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 THE 
 
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 Relation of Religio 
 
 TO 
 
 Civil Government 
 
 ilSIUl StW 
 
 *v5J 
 
 THE UNITED STATES OF AMERICA 
 
 A STATE WITHOUT A CHURCH, BUT NOT WITHOUT A RELIGION 
 
 ISAAC A. CORNELISON 
 
 G. P. PUTNAM'S SONS 
 
 NEW YORK LONDON 
 
 27 WEST TWENTY-THIRD ST. 24 BEDFORD ST., STRAND 
 
 ®1jc |\iuckcrbocker |^k3s 
 1895 
 
COPYRIGHT, 1895 
 
 G. P. PUTNAM S SONS 
 
 Ube "Kniciierboclier |>ress, t\evo 2Sorb 
 
PREFACE. 
 
 It has seemed to the author, that it would be proper 
 for him to give to his readers, beforehand, what the 
 astromomers would call, his "personal equation," upon 
 the subject he is now undertaking to discuss. 
 
 He would, therefore, say that, in the study of the 
 early history of our government, his sympathies have 
 been wholly with the distinctive political views of 
 Washington and Hamilton ; and not with those of 
 Jefferson and Madison. His highest admiration is 
 given to those who secured the formation and adoption 
 of the Constitution of the United States, — a Federalist 
 measure — which transformed a weak and unstable 
 confederacy of independent States, into a vigorous and 
 indissoluble Union ; leaving the several States in their 
 integrity, while constituting the people of all the States, 
 a Nation. But, that being secured, and unalterably 
 established, the author has found himself drifting away 
 from Federalism. By reason of a mental bent, pro- 
 duced by accidental circumstances, or of a mental 
 type, received b}^ inheritance, he will have to be classed 
 with that school in politics which is negative and re- 
 strictive in its policy, rather than with one that is 
 positive and aggressive. On all questions relating to 
 the functions of civil government and the extent of its 
 
 k 
 
iv Preface. 
 
 power, he finds himself affected with an antecedent, 
 perhaps a predeterminate inclination to the negative ; 
 that is, to the reduction of the functions of civil gov- 
 ernment to their lowest terras ; and the restriction of 
 its powers to their narrowest limits. He finds himself 
 opposed to centralization and paternalism in our own 
 government. While he is ready to concede that pater- 
 nalism was the primitive form of government, he main- 
 tains that the laws of social development have tended, 
 and do necessarily tend, to a progressive reduction of 
 its powers. 
 
 The individual independence of democracy, as a 
 theory, opposed to the fostering paternalism of mon- 
 archy, seems to him to be now on trial ; that trial 
 forming the political problem of the present epoch. 
 Were it his lot to be living at the conclusion of the 
 trial, he trusts that he would be able to accept the 
 result with good grace, if it should happen to be 
 adverse ; but he thinks that in the meantime the 
 theory, on trial, should be consistently carried out, and 
 not be complicated with its opposite. In a democrac)^ 
 the many may not claim to be better judges of the per- 
 sonal interests of the one than the individual himself. 
 They may not, therefore, compel him to act in a matter 
 relating only to his own interest, against his own judg- 
 ment, and in accordance with theirs. It may be that, 
 in the use of his liberty, he will do himself harm ; but 
 the discipline of responsibility will tend to strengthen 
 and elevate the man, which would be far better than 
 that he should escape a particular harm by the surren- 
 der of his liberty and the transfer of his responsibility 
 to others. This being the principle upon which the 
 divine government of the world is conducted, it must 
 be regarded as founded in the highest wisdom and 
 
Preface. v 
 
 benevolence, and therefore as best fitted (at least in 
 the case of adults) to promote the welfare of mankind. 
 The Creator has made special provision in nature for 
 the paternal government of the young ; but he has made 
 it plain that it is the proper aim of that government to 
 secure its own earh^ extinction by developing in the 
 young the power of self-government. This divine in- 
 tention is manifested, wath especial clearness, in the 
 lower animal creation, for there the dam does not rec- 
 ognize her offspring, or even know them as her own, 
 after they have come to maturit)'. 
 
 The authorit}'^ of civil government, when it interferes 
 with the liberty of the individual, for the purpose of 
 securing his own good, and not merely for the purpose 
 of preventing his interference with the liberty of his 
 fellowman, is pedagogic, fulfilling an office like that of 
 the freedman or slave who, in ancient times, was given 
 authority to conduct the child from the home to the 
 school. The authority of the pedagogue over the child 
 was legitimate and proper for a time, but when he had 
 delivered the child to the teacher his authority ceased. 
 The fulfilment of the function of his office was the very 
 thing which brought his authority to an end. Even 
 the Mosaic law, the apostle Paul argues, was of this 
 character. ' ' Therefore the law was our pedagogue 
 {naidaycoyoi^ child-conductor, not diddffxaXoSi, 
 school-master or teacher, as it is given in the A. V.) 
 to bring us to Christ." Gal. iii., 24. He affirms there- 
 fore that ' ' The law of the Spirit of life in Christ Jesus 
 hath made me free from the law of sin and death." 
 Rom. viii., i., arid exhorts the Galatians to " stand fast, 
 therefore, in the liberty wherewith Christ hath made 
 us free." Gal. v., i. 
 
 Paternalism is neither an evil nor a wrong, in itself ; 
 
vi Preface. 
 
 but it is both when it proposes to make itself perpet- 
 ual. Monarchies are not all to be denounced as sinful 
 usurpations, not all even of the most absolute. Im- 
 pulses, however, are operating in them all towards the 
 individual freedom of democracy, and these impulses, 
 notwithstanding the efforts of the rulers to repress them, 
 are daily gaining strength. No one who observes care- 
 fully the course of modern history will fail to see that 
 the Ruler of the nations is guiding the course of events, 
 among civilized peoples, towards that high consumma- 
 tion. Among the monarchies of Europe may be seen 
 to-day examples of the various stages of progress to 
 that end. Monarchy, if it fulfil its mission, will ac- 
 complish its own extinction. If its aim and effort be 
 to make itself perpetual it will be found fighting against 
 God, and, as the times ripen, its thrones will be dashed 
 to pieces. Paternalism, under whatever form of gov- 
 ernment, if subject to the Spirit that rules the world, 
 will aim, not at the perpetuation, but at the extinction 
 of its authority. 
 
 In the author's view it cannot be a permanent func- 
 tion of civil government to make the citizen prosper- 
 ous, intelligent, moral, or religious. In his view, true 
 wisdom will be ever looking for, and ever ready to 
 embrace, opportunity for the relinquishment of this 
 function. Therefore, while desiring not to be an im- 
 practicable theorist, the author would be inclined to re- 
 strict the fostering power of the government, in all 
 directions, rather than to enlarge it, in any direction. 
 It may be verj^ readily inferred that he is not in favor 
 of a union of Church and State. He rejoices in the 
 fact that we have, in this country, a grand system of 
 political institutions, entirely separate from all ecclesi- 
 astical institutions. He rejoices also in the fact that, 
 
Preface. vii 
 
 upon this question, there is no diversity of sentiment 
 among American citizens. 
 
 The question still remains, however, whether a State, 
 without a Church, is also without a Religion. The 
 question of the union of Church and State, not being 
 of any practical interest in this country, he does not 
 propose to discuss. The discussion will be confined 
 exclusively to the former question. That question is 
 beginning to work like a ferment in the public mind ; 
 and, as in all other fermentations, so in this : there 
 will be at first commotion, turbidness, and heat. In 
 due time, the crudities will settle away and the mass 
 will become quiet and clear. It ought to be the desire 
 of every patriot and philanthropist to contribute to 
 the hastening of this result. It is with such desire the 
 author enters upon this discussion of the relation of 
 Religion to Civil Government, in the United States of 
 America. 
 
 The best thought upon the subject is to be found in 
 the decisions of the various courts, Federal and State, 
 owing, no doubt, to the fact that it has been wrought 
 out by vigorous minds, specially disciplined, and act- 
 ing under a strong sense of duty. But the enunciations 
 of principle, in these decisions, having been made, in 
 connection with a great variety of particular cases, and 
 being scattered through a great many series of Reports, 
 do not form a complete and harmonious S3^stenl, The 
 author has found it necessary, in the investigation of 
 his subject, to traverse these enunciations, and to at- 
 tempt an informal digest of their contents. For readers 
 of the legal profession, mere references to the decisions 
 of the courts would have been sufficient, but he has 
 thought best to make large extracts from the leading 
 decisions on the subject, and to include them in the 
 
viii Preface. 
 
 body of the work, rather than to consign them to an 
 appendix. He entertains the hope that what, at first 
 sight, might seem to be an encumbrance of the work, 
 will prove to be one of the most interesting parts of it. 
 Indeed, he is led to believe, that it would be no small 
 help, in forming a satisfactory opiuion on the subject, 
 if all the decisions of the courts that bear in any way 
 upon it were collected and published together in full. 
 
 It may be inferred from this latter observation, that 
 the author does not flatter himself with the assurance, 
 that he has succeeded in unravelling all the intricacies, 
 and solving all the difficulties, of the subject he has 
 undertaken to treat. He feels that he needs, especially, 
 to maintain a modest demeanor in the presence of the 
 judiciary and other learned members of the legal pro- 
 fession. If what he has done shall, in the least degree, 
 help others to the formation of a satisfactory opinion 
 for themselves ; or shall provoke them to contribute 
 something towards the ascertainment of the absolute 
 truth and the establishment of perfect justice, he will 
 feel that he is amply compensated for his labor. 
 
 The author has had recourse, for information, as far 
 as he could find it possible, to original sources ; when 
 that was not possible, he has drawn from other sources 
 regarded as trustworthy. The various authorities 
 from whom he has made quotations are indicated in 
 connection with the quotations. The extracts made 
 from Charters and Constitutions are taken from The 
 Federal and State Constitutions, Colonial Charters and 
 other Organic Laws of the United States, compiled nnder 
 the order of the United States Senate, by Ben Perley 
 Poorc. Published at the Government Printing- Office 
 at Washington, D. C, 1877, 
 
 Washington, 111., March, 1895, 
 
CONTENTS. 
 
 PART I. 
 
 I. The General History of the Subject . ... 3 
 
 II. The Colonies 6 
 
 I. Virginia ........ 6 
 
 Plymouth 23 
 
 Massachusetts Bay -27 
 
 ISIaine 40 
 
 New Hampshire 41 
 
 Connecticut -44 
 
 New Haven 53 
 
 The Confederation 58 
 
 Rhode Island 61 
 
 Vermont 66 
 
 New York ........ 67 
 
 New Jersey ........ 68 
 
 Pennsylvania ....... 68 
 
 Maryland 71 
 
 Carolina ........ 79 
 
 Georgia 83 
 
 III. Deductions from the History 
 
 85 
 
 PART II. 
 
 I. Statement of the Question 
 II. The Constitution of the United States 
 
 III. The States 
 
 I. Connecticut 
 
 91 
 92 
 96 
 96 
 
X 
 
 
 Contents. 
 
 
 
 
 CHAPTE 
 
 R 
 
 
 PAGE 
 
 III. 
 
 2. 
 
 Vermont ...... 
 
 • 97 
 
 
 3- 
 
 New Hampshire . 
 
 . 
 
 
 
 • 98 
 
 
 4. 
 
 New Jersey 
 
 . 
 
 
 
 • 99 
 
 
 5- 
 
 Pennsylvania 
 
 
 
 
 • 99 
 
 
 6. 
 
 Delaware . 
 
 
 
 
 . 100 
 
 
 7. 
 
 Maryland . 
 
 
 
 
 . 100 
 
 
 8. 
 
 North Carolina . 
 
 
 
 
 . lOI 
 
 
 9- 
 
 South Carolina . 
 
 
 
 
 . lOI 
 
 
 lo. 
 
 Massachusetts 
 
 
 
 
 . 104 
 
 IV. 
 
 The Ordinance of 1787 
 
 
 
 
 . Ill 
 
 V. 
 
 The Common Law . 
 
 
 
 
 . 120 
 
 VI. 
 
 Equity 
 
 
 
 
 . 122 
 
 VII. 
 
 The Opinions of Jurists 
 
 
 
 
 . 125 
 
 VIII. 
 
 Decisions of the vState Supreme Courts 
 
 
 . 127 
 
 IX. 
 
 Decisions of the United States Supreme Court . 139 
 
 X. 
 
 Jefferson's Argument and Clayton's Answer 
 
 . 146 
 
 XI. 
 
 The Treaty with Tripoli .... 
 
 . . 163 
 
 
 
 PART 
 
 III. 
 
 
 
 
 I. 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 XIII. 
 
 XIV. 
 
 Antiquated Theories ...... 167 
 
 No Theory to be Oifered. Only Justice to be sought 175 
 
 Limitations 177 
 
 Mystical Theories of the State . . . .181 
 
 1. The Personality of the State . . . .181 
 
 2. Sovereignty 191 
 
 Religious Amendment of the Constitution of the 
 
 United States . 203 
 
 Exceptions to Limitations 243 
 
 Religion in the Public Schools .... 247 
 
 Decisions of the Courts on ... . 265 
 
 Full Liberty 290 
 
 Untenable Theories ...... 292 
 
 vSunday Laws, Opinions of the Courts . . . 300 
 Blasphemy ........ 305 
 
 Christian Character Remains .... 308 
 
 Sunday Laws have a Christian Basis . . -311 
 Sunday in the Constitution of the United States . 317 
 
Contents. 
 
 XI 
 
 CHAPTER 
 
 XV. 
 
 XVI. 
 
 XVII. 
 
 XVIII. 
 
 XIX. 
 
 Sunday in the Common Law .... 324 
 
 The Oath 328 
 
 Restriction of Function, not Renunciation . . 329 
 The Demand for Neutrality ..... 330 
 Duties of the State as Christian .... 341 
 1st. Not to adopt positive measures for the fos- 
 tering of Christianity 341 
 
 2d. To give preference and favor to Christianity, 349 
 3d. To give equal protection to Christians, Non- 
 Christians, and Anti-Christians . . -351 
 4th. Not to adopt any sectarian Christian doc- 
 trines, nor protect bequests for pious uses . 355 
 5th. Not to give favor and protection to a trust 
 
 created with purpose hostile to Christianity . 362 
 6th. Not to discontinue any Christian practice 
 
 for any reason derogatory to Christianity . 363 
 7th. Either to exempt church property from 
 
 taxation or change principle of exemption . 365 
 8th. Conform its actions on moral questions to 
 
 the precepts of Christianity .... 367 
 9th. To observe the Lord's day as a day of rest 
 and conform its regulations to the view held 
 by the majority of the people . . . 369 
 loth. To require that all teaching in High 
 Schools, State Universities, Military and 
 Naval Academies be in accordance with the 
 fundamental truths of Christianity . . 375 
 XX. Conclusion 380 
 
PART I. 
 
 A question of history. What has been the relation of religion 
 to civil government, in the world at large ; and especially 
 in the colonies which, after the Declaration of Indepen- 
 dence in 1776, became States of the United States of 
 America ? 
 
CHAPTER I. 
 
 THE GENERAIv HISTORY OF THE SUBJECT. 
 
 Among all the nations of antiquity, and among all 
 the heathen nations of the present day, we find the 
 religious institutions of the people incorporated with 
 their civil and political institutions. 
 
 As soon as it appeared that Christianity was destined 
 to supplant paganism among the Roman people, as it 
 did in the time of Constantine I., Christianity was made 
 the religion of the Empire. Offences against the Church 
 were regarded as crimes against the State, and were 
 punished with fines, imprisonment, banishment, and 
 death. 
 
 This relation of Christianity to the State has been 
 maintained, with various modifications, in all the coun- 
 tries of Europe, down to the present day. It existed in 
 England, the fountain head of our own national life ; 
 and it might have been expected that in the course of 
 historic continuity it would prevail in the colonies of 
 England in America ; unless special causes should 
 operate to prevent it. The expeditions fitted out in 
 England for the founding of settlements in the new 
 world, had a religious, as well as a commercial, pur- 
 pose ; that purpose being distinctly expressed in the 
 charters and grants given. 
 
 3 
 
Early Expeditio7is. 
 
 Sir Humphrey Gilbert, half brother of Sir Walter 
 Raleigh, was sent out on an expedition of exploration 
 and occupation, in 1578 ; and one object of the expedi- 
 tion, stated in his commission, was " compassion of 
 poore infidels, captived by the devil, and the establish- 
 ment of a system of government not against the true 
 Christian faith professed in the Church of England." 
 
 In the Letters Patent granted to Sir Walter Raleigh 
 by Queen Elizabeth in 1584, he was authorized to " dis- 
 cover, search, find out, and view such remote heathen 
 and barbarous lands, countries, and territories, not 
 actually possessed of any Christian prince, nor inherited 
 by any Christian people ; ... to have, hold, 
 occupy and enjoy, to him, his heirs and assigns forever, 
 with all prerogatives, commodities, jurisdictions, royal- 
 ties, privileges, franchises and pre-eminences . 
 as we, or any of our royal progenitors have, heretofore, 
 granted to any person or persons, bodies politic or cor- 
 porate." In giving him authority to establish govern- 
 ment and make laws, it was provided, "So always as 
 the said statutes, laws, and ordinances ... be not 
 against the true Christian faith, now professed in the 
 Church of England." 
 
 The three Charters of Virginia, given by James I. in 
 1606, 1609, and 1611-12, respectivel}', disposed of all 
 the territory lying between the mouth of the St. John's 
 River in Florida and the middle of Nova Scotia, and 
 extending westward to the ' ' South Sea. ' ' The grantees 
 were to be divided into two companies ; the one to have 
 its location in I^ondon, its colony to be known as The 
 First Colony of Virginia ; and to possess, under the 
 third charter, the territory lying between 30° and 41° 
 N. latitude, the parallels of the mouth of the St. John's 
 River, Florida, and New York City. The other was 
 
Early Expeditions. 5 
 
 to have its location in Plymonth ; its colony to be known 
 as The Second Colony of Virginia ; and to possess the 
 territory lying between 38° and 45^ N. latitude — the 
 parallels of Washington City and St. Andrews, Nova 
 Scotia. In the charter of these two companies the King 
 says: "We, greatly commending, and graciously ac- 
 cepting of their desires for the furtherance of so noble a 
 work, which ma}-, by the Providence of Almighty God, 
 hereafter tend to the glory of His Divine Majesty, in 
 propagating Christian religion to such people as yet live 
 in miserable ignorance of the true knowledge and wor- 
 slnp of God ; and ma}-, in time, bring the infidels and 
 savages living in those parts to civility, and to a settled 
 and quiet government ; do, by these our I^etters Patent, 
 graciously accept of, and agree to their humble and 
 well-intended desires. ' ' 
 
 " Articles, Instructions, and Orders, made, set down, 
 and established by us, tv/entieth day of November, in 
 the 3'ear of our reign of England, France, and Ireland, 
 the fourth (1606), and of Scotland, the fortieth, for the 
 good order and government of the two several colonies 
 and plantations to be made by our loving subjects in 
 the country commonly called Virginia, and America, 
 between thirty-four and forty-five degrees from the 
 equinoctial line. . . . And we do especially ordain, 
 charge, and require the said presidents and Council and 
 the ministers of the said several colonies, respectively, 
 within their several limits and precincts, that they, with 
 all diligence, care, and respect, do provide that the true 
 word and service of God and Christian faith be preached, 
 planted, and used, not only within every of the said 
 several colonies, but also, as much as they may, 
 amongst the savage people which do, or .shall, adjoin 
 unto them or border upon them, according to the doc- 
 
The Early Charters. 
 
 trine, rites, and religion now professed and established 
 within our realm of England ; and that they shall not 
 suffer any person or persons to withdraw any of the 
 subjects or people inhabiting, or which shall inhabit 
 within any of the said several colonies and plantations, 
 from the same or from their due allegiance unto us, our 
 heirs and successors." 
 
 The Plymouth Company received, at their request, a 
 new charter from James I. in 1620, " for the planting, 
 ruling, ordering and governing, of New England, in 
 America" ; and granting them the territory between 
 40° and 48° N. latitude, the parallels of Philadelphia, 
 Pa., and New Carlisle, in northern New Brunswick. 
 In this charter the king says : " We, according to our 
 princely inclination, favoring much their worthy dis- 
 position, in hope, thereby, to advance the enlargement 
 of Christian religion, to the glory of God ; as, also, by 
 that means, to stretch out the bounds of our dominions ; 
 and to replenish those deserts with people, governed by 
 laws and magistrates, for the peaceable commerce of 
 all. . . ." 
 
 CHAPTER II. 
 the; colonies. 
 
 I. Virginia. The first settlement was made by the 
 lyondon Company, on James River, in 1607, and among 
 the first laws made by the Assembly of Virginia, which 
 met in 16 19 — the first laws enacted within the territory 
 now occupied by the United States — it was enacted : 
 
 " I. That there shall be, in every plantation, where 
 the people use to meet for the worship of God, a 
 house or room, sequestered for that purpose, and not 
 
The Colonies. 
 
 to be for any temporal use whatever ; and a place em- 
 paled in, sequestered only to the burial of the dead. 
 
 " 2. That whosoever shall absent himself from divine 
 ser\'ice any Sunday, without an allowable excuse, shall 
 forfeit a pound of tobacco ; and he that absenteth him- 
 self a month shall forfeit fifty pounds of tobacco. 
 
 "3. That there be an uniformity in our church, as 
 near as may be, to the canons in England, both in sub- 
 stance and circumstance ; and that all persons yield 
 ready obedience unto them under pain of censure. 
 
 " 5. That no minister be absent from his church above 
 two months in all the year, upon penalty of forfeiting 
 half his means ; and whosoever shall be absent above 
 four months in the year shall forfeit his whole means 
 and cure. 
 
 ' ' 6, That whosoever shall disparage a minister, with- 
 out bringing sufficient proof to justify his reports, 
 whereby the minds of his parishioners may be alienated 
 from him, and his ministry prove the less effectual, by 
 their prejudication, shall not only pay five hundred 
 pounds of tobacco, but also ask the minister so wronged, 
 forgiveness publicly in the congregation. . . , 
 
 " 19. The proclamations for swearing and drunken- 
 ness, set out by the Governor and Council, are con- 
 firmed by the Assembly; and it is further ordered, that 
 the church-wardens shall be sworn to present them to 
 the commanders of every plantation ; and that the for- 
 feitures shall be collected by them, to be for public 
 uses." ' 
 
 ' The Statutes at Large, being a collection of all the Laws of 
 Virginia, from the first session of the Legislature in the year 
 i6ig. Published pursuant to an Act of the Ge7ie rat Assembly 
 of Virginia, passed on the fifth day of February one thousand 
 eighteen Inmdred and eight. By William Waller Hening, vol. 
 i., pp. 67, 68, 122, 123. 
 
TJic Colon? rs. 
 
 By Act VIII. of the General Assembly, held the 
 i6th day of October, 1629, 
 
 " It is ordered that there be an especial care taken 
 by all commanders and others, that the people do repair 
 to their churches on the Sabbath day, and to see that 
 the penalty of one pound of tobacco, for every time of 
 absence, and fifty pounds for every month's absence, 
 set down in the Act of the General Assembly 1623, be 
 levied, and the delinquents to pay the same ; as also to 
 see that the Sabbath day be not ordinarily profaned by 
 working in any employments or by journeying from 
 place to place." ' 
 
 By Act II. of the Grand Assembly of 1631-32, the 
 commanders, captains, and church- wardens, were, in 
 God's name, earnestly required and charged, "that 
 they shall endeavor themselves, to the uttermost of 
 their knowledge, that the due and true execution here- 
 of may be done and had through this colony, as they 
 will answer before God for such evils and plagues 
 wherewith Almighty God may justly punish his people 
 for neglecting this good and wholesome law ' ' (the law 
 requiring attendance upon church on Sunday).^ 
 
 The same Assembly adopted the following, viz. : 
 
 Act IV. ' ' And it is further ordered and thought ex- 
 pedient, according to a former order, made by the Gov- 
 ernor and Council, that all church-wardens shall take 
 this oath, and that it be administered before those that 
 are of the commission for monthly courts, viz. : 
 
 ' ' You shall swear that you shall make presentments 
 of all such persons as shall lead a profane or ungodly 
 life ; of such as shall be common swearers, drunkards, 
 or blasphemers ; that shall ordinarily profane the Sab- 
 bath days, or contemn God's holy word or sacraments. 
 ' IHd., p. 124. '^ Ibid., p. 155. 
 
Virgznm. 
 
 You shall also present all adulterers or fornicators, or 
 such as shall abuse their neighbors, by slandering, tale 
 carrj'ing, or backbiting, or that shall not behave them- 
 selves soberly and orderly in the church during divine 
 service. Likewise, they shall present such masters and 
 mistresses as shall be delinquent in the catechising the 
 youth and ignorant persons. So help me God." 
 
 Act VIII. " It is also thought fit, that upon every 
 Sunday the minister shall, half an hour or more before 
 evening prayer, examine, catechise, and instruct the 
 youth and ignorant persons of his parish, in the com- 
 mandments, the articles of the belief, and in the Lord's 
 Prayer ; and shall diligently hear, instruct, and teach 
 them the catechism, set forth in the Book of Common 
 Praj'er. And all fathers, mothers, masters, and mis- 
 tresses shall cause their children, servants, or appren- 
 tices, which have not learned the catechism, to come 
 to the church, at the time appointed, obediently to 
 hear, and to be ordered by the minister, until they 
 have learned the same. And if any of the said fathers, 
 mothers, masters, and mistresses, children, servants, or 
 apprentices shall neglect their duties, as the one sort, 
 in not causing them to come ; and the other, in refusing 
 to learn, as aforesaid, they shall be censured by the 
 courts in those places holden. And the Act to take 
 beginning on Easter next." ' 
 
 Article XL ' ' Ministers shall not give themselves to 
 excess in drinking or riot, spending their time idly, by 
 day or night, playing at dice, cards, or any other un- 
 lawful game ; but, at all times convenient, they shall 
 hear or read somewhat of the Holy Scriptures ; or shall 
 occupy themselves with some other honest study or 
 exercise ; always doing the things which shall apper- 
 ' Ibid., pp. 156, 157. 
 
lo The Colonies. 
 
 tain to honesty, and endeavor to profit the church 
 of God ; always having in mind that they ought to 
 excel all others, in purity of life, and should be ex- 
 amples to the people to live well and Christianly." * 
 
 Article XIV. " The Governor and Council, together 
 with the burgesses, in the present Grand Assembly, 
 upon the petition of the ministers within this colony, 
 have taken into their consideration by what way there 
 might be a sufficient means allowed unto the said min- 
 isters for their better subsistence and encouragement in 
 their ministry ; and thereupon, have ordained and 
 enacted that there shall be paid, unto the said minis- 
 ters, the former allowance of ten pounds of tobacco, and 
 a bushel of corn, in such manner as formerly hath been 
 done ; and, because of the low rates of tobacco, at this 
 present, it is further granted and ordered, that there 
 shall be likewise due to the ministers, from the first 
 day of March next ensuing, the 20th calf, the 20th kid 
 of goats, and the 20th pig, throughout all plantations 
 within this colony , . . and this Act, to continue 
 in force until the next meeting of the General Assembly, 
 at which time there may fall out just cause of alteration, 
 either by the advancement of tobacco, or some other 
 means, for that formerly the ancient allowance of ten 
 pounds of tobacco and a bushel of corn hath been a 
 sufficient proportion for their maintenance in their 
 calling. . . . 
 
 "And no planter or parishioner may neglect the 
 bringing of the tobacco or corn, upon the penalty, that 
 if any make default, they shall forfeit double the quan- 
 tity of the tobacco and corn, levied by distress, by 
 authorit}' from the commander ; and likewise, by dis- 
 tress, all arrearages of tobacco and corn due to the 
 1 Ibid., p. 158, 
 
Virginia. 1 1 
 
 minister as duties, shall, or may be recovered by virtue 
 of this order of this Assembly. And if the church- 
 wardens shall fail in the execution of their office hereby 
 enjoined, then the commander shall take order that it 
 be levied by distress out of the church-wardens' goods 
 and chattels." 
 
 Article XV. " It is ordained and enacted, that in all 
 such places where any churches are wanting or de- 
 cayed, the inhabitants shall be tied to contribute 
 towards the building of a church or repairing any de- 
 cayed church ; the commissioners, together with the 
 ministers, church-wardens, and chief of the parish, to 
 appoint, both the most convenient place for all parts to 
 assemble together, and also, to hire and procure any 
 workmen, and order such necessaries as are required to 
 be done in such works. This they are to effect before 
 the feast of the nativity of our Savior Christ, or else 
 the said commissioners, if the}^ be deficient in their 
 duties, to forfeit fifty pounds in money, to be employed 
 as the whole body of the Assembly shall dispose. 
 
 Article XVIII. "It is ordered that all the council 
 and burgesses of the Assembly shall, in the morning, 
 be present at divine service, in the room where they 
 sit, at the third beating of the drum, an hour after sun- 
 rise, upon the penalty of one shilling to the benefit of 
 the marshall of James City. . . ." ' 
 
 The Grand Assembly of 1642-43 adopted the follow- 
 ing, viz. : 
 
 Act XXXV. " Be it also enacted and confirmed, for 
 
 the better observance of the Sabbath, that no person or 
 
 persons shall take a voyage upon the same, except it 
 
 be to church or for other causes of extreme necessity, 
 
 ' Ibid., p. 162. 
 
