America’s Exceptionalism The Judges Part 2
There are many judges in the Founding era that made a distinct impact on how our judicial system works. The judges of the Founding era all did one thing and that is incorporate the principles of Christianity into our system of laws and they defended Christianity as that immoveable foundation.
The next judge I want to look at is James Wilson.
James Wilson: He was one of the six Founders that signed both the Declaration of Independence and the Constitution. He spoke at the Constitutional Convention 168 times and was the first law professor at the University of Pennsylvania, and was appointed Justice on the Supreme Court by George Washington in 1789.
James Wilson was one of several that set the standard on law interpretation, specifically the Constitution. He believed that you had to understand the original intent of the law to be able to fully understand its purpose. Wilson explained this it in this way:
The first governing maxim in the interpretation of a statue is to discover the meaning of those who made it.1
This is a concept that has become out of the reach of the majority of judges today. They have come to believe that the Constitution is a ‘living’ document and changes as the times change. Our Founders never believed that concept and that process has allowed many things that our Founders would have never allowed, same-sex marriage, abortion, burning of the Flag as a form of free speech and many more.
Wilson and other Founders were drawn to an English theologian and legal philosopher by the name of Richard Hooker (1554-1600). Wilson’s comments on Hooker’s work showed admiration for the “sublime language of the excellent Hooker,”2 “the judicious and excellent Hooker,”3 and “the sagacious Hooker.”4
Wilson liked and believed the manner in which Hooker based his origins of law. Hooker wrote:
And the point about which we strive is the quality of our laws, our first entrance hereinto cannot better be made than with consideration of the nature of law in general. . . namely the law whereby the Eternal Himself doth work. Proceeding from hence to the law, first of Nature, then of Scripture, we shall have the easier access unto those things which come after to be debated.5
Wilson believed that a strict adherence to the Constitution was needed to maintain the integrity of that Constitution:
When they [the judges] consider its [a laws] principles and find it to be incompatible with the superior power of the Constitution, it is their duty to pronounce it void.6
We have seen the Supreme Court in the last few years completely ignore the Constitution and reverse long standing laws on the basis of foreign laws and treaties that America has not yet agreed to. This is a violation of their oath and a blatant case of judicial activism, yet no one has confronted any of the five Jurists that have violated their oath.
Wilson believed that all law must rest on natural or divine law. He saw no separation between religion (Christianity) and law and believed that the two were intertwined:
Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, mutual assistants. Indeed, these two sciences run into each other.7 (Emphasis added)
Wilson’s influence on our judiciary was profound and long lasting. In a case from 1824, 26 years after his death, in the case of Updegraph v. Commonwealth Wilson is mentioned:
The Late Judge James Wilson, of the Supreme Court of the United States, Professor of Law at the College of Pennsylvania, was appointed in 1791, unanimously, by the House of Representatives of this State. . . .He had just risen from his seat in the convention which formed the Constitution of the United States, and of this state; and it is well known, that for our present form of government we are greatly indebted to his exertions and influence. With his fresh recollections of both the constitutions, in his Course of Lectures (3rd vol. of his Works, 122), he states that . . . . Christianity is part of the common-law.8 (Emphasis added)
Wilson saw no separation and acted upon his Christian beliefs and principle at all times. The judicial decisions he made were of moral necessity as our laws called for.
Roger Sherman: Sherman was one of the most active of the patriots. He was a politician, jurist, the only one of the Founders to sign all four of the founding documents: The Articles of Association, 1774; The Declaration of Independence, 1776; The Articles of Confederation, 1777; The Constitution of the United States, 1787.
He was on the committee that drafted the Declaration of Independence and made 138 speeches at the Constitutional Convention as a member of the Continental Congress. From 1789-1791 he was a U.S. Congressman and at the age of 70 he was elected to the U.S. Senate and served there until his death in 1793.
As a member of the White Haven Congregational Church, Sherman was asked to revise the wording of their creed. In part, this is what he wrote:
I believe that there is one only living and true God, existing in three persons, the Father, the Son and , the Holy Ghost, the same in substance and equal in power and glory. That the scriptures of the Old and New Testaments are a revelation from God and a complete rule to direct us how we may glorify and enjoy Him. I believe that the souls of the believers are at their death made perfectly holy and immediately take to glory; that at the end of this world there will be a resurrection of the dead and a final judgment of all mankind when the righteous shall be publically acquitted by Christ the Judge and admitted to everlasting life and glory, and the wicked be sentenced to everlasting punishment.9
There are many jurists we could discuss in detail, but I would like to introduce some that most have never heard of to show the depth of involvement they had in establishing our form of government.
William Cushing: Attorney and jurist. In 1751 he graduated from Harvard. It wasn’t until 1755 that he was admitted to the bar. In 1772 he became a Superior Judge in Massachusetts and in 1777 after the resignation of John Adams became the Massachusetts Chief Justice. He was involved in the framing of first Massachusetts constitution; was involved in the ratification of the federal Constitution; was appointed to the original Supreme Court by President George Washington; at Washington’s second inauguration he administered the oath of office and was the last judge in America to wear a powdered wig.
