America’s Exceptionalism Chapter 30: The Judges Part 4
In continuing with our look at the judges during the Founding era we will see a consistency in how they believed and in what they believed and how they believed law should be interpreted.
James Otis: Otis was a Founder, a soldier, attorney, public official, and jurist. He graduated from Harvard in 1743 and admitted to the bar in 1748; was Massachusetts’ Advocate-General of the Court System in 1761 however he resigned to argue against the Writs of Assistance, a general search warrant that did not expire. That argument was credited by John Adams as the beginning movement for American Independence; as a member of the Massachusetts General Court he gained a reputation in England as a chief of “the rebellious spirit” because of his authoring of numerous State papers for the Colonies against British oppression; in 1765 he was a member of the Stamp Act Congress; from 1761-1769 he was mentor of Samuel Adams and the Sons of Liberty; considered by most as the acknowledged political leader of Massachusetts Bay; in 1769 an attack by a British customs commissioner that left him both physically and mentally affected; despite the adverse effects of his injury he was reelected to the General Court in 1771; volunteered for the Battle of Bunker Hill in 1775 and argued his last case in 1778.
As most Founders believed Otis believed that there must be the restraints that religion provides or there would be chaos in society. He commented:
When a man’s will pleasure is his only rule and guide, what safety can there be either for him or against him but in the point of a sword?1
Otis was a staunch supporter of individual rights and in self-government. In 1766 he argued that the only king with a Divine right was God and that the people were to have the power for governing:
Has it [government] any solid foundation? And cornerstone. . . ? I think it has everlasting foundation on the unchangeable will of God, the Author of Nature whose laws never vary. Government. . . .is by no means an arbitrary thing depending merely on compact [agreement] or human will for its existence. The power of Almighty God is the only power that can properly and strictly be called supreme and absolute. In the order of nature immediately under Him comes the power of a simple democracy, or the power of the whole over the whole. . . . God is the only monarch in the universe who has a clear and indisputable right to absolute power because He is the only one who is omniscient as well as omnipotent. . . The sum of my argument is that civil government is of God, that the administrators of it were originally the whole people.2
Reverend Robert Treat Paine: Clergyman and jurist from Massachusetts who was also an attorney and public official. Graduated from Harvard in 1749; in 1755 after studying theology he became chaplain of troops in the northern frontier; admitted to the bar in 1757, in 1768 he was a delegate to the State Convention, in 1773 he was a member of the Colonial House of Representatives ; in 1774-1775 was a delegate to the federal Provincial Congress; from 1774-1776 he was a member of the Continental Congress where he signed the Olive Branch Petition in 1775 and the Declaration of Independence in 1776; in 1777 he served as the speaker of the State House of Representatives; in 1777 he was appointed as the first Attorney General of Massachusetts and served until 1790; from 1779 to 1780 he was also member of the Governor’s Council; in 1780 he was one of the founders of the American Academy of Arts and Sciences; from 1790 to 1804 he was a judge on the Massachusetts Supreme Court.
Paine took pleasure in being an American specifically because Americans were free to worship God in the manner they felt best. He stated:
I desire to bless and praise the name of God most high for appointing me my birth in a land of Gospel Light where the glorious tidings of a Saviour and of pardon and salvation through Him have been continually sounding in my ears.3
Even in his will he expressed his devotion to his Christian principles:
I am constrained to express my adoration of the Supreme Being, the Author of my existence, in full belief of His Providential goodness and His forgiving mercy revealed to the world through Jesus Christ, through whom I hope for never ending happiness in a future state.4
William Patterson: Patterson was a public official, attorney and jurist. A 1763 graduate of Princeton; in 1764 he was an understudy in the law offices of Richard Stockton a signer of the Declaration of Independence; in 1769 he was admitted to the bar; between 1765-1768 he and a few others founded a literary society called the “Well-Meaning Society”; in 1775 he was a member of the New Jersey Provincial Congress; in 1776 he was on the committee that drafted the States Constitution and became the Attorney General of New Jersey; in 1787 he was a delegate to the Constitutional Convention where he signed the federal Constitution; in 1789-1790 as a U.S. Senator he helped draft the Judiciary Act and the Bill of Rights; from 1790 to 1793 he was Governor of New Jersey; served on the U.S. Supreme Court from 1793 to 1806 after being appointed by President George Washington; in 1800 he published The Laws of the State of New Jersey.
Patterson had no problem with mixing politics and government. They were, in his opinion, necessary for good government. He commented:
Religion and morality . . . are necessary to good government, good order, and good laws, for “when the righteous are in authority, the people rejoice.”5
To take this belief of his that religion and government should mix, an idea that today’s judges will not support, he was also on the committee that worked on the wording of the First Amendment. Even though Fisher Ames came up with the wording, Patterson was on the committee that agreed to that wording.6
Even in the discharging of his duties as a Supreme Court Justice he invoked Christian principles into his Court. As recorded in a local news paper in Portsmouth, New Hampshire in a Court session he held it stated:
On Monday last the Circuit Court of the United States opened in this town: The Honorable Judge Patterson presided. After the jury was impaneled, then Judge delivers a most elegant and appropriate charge. Religion and morality were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws, for “when the righteous are in authority, the people rejoice” . . . After the Charge was delivered, the Reverend Mr. Timothy Alden addressed the Throne of Grace in an excellent, well adapted prayer.7
Thomas Paine wrote The Age of Reason which was attacked but most if not all of the Founders as blasphemy. When Patterson learned that some Americans agreed with Paine’s work he responded with:
Infatuated American’s, why renounce your country, your religion, and your God? Oh shame, where is thy blush? Is this the way to continue independent, and to render the 4th of July immortal in memory and song?8
There is no doubt that he comingled the Christian principles he and the other Founders lived by with government and law.
