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 common 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. Duryea (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 entertainment on Sunday, was refused.

The most celebrated case, involving a consideration of the relation of the law of Pennsylvania to Christianity, is Vidal v. Girard's Executors (1844), 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 1⁄2 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 carcely 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 Commonwealth (1824), 11 S. & R. (Pa.) 394.”

Cooley in his Constitutional Limitations (*472) remarks upon

this:

"It

may be doubted, however, if the punishment of blasphemy is based necessarily upon an admission of the divine origin or truth of the Christian religion, or incapable of being otherwise justified."

The case of Updegraph v. The Commonwealth (1824), 11 S. & R. (Pa.) 400, arose on an indictment for saying “That the Holy Scriptures were a fable: That they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies."" The utterance was in the course of a debate. The defendant was convicted and fined five shillings and costs. The Supreme Court sustained the conviction. The indictment was under an Act of Assembly whose provisions have been in force in the State since 1700 and now form part of its criminal law. (Act of 31 March 1860, $30, P. L. 392). The penalty is directed against whosoever "shall wilfully, premeditatedly, and despitefully blaspheme, or speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scriptures of Truth." The Court said,

“Christianity, general Christianity, is and always has been a part of the common law of Pennsylvania; *** with liberty of conscience to all men *** It is only the malicious reviler of Christianity who is punished * * * It is open,

public vilification of the religion of the country that is punished, * * * to preserve the peace of the country by an outward respect to the religion of the country *** If from a regard to decency and the good order of society, profane swearing, breach of the Sabbath, and blasphemy are punishable by civil magistrates, these are not punished as sins or offenses against God, but crimes injurious to, and having a malignant influence on, society."

By the side of this early utterance of the Supreme Court of Pennsylvania, should be placed the remarks of the Court, speaking by GIBSON, C. J., in Harvey v. Boies (1829), 1 P. & W. (Pa.) 12, 13:

"Christianity has been indefinitely said to be a part of the law of the land. The law undoubtedly avails itself of the obligations of Christianity as instruments to accomplish the purposes of justice. * * * Christianity is indeed recognized as the predominant religion of the country, and for that reason are not only its institutions, but the feelings of its professors guarded against insult from reviling or scoffing at its doctrines; so far it is the subject of special favor. But further the law does not protect it."

All the later utterances of the Court upon the subject have not been as guarded as those in these cases, so that there has been some doubt as to how far Christianity in fact is part of the law of Pennsylvania. But the more careful judgments of the Court have maintained the limitations of these early cases. In Mohney v. Cook (1855), 26 Pa. 342, 347, the Court in similar language to that used by Chief Justice GIBSON, declared that Christianity is part of the law, in that its customs, institutions and ethical principles are recognized and followed by the mass of the people and are therefore to be respected by the minority. Said LOWRIE, J.:

"The declaration that Christianity is part of the law of the land, is a summary description of an existing and very obvious condition of our institutions. We are a Christian people, in so far as we have entered into the spirit of Christian institutions, and become imbued with the sentiments and principles of Christianity; and we cannot be imbued with them, and yet prevent them from entering into and influencing, more or less all our social institutions, customs and relations, as well as all our individual modes of thinking and acting. It is involved in our social nature, that even those among us who reject Christianity, can not possibly get clear of its influence or reject those sentiments, customs and principles which it has spread among the people, so that, like the air we breathe, they have become the common stock of the whole country, and essential elements of its life. It is perfectly natural, therefore, that a Christian people should have laws to protect their day of rest from desecration. Regarding it as a day, necessarily and divinely set apart for rest from worldly enjoyments, and for the enjoyment of spiritual privi

leges, it is simply absurd to suppose that they would leave it without any legisla tive protection from the disorderly and the immoral."

Said SHARSWOOD, J., in Zeisweiss v. James (1870), 63 Pa. 465, 471:

"It is in entire consistency with this sacred guarantee of the rights of conscience and religious liberty, to hold that, even if Christianity is no part of the law of the land, it is the popular religion of the country, an insult to which would be indictable as directly tending to disturb the public peace. The laws and institutions of this State are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the Com

monwealth."

