1. In re Granger, 7 Phila. Rep. 350, 355 (1870); Arthur William Barber, “Christianity and the Common Law,” The Green Bag 14 (1902): 267; Vidal v. Philadelphia, 43 U.S. 127, 198 (1844).

2. Commonwealth ex rel. [sic] v. American Baseball Club of Philadelphia, 290 Pa. 136, 143 (1927); Commonwealth v. Mochan, 111 Pa. Super. 454, 458 (for the maxim), 459 (for the phrase quoted) (1955).

3. Miller, Perry, The Life of the Mind in America (New York: Harcourt, Brace & World, 1965), 186–203Google Scholar; Howe, Mark DeWolfe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 28, 30Google Scholar; Peterson, Merrill D., The Jefferson Image in the American Mind (New York: Oxford University Press, 1960), 95.Google Scholar Bradley Chilton argues that the maxim gained currency in seventeenth-century England because of “the ability of seventeenth-century elites to control the printing and dissemination of law books.” See “Cliobernetics, Christianity, and the Common Law,” Law Library Journal 83 (1991): 355, 360.Google Scholar Jayson Spiegel summarizes a few of the important cases discussing the maxim in “Christianity as Part of the Common Law,” North Carolina Central Law Journal 14 (1984): 494.Google Scholar

4. McClellan, James, Joseph Story and the American Constitution: A Study in Political and Legal Thought (Norman: University of Oklahoma Press, 1971), 152Google Scholar (for the quoted language), 118-59 (for the issue generally); Levy, Leonard W., Blasphemy (New York: Knopf, 1993), 400–23Google Scholar; Lash, Kurt T., “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1085, 1100–11.Google Scholar

5. Taylor's Case, 1 Vent. 293, 86 Eng. Rep. 189 (K.B. 1676).

6. There were at least seven such prosecutions in secular courts before Taylor's. Nokes, G. D., A History of the Crime of Blasphemy (London: Sweet & Maxwell, 1928), 147.Google Scholar Before these, English blasphemy prosecutions were in ecclesiastical courts. Ibid., 2-20.

7. A Complete Collection of State-Trials and Proceedings upon High-Treason and other Crimes and Misdemeanours; from the Reign of King Richard II to the Reign of King George II, 3d ed. (London: John Walthoe, 1742), vol. 2, 28, 36Google Scholar; Holdworth, W. S., A History of English Law (Boston: Little, Brown, 1926), vol. 8, 403Google Scholar, n. 5.

8. The King v. Curl, 1 Barn. K.B. 29, 94 Eng. Rep. 20 (K.B. 1727); Rex v. Woolston, Fitzg. 64, 94 Eng. Rep. 655 (K.B. 1729); De Costa v. De Paz, 2 Swans. 532, 36 Eng. Rep. 715 (Ch. 1754); Blackstone, William, Commentaries on the Laws of England, vol. 4 (1769; reprint, London: Dawsons, 1966), 59.Google Scholar For later English history, see Bonner, Hypatia Bradlaugh, Penalties Upon Opinion (London: Watts & Co., 1912)Google Scholar; Kenny, Courtney, “The Evolution of the Law of Blasphemy,” Cambridge Law Journal 1 (1922): 127.CrossRefGoogle Scholar

9. The Works of James Wilson, ed. Andrews, J. D. (Chicago: Callaghan & Co., 1896), vol. 2, 425Google Scholar (the published version of Wilson's lectures cites Blackstone and Rex v. Woolston); Swift, Zephaniah, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), vol. 2, 321.Google Scholar In the first American edition of Blackstone, St. George Tucker suggested that blasphemy, “as a civil offense, seems to have been abolished” in Virginia by the state's Bill of Rights, but Tucker did not disagree with the broader notion that Christianity is part of the law. St. Tucker, George, Blackstone's Commentaries (1803; microfiche reprint, Littleton, Colo: F. B. Rothman, 1969), vol. 5, 59, n. 9.Google Scholar

