Legal Foundations: The Framework of Law
by Gerald R. Thompson
Having examined the sources and characteristics of the law of nature and the divine law, we must now determine who has the right to assert and enforce such laws in society. This task is essentially an inquiry into the nature of jurisdiction. The word “jurisdiction” is derived from “juris,” meaning law, and “diction,” which is a pronouncement or declaration. Thus, in its most general sense, jurisdiction is the power to make, declare, or apply the law. The biblical record indicates that God has allocated jurisdiction between Himself and mankind and has distributed human jurisdiction among several governing authorities. In this chapter, we will examine the most fundamental jurisdictional distinction of all, being the distinction between God and mankind.
DISTRIBUTION OF AUTHORITY
The question of who has jurisdiction over any particular matter is essentially a question of authority. A study of jurisdiction, defined above as the right to make, declare or apply the law, must therefore begin by asking the question, “Where does this right come from?” The right of jurisdiction exists, in essence, whenever it has been authorized. Therefore, our inquiry begins with an examination of how authority is acquired, or distributed. Who has the authority to assert and enforce any given legal rule?
The Delegation Principle.
The Delegation Principle of authority is that all human authority is delegated, not inherent.
All authority ultimately belongs to God. As Creator of the universe, God has absolute and unlimited authority over the entire creation. The pictorial analogy used in the Bible is that of a potter, who has the absolute right of a creator over his clay vessel to make, reform, or destroy the vessel. In the same way, God has the right of a potter over mankind, who are His creations of “clay.” God’s absolute authority extends not only over Israel, but every other nation and individual as well.
“Can I not, O house of Israel, deal with you as this potter does?” declares the Lord. “Behold, like the clay in the potter’s hand, so are you in My hand, O house of Israel. At one moment I might speak concerning a nation or concerning a kingdom to uproot, to pull down, or to destroy it; if that nation against which I have spoken turns from its evil, I will relent concerning the calamity I planned to bring on it. Or at another moment I might speak concerning a nation or concerning a kingdom to build up or to plant it; if it does evil in My sight by not obeying My voice, then I will think better of the good with which I had promised to bless it.” [Jer. 18:6-10.]
The earth is the Lord’s, and all it contains, The world, and those who dwell in it. [Ps. 24:1.]
God’s authority even includes the right to destroy the creation which he made.
Then God said to Noah, “The end of all flesh has come before Me; for the earth is filled with violence because of them; and behold, I am about to destroy them with the earth. . . . And behold, I, even I am bringing the flood of water upon the earth, to destroy all flesh in which is the breath of life, from under heaven; everything that is on the earth shall perish.” [Gen. 6:13,17.]
Some authority has been delegated to men. Since God is the only uncreated being in the universe, His is the only authority which is inherent. The authority of all created beings must be derived from God. God alone has the authority to decide what power may rightfully be exercised by all human governments. Accordingly, all authority is established, or delegated, by God.
He is the head over all rule and authority . . .. [Col. 2:10.]
And Jesus came up and spoke to them, saying, “All authority has been given to Me in heaven and on earth. Go therefore . . ..” [Mat. 28:18-19.]
For there is no authority except from God, and those which exist are established by God. [Rom. 13:1.]
God reserves for Himself all authority which has not been delegated. Thus, for example, God reserves the right to judge all the nations throughout history, even to the point of again destroying the entire creation as a means of enforcing His word and His law.
. . . by the word of God the heavens existed long ago and the earth was formed out of water and by water, through which the world at that time was destroyed, being flooded with water. But the present heavens and earth by His word are being reserved for fire, kept for the day of judgment and destruction of ungodly men. [2 Pet. 3:5-7.]
And from His mouth comes a sharp sword, so that with it He may smite the nations; and He will rule them with a rod of iron; and He treads the wine press of the fierce wrath of God, the Almighty. [Rev. 19:15.]
God . . . is the author of [true] law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. [Cicero, III De Re Publica, XXII.]
The Limitation Principle.
The Limitation Principle of authority is that all human authority is limited, not absolute.
Human authority extends only to that which God gives him. Since no person is the creator of himself or another, no one may lawfully do anything except as God specifically authorizes him to act.
A person can do only what he or she is expressly authorized to do. There is a presumption against the existence of inferred or implied authority. For instance, no one could punish Cain for murdering Abel because God had not authorized anyone to exercise jurisdiction over the law of murder. (See, Gen. 4:8-15.)