12 The Colonies. 
 
 upon the penalty of the forfeiture, for such offence, of 
 twenty pounds of tobacco, being justly convicted for 
 the same. 
 
 " Be it further enacted and confirmed, for the better 
 observance of the Sabbath, and for the restraint of 
 divers abuses, committed in the colony, by unlawful 
 shooting on the Sabbath daj^ as aforesaid, unless it 
 shall be for the safety of his or their plantation or corn- 
 fields, or for defence against the Indians, he or they, so 
 offending, shall forfeit for his or their first offence, 
 being thereof lawfully convicted, if he be a freeman, 
 the quantity of twenty pounds of tobacco ; and, if a 
 servant, to be punished at the discretion of his master. 
 And if masters of any such servants be remiss and 
 negligent in the punishment of his servant for the 
 offence aforesaid, he shall be liable to the forfeiture of 
 twenty pounds of tobacco, being justly convicted for 
 the same." ' 
 
 Act lyl. " Whereas, It was enacted, at an Assembly 
 in January, 1641 . . . that it should not be law- 
 ful, under the penalty aforesaid [forfeiture of one 
 thousand pounds of tobacco] for any popish priest, that 
 shall hereafter arrive, to remain above five days, after 
 warning given for his departure, by the Governor or 
 commander of the place where he or they shall be, if 
 wind and weather hinder not his departure ; and that 
 the said Act should be in force ten days after the pub- 
 lication thereof at James City, this presetit Grand 
 Assembly, to all intents and purposes, doth hereby 
 confirm the same." ^ 
 
 Act LXIV. " For the preservation of the purity of 
 doctrine and unity of the church, it is hereby enacted 
 that all ministers, whatsoever, which shall reside in 
 Wbid., -p. 261. ^ Ibid., p. 26S. 
 
 1 
 
Virginia. 1 3 
 
 the colony, are to be conformable to the orders and 
 constitutions of the Church of England, and the laws 
 therein established ; and not, otherwise, to be admitted 
 to teach or preach, publicly or privately. And that 
 the Governor and Council do take care that all non- 
 conformists, upon notice of them, shall be compelled 
 to depart the colony with all convenience." ' 
 
 The Assembly of 1659-60 adopted the following Act 
 entitled An Act for the Supprcssmg the Qtcakcrs, viz. : 
 
 " Uliereas, There is an unreasonable and turbulent 
 sort of people, commonly called Quakers, who, contrary 
 to the laws, do daily gather unto them unlawful as- 
 semblies and congregations of people, teaching and 
 publishing lies, miracles, false visions, prophecies, and 
 doctrines, which have influence upon the community 
 of men, both ecclesiastical and civil, endeavoring and 
 attempting thereby to destroy religion, laws, com- 
 munities, and all bonds of civil society, leaving it 
 arbitrary to every vain and vicious person whether men 
 shall be safe, laws established, offenders punished, and 
 governors rule ; hereby disturbing the public peace 
 and just interest : to prevent and restrain wdiich mis- 
 chief, 
 
 " It is enacted that no master or commander of any 
 ship or other vessel, do bring into this colony any per- 
 son or persons called Quakers, under the penalty of one 
 hundred pounds sterling, to be levied upon him and 
 his estate, by order of our Governor and Council, as 
 the commissioners in the several counties where such 
 ships shall arrive. That all such Quakers as have 
 been questioned, or shall hereafter arrive, shall be 
 apprehended wheresoever they shall be found, and 
 they be imprisoned, without bail or mainprise, till 
 ' Ibid., p. 277. 
 
14 The Colonies. 
 
 they do abjure this country or put in security with all 
 speed to depart the colony and not return again. And 
 if they should dare to presume to return hither, after 
 such departure, to be proceeded against, as contemners 
 of the law and magistracy, and punished accordingly, 
 and caused again to depart the country. And if they 
 should the third time be so audacious and imprudent 
 as to return hither, to be proceeded against as felons. 
 That no person shall entertain any of the Quakers that 
 have heretofore been questioned by the Governor and 
 Council, or which shall hereafter be questioned, or 
 permit, in or near his house, any assemblies of Quakers, 
 in the like penalty of one hundred pounds sterling. 
 That commissioners and officers are hereby required 
 and authorized, as they will answer the contrary at 
 their peril, to take notice of this Act, to see it fully 
 effected and executed. And that no persons do pre- 
 sume, on their peril, to dispose or publish their books, 
 pamphlets, or libels, bearing the titles of their tenets 
 and opinions. ' ' ' 
 
 The Assembly of 1661-62 enacted, "That, for the 
 preservation of the purity and unity of doctrine and 
 discipline in the church, and the right administration 
 of the sacraments, no minister be admitted to officiate 
 in this countiy, but such as shall produce to the Gov- 
 ernor a testimonial that he hath received his ordination 
 from some bishop in England, and shall then subscribe 
 to be conformable to the orders and constitutions of the 
 Church of England and the laws there established, 
 upon which the Governor is hereby requested to induct 
 the said minister into any parish that shall make 
 presentations of him ; and, if any other person, pre- 
 tending himself a minister, shall, contrary to this Act, 
 * Ibid., p. 532, 
 
Virginia, 1 5 
 
 presume to teach or preach pubHcly or privately, the 
 Governor and Council are hereby desired and era- 
 powered to suspend and silence the person so offending ; 
 and, upon his obstinate persistence, to compel him to 
 depart the country with the first conveniency, as it hath 
 been formerly provided by the 77th Act, made at James 
 City, the second of March, 1642.' 
 
 Act III. " Whereas many schismatical persons, out 
 of their averseness to the orthodox established religion, 
 or out of the new-fangled conceits of their own hereti- 
 cal inventions, refuse to have their children baptized, 
 Be it therefore enacted, b}- the authority aforesaid, that 
 all persons that, in contempt of the divine sacrament 
 of baptism, shall refuse, when they may carry their 
 child to a lawful minister in that country to have them 
 baptized, shall be amerced two thousand pounds of 
 tobacco ; half to the informer, half to the public." ^ 
 
 The Assembly, September 12, 1663, adopted the 
 following resolution, viz. : 
 
 " Whereas, Mr. John Hill, high sheriff of L^wer 
 Norfolk, hath represented to the House that Mr. John 
 Porter, one of the burgesses of that county, was loving 
 to the Quakers, and stood well affected towards them, 
 and had been at their meetings, and was so far an Ana- 
 baptist as to be against the baptizing of children, upon 
 which representation the said Porter confessed himself 
 to have and be well affected to the Quakers, but con- 
 ceived his being at their meetings could not be proved, 
 upon which the oaths of allegiance and supremacy were 
 tendered to him, which he refused to take ; whereupon 
 it is ordered that the said Porter be dismissed this 
 House." ' 
 
 This Assembly made the law against Quakers, 
 
 ' Ibid., vol. ii., p. 46. " Ibid., p. 163. ^ Ibid., p. 198. 
 
1 6 Tlic Colonies. 
 
 against persons entertaining them, and masters of ships 
 bringing them into the country, more specific and 
 stringent, and included " other separatists" in its pro- 
 hibitions and penalties.' 
 
 The Assembly of 1667-68, taking it into serious con- 
 sideration that "the many sins of this country may 
 justly provoke the anger of Almighty God against us, 
 and draw down his judgments upon us unless diverted 
 by a timely and hearty repentance," appointed the 
 27th day of August to be set apart as a day of humilia- 
 tion, " strictly requiring all persons on that day to 
 repair to their respective churches, with fasting and 
 prayers, to implore God's mercy, and deprecate the 
 evils justly impending upon us " ; and enacted, " that 
 if any person or persons, in contempt thereof, shall be 
 found on that day working, gaming, or drinking 
 (works of necessity only excepted) he or they, so 
 oflFending, upon presentment of the church- warden, and 
 proof thereof made to the vestry, shall be fined by them 
 one hundred pounds of tobacco. " ^ 
 
 The IvOrd's Commissioners for Foreign Plantations 
 submitted certain "Enquiries to the Governor of 
 Virginia," the twenty-third of which was, "What 
 course is taken about instructing the people, within 
 your government, in the Christian religion ; and what 
 provision is there made for the paying of your 
 ministry ? ' ' 
 
 The answer returned by Sir William Berkeley, then 
 Governor (1671), was as follows, viz. : 
 
 ' ' The same course that is taken in England out of 
 
 towns ; every man, according to his ability, instructing 
 
 his children. We have forty-eight parishes, and our 
 
 ministers are well paid, and by my consent should be 
 
 ^ Ibid., p. 180. - Ibid., p. 260. 
 
Virginia. 1 7 
 
 better, if they would pray oftener and preach less. But, 
 of all other commodities, so of this, the worst are sent 
 us, and we had few that we could boast of since the 
 persecution of Cromwell's tyranny drove divers worthy 
 men hither. But I thank God, there are no free 
 schools nor printing, and I hope we shall not have 
 these hundred years, for learning has brought dis- 
 obedience, and heresy, and sects into the world, and 
 printing has divulged them and libels against the best 
 government. God keep us from both." ' 
 
 The General Assembly of 1691 enacted : " That no 
 person or persons whatsoever shall, from henceforth, 
 swear, curse, or profane God's holy name ; and if any 
 person or persons shall offend therein, and shall thereof 
 be convicted, by the oath of two witnesses, or by con- 
 fession of the party, then every such offender shall, 
 for every time so offending, forfeit and pay the sum 
 of one shilling ; and forasmuch as, nothing is more 
 acceptable unto God than the true and sincere service 
 and worship of him, according to his holy will, and 
 that the holy keeping of the Lord's day is a principal 
 part of the true service of God, which, in very many 
 places of the dominion, hath been and is now profaned 
 and neglected by a disorderly sort of people ; 
 
 " Be it enacted . . . That there shall be no meet- 
 ings, assemblies, or concourse of people out of their own 
 parishes on the Lord's day ; and no person or persons 
 whatsoever shall travel upon the said day ; and that no 
 other thing or matter whatsoever be done on that day 
 which tends to the profanation of the same ; but that 
 the same be kept holy in all respects, upon pain, that 
 every person and persons so offending, and being con- 
 victed as aforesaid, shall lose and forfeit twenty shil- 
 ' Ibid., p. 517. 
 
The Colonies. 
 
 lings. ... If ofiFender or oflFenders be unable to pay 
 the fine, to be committed to the stocks for every offence, 
 there to remain for the space of three full hours." ' 
 
 The following Act, entitled. An Act for the 7nore 
 effectual suppressing of Blasphemy , Swearing, Cursing, 
 Drunke7iness, and Sabbath-breaking,'^ was adopted by 
 the General Assembly of 1699, viz.: 
 
 " Whereas, Notwithstanding many good and whole- 
 some laws already made for the punishment and re- 
 straining of vice, many wicked, blasphemous, disso- 
 lute, and vicious persons still continue their impious 
 and abominable practices, and avow their horrid and 
 atheistical principles, greatly tending to the dishonor 
 of Almighty God, and may prove destructive to the 
 peace and welfare of his Majesty's colony and do- 
 minion, for the more effectual suppression of the said 
 detestable crimes ; 
 
 "Be it enacted, — That if any person or persons, 
 brought up in the Christian religion, shall, by writing, 
 printing, teaching, or advisably speaking, deny the 
 being of a God, or the Holy Trinity, or shall assert or 
 maintain that there are more Gods than one, or shall 
 deny the Christian religion to be true, or the Holy 
 Scriptures of Old and New Testament to be of divine 
 authority, and be thereof lawfully convicted, upon in- 
 dictment or information in the general court of this his 
 Majesty's colony and dominion, by the oaths of two or 
 more creditable witnesses, such person or persons, for 
 the first offence, shall be adjudged incapable or dis- 
 abled in law, to all intents and purposes whatsoever, 
 to hold or enjoy any ofiice or employment, ecclesiasti- 
 cal, civil, or military, or any part of them, or any 
 profit or advantage to them appertaining, or any of 
 ' Ibid., vol. iii., p. 72. 
 
Virginia. 1 9 
 
 them. And if any person or persons, so convicted as 
 aforesaid, shall, at the time of his or their conviction, 
 enjo}' or possess any office, place, or employment, such 
 office, place, or employment shall be \oid, and is hereby 
 declared void. And if such person or persons shall be 
 a second time lawfullj^ convicted as aforesaid, that then 
 he or the}^ shall, from henceforth, be disabled to sue, 
 prosecute, plead, or use any action or information in 
 any court of law or equity, or to be guardian to any 
 child, or to be executor of any person, or to bear any 
 office ecclesiastical, civil, or military, forever within 
 this his Majesty's colony and dominion, and shall also 
 suffer, from the time of such conviction, three years 
 imprisonment without bail or mainprise. 
 
 " Be it further enacted, — That if any person or persons 
 shall profanely swear or curse, or shall be drunk, he or 
 they so offending, for every such offence, being thereof 
 convicted by the oath of one or more witnesses (which 
 oath any justice of the peace is hereby empowered and 
 required to administer), or by confession before one or 
 more justice or justices of the peace, in the county 
 where such offence shall be committed, shall forfeit and 
 pay the sum of five shillings or fifty pounds of tobacco, 
 for every such offence ; or if the said offence or offences be 
 committed in the presence or hearing of one or more jus- 
 tice or justices of the peace, or in any court of record, in 
 this his Majesty's colony and dominion, the same shall be 
 sufficient conviction without any other evidence. And 
 the said offender, upon such conviction, shall forfeit 
 and pay the sum of five shillings or fifty pounds of 
 tobacco, for every such offence, which said sum or sums 
 shall be paid to the church wardens of that parish 
 where the offence shall be committed, who shall be ac- 
 countable for the same to the vestry of such parish, to 
 
20 TJic Colonies. 
 
 the use of the poor of the parish. And if any person 
 or persons shall refuse to make present payment, or 
 give sufficient caution for the payment of the same, at 
 the levying of the next parish levy, after the said 
 offence committed, then the said fines and penalties 
 shall be levied upon the goods of such person or per- 
 sons by warrant or precept from any justice of peace 
 before whom the same conviction shall be, which war- 
 rant may be directed to the sheriff of the county or to 
 the constable, in his respective precincts, to be appraised 
 and valued as another distress. And if the offender or 
 offenders be not able to pay the said sum or sums, then 
 he, or they, shall have or receive ten lashes on his, her, 
 or their bare back, well laid on, for every such offence. 
 
 ' ' And for the prevention of Sabbath breaking ; Be it 
 enacted — That if any person or persons, of the age of 
 twenty-one years or more, do neglect or refuse to resort 
 to their parish church or chapel once in two months, to 
 hear divine service upon the Sabbath day, every person 
 or persons so neglecting or refusing, and being thereof 
 lawfully convicted, by confession or otherwise, before 
 one or more justice or justices of the peace where such 
 offences shall be committed, shall forfeit and pay for 
 every such offence the sum of five shillings or fift}' 
 pounds of tobacco, to be paid to the church-wardens 
 of that parish wherein the said offence shall be com- 
 mitted, who shall be accountable for the same to the 
 vestry for the use of the said parish. 
 
 " Provided always, that if any person or persons can 
 show or make known to their justice or justices such 
 cause or causes of his, her, or their absence from 
 church, at any time or times, as the said justice or jus- 
 tices shall adjudge true and reasonable, then the said 
 pains and penalties shall be remitted to such person or 
 
Virginia. 2 1 
 
 persons for such time and times and no longer, anything 
 in this Act to the contrary notwithstanding. 
 
 " Provided always, that if any person or persons dis- 
 senting from the Church of England, being every way 
 qualified, according to one Act of Parliament, made in 
 the first year of the reign of our sovereign lord the 
 King that now is, and the late Queen Mary, of blessed 
 memory, entitled. An Act for Exempting their Majesties' 
 Protestant Stibjects, Dissenting front the Church of Eng- 
 land^ from the Penalties of Certain Laws, shall resort and 
 meet at any congregation or place of religious worship, 
 permitted and allowed by the said Act of Parliament, 
 once in two months, that then the said penalties and 
 forfeitures inforced by the Act for neglecting or refus- 
 ing to resort to their parish church or chapel, as afore- 
 said, shall not be taken to extend to such person or 
 persons, anything in this Act to the contrary notwith- 
 standing." ' 
 
 In the fifth revisal of the laws of the colony, which 
 was made by the General Assembly in 1705, the fore- 
 going law was re-enacted as Chapter XXX., with the 
 following additions, viz. : 
 
 ' ' The person brought up in the Christian religion who 
 should by writing, printing, teaching, or advisedly 
 speaking, deny the being of God, etc., should be liable 
 to the additional disability of being incapable of acting 
 as administrator of any person, and of making any 
 deed of gift or legacy. 
 
 " Provided alwaj^s, that every prosecution, by virtue 
 of this Act for swearing, cursing, or for being drunk, 
 shall be made within two months after the offence 
 committed, and not afterward." 
 
 The limit allowed for absence from church was made 
 ' Ibid., p. 16S. 
 
22 The Colonies. 
 
 to be one month instead of two months, and all persons 
 being of the age of twenty-one years or upwards, who 
 ' ' shall not when there (at church) in a decent and 
 orderly manner, continue until the said service is 
 ended ; and if any person shall, on that day, be present 
 at any disorderly meeting, gaming, or tippling, or shall, 
 on the said day, make any journey or travel upon the 
 road, except to and from church (cases of necessity and 
 charity excepted) or shall, on the said day, be found 
 working in their com or tobacco, or any other labor of 
 their ordinary calling other than is necessary for the 
 sustenance of man and beast, — every person failing or 
 making default in any of these premises (so that prose- 
 cution be made within two months after such default) 
 shall forfeit and pay for every such offence the sum of 
 five shillings or fifty pounds of tobacco," 
 
 "And be it further enacted,— That this Act shall be 
 publicly read two several times in the year in all par- 
 ish churches and chapels within this colony by the 
 minister, clerk, or reader, of each parish, immediately 
 after divine service ; that is to say, on the first or 
 second Sunday in April ; and on the first or second 
 Sunday in September, under the penalty of twenty 
 shillings for every such omission and neglect ; and the 
 church-wardens of every parish are hereby required to 
 provide a copy of this Act at the charge of the parish. ' ' ' 
 
 An Act of the Assembly of 1661, Chapter III., re- 
 quired " that there be a glebe laid out in every parish, 
 and a convenient house built for the abode of the min- 
 ister, and that a maintenance be provided for him which 
 shall be worth eighty pounds per annum, besides his 
 perquisites and glebe." 
 
 An Act of the Assembly of 1748, Chapter XXXIV., 
 "^Jbid., pp. 358, 362. 
 
Plymo2ith. 23 
 
 Sec. 5, directs that the glebe shall contain two hun- 
 dred acres of good land, at least ; and that there shall 
 be built on it a convenient mansion house, kitchen, 
 barn, stable, dair}^ meat house, corn house, and gar- 
 den ; the expense of which is to be levied on the tith- 
 able persons of the parish.' 
 
 In the case of Godwi?i et al v. Lunan, Godwin et al, 
 vestrj-men of the upper parish of Nansemond, filed a 
 libel in the General Court, as a court of ecclesiastical 
 jurisdiction, against lyiinan, setting forth that he was 
 of evil fame, profligate in manners, much addicted to 
 drunkenness, often drunk at church, unable to go 
 through the service, to baptize or marry, officiated in 
 ridiculous apparel ; was a disturber of the peace, quar- 
 relling and fighting, a common profane swearer ; that 
 he exposed his private parts, solicited negro and other 
 women to commit fornication and adultery with him ; 
 declared that he did not believe in the revealed religion 
 of Christ, that he cared not of what religion he was, so 
 he got the tobacco ; nor what became of the flock, so 
 he got the fleece." 
 
 Objection was made by the defendant to the juris- 
 diction of the Court, but the Court decided that it was 
 possessed of jurisdiction ; and that as an ecclesiastical 
 court, it might proceed to censure or deprive the de- 
 fendant." 
 
 The Church of England continued to be the estab- 
 lished church of Virginia ; and the laws regulating the 
 religious life of the people continued without essential 
 modification to be in force throughout the colonial 
 period. 
 
 2. Plymouth. — The next settlement after that on 
 the James River was made by the Pilgrims, who landed 
 ' Jefferson's ^^/>c»r/5, pp. 104, 105. ^ Ibid., p. 96. 
 
24 The Colonics. 
 
 on Plymouth Rock, December ii, 1620. Before leav- 
 ing Europe they obtained a grant of land from the 
 London Company, but afterwards decided to settle in 
 the territory of the Plymouth Company. They ob- 
 tained several patents from that company, but failed to 
 obtain confirmation of them by the King. On the 
 nth day of November, 1620, on board the Mayflower, 
 they made the following agreement : "In the name of 
 God, amen. We whose names are underwritten, the 
 loyal subjects of our dread sovereign lord King James, 
 by the grace of God of Great Brittain, France, and Ire- 
 land, King, Defender of the faith, etc., having under- 
 taken for the glory of God, and the advancement of 
 the Christian faith, and the honor of our King and 
 country, a voyage to plant the first colony in the 
 northern parts of Virginia ; do, by these presents, sol- 
 emnly and mutually, in the presence of God and one 
 another, covenant and combine ourselves into a civil 
 body politic, for our better ordering and preservation, 
 and furtherance of the ends aforesaid, and by virtue 
 hereof to enact, constitute, and frame such just and 
 equal laws, ordinances, acts, constitutions, and ofiices, 
 from time to time, as shall be thought most meet and 
 convenient for the general good of the colony, unto 
 which we promise all due subjection and obedience. 
 In witness whereof we have hereunder subscribed our 
 names, at Cape Cod, the eleventh of November (O. S.) 
 in the year of the reign of our sovereign lord King 
 James of England, France, and Ireland, the eighteenth, 
 and of Scotland the fifty-fourth. Anno Dom. 1620." 
 This colony, partly from a feeling that it was under 
 some obligation to recognize the jurisdiction of the 
 lyondon Company, which was known to favor the 
 Church of England, and partly from conviction forced 
 
PlymoiUh. 2 5 
 
 upou them by bitter experience, at first kept their civil 
 and ecclesiastical organizations apart ; but within a 
 little over thirty years from the time of their landing, 
 the Church is found united to the State and supported 
 by taxes upon the people. 
 
 The belief, then almost universal, that civil govern- 
 ment had not only a religious character, but a religious 
 function, made its appearance very early in the history 
 of the colony. It was enacted by the General Court, 
 June 10, 1650, "that whosoever shall profane the 
 I^ord's day, by doing servile work, or any like abuses, 
 shall forfeit, for everj- such default, ten shillings, or be 
 whipped." 
 
 It was enacted on June 6, 165 1, "that whatsoever 
 person or persons shall neglect the frequenting the 
 public worship of God, that is according to God, in 
 the places where they live ; or do assemble themselves, 
 upon anj' pretence whatsoever, contrary to God and 
 the allowance of the government, tending to the sub- 
 version of religion and churches ; or palpable profana- 
 tion of God's holy ordinances; being duly convicted, 
 viz. : every one that is a master or dame of a family, or 
 any other person at their own disposing, to pay ten 
 shillings for every such default." ' 
 
 In 1665 the following law was enacted, viz. : 
 
 ' ' Whereas, complaint is made to the Court of great 
 abuse, in sundry towns of this jurisdiction, by persons 
 there behaving themselves profanely, by being with- 
 out doors at the meeting house, on the Lord's day, in 
 time of exercise, and there misdemeaning themselves 
 by jesting, sleeping, or the like ; It is enacted by the 
 court, and hereby ordered that the constables of each 
 township of this jurisdiction, shall, in their respective 
 ' Plymouth Colonial Records, vol. xi., p. 57. 
 
26 TJie Colonies, 
 
 towns, take special notice of such persons, and to 
 admonish them ; and, if notwithstanding, they shall 
 persist in such practices, that he shall set them in the 
 stocks, and in case this will not reclaim them, that they 
 return their names to the Court." ' 
 
 In July, 1669, it was enacted, that "unnecessary 
 violent riding on the I,ord's day " should be reported 
 to the next court after the offence. Also, "that any 
 person or persons that shall be found smoking of to- 
 bacco, on the Lord's day, going to, or coming from the 
 meetings, within two miles of the meeting house, shall 
 pay twelve pence, for every such default, to the colony's 
 use."'^ 
 
 In June, 1670, the following was enacted, viz. : 
 " For the further prevention of the profanation of 
 the Lord's day, it is enacted, by the Court and the 
 authority thereof, that the selectmen of the several 
 towns of this jurisdiction, or any one of them, may or 
 shall, as there be occasion, take with him the constable 
 or his deputy, and repair to any house or place where 
 they may suspect that any slothfully do lurk at home, 
 or get together in companies, to neglect the public wor- 
 ship of God, or profane the Lord's day ; and, finding 
 any such disorder, shall return the names of the per- 
 sons to the next court ; and give notice also of any 
 particular miscarriage that they have taken notice of, 
 that it may be inquired into. ' ' ' 
 
 In 1682 the following was enacted, viz. : 
 " To prevent profanation of the Lord's day by for- 
 eigners or any others, unnecessarily travelling through 
 our towns on that day ; It is enacted by the Court that 
 a fit man, in each town, be chosen unto whom whoso- 
 ever hath necessity of travel on the Lord's day, in case 
 ^ Ibid., p. 214. "Ibid., pp. 224, 225. ^ Ibid., p. 22S, 
 
Massachitsctts Bay. 27 
 
 of danger of death or such necessitous occasions, shall 
 repair, and making out such occasions satisfyingly to 
 him, shall receive a ticket from him to pass on about 
 such like occasions, which, if the traveller attend not 
 unto, it shall be lawful for the constable or any man 
 that meets him, to take him up, and stop him luitil he 
 is brought before authority, or pay his fine for such 
 transgression, as by law in that case is provided. And 
 if it after shall appear that his plea was false, then may 
 he be apprehended at another time, and made to pay 
 his fine as aforesaid. , . , 
 
 " It is enacted that none shall presume to attend ser- 
 vile work or labor, or attend any sports, on such days 
 as are, or shall be, appointed by the Court for humilia- 
 tion by fasting and prayer, or for public thanksgiving, 
 on penalty of five shillings." ' 
 
 In 1 69 1 Plymouth colony was united with the colony 
 of Massachusetts Bay. 
 
 3. Massachusetts Bay. — A charter was granted 
 by Charles I., March 4, 1629, to Sir Henry Rosewell 
 and others, making them a body politic, by the name 
 of ' ' The Governor and Company of the Massachusetts 
 Bay, in New England," giving them the territory be- 
 tween the Charles and the Merrimac Rivers, with a 
 margin of three miles beyond both of these limits. In 
 the charter it is said that authority is granted to 
 "establish all manner of wholesome and reasonable 
 orders, laws, statutes, and ordinances ... for the 
 directing, ruling, and disposing of all other matters and 
 things whereby our said people, inhabitants there, may 
 be so religiously, peaceably, and civilly governed, as 
 their good life and orderly conversation may win and 
 incite the natives of the country to the knowledge and 
 ' Ibid., p. 258. 
 
28 The Colonies. 
 
 obedience of the only true God, and Savior of man- 
 kind, and the Christian faith, which, in our royal in- 
 tention, and the adventurer's free profession, is the 
 principal end of this plantation." 
 
 This colony, in 1631, three years after the arrival of 
 the first settlers, enacted that ' ' to the end the body of 
 the commons may be preserved honest and good men, it 
 was likewise ordered and agreed that, for time to come, 
 no man shall be admitted to the freedom of this body 
 politic but such as are members of some of the churches 
 within the limits of the same." ' 
 
 The General Court, April 17, 1629, adopted the fol- 
 lowing action, viz. : " And to the end the Sabbath may 
 be celebrated in a religious manner, we appoint that 
 all that inhabit the plantation, both for the general 
 and particular employments, may surcease their labor 
 every Saturday throughout the year, at three of the 
 clock in the afternoon, and that they spend the rest of 
 that day in catechising and preparation for the Sab- 
 bath, as the minister shall direct." '"' 
 
 On September 6, 1638, the General Court adopted 
 the following, viz. : " This Court, taking into considera- 
 tion the necessity of an equal contribution to all com- 
 mon charges in towns, and observing that the chief 
 occasion of the defect herein ariseth from hence, that 
 many of those who are not freemen nor members of 
 any church do take advantage thereby to withdraw 
 their help in such voluntary contributions as are in use. 
 
 ' ' It is, therefore, hereby declared that every inhabi- 
 tant in any town is liable to contribute to all charges, 
 both in church and commonwealth, whereof he doth 
 or may receive benefit. And withal, it is ordered that 
 
 ' Records of the Colofiy of Massachusetts, vol. i., p. 87. 
 * Ibid., p. 395. 
 