10. People v. Ruggles, 8 Johns. 290, 293 (N.Y. 1811). This point had been a staple of Kent's lectures for some time. See Kent, James, Dissertations: Being the Preliminary Part of a Course of Law Lectures (1795; reprint, Littleton, Colo.: F. B. Rothman, 1991), 24.Google Scholar

11. N.Y. Const, of 1777, art. 38; Ruggles, 8 Johns, at 295 (emphasis in original), 297. This is not to say, of course, that most New Yorkers were churchgoers or otherwise participated in institutional religious life. See Butler, Jon, Awash in a Sea of Faith: Christianizing the American People (Cambridge: Harvard University Press, 1990).Google Scholar

12. Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); State v. Chandler, 2 Del. (2 Harr.) 553 (Del. 1837); City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob.) 508 (1846); Shover v. State, 10 Ark. 259 (1850); Bell v. State, 31 Tenn. 41 (1851); Melvin v. Easley, 52 N.C. 378 (1860); Goree v. State, 71 Ala. 7 (1881).

13. Dane, Nathan, A General Abridgment and Digest of American Law (Boston: Cummings, Hilliard & Co., 1823), vol. 6, 667, 675Google Scholar; Story, Joseph, “Christianity a Part of the Common Law,” The American Jurist 9 (1833): 346Google Scholar; Sedgwick, Theodore, A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law (New York: J. S. Voorhies, 1857), 17Google Scholar; Cooley, Thomas M., A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868), 472Google Scholar; Dwarris, Fortunatus, A General Treatise on Statutes, ed. Potter, Platt (Albany: W. Gould & Sons, 1871), 559Google Scholar; Tiedeman, Christopher G., A Treatise on the Limitations of Police Power in the United States (St. Louis: F. H. Thomas Law Book Co., 1886), 167.Google Scholar

14. Aldrich, P. Emory, “The Christian Religion and the Common Law,” American Antiquarian Society Proceedings 6 (April 1889): 18, 33–34.Google Scholar

15. On the status of blasphemy in the United States in the late eighteenth and early nineteenth centuries, see Antieau, Chester James, Downey, Arthur T., and Roberts, Edward C., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee: Bruce Publishing, 1964), 184–87.Google Scholar

16. Levy, Blasphemy, 260-61; Body of Liberties, sect. 94(3) (1641); The General Laws and Liberties of the Massachusetts Colony 14 (1672); Massachusetts Province Laws 1692–1699, ed. Cushing, John D. (Wilmington: Michael Glazier, 1978), 115.Google Scholar

17. Levy, Blasphemy, 264-67. The decline in blasphemy prosecutions was part of a broader decline in the prosecution of religion-based offenses. See Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina Press, 1981), 187–88Google Scholar; Hartog, Hendrik, “The Public Law of a County Court: Judicial Government in Eighteenth-Century Massachusetts,” American Journal of Legal History 20 (1976): 299–308CrossRefGoogle Scholar; Nelson, William E., “Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective,” New York University Law Review 42 (1967): 450–66.Google Scholar

18. Ruggles, 8 Johns, at 293, 296, 295.

19. Laws of the State of New-York, vol. 2, 195 (1813). Blasphemy had earlier been criminalized by a statute of 1708, The Colonial Laws of New York, vol. 1, 617 (1894), a statute which by 1813 had either been repealed or forgotten. (New York's colonial statutes that had not been repealed or amended remained in effect until 1828. Ibid, at vii.)

20. Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending the Constitution of the State of New-York, 462-63 (1821).

21. 11 Serg. & Rawle at 400, 398, 403, 405-6.

22. 2 Del. (2 Harr.) at 555-56, 562, 567-69.

23. Harvey v. Boies, 1 Pen. & W. 12 (1829); Vidal v. Philadelphia, 43 U.S. 127, 198 (1844); Andrew v. The New York Bible and Common Prayer Book Society, 6 N. Y. Super. 156, 182 (1850). See also Lindenmuller v. People, 33 Barb. 548, 560 (1861) (maxim true only “in a qualified sense,” that blasphemy may be punished by state).

