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.In 1823, Chief Justice JohnMarshall, while discussing the weight to be given to legislatively enacted rulesof decision, noted that judges could also examine those principles of abstract L EGAL C HRISTIANITY C ONCEIVED 157justice, which the Creator of all things has impressed on the mind of his crea-ture man, which are admitted to regulate, in a great degree, the rights of civi-lized nations. However, Marshall failed to identify the source of this higherauthority or to elaborate on the limitations of the principle.22These divergent views of higher law indicate that there was no consensusas to the basis for, scope of, or application of immutable higher legal principles,particularly in relation to both common law and the positive law.Nathan Daneagreed with James Wilson that divine influences were limited to an abstractnatural law, leaving many arbitrary rules that had nothing to do with morali-ty.23 In contrast to Wilson and Dane, Maryland law professor David Hoffmanwrote in 1823 that even municipal law had its deep foundations in the univer-sal laws of our moral nature, and, all its positive enactments, proceeding onthese, must receive their just interpretation with a reference to them. In hislaw lectures, Hoffman identified the Bible as the first and preeminent founda-tion of the law: it was the foundation of the common law in every christiannation.There is much law in it. Thus, [t]he christian religion is a part ofthe law of the land, Hoffman asserted, and should certainly receive no incon-siderable portion of the lawyer s attention. 24The two men most responsible for making higher law relevant to theAmerican common law were James Kent and Joseph Story, the former beingchief justice and then chancellor of New York from 1804 to 1823, and the latterserving as an associate justice of the Supreme Court of the United States from1812 to 1845.Both Kent and Story had trained on Coke and Blackstone and hada deep affection for the common law.In 1810, Kent enthused on the glories ofthe common law: The English system of jurisprudence had fostered the sound-est and most rational principles of civil liberty. Under the common law, ourfathers had lived and flourished and developed that lively sense of order, ofdecency, of moderation, and of right which is inculcated by its generous institu-tions. For Kent, the decision of the drafters of the New York Constitution toadopt the common law was not merely a sign of their wisdom but also an indi-cation of the influence of a providential hand.25Kent strongly defended the higher-law foundations of the common law inhis influential Commentaries on American Law.In his law lectures at ColumbiaCollege, which later became the Commentaries, Kent called on his students tohave their passions controlled by the discipline of Christian truth and theirminds initiated in the elementary doctrines of natural and public law. Although Kent did not give a specific lecture on natural law, he sprinkled high-er-law concepts liberally throughout his other presentations.In his lecture onthe law of nations, Kent acknowledged that international law was best gov-erned by positive law founded on usage, consent, and agreement. Yet he 158 L EGAL DISESTABLISHMENTurged his students not to ignore the natural jurisprudence foundations ofinternational law, to consider it as deriving much of its force and dignity fromthe same principles of right reason.and the same sanction of Divine revela-tion, as those from which the science of morality is deduced. In the absence ofclear guidance, international agreements were to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature ofmoral obligation. 26Joseph Story was a close friend of Kent and shared many of his convictions.As a Supreme Court justice and author of a handful of popular legal treatises,Story was arguably the most influential legal figure of the first half of the nine-teenth century.He was also one of the most ardent defenders of the commonlaw and its higher-law basis.Story stressed that natural law lay at the founda-tion of all other laws, and as such was a prerequisite for an understanding ofall aspects of jurisprudence, especially constitutional law and the commonlaw.27 His definition of natural law was broad: it embraced all those rules con-cerning man s duties to God, man s duties to others, and man s obligations tohimself.Yet, for Story, the higher-law aspect of natural law was undeniablytheistic:The obligatory force of the law of nature upon man is derived fromits presumed coincidence with the will of the Creator.God hasfashioned man according to his own pleasures, and has fixed the lawsof his being.He has the supreme right to prescribe the rules, towhich man shall regulate his conduct, and the means, by which heshall obtain happiness and avoid misery.28Story viewed this relationship with God as binding upon humankind,asserting that people not only owed God reverence and gratitude as Creator and Benefactor, but also as he is our Lawgiver and Judge, we owe an unre-served obedience to his commands. This fealty was equally required of publicofficials. All magistrates are responsible to God for the due and honest dis-charge of their duty. 29 That this perspective had a distinctly Calvinist, covenan-tal flavor to it was not by mistake; in an 1828 speech to the Essex, Massachusetts,Historical Society, Story praised the contributions of the Puritans to Americanculture.Remarking on the purity of their principles that directed the Puritans in laying the foundations of this Christian Commonwealth, Story agreed thatthere were great principles upon which all human society rests.some ofwhich are of eternal obligation, [which] arise from our relations to each other,and [ from] our common dependence upon our Creator. Though the Puritanshad erred in imposing religious conformity, they were correct in their underly-ing belief in society s reliance on Christianity.30 L EGAL C HRISTIANITY C ONCEIVED 159In his willingness to identify Christianity as the true source of fundamen-tal law, Story ventured beyond Hoffman and Kent.In his 1829 inaugural addressas Dane Professor of Law at Harvard College, Story noted that natural law heldan even higher sanction among the Christian community of nations :Christianity, while with many minds it acquires authority from itscoincidences with the law of nature, as deduced from reason, hasadded strength and dignity to the latter by its positive declarations.It goes farther.It unfolds our duties with far more clearness andperfection than had been known before its promulgation.It thusexhorts [man] to the practice of virtue by all that can awaken hope orsecure happiness.It deters him from crimes, by all that can operateupon his fears, his sensibility, or his conscience.By identifying Christianity as the source of the principles underlying naturallaw and, by implication, the common law Story reinforced popular notionsof the law s incorporation of Christian principles
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