Anglo-American Originalism: A Satire

Author’s Note: One evening, I was reading the Federalist Papers and fell into a trance, no doubt hypnotized by the blessings of Liberty, such as the taxing power. In my trance, I was, I believe, shown this piece, which represents originalism as it perhaps is in another world. Given Adrian Vermeule’s attack on our founding documents of the 1980s, I thought the time was right to reveal what had been shown to me.

One hears much today about the Anglo-American conservative tradition, consisting of such nice, liberty-loving men as Edmund Burke, Alexander Hamilton, John Marshall, and Joseph Story. There are any number of other names that are enrolled—enshrined, even—among the heroes of the Anglo-American conservative tradition. It is not uncommon to read people waxing very tender about the common law and all the innovations of the common-law courts. Prose poems to limited government, due process, and liberty are thick on the ground. 

At The American Mind, for example, some of the leading lights of the conservative movement have turned to the Anglo-American conservative (legal) tradition to answer Adrian Vermeule’s “common-good conservatism” argument from The Atlantic. Vermeule wishes to jettison originalism in favor of a robust judicial and legislative approach ordered to the common-good. One would have thought that Catholics would acknowledge Vermeule’s approach as just about the only approach on offer. Indeed, the Second Vatican Council’s Pastoral Constitution on the Church in the Modern World, Gaudium et spes, which might fairly be called the Church’s great approach to modernity, calls for the state to seek the common good and total well-being of its citizens (nos. 74–75). One would be sorely disappointed in that expectation, though. This leads to endless, unedifying recitations of all the old chestnuts about the Anglo-American tradition. 

But the Anglo-American tradition, one surmises from all these interventions, is no older than 1687 or so, except for occasional fragments of earlier times. One might hear about Magna Carta or the Habeas Corpus Act 1679 (31 Car. II c. 2). One might, if one listens closely, hear whispered the names of Bracton or Coke. But for the most part, history begins in 1687. However, to begin the Anglo-American tradition on the cusp of the so-called Glorious Revolution is to do violence to the tradition. One example of this tradition, which leaps off the page and offers a rebuttal to Vermeule, is the long history of common law and the statutory punishment of heresy in England. These laws, which have a surprising source, spanned Catholic and protestant reigns. 

The punishment of heresy is a significant component of the English tradition and part of the Anglo-American tradition. Vermeule’s critics seem, therefore, to be missing a golden opportunity to meet Vermeule on his own turf. He calls for common-good conservatism: a strong president assisted by strong administrative organs and a compliant judiciary ordering the state to the common good in accordance with Catholic doctrine and right reason. A deep understanding of Anglo-American tradition, rooted in the lived laws and customs of England and the United States, demonstrates conclusively that the government already has the sort of power Vermeule seeks—and more. Why not answer Vermeule by reminding him of the English tradition of burning? This common-law tradition, which spanned centuries, made its way into American common law. One need not jettison the jurisprudential achievements of the 1970s and 1980s for the state to have the sort of power Vermeule seeks. To recover the whole Anglo-American tradition, therefore, is to find the perfect answer to Vermeule.

The tradition begins in some sense with Frederick II, the great Hohenstaufen emperor, who promulgated decrees against heresy. Known by their incipits, Commissi and Inconsutilem (MGH Legum II, ed. Pertz, pp. 288, 327), Frederick’s decrees are part of a tradition of imperial legislation against heretics. For example, Justinian’s Codex begins with a long decree about orthodoxy and heresy (1.1). Frederick’s decrees, however, are marked by their salutary severity, imposing the death sentence upon heretics. This is one of history’s ironies, considering that Innocent IV, at the Council of Lyons, deposed Frederick for, among many complaints about Frederick’s personal conduct and public administration, the crime of heresy. Of course, the laws themselves were not tainted by their association with the infamous Hohenstaufen. Following Frederick’s death, Boniface VIII ratified these constitutions specifically with the decretal Ut inquisitionis negotium (c.18 in Sexto 5, 2). 

As an aside, Frederick II’s value as an integralist model becomes clearer in this context. Indeed, it is necessary to consider Frederick in the same breath as St. Louis IX, recently the subject of Andrew Willard Jones’s (mostly) excellent Before Church and State. Whatever happened later, Boniface’s approbation demonstrates clearly that, when Frederick promulgated Commissi and Inconsutilem, he was acting in a manner congenial to the Roman Church. More than that, he was acting in a manner that the pope felt all rulers in the west should emulate. One can deplore Frederick’s disagreements with Innocent III, Gregory IX, and Innocent IV while still admiring the actions he took that later met with the Church’s approval. Simply pointing to the ultimate dispute between Frederick and Innocent IV is inconsistent with the Church’s actual attitude toward the great Hohenstaufen. 