Human authority is limited by the terms of the delegation. Since authority cannot be implied, the nature and express terms of any grant of authority are controlling. Thus, human authority is limited by the terms of God’s delegation. A person’s right to make, declare or enforce law is consequently a function of the terms of the delegation of authority. In this sense, authority and jurisdiction mesh.
For example, the Dominion Mandate (Gen. 1:28) gave mankind authority, or jurisdiction, over the earth, the fish, the birds, and every living thing on the earth. However, people are never referred to as “things” in the Bible, but as “beings.” Thus, the Dominion Mandate confers no express authority for people to rule over each other, because the Mandate confers no jurisdiction over beings. Consequently, dominion authority is limited (by the terms of the grant) to animals, plants and the ground – the jurisdiction to rule over people must be derived from some other express grant of authority.
And God blessed them; and God said to them, “. . . rule over . . . every living thing that moves on the earth.” . . . Then the Lord God formed man of dust from the ground, and breathed into his nostrils the breath of life; and man became a living being. [Gen 1:28; 2:7.]
No one defines his own jurisdiction. Following the Delegation Principle, every person must derive his or her authority from someone else, which ultimately always traces back to God. If a person cannot justify any claimed jurisdiction in this way, the presumption is that the claimed jurisdiction does not exist. Moreover, since human nature is corrupted, the prerogative of defining one’s own jurisdiction (especially when it comes to ruling over other people) will tend invariably to excess.
The legally defined offense of contempt can also be understood in this light. Contempt is the unauthorized assumption of jurisdiction to declare one’s own authority, or to judge one’s own case. In effect, a contemptuous litigant declares that he has authority to judge his own case, and that his authority is superior to the jurisdiction of the judge. By the Mosaic law, a person guilty of judicial contempt was to be executed. Although contempt isn’t necessarily a capital offense today, the unauthorized assertion of jurisdiction is a serious offense.
“So you shall come to the . . . judge who is in office in those days, and you shall inquire of them, and they will declare to you the verdict in the case. And you shall do according to the terms of the verdict which they declare to you . . . you shall not turn aside from the word which they declare to you, to the right or the left. And the man who acts presumptuously by not listening to . . . the judge, that man shall die.” [Deut. 17:9-12.]
The Diffusion Principle.
The Diffusion Principle of authority is that human authority is diffuse, not concentrated.
God delegates authority via His covenants with people. The means God has chosen to use to delegate authority to mankind is the covenant. Specifically, the divine covenants contain all of the express terms of authority delegated by God to mankind. Thus, it is to the terms of the divine covenants that we must look for the terms and limitations of human authority.
God hasn’t given any person total authority. God has not given all human authority to any one individual or group of people, nor has He covenanted with men only once. Rather, He has covenanted with different people throughout history and has delegated differing authority in each covenant. Later covenants do not “swallow-up” or supersede earlier covenants, so that distinctions among the various covenants persist today. (Note: The Church covenant modified prior covenants as to redemption law, but did not supersede them with respect to non-redemptive aspects. [See, supra §82, infra §134-145.]
For example, the Adamic covenant delegates the authority to take dominion and to bear and raise children. The Noahic covenant grants authority to eat meat and to inflict capital punishment for certain offenses. The Abrahamic covenant grants authority over the land of Israel. Israel’s covenant delegates authority to administer the laws of a theocratic nation, and the Davidic covenant confers authority to rule as king of Israel. The church covenant grants authority to become a member of the body of Christ and to take the gospel to the world.
The diffusion of powers is the rule. God has distributed authority among mankind severally as He wills, so that human authority is diffuse and disparate. In other words, God has spread His delegations of authority around so that everyone has some God-given authority, but no one has it all, nor even a preponderance of the available authority.
These various authorities, or jurisdictions, were not all given at the same time, nor were they given to all the same people. Every covenant applies solely to its parties and, in most cases, to the descendants of the parties. The divine covenants do not all apply to the same people. Consequently, the authority delegated by each of the covenants continues to be diffused among mankind even today.
MORALITY AND RELIGION
Having established that God has all inherent authority, He has delegated some of it to mankind, and has reserved the rest for Himself, the next inquiry is to ascertain the nature of the jurisdiction God has reserved to Himself.
