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posed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the grand Lama; and for this plain reason, that the case assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors. Besides, the offence is crimen malitia, and the imputation of malice could not be inferred from any invectives upon superstitions equally false and unknown. We are not to be restrained from animadversion upon offences against public decency, like those committed by Sir Charles Sedley, (1 Sid., 168,) or by one Rollo, (Sayer, 158,) merely because there may be savage tribes, and perhaps semi-barbarous nations, whose sense of shame would not be affected by what we should consider the most audacious outrages upon decorum. It is sufficient that the common law checks upon words and actions, dangerous to the public welfare, apply to our case, and are suited to the condition of this and every other people whose manners are refined, and whose morals have been elevated and inspired with a more enlarged benevolence by means of the christian religion.

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Though the constitution has discarded religious establishments, it does not forbid judicial cognizance of those offences against religion and morality which have no reference to any such establishment, or to any particular form of government, but are punishable because they strike at the root of moral obligation, and weaken the security of the social ties. The object of the 38th article of the constitution was to guard against spiritual oppression and intolerance,' by declaring that 'the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should for ever thereafter be allowed within this state, to all mankind.' This declaration, (noble and magnanimous as it is when duly understood), never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations, incident to a religious establishment. To construe it as breaking down the common law barriers against licentious, wanton, and impious attacks upon christianity itself, would be an enormous perversion of its meaning. The proviso guards the article from such dangerous latitude of construction when it declares, that 'the liberty of conscience hereby granted, shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of this state.' The preamble and this proviso are a species of commentary upon the meaning of the article, and they sufficiently show that the framers of the constitution intended only to banish test oaths, disabilities and the burdens, and sometimes the oppressions, of church establishments; and to secure to the people of this state, freedom from coercion, and an equality of right, on the subject of religion. This was no doubt the consummation of their wishes. It was all that reasonable minds could require, and it had long been a favorite object, on both sides of the Atlantic, with some of the most enlightened friends to the rights of mankind, whose indignation had been aroused by infringements of the liberty of conscience, and whose zeal was inflamed in the pursuit of its enjoyment. That this was the meaning of the constitution is further confirmed by a paragraph in a preceding article,

which specially provides that such parts of the common law as might be construed to establish or maintain any particular denomination of christians, or their ministers,' were thereby abrogated.

"The legislative exposition of the constitution is conformable to this view of it. 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 (Laws, vol. 1, 224. R. S. 675, s. 69, et seq.) consecrates the first day of the week, as holy time, and considers the violation of it as immoral. This was only the continuation, in substance, of a law of the colony which declared, that the profanation of the Lord's day was 'the great scandal of the christian faith.' The act concerning oaths (Laws, vol. 1, p. 405. [2 R. S. 407, s. 82,]) recognises the common law mode of administering an oath 'by laying the hand on and kissing the gospels.' Surely, then, we are bound to conclude that wicked and malicious words, writings and actions which go to vilify those gospels, continue, as at common law, to be an offence against the public peace and safety. They are inconsistent with the reverence due to the administration of an oath, and among their other evil consequences, they tend to lessen, in the public mind, its religious sanction.

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The court are accordingly of opinion that the judgment below must be affirmed.

"Judgment affirmed.”

DOCUMENT XI.

The Constitutionality of Sunday Laws.

Linden

Decision of the Supreme Court of New York, February 4, 1861. muller vs. the People. The opinion was delivered by Judge J. Allen. From " Reports of Cases in Law and Equity determined in the Supreme Court of the State of New York. By Oliver L. Barbour, LL.D." Albany, vol. xxxiii., 1861. Pages 560-578.