Frederick’s decrees, of course, were imperial legislation, not applicable in other realms of their own force. However, Bishop William Lyndwood, the eminent English canonist, held that Boniface VIII’s decretal made them part of the common law of the west. In his Provinciale, as Maitland and Pollock have noted, Lyndwood had to answer the question why heretics were burned in England. Lyndwood found the answer in Archbishop Thomas Arundel’s January 1408 constitution Reverendissimae, in the phrase “poenas in jure expressas” of the first chapter, Quod nullus. Expanding upon the phrase, Lyndwood pointed to the decretal Ut inquisitionis negotium and the constitutions Commissi and Inconsutilem. In other words, the punishments found in the law, according to Lyndwood, were the imperial punishments endorsed by Boniface VIII. 

From our vantage point, this is an amazing argument. By means of the canon law, Pope Boniface VIII made Holy Roman Emperor Frederick II’s constitutions Commissi and Inconsutilem binding in England, so that Archbishop Arundel could simply allude to them in his constitution Reverendissimae. To put it another way, the Pope inserted into English common law the decrees of the Holy Roman Emperor. 

Today, it is a hopeless, thankless task to get anyone to read Pope St. John Paul II’s canons 1311 and 1312, stating the Church’s right to coerce the faithful even in terms of temporalities, much less John Paul’s assertion in his constitution Sacrae disciplinae leges that the 1983 Code, which presumably includes canons 1311 and 1312, presents the true ecclesiology even of the Second Vatican Council. One hears flowery rejections of ecclesiastical coercion, even from people who might otherwise be expected to scan the Code of Canon Law and John Paul’s apostolic constitution promulgating it. One can scarcely imagine the reaction to Lyndwood’s argument that the pope can make foreign law into common law merely by approving it. 

Lest anyone suggest that the good kings of England resisted the encroachments of popish tyranny, it ought to be noted that English statutory law conformed with the European common law established by Boniface VIII. During Richard II’s minority, a statute was adopted in his name authorizing the arrest and imprisonment of heretical preachers (5 Ric. II stat. 2, c. 5). Then, under Henry IV, a very severe statute against the Lollards was introduced (2 Hen. IV c. 15). Many cite Henry IV’s statute as the beginning of the writ de heretico comburendo. However, in his magisterial Roman Canon Law in the Church of England, Maitland argues that Archbishop Arundel had the Lollard priest William Sawtrey burned even before Parliament had actually passed the statute (on the strength of Boniface VIII’s Ut inquisitionis negotium and Frederick’s constitutions). Certainly there is no conflict between the two. 

Then, in 1414, Henry V renewed the severe legislation against the Lollards (2 Hen. V stat. 1, c.7), demanding first an oath from practically everyone engaged in civil administration for the extirpation of Lollardy and for close cooperation with the spiritual authorities in their work against heresy. He also provided for the forfeiture of the lands and property of those convicted of heresy. Blackstone notes that Henry V’s law against the Lollards made that heresy a temporal offense and claimed concurrent jurisdiction with the ecclesiastical courts. This is an interesting observation, which deserves to be repeated: Henry V made heresy a temporal offense. These three statutes (5 Ric. II stat. 2, c. 5, 2 Hen. IV c. 15, and 2 Hen. V stat. 1, c. 7) were renewed by Philip and Mary in 1554 (1 & 2 Phil. & Mar. c. 6). 

The English legislation against heretics was not limited to Catholic monarchs. In 1562, although Elizabeth repealed the prior statutes against heresy (1 Eliz. I c. 1), she reformed the process for the writ de excommunicato capiendo by the statute 5 Eliz. I c. 23. The purpose was not, as one might think, to suppress the state’s cooperation with ecclesiastical authority. Instead, Elizabeth’s statute was framed to ensure the due execution and return of the writ so that the excommunicated could be properly addressed by ecclesiastical authorities. Blackstone reliably informs us that Elizabeth also put the writ de heretico comburendo into execution against Jan Pietersz and Hendrick Terwoort (4 Commentaries *49). It was not until 1677 that Parliament finally abolished the writ de heretico comburendo (29 Car. II c. 9). However, the statute contained a lengthy proviso that the abolition of the writ did not diminish the jurisdiction of “Protestant Arch-Bishops or Bishops or any other Judges of any Ecclesiasticall Courts in cases of Atheisme Blasphemy Heresie or Schisme and other damnable Doctrines and Opinions” to punish offenders. 

One might also note that, while the monarchs of the so-called reformation were eager to roll back the heresy laws of Richard II, Henry IV, and Henry V, they were also eager to punish witchcraft most stringently. Henry VIII, Elizabeth, and James all issued severe laws against witchcraft (e.g., 33 Hen. VIII c. 8; 1 Jac. I c. 12). James in particular made witchcraft a secular felony, punishable with death, echoing Henry V’s statute making heresy a temporal offense. Blackstone notes that heresy and witchcraft had been treated similarly in English law (4 Commentaries *60). However, witchcraft was ultimately removed from the judgment of the ecclesiastical courts. But by the time of George II, the ancient severity of the English law against witchcraft had been relaxed significantly, to the point where the law seemed to hold that only the pretense of witchcraft was punishable and then only with a year’s imprisonment (4 Commentaries *61). 

