Christ in Common Law
Give therefore to Thy servant an understanding heart, to judge Thy people, and discern between good and evil" (III Kings, iii. 9).
Needless to say, no system of human law can be perfect, or even nearly so. But it is no exaggeration to say that Anglo-American jurisprudence—the common law of England before the nineteenth century and the common law of America since the eighteenth century—is permeated with the spirit of Christianity to a greater degree than any other system of law except Canon Law. You find dark spots here and there; but where the common law is at its best, you feel that Christ Himself would have smiled upon its judgments. It is so because in many cases the judges have not hesitated to draw their inspiration and light from the words of Christ and His Apostles, particularly St. Paul. In American jurisprudence especially, you find traces of the Christian influence wherever you may turn. Let a few random samples suffice here.
In 1948, there arose a famous case before the Supreme Court of California (Perez v. Lippold. 1948. 198 P. 2d 17). The Court held unconstitutional a time-honored statute prohibiting miscegenation. In the course of his opinion, Justice Traynor pointed out that marriage is "something more than a civil contract subject to regulation by the State; it is a fundamental right of a free man." In a concurring opinion, Justice Carter quoted from St. Paul that "God . . . hath made of one blood all nations of men…." In the concurring opinion of Justice Edmonds, it is emphasized that marriage "is grounded in the fundamental principles of Christianity."
In 1914, the Supreme Court of Nebraska had to pass upon the question whether a landowner could build a fence on his own land for no other purpose than to annoy his neighbor (Bush v. Mockett. 1914, 95 Neb. 552, 145 N.W. 1001). In the course of his opinion, Justice Sedgwick said:
"The common law strenuously adhered to the doctrine that the owner of real estate could use it as he pleased, without regard to the convenience or even the interests of his neighbors. Some exceptions were made as to 'ancient lights' and perhaps other such considerations. This rule of the common law was not quite in harmony with the theory of the civil law as expressed in the maxim, 'Sic utere tuo ut alienum non laedas.' [So to use your own as not to injure another.] The earlier decisions in this country are inclined to the English view, but in recent years there have been some very notable departures from the strict rule of those courts."
In a similar case (Barger v. Barringer, 151 C.C. 433, 66 S.E. 439), Justice Brown of the Supreme Court of North Carolina had, however, referred to the same maxim as belonging to the common law, and given a very remarkable exposition of it:
"The ancient maxim of the common law, 'Sic utere tuo ut alienum non laedas,' is not founded in any human statute, but in that sentiment expressed by Him Who taught good will toward men, and said, 'Love thy neighbor as thyself.' Freely translated, it enjoins that every person in the use of his own property should avoid injury to his neighbor as much as possible. No one ought to have the legal right to make a malicious use of his property for no benefit to himself, but merely to injure his fellow man. To hold otherwise makes the law an engine of oppression with which to destroy the peace and comfort of a neighbor, as well as to damage his property for no useful purpose, but solely to gratify a wicked and debasing passion."
It makes no difference whether the maxim belongs to the common law or the civil law. The common law is as capable of assimilating good things from other systems, as it is adaptable to the changing conditions of society. It must not be identified with the specific rules of any particular period. As Judge Johnsen has pointed out, in the initial adoption of the common law rules "there was equally intended to be an adoption of those principles of extension and growth which always had been regarded as being inherent in the common law system and which in fact constituted the genius of that system." Hence, in some cases, American judges have wisely departed from certain common-law rules, and yet this very fact shows that they are in the great tradition of the common law.
My impression is that the greatest judges of the common law have been the most ready to draw upon other systems of law, and the most indifferent ones have been the most provincial. The common law is so deeply steeped in the spirit of Christianity that it cannot but possess something of its catholicity. In this respect, as in so many others, the spirit of the common law is akin to that of St. Thomas Aquinas. It is so original that it can afford to borrow, and even to conceal its originality under the cover of quotations. It seems to have understood well the counsel of Christ to keep its sword in the scabbard.
In cases involving fiduciary relations, the influence of Christianity is particularly marked. I need only to introduce one sample here:
"The principle upon which public officers are denied the right to make contracts in their official capacity with themselves or to be or become interested in contracts thus made is evolved from the self-evident truth, as trite and impregnable as the law of gravitation, that no person can, at one and the same time, faithfully serve two masters representing diverse or inconsistent interests with respect to the service to be performed. The principle has always been one of the essential attributes of every rational system of positive law, even reaching to private contractual transactions, whereby there are created between individuals trust or fiduciary relations. The voice of divinity, speaking from within the sublimest incarnation known to all history, proclaimed and emphasized the maxim nearly two thousand years ago on occasions of infinite sacredness" (Judge Hart in Stockton Plumbing & Supply Co. v. Wheeler, 68 Cal. App. 592, 229 P. 1020, at 1024).
One of the greatest decisions in contemporary England was the "Snail's Case" (Donoghue v. Stevenson. 1932. L.R., A.C. 562). The plaintiff, a poor woman, and a friend visited a cafe in Paisley, where her friend ordered for her a bottle of the ginger-beer. As she was drinking, a decomposed snail floated out with the ginger-beer. In consequence of her having drunk part of the contaminated contents of the bottle, she contracted a serious illness. She sued the manufacturer for damages. The lower courts dismissed her action on the ground that there was no privity between the manufacturer and the ultimate consumer. In the House of Lords, her appeal was upheld. What interests us here is the very practical application made by Lord Atkin of Christ's teachings. "The rule," he said, "that you are to love your neighbor, becomes in law, you must not injure your neighbor; and the lawyer's question, Who is my neighbor? received a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question."