24. Sedgwick, Statutory and Constitutional Law, 17. For similar discussions, see Dwarris, A General Treatise, 559; Cooley, Thomas M., Blackstone's Commentaries, 2d ed. (Chicago: Callaghan, 1872), vol. 2, 331–32Google Scholar, n. 7; Tiedeman, Limitations of Police Power, 167-70.

25. Updegraph, 11 Serg. & Rawle at 399; State v. Mockus, 120 Me. 84 (1921).

26. Bell v. State, 31 Tenn. 41, 44 (1851); Goree v. State, 71 Ala. 7, 9 (1881); State v. Graham, 35 Tenn. 134 (1855); Ex parte Delaney, 43 Cal. 478 (1872).

27. See Ruggles, 8 Johns, at 294-96; Updegraph, 11 Serg. & Rawle at 400-3; Chandler, 2 Del. at 564-72.

28. 37 Mass. (20 Pick.) 206 (1838). Kneeland generated a large pamphlet literature at the time, much written by Kneeland, Abner himself, which has been collected by Leonard Levy and published as Blasphemy in Massachusetts: Freedom of Conscience and the Abner Kneeland Case, ed. Levy, Leonard W. (New York: Da Capo Press, 1973).Google Scholar For Levy's view of this “most important and colorful of all American blasphemy cases,” see also Blasphemy, 413-23 (the quote is at page 413), and The Law of the Commonwealth and Chief Justice Shaw (Cambridge: Harvard University Press, 1957), 43–58.Google Scholar See also Commager, Henry Steele, “The Blasphemy of Abner Kneeland,” New England Quarterly 8 (1935): 29.CrossRefGoogle Scholar

29. 37 Mass, at 217, 221.

30. City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob.) 508, 509, 521-24 (1846); Shover v. State, 10 Ark. 259,263 (1850); Lindenmuller v. People, 33 Barb. 548, 560-65 (1861). On popular support for and opposition to the Sunday laws of the period, see John, Richard R., “Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture,” Journal of the Early Republic 10 (1990): 517–67.CrossRefGoogle Scholar

31. 33 S.C.L. at 522, 524; 33 Barb, at 560; see also 10 Ark. at 263-64.

32. Specht v. Commonwealth, 8 Pa. 312 (1848); Ex pane Andrews, 18 Cal. 679 (1861). Andrews overruled Ex parte Newman, 9 Cal. 502 (1858), one of the rare nineteenth-century decisions (if not the only one) to find a Sunday law inconsistent with the religion clause of a state constitution. Justice Field dissented in Newman; he pointed out that in every other state to consider the question, “without exception, the constitutionality of the law has been affirmed.” Id. at 525. Three years later, by the time of Andrews, Field was the only member of the Newman panel left on the court. For more on these cases, see Uelmen, Gerald F., “The Know Nothing Justices on the California Supreme Court,” Western Legal History 2 (1989): 90, 101–2.Google Scholar

33. State v. Petit, 74 Minn. 376, 379 (1898); Moss v. State, 131 Tenn. 94, 110 (1914); Benjamin, 33 S.C.L. at 529; Specht, 8 Pa. at 323.

34. Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401, 432-52 (1867) (Read, J., concurring). For similar (if murkier) reasoning on a closely related issue, see Commonwealth v. Shipley, 35 Pa. C. 132(1908).

35. American Baseball Club, 290 Pa. at 141-43 (the quote is at 141). For another irrelevant citation of the maxim in this context, see Hudgins v. State, 22 Ala. App. 403,404 (1928).

36. Mohney v. Cook, 26 Pa. 342, 347, 349 (1855); Melvin v. Easley, 52 N.C. 356, 360-61 (1860).

37. 43 U.S. 127, 133 (1844); The Writings and Speeches of Daniel Webster (Boston: Little, Brown, 1903), vol. 11, 139.Google Scholar

38. 43 U.S. at 198, 199, 200. Leo Pfeffer asserts that in Vidal, “the Supreme Court ruled that the Christian religion is part of the common law of all the states in the Union.” See Pfeffer, “Madison's ‘Detached Memoranda’: Then and Now,” in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History, ed. Peterson, Merrill D. and Vaughan, Robert C. (Cambridge: Cambridge University Press, 1988), 283, 295.Google Scholar This is incorrect: Vidal only discussed the common law of Pennsylvania.