Massachusetts Bay. 29 
 
 every such inhabitant who shall not voluntarily con- 
 tribute proportionably to his ability, with other persons 
 of the same town, to all common charges, as well for 
 upholding the ordinances of the churches as otherwise, 
 shall be compelled thereto by assessment and distress, 
 to be levied by the constable or other officer of the 
 town, as in other cases." ' 
 
 Roman Catholics were denied toleration in the colony 
 by the charter. In 1644, Baptists, who should openly 
 condemn or oppose the baptizing of infants, or go about 
 secretly to seduce from the approbation or use thereof, 
 were, if wilfully and obstinately persistent therein, to 
 be sentenced to banishment. " 
 
 In 1646, the following law wasenacted, viz. : Chapter 
 XXXIX. Section 14. " Forasmuch as, the open con- 
 tempt of God's word, and messengers thereof, is the 
 desolating sin of civil states and churches ; It is ordered 
 that if any Christian (so-called) within this jurisdiction, 
 shall contemptuously behave himself towards the Word 
 preached or the messengers thereof, called to dispense 
 the same in any congregation, when he doth faithfully 
 exercise his service and office therein, according to the 
 will and word of God, either by interrupting him in his 
 preaching or by charging him, falsely, with any error ; 
 or, like a son of Korah, cast upon his true doctrine or 
 himself any reproach to the dishonor of the Lord Jesus 
 who hath sent him, and to the disparagement of his 
 holy ordinance, and making God's ways contemptible 
 and ridiculous, that every such person or persons 
 (whatsoever censure the church may pass), shall for 
 the first scandal be convented and rebuked openly by 
 the magistrate at some lecture, and bound to their good 
 behavior. And if a second time they break forth into 
 ' Ibid., pp. 240, 241. '^ Ibid., vol. ii., p. 85. 
 
30 The Colonies. 
 
 the like contemptuous carriages, they shall either pay- 
 five pounds to the public treasury, or stand two hours 
 openly upon a block or stool, four feet high, on a lec- 
 ture day, with a paper pinned to his breast, written in 
 capital letters. An open and obstinate contemner of GocV s 
 holy ordinances, that others may hear and be ashamed 
 of breaking out into the like wickedness. ' ' 
 
 Section 15. "Wheresoever the ministry of the 
 Word is established, according to the order of the gos- 
 pel, throughout this jurisdiction, every person shall 
 duly resort and attend thereunto, respectively, upon the 
 Ivord's days, and upon such public fast days, and days 
 of thanksgiving, as are to be generally held by the ap- 
 pointment of authority. And if any person, within 
 this jurisdiction, shall, without just and necessary 
 cause, withdraw himself from hearing the public min- 
 istry of the Word, after due means of conviction used, 
 he shall forfeit, for his absence from every such public 
 meeting, five shillings. ' ' 
 
 Section 14 required that a convenient habitation for 
 the minister be provided by tax. 
 
 On November 4, 1646, the following was enacted, 
 viz. : 
 
 " Though no human power be lord over the faith 
 and conscience, yet, because such as bring in damnable 
 heresies, tending to the subversion of the Christian 
 faith and destruction of the souls of men, ought to be 
 duly restrained from such notorious impiety ; 
 
 " It is therefore ordered and decreed by this Court, 
 that if any Christian, within this jurisdiction, shall go 
 about to subvert or destroy the Christian faith and 
 religion, by broaching or maintaining any damnable 
 heresy, as denying the immortality of the soul ; or the 
 resurrection of the body ; or any sin, to be repented of 
 
Massachusetts Bay. 31 
 
 in the regenerate ; or any evil, done by the outward 
 man, to be accounted sin ; or denying that Christ gave 
 himself a ransom for our sins ; or that we are justified 
 by his death and righteousness, but by the perfection 
 of our own works ; or denying the morality of the 
 fourth Commandment ; or any other heresy of such 
 nature and degree ; shall pay to the common treasury, 
 for the first six months, twenty shillings a month ; and 
 if any person shall endeavor to seduce others to the 
 like heresy and apostacy from the faith and religion of 
 our Lord Jesus Christ, he shall forfeit to the treasury 
 for every several offence five pounds." ' 
 
 In 1650 a book, published by William Pyncheon, 
 was, by order of the Court, burned by the common 
 hangman in Boston Common. The book was entitled, 
 Meritoriotcs Price of Christ's Redemption, and contro- 
 verted the orthodox view of the atonement. Mr. 
 Pyncheon was a man of eminence in the colony ; he 
 had come over with John Winthrop ; was the first 
 treasurer of the colony and chief magistrate of Spring- 
 field ; but he was deposed from his magistracy and was 
 required to attend the General Court at Boston and re- 
 port progress from time to time in his conversion to 
 correct views of the atonement." 
 
 In 1653 the following was enacted, viz.: 
 ' ' Upon information of sundry abuses and misde- 
 meanors, committed by several persons, on the Lord's 
 day, not only by children playing in the streets and 
 other places, but by youths, maids, and other persons, 
 both strangers and others, uncivilly walking the streets 
 and fields, travelling from town to town, going on ship- 
 
 ' The Charters atid General Lazos of the Colony and Province 
 of Massachusetts Bay, pp. 102, 103, 177. 
 
 - Palfrey's History of New England, vol. ii., p. 395. 
 
32 The Colo7iics. 
 
 board, frequenting common houses, and other places, 
 to drink, sport, and otherwise to misspend that precious 
 time ; which things tend much to the dishonor of God, 
 the reproach of rehgion, and the profanation of his holy 
 Sabbath, the sanctification whereof is sometimes put for 
 all duties immediately respecting the service of God, 
 contained in the first table ; It is therefore ordered, by 
 this Court and authority, that no children, youths, 
 maids, or other persons, shall transgress in the like 
 kind, on the penalty of being reputed great provokers 
 of the high displeasure of Almighty God, and further 
 incurring the penalties hereafter expressed ; namely, 
 that the parents and governors of all children above 
 seven years old, (not that we approve of younger chil- 
 dren in evil,) for the first offence in that kind, upon 
 due proof before any magistrate, own commissioner, or 
 selectmen of the town, where such offence shall be 
 committed, shall be admonished ; for a second offence, 
 upon due proof as aforesaid, shall pay a fine of five 
 shillings ; for a third offence, upon due proof as afore- 
 said, ten shillings ; and if they shall again offend in 
 this kind, they shall be presented to the County Court, 
 who shall augment punishment, according to the merit 
 of the fact." 
 
 Upon all youths and maids, above fourteen years of 
 age, and all elder persons, who shall be convicted 
 "either for playing, uncivilly walking, drinking, 
 travelling from town to town, going on ship-board, 
 sporting, or any way misspending that precious time," 
 similar penalties were to be inflicted, and it was pro- 
 vided that, " if any be unable or unwilling to pay the 
 aforesaid fines, they shall be whipped by the constable, 
 not exceeding five stripes for ten shillings fine." ' 
 ' Records IMassachiisclts Bay, vol. iii., pp. 316, 317. 
 
Massachusetts Bay. 2^}^ 
 
 In 1658 a law was enacted requiring that Quakers 
 should be banished from the colony, and that they 
 should be put to death if they returned after banish- 
 ment.' The latter part of the enactment, happily, re- 
 mained in force only two years, which, unhappily, was 
 long enough to compass the death of four persons. It 
 was thought that none would return under such a 
 penalty and that there never would be occasion for its 
 infliction, but William Robinson, Marmaduke Steven- 
 son, William Leddra, and Mary Dyer, having been 
 banished, returned, under a supposed revelation of the 
 Spirit requiring them to testify to the truth by the 
 sacrifice of their lives. All were hanged on Boston 
 Common. Mary Dyer was offered suspension of the 
 sentence and release while under the gallows and ac- 
 cepted the ofier, but afterwards, repenting of her un- 
 faithfulness, returned to seek death.' 
 
 In 1667 it was enacted by the General Court, " that 
 all laws for sanctification of the Sabbath, and prevent- 
 ing the profaning thereof, be twice in the year, viz. , in 
 March and in September, publicly read by the minister 
 or ministers on the Lord's day, in the several respective 
 assemblies within this jurisdiction ; and all people, by 
 him, cautioned to take heed to the observance thereof 
 And the selectmen are hereby ordered to see to it that 
 there be one man appointed to inspect the ten families 
 of his neighbors, which tithing man, or men, shall, and 
 hereby have power in the absence of the constable to 
 apprehend all Sabbath-breakers and disorderly tipplers, 
 or such as keep licensed houses, or others that shall 
 sufier any disorders in their houses on the Sabbath day, 
 or evening after, or at any other time. . . . And 
 
 ' Ibid., iv., pp. 349, 367. 
 
 - Palfrey's History of New England, vol. ii., pp. 478-480. 
 
34 The Colonies. 
 
 for the better putting a restraint and securing offenders 
 that shall any way transgress against the laws, title. 
 Sabbath, either in the meeting house, by abusive car- 
 riage or misbehavior, by making any noise or other- 
 wise, or during the daytime, being laid hold on by any 
 of the inhabitants, shall by the said person appointed 
 to inspect this law be forthwith carried forth and put 
 into a cage in Boston, which is appointed, forthwith, by 
 the selectmen to be set up in the market place, and in 
 such other towns as the County Court shall appoint ; 
 there to remain till authority shall examine the person 
 offending, and give order for his punishment, as the 
 matter may require, according to the laws relating to 
 the Sabbath." ' 
 
 On November 3, 1675, the following law was enacted, 
 viz. : 
 
 ' ' Whereas, There is so much profaneness amongst 
 us, in persons turning their backs upon the public 
 worship before it be finished and the blessing pro- 
 nounced ; It is ordered by this Court that the officers 
 of the church or selectmen shall take care to prevent 
 such disorders by appointing persons to shut the meet- 
 ing house doors, or some other meet way to attain that 
 end. . . . 
 
 " And, touching the law of importation of Quakers, 
 that it may be more strictly executed and none trans- 
 gressing to escape punishment ; It is hereby ordered 
 that the penalty of that law averred be in no case less 
 than twenty pounds. ' ' ^ 
 
 On October 15, 1679, the following enactment was 
 made, viz. : 
 
 ' Records of the Colony of the Massachusetts Bay in New 
 England, vol. v., p. 133. 
 ^ Ibid., p. 60. 
 
Massachusetts Bay. 35 
 
 " For the prevention of the profanation of the Sab- 
 bath and disorders, on Saturday night, by horses and 
 carts, passing late out of the town of Boston, It is 
 ordered and enacted that there be a ward, from sun- 
 set on Saturday night until nine of the clock or after, 
 consisting of one of the selectmen or constables of Bos- 
 ton, with two or more meet persons, who shall walk 
 between the fortification and the town's end, and upon 
 no pretence whatsoever suffer any cart to pass out of 
 the town after sunset ; nor any footman nor horseman, 
 without such good account of the necessity of his busi- 
 ness as may be to their satisfaction ; and all persons 
 attempting to ride or drive out of town after sunset, 
 without such reasonable satisfaction given, shall be 
 apprehended and brought before authority, to be pro- 
 ceeded against as Sabbath-breakers, and all other towns 
 are empowered to do the like as need shall be." 
 
 "It is ordered by this Court and the authority 
 thereof, that the order with respect to ministers read- 
 ing the laws respecting the Sabbath once in the year 
 publicly on the Lord's day, be henceforth repealed ; 
 and it is further ordered that the constable or town 
 clerk of the town perform the same upon some public 
 meeeting of the inhabitants." ' 
 
 Sections 18 and 20 of the statute of 1679 are as fol- 
 lows, viz. : 
 
 " It being the great duty of this Court to provide 
 that all places and people within our gates be supplied 
 of an able and faithful minister of God's holy word ; 
 Be it therefore enacted by this Court, and the authority 
 thereof, that the county courts within their respective 
 precincts do diligently and carefully attend on the 
 execution of such orders of this Court as concerns the 
 ' Ibid., pp. 239, 240, 243. 
 
36 The Colonics. 
 
 maintenance of the ministry, and the purging of their 
 towns and peculiars from such ministry and public 
 preachers as shall be found vicious in their lives or 
 perniciously heterodox in their doctrine ; that they 
 use their best endeavor for the procuring and settling 
 of such faithful laborers in God's vineyard ; and that 
 the charges of their procuring and settling be levied on 
 the inhabitants as the law for the maintenance of min- 
 isters directs ; and that for the future, there may be no 
 neglect hereof, the presidents of each county court 
 shall duly from time to time give it in charge to the 
 grand juries of their respective courts to present all 
 abuses and neglects of this kind ; and that with all 
 care and diligence the same be redressed, that so the 
 name of the Lord our God being known in our dwell- 
 ings and exalted in our gates. He may still delight 
 in us." 
 
 "It is ordered by the Court and the authority 
 thereof, that no persons whatever, without the consent 
 of the freemen of the town where they live, first orderly 
 had and obtained, at a public meeting assembled for 
 that end, and license of the County Court, or defect of 
 such consent and license, by the special order of the 
 General Court, shall erect or make use of any house as 
 above said (for a meeting house) ; And in case any 
 person or persons shall be convicted of transgressing 
 this law, every such house or houses wherein such 
 persons shall so meet more than three times, with land 
 whereon such house or houses stand, and all private 
 ways leading thereunto, shall be forfeited to the use of 
 the county, and disposed of by the county treasurer by 
 sale, or demolishing as the court that gave judgment 
 in the case shall order. ' ' ' 
 
 ' Charters and General Laws of the Colony and Province of 
 Blassachusetts Bay, pp. 104, 105. 
 
Massachusetts Bay. 37 
 
 It was enacted that if a town should neglect to pro- 
 vide for the support of the ministrj', " upon complaint 
 made to the Quarter Sessions of tlie peace the said 
 court of Quarter Sessions shall and hereby are empow- 
 ered to order a competent allowance unto such minister 
 according to the statute and ability of the town, the 
 same to be imposed upon the inhabitants by the war- 
 rant from the Court." ' 
 
 A fine, not exceeding forty shillings, was imposed 
 on each person in the town which neglected to provide 
 for the maintenance of the ministry. Upon a second 
 conviction, a fine of four pounds was imposed on each 
 person, and a like sum for every other conviction." 
 
 It was enacted in 1679, "that all masters of families 
 do once a week (at the least) catechise their children 
 and servants in the grounds and principles of religion ; 
 and if any be unable to do so much, that then at least 
 they procure such children and apprentices to learn 
 some short orthodox catechism without book, that they 
 may be able to answer unto the questions that shall be 
 propounded to them out of such catechism by their 
 parents or masters or any of the selectmen, when they 
 shall call them to trial of what they have learned in 
 that kind." =" 
 
 "It is required of the selectmen that all children and 
 youth under family government ... be taught 
 some orthodox catechism." * 
 
 By Act of 1 700, Jesuits and Romish priests were re- 
 quired to depart the colou)^, under penalty of imprison- 
 ment for life if they returned. 
 
 In 1742, upon complaint of the members of the 
 Church of England, a law was enacted without limita- 
 tion, which had been twice before (1727 and 1735) 
 ^ Ibid., p. 244. "^ Ibid., p. 256. 
 
 ^ Ibid., p. 74. ^ Ibid., p. 197. 
 
38 The Colonies. 
 
 enacted, with a limitation of five years, allowing the 
 town treasurer to pay to ministers of the Protestant 
 Episcopal Church the taxes received from the members 
 of that church. In order to obtain such payment it 
 was required that the member should present a certifi- 
 cate from the minister and church wardens that he 
 usually and frequently attended that church. * 
 
 Similar laws were enacted, with limits of various 
 periods, at different times in behalf of the Baptists and 
 Quakers. In 1770 a similar law was enacted in favor 
 of all dissenters, but the treasurer was not allowed to 
 pay over any taxes for the support of a dissenting min- 
 ister ' ' unless such person shall have been educated at 
 some university, college or public academy for the in- 
 struction of youth in the learned languages and in the 
 arts and sciences ; or shall have received a degree 
 from some university, college or public academy ; or 
 shall have obtained testimonials from the major part 
 of the settled ministers of the gospel in the county that 
 they approved him to be of sufficient learning to qualify 
 him for the work of such ministry." ^ 
 
 It appears that such vexatious regulations were pre- 
 scribed for the administration of the law, that it was 
 difficult for the dissenter to get out of the public treas- 
 ury the portion due him for the support of his min- 
 ister. The Baptists objected, on principle, to the 
 requirement of a certificate of membership in their 
 own church in order to get from the town treasury 
 their portion of the taxes ; holding that to give certifi- 
 cates implies an acknowledgment that civil rulers have 
 a right to set up one religious sect above another ; 
 holding, also, that civil rulers are not representatives 
 in religious matters, and therefore have no right to im- 
 ' Ibid., p. 537. "-Ibid., p. 622. 
 
Massachusetts Bay. 39 
 
 pose religious taxes. They presented their grievances 
 to the Continental Congress in 1774, but failed to ob- 
 tain any action for their relief ' 
 
 In 1760, all former laws relating to Sunday were re- 
 pealed, and a new code adopted, which continued in 
 force throughout and after the colonial period. The 
 preamble to the new code was as follows, viz. : 
 
 "And, whereas. It is the duty of all persons upon 
 the Lord's day carefully to apply themselves, publicly 
 and privately, to religion and piety ; the profanation 
 of the Lord's day is highlj' offensive to Almighty God ; 
 of evil example and tends to the grief and disturbance 
 of all pious and religiously disposed persons ; There- 
 fore. . . ." 
 
 The following are some of the provisions of the new 
 law, viz. : 
 
 Work or play on land or water ; travelling by any 
 one, except in extreme necessity, and then only far 
 enough for immediate relief; are forbidden, under a 
 penalty of not less than ten, nor more than twenty 
 shillings. 
 
 Licensed public-house keepers are forbidden to enter- 
 tain any except travellers, strangers, and lodgers, in or 
 about their premises, for the purpose of drinking, play- 
 ing, lounging, or doing any secular business whatever, 
 on penalty of ten shillings ; and the person drinking, 
 playing, lounging, or doing secular business was to be 
 fined five shillings. 
 
 Loitering, walking, or gathering in companies, in 
 streets, fields, orchards, lanes, wharves, etc., was for- 
 bidden, under penalty of five shillings. 
 
 Absence from public worship, for one month, was to 
 be punished with a fine of ten shillings. 
 
 ^ Church and State in New England, Lauer, pp. 80-83. 
 
40 Maine. 
 
 The observance of Sunday was to commence at sun- 
 set on Saturday. 
 
 Twelve wardens were to be appointed in each town 
 to execute these laws. They were to look after all in- 
 fringements, enter all suspected places, examine or 
 inquire after all suspected persons. In Boston, they 
 were to patrol the streets every Sunday (very stormy or 
 cold days excepted), and diligently watch and search 
 for offenders. These laws were to be read at the March 
 meeting of the towns each year.' 
 
 4. Maine. — The Plymouth Company, on the loth 
 of August, 1622, gave a patent to Sir Ferdinando 
 Gorges and Captain John Mason for certain territory 
 in New England. Charles I., by a charter issued to 
 Sir Ferdinando Gorges, April 3, 1639, confirmed the 
 previous patent, granting him the territory from Pas- 
 cataway Harbor to the Kennebec River, and one hun- 
 dred and twenty miles inland, which was to be called 
 " The Province or County of Mayne." To him were 
 granted in this charter ' ' All Patronages and Advow- 
 sons, Free Dispositions and Donacons, of all and every 
 such churches and chapels as shall be made and erected 
 within the said Province and Premises, or any of them, 
 with full power, lycense, and authority to builde, erect, 
 or cause to be builte and erected, so many churches 
 and chappels there as to the said Sir Ferdinando 
 Gorges, his heirs and assigns, shall seeme meete and 
 convenient ; and to dedicate and consecrate the same, 
 or cause the same to bee dedicated and consecrated, 
 according to the Established Lawes of this our Realme 
 of England ; together, alsoe, with all and singular, and 
 as large and ample Rights, jurisdictions ... as 
 
 '^ Acts and Laws of the Province of Massachusetts Bay, pp. 
 392, 397- 
 
Neiv Hampsliire. 41 
 
 the Bishopp of Durham, within the Bishopricke or 
 Countie Palatine of Duresme, in our kingdome of Eng- 
 land, now hath, usetli, or enjoyeth, or, of right, he 
 ought to have, use, or enjoye. . . . " 
 
 While the Church of England was by this charter 
 made the established church of the colony, it appears 
 that Massachusetts, by its enterprise and its aggres- 
 sions, effected the establishment of the Congregational 
 Church in many of the towns of Maine. Its ecclesias- 
 tical policy was made regularly predominant by the 
 purchase of the Gorges Charter in 1677 ; and finally 
 also by the new charter, granted by William and Mary 
 in 1691, which merged all the provinces of Plymouth, 
 Massachusetts, Maine, Sagadohoc, and Acadia into 
 one, under the title of The Province of Massachusetts 
 Bay. 
 
 5. New Hampshire.— The first settlements in New 
 Hampshire, Dover, Portsmouth, and Exeter, were in- 
 dependent governments ; but being unable to defend 
 themselves against the Indians, they united with the 
 colony of Massachusetts, in 1641. This union contin- 
 ued till 1679, when New Hampshire was constituted 
 and declared to be a separate province. Charles II., 
 in the Commission constituting the President and 
 Council of the Province of New Hampshire, September 
 18, 1679, said, "And, above all things we do by these 
 presents, will, require, and command our said Council, 
 to take all possible care for the discountenancing of 
 vice, and encouraging of virtue and good living ; and 
 that by such examples, the infidel may be incited and 
 desire to partake of the Christian religion ; and for the 
 greater ca.se and satisfaction of the said loving subjects 
 in matters of religion, we do hereby require and com- 
 mand that liberty of conscience shall be allowed unto 
 
42 The Colonies. 
 
 all Protestants ; that such especially as shall be con- 
 formed to the rights of the Church of England shall be 
 particularly countenanced and encouraged." ' 
 
 Among the laws enacted in 1680 are the following, 
 viz. : 
 
 " If any person within the province professing the 
 true religion, shall wittingly and wilfully presume to 
 blaspheme the holy name of God the Father, Son and 
 Holy Ghost, with direct, express, presumptuous or 
 high-handed blasphemy, either by wilful or obstinate 
 denying the true God, or his creation, or government 
 of the world ; or shall curse God the Father, Son or 
 Holy Ghost, such person shall be put to death. L,eviti- 
 cus, xxiv., 15, 16." ^ 
 
 " Upon information of sundry abuses and misde- 
 meanors, committed by divers persons on the I^ord's 
 day, it is therefore ordered and enacted by this General 
 Assembly, that what person soever within this govern- 
 ment shall profane the Lord's day by doing unneces- 
 sary servile work or travel ; or by sports or recreations ; 
 or by being at ordinaries in time of public worship ; 
 such person or persons shall forfeit ten shillings, or be 
 whipped, for every such offence ; and if it appear that 
 the sin was proudly or presumptuously or with a high 
 hand committed against the known command and 
 authority of the blessed God, such person, therein de- 
 spising and reproaching the Lord, shall be severely 
 punished at the judgment of the Court. . . . For- 
 asmuch as the open contempt of God's word and the 
 messengers thereof is the desolating sin of several 
 States and churches ; it is therefore enacted that if any 
 Christian, so called, in this province, shall speak con- 
 temptuously of the holy Scriptures, or of the holy pen- 
 
 ' Provincial Papers, vol. i., p. 378. ^ Ibid., p. 363. 
 
Neiv HampsJiire. 43 
 
 men thereof, such person or persons shall be punished 
 by fine or corporal punishment, as the Court shall see 
 reason, so as it extend not to the life or limb ; or shall 
 behave himself contemptuously toward the Word of 
 God preached, or any minister thereof, called and faith- 
 fully discharging the same in any congregation, either 
 by manifest interrupting him in his ministerial dispen- 
 sations, or falsely or presumptuously charging him with 
 teaching error, to the disparagement and hindrance of 
 the work of Christ in his hands ; or manifestly or con- 
 temptuously reproach the ways, churches, or ordinances 
 of Christ ; being duly convicted thereof, he or they, for 
 the first transgressions, be amerced twenty shillings to 
 the province, or to sit in the stocks not exceeding four 
 hours ; but if he or they go on to transgress in the same 
 kind, then to be amerced forty shillings, or to be whipped 
 for every such trangression." ' 
 
 By the law of 1682, it was " ordered that the constable 
 with some other meet person, whom he shall choose, 
 shall in the time of public worship go forth to any sus- 
 pected place " and apprehend those who idly straggle 
 abroad.^ 
 
 " Be it enacted, — That it shall and may be lawful for 
 the freeholders of every respective town, convened in 
 public town meeting, as often as they shall see occa- 
 sion, to make choice of, and by themselves, or any other 
 person or persons by them appointed, to agree with a 
 minister or ministers for the supply of the town, and 
 what annual salarj^ shall be allowed him ; and the 
 minister so made choice of shall be accounted the 
 settled minister of that town ; and the selectmen, then 
 for the time being, shall make rates and assessments 
 upon the inhabitants of the town for the payment of 
 ' Ibid., pp. 387, 3S8. ^ Ibid., p. 446. 
 
44 The Colonies. 
 
 the minister's salary, as aforesaid, in such manner and 
 form as they do for defraying of other town charges, 
 which rates, by warrants from a justice of the peace, 
 with the selectmen, to the constable or constables of 
 the town, shall be by him or them collected and paid, 
 according to the direction of the selectmen, for the end 
 aforesaid. Provided always that this Act do not inter- 
 fere with their Majesties' grace and favor in allowing 
 their subjects liberty of conscience, nor shall any per- 
 son under pretence of being of a different persuasion be 
 excused from paying toward the support of the settled 
 minister or ministers of the town ; but only such as are 
 conscientiously so, and constantly attend the public wor- 
 ship of God on the Lord's day according to their own 
 persuasion, and they only shall be excused from paying 
 towards the support of the minister of the town. ' ' ' 
 
 It was voted by the House of Representatives, Janu- 
 ary 6, 1725, " That the petititioners (of Sandy Beach) 
 are obliged to maintain an able orthodox minister of 
 the gospel, at their own charges." * 
 
 6. Connecticut. — The first permanent settlements 
 in Connecticut were made at Windsor, Hartford, Weath- 
 ersfield, and Springfield, by emigrants from Massachu- 
 setts. A provisional government was instituted, under 
 a commission from the General Court of Massachusetts, 
 March 3, 1636, issued to eight of the persons who " had 
 resolved to transplant themselves and their estates unto 
 the river Connecticut ; . . , that commission taking 
 rise from the desire of the people that removed, who 
 judged it inconvenient to go away without any frame 
 of government ; not from any claim of the Massachu- 
 setts of jurisdiction over them by virtue of Patent." 
 Springfield withdrew from the association in 1637, and 
 
 ' Ibid., vol. iii., pp. 189, 190. ''■ Ibid., vol. iv., p. 414. 
 
Connecticut. 45 
 
 the remaining towns formed a written compact or con- 
 stitution in 1639, entitled, The Fundamental Orders of 
 Connectiait, which was the first constitution " written 
 out as a complete form of civil order in the new world. ' ' 
 In this constitution they say : ' ' We ... do for our- 
 selves, and our successors, and such as shall be ad- 
 joined to us at any time hereafter, enter into com- 
 bination and confederation together, to maintain and 
 preserve the liberty and purity of the gospel of our 
 L,ord Jesus, which we now profess ; as also the dis- 
 cipline of the churches, which, according to the truth 
 of the said gospel, is now practised amongst us. ' ' It 
 is provided in Article I., that the magistrates "shall 
 have power to administer justice according to the laws 
 here established ; and for want thereof, according to 
 the rule of the Word of God." It was provided in 
 Article 4, " that the Governor be always a member of 
 some congregation." One clause in the oath of office 
 to be taken by the Governor and the magistrates was : 
 " I, N. M. . . . do swear, by the great and 
 dreadful name of the ever-living God, ... to 
 further the execution of justice, for the time afore- 
 said, according to the righteous rule of God's Word ; 
 so help me God, in the name of the I^ord Jesus 
 Christ." 
 
 In accordance with the recommendation of the Com- 
 missioners of the United Colonies of New England, the 
 General Court of Connecticut, October 4, 1656, enacted 
 that " No town entertain Quakers, Ranters, Adamites, 
 or such like notorious heretics, or suffer to continue 
 with them above the space of fourteen days, upon pen- 
 alty of five pounds per week ; . . . but the towns- 
 men shall give notice to the two next magistrates or 
 assistants, who shall have power to send them to prison 
 
46 The Colonies. 
 
 for securing them until they can be conveniently sent 
 out of the jurisdiction. ' ' ' 
 
 By an Act of 1650 relating to burglary and robbery, 
 the commission of those crimes on the Sabbath day was 
 made an aggravation which called for punishment of 
 increased severity. " He shall for the first offence 
 have one of his ears cut off; for the second offence, in 
 the same kind, he shall lose his other ear in the same 
 manner ; and if he fall into the same offence the third 
 time he shall be put to death." 
 
 A law almost identical with that of Massachusetts 
 Bay and New Hampshire was enacted against con- 
 temptuous carriage towards God's Word and the ordi- 
 nances and ministers of the gospel : ' ' Forasmuch as 
 that the open contempt of God's Word and messengers 
 thereof is the desolating sin of civil States and churches ; 
 and that the preaching of the Word by those whom 
 God hath sent is the chief ordinary means ordered by 
 God for the converting, edifying, and saving of the 
 souls of the elect, through the presence and the power 
 of the Holy Ghost, thereunto promised ; and that the 
 ministry of the Word is set up by God in his churches 
 for those holy ends ; and according to the respect or 
 contempt of the same, and of those whom God hath set 
 apart for his own work or employment, the weal or 
 woe of all Christian States is much furthered or pro- 
 moted ; 
 
 " It is therefore ordered and decreed that if any Chris- 
 tian (so called) within this jurisdiction shall behave 
 himself contemptuously towards the word preached, or 
 the messengers thereof, called to dispense the same in 
 any congregation, when he faithfully executed the 
 service and office therein, according to the will and 
 
 ' The Public Records of the Colony of Connecticut, Prior to 
 the Union with New Haven, May, i66j, pp. 283, 284. 
 