The contrast between the jurisdiction God has reserved for Himself and the jurisdiction He has delegated to mankind is often referred to as Morality vs. Law. In other words, the duties men owe to God (which God reserves jurisdiction to enforce directly) are moral obligations, whereas the duties men owe to other people (which God has delegated to mankind to enforce) are legal obligations.
But he who knows to distinguish between the body and the soul, between the present fleeting life and that which is future and eternal, will have no difficulty in understanding that the spiritual kingdom of Christ and civil government are things very widely separated. [Calvin, IV Institutes, ch. XX.]
Jesus emphatically affirmed that not all authority has been delegated to mankind, and that God has reserved jurisdiction over people’s lives.
And He said to them, “Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.” Lu. 20:25.
Jurisdiction over the heart.
The hallmark of moral jurisdiction, that is, the authority over humanity which God has reserved for Himself, is the heart and mind, including freedom of thought (mind), freedom of choice (will), and freedom of religion (heart). That is, no person has jurisdiction (or the right to declare what is right or wrong, i.e., what is lawful or unlawful) with respect to the heart or mind of another. (Nonetheless, a limited jurisdiction exists for authority to teach others.) This is indicated in the biblical record both by generally denying human jurisdiction over the heart and mind of others and by expressly recognizing God’s reserved rights over the heart and mind.
Authority over the heart. Only God has the ability to accurately examine the heart or mind of any person. Further, He has reserved the jurisdiction to make this examination.
But the Lord said to Samuel, “Do not look at his appearance or at the height of his stature, because I have rejected him; for God sees not as man sees, for man looks at the outward appearance, but the Lord looks at the heart.” [1 Sam. 16:7.]
“I, the Lord, search the heart, I test the mind, Even to give to each man according to his ways, According to the results of his deeds.” [Jer. 17:10.]
“For the eyes of the Lord move to and fro throughout the earth that He may strongly support those whose heart is completely His.” [2 Chr. 16:9.]
No secrets from God. God’s reserved jurisdiction over the heart and mind is total and complete. That is, there is nothing anyone can keep secret from God, even their own thoughts. Further, God reserves the right to change our hearts and minds.
For I am conscious of nothing against myself, yet I am not by this acquitted; but the one who examines me is the Lord. Therefore do not go on passing judgment before the time, but wait until the Lord comes who will both bring to light the things hidden in the darkness and disclose the motives of men’s hearts; and then each man’s praise will come to him from God. [1 Cor. 4:4-5.]
“This is the covenant that I will make with them after those days, says the Lord: I will put My laws upon their heart, and upon their mind I will write them . . ..” [Heb. 10:16.]
The king’s heart is like channels of water in the hand of the Lord; He turns it wherever He wishes. [Prov. 21:1.]
“Thus I will harden Pharoah’s heart . . ..” “And as for Me, behold, I will harden the hearts of the Egyptians . . ..” [Ex. 14:4,17.]
No human jurisdiction over the hearts of others. People have neither the ability to examine the heart or mind of others, nor the right to judge the the heart or mind of others.
“Do not judge lest you be judged. For in the way you judge, you will be judged; and by your standard of measure, it will be measured to you.” [Mat. 7:1-2.]
Now accept the one who is weak in faith, but not for the purpose of passing judgment on his opinions. . . . Who are you to judge the servant of another? To his own master he stands or falls; and stand he will, for the Lord is able to make him stand. . . . But you, why do you judge your brother? Or you again, why do you regard your brother with contempt? For we shall all stand before the judgment seat of God. [Rom. 14:1,4,10.]
Citizenship in God’s kingdom. A person’s citizenship in God’s kingdom (a matter of the heart) depends upon matters outside the jurisdiction that God had granted to mankind. Thus, God expects His people to love Him with their hearts and minds, and to refrain from impurities of the heart and mind, regardless of whether such offenses can be judged by human courts.
“You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife or his male servant or his female servant or his ox or his donkey or anything that belongs to your neighbor.” [Ex. 20:17.]
But do not let immorality or any impurity or greed even be named among you, as is proper among saints; and there must be no filthiness and silly talk, or coarse jesting, which are not fitting, but rather giving of thanks. For this you know with certainty, that no immoral or impure person or covetous man, who is an idolater, has an inheritance in the kingdom of Christ and God. [Eph. 5:3-5.]
“You have heard that the ancients were told, ‘You shall not commit murder’ and ‘Whoever commits murder shall be liable to the court.’ But I say to you that everyone who is angry with his brother shall be guilty before the court; and whoever shall say to his brother, ‘Raca,’ shall be guilty before the supreme court; and whoever shall say, ‘You fool,’ shall be guilty enough to go into the fiery hell. [Mat. 5:21-22.]
