UNITED STATES. In this country, where there is no
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Posted On: 08/10/2021 7:23:47 PM
UNITED STATES.
In this country, where there is no established church, but
where guarantees against an establishment and against religious
preferences are found in the Federal Constitution and in every
State Constitution, we would not expect to find a general
acquiescence in the earlier English view. The cases are
numerous where the maxim is broadly asserted upon the
authority of the English precedents. In most, if not all, of
these cases, however, the utterances are pure dicta. Many of
them show merely the rhetorical piety of the judiciary. There
being, strictly speaking, no common law of the Union, there
is no necessity for inquiring as to the interpretation of the
maxim as applied to the United States Government. It is
significant, however, that almost contemporaneous with the
adoption of the Federal Constitution, it was declared by the
Senate of the United States that the National Government was
not founded on the Christian religion. In the Treaty with
Tripoli ratified by the Senate in 1797 (8 U. S. Statutes at
Large 155), occurs this article:
" ART. XI. As the Government of the United States of America is not in any
sense founded on the Christian religion-as it has in itself no character of enmity
against the laws, religion or trapquility of Alusselmen-and as the said States have
never entered into any war or act of hostility against any Mahometan nation, it is
declared by the parties, that no pretext arising from religious opinions shall ever
produce an interruption of the harmony existing between the two countries."
Coming to the State Governments, it will be found that the
maxim has been altogether repudiated, as applied to their
common law, by the Supreme Courts of Ohio and Louisiana.
In Bloom v. Richards (1853), 2 Ohio St. 387, 390, 391, the
Supreme Court of Ohio speaking by Chief Justice THURMAN,
said:
"Neither Christianity, or any other system of religion, is a part of the law of the
State * * * Thus the Statute, upon which the defendant relies, prohibiting common
labor on the Sabbath, could not stand for a moment as a law of the State, if its
sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty."
This view was followed in the later Ohio cases, HMcGatrick
V. Wasolz (I855), 4 Ohio St. 566, and Board of Education of
Cincznnativ. Miinor, et. al.(I872),23 Ohio St. 211. Inthelatter
case, the Court held that Christianity was part of the law of the
land in the sense that the Constitution and laws were made by
a Christian people.
The Louisiana Supreme Court decided similarly to the Ohio
Courts, in State v. Bott (1879), 31 La. An. 663.
Most of the States, however, have recognized that, for some
purposes and in some sense at least, Christianity is a part of
their common law, the more general view being that it is part
of the common law no further than Lord CAMPELL declared it
to be part of the common law of England. Many loose utterances, as stated, will be found throughout the decisions, declaring the doctrine broadly, but the well considered judgments
practically establish the above qualification.
Taking up the more important decisions of the State Courts,
People v. Ruggles (I 8 Ii), 18 Johns. (N. Y.) 2 1o, was an indictment for blasphemy. It was decided that blasphemy against
God, and contumelious reproaches and profane ridicule of
Christ or the holy scriptures, were offences punishable at common law, whether uttered by words or writings. And it was
held that wantonly, wickedly and maliciously uttering the
following words: "Jesus Christ was a bastard and his mother
must be a whore," was a public offence and punishable by the
common law of New York. It was said by Chief Justice
KENT-
"The people of this State, in common with the people of this country, prefer the
general doctrines of Christianity as the rule of their faith and practice; and to
scandalize the Author of these doctrines, is not only, in a religious point of view,
extremely impious, but even in respect to the obligations due to society, is a gross violation of decency and good order. * * * * Christianity, in its enlarged
sense, as a religion revealed and taught in the Bible, is not unknown to our law.
The statute for preventing immorality consecrates the first day of the week as holy
time, and considers the violation of it as immoral." (Pp. 293-7.)
-In Andrew v. New York Bible and Prayer Book Society
(1850), 4 Sandf. i56, the New York Superior Court decided
that a legacy to the Bible Society was not a pious use, authorized by law. In the course of his opinion, Judge DUER, said:
"The maxim that Christianity is part and parcel of the common law, has been
frequently repeated by judges and text writers, but few have chosen to examine its
truth, or to attempt to explain its meaning. We have, however, the high
authority of Lord MANSFIELD and of his successor, the present Chief Justice of the
Queen's Bench [Lord CAMPBELL] for stating as its true and only sense, that the
law will not permit the essential truths of revealed religion to be ridiculed and
reviled. In other words, blasphemy is an indictable offence at common law.
(p. 182.)
People v. Hayman (I86o), 20 How. Pr. (N. Y.) 76, was decided
by the same Court, holding that the Sunday law which prohibited certain exhibitions and plays within the city and county of
New York, was constitutional, Judge HOFFMAN relying chiefly
on the ground that Sunday was a day of rest divinely ordained.