Francis Dana: A 1762 graduate of Harvard and admitted to the bar in 1767; was elected to be a delegate to the Provincial Congress of 1774; from 1777-1778 he was a member of the Continental Congress; signed The Articles of Confederation in 1778 creating a national government; commissioned by Congress as Minister to Russia in 1780; became an associate member of the Massachusetts Supreme Court by appointment by John Hancock and was on the court from 1785 to 1800; and he was an original member of the Society for Propagating the Gospel Among the Indians and Others, 1787-1810.
William Ellery: Born in 1727 and was a sailor, attorney, public official and jurist. Harvard graduate, 1747; Rhode Island naval officer, 1754; 1768-1769 Clerk of the Court of Common Pleas; started his law practice in 1770; became a member of the Continental Congress 1776-1779; 1781; 1783-1785; signed the Declaration of Independence in 1776; Commissioner of the Continental Loan Office 1786; Collector of the Port of Newport 1790-1820.
Ellery believed that the propagation of the gospel was very important as well as the teaching of the principles of Christianity. He commented on the need to teach these principles:
However gradual may be the growth of Christian knowledge and moral reformation, yet unless it is begun, unless the seeds are planted, there can be no tree of knowledge and, of course, no fruit. The attempt to Christianize the heathen world and to produce peace on earth and goodwill towards men is humane, Christian, and sublime.10
Oliver Ellsworth: 1766 Princeton graduate; studied theology and law and admitted to the bar in 1771; became the Connecticut’s State Attorney in 1775; from 1778-1783 was a member of the Continental Congress; from 1780-1785 and 1801-1807 was a member of the Governor’s Council; appointed judge of the Superior Court from 1785-1789; appointed by President Washington as Chief Justice of the U.S. Supreme Court in 1796-1800.
He also believed that the promotion of Christian principles were top priority for any republican form of government. He commented:
The primary objects of government are the peace, order and prosperity of society . . . . To the promotion of these objects, particularly in a republican government good morals are essential. Institutions for the promotion of good morals are therefore objects of legislative provision and support; and among these . . . religious institutions are eminently useful and important.11 (Emphasis added)
Notice the he called for the promotion of the Christian principles. This is a statement from a man who was on the committee that helped word the First Amendment. He even went on to say that teaching these Christian principles were “objects of legislative provision and support”. This means that the government should be involved in the promotion of Christian principles! That is not what the courts would allow today, but the Founders saw no problem with the government promoting Christianity. They wrote the Constitution and the Bill of Rights. I believe that they knew better of what they wrote than any judge sitting of the bench today.
John Hart: Hart had little formal education but did attend private school. He was a public official and a jurist. In 1755 and 1761 he was Justice-of-the-Peace; from 1761 to 1776 he was judge of the New Jersey Court of the Common Claims; from 1761 to 1771 he was also a member of the Provincial Assembly of New Jersey; from 1775-1776 he was a member of the New Jersey Provincial Congress; in 1776 as a member of the Continental Congress he signed the Declaration of Independence; from 1778-1779 he was chairman of the New Jersey Council of Safety; in 1778 he was forced to leave his dying wife’s bedside because of the attacking British army and lived in hiding for a year evading British capture. When he returned home his entire estate had been devastated, his wife was dead and his twelve children were scattered. He died shortly after returning to his home; it is said, of deep sorrow.
He believed that America depended on the God of the Bible for its existence and was the source of our defense and wisdom. He stated:
We will look for the permanency and stability of our new government to Him that bringeth princes to nothing and teacheth senators wisdom. 12
1 James Wilson, The Works of the Honorable James Wilson, Bird Wilson, editor, (Philadelphia: Bronson and Chauncey, 1804), Vol. I, p. 14, from “Lectures on Law Delivered in the College of Philadelphia; Introductory Lecture: Of the Study of the Law of the United States.”
2 James Wilson, Vol. I, p. 56, “Of the General Principles of Law and Obligation.”
3 James Wilson, Vol. I, p. 102, “Of the General Principles of Law and Obligation.”
4 James Wilson, Vol. I, p. 143, “Of the Law of Nature”.
5 Richard Hooker, The Works of that Learned and Judicious Divine, Mu Richard Hooker (Oxford: The University Press, 1845), Vol. I p. 148.
6 Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington: Printed for the Editor, 1836), Vol. II, p. 446, James Wilson at the Pennsylvania Ratification Debates on Saturday, December 1, 1787.
7 James Wilson, The Works of the Honorable James Wilson, Bird Wilson, editor, (Philadelphia: Bronson and Chauncey, 1804), Vol. I, pp. 104-106, “Of the General Principles of Law and Obligation.”
8 James Wilson, Updegraph v. Commonwealth, 11 Serg. & R. 393, 403 (1824).
9 Lewis Henry Boutell, The Life of Roger Sherman. (Chicago: A.C. McClurg and Company, 1896), pp. 272-273.
10 Jared Sparks, Lives of William Pinkney, William Ellery, and Cotton Mather, (New York: Harper and Brothers, 1860) from the Library of American Biography, Vol. VI, pp. 138-139.
11 Connecticut Courant, June 7, 1802, p. 3.
12 William Livingston, The Papers of William Livingston, (Trenton: New Jersey Historical Commission, 1979), Vol. I, p. 161, in an address from John Hart, October 5, 1776.