EDUCATION AND CHARITY
Jurisdiction over the mind.
Freedom of the mind. God’s authority over the mind is virtually indistinguishable from His authority over the heart. He alone can peer into the mind and read our thoughts. Not only that, He judges our thoughts and requires that our thoughts be inclined towards Him.
For who among men knows the thoughts of a man except the spirit of the man, which is in him? Even so the thoughts of God no one knows except the Spirit of God. [1 Cor. 2:11.]
And He said to him, “You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.” [Mat. 22:37.]
This sets up another instance for the application of the Rule of Accountability. That is, accountability runs exclusively in the direction of the source of our authority. For example, our minds are given to us by the Creator, who alone retains the right to command the allegiance of our thoughts, and therefore our accountability for our minds belongs solely to Him. At no time in the course of following our mind or conscience does civil government have the right to intrude – whether to monitor our thoughts, judge our thoughts, or command the allegiance of our minds. Consequently, our mind and our thoughts are wholly exempt from the cognizance of civil society, most especially civil government.
Which is to say, in terms of God’s basic principles of authority, that accountability runs solely to the source of delegation. Since no aspect of our minds comes from (or is delegated by) civil society, then civil government has no business attempting to exercise authority or jurisdiction over our thoughts. This principle was clearly recognized by Thomas Jefferson when he wrote his Bill for Establishing Religious Freedom (1779), which opens with these words:
Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions over the greatest part of the world, and through all time… .
Notice how Jefferson applies his argument to faith, religion and religious opinions, but his reasoning is based entirely on the freedom of the mind, not the heart. That’s because, as the scriptures clearly show, God’s authority over the heart and mind are indistinguishable. Further, the lack of authority of civil government over both is the same. Consequently, to the same extent that religion and faith are wholly exempt from social recognition (via legislation, regulation and enforcement, etc.), then men (not just civil rulers or public officials, but all people) lack the authority to read our minds, judge our thoughts, or command the allegiance of our minds.
I’m talking about education, people. To the same extent we have an inalienable or God-given right to religious liberty, we have an inalienable right to educational freedom, which principally means that all education is wholly exempt from civil interference. In other words, civil government should not be in the business of education, and the phrase public education is an oxymoron. Freedom of religion and freedom of the mind have the same origin (being equally derived from the Creator), both are part of God’s reserved jurisdiction and not man’s jurisdiction, and accountability for both runs exclusively to God. So why don’t we, as a society, treat education as sacrosanct as religion?
The limited authority to teach. In the face of the general denial of human authority over the hearts and minds of others and the recognition of God’s reserved authority, a strong presumption exists that no one has the right to instruct the heart or mind of another unless it has been expressly given by God. The biblical record indicates there are two such express delegations of the authority to teach. The first, of course, is the natural authority of parents to teach their own children.
“And these words, which I am commanding you today, shall be on your heart; and you shall teach them diligently to your sons and shall talk of them when you sit in your house and when you walk by the way and when you lie down and when you rise up.” [Deut. 6:6-7.]
And, fathers, do not provoke your children to anger; but bring them up in the discipline and instruction of the Lord. [Eph. 6:4.]
Second, Jesus declared that the realm of truth was under His kingdom, and that He expected His disciples to “bear witness to the truth” and so to teach others about the truth.
“Go therefore and make disciples of all the nations . . . teaching them to observe all that I commanded you.” [Mat. 28:19-20.] “For this I have been born, and for this I have come into the world, to bear witness to the truth. Everyone who is of the truth hears My voice.” [Jn. 18:37.]
Coupled with the jurisdictional limitations described above, the authority to teach may be understood as the right to submit ideas for the consideration of the student, but that each student retains the authority to decide for himself whether to accept or reject the submitted ideas. Thus, the teacher has authority to select the ideas a student will be exposed to, but the student retains the right to determine what will be learned. So powerful is the right to compel a student to be exposed to certain ideas, however, that even this jurisdiction over the heart and mind is limited to those instances where God has expressly authorized it.
Again, notice how the same arguments can be made about religion as education. Who are the only people expressly authorized by God to propagate religion in society? Parents and the Church. The jurisdiction of both religion and education in society are the same.