Lindenmuller v. The People (186I), 33 Barb. (N. Y.) 548, was a
case where the Supreme Court of New York sustained an indictment for giving theatrical exhibitions on Sunday, contrary to
the Sunday law. The decision supported the Sunday law on
the dual ground, (I) that the common law of the State recognized the institutions of Christianity to the extent that acts interfering with Christian worship and tending to disrespect of
the Christian religion might be restrained; (2) that the Sunday law was a valid police measure. The case of People v.
2Ruggles (supra).was relied on as authority for the first of these
positions and as justifying its application to the case in hand.
The history of the maxim that Christianity was part of the
common law of New York was examined. Said ALLEN, J.:
"It was conceded in the convention of 1821, that the Court in Peqole v'. Ruggles, did decide that the Christian religion was the law of the land, in the sense
that it was preferred over all other religions, and entitled to the iecognition and
protection of the temporal courts by the common law of the State. * * * *
Mr. Post proposed an amendment to obviate that decision, to the effect that the
judiciary should not declare any particular religion to be the law of the land. The
decision was vindicated as a just exponent of the Constitution and the relation of the Christian religion to the State; and the amendment was rejected. * * *
One class, including Chief Justice SPENCER and Mr. King, regarded Christianity
as a part of the commonf law adopted by the Constitution ; another class, in which
were Chancellor KENT and Mr. Van Buren, were of the opinion that the decision
was right, not because Christianity was established by law, but because Christianity
was in fact the religion of the country, the rule of our faith and practice, and the
basis of public morals. According to their views, as the recognized religion
of the country, ' the duties and injunctions of the Christian religion' were interwoven with the law of the land, and were part and parcel of the common law,
and ' maliciously to revile it is a public grievance, and as much so as any other
public outrage upon common decency and decorum.'" (Per CH. KENT in debate.)
The Court of Appeals, in Smith v. Wilcox (1862), 24 N. Y.
353, declared the Sunday statute to be in harmony with
the religion of the country, and the religious sentiment of the
public, and for the support and maintenance of public
morals and good order. "Its design is * * * to secure to
the day the outward respect and observance which is due
to it as the acknowledged Sabbath of the great mass of the
people, to protect the religion of the community from contempt and unseemly hindrances, and to its professors the liberty of quiet and undisturbed worship on the day set apart for
that purpose."
In Neuendorff v. Duryect (1877), 69 N. Y. 557, the doctrine
of Lindenmuller v. The People (supra) was followed, and a bill for
injunction against the police commissioners, to prevent them
from interfering with complainant's operatic and dramatic entertainmhent on Sunday, was refused.
The most celebrated case, involving a consideration of the
relation of the law of Pennsylvania to Christianity, is Vidal v.
Gira7'd's Execuors (I844), 2 How. (43 U. S.) 127. The
Supreme Court of the United States there decided- that the
will of Stephen Girard, in its prohibition of the employment
or admission within Girard College of clergymen, was not contrary to the law of Pennsylvania. Mr. Webster sought to
have the Court declare that Christianity was generally, and for
all purposes, part of the law of Pennsylvania, so that any indirect reflection upon it, even of an argumentative kind, such
as might be suggested by the will in question, was illegal and
against the policy of the Pennsylvania law. The Court
declined to take this view. Said Mr. Justice STORY, (p. 198):
"It is also said, and truly, that the Christian religion is a part of the common
law of Pennsylvania. But this proposition is to be received with its appropriate
qualifications, and in connection with the bill of rights of that State, as found in its
constitution of government. The Constitution of 1790 (and the like provision
will in substance, be found in the Constitution of 1776, and in the existing Constitution of 1838,) [and in the Constitution of 1874, Art. I 3], expressly declares,
' That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled
to attend, erect, or support any place of worship, or to maintain any ministry
against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law
to any religious establishments or modes of worship.' Language more comprehensive, for the complete protection of every variety of religious opinion, could
scarcely be used, and it must have been intended to extend equally to all sects,
whether they believed in Christianity or not, and whether they were Jews or infidels. So that we are compelled to admit that although Christianity be a part of
the common law of the State, yet it is so in this qualified sense, that its divine
origin and truth are admitted, and therefore it is not to be maliciously and openly
reviled and blasphemed against, to the annoyance of believers or the injury of the
public. Such was the doctrine of the Supreme Court of Pennsylvania in
Updegraph v. The Conimonwealth (1824), II S. & R. (Pa.) 394."