Connecticut. 47 
 
 word of God, either by interrupting him in preaching, 
 or by charging him falsely with an error which he hath 
 not taught, in the open face of the church ; or, like a 
 son of Korah, cast upon his true doctrine or himself 
 any reproach, to the dishonor of the Lord Jesus, who 
 hath sent him ; and to the disparagement of that his 
 holy ordinance, and making God's way contemptible 
 or ridiculous ; that every such person or persons (what- 
 soever censure the church may pass), shall for the first 
 scandal be convented and reproved openly by the 
 magistrate, at some lecture, and bound to their good 
 behavior. And if a second time they break forth into 
 the like contemptuous carriages, they shall either pay 
 five pounds to the public treasurer, or stand two hours 
 openly upon a block or stool four feet high upon a 
 lecture day with a paper fixed upon his breast with 
 capital letters, An open and obstinate contemner of God' s 
 hoty ordinance, that others may fear and be ashamed of 
 breaking out into like wickedness. ' ' ' 
 
 ' ' It is ordered and decreed by this Court and the 
 authority thereof, that wheresoever the ministry of the 
 Word is established according to the order of the 
 gospel, throughout this jurisdiction, every person shall 
 duly resort and attend thereunto, respective!)-, upon 
 the lyord's day, and upon such fast days and days of 
 thanksgiving as are to be generally kept by the ap. 
 pointment of authority. And if any person within this 
 jurisdiction shall, without just and necessary cause, 
 withdraw himself fi'om hearing the public ministry of 
 the "Word, after due means of conviction used, he shall 
 forfeit for his absence from ever}' such public meeting, 
 five shillings." " 
 
 ' Ibid., pp. 523, 524. 
 
 2 Public Records of the Colony of Connecticut, Prior to 1665, 
 pp. 514, 524. 
 
48 The Colonics. 
 
 The following was enacted by the General Assembly, 
 October 11, 1666 : 
 
 ' ' This Court doth conclude and consider of some 
 way or means to bring those ecclesiastical matters that 
 are in difference in several plantations to an issue, by 
 stating some suitable accommodation and expedient 
 thereunto, and do therefore order that a Synod be 
 called to consider and debate those matters ; and that 
 the matters and questions to the elders and ministers 
 that are called to this Synod, shall be publicly dis- 
 puted to an issue. And this Court doth confer power 
 on this Synod, being met and constituted, to order and 
 authorize the disputation so as may most conduce, in 
 their apprehension, to attain a regular issue of their 
 debates. . . . This Court doth order that the 
 questions stated by this Court shall be those that shall 
 be considered and publicly disputed in the Synod next 
 May. . . : 
 
 "17. Question ist. Whether federal holiness or 
 covenant interest be not the proper ground of baptism ? 
 
 ' ' Whether it be not justifiable, by the Word of God, 
 that the civil authority indulge Congregational and 
 Presbyterian Churches and their discipline in the 
 churches ? ' ' 
 
 On May 20, 1668, the following was enacted : 
 
 " Whereas, The sanctification of the Sabbath is a 
 matter of great concernment to the weal of the people, 
 and the profanation thereof is that as pulls down the 
 judgments of God upon that place or people that suffers 
 the same ; it is therefore ordered by this court and the 
 authority thereof, that if any person shall profane the 
 Sabbath, by unnecessary travel or playing thereon, in 
 the time of public worship, or before or after, or .shall 
 keep out of the meeting-house during the public wor- 
 
Connecticut. 49 
 
 ship uunecessarily, there being convenient room in the 
 house, he shall pay five shillings for every such oflfence, 
 or sit in the stocks one hour. And the constables in 
 the several plantations are hereby required to make 
 search after all offenders against this law and make 
 return thereof to the commissioners or assistants." ' 
 On May 15, 1676, the following was enacted : 
 " Whereas, Notwithstanding former provisions made 
 for the due sanctification of the Sabbath, it is observed 
 that by sundry abuses the Sabbath is profaned ; the 
 ordinances rendered unprofitable, which threatens the 
 rooting out of the power of godliness and the procuring 
 of the wrath and judgments of God upon us and our 
 posterity ; for preventing whereof, it is ordered by this 
 Court that if any person or persons henceforth, either 
 on the Saturdaj^ night or on the Lord's day night, 
 though it be after the sun is set, shall be found sport- 
 ing in the field of any town in this jurisdiction, or be 
 drinking in houses of public entertainment, or else- 
 where, unless for necessity ; every person so found, 
 complained of and proved transgressing, shall pay ten 
 shillings for every such transgression, or suffer corporal 
 punishment for default of due payment. Nor shall any 
 sell or draw any sort of strong drink at any time, or to 
 be used in any such manner, upon the like penalty for 
 every such default. 
 
 " It is also further ordered that no servile work shall 
 be done on the Sabbath, viz. : such as are not works 
 of piety, charity, or necessity ; and no profane discourse 
 or talk, rude or unreverent behavior, shall be used on 
 that holy day, upon penalty of ten shillings fine for 
 every transgression hereof ; and in case the offence be 
 
 ' Public Records of the Colony of Connecticut^ 1665-1678, 
 p. 88. 
 
50 The Colonies, 
 
 circumstanced with high-handed presumption as well 
 as profaneness, the penalty to be augmented at the 
 discretion of the judges." ' 
 
 The lyords Commissioners, April 8, 1678, ordered 
 that " some particular queries be prepared which may 
 lead to those informations concerning them [the New 
 England colonies] which may give light into their be- 
 havior, so as to guide their Hardships in advising his 
 Majesty into such methods for the settlement and regu- 
 lation thereof as may best conduce to his royal service ' ' ; 
 and the answer given to the 26th query by the Colony 
 of Connecticut was : 
 
 " Our people in this colony are, some, strict Con- 
 gregational men ; others, more large, Congregational 
 men, and some moderate Presbyterians ; and take the 
 Congregational men of both sorts, they are the greatest 
 part of the people in this colony. There are four or five 
 Seven Day men in our colony, and about as many more 
 Quakers. 
 
 "27. Answer (i) Great care is taken for the instruc- 
 tion of the people in the Christian religion, by ministers 
 catechising of them, and preaching to them twice every 
 Sabbath days, and sometimes lecture days ; and so by 
 masters and families instructing and catechising their 
 children and servants, being so required to do by 
 law. 
 
 " (2) In our corporation are twenty-six towns, and 
 there are one and twenty churches in them, 
 
 ' ' (3) For the maintenance of the ministers, it is 
 raised upon the people by way of rate ; and it is in 
 some places one hundred pounds per annum, some 
 ninety pounds, some eighty pounds, some sixty pounds, 
 but in no place less than fifty pounds per annum, as we 
 ' Ibid., p. 280. 
 
Connecticut. 5 1 
 
 know of, and so the proportion raised is according as 
 the occasion of the minister calls for it, and the people's 
 ability will allow." ' 
 
 These answers were adopted July 15, 1680. On 
 May 12, 1688, the General Court adopted the follow- 
 ing : 
 
 ' ' This Court, taking into their most serious con- 
 sideration, of what high importance it is for the glory 
 of God and the welfare of his Majesty's good subjects 
 inhabiting in this colony, that a competent and certain 
 maintenance of the ministers of the gospel be duly 
 stated and settled ; have judged it their duty to order 
 and appoint, and accordingly do by the authority of 
 this Court enact, order, and appoint, that the towns and 
 plantations in this colony pay unto the respective min- 
 isters in the said towns or plantations annually the 
 several sums and payments which shall be agreed upon, 
 which sums or payments in each town or society shall 
 be levied and assessed on the persons inhabiting in 
 such towns or plantations, according to their respective 
 estates. . . . And, it is further ordered by this 
 Court and the authority thereof, that if any towns in 
 this colony shall be, in and for any year or years, with- 
 out a minister, preaching the gospel unto them, such 
 town or towns shall, in the said year or years, notwith- 
 standing, pay such sums or payments as the General 
 Court shall appoint, as if there were a minister 
 there." " 
 
 On October 12, 1699, it was enacted : 
 
 " That in every town, plantation, or society within 
 this colony where the major part of the householders 
 of any the said town, plantation, or society, who in or 
 
 ' Ibid., May, 1676 ; June, 1689, pp. 299, 300. 
 ^ Ibid., 1688-1704, pp. 198, 199. 
 
52' The Colo7iies. 
 
 by law are an allowed society, are agreeing in calling 
 and settling a minister, such minister so called and 
 settled shall be accounted the lawful minister of said 
 town, plantation, or society ; and that all agreements, 
 respecting the maintenance and settlement of such 
 minister, made by the major part of the householders 
 of said town, plantation, or society, shall be binding 
 and obliging to the whole and all of said town, planta- 
 tion, or society, and to their successors, according to 
 all the true intents and purposes thereof. 
 
 " And it is further ordered and enacted, by the 
 authority aforesaid, that where this Court hath deter- 
 mined the bounds and limits of any society in any town 
 or plantation in this colony where there are more than 
 one society, that in every such case, all persons living 
 within the bounds and limits, and their estates lying 
 within the same, shall bear their proportion of, and be 
 rateable according to law for the support and mainten- 
 ance of the minister of that society, any law, usage, or 
 custom to the contrary notwithstanding. ' ' ' 
 
 Upon the observance of the Sabbath it was enacted 
 in October, 1709 : 
 
 * ' That if any single persons, being boarders or so- 
 journers, or any young persons whatsoever, under the 
 government of parents or masters, within this colony, 
 shall convene or meet together in company or com- 
 panies, in the street or elsewhere, on the evening after 
 the Sabbath, or any public day of fast or any lecture 
 day, and be thereof duly convicted, shall pay a fine of 
 five shillings, or be set in the stocks, not exceeding 
 two hours for each such offence. ' ' ^ 
 
 October, 1715. " Whereas, In the printed law en- 
 titled Sabbath, p. 104, no provision is made to prevent 
 ' Ibid., p. 316. ^ Ibid., 1706-1716, p. 130. 
 
Nezv Haven. _ 53 
 
 vessels sailing up and down the great river Connecti- 
 cut on the Sabbath day, which the masters of vessels, 
 taking the advantage of, do frequently, and without 
 restraint, pass up and down said river on said day ; Be 
 it therefore enacted, that if any vessel shall sail or pass 
 by any town or parish on said river where the public 
 worship of God is maintained, or shall weigh anchor 
 within two miles of said place, unless to get nearer 
 thereto on the Sabbath day, any time betwixt the morn- 
 ing light and the sun setting, the master of such vessel 
 shall be liable to the like penalty as if he had departed 
 out of a harbor. ' ' ' 
 
 " Whatsoever person shall not attend the public 
 worship of God on the Lord's day in some congrega- 
 tion, allowed by law, unless hindered by sickness or 
 otherwise necessarily detained, and be thereof convicted, 
 shall incur the penalty of five shillings money for every 
 such offence," " 
 
 7. New Haven. — The colony of New Haven was 
 founded in 1638, by a number of English emigrants led 
 by the Rev. John Davenport, who had been minister 
 of St. Stephen's Chru'ch, London, but was deprived of 
 his charge and banished on account of his Puritanism ; 
 and by Mr. Theophillus Eaton, a wealthy merchant of 
 London, who had been a member of Mr. Davenport's 
 church, and sympathized with him in his Puritan 
 views. 
 
 On the 4th day of the fourth month, called June, 
 1639, all the free planters assembled together in a gen- 
 eral meeting in "a mighty barn," to consult about 
 settling a civil government according to God, and about 
 the nomination of persons who might be found, by con- 
 sent of all, fittest in all respects for the foundation work 
 ' Ibid., p. 525. * Ibid., 1717-1725, p. 248. 
 
54 The Colonies. 
 
 of a church, which was intended to be gathered in 
 Quinipiack. It was agreed by vote that " the Scrip- 
 tures do hold forth a perfect rule for the direction and 
 government of all men in all duties which they are to 
 perform to God and men, as well in the government 
 of families and commonwealths, as in matters of the 
 church. That church members only shall be burgesses, 
 and that they only shall choose magistrates and officers 
 among themselves to have the power of transacting the 
 public civil afifairs of this plantation ; of making and 
 repealing laws ; dividing inheritances ; deciding differ- 
 ences that may arise, and doing all things or business 
 of like nature ; and that all that should be hereafter 
 admitted here as planters subscribe their names to the 
 above order." 
 
 " That twelve men be chosen, that their fitness for 
 the foundation work may be tried ; however, there may 
 be more named, yet it may be in their power who are 
 chosen, to reduce them to twelve ; and it be in the 
 power of those twelve to choose out of themselves seven 
 that shall be most approved of the major part to begin 
 the church." 
 
 Mr. Davenport having preached a sermon at the 
 opening of the meeting from the text, Prov. ix., i : 
 " Wisdom hath builded her house, she hath hewn out 
 her seven pillars," the seven men were chosen as pil- 
 lars of the church, in supposed accordance with the 
 action of Wisdom as set forth in that text. 
 
 On October 25, 1639, the Court " consisting of those 
 seven only who were the foundation of the church 
 . , . met, and after solemn pra^-er unto God, did 
 proceed as follows ' ' : 
 
 First. All former power or trust for managing any 
 public affairs in this plantation, into whose hands so- 
 
New Haven. 55 
 
 ever formerly committed, was now abrogated, and from 
 henceforward utterly to cease. 
 
 Second. They admitted nine new members, upon 
 their acceptance of the terms propounded in a charge 
 delivered to them. 
 
 ' ' This being done the Court proceeded to the choice 
 of a magistrate and four deputies to assist in the public 
 affairs of the plantation, Mr. Davenport first opening 
 two Scriptures, viz. : Deut. i., 13 ; Ex. xviii., 21, 
 wherein a magistrate, according to God's mind is 
 described." ' 
 
 The town of Milford having admitted six men to be 
 free burgesses who were not church-members, and the 
 matter having been brought before the Court, it was 
 agreed, first, that these six are not to be chosen, either 
 deputies or into any public trust for the combination ; 
 second, that they are not to vote for magistrates ; third, 
 none are to be admitted by Milford hereafter to be free 
 burgesses but church-members ; but the six are to be 
 allowed to sit in town business, in which the combina- 
 tion is not interested. Two may vote for deputies to 
 the General Courts for the combination or jurisdiction, 
 which deputies shall always be church-members. "^ 
 
 The following enactment was made April 3, 1644 : 
 
 ' ' In the beginning of the first foundation of this 
 plantation and jurisdiction, upon a full debate with due 
 and serious consideration, it was agreed, concluded, and 
 settled, as a fundamental law, not to be disputed or 
 questioned hereafter, that the judicial laws of God, as 
 they were delivered by Moses and expounded in other 
 parts of the Scripture, so far as they are a fence to the 
 
 ' Records of the Colony and Plantation of New Haven, 1638- 
 1649, pp. 20, 21. 
 '^ Ibid., pp. no, III. 
 
56 The Colonies, 
 
 moral law, being neither typical nor ceremonial, nor 
 having a reference to Canaan, shall be accepted as 
 of moral equity, and as God shall help, shall be a 
 constant direction for all proceedings here and a gen- 
 eral rule in all courts of this jurisdiction, how to 
 judge between party and party, and how to punish 
 oflfenders till the same be branched out into particulars 
 hereafter." * 
 
 The following enactments were made with reference 
 to the observance of the Sabbath and attendance at 
 church, January 31, 1647: "The Court, considering 
 that it is their duty to do the best they can that the law 
 of God may be strictly observed, did therefore order that 
 whosoever in this plantation shall break the Sabbath 
 by doing any of their ordinary outward occasions, from 
 sunset to sunset, either upon the land or upon the water, 
 extraordinary cases, works of necessity and mercy being 
 excepted, he shall be counted an offender and shall suf- 
 fer such punishment as the particular court shall judge 
 mete according to the nature of the oflfence." ^ 
 
 " Whosoever shall profane the Lord's day or any part 
 of it, either in sinful servile work, or by unlawful sport, 
 or otherwise, whether wilfully or in careless neglect, 
 shall be duly punished by fine, imprisonment, or cor- 
 porally, according to the nature and measure of the sin 
 and ofience. But if the Court upon examination, by 
 clear and satisfying evidence, find that the sin was 
 proudly, presumptuously and with a high hand com- 
 mitted against the known command and authority of 
 the blessed God, such a person, therein despising and 
 reproaching the Lord, shall be put to death, that all 
 
 ' Revision of Feb. 2^, 1644-4^5, p. 191. 
 
 ' Records of the Colony and Plantation of New Haven, iS^S- 
 ^6/9, p. 358. 
 
New Haven, 57 
 
 others may fear and shun such provoking rebellious 
 courses. Num. xv., 30-36." ' 
 
 ' ' And it is further ordered that wheresoever the 
 ministry of the Word is established within this juris- 
 diction, according to the order of the gospel, every per- 
 son, according to the mind of God, shall duly resort 
 and attend thereunto upon the lyord's days, at least, 
 and also upon days of public fasting or thanksgiving 
 ordered to be generally kept and observed. And if any 
 person within this jurisdiction shall without just and 
 necessary cause absent or withdraw himself from the 
 same, he shall, after due means of conviction used, for 
 ever)' such sinful miscarriage, forfeit five shillings to 
 the plantation, to be levied as other fines." ^ 
 
 Charles II., on the 23d of April, 1662, gave a char- 
 ter to John Winthrop and others, constituting them a 
 body-politic under the title, ' ' Governor and Company 
 of the English Colony of Connecticut, in New England, 
 in America. ' ' Hartford and New Haven, which had 
 hitherto remained separate colonies, accepted this char- 
 ter, April 20, 1665, and thus became a part of the 
 colony of Connecticut. 
 
 One object of the King in granting this charter, as 
 stated therein, was that "our said people inhabiting 
 there may be so religiously, peaceably, and civilly 
 governed, as their good hfe and orderly conversation 
 may win and invite the natives of the country to the 
 knowledge and obedience of the only true God and 
 Savior of mankind and the Christian faith ; which, in 
 our royal intentions, and the adventurers free profession 
 is the only and principal end of this plantation." 
 
 This expression of the purpose of the plantation, 
 being almost identical with that contained in other 
 ^Ibid., 1653-1655, p. 605. '^ Ibid., p. 58S. 
 
58 The Colonies. 
 
 charters, may have been on the part of its author or 
 authors an empty form, but it reflects, nevertheless, the 
 public sentiment of the day, and reveals one of the 
 purposes held to be obligatory in all such enterprises. 
 
 In 1770, an Act was passed allowing all sober persons 
 who conscientiously differed from the established wor- 
 ship and ministry of the colony, to meet together for 
 worship without incurring the penalties provided in 
 previous laws against such meetings, and against 
 absence from the recognized services. ' 
 
 The Charter of 1662 continued to be the organic law 
 of the State of Connecticut until 1818, with the addition 
 of only four brief articles ; and the laws upon the sub- 
 ject of religion made under the charter continued to be 
 in force throughout and beyond the colonial period. 
 
 8. The Confederation. — In 1643, Articles of Con- 
 federation betwixt the Plantations of Massachusetts, 
 the Plantations under the government of Plymouth, the 
 Plantations under the government of Connecticut, and 
 the government of New Haven were adopted constitut- 
 ing the four colonies a confederation, under the title of 
 "The United Colonies of New England," The gov- 
 ernment of the confederation was to be entrusted to a 
 body composed of two Commissioners from each of the 
 four colonies. 
 
 In the Preamble to the Articles of Agreement, they 
 say : " Whereas, All came into these parts with one 
 and the same end and aim, namely, to advance the 
 kingdom of the I^ord Jesus Christ and to enjoy the 
 liberties of the gospel in purity and peace : . . ." 
 
 It was solemnly and unanimouslj^ approved and con- 
 cluded as a fundamental agreement upon which the 
 combination was formed, ' ' That none shall be admitted 
 ' Acts and Laws of Connecticut, ij^o-ij72, p. 351. 
 
New Haven. 59 
 
 freemen or free burgesses within this jurisdiction or any 
 part of it, but such planters as are members of some 
 one or other of the approved churches of New England ; 
 nor shall any but such be chosen to magistracy, or to 
 carry on any civil judicature, or as deputies or assist- 
 ants, to have power or vote in establishing laws, or in 
 making or repealing orders ; or to any military ofSce or 
 trust ; nor shall any other but church-members have 
 any vote in any such elections." ' 
 
 " This Court, thus framed, shall, ist, with all care and 
 diligence from time to time provide for the maintenance 
 of the purity of religion and suppress the contrary, 
 according to their best light and directions from the 
 Word of God. 2dly, though they humbly acknowl- 
 edge that the supreme power of making laws and of 
 repealing belongs to God only, and that by Him this 
 power is given to Jesus Christ as Mediator, Matt, 
 xxviii., 19 ; John v., 22 ; and that the laws for holiness 
 and righteousness are already made and given us 
 in the Scriptures, which, in matters moral or of moral 
 equity, may not be altered by any human power or 
 authority. . . . Yet civil rulers and courts, and 
 this General Court in particular, (being instructed by 
 the freemen as before,) are the ministers of God for the 
 good of the people, and have power to declare, publish, 
 and establish, for the Plantations within their jurisdic- 
 tion, the laws He hath made ; and to make and repeal 
 orders for smaller matters, not particularly determined 
 in Scriptures, according to the more general rules of 
 righteousness, and while they stand in force, to require 
 due execution of them." ' 
 
 " Forasmuch as the Word of God as it is contained 
 
 ' Code of New Haven, /6_$6, pp. 562, 567. 
 - /bid., 569. 
 
6o The Colonies. 
 
 in the Holy Scriptures is a pure and precious light, by 
 God, in His free and rich mercy, given to His people, 
 to guide and direct them in safe paths to everlasting 
 peace. And for that the preaching of the same in the 
 way of due exposition and explanation, by such as 
 God doth furnish and send, is, through the presence 
 and power of the Holj^ Ghost, the chief ordinary 
 means appointed by God for conversion, edification, 
 and salvation ; it is ordered that if any Christian, so 
 called, shall within this jurisdiction behave himself 
 contemptuously toward the word preached, or any 
 minister thereof called and faithfully dispensing the 
 same in any congregation, either by interrupting him 
 in his preaching, or falsely charging him with error, to 
 the disparagement and hindrance of the work of Christ 
 in his hands, every such person or persons shall be 
 duly punished, either by the plantation court or court 
 of magistracy, according to the quality and measure of 
 the offence, that all others may fear to break out in 
 such wickedness." ' 
 
 " It is ordered that if any Christian within this juris- 
 diction shall go about to subvert or destroy the Chris- 
 tian faith or religion by broaching, publishing, or 
 maintaining an}^ dangerous error or heresy, or shall 
 endeavor to draw or seduce others thereunto, every 
 such person so offending and continuing obstinate 
 therein, after due means of conviction, shall be fined, 
 banished, or otherwise severely punished." '' 
 
 On September 5, 1644, the Commissioners of the 
 United Colonies sent to the colonies the following for 
 adoption : 
 
 " Whereas, The most considerable persons in these 
 colonies came to these parts of America that they 
 ' Ibid., p. 588. " Jbid., p. 590. 
 
Rhode Island. 6i 
 
 might enjoy Christ in his ordinances without disturb- 
 ance ; and 
 
 " Whereas, Among man}- other precious mercies, the 
 ordinances are and have been dispensed among us with 
 much purity and power ; the Commissioners took it 
 into their serious consideration how some due mainten- 
 ance according to God might be provided and settled, 
 both for the present and future, for the encourage- 
 ment of the ministers who labor therein, and concluded 
 to propound and commend to each General Court, that 
 those who are taught in the Word in the several plan- 
 tations be brought together, that every man volun- 
 tarily set down what he is willing to allow to that end 
 and use ; and if any may refuse to pay a meet propor- 
 tion, that then he be rated with authority in some just 
 and equal way ; and if after this any man withhold or 
 delay due payment, the civil power to be exercised as 
 in other just debts." ' 
 
 In September, 1656, the Commissioners of the United 
 Colonies, upon the suggestion of the magistrates of 
 Massachusetts Bay Colony, "Proposed to the several 
 General Courts that all Quakers, Ranters and other 
 notorious heretics be prohibited coming into the United 
 Colonies ; and if any shall hereafter come or arise 
 amongst us that they be forthwith secured and re- 
 moved out of all the jurisdictions." ^ 
 
 9. Rhode Island. — Roger Williams, who was or- 
 dained a clergyman of the Church of England, became 
 a zealous Puritan soon after his ordination. In 163 1, 
 at the age of twenty-five, he emigrated to Massachu- 
 setts with his young wife. Arriving in Boston, he 
 
 ' Records of the Colony of Connecticut Prior to the Union 
 with New Haven, 1663, p. 112. 
 5 Ibid., p. 283. 
 
62 The Colonies. 
 
 refused to join the congregation of that town because 
 they would not make public declaration of their re- 
 pentance for having been once in connection with the 
 Church of England, and going to Salem he became 
 assistant minister at that place, but was soon involved 
 in controvers}^ with his brethren, which waxed so hot 
 and so disturbed the peace, that he was finally banished 
 in 1635. Among the reasons for his banishment was 
 his denying the right of the civil government to impose 
 faith and worship, and afl&rming that the power of the 
 civil magistrate extends only to the bodies, goods, and 
 outward state of men, and not to their souls and con- 
 sciences. He went to what is now Providence, R. I. , 
 and there established a pure democracy, withholding 
 from the body-politic all power to interfere in matters 
 which concern man and his Maker only. 
 
 In 1643 the inhabitants of Providence, Portsmouth, 
 and Newport, upon their petition, were granted ' ' a 
 free and absolute charter of incorporation, to be known 
 by the name of The Incorporation of Providence Plan- 
 tations in the Narragansett Bay in New England, with 
 full power to rule themselves ... by such form 
 of civil government as by voluntary consent of all, or 
 the greater part of them, they shall find most suitable 
 to their estate and condition." 
 
 The Commonwealth of England, in 165 1, claimed 
 the right to appoint the governor of the Providence 
 Plantations. In 1663 Charles II. granted a new charter 
 securing to the people the full freedom of the old one. 
 In this charter the King says : 
 
 " Whereas, We have been informed by the humble 
 petition of our trusty and well-beloved subject, John 
 Clarke, on the behalf of Benjamin Arnold . 
 (and others), that they, pursuing with peaceable and 
 
Rhode Island. 63 
 
 loyal minds their sober, serious, and religious inten- 
 tions of godly edifying themselves and one another in 
 the holy Christian faith and worship, as they were per- 
 suaded ; together with the gaining over and conversion 
 of the poor ignorant Indian natives in those parts of 
 America to the sincere profession and obedience of the 
 same faith and worship ; . . . 
 
 " And Whereas, In their humble address, they have 
 freely declared that it is much in their hearts (if thej^ 
 may be permitted) to hold forth a lively experiment, 
 that most flourishing civil state may stand and best be 
 maintained, and that among our English subjects, with 
 a full liberty in religious concernments ; and that true 
 piet)^, rightly grounded upon gospel principles, will 
 give the best and greatest security to sovereignty, and 
 will lay in the hearts of men the strongest obligation 
 to loyalty ; 
 
 ' ' Now know ye that we, being willing to encourage the 
 hopeful undertaking of our said loyal and loving sub- 
 jects, and to secure them in the free exercise and en- 
 joyment of all their civil and religious rights, apper- 
 taining to them, as our loving subjects ; and to preserve 
 unto them that libertj^ in the true Christian faith and 
 worship of God which they have sought with so much 
 travail, and with peaceable minds and loyal subjection 
 to our royal progenitors and ourselves, to enjoy ; and be- 
 cause some of the people and inhabitants of the same 
 colonies cannot in their private opinions conform to the 
 public exercise of religion according to the liturgy, forms 
 and ceremonies of the Church of England, or take or 
 subscribe the oaths and articles made and established 
 in that behalf ; and for that the same, by reason of the 
 remote distances of those places, will (as we hope) be 
 no breach of the unity and uniformity established in 
 
64 The Colonies. 
 
 this nation ; have therefore thought fit, and do hereby 
 pubhsh, grant, ordain, and declare, that our royal will 
 and pleasure is that no person, within the said colony, 
 at any time hereafter, shall be molested, punished, dis- 
 quieted, or called in question, for any difierences in 
 opinion in matters of religion, that do not actually dis- 
 turb the civil peace of our said colony ; but that all and 
 every person and persons from time to time, and at all 
 times hereafter, may freely and fully have and enjoy his 
 and their own judgments and consciences in matters of 
 religious concernments, throughout the tract of land 
 hereafter mentioned ; they behaving themselves peace- 
 ably and quietly, and not using their liberty to licen- 
 tiousness and profaneness, nor to the civil injury or 
 outward disturbance of others. . . ." 
 
 This charter remained in force as the fundamental 
 law of the colony and also of the State until the adop- 
 tion of the first State Constitution, Nov. 21-23, 1842. 
 