Establishments of religion and education. Here’s another coincidence for you. In historic terms, there were two principal aspects of religious freedom: the first was religious liberty (freedom in personal faith and practice); and the second was a prohibition of religious establishments. But what was – historically (never mind the warped modern view) – an establishment of religion? Historically, a religious establishment had four key components. In other words, these are the four attributes that made a church an establishment of religion for legal purposes.
1. State approved teachers. Typically, this was achieved by requiring people to get a state-granted license to preach. Don’t let the terminology confuse you – we think of it today as licensing preachers or ministers, but at the time they were called teachers.
2. State approved curriculum. Yes, states would actually (by law) designate what was officially approved religious doctrine, and what texts could be used by religious teachers. The Common Book of Prayer, for example, was not simply commonly used, but was required to be used as a matter of law in England, and was similarly mandated in some American colonies, such as Virginia.
3. Mandatory attendance. Failure to attend regular church services – not just any church services, but only the services of an approved church – was punished as a violation of law.
4. Supported by public taxes. Establishments of religion were either funded directly by distributions from the public treasury, or via enforcement of a tithables tax, where taxpayers were required by law to make payments directly to the church (often in kind, that is, in a form other than typical money, such as in tobacco leaves).
By the strangest coincidence (how on earth did this happen?), the same four attributes perfectly describe every public school in America today:
1. State approved teachers. All public school teachers have to be licensed to teach by the state.
2. State approved curriculum. All public school curricula must be approved by the state’s Board of Education.
3. Mandatory attendance. Ever hear of truancy laws? Yep – mandatory attendance.
4. Supported by public taxes. All public schools are funded by tax revenues, whether by income taxes or property taxes (what does it matter?).
So, yes, what I’m saying is exactly what it looks like I’m saying. All public schools are, by definition, state establishments of religion. So why, again, exactly do we treat education and freedom of the mind so differently compared to religion and religious liberty? I tell you, it’s positively schizophrenic. And absolutely inexcusable.
Jurisdiction over acts of love.
Apart from the limited jurisdiction to teach others, human jurisdiction is limited to the realm of actions, or deeds. However, even human jurisdiction over actions is limited, that is, there are some deeds which human agencies have no authority to judge. The actions which are moral in character (incapable of human enforcement) are generally governed by the law of love.
The law of love. The reason why acts of love are part of God’s reserved jurisdiction is that matters of the heart cannot be humanly enforced.
The biblical record plainly indicates that love originates from the heart.
But the goal of our instruction is love from a pure heart and a good conscience and a sincere faith. [1 Tim. 1:5.]
Since you have in obedience to the truth purified your souls for a sincere love of the brethren, fervently love one another from the heart. [1 Pet. 1:22.]
Since the heart is reserved for God alone to judge, actions which are governed exclusively by motivations of the heart are also reserved for God alone to judge.
A chief duty of the law of love is to love your neighbor as yourself.
“. . . you shall love your neighbor as yourself; I am the Lord.” [Lev. 19:18.]
And he answered and said, “You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself.” [Lu. 10:27.]
The duty to love one’s neighbor is owed directly to God, and only indirectly to the recipient. That is, love must come from the heart of a person freely; love cannot be either claimed as a right, earned (merited) by the recipient, or coerced. Thus, when God shows love toward us, it is evidenced by a gift which no one can merit or claim as of right. In other words, love is a matter of grace, not works (or merit).
For by grace you have been saved through faith; and that not of yourselves, it is the gift of God; not as a result of works, that no one should boast. [Eph. 2:8-9.]
The jurisdiction of love. Love (as is equity) in a sense is the purpose of all laws. Yet, there are some areas of life where love has exclusive jurisdiction.
In a sense, love undergirds all of God’s law.
Owe nothing to anyone except to love one another; for he who loves his neighbor has fulfilled the law. For this, “You shall not commit adultery, You shall not murder, You shall not steal, You shall not covet,” and if there is any other commandment, it is summed up in this saying, “You shall love your neighbor as yourself.” Love does no wrong to a neighbor; love therefore is the fulfillment of the law. [Rom. 13:8-10. See also, Mat. 22:37-40.]
However, love also governs some areas of human conduct exclusively. This is demonstrated by the fact that some obligations under God’s law have no provision for human enforcement. Such duties are strictly moral in character.