Some of the justices seem to have accepted the doctrine in a fuller sense than the above decisions warrant. For example, COULTER, J., in Brown v. Hummel (1847), 6 Pa. 86, and Specht v. Commonwealth (1848), 8 id. 312; STRONG, READ and AGNEW, JJ.,in Sparhawk v. Union Passenger Railway Company (1867), 54 id. 401. See also the opinion of ALLISON, P. J., in Granger v. Grubb (1870), 7 Phila. 350, 355

The opinion of the Court, by SHAW, C. J., in Commonwealth v. Kneeland (1838), 20 Pick. (Mass.) 206, shows that for some purposes Christianity is part of the law in Massachusetts.

State v. Chandler (1837), 2 Harr. (Del.) 553, was an indictment for blasphemy. Chief Justice CLAYTON examines the doctrine at length in the following language:

a current

"It is true, that the maxim of the English law that Christianity is a part of the common law' may be liable to misconstruction, and has been misunderstood. It is phrase among the special pleaders, that the almanac is a part of the law of the land. (Chitt. Pl 121, etc.) By this it is meant, that the courts will judicially notice the days of the week, month and other things, properly belonging to an aimanac, without pleading or proving them. * So too, we apprehend

*

*

*

*

every court in a civilized country is bound to notice in the same way, what is the prevailing religion of the people. If, in Delaware, the people should adopt the Jewish or Mahomedan religion, as they have an unquestionable right to do if they prefer it, the court is bound to notice it as their religion, and to respect it accord* The declarations of Lord HALE, Lord RAYMOND and others, pronounced Christianity to be parcel of the common law, are all to be taken in reference to the cases of blasphemy before them; and for the purpose of punishing such blasphemies as they condemned, they noticed that Christianity was the religion of England, and in this sense a part of the common law of the land. * It will be seen that, in our judgment of the Constitution and laws of

ingly. who

Delaware, the Christian religion is a part of those laws so far that blasphemy against it is punishable while the people prefer it as their religion and no longer."

Following some of the above authorities, Christianity has also been said to be part of the law of Arkansas-Shover v. State (1880), 5 Eng. 250; North Carolina—Melvin v. Easley (1860), 7 Jones (Law) 356, 367; South Carolina-Charleston v. Benjamin (1846), 2 Strob. 508; Missouri-State v. Ambs (1854), 20 Mo. 214, 216, in which case it was said that Christianity was part of the law in the sense that the Constitution was made by Christian men.

The text writers agree, either in denying altogether that Christianity is a part of the common law of the land in any legal sense, or in recognizing that it is part of the law only to the extent and in the manner above indicated. Perhaps the most lucid statement of the doctrine is that of Dr. Wharton in his work on Criminal Law. He says (Sec. 20):

"Christianity undoubtedly has affected the common law in the United States in the following important particulars: (1.) In most jurisdictions, we have adopted the principles of the canon law in relation to matrimony and succession. The rules which the English ecclesiastical courts imposed in this connection, we have, in a large measure, accepted as binding us; and in several States we have recognized as indictable, certain offenses, such as adultery and fornication, which in England can only be prosecuted in the ecclesiastical courts. (2.) We have also, adopting the ethical rules of Christianity, as distinguished from those of heathendom, made indictable breaches of domestic duty which were not criminally punishable by the old Roman law. (3.) Witnesses, unless they have conscientious scruples, or believe another form of oath more binding, are sworn as a rule on the Christian Bible. But beyond this we have not gone. We make blasphemy of Christianity indictable; but this is because such blasphemy is productive of a breach of the public peace, and not because it is an offense against God. We treat a disturbance of Christian worship as indictable, when such disturbance amounts to a private assault or to public disorder; but we give that same protection to non-Christian assemblies. And in no State does the government interfere to prosecute offenses consisting of a denial of Christian dogma, or a rejection of Christian sanctions. Nor in any State is Christianity in such sense part of the common law that the State can determine what are the dogmas of Christianity. That which is part of the common law can be changed by statute; but as the dogmas of Christianity are beyond the reach of statute, we must hold that they are not part of the common law of the land."

See also Sedgwick "Construction of Statutory and Constitutional Law," p. 14.

Cooley's Constitutional Limitations, p. 472.