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The Confederate Lawyer
April 20, 2010

The Supreme Court, the Common Law, and the Natural Law: Part I
by Charles G. Mills

GLEN COVE, NY — There is a Jewish tradition that Noah established the first court of law. Certainly such courts existed from prehistoric times in all classical civilizations. Something in nature leads all men to figure out that there should be judges. The very fact that courts exist is a consequence of Natural Law.

William the Conqueror established the principle of uniformity in the laws of England. The most important part of this principle was taken from the unwritten laws that pre-dated the Conquest. This unwritten law, which was reflected in reports of the rulings of judges, became known as the Common Law and eventually spread to most of the English-speaking world. This approach to law differed from that in the majority of the countries of the Western world, whose legal systems were based on laws handed down in codes by great lawgivers, especially Justinian.

Sir William Blackstone, the greatest scholar of the Common Law, said that “As man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.” He continued:

“This will of the maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of the motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.”

Blackstone said that the laws of nature are only the “eternal, immutable laws of good and evil.” He further stated that “no human laws are of any validity, if contrary” to the laws of nature.

This view of the Common Law is quite close to the classic explanation of Natural Law in the writings of Saint Thomas Aquinas. It is also the view of the law accepted by most Americans from the time of our Independence until late in the nineteenth century.

The Framers of the Constitution could have refrained from establishing federal courts and left legal matters entirely in the hands of the state courts, or they could have established federal courts with general powers. Instead, they chose a middle road, establishing federal courts of limited, enumerated jurisdiction and leaving general jurisdiction to the state courts. Some state courts can do everything they are not prohibited from doing, but all federal courts can do only what they are expressly authorized to do.

The United States Constitution expressly established one Supreme Court. This was not necessary: The State of New York, for example, had no court with the power to establish state-wide law for about the first 50 years of its existence and had conflicting law in different parts of the state. Significantly, by ratifying the Constitution, all the states agreed with the choice of the Framers to establish a Supreme Court.

Early in its history, the Supreme Court grappled with a case involving the interplay of the Common Law and Christianity. Pennsylvania had adopted broad freedom of religion. The question before the Court was whether a non-Christian school established under the will of a resident of Pennsylvania was contrary to public policy and therefore something the court that probated the will could not approve. The Supreme Court ruled that such a school was allowed under the law of Pennsylvania; Christianity was part of the Common Law in the state but only to a limited extent. Modern scholars believe that the case was not intended to have implications outside of Pennsylvania, but such a view is an anachronistic reading of twentieth-century theory into an early nineteenth-century case.

The English Common Law presumed one established Church of England. This was never the view of Americans. The Supreme Court refused to become involved in doctrinal disputes between Southern and Northern Presbyterians.

In matters, however, involving the “eternal, immutable laws of good and evil,” the Supreme Court followed Natural Law jurisprudence for more than a century. This was most clear in the cases involving Mormon polygamy. The Court ruled in six such cases, five in the nineteenth century. The Supreme Court approved the criminalization of polygamy, the requirements for prospective voters to take an oath against polygamy, and the expropriation of the non-religious property of the Mormon Church. The Court based its decisions expressly on Christian values. The last Mormon case was in the mid-twentieth century, when the Supreme Court no longer followed the Natural Law jurisprudence on which the other decisions were based, although the result was similar.

In Part II we shall see how Natural Law jurisprudence was undermined.

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The Confederate Lawyer column is copyright © 2009 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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