For example, the gleaning laws of the Old Testament commended the Jews to be charitable to their neighbor, but no human sanctions were attached to a failure to do so. [See, Lev. 19:9-10.] Similarly, no individual penalty was prescribed for failing to help a poor man in need, [See, Lev. 25:35] nor for failing to rescue a neighbor’s animal in distress [See, Ex. 23:4-5]. Even the Levitical tithe was not enforceable, that is, the Levites could not compel anyone to give tithes by penalty or sanction. [See, Num. 18:21.]
God, in exercising His jurisdiction over people, does not compel people to be charitable or to make gifts.
Let each one do just as he has purposed in his heart; not grudgingly or under compulsion; for God loves a cheerful giver. [2 Cor. 9:7.]
Charity and gifts. Any act of charity, such as a gift (charity is another word for love) is among the actions governed exclusively by the law of love.
People are to meet their neighbor’s need from heartfelt compassion, not a sense of civilly enforced justice. In discussing the parable of the Good Samaritan, Jesus asked,
“Which of these three do you think proved to be a neighbor to the man who fell into the robbers’ hands?” And he said, “The one who showed mercy toward him.” And Jesus said to him, “Go and do the same.” [Lu. 10:36-37.]
Any gift or act of love (“grace”) must be voluntary and undeserved (not a matter of “works”), or it is not love at all.
But if it is by grace, it is no longer on the basis of works, otherwise grace is no longer grace. [Rom. 11:6.]
Charity which is either claimed as a matter of right or merited is not given freely out of a sincere motivation of the heart. Therefore, love cannot be compelled, nor can the failure to love be punished by men. Civil government cannot compel a person to do what by definition must be voluntary. Neither can government determine which people deserve to receive something which is undeserved. Such matters are governed exclusively by the law of love, over which civil rulers have no jurisdiction.
Common law recognition of acts governed by love. There are a number of matters in which the common law recognized that the law of love had exclusive jurisdiction, that is, where man’s moral duty to love his neighbor could not be civilly enforced or punished. For example, the common law recognized no duty to rescue a person (or neighbor) in distress unless a “special relationship” going beyond mere neighbor status had been established between the parties. Similarly, the common law held that an undelivered gift was not enforceable, recognizing that an unfulfilled promise to make a gift was bound only by the law of love and therefore civilly unenforceable. Further, the early patriots realized that the duty of citizens to exhibit love and charity towards each other was a mutual duty motivated by love which was moral in nature, and unenforceable.
[A]ll men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love and charity toward each other. [Virginia Bill of Rights, §16.]
WHERE NO MAN MAY TREAD
Two systems of justice.
The jurisdictional distinctions between God and mankind are reflected in the historical separation of the “temporal” justice system (the common law courts) from the “spiritual” justice system (the ecclesiastical, or canon law, courts).
But though consisting of the same units, church and state were not one; each had its laws, its legislature, its courts of justice, its proper sphere of action. . . . [T]hrough several centuries there is a constant border warfare going on between the temporal and ecclesiastical courts as to the exact limits of their several domains. [F. W. Maitland, Const. History of England, 507.]
The ecclesiastical courts had exclusive jurisdiction over a wide variety of legal matters, such as discipline of the clergy, all testamentary causes, all matrimonial causes, immoral offenses such as fornication and incest, and the religious offenses such as blasphemy, heresy and schism. [See, F. W. Maitland, Const. History of England, 508ff.] Similarly, the common law courts had exclusive jurisdiction over other legal matters.
[I]t has long been considered an established principle that the ecclesiastical courts were not to try men for temporal offences, i.e., offences punishable in the king’s courts. [F. W. Maitland, Const. History of England, 523.]
Requirement of a guilty act.
The common law of crimes reflected jurisdictional principles in the Latin phrase actus reus (meaning guilty act). That is, criminal intent without a criminal act was generally not punishable. An act of wrongdoing was necessary to enable the civil courts to assume jurisdiction. Thus, Blackstone defined a crime in terms of “an act committed, or ommitted, in violation of a public law,” and as an “unlawful act.” [See, Blackstone, IV Commentaries, *5,6.]
Some cases do exist, however, where a defendant was punished for committing a lawful act with wrongful intent, which, although an act was done, would seem to be a punishment of the motivation only.
There are respectable authorities in this country which support the view that malice makes that actionable which would otherwise not be so. . . . “Thus the civil law recognizes the moral law . . . [which] imposes upon every man the duty of doing unto others as he would that they should do to him.” [Barger v. Barringer, 66 S.E. 439 (1909).]