"The constitutionality of the law under which Lindenmuller1 was indicted and convicted does not depend upon the question whether or not Christianity is a part of the common law of this State. Were that the only question involved, it would not be difficult to show that it was so, in a qualified sense-not to the extent that would authorize a compulsory conformity, in faith and practice, to the creed and formula of worship of any sect or denomination, or even in those matters of doctrine and worship common to all denominations styling themselves Christian, but to the extent that entitles the Christian religion and its ordinances to respect and protection, as the acknowledged religion of the people. Individual consciences may not be enforced; but men of every ́opinion and creed may be restrained from acts which interfere with Christian worship, and which tend to revile religion and bring it into contempt. The belief of no man can be constrained, and the proper expression of religious belief is guaranteed to all; but this right, like every other right, must be exercised with strict regard to the equal rights of others; and when religious be

1 Gustav Lindenmuller, of the city of New York, had violated the law against Sunday theatres.

lief or unbelief leads to acts which interfere with the religious worship, and rights of conscience of those who represent the religion of the country, as established, not by law, but by the consent and usage of the community, and existing before the organization of the government, their acts may be restrained by legislation, even if they are not indictable at common law. Christianity is not the legal relation of the State, as established by law. If it were, it would be a civil or political institution, which it is not; but this is not inconsistent with the idea that it is in fact, and ever has been, the religion of the people., This fact is everywhere prominent in all our civil and political history, and has been, from the first, recognised and acted upon by the people, as well as by constitutional conventions, by legislatures, and by courts of justice.

"It is not disputed that Christianity is a part of the common law of England; and in Rex v. Woolston (Str. 834), the Court of King's Bench would not suffer it to be debated, whether to write against Christianity in general was not an offence punishable in the temporal courts at common law. The common law, as it was in force on the 20th day of April, 1777, subject to such alterations as have been made, from time to time, by the Legislature, and except such parts of it as are repugnant to the Constitution, is, and ever has been, a part of the law of the State. (Const. of 1846, art. 1. § 17; Const. of 1821, art. 7, 13; Const. of 1777, § 25.) The claim is, that the constitutional guaranties for the free exercise and enjoyment of religious profession and worship are inconsistent with and repugnant to the recognition of Christianity, as the religion of the people, entitled to, and within the protection of, the law. It would be strange, that a people, Christian in doctrine and worship, many of whom, or whose forefathers, had sought these shores for the privilege of worshipping God in simplicity and purity of faith, and who regarded religion as the basis of their civil liberty, and the foundation of their rights, should, in their zeal to secure to all the freedom of conscience which they valued so highly, solemnly repudiate and put beyond the pale of the law, the religion which was dear to them as life, and dethrone the God who, they openly and avowedly professed to believe, had been their protector and guide as a people. Unless they were hypocrites, which will hardly be charged, they would not have dared, even if their consciences would have suffered them, to do so. Religious tolerance is entirely consistent with a recognised religion. Christianity may be conceded to be the established religion, to the qualified extent mentioned, while perfect civil and political equality, with freedom of conscience and religious preference, is secured to individuals of every other creed and profession. To a very moderate and qualified extent, religious toleration was secured to the people of the colony, by the charter of liberties and privileges, granted by his royal highness to the inhabitants of New York and its dependencies in 1683 (2 R. L. app. No. 2), but was more amply provided for in the Constitution of 1777. It was then placed substantially upon the same footing on which it now stands. The Constitution of 1777, § 38, ordained that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should for ever thereafter be allowed, provided that the liberty of conscience thereby guaranteed should not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or

safety of the State. The same provision was incorporated in the Constitution of 1821, art. 7, § 3, and in that of 1846, art. 1, § 3. The Convention that framed the Constitution of 1777 ratified and approved the Declaration of Independence, and prefixed it to the Constitution as a part of the preamble; and in that instrument a direct and solemn appeal is made to the Supreme Judge of the world,' and a firm reliance on the protection of Divine Providence' for the support of the Declaration is deliberately professed. The people, in: adopting the Constitution of 1821, expressly acknowledged with 'gratitude the grace and beneficence of God,' in permitting them to make choice of their form of government; and in ratifying the Constitution of 1846, declare themselves' grateful to Almighty God' for their freedom. The first two constitutions of the State, reciting that "ministers of the gospel are by their profession dedicated to the service of God and the cure of souls, and ought not to be diverted from the great duties of their function,' declared that no 'minister of the gospel or priest of any denomination whatsoever should be eligible to or hold any civil or military office within the State;' and each of the constitutions has required an oath of office from all except some of the inferior officers taking office under it.

