In Gods We Trust: The Polytheistic Pedigree of the U.S. System of Law and Government (Guest Post)

In Gods We Trust: The Polytheistic Pedigree of the U.S. System of Law and Government (Guest Post) January 6, 2020

This guest post is from commenter Lex Lata. As his name suggests, he is trained in the law. This makes him well suited to deal with an issue that I’ve neglected to some extent, responding to the popular Christian claim that the U.S. is a Christian nation. In the sense that it contains lots of Christians, sure. But in the sense that it was built on a biblical foundation, not so much.

Any number of Christian apologists and nationalists contend—inaccurately—that the Bible is the historical foundation of the U.S. system of law and government. Ex-judge Roy “Not Without the Permission of Her Mother“ Moore recently restated his position that “the Ten Commandments [are] the law upon which our nation is founded.” A few years ago, current Trump courtier Michele Bachmann ended her stint representing/embarrassing my state of Minnesota in Congress with a rambling declaration that “in the United States the Ten Commandments that God gave to Moses is the very foundation of the law that has given the happiness and the rise of the greatest prosperity that any nation has known before.” And pseudo-historian David Barton continues to credit the Bible as the direct source for the key concepts and structures in the federal Constitution; he goes so far as to claim the Bible is “quoted” and “cited” in the Constitution, placing into question his grasp of not only 18th century U.S. political history, but also the meanings of words like “quote” and “cite.” Less extreme formulations of these views include “Judeo-Christian principles” being the basis of our legal system, or the Ten Commandments being the “moral foundation” of our law.

As a matter of history, arguments of this sort tend to be unduly reductive at best, and deceptive at worst. To be sure, Judeo-Christian learning, theology, ethics, and notions of justice have been consequential in several key respects over the course of time, but the taproots of the legal tradition inherited and renovated by the Founding Generation reach back to the raucous timber mead-halls of northern Germanic tribes and the bustling stoae and fora of ancient Greece and Rome.

Genesis of the Anglo-American Legal Heritage

Legal scholars and historians of the early Middle Ages discern the nativity of English law in the kingdoms founded by pagan Angles, Saxons, Jutes, and Frisians (Anglo-Saxons, for short) who invaded or migrated to Great Britain from what is now Denmark and northern Germany and the Netherlands in the fifth to seventh centuries CE.[1] These sea-faring settlers did not find a wholly lawless island, of course. The indigenous Celtic Britons of antiquity relied on an unwritten system of rules memorized and applied by priest-judges known as druids (no half-elves, as far as we know), and the Romans who governed the province of Britannia from roughly 43 to 410 CE brought the civil law of the empire with them. No less a figure than Papinian, a giant of Roman jurisprudence, reportedly adjudicated cases in the forum of York while in the service of Emperor Severus, ca. 200–210. There is no extant evidence, however, that these Celtic and Roman legal cultures directly influenced the land’s increasingly dominant and numerous Germanic occupants, who appear to have imported their own legal customs with them. (As noted below, elements of Roman civil law made their way into English law somewhat later, via different channels.)

Like the Celts and other “barbarians,” the pre-Christian Anglo-Saxons possessed little in the way of a written tradition, and regulated rights and liabilities with their own oral catalog of penalties for breaching specified norms. The oldest known recorded versions of many of those rules appear in the law code transcribed during the reign of King Æthelberht I of Kent (ca. 560–616). This code consisted of a tariff of monetary damages linked to particular harms and often the aggrieved party’s social rank. “If a man lie with the king’s maiden [i.e., maidservant], let him pay a bot [compensation] of fifty shillings. . . . If a man lie with an eorl’s [nobleman’s] birele [cupbearer], let him make bot with twelve shillings. . . . If a man lie with a ceorl’s [freeman’s] birele, let him make bot with six shillings. . . .”

There were likewise penalties for killing, theft, and assorted amputations, disfigurements, and other injuries listed with colorful particularity. Crude and gritty as this system might seem to us, it illuminates some of the priorities (or perhaps pastimes) of a warrior society that, at least in principle if not always in practice, had evolved beyond the purely talionic justice of retributive self-help and violent blood-feuds in favor of a more organized, pro-social system of compensatory justice—Teutonic tort reform, in a manner of speaking.

