leaving us with a fascist tendency, thanks to the Roman Catholic Church – even the relatively isolated English common law had points of contact with the Roman law during nearly all periods, resulting in similarities of legal thought between England and the Continent.