"These provisions and recitals very clearly recognise some of the fundamental principles of the Christian religion, and are certainly very far from ignoring God as the supreme Ruler and Judge of the universe, and the Christian religion as the religion of the people, embodying the common faith of the community, with its ministers and ordinances, existing without the aid of, or political connection with, the State, but as intimately connected with a good government, and the only sure basis of sound morals.

'The several constitutional conventions also recognise the Christian religion as the religion of the State, by opening their daily sessions with prayer, by themselves observing the Christian Sabbath, and by excepting that day from the time allowed to the Governor for returning bills to the Legislature.

"Different denominations of Christians are recognised, but this does not detract from the force of the recognition of God as the only proper object of religious worship, and the Christian religion as the religion of the people, which it was not intended to destroy, but to maintain. The intent was to prevent the unnatural connection between Church and State, which had proved as corrupting and detrimental to the cause of pure religion as it had been oppressive to the conscience of the individual. The founders of the government and the framers of our constitutions believed that Christianity would thrive better, that purity in the Church would be promoted, and the interests of religion advanced, by leaving the individual conscience free and untrammelled, precisely in accordance with the 'benevolent principles of rational liberty,' which guarded against 'spiritual oppression and intolerance;' and 'wisdom is justified of her children' in the experiment, which could hardly be said, if blasphemy, Sabbath-breaking, incest, polygamy, and the like, were protected by the Constitution. They did, therefore, prohibit the establishment of a state religion, with its enabling and disabling statutes, its test oaths and ecclesiastical courts, and all the pains and penalties of non-conformity, which are only snares to the conscience, and every man is left free to worship God according to the

dictates of his own conscience, or not to worship him at all, as he pleases. But they did not suppose they had abolished the Sabbath as a day of rest for all, and of Christian worship for those who were disposed to engage in it, or had deprived themselves of the power to protect their God from blasphemy and revilings, or their religious worship from unseemly interruptions. Compulsory worship of God in any form is prohibited, and every man's opinion on matters of religion, as in other matters, is beyond the reach of law. No man can be compelled to perform any act or omit any act as a duty to God; but this liberty of conscience in matters of faith and practice is entirely consistent with the existence, in fact, of the Christian religion, entitled to and enjoying the protection of the law, as the religion of the people of the State, and as furnishing the best sanctions of moral and social obligations. The public peace and public welfare are greatly dependent upon the protection of the religion of the country, and the preventing or punishing of offences against it, and acts wantonly committed subversive of it. The claim of the defence, carried to its necessary sequence, is that the Bible and religion, with all its ordinances, including the Sabbath, are as effectually abolished as they were in France during the Revolution, and so effectually abolished that duties may not be enforced as duties to the State, because they have been heretofore associated with acts of religious worship, or connected with religious duties. A provision similar to ours is found in the Constitution of Pennsylvania; and in Vidal v. Girard's Executors (2 How. 127), the question was discussed whether the Christian religion was a part of the common law of that State; and Justice Story, in giving judgment, at page 198, after referring to the qualifications in the Constitution, says: '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.' The same principle was decided by the State Court, in Updegraph v. Commonwealth (11 S. & R. 349). The same is held in Arkansas (Show v. State, 5 Eng. 259). In our own State, in People v. Ruggles (8 John. 291), the Court held that blasphemy against God, and contumelious reproach and profane ridicule of Christ or the Holy Scriptures, were offences punishable at the common law in this State, as public offences. Chief-Justice Kent says, that to revile the religion professed by almost the whole community is an abuse of the right of religious opinion and free discussion, secured by the Constitution, and that the Constitution does not secure the same regard to the religion of Mohammed or of the Grand Lama, as to that of our Saviour, for the plain reason that we are a Christian people, and the morality of the country is deeply engrafted upon Christianity. He says, further, that the Constitution will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations incident to a religious establishment. To construe it as breaking down the common law barriers against licentious, wanton, and impious attacks upon Christianity itself, would be an enormous perversion of its meaning.'

"This decision gives a practical construction to the 'toleration' clause in the State Constitution, and limits its effect to a prohibition of a church establish

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