39. On the attention Vidal received at the time, see Swisher, Carl B., The Taney Period 1836–64 (New York: Macmillan, 1974), 217Google Scholar; Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown, 1937), vol. 2, 124–33Google Scholar; Ferguson, Robert A., “The Girard Will Case: Charity and Inheritance in the City of Brotherly Love,” in Philanthropy and American Society, ed. Salzman, Jack (New York: Center for American Culture Studies, 1987), 1–16.Google Scholar

40. 63 Pa. 465, 466, 469-70, 470-71, 471 (1870).

41. Church of the Holy Trinity v. United States, 143 U.S. 457, 471, 458, 462-65, 465-70, 470-71 (1892).

42. Commonwealth v. Sigman, 3 Pa. L.J. 252, 256 (Lehigh Cty. Quarter Sessions 1843); Snavely v. Booth, 36 Del. 378, 388 (Del. Super. 1935); Scranton Broadcasters, Inc. v. American Communications Assn., 48 Lackawanna Jurist 241, 245, 250 (1947). I have found only three later examples of purported reliance on the maxim in published opinions. In 1950, a New Jersey trial judge upheld the constitutionality of school prayer; his opinion contains a long excerpt from Holy Trinity, including the portion that quotes Updegraph, Ruggles, and Vidal. Doremus v. Board of Education, 7 N.J. Super. 442, 449 (1950). In 1955, a Superior Court panel in Pennsylvania cited the maxim in affirming a conviction for making obscene telephone calls. Commonwealth v. Mochan, 177 Pa. Super. 454, 458 (1955). And in 1958, when the same court upheld the constitutionality of a Sunday law, a dissenting judge mentioned the maxim only to suggest that it offered no support for the statute at issue. Commonwealth v. Taber, 188 Pa. Super. 415, 419 (1958) (Gunther, J., dissenting).

43. Works of James Wilson, vol. 2, 425 and n. 6. Story's comments were published first as Joseph Story, “Christianity a Part of the Common Law,” American Jurist 9 (1833): 346-48, and later in The Life and Letters of Joseph Story, ed. Story, William W. (Boston: Little, Brown, 1851), vol. 1, 431–33.Google Scholar

44. Bloom v. Richards, 2 Ohio St. 387, 391 (1853); Ex pane Newman, 9 Cal. 502, 513 (1858) (Burnett, J., concurring); Ex parte Andrews, 18 Cal. 679 (1861).

45. Swift, Laws of the State of Connecticut, vol. 2, 323; Ruggles, 8 Johns, at 296; Chandler, 2 Del. at 563; Tiedeman, Limitations of Police Power, 167; Cooley, Constitutional Limitations, 471. See Edwin S. Gaustad, “Religious Tests, Constitutions, and ‘Christian Nation,’” in Religion in a Revolutionary Age, ed. Hoffman, Ronald and Albert, Peter J. (Charlottesville: University Press of Virginia, 1994), 218–35.Google Scholar

46. Bell v. State, 31 Tenn. 41, 44 (1851); Shover v. State, 10 Ark. 259, 263 (1850); Commonwealth v. Shipley, 35 Pa. C. 132, 134 (1908).

47. The speech is reported in full in The Miscellaneous Writings of Joseph Story, ed. Story, William W. (Boston: Little, Brown, 1852), 503–48Google Scholar (the quoted material in the text is at 517; the emphasis is my addition).

48. Cooper, Thomas, A Treatise on the Law of Libel and the Liberty of the Press (1830; reprint, New York: Da Capo Press, 1970), 119Google Scholar; Specht v. Commonwealth, 8 Pa. 312, 315-16 (1848).