While these rules (and others) developed in large part among the pagan Anglo-Saxons, we see in this collection the early and unmistakable fingerprints of Christianity, a religion to which Æthelberht was the first Anglo-Saxon royal convert (ca. 600). For one thing, the code begins with protections for the property of the Church. For another, and perhaps more significantly from a historical perspective, these laws were put to parchment by the Gregorian missionaries who brought with them the Roman practices and tools of literacy and codification. (The derivation of modern “clerk” from Old English “cleric” reflects the clergy’s quasi-monopoly on writing skills in early medieval England.) The codes assembled during the reigns of Æthelberht and later Anglo-Saxon kings such as Alfred the Great (ca. 847–899), were the products of Christian hands transcribing rules of largely Teutonic provenance, typically in Old English rendered in the Latin alphabet of Virgil and Livy.

Evolution of the Law in Christian England

In the space of this post, the maturation and formalization of English justice over the next several centuries can be described in only the most general and possibly unsatisfactory terms. Temporal authorities, from the crown to shire reeves and other local magistrates, adopted, adapted, and invoked various substantive laws and procedural rules, frequently aided by churchmen serving as scribes, advisors, and specialists involved in the administration of oaths and trials by ordeal in particular. Not long after the Norman conquest of 1066, separate networks of secular/royal and ecclesiastical courts emerged. The former applied what became known as the common law to adjudicate most property, contract, debt, injury, and violent criminal matters, whereas the latter relied on canon law (itself essentially the lovechild of Roman civil law and Christian precepts) in exercising jurisdiction over complaints of clerical misconduct, justiciable sins such as adultery and heresy, disputes involving Church property, defamation, and matrimonial and probate cases.[2] Theologians debated and refined ideas about the relationship between divine, natural, and manmade law—drawing not only on scripture, but also on ideas traceable to admired classical heathens such as Cicero and Aristotle. And durable principles, methodologies, maxims, and terms of art originating in ancient Roman law surfaced in English commentaries and jurisprudence, as well as the formal legal education offered at Church-affiliated universities.[3]

Without a doubt, Christian institutions, clergy, and ideas had a role shaping the course of English law in certain practical and philosophical respects. But characterizing that law as originally or fundamentally “biblical” would be misleading. The substance of the English legal tradition was “formed in the main from a stock of Teutonic customs, with some additions of matter, and considerable additions or modification of form received directly, or indirectly, from the Roman system; and both the Germanic and Romanic elements have been constituted and reinforced at different times and from different sources.”[4] Christianity was a tributary, rather than the wellspring, of the legal system and doctrines that England passed to its ornery colonies in North America.

In part two of this piece, we’ll discuss the scant evidence of biblical contributions to the drafting of the U.S. Constitution.

King Æthelberht [with] the advice of wise persons,
introduced judicial decrees, after the Roman model;
which, being written in English,
are still kept and observed by them.
—Bede’s
Ecclesiastical History of the English Nation
(ca. 791 CE)

[1] Much of the information summarized in this section can be found in Sir John Baker, An Introduction to English Legal History (5th ed., Oxford University Press, 2019); Daniel R. Coquillette, The Anglo-American Legal Heritage (2nd ed., Carolina Academic Press, 2004); Tom Lambert, Law and Order in Anglo-Saxon England (Oxford University Press, 2017); and Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I (2nd ed., Liberty Fund, 2010).

[2] See Charles Sherman, A Brief History of Roman Canon Law in Medieval England, 68 University of Pennsylvania Law Review 233 (1920).

[3] See Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham Law Review 447 (1961); and Charles Sherman, The Romanization of English Law, 23 Yale Law Journal 318 (1914).

[4] A.H.F. Lefroy, The Anglo-Saxon Period of English Law, 26 Yale Law Journal 291, 291-292 (1917).

 

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  • Tawreos

    This post perfectly exemplifies why talking points like “America was founded as a christian nation” are so popular with the GOP and others. They can say in a second what it will take many minutes to refute. This means their talking point will make the news and the refutation won’t. Please, don’t misunderstand me, I am not knocking this post at all, personally, I find it fascinating, but I just wish there was a viable way to condense it all down to a second or two. Even better would be if we could convince voters not to fall for one second arguments and do the research for themselves. I look forward to part 2.

    • When they say “American was founded as a Christian nation” I suppose we could just ask “how so?” to force them attempt to explain. Or we could say “nuh-uh!”. Some nonbelievers are wont to say that the founding fathers were mostly Deists, but that isn’t actually true. What is true is that it was founded upon Enlightenment values, which heavily influenced even the educated Christians of the day.

      I have been known to tell people that a Christian would have sinned in supporting the revolution. To do so would be to violate Hebrews 13:17 (“obey those who have charge over you”). I’ve even gotten some “hmmm — I hadn’t thought of that” replies.