Jeremiah Smith: Smith attended Harvard in 1777 but transferred to and graduated from Rutgers in 1780 and during his life he was a public official, attorney, soldier and jurist. As a soldier he fought in the Revolutionary War under General Stark; was admitted to the bar in 1786; from 1788 to 1791 he served in the New Hampshire State House of Representatives; in 1791—1792 he was a delegate to the State constitutional convention; from 1792 to 1797 he was a member of the U.S. House of Representatives; in 1801 he was appointed as U.S. federal judge by President John Adams and served until 1802 when he became Chief-Justice of the Superior Court of Judicature of New Hampshire and served until 1809; He served as Governor of New Hampshire from 1802 until 1809; and from 1813 to 1816 was Chief-Justice of the Supreme Judicial Court of New Hampshire.
In comments concerning his belief in the mixing of religious belief, specifically Christianity, and government and law he stated:
Cherish and promote the interest of knowledge, virtue and religion. They are indispensible to the support of any free government. . . . Let it never be forgotten that there can be no genuine freedom where there is no morality, and no sound morality where there is no religion. . . . Hesitate not a moment to believe that the man who labors to destroy these two great pillars of human happiness . . . is neither a good patriot nor a good man.9
Many have stated the Washington was not a Christian but the writings of his contemporaries prove those assumptions wrong. Jeremiah Smith commented on Washington’s Christian faith stating:
Christianity is the highest ornament of human nature. Washington practices upon this belief . . . He was neither ostentatious nor ashamed of his Christian faith.10
Reverend Jonathan Trumbull: Trumbull was from Connecticut and was a public official, businessman, clergy and jurist. Graduated from Harvard at 17 years of age when he returned home and began to prepare to be a minister where he was called to a church in Colchester in 1731; after the unexpected death of his older brother, who was his father’s business partner, he took over his brothers position and was a successful merchant for thirty-five years; from 1733-1740 he was a member of the General Assembly and from 1739-1740 he was also the Speaker; from 1740-1750 he was a member of the Governors Council; from 1766 to 1769 he was Deputy-Governor and Chief Justice of the State Supreme Court; from 1769 to 1784 he was Governor. He was a steadfast supporter of American rights and of all the colonial governors he was the only one to take the American side and was a close council of General Washington throughout the War and supplied more to the War effort in terms of men, munitions, arms and other supplies than any of the governor.
All through our early history there has never been a repression of prayer in the public square as we see today. ALL courts decisions that declare prayer at schools, city council meetings, graduations’ football games, etc. to be unconstitutional, go against everything that the Founders believed in and practiced. As Governor of Connecticut Trumbull stated:
And I do hereby call upon the people. . . .to offer to our Almighty and all-gracious God, throughout Great Mediator, our sincere and solemn prayers for his Divine assistance and the influences of His Holy Spirit.11
As we have seen with the judges that we have reviewed it was a practice of all of them to incorporate the nation’s Christian values with not just government but the courts as well. It wasn’t any and all religions but the Christian religion that they all practiced. They saw no need for separation of church and state in the influential manner only the institutional manner. Many states, prior to the Revolutionary War, had states laws that requires tithing to the Anglican Church whether you were a member or not. This was the actions by the government that the colonists did not want. This was the separation that they called for.
This review puts a whole new light on how far our judicial system has gone off the path set forth by the Founders. Only the election of moral men and women will we be able to return to the justice system that our Founding Fathers intended to operate.
- James Otis, The Rights of the British Colonies Asserted and proved (Boston and London: J. Williams and J. Almon, 1766), p. 4.
- James Otis, The Rights of the British Colonies Asserted and proved (Boston and London: J. Williams and J. Almon, 1766), pp. 11, 12, 13, 98.
- Robert Treat Paine, The Papers of Robert Treat Paine, Stephen T. Riley and Edward W. Hanson, editors (Boston: Massachusetts Historical Society, 1992), Vol. I, p. 48, March/April 1749.
- Robert Treat Paine, Original Intent The Courts, the Constitution, and Religion, (Aledo: David Barton, 1966), p. 135.
- United States Oracle (Portsmouth, NH), May 24, 1800.
- The Debates and Proceedings in the Congress of the United States, (Washington, D.C.: Gales and Seaton, 1834), Vol. I, pp. 440-948, June 8 – September 24, 1789.
- The Documentary History of the Supreme Court, Vol. III, p. 436.
- John E. O’Conner, William Patterson: Lawyer and Statesman (New Brunswick: Rutgers University Press, 1979), p. 244 from a Fourth of July Oration in 1798.
- A Selection of Orations and Eulogies . . . In Commemoration of the life . . . of General George Washington, Charles Humphrey Atherton, editor, (Amherst: Samuel Preston, 1800), p. 81, from an oration by Jeremiah Smith, February 22, 1800.
- Eulogies and Orations on the Life and Death of General George Washington (Boston: Manning and Loring, 1800), p. 190, from an oration delivered by Jeremiah Smith on February 22, 1800.
- Jonathan Trumbull, By His Excellency Jonathan Trumbull, Esq. Governor and Commander in Chief In and Over the State of Connecticut. A Proclamation (Hudson and Goodwin, 1807).