49. Hale v. Everett, 53 N.H. 1, 209 (1868) (Doe, J., dissenting). For more on Doe's 143-page dissent, see Reid, John Phillip, Chief Justice: The Judicial World of Charles Doe (Cambridge: Harvard University Press, 1967), 238–43.CrossRefGoogle Scholar

50. Langabier v. The Fairbury, Pontiac and Northwestern R.R. Co., 64 Ill. 243, 247 (1872); Ingersoll, Robert G., Trial of C. B. Reynolds for Blasphemy (New York: C. P. Farrell, 1888), 12.Google Scholar

51. Schroeder, Theodore, Law of Blasphemy: The Modern View Exhibited in Model Instructions to a Jury (New York: Free Speech League, 1919), 5–6Google Scholar; see also Schroeder, Theodore, Blasphemy and Free Speech (New York: Free Speech League, 1918), 355–56.Google Scholar

52. Lee, R. W., “The Law of Blasphemy,” Michigan Law Review 16 (1918): 149, 151CrossRefGoogle Scholar; Swancara, Frank, Obstruction of Justice by Religion (Denver: Courtright Publishing, 1936), 229Google Scholar; Ohio v. Woodville Appliance, 13 Ohio Op. 2d 46,48 (1960); Romeo v. Union Free School District No. 3, 368 N.Y.S.2d 726, 731 (Sup. 1975); Commonwealth v. Taber, 188 Pa. Super. 415, 422 (1958) (Gunther, J., dissenting).

53. Finke, Roger and Stark, Rodney, The Churching of America, 1776–1990 (New Brunswick: Rutgers University Press, 1992)Google Scholar; Hatch, Nathan O., The Democratization of American Christianity (New Haven: Yale University Press, 1989)Google Scholar; Post, Robert C., “Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment,” California Law Review 76 (1988): 297, 306–24.CrossRefGoogle Scholar One crude indicator of early movement in this direction is the gradual disestablishment of churches by state governments in the late eighteenth and early nineteenth centuries. See Levy, Leonard W., The Establishment Clause, 2d ed. (Chapel Hill: University of North Carolina Press, 1994), 27–78Google Scholar.

54. Miscellaneous Writings of Joseph Story, 517; City Council v. Benjamin, 33 S.C.L. 508, 521 (1846); Wylly v. Collins, 9 Ga. 223, 237 (1851); Pomeroy, John Norton, An Introduction to Municipal Law (New York: D. Appleton & Co., 1865), 193Google Scholar; Cooley, Constitutional Limitations, 472.

55. Updegraph, 11 Serg. & Rawle at 406; Writings and Speeches of Daniel Webster, vol. 11, 176 (emphasis in original); Mohney v. Cook, 26 Pa. 342, 347 (1855); Sedgwick, Statutory and Constitutional Law, 17-18 (1857). The only instance discovered of this argument having been made after the 1850s is in Aldrich, “Christian Religion and Common Law,” 26-29.

56. Kent, James, Commentaries on American Law, 2d ed. (New York: O. Halsted, 1832), vol. 1, 473Google Scholar; Ponceau, Peter S. Du, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (1824; reprint, New York: Arno Press, 1972), 91.Google Scholar

57. On the phrase's currency, see Chandler, 2 Del. at 562. For the phrase itself, see Chitty, Joseph, A Practical Treatise on Pleading (New York: R. M. M'dermut, 1809), vol. 1, 220.Google Scholar The analogy is inexact at its root—Chitty goes on to explain that the almanac is part of the law of the land because it has “been established by different statutes.” Ibid. But the statutes were English, while Chitty's phrase was nevertheless current among lawyers in Delaware, who most likely picked it up from one of Chitty's American editions.

58. Jefferson to Thomas Cooper, Feb. 10, 1814 (quoting an entry Jefferson says he made in his commonplace book “half a century ago”), The Writings of Thomas Jefferson (Washington: Thomas Jefferson Memorial Assn., 1905), vol. 14, 93.

59. Ernst, Daniel R., “Church-State Issues and the Law: 1607–1870,” in Church and State in America: A Bibliographical Guide: The Colonial and Early National Periods, ed. Wilson, John F. (Westport: Greenwood Press, 1986), 337–39.Google Scholar

60. Jefferson to Cooper, Feb. 10, 1814, Writings, 86-91; Jefferson to John Adams, Jan. 24, 1814, ibid., 73.

61. The letter is reprinted as Appendix III to Cooper, Law of Libel; the quoted material is at 182 and 184.

62. Thomas Jefferson, Reports of Cases Determined in the General Court of Virginia from 1730, to 1740; and from 1768, to 1772 (1829), p. vi, 137-42.