      • Lex Lata

        During the Revolutionary period, Loyalist preachers made similar arguments invoking straightforward readings of NT passages such as Romans 13. Paul was pretty clear: “Let everyone be subject to the governing authorities, for there is no authority except that which God has established . . . . Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.” Etc. And this was Paul’s message to early Christians in imperial Rome during Nero’s reign, for Crom’s sake.

        • Michael Neville

          That was the Biblical authority that the first two Stuart kings used to justify the divine right of kings. King Charles I felt so strongly about it that he claimed even disagreeing with him was against God’s wishes and therefore sinful. Cromwell and the Roundheads were able to convince the later British monarchs that divine right of kings was a dead issue.

        • Maltnothops

          A few days ago I was racking my brain for hours trying to remember the term “Roundheads”. I never did and , behold, here it is!

        • Ignorant Amos

          Indeed. The concept proper, was developed by King James VI of Scotland, before he became King James I of England.

          But the idea predates those Stuart fella’s.

          Apparently, the idea itself in this part of the world, was about in Britain as early as the 7th century.

          The clerical lawyer and abbot, Adamnán of Iona, Scotland, and bishop of Raphoe, Ireland…a later saint, who incidentally was an Irishman, first mentions the idea afaicr. Adamnán of Iona was an important legal and clerical scholar, that no one has ever heard of..much.

          https://www.newworldencyclopedia.org/entry/Saint_Adomn%C3%A1n

          https://en.wikipedia.org/wiki/Divine_right_of_kings#Christian_Origins

          On a side note, am reminded of the popular BBC programme “Who Do You Think You Are?”, the gold medal winning olympic rowing champion, Matthew Pinsent, discovered his family tree went back to Adam & Eve on his mothers side, via divine right of kings, and ergo to God.

          Tracing his maternal line further back, Matthew becomes aware that the family is rather more eminent than he had suspected. They begin to appear in Burke’s Peerage, and he is able to follow the line back to Lord William Howard, the uncle of Catherine Howard, the unfortunate fifth wife of Henry VIII.

          William’s scheming ended with his imprisonment in the Tower, and Matthew is able to locate a cell in which he might have been kept.

          But there is more to come at the College of Arms. A pedigree traces the family all the way back to Edward I, and thus to William the Conqueror. There is even a roll which traces this royal line back to Adam and Eve – and thence to God! He has discovered a fabulous piece of medieval propaganda – but is pleased with it all the same.

        • Michael Neville

          The clerical lawyer and abbot, Adamnán of Iona, Scotland, and bishop of Raphoe, Ireland…a later saint, who incidentally was an Irishman

          That’s right, blame the Irish.

        • Ignorant Amos

          Well, we’ve a lot to answer for!

      • RichardSRussell

        “Right, we fought the entire Revolutionary War to get rid of an arrogant, despotic, know-it-all, probably crazy king, and so just naturally we wanted to turn right around and adopt the arrogant, despotic, know-it-all, probably crazy King of Kings as a better way. SUUUURRRE we did!”

    • We live in a soundbite culture, unfortunately. But that means that soundbites can be a defense–or at least give the conservative pause that maybe there’s a side of this they don’t have a quick response to.

      Maybe when they say, “America was founded as a Christian nation,” respond with “No, it was built from Greek, Roman, and Anglo-Saxon law, actually.”

      • NSAlito

        I like to point out that there is no such thing as democracy in the Bible.

        • Yeah, but the Constitution was built on the Bible and democracy is in the Constitution! Or something.

        • NSAlito

          Good point! I think….

        • Carol Lynn

          I once had a ‘discussion’ with some guy who said he had a master’s degree in theology from somewhere, who *swore42* that the reason that the Anglo-Saxons had jury trials was because they read in the Bible about the Sanhedrin condemning Jesus by a vote and were so very, very impressed that they took that as their model of governance. It’s hard to argue with that kind of clueless.

        • NSAlito

          The problems we have aren’t ignorance, but deliberate misinformation.

        • Carol Lynn

          When I gave him all sorts of sources and quotes for the actual roots of our system, he told me, “I don’t know nothing about that fancy history stuff, but I know Jesus.” All righty, then, Mr. I-Have-a-Master’s-Degree.

    • Otto

      I think a simple and concise question to that assertion is needed. If this question is asked anyone listening would have to try and answer it … and they can’t.

      “Name one thing that is specific to Christianity (or Judaism) and is enshrined in our Law?”