 While the laws of the colony established no denomi- 
 national churoh and provided for no compulsory attend- 
 ance on religious services, yet not only was a profession 
 of Christianity required as a qualification for office, but 
 also of Protestantism. From 1719 to 1783 the following 
 was on the statute book, purported to have been en- 
 acted in 1664 : " That all men professing Christianity, 
 and of competent estates, and of civil conversation, who 
 acknowledge and are obedient to the civil magistrate, 
 though of different judgments in religious affairs (Ro- 
 man Catholics only excepted) .shall be admitted free- 
 men, and shall have liberty to choose and be chosen 
 officers in this colony, both military and civil. ' ' * 
 
 There were no laws compelling the people to observe 
 
 ' Records of the Colony of Rhode Island and Providence 
 Plantations, vol. ii., p. 36. 
 
Rhode Island. 65 
 
 the Sabbath religiously, but certain things, allowable 
 on other days of the week, were prohibited on the 
 Sabbath. 
 
 On the 2d of September, 1673, it was "Voted this 
 Assembly considering that the King hath granted us 
 that not any in this colony are to be molested in 
 the liberty of their consciences, who are not disturbers 
 of the peace, and we are persuaded that a most flourish- 
 ing government, with loyalty, may be best propagated 
 where liberty of conscience, by any corporal power, 
 is not obstructed, that is not to any unchasteness of 
 body, and not by a body doing any hurt to a body, 
 neither endeavoring so to do, and although we know, 
 by man not any can be forced to worship God, or for 
 to keep or not to keep holy any day ; but forasmuch as 
 the first days of the weeks, it is usual for parents and 
 masters not to employ their children or servants as 
 upon other days ; and some others also that are not 
 under such government, accounting it as spare time, 
 and so spend it in debaistness or tippling, and unlaw- 
 ful games and wantonness, and most abominally there 
 practised by those that lived with the English, at such 
 times to resort to towns ; therefore, this Assembly, not 
 to oppose or propagate any worship, but as by prevent- 
 ing debaistness, although we know masters or parents 
 cannot, and are not, by violence to endeavor to force 
 any under their government to any worship or from 
 any worship, that is not debaistness or disturbant to 
 the civil peace, but they are to require them, and if that 
 will not prevail, if they can, they should compel them 
 not to do what is debaistness, or uncivil, or inhuman, 
 not to frequent any immodest company or practices. 
 
 " Therefore, by his Majesty's authority, it is enacted 
 that on the first davs of the weeks, whoever he be that 
 
66 The Colonies. 
 
 doth let any have any drink, that he or any other is 
 drunk thereby, besides all other forfeitures therefor, for 
 every one so drunk they shall forfeit six shillings ; and 
 for every one that entertains in gaming or tippling upon 
 the first day of the week, he shall forfeit six shillings. 
 And by his Majesty's authority thereby it is enacted, 
 that for to prevent any such misdemeanors, or if any 
 are so guilty, to discover them, that every first day of 
 the week in every town in this colony there shall be a 
 constable's watch, for every inhabitant fit to watch to 
 take his turn that belongeth to the town, or pay for 
 hiring one, so for one or more to watch in a day, as the 
 Town Coimcil judge necessary, to restrain any debaist- 
 ness, or immodesty, or concourse of people, tippling or 
 gaming, or wantonness, that all modest assemblies may 
 not be interrupted ; especially all such as profess they 
 meet in the worship of God ; if some of them will be 
 most false worshippers, they should only be strove 
 against therefore with spiritual weapons, if they do not 
 disown that they should not be condemned, whoever 
 they be, that be unchaste with their bodies, or with 
 bodies oppress, or do violence to what is mortal of any 
 man, but as they should be subject to such, to suffer 
 for such transgressions, parents may thereof correct 
 their children, and masters their servants ; and magis- 
 trates should be a terror to such evil doers. ' ' ' 
 
 10. Vermont. — Vermont can scarcely be said to 
 have had a colonial existence, but in the towns which 
 were under the jurisdiction of New York the Church 
 of England was favored by the law ; and in the towns 
 that acknowledged the jurisdiction of New Hampshire 
 or Massachusetts, the Congregational Church was the 
 established church. 
 
 1 Ibid., pp. 503, 504. 
 
New York. 67 
 
 II. New York. — Under the Dutch West India 
 Company, chartered in 162 1, no other religion was to be 
 publicly tolerated or allowed in New Netherland save 
 that then taught and exercised by authority of the Re- 
 formed Church in the United Provinces. Under the 
 royal grants to James, Duke of York and Albany, 1664 
 and 1674, the Church of England became the estab- 
 lished church of the Province. In both cases, how- 
 ever, on account of the mixed character of the people 
 and the almost perpetual conflicts of jurisdiction, it was 
 impossible to put the establishment in anything like 
 uniform and rigorous enforcement. It is probable also 
 that the Duke of York was inclined to toleration. 
 
 In 1673 each town was empowered to make laws 
 against Sabbath-breaking and other immoralities. In 
 1695 a law was enacted of which the following was the 
 preamble, viz. : 
 
 " Whereas, the true and sincere worship of God, ac- 
 cording to His holy will and commandments, is often 
 profaned and neglected by many of the inhabitants and 
 sojourners in this Province who do not keep holy the 
 IvOrd's day, but in a disorderly manner accustom them- 
 selves to travel, laboring, working, shooting, fishing, 
 sporting, playing, horse-racing, frequenting tippling- 
 houses, and the using many other unlawful exercises 
 and pastimes, upon the Lord's day, to the great scandal 
 of the holy Christian faith, be it enacted," etc. 
 
 A fine of six .shillings was imposed by this law upon 
 the offences specified in the preamble ; a justice of the 
 peace might convict on his own sight ; in default of 
 payment of the fine the ofi'ender was to sit in the stocks 
 three hours ; if any master refused to pay the fine im- 
 posed on a negro or Indian slave or .servant, the slave 
 or servant was to be whipped thirteen lashes ; it was 
 
68 The Colonies. 
 
 lawful to travel any distance under twenty miles for 
 the purpose of attending public worship, and to go for 
 a physician or a nurse. ' 
 
 12. New Jersey. — The Duke of York, whose 
 charter covered the territory southward to the east side 
 of the Delaware Bay, granted in 1664 the territory, 
 now belonging to the State of New Jersey, to Lord 
 John Berkley and Sir George Carteret. These propri- 
 etors divided their holding by a line running from 
 Barnegat Creek a little north of west to the Rancocas ; 
 the one taking the southern part, which was called 
 West Jersey, and the other the northern part, which 
 was called East Jersey. The line of division was after- 
 wards made to run northward from I^ittle Egg Harbor 
 in the lower part of Delaware Bay. Berkley sold West 
 Jersey to a company of Quakers, and in 1682 a society 
 of Quakers, under the lead of William Penn, bought 
 East Jersey of the heirs of Carteret. During the pro- 
 prietary government, there was no uniform church and 
 State establishment, but the multiplicity of proprietors 
 and the conflict between diverse interests and opinions 
 led the proprietors in 1702 to surrender their right of 
 government to the Crown, when the Church of Eng- 
 land became the established church of the province. 
 Liberty of conscience, however, was permitted to all but 
 Roman Catholics. 
 
 13. Pennsylvania. — Charles II. granted a charter 
 to William Penn for the Province of Pennsylvania, 
 March 4, 1681. In 1682 Penn promulgated The 
 Frame of Government in Pe7insylvania in America^ in 
 the preface of which he sa3'S on the subject of the rise 
 
 ' Laws of New York, 1691-1773, vol. i., pp. 23, 24. New 
 York, 1874 : Lewis, pp. 200, 201. 
 
Pennsylvania. 69 
 
 and end of government : " So that government seems to 
 me a part of religion itself, a thing sacred in its institu- 
 tion and end, . . . and is as such (though a lower, 
 yet) an emanation of the same Divine Power that is 
 both author and object of pure religion." 
 
 Among the laws agreed upon in England b}- the 
 Governor and divers freemen of the province, April 
 20, 1682, are : 
 
 ' ' XXXV. That all persons living in this Province 
 who confess and acknowledge the one Almighty and 
 Eternal God to be the Creator, Upholder, and Ruler of 
 the world, and that hold themselves obliged, in con- 
 science, to live peaceabl}- and justl}' in civil society, 
 shall in no ways be molested or prejudiced for their re- 
 ligious persuasion or practice in matters of faith and 
 worship ; nor shall they be compelled at any time to 
 frequent or maintain anj- religious worship, place, or 
 ministry whatever. 
 
 " XXXVI. That according to the good example of 
 the primitive Christians, and the ease of the creation, 
 every first day of the week, called the Lord's day, 
 people shall abstain from their common daily labor, 
 that they may the better dispose themselves to worship 
 God according to their understandings. 
 
 "XXXVII. That, as a careless and corrupt ad- 
 ministration of Justice draws the wrath of God upon 
 magistrates, so the wildness and looseness of the people 
 provoke the indignation of God against a country ; 
 therefore, that all such offences against God as swear- 
 ing, cursing, lying, profane talking, drunkenness, 
 drinking of healths, obscene words, incest, sodomy, 
 rapes, fornication, and other uncleanness (not to be re- 
 peated), ... all prizes, stage players, cards, dice, 
 May-games, gamesters, masques, revels, bull-baitings. 
 
70 The Colonies. 
 
 cruelty, looseness and irreligion, shall be respectively 
 discouraged and severely punished." 
 
 The counties of "New Castle, Kent, Sussex upon 
 Delaware ' ' were purchased of the Duke of York by 
 Penn in 1682, and were added to Pennsylvania, under 
 the title of " The Territories." 
 
 William and Mary upon ascending the throne of 
 England took the government of the Provinces and 
 Territories of Pennsylvania into their own hands, but 
 afterwards, August 26, 1695, restored to Penn his for- 
 mer possessions. 
 
 In the Charter of Privileges for Pennsylvania, 
 granted by Penn, October 28, 1701, he says : 
 
 Article i. " Whereas, no people can be truly happ)^, 
 though under the greatest enjoyment of civil liberties, 
 if abridged of the freedom of their consciences as to 
 their religious profession and worship ; and Almight}^ 
 God, being the only Lord of conscience. Father of 
 lights and spirits, and the author, as well as the ob- 
 ject of all divine knowledge, faith, and worship, who 
 only doth enlighten the minds and persuade and con- 
 vince the understandings of people ; I do hereby grant 
 and declare that no person or persons inhabiting this 
 Province or Territories, who shall confess and acknowl- 
 edge one Almighty God, the Creator, Upholder, and 
 Ruler of the world, and profess him or themselves 
 obliged to live quietly under civil government, shall be 
 in any case molested or prejudiced in his or their person 
 or estate because of his or their conscientious persua- 
 sion or practices ; nor be compelled to frequent or 
 maintain any worship, place, or ministry, contrary to 
 his or their mind ; or to do or suffer any other act or 
 thing contrary to their religious persuasion. 
 
 ' ' And that all persons who also profess to believe in 
 
Maryland. 7 1 
 
 Jesus Christ, the Savior of the worid, shall be capable 
 (notwithstanding their other persuasions and practices 
 in point of conscience or religion) to serve this govern- 
 ment in any capacity, both legislatively^ and execu- 
 tively. . . . " 
 
 This charter remained in force until the formation of 
 the first Constitution in 1776. 
 
 While the first legislative acts of the colonj'^ recog- 
 nized the Christian religion, and guaranteed liberty of 
 conscience, yet it was enacted, " to the end that loose- 
 ness, irreligion, and atheism may not creep in, under 
 pretence of conscience, whoever shall speak loosely and 
 profanely of Almightj' God, Jesus Christ, the Holy 
 Spirit, or Scriptures of truth, and is thereof legally con- 
 victed, shall forfeit and pay five pounds, and be im- 
 prisoned five daj^s in the house of correction." 
 
 All legislators, judges, and public officers were re- 
 quired to subscribe a declaration of their disbelief in 
 transubstantiation, the adoration of the Virgin Mary 
 and other saints, and the sacrifice of the Romish mass, 
 as superstitious idolatries ; also a declaration of their 
 belief in the Holy Trinity and in the divine inspiration 
 of the Scriptures. 
 
 14. Maryland. — Sir George Calvert, who was made 
 lyord Baltimore, in 1625, being much disturbed by the 
 French in the possession of his province of Avalon in 
 New Foundland, and having explored the territory 
 bordering on the Chesapeake Baj^ in 1628, returned to 
 England and petitioned Charles I. to grant him a char- 
 ter for a colony to be settled about the head of Chesa- 
 peake Bay. This petition w^as granted, but as he died 
 before the papers were executed, the charter was is- 
 sued to his son Cecilius Calvert, second Lord Balti- 
 more, June 20, 1632. The charter sets forth as one of 
 
72 The Colonies. 
 
 the grounds upon which it is granted, the fact that 
 the grantee is ' ' animated with a laudable and pious 
 zeal for extending the Christian religion." It goes on 
 to grant and confirm unto the said Baron of Baltimore, 
 his heirs and assigns, . . . "the patronages and 
 advowsons of all churches which (with the increasing 
 worship and religion of Christ) within the said region, 
 islands, islets, and limits aforesaid, hereafter shall hap- 
 pen to be built ; together with license and faculty of 
 erecting and founding churches, chapels, and places of 
 worship, in convenient and suitable places within the 
 premises ; and of causing the same to be dedicated and 
 consecrated, according to the ecclesiastical laws of our 
 kingdom of England." 
 
 Sir George Calvert had become a Roman Catholic in 
 1624, and in the light of that fact the restriction in the 
 last clause of this paragraph may fairly be interpreted 
 as prohibiting the establishment of the Catholic Church 
 in the colony, and as providing for the establishment 
 of the Church of England. 
 
 Cecilius Calvert, second I^ord Baltimore, sent his 
 brother I^eonard over as manager of an expedition, 
 which consisted of two hundred persons. The expedi- 
 tion sailed from Cowes, in the Isle of Wight, Novem- 
 ber 22, 1633, and reached its destination, March 27, 
 1634. The founding of the proprietary colonies was, 
 in a large measure, a business enterprise on the part of 
 the proprietors, and as their interest lay in the speedy 
 settlement of their estates in the new world, they were 
 ready to receive respectable and thrifty emigrants from 
 all countries and of all religious persuasions. Among 
 other inducements they offered religious toleration. 
 Such a consideration, together with the prohibition in 
 the charter as to the establishment of the Roman Catho- 
 
Maryla7id. 73 
 
 lie Church, may have contributed to the determination 
 of Lord Baltimore to make religious tolerance a promi- 
 nent feature of the new colony. He instructed his 
 governor and commissioners to cause all acts of the 
 Roman Catholic religion, on shipboard going over, to 
 be done as privately as possible ; that they instruct 
 the Roman Catholics to abstain from discourse on mat- 
 ters of religion ; and that they treat the Protestants 
 with as much mildness and favor as justice will per- 
 mit. It appears that he promisedliberty of conscience, 
 and offered lands to a colony of Puritan refugees from 
 Virginia ; and that he sent a commission to Boston to 
 invite Puritans from Massachusetts Bay to settle in 
 Maryland, offering them lands. There can hardly be a 
 doubt, however, that he was an enlightened and sincere 
 believer in religious toleration, and that he was moved 
 to this determination by principle, as well as policy. 
 
 On the 2ist day of April, 1649, an Act of Toleration 
 was passed and was confirmed by the Lord Proprietary 
 August 26, 1650. It contained the following provi- 
 sions, viz. : 
 
 ''An Act Concerning Religion. Forasmuch as in a 
 well governed and Christian Commonwealth, matters 
 concerning religion and the honor of God ought, in the 
 first place, to be taken into serious consideration, and 
 endeavored to be settled ; Be it therefore ordered and 
 enacted, by the Right Honorable Cecilius Lord Baron 
 of Baltimore, absolute Lord and Proprietary of this 
 Province, with the advice and consent of this General 
 Assembly ; that whatsoever person or persons within 
 this Province and islands thereunto belonging shall 
 from henceforth blaspheme God, that is, curse Him or 
 deny our Savior Jesus Christ to be the son of God, or 
 shall den}' the Holj^ Trinity, the Father, Son, and Holy 
 
74 The Colo7iies. 
 
 Ghost, or the Godhead of any of said three persons of 
 the Trinity, or the unity of the Godhead ; or shall use 
 or utter any reproachful speeches, words, or language 
 concerning the said Holy Trinity, or any of the said 
 three persons thereof; shall be punished with death 
 and confiscation or forfeiture of all his or her lands or 
 goods to the L,ord Proprietary and his heirs. . . . 
 
 " And be it also enacted, by the authority and with 
 the advice and assent aforesaid, that whatsoever person 
 or persons shall from henceforth use or utter any re- 
 proachful words or speeches concerning the blessed 
 Virgin Mary, the mother of our Savior, or the Holy 
 Apostles or Evangelists, or any of them, shall in such 
 case for the first offence forfeit to the said Lord Proprie- 
 tary the sum of five pound sterling or the value there- 
 of. .. . And that every such offender or offenders 
 for every second offence shall forfeit ten pound sterling 
 or the value thereof, . , . And that every person 
 or persons before mentioned offending herein the third 
 time, shall for such third offence forfeit all his lands 
 and goods, and be forever banished and expelled out of 
 this Province. 
 
 " And be it also further enacted, by the same author- 
 ity, advice, and assent, that whatsoever person or 
 persons shall from henceforth, upon any occasion of 
 offence or otherwise, in a reproachful manner or way 
 declare, call, or denominate any person or persons 
 whatsoever inhabiting, residing, trafficking, trading, or 
 commercing within this Province, or within any ports, 
 harbors, creeks, or havens, to the same belonging, an 
 Heretic, Schismatic, Idolator, Puritan, Independent, 
 Presbj'terian, Popish priest, Jesuit, Jesuited papist, 
 lyUtheran, Calvinist, Anabaptist, Brownist, Antinomian, 
 Barrowist, Roundhead, Separatist, or any other name 
 
Maryland. 75 
 
 or term, in a reproachful manner, relating to the matter of 
 religion, shall for every such oifence forfeit and lose the 
 sum of ten shillings sterling, or the value thereof, to 
 be levied on the goods and chattels of every such of- 
 fender or offenders, the one half thereof to be forfeited 
 and paid unto the person and persons of whom such 
 reproachful words were or shall be spoken or uttered ; 
 and the other half thereof to the Lord Proprietary and 
 his heirs, Lords and Proprietaries of this Province. But 
 if such person or persons who shall at any time utter or 
 speak any such reproachful words or language, shall 
 not have goods or chattels sufl&cient and overt, within 
 this Province, to be taken to satisfy the penalty afore- 
 said, or that the same be not otherwise speedily satisfied, 
 then the person or persons so offending shall be publicly 
 whipped, and shall suffer imprisonment without bail 
 or mainprise until he, she, or they, respectively, shall 
 satisfy the party so offended or grieved by such re- 
 proachful language, by asking him or her respectively 
 for forgiveness publicl)^ for such his offence, before the 
 magistrate or chief officer or officers of the town or place 
 where such offence shall be given. 
 
 " And be it further likewise enacted, by the authority 
 and consent aforesaid, that every person and persons, 
 within this Province, that shall at any time hereafter 
 profane the Sabbath or Lord's day, called Sunday, by 
 frequent swearing, drunkenness, or by any uncivil or 
 disorderly recreation, or by working on that day, when 
 absolute necessity doth not require it, shall for every 
 such offence forfeit 2s. 6d. sterling, or the value thereof, 
 and for the second offence 55. sterling, or the value 
 thereof; and for the third offence, and so for every time 
 he shall offend in like manner afterwards, 10^. sterling, 
 or the value thereof. . . . 
 
76 The Colonies. 
 
 ' ' And whereas, the inforcing of conscience in matters 
 of religion hath frequently fallen out to be of dangerous 
 consequences, in those Commonwealths where it hath 
 been practised ; and for the more quiet and peaceable 
 government of this Province, and the better to preserve 
 mutual love and amity amongst the inhabitants there- 
 of ; Be it therefore, also, by the lyord Proprietary, with 
 the advice and consent of this Assembly, ordained and 
 enacted (except as in this present Act is before declared 
 and set forth) that no person or persons whatsoever, 
 within this Province, or the islands, ports, harbors, 
 creeks, or havens thereunto belonging, professing to 
 believe in Jesus Christ, shall from henceforth be any 
 ways troubled, molested, or discountenanced for, or in 
 respect of his or her religion, nor in the free exercise 
 thereof within this Province or the islands thereunto 
 belonging ; nor any way compelled to the belief or 
 exercise of any other religion against his or her consent, 
 so as they be not unfaithful to the Lord Proprietary, or 
 molest or conspire against the civil government estab- 
 lished or to be established in this Province under him 
 or his heirs. ' ' ' 
 
 It is said that this Act is the first instance on this 
 continent in which religious liberty was proclaimed by 
 law. It has been disputed whether the Protestants or 
 the Roman Catholics were in the majority in the Pro- 
 vince and in the General Assembly at this time, and to 
 which of these parties the credit of this Act belongs. 
 The fact that there were Protestants enough in the 
 colony at the time to make this a disputed question, is 
 itself evidence that the Catholic Proprietary had, from 
 the first, adopted the principle or the rule of tolera- 
 tion. 
 
 * Archives of BTaryland Assembly, vol. i., pp. 244-247. 
 
Maryland. jj 
 
 In 1652 the royal government of England having been 
 superseded by the Commonwealth, commissioners were 
 sent over to Maryland, who, co-operating with the 
 Puritans, succeeded in establishing the authority of 
 the Commonwealth in the colony. 
 
 '' A?i Act CoJicertihig Religion. It is enacted and 
 declared in the name of his Highness, the Lord Protec- 
 tor, with the consent and the authority of the present 
 General Assembly, that none who profess and exercise 
 the popish religion, commonly known by the name of 
 the Roman Catholic religion, can be protected in this 
 Province by the laws of England, formerly established 
 and yet unrepealed ; nor by the government of the 
 Commonwealth of England, Scotland, and Ireland, 
 and the dominions thereunto belonging, published by 
 his Highness the I^ord Protector, but are to be restrained 
 from the exercise thereof; Therefore all and every 
 person or persons concerned in the law aforesaid are 
 required to take notice. 
 
 ' ' Such as profess faith in Jesus Christ (though dif- 
 fering in judgment from the doctrine, worship, and dis- 
 cipline publicly held forth), shall not be restrained 
 from, but shall be protected in, the profession of the 
 faith, and exercise of their religion, so as they abuse 
 not this liberty to the injury of others, or the disturb- 
 ance of the public peace on their part ; provided, that 
 this liberty be not extended to popery or prelacy, nor 
 to such as under the profession of Christ hold forth and 
 practice licentiousness." ' 
 
 "It is enacted that every person or persons within 
 this Province that shall be lawfull}^ convicted of swear- 
 ing, shall be liable to pay for every oath ten pounds of 
 tobacco. . . ." 
 
 ' Ibid., vol. ii., pp. 340, 341. 
 
/« 
 
 The Colonies. 
 
 No work shall be done on the Sabbath day, but that 
 which is of necessity and charity to be done. No in- 
 ordinate recreations, as fowling, fishing, hunting, or 
 other, no shooting of guns shall be used on that day 
 except in case of necessity. 
 
 Whoever shall be lawfully convicted of the breach 
 of any such law shall be liable to pay one hundred 
 pounds of tobacco, half whereof shall be to the informer 
 and the other half to the public use.' 
 
 In 1657 the proprietary government was restored, 
 and Lord Baltimore issued the following order : 
 
 ' ' His Lordship wills and requires his said Lieutenant 
 and Council that the law in this said Province entitled 
 All Act Concer7iing Religion, and passed heretofore 
 there with his Lordship's assent, whereby all persons 
 who profess to believe in Jesus Christ have liberty of 
 conscience and free exercise of their religion, there be 
 duly observed in the said Province by all the inhabi- 
 tants thereof ; and that the penalties mentioned in the 
 said Act be duly put in execution upon any offenders 
 against the same or any part thereof. ' ' ^ 
 
 The members of the Church of England, though a 
 very small minority of the population, made frequent 
 and strenuous efibrts to secure the establishment of 
 their church in the colony by the home government, 
 but by the firm and reasonable opposition of Baltimore 
 were defeated. At length, after the close of the 
 English revolution, making occasion of the failure 
 of Lord Baltimore's deputies to proclaim William and 
 Mar}', they induced the King and Queen to take the 
 government into their own hands, and the Church 
 of England was made the established church of the 
 Province. 
 
 ' Ibid., pp. 343, 344. ^ Ibid., Council I., 325. 
 
Carolina. 79 
 
 15. Carolina. — Charles II., on the 24th of March, 
 1663, granted a charter to Edward, Earl of Clarendon, 
 and others, erecting, ordaining, and incorporating a 
 province to be called the Province of Carolina, extend- 
 ing from 31 ° to 36 ° N. latitude, from the mouth of the 
 Satilla River in Georgia to Albemarle Sound. In 1665 
 a second charter was given extending the limits north- 
 ward to 36 ° 30', and southward to 29 °, including all 
 the territory between the present northern boundary' of 
 North Carolina and a point sixty-five miles south of St. 
 Augustine, Fla. 
 
 The first charter sets forth, as one of the grounds 
 upon which it is granted, the fact that the incorpora- 
 tors were ' ' excited with a laudable and pious zeal for 
 the propagation of the Christian faith." Article 3d 
 gives them " the patronage and advowsons of all the 
 chtuches and chapels which, as Christian religion shall 
 increase within the country, isles, islets, and limits 
 aforesaid, shall happen hereafter to be erected ; together 
 with license and power to build and found churches, 
 chapels, and oratories, in convenient and fit places, 
 within the said bounds and limits, and to cause them 
 to be dedicated and consecrated according to the eccle- 
 siastical laws of our kingdom of England. ' ' 
 
 i8th. " And because it may happen that some of the 
 people and inhabitants of the said Province cannot, in 
 their private opinions, conform to the public exercises 
 of religion according to the liturgies, forms, and cere- 
 monies of the Church of England, or take and sub- 
 scribe the oaths and articles made and established in 
 that behalf ; and for that the same, by reason of the 
 remote distances of these places, will, we hope, be no 
 breach of the unity and uniformity established in this 
 nation ; our will and pleasure therefore is, and we do 
 
So TJic Colonics. 
 
 by these presents, for us, our heirs and successors, 
 give and grant unto the said Edward, Earl of Claren- 
 don . . . full and free license, liberty, and authority 
 by such legal ways and means as they shall think fit 
 to give and to grant unto such person or persons in- 
 habiting and being within the said Province, or any 
 part thereof, who really in their judgments, and for 
 conscience sake cannot, or shall not conform to the 
 said liturgy and ceremonies, and take and subscribe 
 the oaths and articles aforesaid, or any of them, indul- 
 gencies and dispensations in that behalf, for and during 
 such time and times, and with such limitations and 
 restrictions as they, the said . . . shall in their 
 discretion think fit and reasonable ; and with this ex- 
 press proviso and limitation, also, that such person or 
 persons ... do not in any wise . . . scan- 
 dalize or reproach the said liturgy, forms, and ceremo- 
 nies, or anything relating thereunto, or any person or 
 persons whatsoever, for or in respect of his or their use 
 or exercise thereof, or his or their obedience and con- 
 formity thereunto." 
 
 This Article was included in the second charter, ex- 
 cepting that after the words ' ' think fit and reasonable, ' ' 
 and in place of what follows thereafter, the following 
 provision is added, viz. : 
 
 ' ' And that no person or persons unto whom such 
 liberty shall be given shall be any way molested, pun- 
 ished, disquieted, or called in question for any differ- 
 ences in opinion or practice, in matters of religious 
 concernments, who do not actually disturb the civil 
 peace of the Province, county, or colony that they shall 
 make their abode in. But all and every such person 
 and persons may from time to time, and at all times, 
 freely and quietly have and enjoy his and their judg- 
 
Carolina. 8 1 
 
 ments and consciences in matters of religion, through- 
 out all the said Province or colony, they behaving 
 themselves peaceably and not using this liberty to 
 licentiousness, nor to the civil injury or outward dis- 
 ttubance of others." 
 
 In the Fundamental Constitutioiis of Carolina, pre- 
 pared by John Locke in 1669, and amended by the 
 Earl of Shaftesbury, are the following provisions and 
 requirements, viz. : 
 
 " 96. As the country comes to be sufiiciently 
 planted and distributed into fit divisions, it shall be- 
 long to the Parliament, to take care for the building 
 of churches and the public maintenance of divines to 
 be emplo5^ed in the exercise of religion according to 
 the Church of England, which being the only true and 
 orthodox and the national religion of all the King's 
 dominions, is so also of Carolina ; and therefore it 
 alone shall be allowed to receive public maintenance 
 by grant of Parliament.' 
 
 "97. . . . And seven or more persons agreeing 
 in any religion shall constitute a church or profession, 
 to which they shall give some name to distinguish it 
 from others. 
 
 " 98. The terms of admittance and communion 
 with any church or profession shall be written in a 
 book, and therein be subscribed by all the members of 
 said church or profession ; which book shall be kept 
 by the public register of the precinct wherein they 
 reside. 
 
 " 100. In the terms of communion of any church or 
 profession, these following shall be three ; without 
 
 ^ It is said that this article was drawn up and inserted in the 
 Fundamental Constitutions by some of the Proprietors against 
 
 the judgment of Mr. Locke. 
 