read more here
https://scholarship.law.upenn.edu/cgi/viewcon...law_review
In this country, where there is no established church, but
where guarantees against an establishment and against religious
preferences are found in the Federal Constitution and in every
State Constitution, we would not expect to find a general
acquiescence in the earlier English view. The cases are
numerous where the maxim is broadly asserted upon the
authority of the English precedents. In most, if not all, of
these cases, however, the utterances are pure dicta. Many of
them show merely the rhetorical piety of the judiciary. There
being, strictly speaking, no common law of the Union, there
is no necessity for inquiring as to the interpretation of the
maxim as applied to the United States Government. It is
significant, however, that almost contemporaneous with the
adoption of the Federal Constitution, it was declared by the
Senate of the United States that the National Government was
not founded on the Christian religion. In the Treaty with
Tripoli ratified by the Senate in 1797 (8 U. S. Statutes at
Large 155), occurs this article:
" ART. XI. As the Government of the United States of America is not in any
sense founded on the Christian religion-as it has in itself no character of enmity
against the laws, religion or trapquility of Alusselmen-and as the said States have
never entered into any war or act of hostility against any Mahometan nation, it is
declared by the parties, that no pretext arising from religious opinions shall ever
produce an interruption of the harmony existing between the two countries."
Coming to the State Governments, it will be found that the
maxim has been altogether repudiated, as applied to their
common law, by the Supreme Courts of Ohio and Louisiana.
In Bloom v. Richards (1853), 2 Ohio St. 387, 390, 391, the
Supreme Court of Ohio speaking by Chief Justice THURMAN,
said:
"Neither Christianity, or any other system of religion, is a part of the law of the
State * * * Thus the Statute, upon which the defendant relies, prohibiting common
labor on the Sabbath, could not stand for a moment as a law of the State, if its
sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty."
This view was followed in the later Ohio cases, HMcGatrick
V. Wasolz (I855), 4 Ohio St. 566, and Board of Education of
Cincznnativ. Miinor, et. al.(I872),23 Ohio St. 211. Inthelatter
case, the Court held that Christianity was part of the law of the
land in the sense that the Constitution and laws were made by
a Christian people.
The Louisiana Supreme Court decided similarly to the Ohio
Courts, in State v. Bott (1879), 31 La. An. 663.
Most of the States, however, have recognized that, for some
purposes and in some sense at least, Christianity is a part of
their common law, the more general view being that it is part
of the common law no further than Lord CAMPELL declared it
to be part of the common law of England. Many loose utterances, as stated, will be found throughout the decisions, declaring the doctrine broadly, but the well considered judgments
practically establish the above qualification.
Taking up the more important decisions of the State Courts,
People v. Ruggles (I 8 Ii), 18 Johns. (N. Y.) 2 1o, was an indictment for blasphemy. It was decided that blasphemy against
God, and contumelious reproaches and profane ridicule of
Christ or the holy scriptures, were offences punishable at common law, whether uttered by words or writings. And it was
held that wantonly, wickedly and maliciously uttering the
following words: "Jesus Christ was a bastard and his mother
must be a whore," was a public offence and punishable by the
common law of New York. It was said by Chief Justice
KENT-
"The people of this State, in common with the people of this country, prefer the
general doctrines of Christianity as the rule of their faith and practice; and to
scandalize the Author of these doctrines, is not only, in a religious point of view,
extremely impious, but even in respect to the obligations due to society, is a gross violation of decency and good order. * * * * Christianity, in its enlarged
sense, as a religion revealed and taught in the Bible, is not unknown to our law.
The statute for preventing immorality consecrates the first day of the week as holy
time, and considers the violation of it as immoral." (Pp. 293-7.)
-In Andrew v. New York Bible and Prayer Book Society
(1850), 4 Sandf. i56, the New York Superior Court decided
that a legacy to the Bible Society was not a pious use, authorized by law. In the course of his opinion, Judge DUER, said:
"The maxim that Christianity is part and parcel of the common law, has been
frequently repeated by judges and text writers, but few have chosen to examine its
truth, or to attempt to explain its meaning. We have, however, the high
authority of Lord MANSFIELD and of his successor, the present Chief Justice of the
Queen's Bench [Lord CAMPBELL] for stating as its true and only sense, that the
law will not permit the essential truths of revealed religion to be ridiculed and
reviled. In other words, blasphemy is an indictable offence at common law.
(p. 182.)
People v. Hayman (I86o), 20 How. Pr. (N. Y.) 76, was decided
by the same Court, holding that the Sunday law which prohibited certain exhibitions and plays within the city and county of
New York, was constitutional, Judge HOFFMAN relying chiefly
on the ground that Sunday was a day of rest divinely ordained.