  • Bob Jase

    Believers can’t be bothered to read their magic book, you ex[ect them to read legal history?

  • I really enjoyed this and am looking forward to part 2.

  • Cozmo the Magician

    “If a man lie with the king’s maiden [, maidservant], let him pay a[compensation] of fifty shillings. .”
    Sounds less like punishment for crime and more like menu prices at a &#8203brothel… IOW EXACTLY like biblical ‘law’. Did this codex state the price difference between &#8203virgin vs. non &#8203virgin?

    • A maiden meant virgin (at least in theory). I’d assume the fine for sleeping with their wife would be much worse.

      • Connie Beane

        “Maiden” in many cases just meant an unmarried woman, i.e., one who was still technically the property of her father (or her employer) and whose ownership had not yet been formally transferred to a husband.

        • It meant that too, but they were presumed virgins (or expected to be at least).

  • Cozmo the Magician

    As to the whole ‘murika was born of the buybull!’ I like to ask people ‘Please tell me WHERE in the bible a representative democracy is ever mentioned.’ OTOH, the wholly babble is FILLED with Kings,Emperors,Princes, Queens etc etc.

    One of our founding docs states clearly that ‘ALL MEN ARE CREATED EQUAL’ which flies in the face of ‘obey your betters’

    And of course one look at the 10 Commandments vs the Constitution shows that they are opposed to each other except on the most basics like ‘Don’t steal and Don’t kill’ which are unique to either.

    • The Federalist Papers made explicit that the Roman Republic was their main inspiration.

      • NSAlito

        The Federalist Papers* are a hoax made up by elite intellectuals in opposition to the American Constitution* which is entirely based on the Bible*!
        ______
        *which I’ve never read

        • Conservatives have generally regarded the Federalist Papers well, from what I’ve read. Or at least those of yesteryear did-the modern crop though may have chucked them by the wayside when they went over the cliff to crazy town.

        • NSAlito

          I’m talkin’ Trumpistas, here.

        • Okay, but many of those claim to be conservatives too.

        • NSAlito

          They’re cultists who’d undercut any actual conservative position if Trump told them to.

        • Judy Thompson

          this country was settled not for open religious freedom, but because the people who came here, the Puritans, were fleeing religious persecution at home. They weren’t looking to make a life for everyone, they only wanted a life for their own religion. Anyone who wasn’t ‘one of them” was promptly and firmly ushered out of town: that included Jews, Catholics, and anyone else not a Puritan. They were just as intolerant here as the people they left behind.

        • Very true. They forbade people of other faiths to settle, exiled, flogged or hung dissenters and only let top church members govern. When they came to power in England, this temporarily happened there (they even had banned Christmas celebrations).

        • Mike Curnutt

          Most of the extreme right-wingers I know consider the Federalist Papers at almost the same level as the Constitution.

        • Yep, that’s been my impression too. It seems like both are second only to the Bible with them (and of course they link these).

        • Connie Beane

          And they read and cite the Federalist Papers the same way they read and cite the Constitution and the Bible: skim and remember only the parts they like and/or believe support their already-formed prejudices.

          I’m college-educated and do a lot of research relating to history and the law, and even I find the Federalist Papers a hard slog. Most of the hard-right can’t even tell you who wrote the Federalist Papers. (Spoiler alert: they were published under the pseudonym of “Publius” and were written by a triumvirate–Alexander Hamilton, James Madison, and John Jay–and there’s no firm agreement as to who wrote which of the 85 articles.)

  • Michael Neville

    The derivation of modern “clerk” from Old English “cleric” reflects the clergy’s quasi-monopoly on writing skills in early medieval England.

    As Lex says, in medieval and renaissance England there was a separate court system for the clergy. Until the early 1600s a legal proof that one was a clergyman was literacy in Latin.

    • HairyEyedWordBombThrower

      That makes this scene from Tombstone all the funnier.

      Both Latin speakers are stone-cold 69killers.

      https://www.youtube.com/watch?v=trgKeCFmi3M

      • Michael Neville

        “That’s Latin darling…evidently Mr Ringo is an educated man…now I really hate him.”

    • Benefit of clergy also came from this, which meant they could not suffer capital punishment.

  • Greg G.

    Another word David Barton doesn’t understand is “verbatim”.

  • RichardSRussell

    Just as a reminder, when referring to THE LIAR David Barton, you should always employ his full, richly earned title, which, to repeat, is THE LIAR David Barton.

  • NSAlito

    The rebels made King John sign the Magna Carta in 1215. I know because I was in 1217 and they made a hell of a racket.