38. NO. II. See § 67

The Traditions of the Elders were unwritten ordinances of indefinite antiquity, the principal of which, as the Pharisees alleged, were delivered to Moses in the mount, and all of which were transmitted through the High Priests and Prophets, down to the members of the great Sanhedrim in their own times; and from these, as the Jews say, they were handed down to Gamaliel, and ultimately to Rabbi Jehudah, by whom they were digested and committed to writing, toward the close of the second century. This collection is termed the Mishna; and in many cases it is esteemed among the Jews as of higher authority than the law itself. In like manner, there are said to be many Christians, at the present day, who receive ancient traditionary usages and opinions as authoritative exponents of Christian doctrine. They say that the preached gospel was before the written gospel; and that the testimony of those who heard it is entitled to equal credit with the written evidence of the Evangelists; especially as the latter is but a brief record, while the oral preaching was a more full and copious announcement of the glad tidings.

These traditions, both of the Jewish and the Christian Church, seem to stand in pari ratione, the arguments in favor of the admissibility and effect of the one, applying with the same force, in favor of the other. All these arguments may be resolved into two grounds, namely, contemporaneous practice subsequently and uniformly continued; and contemporaneous declarations, as part of the res gestio, faithfully transmitted to succeeding times. It is alleged that those to whom the law of God was first announced, best knew its precise import and meaning, and that therefore their interpretation and practice, coming down concurrently with the law itself, is equally obligatory.

But this argument assumes what cannot be admitted; for it still remains to be shown that those who first heard the law, when orally announced, had any better means of understanding it than those to whom the same words were afterwards read. The Ten Commandments were spoken in the hearing of Aaron and all the congregation of Israel; immediately after which they made and worshipped a golden calf. Surely this will not be adduced as a valid contemporaneous exposition of the second commandment. The error of the argument lies in the nature of the subject. The human doctrine of contemporaneous exposition is applicable only to human laws and the transactions of men, as equals, and not to the laws of God. Among men, when their own language is doubtful and ambiguous, their own practice is admissible, to expound it; because both the language and the practice are but the outward and visible signs of the meaning and intention of one and the same mind and will, which inward meaning and intention is the thing sought after. It is on the same ground, that where a statute, capable of divers interpretations, has uniformly been acted upon in a certain way, this is held a sufficient exposition of its true intent. In both cases it is the conduct of the parties themselves which is admitted to interpret their own language; expressed, in cases of contract, by themselves in person, and in statutes, through the medium of the legislators, who were their agents and representatives; and in both cases, it is merely the interpretation of what a man says, by what he does. But this rule has never been applied, in the law, to the language of any other person than the party himself; never, to the command or direction of his superior or employer. And even the language of the parties, when it is contained in a sealed instrument, is at this day held incapable of being expounded by their actions, on account of the greater solemnity of the instrument. See Baynham v. Guy's Hospital, 3 Vesey's Rep. 295. Eaton v. Lyon, Ibid. 690, 694. The practice of men, therefore, can be no just exponent of the law of God. If they have mistaken the meaning of his command from the beginning, the act of contravention remains a sin in the last transgressor, as well as the first; for the word of God cannot be changed or affected by the gloss of human interpretation.

The other ground, namely, that the testimony of those who heard Jesus and his apostles preach, is of equal authority with the Scriptures, being contemporaneous declarations, and parts of the res gesta, and therefore admissible in aid of the exposition of the written word, is equally inconsistent with the sound and settled rules of law respecting writings. When a party has deliberately committed his intention and meaning to writing, the law regards the writing as the sole repository of his mind and intention, and does not admit any oral testimony to alter, add to, or otherwise affect it. The reasons for this rule are two; first, because the writing is the more solemn act, by the party himself, designed to prevent mistake, and to remain as the perpetual memorial of his intention; and, secondly, because of the great uncertainty and weakness of any secondary evidence. For no one can tell whether the by-standers heard precisely what was said, nor whether they heard it all, nor whether they continued to remember it with accuracy until the time when they wrote it down or communicated it to those who wrote it; to say nothing of the danger of their mixing up the language of the speaker with what was said by others, or with their own favorite theories. And where the witnesses were not the original auditors of what was said, no one knows how much the truth may have suffered from the many channels through which it has passed, in coming from the first speaker to the last writer or witness. On all these accounts, the law rejects oral testimony of what the parties said, in regard to anything that has already been solemnly committed to writing by the parties themselves, and rejects the secondary evidence of hearsay, when evidence of an higher degree, as, for example, a written declaration of the party, can be obtained.

Now, inasmuch as the writings of the Evangelists and Apostles were penned under the inspiration of the Holy Spirit, why should not the documentary evidence of the Gospel, thus drawn up by them, be treated with at least as much respect, as other written documents? If they were inspired to write down those great truths for a perpetual memorial to after ages, then this record is the primary evidence of those truths. It is the word of God, penned by his own dictation, and sealed, as it were, with his own seal. If it were a man's word and will, thus solemnly written, no verbal or secondary evidence could be admitted, by the common law, to explain, add to, or vary it; nothing could be engrafted upon it; nor could any person be admitted to testify what he heard the party say, in regard to what was written. The courts would at once reject all such attempts, and confine themselves strictly to the writing before them, the only inquiry being as to the meaning of the language contained in that document, and not as to what the party may elsewhere have spoken. The law presumes that the writing alone is the source to which he intended that resort should be had, in order to ascertain his meaning. But by calling in the fathers, with their traditions, to prove what Christ and his Apostles taught, beyond what is solemnly recorded in the Scriptures, the principle of this plain and sound rule of law is violated; resort is had to secondary evidence of the truths of our religion, when the primary evidence is already at hand; and the pure fountain is deserted for the muddy stream.