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The Old Testament, The New Testament, and the Last Will and Testament
Christianity in American Law


Maybe you've seen the article that should go here. Send us the link Or send us the book or journal article and we'll plagiarize it like all our other pages.

Here's what it says:

  • Justice Brewer, in his opinion for the Supreme Court in Holy Trinity v. United States (1892), noted the prevalence of religious terminology in wills.
  • Secularists have asserted that Justice Brewer didn't know what he was talking about.
  • As usual, it is the Secular Humanists who are either ignorant or deceptive.

Until you send us this article, readers of this page will have to be content with the following dialogue on American OnLine's "Separation of Church and State" Discussion Board.

Subject: Christian Wills
To: Separation of Church & State
Date: 4/21/99

In article <19990419015136.22581.00002321@ng146.aol.com> edarr1776@aol.com (EDarr1776) writes:

>Justice Brewer claimed that, by law, wills in the U.S. made mention of God,
>or somesuch.

No, his argument at this point was based on custom rather than laws, (although he cited both). Here is the paragraph:

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

[143 U.S. 457, 471]

>I noted: >>Fifth, wills in 1892 and wills now are not prefaced
>with religious lines such as Brewer suggested. Where in the world did he get
>that? <<<

He might have gotten it from our nation's Treaty with Great Britian, Concluded At Paris, September 3, 1783; Ratified By Congress, January 14, 1784; Proclaimed, January 14, 1784, which ended the War for Independence, and which begins,

IN the name of the Most Holy and Undivided Trinity.

(Treaty With Great Britain, Harvard Classics (1910), Vol.43, p.185)

>Kevin said: >>My assumption is that Justice Brewer and the justices who
>signed on
>to his opinion were aware of what the law was in 1892, and you are not.
>Certainly not without your posting some facts.>>
>You assume wrong. I've checked the law, I've checked the wills. Just for
>good measure, I had the Library of Congress assemble about 50 representative
>wills of prominent people from the District of Columbia who died in 1891 or
>1892. Far more than a majority of them lacked the language Brewer claimed
>was in all of them.

But some of them did include that language. Many more at the time the Constitution was ratified contained the language Brewer spoke of. And I suppose that it's "just too bad" that your buddy at the Library of Congress will not extend that same courtesy to any readers of this Board -- especially Theocrats who want to verify your claim -- and so we're all going to just have to take your word for it.

Perhaps Justice Brewer was thinking about statements in the wills of the Founding Fathers, such as these:

First and principally, I commit my Soul unto Almighty God.

To the eternal and only true God be all honor and glory now and forever. Amen!

Principally and first of all, I recommend my soul to that Almighty Being who gave it, and my body I commit to the dust relying upon the merits of Jesus Christ for a pardon of all my sins.

My soul I resign into the hands of my Almighty Creator, whose tender mercies are all over His works, who hateth nothing that He hath made, and to the justice and wisdom of whose dispensations I willingly and cheerfully submit, humbly hoping from His unbounded mercy and benevolence, through the merits of my blessed Savior, a remission of my sins.

Rendering thanks to my Creator for my existence and station among His works, for my birth in a country enlightened by the Gospel and enjoying freedom, and for all His other kindnessess, to Him I resign myself, humbly confiding in His goodness and in His mercy through Jesus Christ for the events of eternity.

l resign my soul into the hands of the Almighty who gave it in humble hopes of his mercy through our Savior Jesus Christ. 

[T]hanks be given unto Almighty God therefore, and knowing that it is appointed for all men once to die and after that the judgment, [Hebrews 9:27] . . .  principally, I give and recommend my soul into the hands of Almighty God who gave it and my body to the earth to be buried in a decent and Christian like manner . . . to receive the same again at the general resurrection by the mighty power of God.

This is all the inheritance I can give to my dear family. The religion of Christ can give them one which will make them rich indeed

Unto Him who is the author and giver of all good, I render sincere and humble thanks for His manifold and unmerited blessings, and especially for our redemption and salvation by his beloved Son.... Blessed be his holy name.