This is one of the best statements on the relation between natural law and human law. Natural law is the common fountain of ethics and jurisprudence. The functions of these latter are different. Each has its forte, and each its limits. The differences and interrelations between law and morals present a fascinating subject of study, but we shall not enter upon it here. All that I wish to say now is that if the law does not require everyone to act as the Good Samaritan, it is not because it is not sufficiently Christian to appreciate the beauty of moral goodness, but rather because it is aware of its own limits, and it has to take account of the frailties of human nature and the actual state of civilization. Jurisprudence would not be prudent if it tried to go beyond the limits of practicability. On the other hand, it would not be just if it did not perform its function as fully as it could within those limits. The end of the law is love, and no measure is set to the end, only to the means. In many matters, the law has to choose the lesser evil.
Oftentimes the legislator or the judge finds himself in the delicate position of that householder in the parable who had to refrain from action for fear that "perhaps while you are gathering the tares you will root up the wheat with them" (Matt.xiii. 29). Some weeds, however, are so poisonous that if you do not uproot them immediately the wheat itself will be infected. In such a case, a good judge would not hesitate to pluck them out carefully, so as not to injure the wheat.
Take, for instance, the "Spring-gun Case," Bird v. Holbrook (Court of Common Pleas, 1828. 4 Bingham 628), where the defendant placed in his garden a spring-gun in order to catch anyone who should come to steal the flowers. The plaintiff, who entered the garden not for stealing, but to help a friend to recapture a pea-fowl which had flown into the garden, accidentally touched one of the wires attached to the spring-gun, which was thereby discharged, causing a severe wound in his knee.
Holding the action maintainable, Chief Justice Best said, "It has been argued that the law does not compel every line of conduct which humanity or religion may require; but there is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England. I am, therefore, clearly of opinion that he who sets spring-guns, without giving notice, is guilty of an inhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer. But this case stands on grounds distinct from any that have preceded it. In general, spring-guns have been set for the purpose of deterring; the defendant placed his for the express purpose of doing injury; for, when called on to give notice, he said. If I give notice, I shall not catch him.' He intended, therefore, that the gun should be discharged, and that contents should be lodged in the body of the victim, for he could not be caught in any other way."
You will note that in such cases Christianity is introduced not as a supernatural religion, but as a vehicle of the precepts of natural law and justice.
Likewise, in the interesting "Queue Case," Ho Ah Kow v. Nunan (Circuit Court, D. Calif., 1879, 5 Sawy. 552, 12 Fed. Cas. 253), where the sheriff, in obedience to an ordinance declared unconstitutional by the Court, cut off the queue of a Chinese, and was ordered to pay damages to the amount of ten thousand dollars. Justice Field, who was sitting as Circuit Judge, had this to say in the course of his splendid opinion: "The ordinance is known in the community as the 'Queue Ordinance,' being so designated from its purpose to reach the queues of the Chinese, and it is not enforced against any other persons. The reason advanced for its adoption, and now urged for its continuance, is, that only the dread of the loss of his queue will induce a Chinaman to pay his fine. That is to say, in order to enforce the payment of a line imposed upon him, it is necessary that torture should be superadded to imprisonment. Then, it is said, the Chinaman will not accept the alternative, which the law allows, of working out his fine by his imprisonment. Probably the bastinado, or the knout, or the thumbscrew, or the rack, would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity, that an ordinance of this character was possible."
It is not possible to cite even a small fraction of the cases where the influence of Christianity reveals itself with sudden, blinding radiance. But the few instances I have given are representative.
Christ does not enter into the courtroom as the Lawgiver whose words are legally binding on the judges. No, His kingdom does not belong to this world. The common-law judges have quoted His words just as the judges of ancient China would quote the words of Confucius. But just as it is impossible to understand the old Chinese jurisprudence without a knowledge of Confucianism, so it is impossible to grasp the spirit of the common law without taking account of the permeating influence of Christianity.
In some cases, the Christian influence is so subtle that you cannot put your finger on any specific precept, which the Court is applying, and yet you feel a Christian atmosphere diffused throughout the opinion. Let one specimen suffice. In McDaniel v. Trent Mills (1929) 197 N.C. 342, 148 S.E. 440, the question was whether a wife could recover from a third party, who had through negligence injured her husband, the money she had on her own initiative expended out of her personal estate as a result of the injury. The Court held that in spite of the modern doctrine that husband and wife are no longer one person in the eye of the law, a wife is not to be considered in such a case as a complete stranger volunteering to aid the injured party, as she was acting "through the natural and ordinary considerations of family life." One paragraph of Chief Justice Stacy's opinion is so characteristically Christian in tone and American in accent that the reader will not blame me for quoting it here:
"While the common-law principle of unity of husband and wife and the modern doctrine of complete duality of personalities may clash somewhat in yielding to this result, still, we think the conclusion is supported by the logic of life, if not by the logic of syllogism; and it should be remembered that law is bigger than logic, life is bigger than law, and the function of judicial decision is to state, as near as possible, in terms of law, the meaning of life in action. This middle course, as it may be called, is perhaps a hybrid between the old and new doctrines just mentioned, or a mixture of the two, but, if so, it comes from holding fast to that which is good in the old and pressing forward to that which is helpful in the new, a practice heretofore commended by an authority on domestic relations, a great lawyer, and one of the apostles."
Can the reader guess which of the apostles the Chief Justice was referring to? Could it be that interesting man (Acts xxv.) who, though in chains, pleaded his own cause before King Agrippa with such gusto that the prisoner's bar was turned into a pulpit?
The late John Chin Hsung Wu, J.D., was a poet, lawyer, convert and spiritual writer. He has published numerous books and articles on law in Chinese, English, French and German. His principle works are: The Science of Love: A Study in the Teachings of Therese of Lisieux, Beyond East and West, Fountain of Justice: A Study in the Natural Law and The Interior Carmel: The Threefold Way of Love.
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