 6 
 
82 The Colonies. 
 
 which no agreement or assembly of men, upon pretence 
 of religion, shall be counted a church or profession, 
 within these rules : ist. That there is a God. 2d. That 
 God is publicly to be worshipped. 3d. That it is lawful 
 and the duty of every man, being thereunto called by 
 those that govern, to bear witness to truth. . . . 
 
 "loi. No person, above seventeen years of age, 
 shall have any benefit or protection of the law, or be 
 capable of any place of profit or honor, who is not a 
 member of some church or profession, having his name 
 recorded in some one, and but one, religious record at 
 once." 
 
 These Fundamental Constitutions were abrogated by 
 the Lords Proprietors in April, 1693, and the govern- 
 ment was carried on again under the provisions of the 
 charter. The charter was not consistent in its provi- 
 sions relating to religion. One part of it guarantees 
 religious toleration to the settlers ; another furnishes a 
 basis for the establishment of the Church of England. 
 It was the interest of the proprietors, and their purpose, 
 as a body, to faithfully observe the guaranty of religious 
 freedom, but the " Society for the Propagation of the 
 Gospel in Foreign Parts," incorporated June 16, 1701, 
 construed its mission to the colonies in America to be 
 the establishment of the Church of England, and pur- 
 sued that mission in Carolina with almost fanatical 
 zeal, basing their action on the provisions of the 
 charter, which gave to the proprietors license and 
 power to build churches and to cause them to be dedi- 
 cated according to the ecclesiastical laws of England. 
 The movement was finally successful, and the Church 
 of England became the established church of both the 
 Carolinas, and continued to be so throughout the 
 colonial period. 
 
Georgia. 83 
 
 16. Georgia.— General James Oglethorpe, having 
 been appointed a trustee for the relief of insolvent 
 debtors in England, conceived a plan for the formation 
 of a colony in America, to improve their condition, and 
 to afford a refuge for the persecuted Protestants of 
 Europe. He organized a company for colonization, to 
 which a charter was granted by George II., June 9, 
 1732. The King says in the charter : " Whereas, We 
 are credibly informed that many of our poor subjects 
 are, through misfortunes and want of employment, re- 
 duced to great necessit}', inasmuch as by their labor 
 they are not able to provide a maintenance for them- 
 selves and families ; and if they had means to defray 
 their charges of passage and other expenses incident to 
 new settlements, they would be glad to settle in any 
 of our provinces in America ; . . . A?id whereas 
 we think it highly becoming our crown and royal dig- 
 nity ... to extend our fatherly compassion even 
 to the meanest and most infatuated of our people, and 
 to relieve the wants of our above-mentioned poor sub- 
 jects ; and that it will be highly conducive for accom- 
 plishing those ends that a regular colony of said poor 
 people be settled and established in the southern terri- 
 tories of Carolina ; . . . Know ye, therefore, for 
 the considerations aforesaid . . . ordained, con- 
 stituted, and appointed ... be and shall be one 
 body politic and corporate in deed and in name, by the 
 name of the Trustees for establishing the colony of 
 Georgia in America. . . . " 
 
 " And for the greater ease and encouragement of our 
 loving subjects and such others as shall come to in- 
 habit in our said colony, we do by these presents . . . 
 grant, establish, and ordain that, forever hereafter, 
 there shall be a liberty of conscience allowed in the 
 
84 The Colo7iies. 
 
 worship of God to all persons inhabiting, or which 
 shall inhabit or be resident within our said Province ; 
 and that all such persons, except papists, shall have a 
 free exercise of religion, so they be content with the 
 quiet and peaceable enjoyment of the same, not giving 
 oifence or scandal to the government. . . . And 
 we do hereby grant and ordain that such person or 
 persons, for the time being, as shall be thereunto ap- 
 pointed by the said corporation . . . shall have 
 full power and authority to administer and give the 
 oaths, appointed by an Act of Parliament, made in the 
 first year of the reign of our late royal father, to be 
 taken, instead of the oaths of allegiance and supremacy, 
 and also the oath of abjuration, . . . and, in like 
 cases, to administer the solemn affirmation to any of 
 the persons commonly called Quakers in such manner 
 as by the laws of our realm of Great Britain the same 
 may be administered. . . . " 
 
 The Trustees of the new colony regarded themselves 
 as charged with responsibility for the spiritual condi- 
 tion of the inhabitants and for the conversion of the 
 Indians, and they engaged Rev. John Wesley to go 
 out as a missionary. Wesley went out in 1735, accom- 
 panied by his brother Charles and two others, but 
 notwithstanding that he was at the time a high church- 
 man, and notwithstanding that he had not yet ex- 
 perienced what he afterwards regarded as Christian 
 conversion, yet it appears that he was more zealous to 
 turn the people from their wicked ways than to secure 
 the establishment of the Church of England. His pub- 
 lic rebukes and the exercise of his ecclesiastical author- 
 ity in denying the privileges of the communion to 
 persons who in his opinion had rendered themselves 
 unworthy by wrongdoing unrepented of, brought upon 
 
Deductions from the History. 85 
 
 him a persecution which was intended to drive him 
 from the colony, and did canse him to return to England 
 in 1738. 
 
 CHAPTER III. 
 
 DEDUCTIONS FROM THE HISTORY. 
 
 It appears from the historical survey we have made, 
 that up to the time of the colonization of America the 
 union of civil and religious institutions had been uni- 
 versal. It appears also that in the various colonial 
 governments founded in America, toleration, when se- 
 cured, was only the separation of some particular sect 
 of Christians, not of Christianity itself, from the civil 
 institutions. Even in the fundamental law of the 
 Province of Rhode Island, a Christian purpose is ex- 
 pressly stated and a particular form of Christianity 
 (Protestantism) was required as a qualification for 
 office. 
 
 In the frame of government of Pennsj'lvania, pre- 
 pared by the proprietor, William Penn, while the 
 principle of toleration was most firmly established, the 
 Christian character of the government was at the same 
 time most positively asserted, and the most rigid pro- 
 visions made for its establishment. In the colonial 
 governments, of larger religious freedom, no discrim- 
 ination was made between the various divisions of 
 Protestantism, but they were Protestant as against 
 Roman Catholicism. In those of largest freedom, no 
 discrimination was made between the various divisions 
 of the Christian church, but they were Christian as 
 
86 Deductions front the History. 
 
 against all other forms of religion, and against unbelief. 
 Not one was negative, or neutral, on the subject of 
 Christianity. 
 
 Thus far, the union of the religion of a people with 
 their civil institutions is a universal fact. Two differ- 
 ent interpretations may be put upon the fact : 
 
 I St. The universal fact may be taken as revealing a 
 law of nature. Man is by the constitution of his nature 
 religious, as well as social ; therefore, his religious and 
 social sentiments will be necessarily blended in all their 
 manifestations. Man will be religious in his social 
 institutions, just as he is social in his religious insti- 
 tutions. No antecedent purpose or effort has been re- 
 quired to bring about a union ot the civil and religious 
 institutions of mankind, for the reason that such union 
 is the primordial and natural state of things. Purpose 
 and effort have been necessary to effect a separation 
 between them, for the reason that the separation is a 
 secondary and adventitious state of things. Therefore, 
 any effort to accomplish a complete separation will be 
 an effort against nature, and will prove to be either 
 futile or destructive. 
 
 2d. The union of civil and religious institutions, al- 
 though primordial, is to be regarded as a low condition 
 which is destined to be abolished by the operation of 
 the forces of progress, which are ever present in nature, 
 either as latent or potential energy. Conflict has been 
 necessary to convert the one form of energy into 
 the other. The striking of the steel on the flint is 
 necessary to bring out the spark ; so has conflict been 
 necessary to kindle the light of liberty. When any 
 party becomes so strong as to have no fear of the opposi- 
 tion, it will assume paternal prerogatives, no matter 
 what may be the form of government or the character of 
 
Deductions from the History. 87 
 
 the constitutional restraints. An equal division of the 
 people into parties is a providential provision, as neces- 
 sary to the perpetuation of liberty, as a like division into 
 sexes is necessary for the perpetuation of the species. 
 As a matter of fact, where there has been no party 
 strong enough to maintain a conflict, which, if it were 
 in the military world, would be entitled to recognition 
 as a state of war, paternalism has reigned. It was the 
 conflict between Protestantism and the Church of 
 Rome, and between the various divisions of the Protes- 
 tant Church which brought out the principles and kin- 
 dled the fires of religious liberty in these later centuries. 
 And during this period the flame has gone out where 
 it once burned brightly, when one party became so pre- 
 dominant as to suppress all conflict. The Congrega- 
 tionalists of Massachusetts Bay banished dissenters, 
 and with them banished religious liberty from the col- 
 ony ; and liberty returned not until conflict came 
 again. The Puritans of all New England and of Mary- 
 land looked to the absence of conflict as the ideal con- 
 dition of the Commonwealth, and hesitated not to use 
 the most despotic measures to bring about that condi- 
 tion. When they were giv^en toleration, they accepted 
 it as a piece of good fortune or as a providential favor 
 to the truth they espoused, not as a right belonging to 
 all men. When in power, they felt bound by principle 
 to deny the boon to all those whom they regarded as 
 advocates of false doctrine. Nevertheless the forces of 
 progress, working constantly against all resistance, 
 made steady advancement, till now in this country the 
 principle of toleration is universally accepted. 
 
 May we not expect this righteous evolution to con- 
 tinue, until toleration shall be rejected as a lingering 
 vestige of spiritual despotism, and the era of true re- 
 
88 Deductions f7'0fn the History. 
 
 ligious liberty shall be ushered in, by the removal of 
 all religious character from our civil institutions ? 
 
 We shall not now enter upon the consideration of the 
 merits of these two interpretations of the facts of his- 
 tory, but shall proceed to take up our second subject 
 of inquiry, — The question of fact. 
 
PART ir. 
 
 A question of fact, ^\^lat is the relation of the Christian re- 
 ligion to civil government, in the United States, at the pres- 
 ent time ? 
 
 89 
 
CHAPTER I. 
 
 STATEMENT OF THE QUESTION. 
 
 In entering upon the inquiry, What is the relation 
 of the Christian religion to civil government in these 
 United States? let us bear in mind that it is simply- 
 one oi fact, and not of theory or opinion ; — what is ; 
 not what ought to be. The caution is needed ; for 
 there are unmistakable indications in some quarters 
 that opinion as to what ought to be has established 
 a foregone conclusion as to what is. On the part of 
 many it is assumed that in this country there is an en- 
 tire separation between religion and civil government ; 
 or, if there be not in fact such a separation, the connec- 
 tion, whatever it may be, is in violation of the funda- 
 mental principles of our institutions, and is a wrong to 
 a number of our fellow-citizens which a proper sense 
 of j ustice would speedily remove. It is assumed that 
 the underlying principles of our political institutions 
 require that they should be entirely destitute of re- 
 ligious character, — that they should be no more Chris- 
 tian than they are Mohammedan or pagan. We speak 
 of this as an assumption for the reason that while it is 
 often uttered as an opinion, or taken for granted as a 
 truth, there is seldom any attempt made to sustain it 
 
 91 
 
92 Statetnent of the Question. 
 
 by proof. If any such attempt is made, it is usually 
 but little more than the assertion that the whole history 
 and genius of our institutions are directly against the 
 contrary assumption. The history, as we have shown, 
 and shall still farther show, instead of furnishing ground 
 for the assumption in question, furnishes ground for the 
 very opposite. As to the genhis of our institutions, 
 it may properly be regarded as too indefinable a thing 
 to be made the basis of a definite proposition ; espe- 
 cially, if there are facts, as we shall vShow that there 
 are, which have a bearing in the opposite direction. 
 
 CHAPTER II. 
 
 THE CONSTITUTION OF THE UNITED STATES. 
 
 We shall begin this part of our investigation, with 
 an effort to ascertain the bearing of the Constitution 
 of the United States on the question. 
 
 We find that very little is said in the Constitution on 
 the subject of religion, and that what little is said is 
 of a prohibitory character. There is in the body of it 
 no mention of the name of the Divine Being ; nor any 
 recognition of His existence, not even in the form of 
 oath prescribed to be administered to the President at 
 his induction into office. 
 
 It may be said that this negative and prohibitory 
 character of the Constitution is ground for a very strong 
 presumption as to the intent of its framers. It may be 
 said, also, that this presumption is supported by the 
 fact that there were influential members of the Consti- 
 tutional Convention, who might 1)e supposed to be 
 averse to giving the Constitution the slightest religious 
 
The Co7istitution. 93 
 
 character. It is to be remarked, however, that the 
 persons referred to were a very small part of the mem- 
 bership of the convention. It is to be remarked, also, 
 that there are facts which indicate that even they would 
 not be disposed to divest the civil institutions of the 
 land of all religious character. It was Benjamin Fran- 
 klin who introduced the resolution proposing that the 
 sessions of the convention be opened with prayer. In 
 making the motion he said, ' ' The longer I live, the 
 more convincing proofs I see of this truth, that God 
 governs the affairs of men." Surely if Franklin was 
 not averse to opening with prayer the bod}- that framed 
 the Constitution, he would not be averse to a provision 
 for opening, with praj^er, the legislative bodies, acting 
 under the Constitution. Thomas Jefferson, whose in- 
 fluence ma}- have been felt in the convention, said, in 
 his first message as president, " Can the liberties of a 
 nation be thought secure when w^e have removed their 
 only firm basis, a conviction in the minds of the people 
 that their liberties are the gift of God." Surely, when 
 he was not averse to reminding the people officially of 
 this fact, he would not be averse to a recognition of the 
 fact in the system of institutions under which he held 
 his office." 
 
 ' In a letter to Dr. Joseph Priestley, dated at Washington, 
 June 19, 1802, Mr. Jefferson writes : "One passage in the 
 paper you enclosed me, must be corrected. It is the following, 
 'And all say it was yourself more than any other indi%-idual 
 that planned and established it,' i. e. the Constitution. I was 
 in Europe when the Constitution was planned, and never 
 saw it until after it was established. On recei\-ing it, 1 wrote 
 strongly to Mr. Madison, urging the want of provision for the 
 freedom of religion, freedom of the press, trial hj' jury, habeas 
 corpus, the substitution of militia for a standing army, and an 
 express reservation to the States of all rights not specifically 
 
94 The Constitution. 
 
 Now turning to the Constitution itself, we find the 
 following provisions : 
 
 Article VI. " No religious test shall ever be re- 
 quired as a qualification to any office or public trust 
 under the United States. ' ' 
 
 Amendment I., Article the First. " Congress shall 
 make no law respecting an establishment of religion, 
 or prohibiting the free exercise thereof. ' ' 
 
 If it be admitted that these two Articles are a suffi- 
 cient ground for the assumption in question, yet it is 
 to be remembered that they are expressly made to 
 apply to the general government alone. They do not 
 apply to the States. It may have been the intent in fram- 
 ing the Constitution to assign the matter of religion to 
 the domain of the States, rather than to accomplish an 
 elimination of all religious character from our civil in- 
 stitutions. It may be said that this conjecture needs 
 proof before it can be accepted as true. Of that we 
 are well aware, and we shall now proceed to give the 
 proof. 
 
 In Article i, Section lo, of the Constitution, the 
 States are prohibited doing certain specified things, 
 and the establishment of religion is not one of those 
 things. According, therefore, to the accepted max- 
 im of interpretation, Designatio nniiis est exdusio al- 
 terhis ; et expressiun facit cessare taciturn, the subject 
 of religion is left to the jurisdiction of the States. But 
 the Constitution expressly declares (Amendment i, 
 Article the Ninth) that ' ' The enumeration in the Con- 
 stitution of certain rights shall not be construed to 
 
 granted to the Union. He accordingly moved in the first Con- 
 gress for these amendments, which were agreed to and ratified 
 by the States as they now stand. This is all the hand I had — 
 related to the Constitution." Works, vol. iv., pp. 440, 441. 
 
The Constitution. 95 
 
 deny, or disparage others, retained by the people." 
 And Article the Tenth saj-s that " The powers, not 
 delegated to the United States by the Constitution, nor 
 prohibited by it to the States, are reserved to the States, 
 respectively, or to the people.'' 
 
 By a fair interpretation of the Constitution, the right 
 to recognize Christianity-, and even to make a law re- 
 specting an establishment of religion, is to be held as 
 one of the rights reser\-ed to the States. We would not 
 presume to oflfer our mere interpretation of the Consti- 
 tution, as conclusive on the question, but we have to 
 say — 
 
 I St. That our interpretation is sustained by high au- 
 thority. Judge Stor\-, in his Commentary on the Con- 
 stitution of the United States, pp. 702, 703, says, " Thus, 
 the whole power over the subject of religion was left 
 exclusively to the State governments, to be acted on 
 according to their own sense of justice, and the Stale 
 Constitutions. ' ' 
 
 2d. The Circuit Court of the United States, W. D., 
 Tennessee, In re King, August i, 1S91, decided that 
 ' ' The fourteenth amendment of the Constitution of the 
 United States has not abrogated the Sunday laws of the 
 States, and estabhshed religious freedom therein. The 
 States may establish a Church or Creed, and maintain 
 them, so far as the Federal Constitution is concerned. ' ' 
 The Court said, " As a matter of fact they (the founders 
 of our government) left the States the most absolute 
 power on the subject, and anj' of them might, if they 
 chose, establish a creed and a church and maintain 
 them." > 
 
 3d. This interpretation of the Constitution is made 
 conclusive by the fact that nearl}* all of the original 
 ' The Federal Reporter, vol. 46, p. 912. 
 
96 The States. 
 
 States either by express provision, by the disqualifica- 
 tions for office specified, or by the oaths of office pre- 
 scribed in their Constitutions, have at some time in their 
 history established either Protestantism or Christianity 
 as the religion of the State ; while one of them established 
 a particular Protestant denomination as the Church of 
 the State — all maintaining these several relations of 
 religion to the State, unchallenged under the Constitu- 
 tion of the United States. 
 
 CHAPTER III. 
 
 THE STATES. 
 
 I. Connecticut. — The Constitution of 1818, Article 
 VII., entitled Of Religion, is as follows, viz. : 
 
 Section i. "It being the duty of all men to worship 
 the Supreme Being, the great Creator and Preserver of 
 the Universe, and their right to render that worship in 
 the mode most consistent with the dictates of their 
 consciences ; no person shall, by law, be compelled to 
 join or support, or be classed with or associated with 
 any congregation, church, or religious association ; but 
 every person now belonging to such congregation, 
 church, or religious association shall remain a member 
 thereof until he shall have separated himself therefrom 
 in the manner hereinafter provided. And each and 
 every society or denomination of Christians in this 
 State shall have and enjoy the same and equal powers, 
 rights, and privileges ; and shall have power and au- 
 thority to maintain the ministers or teachers of their 
 respective denominations, and to build and repair 
 houses of public worship, by a tax on the members 
 
Connecticut. 97 
 
 of auy such society only, to be laid by a major vote of 
 the legal voters assembled at any society meeting, 
 warned and held according to law, or in any other 
 manner. ' ' 
 
 Section 2. ' ' If any person shall choose to separate him- 
 self from the society or denomination of Christians to 
 which he may belong, and shall leave a written notice 
 thereof with the clerk of such society, he shall there- 
 upon be no longer liable for any future expenses which 
 may be incurred by said society." 
 
 The following continued in force in Connecticut after 
 the adoption of the Constitution of the United States : 
 
 "Be it enacted by the Governor, Council, and Rep- 
 resentatives, in General Court assembled, and by the 
 authority of the same, that all and every person and 
 persons in this State shall, and they are hereby re- 
 quired, on the Lord's da}- carefully to apply themselves 
 to the duties of religion and piety, publicly and pri- 
 vately. And whatsoever person shall not duly attend 
 the public worship of God on the Lord's day in some 
 congregation allowed by law, provided there be any 
 which he can conscientiously and conveniently attend, 
 unless hindered b)^ sickness, or otherwise necessarily 
 prevented, shall for every such offence pay a fine of 
 three shillings." ' 
 
 A statute of 1791 imposed a fine, not exceeding 
 twelve shillings nor less than six shillings, for not ab- 
 staining from any kind of servile labor and recreation, 
 works of necessity and mercy excepted, on Fast and 
 Thanksgiving days. 
 
 2. Vermont. — Constitution of 1777, Chapter I. 
 Section j. " Nor can any man who professes the 
 Protestant religion be justly deprived or abridged of 
 ' Revised aud approved, Jau. 8, 1784. 
 
98 The States. 
 
 any civil right as a citizen, on account of his reli- 
 gious sentiment or peculiar mode of religious worship. 
 . . . Nevertheless, every sect or denomination ought 
 to observe the Sabbath or the Lord's day, and keep up 
 and support some sort of religious worship which to 
 them shall seem most agreeable to the revealed will 
 of God." 
 
 Chapter II. Section g. ' ' And each member (of the 
 House of Representatives) before he takes his seat, 
 shall make and subscribe to the following declaration, 
 viz. : ' I do believe in one God, the creator and gov- 
 ernor of the universe, the rewarder of the good and the 
 punisher of the wicked ; and I do acknowledge the 
 Scriptures of the Old and New Testaments to be given 
 by divine inspiration ; and own and profess the Prot- 
 estant religion.' And no further or other religious test 
 shall ever hereafter be required of any civil officer or 
 magistrate of this State." This requirement contin- 
 ued in force until the adoption of the Constitution 
 of 1793. 
 
 3. New Hampshire. — Constitution of 1784. Bill 
 of Rights. Article VI. " As morality and piety, 
 rightly grounded on evangelical principles, will give 
 the best and greatest security to government, and will 
 lay in the hearts of men the strongest obligation to 
 due subjection, and as the knowledge of these is most 
 likely to be propagated through a society by the insti- 
 tution of the public worship of the Deitj", and of public 
 instruction in morality and religion ; therefore, to pro- 
 mote these important purposes, the people of this State 
 have a right to impower, and hereby do fully impower, 
 the Legislature to authorize from time to time the 
 several towns, parishes, bodies politic, or religious 
 societies within this State, to make adequate provision, 
 
New yersey. Pennsylvania. 99 
 
 at their own expense, for the support and mainten- 
 ance of public Protestant teachers of piety, religion, 
 and morality." 
 
 Part II. Section //. " Ever}- member of the House 
 of Representatives . . . shall be of the Protestant 
 religion." 
 
 Section 2g. " Provided, nevertheless, that no person 
 shall be capable of being elected a Senator who is not 
 of the Protestant religion. . . . " 
 
 Sectio7i ^2. " And no person shall be eligible to this 
 office . . . unless he shall be of the Protestant 
 religion." 
 
 These provisions continued in force until 1877. 
 
 4. New Jersey. — Constitution of 1776. Article 
 XIX. "... And that no Protestant inhabitant 
 of this colony shall be denied the enjoyment of any 
 civil right merely on account of his religious princi- 
 ples, but that all persons professing a belief in the faith 
 of anj' Protestant sect who shall demean himself peace- 
 ably under the government, as hereby established, shall 
 be capable of being elected to any office of profit or 
 trust, or of being a member of either branch of the 
 L,egislature. . . ." 
 
 This article continued in force until 1844. 
 
 5. Pennsylvania. — Constitution of 1776. Bill of 
 Rights. Article II. " . . . Nor can any man 
 who acknowledges the being of a God be justly de- 
 prived, or abridged, of any civil right as a citizen on 
 account of his religious sentiments or peculiar mode 
 of religious worship." 
 
 Frame of Government. Section 10. "And each mem- 
 ber (of the House of Representatives) before he takes 
 his seat shall make and subscribe the following declara- 
 tion, viz. : 
 
100 The States. 
 
 " I do believe in one God, the creator and governor 
 of the universe, the rewarder of the good, and the pun- 
 isher of the wicked. And I do acknowledge the Scrip- 
 tures of the Old and New Testament to be given by- 
 Divine inspiration. 
 
 ' ' And no further, or other, religious tests shall ever 
 hereafter be required of any civil officer or magistrate 
 in this State." 
 
 This test remained in force until the adoption of the 
 Constitution in 1790. 
 
 Constitution of 1790. Article IX. Section 4. "That 
 no person who acknowledges the being of a God and a 
 future state of rewards and punishments, shall on ac- 
 count of his religious sentiments be disqualified to hold 
 any office or place of trust or profit under this Com- 
 monwealth." 
 
 This article was incorporated in the Constitution of 
 1838, as Article IX., Sec. 4; and in the Constitution 
 of 1873 as Article I., Sec. 4. 
 
 6. Delaware.— Constitution of 1776. Article XXII. 
 ' ' Every person who shall be chosen a member of either 
 House, or appointed to any office or place of trust, 
 before taking his seat or entering upon the execution 
 of his office, shall take the following oath or affirma- 
 tion, if conscientiously scrupulous of taking an oath, 
 to wit : 
 
 " ' I, A. B., do profess faith in God the Father, and 
 in Jesus Christ his only Son, and in the Holy Ghost, 
 one God, blessed forevermore ; and I do acknowledge 
 the Holy Scriptures of the Old and New Testaments to 
 be given by Divine inspiration.' " 
 
 This Article was part of the organic law of the State 
 until 1792. 
 
 7. Maryland. — Constitution of 1776. Declaration 
 
NorlJi Carolina. South Carolina. loi 
 
 of Rights. Article XXXIII. "That it is the duty 
 of every man to worship God in such manner as he 
 thinks most acceptable to him ; all persons professing 
 the Christian religion are equally entitled to protection 
 in their religious liberty ; . . . yet the I,egislature 
 may, in their discretion, lay a general and equal tax 
 for the support of the Christian religion, leaving to 
 each individual the power of appointing the payment 
 over the money, collected from him, to the support of 
 an)' particular place of worship or minister, or for the 
 benefit of the poor of his own denomination, or the 
 poor in general, of an^^ particular county." 
 
 This power given to the Legislature was revoked by 
 an amendment which was adopted in 1810. 
 
 8, North Carolina. Constitution of 1776. Article 
 XXXII. " That no person who shall deny the being 
 of God, or the truth of the Protestant religion, or the 
 divine authority either of the Old or New Testaments, 
 or shall hold religious principles incompatible with the 
 freedom and safety of the State, shall be capable of 
 holding any office, or place of trust or profit, in the 
 civil department within this State. 
 
 This Article was amended in 1835 by the substitu- 
 tion of the words ' ' Christian religion ' ' for the word 
 "Protestant religion." 
 
 Constitution of 1876. Article VI. Section 5. "The 
 following persons shall be disqualified for office : First, 
 all persons who shall deny the being of Almighty 
 God. . . ." 
 
 9. South Carolina. Constitution of 1778. Article 
 XXXVIII. " . . . The Chri.stian Protestant re- 
 ligion shall be deemed, and is hereby constituted and 
 declared to be, the established religion of this State. 
 That all denominations of Christian Protestants in this 
 
I 02 The States. 
 
 State, demeaning themselves peaceably and faithfully, 
 shallenjoy equal religious and civil privileges . . . ; 
 and that when fifteen or more male persons, not un- 
 der twenty-one years of age, professing the Christian 
 Protestant religion, and agreeing to unite themselves 
 in a society for religious worship, they shall (on com- 
 plying with the terms hereinafter mentioned) be, and 
 be constituted a church ; and be esteemed and regarded, 
 in law, as of the established religion of the State ; and 
 on a petition to the lyCgislature shall be entitled to be 
 incorporated, and to enjoy equal privileges. . . 
 But that previous to the establishment and incorpora- 
 tion of the respective societies of every denomination, 
 as aforesaid, and in order to entitle them thereto, 
 every society so petitioning shall have agreed to 
 and subscribed in a book, the following five articles, 
 without which no agreement or union of men, upon 
 pretence of religion, shall entitle them to be incorpo- 
 rated and esteemed as a church of the established reli- 
 gion of this State : ist. That there is one eternal 
 God, and a future state of rewards and punishments. 
 2d. That God is publicly to be worshipped. 3d. 
 That the Christian religion is the true religion. 4th. 
 That the Holy Scriptures of the Old and New Testa- 
 ments are of divine inspiration, and are the rule of faith 
 and practice. 5th. That it is lawful, and the dut}' of 
 every man, being thereunto called by those that govern, 
 to bear witness to the truth. And that every inhabi- 
 tant of this State when called upon to make appeal to 
 God as a witness to truth shall be permitted to do it, in 
 that way which is most agreeable to the dictates of his 
 own conscience. And that the people of this State 
 may forever enjoy the right of electing their own pas- 
 tors or clergy, and that at the same time the State may 
 
South Carolina. 103 
 
 have sufficient security for the discharge of the pastoral 
 office by those who shall be admitted to be clergymen, 
 no person shall officiate as minister of any established 
 church who shall not have been chosen by a majority 
 of the society to which he shall minister, or b}' persons 
 appointed by the said majority to choose and procure a 
 minister for them ; nor, until the minister so chosen 
 and appointed shall have made and subscribed to the 
 following declaration, over and above the aforesaid five 
 articles, viz. : ' That he is determined by God's grace, 
 out of the Holy Scriptures, to instruct the people com- 
 mitted to his charge, and to teach nothing, as required 
 of necessity to salvation, but that which he shall be 
 persuaded maj'' be concluded and proved from the 
 Scripture ; that he will use both public and private ad- 
 monitions, as well to the sick as to the whole within 
 his cure, as need shall require and occasion shall be 
 given ; and that he will be diligent in prayers, and in 
 reading of the Holy Scriptures, and in such studies as 
 help to the knowledge of the same ; that he will be 
 diligent to frame and fashion his own self and his family 
 according to the doctrine of Christ, and to make both 
 himself and them, as much as in him lieth, wholesome 
 examples and patterns to the flock of Christ ; that he 
 will maintain and set forward, as much as he can, 
 quietness, peace, and love among all people, and espe- 
 cially among those that are or shall be committed to his 
 charge. . . ." 
 