Common law offenses of the heart and mind.
The common law included a number of criminal offenses which required little more than that the defendant verbalize a forbidden idea.
High treason. Thus Blackstone, in describing the capital offense of high treason, lists the first species of such crime to be “When a man doth compass or imagine the death of our lord the king, or our lady his queen, or of their eldest son and heir.” [Blackstone, IV Commentaries, *76.]
Offenses against God and religion. The common law also embraced a variety of criminal offenses against God and religion. This practice was approved by John Calvin, who believed that the jurisdiction of civil government included religious concerns.
[The object of civil government] is, that no idolatry, no blasphemy against the name of God, no calumnies against his truth, nor other offences to religion, break out and be disseminated among the people; . . . in short, that a public form of religion may exist among Christians, and humanity among men. Let no one be surprised that I now attribute the task of constituting religion aright to human polity . . .. The duty of magistrates . . . extends to both tables of the law. . . . Thus all have confessed that no polity can be successfully established unless piety be its first care, and that those laws are absurd which disregard the rights of God, and consult only for men. (Calvin, IV Institutes, ch. XX.)
Blackstone enumerated the following offenses against God and religion: apostasy (a believer’s total renunciation of Christianity, by embracing either a false religion or no religion at all), heresy (the public and obstinate denial of Christianity’s essential doctrines), offenses against the established Church of England (by reviling its ordinances or by failing to conform to its form of worship), blasphemy (the public exposure of God or Christianity to contempt and ridicule), profane and common swearing or cursing, witchcraft or sorcery (a commerce with evil spirits), religious impostors (falsely pretending an extraordinary commission from heaven), simony (the corrupt purchase of an ecclesiastical office), and profaning the Lord’s day (permitting secular business to be publicly transacted on Sundays). [See, Blackstone, 4 Commentaries *41-64.]
Blackstone justified the offenses against God and religion on the basis that such offenses, “by openly transgressing the precepts of religion either natural or revealed . . . constitutes that guilt in the action, which human tribunals are to censure,” and also that “christianity is part of the laws of England.” [Blackstone, 4 Commentaries *43, 59.]
Several of these common law offenses appeared in the early statutes of some of the original thirteen colonies. For example, both heresy and blasphemy were listed as capital offenses in the 1641 Massachusetts Body of Liberties.
1. If any man after legal conviction shall have or worship any other god, but the lord god, he shall be put to death. Dut. 13:6,10. Dut. 17:2,6. Ex. 22:20. 2. If any man or woman be a witch, (that has or consults with a familiar spirit,) They shall be put to death. Ex. 22:18. Lev. 20:27. Dut. 18:10. 3. If any man shall Blaspheme the name of god, the father, Son or Holy ghost, with direct, express, presumptuous or high handed blasphemy, or shall curse god in the like manner, he shall be put to death. Lev. 24:15,16. Massachusetts Body of Liberties (1641).
No civil jurisdiction over religion.
However, the historic view which eventually predominated American legal thought rejected the idea that civil government had jurisdiction over matters of religion.
In things that prejudice the tranquility, or security of the state, secret actions are subject to human jurisdiction. But in those which offend the deity, where there is no public action, there can be no criminal matter; the whole passes betwixt man and God, who knows the measure and time of his vengeance. [Montesquieu, Spirit of Laws, b. 12, c.4.]
. . . religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions . . .. [Thomas Jefferson, Letter to the Danbury Baptist Association, January 1, 1802.]
Modernly, the nature and extent of authority over the heart and mind and acts of love and charity have been polarized between two false alternatives. Namely, that such matters should be governed by either civil or ecclesiastical authorities. However, both alternatives assume that some human institution, other than the individual conscience, has jurisdiction over these matters. It is this common assumption that Jefferson and Madison attack, because to them, such matters are part of the jurisdiction God has reserved for Himself without having been delegated to anyone else.
We hold it for a `fundamental and undeniable truth’ that religion or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is precedent both in order of time and degree of obligation to the claims of civil society. … If this freedom be abused, it is an offense against God, not against man. To God therefore, not to man, must an account be rendered. [James Madison, Memorial and Remonstrance Against Religious Assessments (1785)]
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* Ver. 2.6. Copyright © 1993-2020 Gerald R. Thompson. All rights reserved. Used by permission. All Bible quotations are from the English Standard Version.