With an awful reverence to the Great Almighty God, Creator of all mankind, being sick and weak in body but of sound mind and memory, thanks be given to Almighty Cod for the Same. JOHN MORTON, SIGNER OF THE DECLARATION

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.

Firstly I commit my Soul into the hands of God, its great and benevolent author, JOSIAH BARTLETT, SIGNER OF THE DECLARATION

And as my children will have frequent occasion of perusing this instrument and may probably be particularly impressed with the last words of their father, I think it proper here not only to subscribe to the entire belief of the great and leading doctrines of the Christian religion, such as the being of God, the universal defection and depravity of human nature, the divinity of the person and the completeness of the redemption purchased by the blessed Saviour, the necessity of the operations of the Divine Spirit; of Divine faith accompanied with an habitual virtuous life, and the universality of the Divine Providence: but also, in the bowels of a father's affection, to exhort and charge them that the fear of the Lord is the beginning of wisdom, that the way of life held up in the Christian system is calculated for the most complete happiness that an be enjoyed in this mortal state.

Perhaps Justice Brewer was reflecting on the fact that over the nearly half century he served his country on the bench he had seen a marked decline in the Christian faith in America, including statements like the Founders had made in their wills, and he hoped by his opinion in Holy Trinity and his university lectures which made up his book, The United States: A Christian Nation, to reverse that trend.

Justice Brewer surely knew what Stanford Law School Professor Lawrence Friedman stated in his History of American Law:

Shakespeare's will begins with the words: "In the name of God Amen . . . I commend my soul into the hands of God my creator . . . and my body to the earth whereof it is made." The will of Henry Simpson, executed in Maine in 1648, begins as follows: "In the name of God Amen. I, Henry Simpson . . . Doe make this my last will and testament . . . . First commending my soule to God that gave it . . . And my body to Christian buriall."
Thousands of colonial wills have survived. They shed a great deal of light on colonial society.
(NY: Simon & Schuster, 1973, p. 59)

> >I can only conclude that Brewer's practice at the time did not include wills,
>though he certainly should have seen many of them during his days as a notary
>in Kansas.

To say nothing of his tenure as Judge of the Probate and Criminal Court, and his service for 46 years in various judicial capacities, including the First Judicial District of Kansas, the Kansas Supreme Court (1870-1884) and the 8th Circuit Court of Appeals.

>Wills are legal documents, not religious ones.

Once again, we are forced to take Ed's word for it, for he never gives us any footnotes.

Webster (1829) defines "will" as:

8. Testament; the disposition of a man's estate, to take effect after his death. Wills are written, or nuncupative, that is, verbal. Blackstone.

Black's Law Dictionary (4th ed.) cites the case of Occidental Life Ins.
Co. v. Powers
, 114 A.L.R. 531 to establish the fact that

The common usage the world over is to employ the words "will,"
"testament," and "last will and testament" as exactly synonymous.

Our Bibles contain two parts: the "Old Testament" and the "New Testament." They contain the disposition of God's estate to those who have been adopted into His Household. That the "will" was religious long before it was simply "legal" (i.e., secular) is attested by Blackstone, well known for his influence on the Founding Fathers (as evidenced by their own wills, above, and other examples of their laws based on Biblical revelation):

Antiquity of Wills. -- Testaments are of very high antiquity. We find them in use among the ancient Hebrews. . . . But (to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings, [Gen. c. 48 {sic.: should be "l"}] wherein Jacob bequeaths to his son Joseph a portion of his inheritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned to them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance.
A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore, also, in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For, we find the old patriarch Abraham expressly declaring, that "since God had given him no seed, his steward Eliezer, one born in his house, was his heir." [Gen. xv, 3.]

I don't have my old law school text on wills, otherwise I'm sure I could quote more on the religious origin of the will/testament.

Don't substitute Ed's wishful thinking for facts.

>Brewer should have known
>this, apparently didn't, and that calls into question much of the other
>bluster he offers.

Talk about "bluster." Ed's footnoteless assertions would make Brewer and Blackstone turn over in their graves.


Get the facts, Ed.

Kevin C.
The Ten Commandments in American History

And they shall beat their swords into plowshares
and sit under their Vine & Fig Tree.
Micah 4:1-7

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