 It was provided in this Constitution that no person 
 should be eligible to the office of Governor and I^ieu- 
 tenant Governor, membership in the Privy Council, in 
 the Senate, and House of Representatives, who was not 
 of the Protestant religion ; also that no person should 
 be an elector who does not acknowledge the being: of a 
 
I04 The States. 
 
 God, and believe in a future state of rewards and pun- 
 ishments. 
 
 This Constitution continued to be the fundamental 
 law of the State until June 3, 1790, two years after 
 the Constitution of the United States had become the 
 supreme law of the land, and two years after the State 
 had ratified that Constitution. 
 
 10. Massachusetts. — Constitution of 1780. Part 
 First. Declaration of Rights. Article III. " As the 
 happiness of a people, and the good order and preser- 
 vation of civil government, essentially depend upon 
 piety, religion, and morality ; and as these cannot be 
 generally diffused through a community but by the in- 
 stitution of the public worship of God, and of public 
 instructions in piety, religion, and morality ; Therefore, 
 to promote their happiness, and to secure the good or- 
 der and preser\^ation of their government, the people 
 of this Commonwealth have a right to invest their legis- 
 lature with power to authorize and require, and the 
 legislature shall from time to time authorize and require, 
 the several towns, parishes, precincts, and other bodies- 
 politic or religious societies, to make suitable provision 
 at their own expense for the institution of the public 
 worship of God, and for the support and maintenance 
 of public Protestant teachers of piety, religion and 
 morality, in all cases in which such provision shall not 
 be made voluntarily. 
 
 ' ' And the people of this Commonwealth have also a 
 right to, and do, invest their legislature with authority 
 to enjoin upon all the subjects an attendance upon the 
 institutions of the public teachers aforesaid, at stated 
 times and seasons, if there be any on whose instructions 
 they can conscientiously and conveniently attend. Pro- 
 vided 7iotu'Ifhsta7idi77g, that the several towns, parishes, 
 
Massach usetts. i o : 
 
 precincts, and other bodies-politic, or religious societies 
 shall at all times have the exclusive right of electing 
 their public teachers, and of contracting with them for 
 their support and maintenance. 
 
 " And all moneys, paid by the subject to the support 
 of public worship and of the public teachers aforesaid, 
 shall, if he require it, be uniformly applied to the sup- 
 port of the public teacher or teachers of his own reli- 
 gious sect or denomination, provided there be any on 
 whose instructions he attends ; otherwise it may be paid 
 toward the support of the teacher or teachers of the par- 
 ish or precinct in which the said moneys are raised. 
 And every denomination of Christians, demeaning 
 themselves peaceably, and as good subjects of the Com- 
 monwealth, shall be equally under the protection of the 
 law ; and no subordination of any one sect or denomi- 
 nation to another shall ever be established by law. ' ' 
 
 Chapter VI. Article I. "Any person, chosen gov- 
 ernor, lieutenant-governor, councillor, senator, or rep- 
 resentative, and accepting the trust, shall before he 
 proceed to execute the duties of his place or office, 
 make and subscribe the following declaration, viz. : 
 
 " 'I, A. B., do declare that I believe the Christian 
 religion, and have a firm persuasion of its truth,' " etc. 
 
 The former article remained in force until 1833 ; the 
 latter until 1822. 
 
 Under this Constitution, the lyCgislature adopted the 
 following statute, March 4, 1800, viz. : 
 
 Sectio7i 2. '''Be it further enacted, that every corpo- 
 rate town, parish, precinct, district, or other body-politic, 
 or religious society, aforesaid, is hereby required to be 
 constantly provided with a public Protestant teacher 
 of piety, religion and morality ; and in default of 
 being so provided and supplied for the term of three 
 
io6 The States. 
 
 months in every six months, such town, parish, pre- 
 cinct, district, and other body-politic, or religious soci- 
 ety, which shall in the judgment of the court of general 
 sessions of the peace for the same county, be adjudged 
 of sufficient ability to be so provided, shall pay a fine, 
 for a first offence, of a sum not exceeding sixty dollars, 
 nor less than thirty ; and for each and every like offence 
 after the first a fine not exceeding one hundred dollars, 
 nor less than sixty dollars, together with costs of prose- 
 cution ; such fine to be recovered by indictment in the 
 court of general sessions of the peace in the county 
 where such delinquency may happen, and levied on the 
 inhabitants comprising such town, parish, precinct, dis- 
 trict, and other body-politic and religious society, so de- 
 linquent, in the same manner as other fines are levied 
 on the inhabitants of towns. 
 
 Section;^. '' Be it further e^iaded, . . . And in 
 order that all the citizens of this Commonwealth may, 
 according to the wise and reasonable provision of the 
 constitution, be alike required to contribute to the 
 support of their public teachers aforesaid. 
 
 Section 4.. ""Be it further enacted, that every town, 
 parish, precinct, district and other bod3^-politic and reli- 
 gious society, aforesaid, is hereby authorized to cause all 
 sums of money, by them respectively voted to be raised 
 from time to time in any legal meeting duly assembled 
 or holden for the settlement or support of any public 
 teacher or teachers aforesaid, or the building or repair 
 of any house or houses of public worship, to be assessed 
 upon all the ratable polls of each particular corporation 
 or religious society aforesaid (the polls and estates of 
 Quakers excepted) in the same proportion as state and 
 town taxes are by law assessed. . . . Provided, how- 
 ever, that when any person taxed in any such tax or 
 
Massachuseth. 107 
 
 assessment voted to be raised as aforesaid, being, at 
 the time of voting or raising any such tax or assess- 
 ment, of a different sect or denomination from that of 
 the corporation, body-poHtic or religious society, by 
 which said tax was so assessed, shall request that the 
 tax set against him or her in the assessment made for 
 the purpose aforesaid ma)^ be applied to the support of 
 the public teacher of his own religious sect or denomi- 
 nation ; such person procuring a certificate, signed by 
 the public teacher on whose instruction he usually at- 
 tends, and by two other persons of the society of which 
 he is a member (having been especially chosen as a 
 committee to sign such a certificate) in substance as 
 follows, viz.: 'We, the subscribers, A. B., public 
 teacher of a society for the religious sect or denomina- 
 tion called in the town, district, precinct, 
 or parish of and C, D, B, F, committee of 
 said society, do hereby certify that doth 
 belong to said society ; and that he (or she as the case 
 maybe) frequently and usually, when able, attends with 
 us in our stated meeting for religious worship. ' Which 
 certificate having been produced to the selectmen, com- 
 mittee or assessors, (as the case may require) of the 
 town, district, parish, precinct, or other body-politic or 
 religious societ}^, by whom he or she has been taxed, 
 as aforesaid, it shall be sufficient to require them, re- 
 spectively, to order and direct the treasurer of such cor- 
 poration or religious society to paj' over the amount of 
 such taxes, so applied for, to the use of the public 
 teacher of the religious sect or denomination to which 
 such applicant belongs ; and such public teacher shall 
 thereby be entitled to receive the same/ It required in 
 one instance fourteen suits at law before a town treas- 
 ' Buck's Ecclesiastical Law of Massachuetts, pp. 253-255. 
 
io8 The States. 
 
 urer yielded the taxes, and in another an expense of 
 one hundred dollars and four years' time to get four 
 dollars out of his hands for the use of a Baptist min- 
 ister. ' 
 
 In 1832 Nathaniel P. Fisher of Walpole was arrested 
 for refusing to pay the tax of $2.38 levied on him at 
 the town meeting for the support of the gospel. 
 
 Towns and Parishes — the latter being territorial sub- 
 divisions of the Town, as the Towns were of the County 
 — were the only religious organizations known to the 
 law ; they embraced all the inhabitants within their 
 boundaries, and were obliged to maintain and support 
 public religious worship. The Supreme Court of Mas- 
 sachusetts has made the following decisions : 
 
 " But when no part of a town is included in or 
 constitutes a parish, the duties of a parish are re- 
 quired of the town, which is obliged to maintain and 
 support public religious worship, and perform all par- 
 ish duties." * 
 
 ' ' Every town is considered to be a parish until 
 a separate parish is formed within it, and then the in- 
 habitants and territory not included in this separate 
 parish constitute the first parish, in pursuance of the 
 statute of 1786, C. X., S. 4." ' 
 
 " A town may, by its town ofiicers, assess a tax for 
 parochial purposes upon the members of the first par- 
 ish, though there be a second parish in the town." " 
 
 "Liability to taxation is the criterion of member- 
 ship (in a parish) so far as relates to voting, and who- 
 ever is a member of a parish has a right to vote ; and 
 
 ' Buck's Ecclesiastical Law of Massachusetts, p 43. 
 ^ Dillingham v. Suow, 5 Massachusetts, 554, 1809 ; and Coch- 
 ran V. Camden, 15 Massachusetts, 302 ; 1818. 
 2 Brunswick v. Dunning, 7 Mass., 445 ; 181 1. 
 ■• Ashley v. Wellington, 8 Pick... 524 ; 1829. 
 
Massachusetts. 109 
 
 the officer who refuses the vote of a member is liable 
 to an action." ' 
 
 Ministers, ' ' by the constitution and laws of the 
 commonwealth, are to receive their maintenance from 
 the parish and not from the church." '^ 
 
 " This body (the church) has no power to contract 
 with or settle a minister ; that power residing wholly 
 in the parish, of which the members of the church, 
 who are inhabitants, are a part. The church nominates 
 the minister. A contract of settlement is made wholly 
 between the parish and the minister, and is obligatory 
 only on them." " 
 
 "A Congregational Church, connected with a par- 
 ish, is not a corporation, nor a <7««.«-corporation, for 
 the pturpose of holding property ; although, like a cor- 
 poration, in respect to its power to act by vote and 
 majorities." ^ 
 
 " Nor are the deacons of such a church made a cor- 
 poration by the statute of 1785, C. 51, for receiving and 
 managing a fund for the support of a minister. ' ' " 
 
 Chief-Justice Parsons held that, whatever the usage 
 in settling ministers, the Bill of Rights of 1780 secures 
 to towns, not to churches, the right to elect the minister 
 in the last resort. ° 
 
 Bvery citizen being taxed for the support of the 
 
 ' Sparrow v. Wood, i6 Mass., 457; 1820. Oakes v. Hill, 14 
 Pick., 442 ; 1833. 
 
 - Boutell V. Cowdiu, 9 Mass., 253 ; 1812. General Statutes, C. 
 xxxi. S. I. 
 
 ^ Burr V. ist Parish in Sandwich, 9 Mass., 296 ; 1812. 
 
 •* Stebbins z/. Jennings, 10 Pick., 172 ; 1830. Parker v. May, 
 5 Cush., 345 ; 1850. Weld v. May, 9 Cush., 181 ; 1852. Jefts v. 
 York, 10 Cush., 392 ; 1852. 
 
 ^Boutell V. Cowdin, 9 Mass., 254; 1812. General Statutes, 
 C. xxxi., S. I. 
 
 * Avery v. Tyringham, 3 Mass., 181. 
 
1 1 o The States. 
 
 church had a right to vote in the administration of 
 the affairs of the church. This right did not pro- 
 duce any serious trouble until the rise of the Uni- 
 tarian controversy in 1820. The non-communicants of 
 the town or parish in some cases united with a Uni- 
 tarian minority in the church and elected a Unitarian 
 pastor, against the protest of the Orthodox majority of 
 the communicants. The town of Dedham in 1 8 1 8 chose 
 Mr. lyamson, a Unitarian, as pastor. Two thirds of 
 the communicants, being opposed to him, went across 
 the street to worship ; and holding that they were the 
 church, brought suit for the possession of the property. 
 The case went to the Supreme Court of the State, and 
 the court decided, Justice Parker giving the decision, 
 that the Orthodox majority had no right to the property, 
 and further decided that ' ' that body (the church) could 
 not take fee or succession because it was not a body- 
 politic, and could neither take nor hold a legal interest 
 in land. ' ' ' Upon this decision about half of the towns 
 of Eastern Massachusetts elected Unitarian pastors ; 
 thus, in effect, ejecting the Orthodox communicants 
 from their church property. The Orthodox were now 
 willing to consent to the separation of the church, as a 
 religious organization, from the town and parish, as civil 
 organizations, which was effected in the amended Bill 
 of Rights of 1834. The Bill of Rights was so amended 
 as to simply recognize "the public worship of God 
 and instruction in piety, as promoting the happiness 
 and prosperity of a people, and the security of a republi- 
 can form of government. ' ' Up to this time it was the 
 duty of the Commonwealth, not only to recognize the 
 value of such worship and instruction, but to provide 
 for it and enforce attendance upon it. 
 
 ' Baker et al. v. Fales, 16 Mass., 487 ; 1820. 
 
Massachtisdts. 1 1 1 
 
 As late as 1835 a fine might have been collected in 
 Massachusetts from any able-bodied citizen who ab- 
 sented himself from preaching for three months.' 
 
 It appears to be conclusive, therefore — 
 
 I St. From a fair interpretation of the Constitution 
 itself; 
 
 2d. From the opinions of jurists ; and 
 
 3d. From the fact that States made laws respecting an 
 establishment of religion, and maintained such an estab- 
 lishment under the Constitution unquestioned, that the 
 authority in relation to religion, which was prohibited 
 by the Constitution to congress, was reserved to the 
 States ; and that the Constitution of the United States 
 was not intended to, and did not, effect a total separa- 
 tion between the religious and civil institutions of the 
 people. 
 
 CHAPTER IV. 
 
 THE ORDINANCE OF 1 787. 
 
 We turn now to the Ordinance of 1787 as bearing 
 upon the question of fact. 
 
 On the ist of March, 1784, Virginia ceded to the 
 United States the territory northwest of the Ohio River. 
 The cession was accepted, and on the 13th of July, 1787, 
 Congress passed an ordinance for the government of 
 that territory. Article III. of that ordinance is in part : 
 "Religion, morality, and knowledge, being necessary 
 to good government and the happiness of mankind, 
 schools and the means of education shall forever be 
 encouraged." The ordinance declares itself to be a 
 compact, and was adopted by the United States as 
 • Buck's Ecclesiastical Law of Massachusetts^ p. 27. 
 
1 1 2 The Ordinance of lySy. 
 
 such. Article VI. which says " There shall be neither 
 slavery nor involuntary servitude in the said territory, 
 otherwise than in punishment of crimes, whereof 
 the party shall have been duly convicted," has been 
 repeatedly interpreted as a compact. Upon a motion 
 to repeal it, in 1803, in the interests of the slave- 
 holding States, John Randolph reported adversely on 
 the ground that it was a part of a compact. This 
 ordinance was adopted before the adoption of the Con- 
 stitution of the United States, but it was re-affirmed 
 after the adoption of the Constitution, on May 7, 
 1800, in providing for the government of Indiana terri- 
 tory ; on February 3, 1809, in providing for the govern- 
 ment of Illinois territory ; on April 18, 1818, in the act 
 enabling the people of Illinois to form a State Constitu- 
 tion. The ordinance, excepting Article VI. prohibiting 
 slavery, was re-adopted, under the Constitution, April 
 24, 1802, in accepting the cession of territory from 
 Georgia. In the act of March 2, 18 19, authorizing the 
 people of Alabama to form a Constitution and State 
 government, it was required that the Constitution 
 should not be " repugnant to the ordinance of the 13th 
 of July, 1787, between the people of the United States 
 and the people of the territory northwest of the Ohio 
 river." 
 
 There can be no doubt that it was the intention of 
 the framers of the ordinance to make its articles per- 
 petually binding. On this question the ordinance it- 
 self is conclusive, the 14th section being as follows : 
 "It is hereby ordained and declared, by the authority 
 aforesaid, that the following articles shall be con- 
 sidered as articles of compact between the original 
 States and the people and States in said territory, and 
 forever remain unalterable unless by common consent. ' ' 
 
The Ordinance of lySy. 1 1 3 
 
 In two of the articles the words ' ' forever ' ' are applied 
 to the stipulations therein contained, viz.: Article III., 
 to the encouragement of schools and the means of 
 education for the promotion of religion, morality and 
 knowledge; Article IV., to the prohibition of "tax, 
 impost or duty ' ' upon the use of ' ' the navigable 
 waters leading into the Mississippi and St. Lawrence, 
 and the carrying places between the same." 
 
 For a long time it was the prevailing public opinion 
 that the articles of the ordinance were perpetually 
 binding on the States formed out of the Northwestern 
 and Southwestern Territories, but the courts have dif- 
 fered in opinion on the subject. It has been held by 
 the courts that when Congress by act extended the 
 provisions of the ordinance to territory outside of that 
 described in the ordinance, those provisions were not 
 binding on the States formed out of such territor}-. 
 This view, which is obviously correct, was held by the 
 Supreme Court of the United States in Permoli v. the 
 Municipality of New Orleans, 3 How., 589, and in Wil- 
 liamette Iron Bridge Co. v. Hatch, Oct., 1887, 125, 
 U. S., I. 
 
 It has been held by the courts that the terms of the 
 ordinance were perpetually binding on the States 
 formed out of the territory described therein, and that 
 when the State Constitution departed in any particular 
 from the terms of the ordinance, and the Constitution 
 was approved by Congress, that approval completed 
 the assent of the original parties to the alteration thus 
 made in the terms of the compact. The first part of 
 Article VI. of the ordinance, that prohibiting slavery, 
 was incorporated in the State Constitution of Ohio, but 
 the last part, that allowing the slave escaping into the 
 territory from any of the original States to be "re- 
 
1 1 4 The Ordinance of lySy. 
 
 claimed and conveyed to the person claiming his or her 
 labor or service," was omitted, and it was held by the 
 Supreme Court of the United States in Strader et al. v. 
 Graham, Dec, 1850, 10 How., 82, that the act of Con- 
 gress admitting the State into the Union with that 
 omission in her Constitution was a modification of the 
 terms of the compact, in accordance with the provisions 
 made in the ordinance for the purpose. Three slaves 
 valued at $3000 had escaped by the steamer Pike from 
 lyouisville, Ky., to Cincinnati, O., and thence to Can- 
 ada, and the owners of them brought suit against the 
 owners and the master of the steamer, citizens of Ohio, 
 to recover value. The plaintiffs argued that their 
 claim was made good by the provision in the last part 
 of Article VI. of the Ordinance of 1787. The court de- 
 cided against the claim on the ground that the Consti- 
 tution of Ohio, having received the sanction of Congress, 
 that part of Article VI. stood suspended or altered by 
 consent. In rendering the decision the Court said : 
 ' ' For thirty years the State courts within the territory 
 ceded by Virginia have held this part of Article IV. 
 (relating to free navigation of the waters) to be in force 
 and binding on them respectively, and I feel unwilling 
 to disturb this wholesome decision which is so conserva- 
 tive of the rights of others, in a case in which the 4tli 
 Article is in no wise involved, and when our opinion 
 might be disregarded by the State courts as obiter and 
 a dictum uncalled for. ' ' 
 
 The Legislature of Ohio incorporated the Zanesville 
 Canal and Manufacturing Company, authorizing them 
 to make a dam and lock in the Muskingum River. In 
 a freshet the lock became so filled with driftwood and 
 sand that it could not be used. Williams and Hogg 
 had loaded a boat for the New Orleans market, and 
 
The Ordinance of lySy. 1 1 5 
 
 being unable to go through the lock employed skilful 
 pilots to take the boat over the dam ; the boat became 
 unmanageable in the passage, and striking against a 
 pier below the dam was wrecked. The owners brought 
 suit for damages, basing their claim on the last part of 
 Article IV. of the Ordinance of 17S7, which is as fol- 
 lows : 
 
 ' ' The navigable waters leading into the Mississippi 
 and St. Lav/rence and the carr3'ing places between 
 them shall be common highwaj-s, and forever free, as 
 well to the inhabitants of the said Territory, as to the 
 citizens of the United States, and those of any other 
 States that may be admitted into the confederacy, with- 
 out any tax, impost or dutj' therefor." 
 
 The Supreme Court of Ohio, in giving its decision 
 in the case, said : ' ' This part of the Ordinance is as 
 much obligator^' upon the State of Ohio as our own 
 Constitution. In truth, it is more, for the Constitution 
 ma}' be altered by the people of the State, while this 
 cannot be altered without the assent both of the people of 
 this State and of the United States, through their rep- 
 resentatives. It is an article of compact, and until we 
 assume the principle that the sovereign power of the 
 State is not bound by compact, this clause must be con- 
 sidered obligatory. . . . Every citizen of the United 
 States has a perfect right to its (the Muskingum River) 
 free navigation ; a right, derived not from the lyCgisla- 
 ture of Ohio, but from a superior source. With this 
 right the Legislature cannot interfere ; in other words, 
 cannot by any law which they may pass impede or ob- 
 struct the navigation of the river ; but it does not fol- 
 low that laws may not be enacted to improve the navi- 
 gation of these rivers. In passing laws to improve the 
 navigation, care must be taken that that which was 
 
1 1 6 The Ordinance of lySy. 
 
 intended as an improvement shall not operate as an 
 obstruction. The court are unanimous in the opinion 
 that the plaintiffs have a right of action." ' 
 
 In Hutchinson et al. v. Thompson et al., 9 Ohio, 66, 
 the Supreme Court said, " The conclusion to which I 
 have come is that the clause in the Ordinance (relating 
 to 'navigable waters') contains a limitation on the 
 power of the general government, as well as a prohibi- 
 tion on the States." 
 
 In the case of Lessees of Thomas Cochran's Heirs 
 V. David Loring, 17 Ohio, 409, the Supreme Court 
 said : ' ' The principles declared in these articles (of 
 the Ordinance of 1787) are to prevail not only during 
 the territorial government, but for all remaining 
 time." 
 
 The Supreme Court of the United States in Huse v. 
 Glover, 119 U. S., 543, held that the tolls collected at 
 the Henry and Copperas Creek locks in the Illinois River 
 were not violations of the Ordinance of 1787, in that 
 they were taken simply as compensation for the use of 
 artificial facilities constructed to improve the navigation 
 of the river, and not as an impost ; seeming to imply 
 that any exaction amountiiig to an impost would be in 
 violation of the ordinance, and would be prohibited. 
 
 In EscanabaCo. v. Chicago, 107 U. S., 678, however, 
 that court said : " Whatever limitation upon her powers 
 (the State of Illinois) as a government, whilst in the 
 Territorial condition, whether from the Ordinance of 
 1787, or the legislation of Congress, it ceased to have 
 any operative force except as voluntarily adopted by 
 her, after she became a State of the Union. On her 
 admission she at once became entitled to and possessed 
 
 ' Williams aud Hogg z'. Zauesville Canal and Manufactur- 
 ing Co., 5 Ohio, 410. 
 
The Ordinance of lySj. 1 1 7 
 
 all the rights of dominion and sovereignty which be- 
 longed to the original States. She was admitted, and 
 could be admitted, only on the same footing with 
 them." 
 
 In Sands v. Manistee River Improvement Co., Nov., 
 1887, 123 U. S., 288 the court said : "There was no 
 contract in the 4tli article of the Ordinance of 1787 
 . which bound the people of the Territory, or 
 of any portion of it when subsequently formed into a 
 State and admitted into the Union." 
 
 This view has been held with almost complete uni- 
 formity by that court. Besides the decisions already re- 
 ferred to as setting it forth, it is affirmed in the cases of 
 Permoli v. the Municipality of New Orleans, 3 How., 
 589 ; in Huse v. Glover, 119 U. S., 543, and in Pollard's 
 lessee V. Hagan, 3 How., 391. 
 
 It may be that the principle of the sovereignty of 
 the State in its domestic affairs, subject to the Consti- 
 tution of the United States, does necessarily render the 
 Ordinance of 1787 void in the States formed out of the 
 Northwestern and Southwestern Territories. It may 
 be that the States formed out of the Northwestern Ter- 
 ritorj" might after admission into the Union have altered 
 their constitutions, and established the institution of 
 slaver}" had they so willed. The decision of the Supreme 
 Court of the United States in the case of Menard v. As- 
 pasia, 5 Peters, 504 ; Jan., 1831, giving a slave her free- 
 dom, implies as much, for if the terms of the ordinance 
 in § 2, " saving, however, to the French and Canadian 
 inhabitants and other settlers of the Kaskaskies, St. Vin- 
 cent's, and the neighboring villages, who have hereto- 
 fore professed themselves citizens of Virginia, their laws 
 and customs now in force among them, relative to the 
 descent and convej^ance of propert)'," are void in a 
 
1 1 8 The Ordinance of lySy. 
 
 State, all the terms of the ordinance are void in the 
 like case. ' 
 
 There can be no doubt, however, that the overwhelm- 
 ing public sentiment of the country would have re- 
 garded the establishment of the institution of slavery, 
 by any State formed out of the Northwestern Territory, 
 as a violation of a compact, which the founders of our 
 government intended to be of perpetual obligation. 
 
 It may be that the article of the ordinance requiring 
 that ' ' schools and the means of instruction shall be 
 forever encouraged " for the purpose of promoting 
 ' ' religion, morality and knowledge, ' ' is void in the 
 
 > The mother of Aspasia, a colored woman, was born a slave 
 and was held as such by a French inhabitant of Kaskaskia, 
 Illinois, previous to the year 1787, and after that year was held 
 as a slave by the same individual, who was a citizen of that 
 country before its conquest by Virginia, and before the passage 
 of the ordinance for the government of the territory northwest 
 of the river Ohio, and who continued to be such afterwards 
 and was such at the time of Aspasia's birth. Aspasia was born 
 in the year 1787, and from the time of her birth she was raised 
 and held as a slave till some time in the year 1821, when she 
 was purchased by the plaintiff in error, who immediately after 
 gave her to his son-in-law, Francis Chouteau, then residing in St. 
 I^ouis, Mo., who held her as his slave until October 10, 1827, 
 when he returned her to the plaintiff in error, in consequence 
 of the claim she set up for her freedom. 
 
 The Circuit Court of St. Louis and the Supreme Court of 
 Missouri sustained her claim for freedom, whereupon appeal 
 was taken to the Supreme Court of the United States. 
 
 The plea set up in court against her claim was, that the case 
 was protected by the contract made with the State of Virginia, 
 contained in the Ordinance of 1787 above cited. When Gen. 
 Gage in 1764 took possession of the country in behalf of Great 
 Britain, he promised in his proclamation to the subjects of 
 France then in the territory, that they should enjoy the same 
 rights and privileges and the same security for their persons 
 
The Ordinance of lySy. 1 19 
 
 States formed out of the Northwestern and Southwest- 
 ern Territories, and that the prohibition of all religious 
 exercises in the public schools of those States would 
 not be a violation of any fundamental law of the land, 
 but there can be no doubt that it was the intention of 
 the founders of our government to make a fundamental 
 law requiring that schools and the means of instruction 
 should forever be encouraged for the purpose specified, 
 and that but for the unforeseen effect of the principle of 
 State sovereignty and State equality such would have 
 been the law. 
 
 and property as under their former sovereign. The treaty made 
 with France also gave the same guarant)'. 
 
 In 1778 the territory was conquered by the troops of Virginia 
 under Gen. George Rogers Clarke, and by an act of Virginia 
 erecting it into a county it was declared that the inhabitants shall 
 enjoy their own religion, " together with all their civil rights 
 and property." The cession of this territory by Virginia to the 
 United States was made with a full knowledge of the existence 
 of property in slaves therein, and of the guaranties previously 
 made. Congress recognized the existence of such property in 
 the act of May 7, 1800, which provided that the division of the 
 territorj' of the United States northwest of the river Ohio into 
 two separate governments should take place " when satisfactory 
 evidence shall be given to the Governor thereof that such is the 
 wish of a majority of the free male inhabitants of the age of 
 21 years and upwards " ; and also provided that the representa- 
 tives in the General Assembly are to be apportioned to the 
 several counties " agreeably to the number oifree males of the 
 age of 21 and upward." It was pleaded also that the case was 
 protected by Article 11 of the Ordinance of 1787, which pro- 
 vided that " No person shall be deprived of his liberty or 
 property but by the judgment of his peers or the law of the 
 laud." 
 
 The Supreme Court of the United States dismissed the case 
 for want of jurisdiction, which, in the circumstances, was equiv- 
 alent to a confirmation of the decision of the lower court. 
 
1 20 The Ordinance of lySy. 
 
 There can be no doubt that the United States Gov- 
 ernment was bound by the compact of 1787 to promote 
 "religion, morality and knowledge," by encouraging 
 ' ' schools and the means of education ' ' within the 
 territory received by cession from Virginia and Georgia 
 while the local governments therein were of the terri- 
 torial form. 
 
 And there can be no doubt that the religion which 
 it was under obligation to promote was the Christian 
 religion, and not the religion of the Winnebago and 
 Choctaw Indians. 
 
