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
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
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
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.
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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