Where does Roy Moore think that common law came from?

In another post, I posted that common law stated that when a woman married she gave her unretractable consent to sex "any time he chooses, no matter how far the marriage relationship has deteriorated between them."  Therefore no matter if a husband forced himself upon his wife, this was not rape under common law.  Spousal rape was impossible under common law.  In 1978 only three states had outlawed spousal rape.  By 1993 all states had outlawed spousal rape.

How can one logically defend the result – that a husband has an unbridled right, protected by law, to force himself sexually upon her at any time he chooses, no matter how far the marriage relationship has deteriorated between them. ~ Judge Scalera[1] 

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract. ~ Chief Justice of England Matthew Hale - History of the Pleas of the Crown - 1736[2]

In light of these recent postings, I thought it would be interesting to note how Former Alabama Chief Justice Roy Moore in Ex parte H.H. In re D.H. v. H.H.  Here is the background of the case.

The mother and father, who both lived in Los Angeles, California, were divorced in November 1992.   They were awarded joint legal custody of their three minor children, with the mother receiving primary physical custody.   In 1996, after the mother had begun a homosexual relationship, she petitioned a California court for a custody modification, asking that the father, who had since moved to Alabama, be awarded physical custody of the children.   The California court granted the mother's petition, and the children moved to Alabama.   In February 1999, however, the mother filed in a California court another petition to modify custody, this time requesting that physical custody of the children be returned to her.   In April 1999, the father filed a complaint in the Circuit Court of Jefferson County, Alabama, requesting that the case be transferred to Alabama.   The Jefferson Circuit Court granted the relief requested.   The case was transferred and jurisdiction was vested in Alabama, the current home state of all three children.[3]

The Alabama Supreme Court ruled that there was not enough evidence of abuse and the father only practiced excessive discipline.  In accordance to Alabama Law, the court ruled that the mothers lesbian behavior would have devastating effects on the children.  Therefore the court could not grant physical custody of children to a lesbian.  Moore wrote a lengthy concurrence in the opinion where he dwelt a lot on common law.  I thought it would be interesting to post the relevant portions.  

Natural law forms the basis of the common law.7  Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures: 

“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures.   These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.” 8

1 William Blackstone, Commentaries 42.   

Blackstone's Commentaries explain that because our reason is full of error, the most certain way to ascertain the law of nature is through direct revelation.   The ultimate importance of this law and its influence upon our law cannot be understated. 

“Upon these two foundations, the law of nature and the law of revelation, depend all human laws;  that is to say, no human laws should be suffered to contradict these.   There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty;  but which are found necessary for the benefit of society to be restrained within certain limits.   And herein it is that human laws have their greatest force and efficacy;  for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former.” 

1 Blackstone, Commentaries 42. 

There are impeccable American sources for the above proposition.   James Wilson, Associate Justice on the first United States Supreme Court and signer of both the Declaration of Independence and the United States Constitution, said: 

“Human law must rest its authority ultimately upon the authority of that law which is divine․ Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants.   Indeed, these two sciences run into each other.” 

James Wilson, “Of the General Principles of Law and Obligation,” in 1 The Works of the Honourable James Wilson, 104-06 (Bird Wilson ed., Bronson and Chauncey 1804).   John Jay, first Chief Justice of the United States Supreme Court and coauthor of the Federalist Papers, declared: 

“[N]o sovereign ought to permit those who are under his Command to violate the precepts of the Law of Nature, which forbids all Injuries․” 

“John Jay's Charge to the Grand Jury of the Circuit Court for the District of Virginia, May 22, 1793, Richmond, Virginia.”   2 The Documentary History of the Supreme Court of the United States, 1789-1800, at 386 (Maeva Marcus, ed., Columbia University Press 1988). 

Our own Declaration of Independence refers to “the laws of nature and of nature's God”: 

“When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” 

(Emphasis added.)   It would be an odd logic to assert that the American colonies could use the law of God “to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them,” but not to decide the fundamental basis of their laws.[3]

So according to Moore common law is natural law plus the scriptures.  This is where this idea of unretractable consent comes, common law. Unretractable consent is rooted in natural law and the scriptures.  With all the talk about "sharia law", until twenty years ago, common law (natural law + the Bible) dictated in this country that women could be raped by their spouses.

As I wrote earlier the question of "sharia law" in this case is not a new thing, but an issue of return.  This was legal across the country decades ago.  Once we have tasted retractable consent, I do not think that we will return to unretractable consent through Christianity or Islam.