63. Cooper, Law of Libel, 120; Holyoake, George Jacob, The History of the Last Trial by Jury for Atheism in England: A Fragment of Autobiography (1851; reprint, New York: Arno Press, 1972), 54.Google Scholar

64. For Story's rebuttal to Jefferson, prompted by the 1824 publication of Jefferson's letter to Cartwright, see Story, “Christianity a Part of the Common Law”; Story to “Mr. Professor Everett,” Sept. 15, 1824, Life and Letters, 430; Miscellaneous Writings, 517 (the 1829 Harvard speech). Story mentioned Jefferson by name in the article and the letter; in the speech, he referred only to “the specious objection of one of our distinguished statesmen.” For another near-contemporary response to Jefferson, see State v. Chandler (whose full name, incidentally, was Thomas Jefferson Chandler), 2 Del. at 558. For twentieth-century support, see Dumbauld, Edward, Thomas Jefferson and the Law (Norman: University of Oklahoma Press, 1978), 76–82Google Scholar; Steiner, Franklin, Religious Treason in the American Republic (Chicago: American Rationalist Assn., 1927), 33Google Scholar; Levering v. Ennis (Superior Court, Baltimore, 1932), reported in American State Papers and Related Documents on Freedom in Religion, 4th rev. ed. (Washington: Religious Liberty Assn., 1949).Google Scholar For half-support, see Levy, Blasphemy, 409. For opposition, see Nokes, Crime of Blasphemy, 54-55.

65. Cartwright, John, The English Constitution Produced and Illustrated (London: R. Taylor, 1823), 391Google Scholar; Hale, 53 N.H. at 203; Cooley, Constitutional Limitations, 472.

66. Ringgold, James T., The Legal Sunday: Its History and Character (Battle Creek, Mich.: International Religious Liberty Assn., 1894), 135, 139Google Scholar; Levering v. Ennis (emphasis in original), American State Papers, 569-70.

67. Specht, 8 Pa. at 316; Andrew, 6 N.Y. Super, at 182; Hale, 53 N.H. at 202, 210 (Doe, C.J., dissenting) (quoting Henry Crabb Robinson's Diary [American ed., Boston: Fields, Osgood, 1869], vol. 1, 353).

68. Board of Education of the City of Cincinnati v. Minor, 23 Ohio St. 211, 247 (1872) (emphasis in original); see Barber, “Christianity and the Common Law,” 267; Ringgold, The Legal Sunday, 135.

69. Like most legal changes, this story is most familiar at the top. Compare Swift v. Tyson, 41 U.S. 1, 18 (1842), with Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The common law is not some brooding omnipresence in the sky but the articulate voice of some sovereign”); Black and White Taxicab and Transfer Co. v. Brown and Yellow Taxicab and Transfer Co., 276 U.S. 518, 533-34 (1928) (Holmes, J., dissenting); and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

70. At the very least, one finds in Austin the first systematic exposition widely read in the United States of these two points, that the common law is made, not discovered, by judges, Austin, John, Lectures on Jurisprudence, 3d rev. ed., ed. Campbell, Robert (London: J. Murray, 1869), vol. 2, 655Google Scholar, and that law implies government sanction, ibid., vol. 1, 92-94. On Austin's influence in the United States, see Cosgrove, Richard A., Our Lady the Common Law: An Anglo-American Legal Community, 1870–1930 (New York: New York University Press, 1987), 110–27.Google Scholar

71. See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment, “I am not so naive [nor do I think our forebears were] as to be unaware that judges in a real sense ‘make’ law. But they make it as judges make it, which is to say as though they were ‘finding’ it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be”).

72. To be precise, one of which space will permit discussion. Attributing the death of the maxim to broader changes in thought about religion and law naturally causes one to ask why those changes occurred, but intelligent answers to those questions, if I had them, would be far longer than this article.