Lindenmuller v. The People (186I), 33 Barb. (N. Y.) 548, was a
case where the Supreme Court of New York sustained an indictment for giving theatrical exhibitions on Sunday, contrary to
the Sunday law. The decision supported the Sunday law on
the dual ground, (I) that the common law of the State recognized the institutions of Christianity to the extent that acts interfering with Christian worship and tending to disrespect of
the Christian religion might be restrained; (2) that the Sunday law was a valid police measure. The case of People v.
2Ruggles (supra).was relied on as authority for the first of these
positions and as justifying its application to the case in hand.
The history of the maxim that Christianity was part of the
common law of New York was examined. Said ALLEN, J.:
"It was conceded in the convention of 1821, that the Court in Peqole v'. Ruggles, did decide that the Christian religion was the law of the land, in the sense
that it was preferred over all other religions, and entitled to the iecognition and
protection of the temporal courts by the common law of the State. * * * *
Mr. Post proposed an amendment to obviate that decision, to the effect that the
judiciary should not declare any particular religion to be the law of the land. The
decision was vindicated as a just exponent of the Constitution and the relation of the Christian religion to the State; and the amendment was rejected. * * *
One class, including Chief Justice SPENCER and Mr. King, regarded Christianity
as a part of the commonf law adopted by the Constitution ; another class, in which
were Chancellor KENT and Mr. Van Buren, were of the opinion that the decision
was right, not because Christianity was established by law, but because Christianity
was in fact the religion of the country, the rule of our faith and practice, and the
basis of public morals. According to their views, as the recognized religion
of the country, ' the duties and injunctions of the Christian religion' were interwoven with the law of the land, and were part and parcel of the common law,
and ' maliciously to revile it is a public grievance, and as much so as any other
public outrage upon common decency and decorum.'" (Per CH. KENT in debate.)
The Court of Appeals, in Smith v. Wilcox (1862), 24 N. Y.
353, declared the Sunday statute to be in harmony with
the religion of the country, and the religious sentiment of the
public, and for the support and maintenance of public
morals and good order. "Its design is * * * to secure to
the day the outward respect and observance which is due
to it as the acknowledged Sabbath of the great mass of the
people, to protect the religion of the community from contempt and unseemly hindrances, and to its professors the liberty of quiet and undisturbed worship on the day set apart for
that purpose."
In Neuendorff v. Duryect (1877), 69 N. Y. 557, the doctrine
of Lindenmuller v. The People (supra) was followed, and a bill for
injunction against the police commissioners, to prevent them
from interfering with complainant's operatic and dramatic entertainmhent on Sunday, was refused.
The most celebrated case, involving a consideration of the
relation of the law of Pennsylvania to Christianity, is Vidal v.
Gira7'd's Execuors (I844), 2 How. (43 U. S.) 127. The
Supreme Court of the United States there decided- that the
will of Stephen Girard, in its prohibition of the employment
or admission within Girard College of clergymen, was not contrary to the law of Pennsylvania. Mr. Webster sought to
have the Court declare that Christianity was generally, and for
all purposes, part of the law of Pennsylvania, so that any indirect reflection upon it, even of an argumentative kind, such
as might be suggested by the will in question, was illegal and
against the policy of the Pennsylvania law. The Court
declined to take this view. Said Mr. Justice STORY, (p. 198):
"It is also said, and truly, that the Christian religion is a part of the common
law of Pennsylvania. But this proposition is to be received with its appropriate
qualifications, and in connection with the bill of rights of that State, as found in its
constitution of government. The Constitution of 1790 (and the like provision
will in substance, be found in the Constitution of 1776, and in the existing Constitution of 1838,) [and in the Constitution of 1874, Art. I 3], expressly declares,
' That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled
to attend, erect, or support any place of worship, or to maintain any ministry
against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law
to any religious establishments or modes of worship.' Language more comprehensive, for the complete protection of every variety of religious opinion, could
scarcely be used, and it must have been intended to extend equally to all sects,
whether they believed in Christianity or not, and whether they were Jews or infidels. So that we are compelled to admit that although Christianity be a part of
the common law of the State, yet it is so in this qualified sense, that its divine
origin and truth are admitted, and therefore it is not to be maliciously and openly
reviled and blasphemed against, to the annoyance of believers or the injury of the
public. Such was the doctrine of the Supreme Court of Pennsylvania in
Updegraph v. The Conimonwealth (1824), II S. & R. (Pa.) 394."
read more here
https://scholarship.law.upenn.edu/cgi/viewcon...law_review
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