All of this is interesting as English legal history, to be sure, but one might justly wonder the extent to which it has any bearing on American jurisprudence. There are two answers to that question. First, English legal history served as the omnipresent background for the founding fathers. Coke’s Institutes and Blackstone’s Commentaries were the cornerstone of early American legal education and jurisprudence, and retain, as a consequence, a privileged place in the understanding of the founding fathers’ legal thought. The founding fathers, moreover, were not above borrowing specific concepts from English law. Alexander Hamilton, in describing the Senate as a high court of impeachments in Federalist No. 65, noted frankly that the Constitution’s arrangement for impeachments had been borrowed from England. 

The long history of Christianity and English law—indeed of the extent to which secular courts were obliged to follow ecclesiastical law—was certainly not unknown to the founding fathers. In February 1814, Thomas Jefferson forwarded an extract of his commonplace book to Dr. Thomas Cooper. Jefferson had obtained for Cooper appointment as a professor in the University of Virginia, which he was forced to resign over religious matters. Jefferson’s extract is a long summary treating the question of whether Christianity was part of English common law. After listing numerous authorities in support of the proposition that Christianity was in fact part of the English common law, Jefferson, ever the freethinker, attempts to prove it was never so. But Jefferson never quite manages to batter down the judges, including Sir Matthew Hale’s judgment in Rex v. Taylor, I Ventr. 293, 3 Keb. 607 (1676). In forwarding the extract to Cooper, Jefferson suggested that Cooper might “find the conclusions bolder than the historical facts and principles will warrant.” 

The other answer is this: the English common law is part of the organic law of many states. Often one reads in state law that the English common law as of the fourth year of the reign of James I (1607) is received as part of the law of a state. No doubt this date is connected to the establishment of James Fort, later known as Jamestown, by the Virginia Company in May 1607, after which courts sitting in the United States adopted and developed the common law. While Elizabeth repealed Philip and Mary’s renewal of the older heresy statutes, it is clear that Elizabeth’s common law included the writ de heretico comburendo and the writ de excommunicato capiendo. The former would not be abolished until 1677 and Elizabeth herself reformed the procedure for the latter in 1562. It stands to reason, therefore, that Frederick II’s stringent decrees against heresy, made part of English common law by Pope Boniface VIII, lurked in the body of the common law as it made its way to the New World. 

The founding fathers, most of whom knew their Blackstone as well as anything, would no doubt have read in the fourth volume of Blackstone a brief account of Frederick II, Boniface VIII, and Lyndwood (4 Commentaries *45–46). Indeed, Blackstone traces quickly the history of English heresy law, including Henry VIII’s statutes defining heresy and Elizabeth I’s repeal of the former heresy laws, and comes to the conclusion that the writ de heretico comburendo was left as it was in common law, which is to say available only to the provincial synod (4 Commentaries *46–49). Anyone who consults Blackstone must therefore conclude that at least some of the provisions against heresy were part and parcel of the common law as of the fourth year of James I. 

Originalists, frantic to find an answer to Vermeule, are no doubt rejoicing at this conclusion. The common law adopted by the states, as it was understood by the framers of the Constitution and those who ratified it, included in some sense the stringent heresy laws of Emperor Frederick II, which had been grafted into the common law by Pope Boniface VIII. Subsequent statutory enactments may have broadened or narrowed the scope of the civil authorities in heresy cases, but at no point before 1677 or so (i.e., after English common law became American common law) was the scope abolished. Recall that the First Amendment was not incorporated against the states at ratification, and the Tenth Amendment leaves the states’ powers untouched except where specifically modified by the Constitution. 

The answer to Vermeule becomes clear, does it not? If one accepts  a thick understanding of originalism and the Anglo-American tradition, you see that the power to execute heretics is already part of the constitutional order in this country. Federalism is nothing if not a warrant for the states to pursue heretics—as good originalists, we note that these are heretics as Frederick II and Boniface VIII would have seen them—while the federal government sticks to its knitting. Our great separation of powers means that state-court judges shall issue writs de heretico comburendo and de excommunicato capiendo upon the application of ecclesiastical authorities for governors and sheriffs to execute. If the states have modified this understanding by various enactments—here we should remember that statutes in derogation of the common law are always construed narrowly—that is their choice. Other states may make other choices. 

One takes a step back, breathless, at this moment. The genius of the framers was not merely a system of checks and balances, a finely wrought mechanism for the preservation of liberty. It was also to leave untouched the English-speaking peoples’ tradition of stringent punishments for heresy carried out by civil officials at the behest of the ecclesiastical authorities. A tradition that finds its root in the decision of the Pope who issued the bull Unam sanctam and the bull Ausculta fili to issue a decretal ratifying the ordinances of a Holy Roman Emperor. They built better than they knew.