as well as a nullity in fact.' Thus was Catholicism the law of France and Spain in the days of the Inquisition; thus Episcopa lian Christianity is by statute the law of England, and was when Baptists and Unita rians were burned at the stake2; thus Puri tanism was the law of Massachusetts, when Quakers died for their religious belief. Thus Mohammedanism was the law of the East, when faith in the Moslem's god and obe dience to his prophet were inculcated by the sword. Thus was her religion the law of Rome when it was written as the first principle of her legal system, "Jurisprudentia est divinan1m atque humanarum return notitia."* Thus was their relig ion the law of the Jews when the great lawgiver commanded " Thou shalt have no other God before me." Thus in the begin nings of society is religion ever the law of the state, when the sanction of all laws is divine rather than human, and there is no law but the precepts of religion. When church and state are one, then it may prop erly be said that the religion of the commun ity is the law of the land. The separation between church and state, between religion, and politics, is a development. All that we know of the history of society and of the growth of institutions requires us to believe that at some stage in the evolution of the civilization which is ours, religion and law were one. The question to be determined is whether, in the records of the common law as they remain to us, we can trace the con tinuance of that union in an alliance between Saxon politics and the religion of Christ, or 1 Duer, J., in Andrews v. Bible Society. 4 Sandf. (N. Y.), 156; Board of Education v. Minor, 23 Ohio, St., 210. 2 The statement of Justice Selden that " worship by Unitarians and the preaching of Unitarian doctrines . . . were a crime both by the common law and under the statute" is incorrect. The cases he cites as authority show only that adherence to this faith was a statutory crime. Robertson v. Bullions, 11 N. Y., 243. 3 Institutes of Justinian, Liber I, Tit. 1.
whether that process of separation had so far advanced at the beginning of English legal history that we are able to affirm that no rec ord of such an alliance is left to us. The argument in which Jefferson seeks to refute the maxim that Christianity is part of our common law proceeds upon the assump tions that the common law of the Saxons be came an arbitrary system, cut, dried and finished at the date of Magna Charta; that no subsequent additions, modifications or qualifications could result but by legislative enactment; and that if, before Magna Charta, Christianity had ever become portion of the common law, some written record of its in corporation therein would attest the fact. It may well be believed that when the great statesman framed this argument he had felt the influence of a retainer from democracy. The truth is that the common law was before Magna Charta, and has continued to our own day to be a vital and growing system, and principles have been again and again im ported into or engrafted upon it for which legislation has given no warrant. Such in effect is each new recognition by the courts of the requirements of public policy, each declaration that acts and conduct once in keeping with the ruder manners of earlier times have ceased to accord with the moral sentiments of society.4 To the whole course of Jefferson's reasoning, therefore, this may be interposed as a sufficient answer : the pre cepts and doctrines of Christianity may not have been part of the common law before Magna Charta, may never have been made such by any affirmative legislative action, yet may have so become by gradually acquiring in the consciousness of the English race a recognition as the basis of all law because the basis of all morality. The judicial enun ciation by Chief Justice Hale of a principle
- Of the right of the husband to chastise the wife
"reasonably," for purposes of discipline, see Perry v. Perry, 2 Paige (N. Y.), 503; and 70 N. C, 60.