 In view of these facts, it can hardly be held that the 
 founders of our government intended to produce an 
 entire separation of the religion of the people from 
 their civil institutions, and it would be preposterous 
 to assume that the}^ had done what they intended not 
 to do. 
 
 CHAPTER V. 
 
 THB COMMON I,AW. 
 
 In the investigation of the question of fact, it is to 
 be observed that some connection between the religious 
 and civil institutions of a people is an inevitable re- 
 sult of the conditions of all social and political organi- 
 zation. 
 
 So far, we have not undertaken to define our civil 
 institutions, or to obtain any precise idea of what they 
 are. Very important constituent elements of them we 
 have, thus far, left entirely out of view. It would be 
 a very great error to suppose that so brief a document 
 as the Constitution of the United States embraced in 
 its provisions the whole compass of our civil institu- 
 
The Common Law. 121 
 
 tions. True, it is the supreme law of the land ; but 
 there was a vast body of law which existed long before 
 it was framed, and which continued in force under it, 
 either by express provision or necessary implication. 
 The common law, and that body of law which we may 
 say has been made by equity decisions, form a very 
 large and important part of our civil institutions. 
 Lord Stair says that " equity is the body of the law ; 
 the statutes of men are but as the ornament and vesti- 
 ture thereof ' ' The order in the development of the 
 civil institutions of a people, as given by Sir Henry 
 Maine in his work on ancient law, has been, not 
 first, the laying down of principles and then building 
 thereon, but, first, a single judgment on a particular 
 case ; second, custom or common law ; third, equity ; 
 fourth, legislation and constitutions. Constitutions 
 came last of all and were super-added to a great body 
 of law which had previously existed, — they viodified, 
 but did not displace the pre-existent law. Amendment 
 VIII. of the Constitution of the United States says, 
 "And no fact tried by a jury shall be, otherwise, 
 re-examined in any court of the United States than 
 according to the rules of the common law," and all 
 the courts have affirmed the common law to be a part 
 of the law of the land. The common law is not suffi- 
 ciently defined as the Lex 7ion scripta, in distinction 
 from the Lex scripta. Nor is it sufficiently defined as 
 composed of customs, "whereof the memory of man 
 runeth not to the contrary." It is in great part writ- 
 ten, and it also gives force to customs that are not of 
 immemorial origin. Sir Matthew Hale says: "When 
 I call those parts of our laws Leges no7i scriptce, I do 
 not mean as if these laws were only oral, or communi- 
 cated from former ages to the latter merely by word. 
 
1 2 2 Equity. 
 
 For all these law.s have their several monuments in 
 writing, whereby they are transferred from one age to 
 another, and without which thej^ would soon lose all 
 kind of certainty. They are for the most part extant 
 in records of pleas, proceedings, and judgments, in 
 books of reports, and judicial decisions, in tractates of 
 learned men's arguments and opinions, preserv^ed from 
 ancient times and still extant in writing. ' ' The author- 
 ity of the common law is therefore not the feeble and 
 uncertain authority of a shadowy tradition, but the 
 fixed and vigorous authority of a written law. It has 
 a close connection with, if it does not derive a large 
 part of its contents from, equity decisions. 
 
 CHAPTER VI. 
 
 EQUITY. 
 
 A CERTAIN writer has said that "It is impossible, 
 in the nature of things, that any code of laws should 
 provide a remedy suited to every particular case. It 
 has therefore been found necessary in every civilized 
 nation to establish some form of authorit}^ which should 
 control the rigor and remedy the deficiency of positive 
 law." Another has said that " Some contrivance must 
 be provided to meet those cases in which the applica- 
 tion of existing laws would, in the manifold complica- 
 tions of human affairs, work injustice." In these cases 
 the judge must decide in accordance with reason and 
 right, governing his decision by moral rather than by 
 legal considerations. ' ' Courts of equity or chancery 
 were supposed to proceed from those principles which 
 affect the moral sense, and on this account the presid- 
 
Equity. 1 2 3 
 
 ing judge or chancellor was in the earl}- daj-s an eccle- 
 siastic. In the old law abridgments chancery law is 
 found under the title Conscience. " ' In England it was 
 said that " Equity flowed from the king's conscience." "^ 
 
 Equity decisions form an important part of the law 
 of almost every civilized people. Now it is ven,- plain 
 that the decision of the judge in these cases will be 
 governed by the moral code which prevails among the 
 people, and thus the principles of that moral code, 
 whatever it maj^ be, will enter into the law of the land. 
 
 The Romans found it to be necessary, in administering 
 justice among the subjugated Italian nations to allow 
 the judges to be governed in their decisions by the rules 
 of law which were common to the Romans and those 
 nations ; whence sprang up what was called the jus 
 getitiuni. ^ 
 
 The speculative Greeks regarded the general princi- 
 ples of justice, which were applicable to all nations, as 
 having their basis in nature ; and bj^ nature they meant a 
 something which was manifested, not onl}' in the forms 
 of the material world, in the life of plants and animals, 
 but also in the thoughts, feelings, and volitions of man. 
 This mystic, primal, all-per%'ading something, called 
 nature, was the standard of perfection. As man w^as 
 not perfect, he had fallen ; and the great work set 
 before him was the return to nature. To live accord- 
 ing to nature was to live right.* Upon the conquest 
 of Greece bj- the Romans this philosophy made instan- 
 taneous progress in Rome, and passed into the Jus 
 geyitium. It has been remarked that the Roman law 
 was constantly and powerfully influenced by the Stoic 
 and Academic philosoph}-, and that they were the main 
 
 ^ Ancient Laze, ■^. sW. ^Ibid., xxii. 
 
 ^ Ibid., xxvii., 68. *Ibid., xviii., 57-62. 
 
124 Equity. 
 
 sources of those doctrines of universal justice which 
 were quietly and constantly passing into the civil law, 
 through their incorporation with judicial decisions.' 
 
 All nations who are ruled by laws and customs are 
 governed partly by their own particular laws (civil law), 
 and partly by those laws which are common to all man- 
 kind. ' ' Equity claims to supersede the civil law 
 by virtue of superior sanctity in its principles." " Its 
 claim to authority is grounded, not on the prerogative 
 of any external person or body ; not even on that of 
 the magistrate who enunciates it ; but on the special 
 nature of its principles to which, it is alleged, that all 
 law ought to conform." "The rules of Equity pre- 
 tend to a paramount sacredness, entitling them at once 
 to the recognition of courts, even without the concur- 
 rence of prince or parliamentary assembly." ^ 
 
 Through Equity, the moral code of a people enters 
 into the laws by which they are governed, and becomes 
 a part of the law of the land. If that code rests upon 
 the teachings of the Zend Avesta, then Zoroastrianism 
 will become a part of the law of the land ; if on the 
 Koran, then Mohammedanism ; if on the Scriptures 
 of the Old and New Testaments, then Christianity will 
 become part of the law of the land. It is, in the nature 
 of things, inevitable ; no disbelief of the basis of the 
 code, or desire to have it otherwise on the part of par- 
 ticular individuals, can prevent it. The cup of water 
 taken from the spring or well contains various mineral 
 and organic matters in solution, and though one should 
 prefer that it were otherwise, or believe that the water 
 would be more wholesome if it did not contain these 
 substances, yet it is plainly impossible that it should 
 be otherwise, coming, as the water does, through beds 
 ' Ibid., 52-4. ^ Ibid., xvii, 27, 28, 44. 
 
The Opinions of y^irisis. 125 
 
 of clay and gravel and crevices in rocks that are full 
 of these substances. There might, perhaps, be no ob- 
 jection to a man's preference or his opinions on this sub- 
 ject, but it would be a great mistake to take these as 
 exponents of the fact, and point to the clearness of the 
 water as a proof of the fact. The question — What is, 
 and of necessity must be the fact in such a case ? it 
 would seem that any reasonable person could answer 
 without a moment's hesitation. 
 
 The question before us is a similar one, and it would 
 seem that whatever one's preference or opinion might 
 be, there could hardly be a doubt as to the fact, that 
 Christianity does, and of necessity must, hold some 
 real and valid connection w'ith the civil institutions of 
 a Christian people. 
 
 CHAPTER VII. 
 
 the; opinions of jurists. 
 
 Blackstonk says in section 2 of the Introduction to 
 his Commentaries, " Upon these two foundations, the 
 law of nature and the law of revelation, depend all 
 human laws ; — that is to sa}', no human laws should 
 be suffered to contradict these." 
 
 Sir Matthew Hale, in a decision he gave, said that 
 "Christianity is part of the law of England." Lord 
 Mansfield said : " The true principles of natural religion 
 are part of the common law ; the essential parts of re- 
 vealed religion are part of the common law : so that a 
 person vilif3'ing, subverting, or ridiculing them may be 
 prosecuted at common law ; but temporal punishments 
 ought not to be inflicted for mere opinions." 
 
126 The Opinions of ywnsts. 
 
 James Wilson, of Pennsylvania, who was a member 
 of the Constitutional convention of the United States, 
 and who was afterwards judge of the Supreme Court 
 of the United States, states that profaneness and blas- 
 phemy are offences punishable by fine and imprison- 
 ment, and that Christianity is part of the common 
 law. ' 
 
 The late Theodore W. Dwight, LL. D,, President 
 of the Columbia College I^aw School, New York, says : 
 "It is well settled by decisions in the courts of the 
 leading States of the Union, that Christianity is a part 
 of the common law of the State. . . . The American 
 states adopted these principles from the common law 
 of England, rejecting such portions of the English law 
 on this subject as were not suited to their customs and 
 institutions. Our national development has, in it, the 
 best and purest elements of historic Christianity, as re- 
 lated to the government of States. Should we tear 
 Christianity out of our law we would rob our law of 
 its fairest jewels ; we would deprive it of its richest 
 treasures ; we would arrest its growth ; and bereave it 
 of its capability to adapt itself to the progress in culture, 
 refinement, and morality of those for whose benefit it 
 properly exists." ^ 
 
 Judge Story, in his Commentaries on the Const itti- 
 tion of the United States, (p. 698) says : " The right of 
 a society or government to interfere in matters of re- 
 ligion will hardly be contested by any persons who be- 
 lieve that piety, religion, and morality, are intimately 
 connected with the well-being of the State, and indis- 
 pensable to the administration of civil justice. The 
 promulgation of the great doctrines of religion, the 
 l)cing, and attributes, and providence of one Almighty 
 
 ' Works, vol. iii., p. 112. "Church and State, Schaff, p. 61. 
 
77/6' Opinions of Jurists. i 2 7 
 
 God; the responsibility to him for all our* actions, 
 founded on moral freedom and accountability ; a future 
 state of rewards and punishments ; the cultivation of 
 all personal, social, and benevolent virtues, — these never 
 can be a matter of indifference to a well-ordered com- 
 munity. It is, indeed, difficult to conceive how any 
 civilized society can exist without them. And, at all 
 events, it is impossible for those who believe in the truth 
 of Christianity as a divine revelation to doubt that it is 
 the special duty of the government to foster and en- 
 courage it among all citizens and subjects. This is a 
 point wholly distinct from that of private judgment, in 
 matters of religion, and of freedom of public worship, 
 according to the dictates of one's own conscience. . . . 
 Probably at the time of the adoption of the Constitution, 
 and of the amendment of it now under consideration 
 (Amendment I. ' Congress shall make no law respect- 
 ing an establishment of religion or prohibiting the free 
 exercise thereof.') the general, if not the universal, 
 sentiment in America was that Christianity ought to 
 receive encouragement from the State, so far as it is 
 not incompatible with the private rights of conscience 
 and the freedom of religious worship. An attempt to 
 level all religions, and to make it a matter of State pol- 
 icy to hold all in utter indifference, would have created 
 universal disapprobation, if not universal indignation." 
 
 CHAPTER VIII. 
 
 DECISIONS OF THE STATE) SUPREME; COITRTS. 
 
 The; Supreme Court of New York in the case of the 
 People t'. Ruggles, August 1811, the indictment being 
 for blasphemous utterances against Christ, — Kent, Chief 
 
1 2 8 Legal Decisions. 
 
 Justice, delivering the opinion, said : " The very idea 
 of jurisprudence with the ancient lawgivers and phi- 
 losophers embraced the religion of the country. . . . 
 The free and undisturbed enjoyment of religious opin- 
 ion, whatever it maybe, and" free, decent discussions 
 on any religious subject is granted and secured ; but 
 to revile with malicious and blasphemous contempt 
 the religion professed by almost the whole community 
 is an abuse of right. Nor are we bound by any ex- 
 pressions in the Constitution, as some have strangely 
 supposed, either not to punish at all, or to punish in- 
 discriminately, 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 en- 
 grafted upon Christianity, and not upon the doctrines 
 or worship of those impostors. . . . The object of 
 the 38th article of the constitution was to ' guard 
 against spiritual oppression and intolerance,' by declar- 
 ing that ' the free exercise and enjoyment of religious 
 profession and worship, without discrimination or pre- 
 ference, should forever 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. ' ' ' 
 
 In the decision of the Supreme Court of New York 
 in the case of lyindenmuller v. the People, Feb. 4, 1861, 
 Judge J. Allen, delivering the opinion, said : " Reli- 
 gious tolerance is entirely consistent with a recognized 
 religion. Christianity may be conceded to be the es- 
 tablished religion, to the qualified extent mentioned, 
 ' 8J0I1USOU, 290. 
 
Legal Decisions. 1 29 
 
 while perfect civil and political equality with freedom 
 of conscience and religious preference is secured to 
 individuals of every other creed and profession. 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 de- 
 bated, 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 lyCgisla- 
 ture, 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. ' ' The Court goes on to say that : " It 
 was conceded in the convention of 1821 that the court 
 in People v. Ruggles did decide that the christian re- 
 ligion was the law of the land, in the sense that it was 
 preferred over all other religions, and entitled to the 
 recognition and protection of the temporal courts by the 
 common law of the State. Mr. Root proposed an 
 amendment to obviate that decision ... to the 
 effect that the judiciary should not declare any particu- 
 lar 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 opposed by Chancellor Kent, 
 Daniel D. Tompkins, Col. Young, Mr. Van Buren, 
 Rufus King, and Chief-Justice Spencer, and rejected 
 by a large majority ; and the former provision retained, 
 with the judicial construction in People v. Ruggles 
 fully recognized. New York State Convention of 1821, 
 /<5^-57/. It is true that the gentlemen differed in 
 their views as to the effect and extent of the decision, 
 and as to the legal status of the Christian religion in 
 
1 30 Legal Decisions. 
 
 the State. One class, including Chief-Justice Spencer 
 and Mr. King, regarded Christianity — the Christian 
 religion — as distinguished from Mohammedanism, etc., 
 as a part of the common law, adopted by the Con- 
 stitution ; while another class, including Chancellor 
 Kent and Mr, Van Buren, were of the opinion that the 
 decision was right, not because Christianity was es- 
 tablished 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 that mali- 
 ciously to revile it is a public grievance, and as much 
 so as any other outrage upon common decency and 
 decorum. This difference in views is in no sense ma- 
 terial' as it leads to no difference in practical results 
 and conclusions. All agreed that the Christian reli- 
 gion was engrafted upon the law and entitled to pro- 
 tection as a basis of our morals and the strength of 
 our government, but for reasons differing in terms 
 and in words, rather than in substance, . . , The 
 conviction was right, and judgment must be affirmed," ' 
 One Updegraph was indicted in Pennsylvania for 
 blasphemy in saying that ' ' The Holy Scriptures were 
 a mere fable ; that they were a contradiction, and that 
 although they contained a number of good things, yet 
 they contained a great many lies," and was charged 
 with ' ' contriving and intending to scandalize and bring 
 into disrepute and vilify the Christian religion and 
 the Scriptures of Truth . . , to great dishonor of 
 
 ' 33 Barbour, 560-578. (Judgmeut for violation of the law 
 against Sunday theatres;. 
 
Legal Decisions. 1 3 1 
 
 Almighty God, to the great scandal of the profession 
 of the Christian religion, to the evil example of all 
 others in like case, offending and against the form of 
 the Act of Assembly in such case made and provided." 
 The plea in defence was, ist, That the Act of 1700 
 ("An act to prevent the grievous sins of cursing 
 and swearing," etc.) was virtually repealed b}- the 
 adoption of the Constitution of 1776. 2d, If the Con- 
 stitution of 1776 repealed the Act of 1700 it also 
 repealed the common law upon the subject. 3d. Such 
 expression only becomes criminal when it interferes 
 with the order of government, disturbs the peace of 
 society. 4th, This State was a British province at the 
 time the law of 1700 had its birth, a part of the Brit- 
 ish empire, when it was necessary, as the Christian 
 religion formed part of the laws of the land, that laws 
 should be enacted for its support and protection. It 
 was then consistent with the system of despotism 
 under which the country groaned ; it formed a neces- 
 sary' part of the whole machine. 
 
 The case went to the Supreme Court of Pennsylvania 
 and that Court, (Duncan, Justice, delivering the opin- 
 ion,) said: "The assertion is once more made that 
 Christianity never was received as part of the common 
 law of this Christian land, and it is added that if it was, 
 it was virtually repealed b}- the Constitution of the 
 United States, as inconsistent with the liberty of the 
 people, the freedom of religious worship, and hostile 
 to the genius and spirit of our government. . . . We 
 will first dispose of what is considered the grand objec- 
 tion, the Constitutionality of Christianity ; for in effect 
 that is the question. Christianity, general Christianity, 
 is, and always has been, a part of the common law of 
 Pennsylvania ; Christianity, without the spiritual artil- 
 
1 3 2 Legal Decisions. 
 
 lery of European countries, for this Christianity was 
 one of the considerations of the royal charter, and the 
 very basis of its great founder William Penn ; not 
 Christianity founded on any particular religious ten- 
 ets ; not Christianity with an established church and 
 tithes and spiritual courts ; but Christianity with lib- 
 erty of conscience to all men. . . . It is liberty 
 run mad to declaim against the punishment of these 
 offences, or to assert that the punishment is hostile to 
 the spirit and genius of our government. . . . No 
 free government now exists in the world unless where 
 Christianity is acknowledged and is the religion of the 
 country. So far from Christianity, as the counsel con- 
 tends, being part of the machinery necessary to despot- 
 ism, the reverse is the fact. Christianity is part of the 
 common law of this state. It is not proclaimed by 
 the commanding voice of any opinion, but expressed 
 in the calm and mild accents of customary law. Its 
 foundations are broad, and strong, and deep ; they are 
 laid in the authority, the interest, the affections of the 
 people." ' 
 
 In the case of Johnson v. Commonwealth, being a 
 complaint for running an omnibus into the city of Pitts- 
 burgh on Sunday, the Supreme Court of the same 
 State said, Woodward delivering the' opinion. Black 
 and Lewis dissenting, " The common law adopted it 
 (Sunday) along with Christianity, of which it is one of 
 the bulwarks. ' ' ^ 
 
 In the case of the State v. Ambs, the indictment being 
 for keeping open an alehouse on Sunday, on appeal to 
 the Supreme Court of Missouri, the plea was made in 
 
 ' Updergraph v. the CommouweaUh, 1 1 Sergeant and Rawle, 
 398 ; 1822. 
 
 '■* 10 Harris, 102, 115. 
 
Les^al Decisions. 
 
 defence, " that the whole system of laws, designed to 
 enforce the observance of the Christian Sabbath, is un- 
 constitutional : I St. They interfere with the rights of 
 conscience. 2d, They impose a religious form of wor- 
 ship. 3d. They give a preference to one religious sect 
 over all others." The Court said, Scott, J., delivering 
 the opinion, and all concurring: " Those who question 
 the constitutionality of our Sunday laws seem to 
 imagine that the Constitution is to be regarded as an 
 instrument framed for a State, composed of strangers, 
 collected from all quarters of the globe, each with a 
 religion of his own, bound by no previous social ties, 
 nor sympathizing in any common reminiscences of the 
 past ; that, unlike ordinary laws, it is not to be con- 
 strued in reference to the state and condition of those 
 for whom it was intended. . . . It is apprehended 
 that such is not the mode by which our organic law is 
 to be interpreted. We must regard the people for 
 whom it was ordained. It appears to have been made 
 by Christian men. The Constitution on the face of it 
 shows that the Christian religion was the religion of 
 its framers. . . . The convention sat under a law 
 exacting a cessation of labor on Sunday. The jour- 
 nal of the convention will show that this law was 
 obeyed by its members, as such, by adjourning from 
 Saturday until Monday. . . . They then who en- 
 grafted on our constitution the principles of religious 
 freedom, therein contained, did not regard the com- 
 pulsory obsei-vance of Sunday as a day of rest a vio- 
 lation of those principles. They deemed a statute 
 compelling the obser\'ance of Sunday necessary to 
 secure the full enjoyment of the rights of con- 
 science." ' 
 
 ' 20 Missouri, Bennett, v., pp., 214, 221. 
 
1 34 Legal Decisions. 
 
 In the case of Shover v. the State, the Supreme Court 
 of Arkansas said : " This system of religion (the Chris- 
 tian) is recognized as constituting part and parcel of the 
 common law, and as such all of the institutions grow- 
 ing out of it, or in any way connected with it, in case 
 they shall not be found to interfere with the rights of 
 conscience, are entitled to the most profound respect 
 and can rightfully claim the protection of the law-mak- 
 ing power of the State." Indictment for keeping a 
 dram shop open on Sunday.' 
 
 In the case of Richmond v. Moore, ^ the Supreme 
 Court of Illinois, Walker, J. delivering the opinion, 
 said, " Although it is no part of the functions of 
 our system of government to propagate religion and 
 enforce its tenets, yet when the great body of the 
 people are Christians, in fact, or in sentiment, our 
 laws and our institutions must necessarily be based 
 upon and embody the teachings of the Redeemer of 
 mankind. It is impossible that it should be otherwise. 
 And, in this sense, and to this extent, our civilization 
 and our institutions are emphatically Christian." 
 
 In the case of the State v. Chandler,^ the Supreme 
 Court of Delaware rendered a decision distinguished 
 for its learning and its clear enunciation of principles. 
 The indictment "was for blasphemy, and charged that 
 Thomas J. Chandler on the loth day of May in the 
 year of our Lord 1836, with force and arms, and not 
 having the fear of the L,ord before his eyes, but being 
 moved and seduced by the instigation of the devil, and 
 contriving and intending to scandalize and vilify the 
 Christian religion, and to blaspheme God and our Lord 
 Jesus Christ, the Savior of the world, unlawfully, wick- 
 
 ' 5 Arkansas, English, 260. ' 107 Illinois, p. 429. 
 
 3 2 Harrington, 553. 
 
Legal Decisions. 1 3 5 
 
 edl}^, and blasphemously , in the presence and hearing of 
 div'ers citizens of this State, spoke, pronounced and 
 with a loud voice published these profane and blasphe- 
 mous words, viz. : That the Virgm Mary teas a xvhore 
 and Jesus Christ was a bastard ; to the great dishonor of 
 Ahnighty God, in contempt, and to the great scandal 
 of the christian religion, against the form of an act of 
 the General Assembly, in such case made and provided; 
 and against the peace and dignity of the State." 
 
 M'Beth, of counsel for the defendant, relied mainly 
 on the alleged uncon.stitutionality of the statute against 
 blasphemy, as being a law preferring Christianity to 
 other modes of worship, 
 
 " After verdict, the defendant's counsel moved in ar- 
 rest of judgment in each case (he had been tried and 
 convicted in another case, in which he had simply trans- 
 posed the terms of the statement, saying \h3X Jesus Christ 
 was a a7id the \^irghi Mary was a ,) and 
 
 the question of the constitutionalit}^ of the statute 
 against blasphemy was again discussed, Rogers, deputy 
 Attorney General for the State, and M'Beth for the de- 
 fendant. . . . The court held both cases under ad- 
 visement until the November term, 1837, (The first 
 hearing having been at the Maj' term proceeding) when 
 the following opinion was delivered by the Chief Justice, 
 J. M. Clayton." 
 
 The Court said, " It is true that the maxim of the 
 English law that ' Christianitj^ is part of the common 
 law,' may be liable to misconstruction, and has been 
 misunderstood. It is a ciurrent phrase among the spe- 
 cial pleaders, ' that the Almanac is a part of the law of 
 the land,' By this it is meant that the court will ju- 
 dicially notice the daj^s of the week, month, and other 
 things properly belonging to an almanac, without 
 
36 Legal Decisions. 
 
 pleading or proving them. In the same sense it is 
 sometimes said that the lex parliamentaria is a part of 
 the law of the land. 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. 
 . . . It (the common law) took cognizance of and 
 gave faith and credit to the religion of Christ as the 
 religion of the common people. It acknowledged their 
 right voluntarily to prefer that religion, and to be pro- 
 tected in the enjoyment of it ; and it carried that pro- 
 tection to the full length of punishing any man who 
 outraged the feelings of the people, and insulted civil 
 society, by wantonly and maliciously reviling or ridi- 
 culing the religion which they had freely preferred, and 
 upon which they had staked all their hopes and happi- 
 ness, both here and hereafter. . . . The distinction 
 is a sound one between a religion preferred by law and 
 a religion preferred by the people, without the coercion 
 of law. . . . We hold that the people of Delaware 
 have a full and perfect constitutional right to change 
 their religion as often as they see fit. They may to- 
 morrow, if they think it right, profess Mahometanism 
 or Judaism, or adopt any other religious creed they 
 please ; and so far from any court having power to pun- 
 ish them for such an exercise of right, all their judges 
 are bound to notice their free choice and religious prefer- 
 ence, and to protect them in the exercise of their right. 
 Put the case then that they repudiate the religion of 
 their fathers and adopt Judaism ; and that their legis- 
 lature in obedience to their wishes ordains that to deride 
 or ridicule the Jewish creed shall be blasphemy, and 
 punishable, as blasphemy is now punished. On an 
 indictment against any man for maliciously revileing 
 Moses in public, in the language of this defendant, and 
 
Legal Decisions. 137 
 
 publishing the Jewish religion as a villainous impos- 
 ture, are we, or are we not bound to sentence him ac- 
 cording to the statute ? Suppose the people then abjure 
 Judaism, adopt the Koran and profess the religion of 
 Mahomet. If their legislature enact that to revile or 
 ridicule the prophet shall be blasphemy, may we, or 
 may we not against him who shall go in to their public 
 places and with a loud voice, maliciously revile and ridi- 
 cule Mahomet, denounce the penalties of their statute ? 
 . . . It will be seen that in our judgment, by the 
 Constitution and laws of Delaware, the Christian reli- 
 gion 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. The moment they change 
 it and adopt any other, as they may do, the new reli- 
 gion becomes in the same sense a part of the law, 
 for their courts are bound to yield it faith and credit, 
 and respect it as their religion. . . . But it may, 
 and will be objected, by some (for the question has ex- 
 cited deep interest among the writers of the day) that 
 this mode of considering the subject is open to the re- 
 mark that the law may forever change with the religion 
 and customs of the people. Then it may be said, that 
 the Christian himself may live to see the day when he 
 shall not dare to proclaim publicly that the religion of 
 Mahomet, or the impostures of Joe Smith, are the just 
 topics of his ridicule and contempt. We answer that 
 when that day shall arrive, (if come it must) in which 
 the people shall forsake the faith of their forefathers for 
 such miserable delusions, no human power can restrain 
 them from compelling every man, who lives among 
 them, to respect their feelings. A new code of laws, 
 and a new Constitution, would at once spring into ex- 
 istence, if they found that those under which we live 
 
1 38 Legal Decisions. 
 
 did not protect them from such insults. But in that 
 event no man could justify himself under the present 
 civil institutions of the State in endangering the public 
 peace. He might feel himself impelled by a stern sense 
 of religious duty to brave public opinion and become a 
 martyr for his zeal. All this he might do and justify 
 himself in his own opinion for it before God. So too 
 that resistance to government, which would be rebel- 
 lion or treason in a court of law, may be patriotism and 
 virtue in foro consciencicB. He who forcibly resists a 
 bad religion is thus far like him who resists a bad gov- 
 ernment : if successful in his resistance he may become 
 a reformer of men or a hero : if unsuccessful, a martyr 
 or a traitor. But a court of law is not merely \h&foru7n 
 consciencice. When human justice is rightly adminis- 
 tered according to our common law and our Constitu- 
 tion, it refuses all jurisdiction over crimes against God, 
 unless they are by necessary consequence crimes 
 against civil society, and known and defined as such 
 by the law of man. It assumes that for sin against 
 our Creator, vengeance is his, and he will repay. It 
 adapts itself to the condition of man as he is. ... So 
 far from its being true that it (the common law) cannot 
 suit itself to the religious and moral code, and the ever 
 varying conditions of the people, whenever they vol- 
 untarily prefer to change them, it tolerates every 
 change in either, prohibits no reformation ; and, keep- 
 ing constantly in view that its great object is to 
 preserve the public peace and good order of society, 
 without dictating what religion will best sustain it, or 
 prohibiting any reformation in religious matters, it tol- 
 erates under all circumstances every attempt to change 
 which does not by some overt act endanger the public 
 peace and safety. It is emphatically a law for the pro 
 
Legal Decisions. 1 39 
 
 tection of religious liberty, and no law can be such 
 which does not protect the public peace from insults 
 and outrages upon public opinion, when freely estab- 
 lished and known to be so, whether the protection be 
 for Christian, Infidel, Jew, or Turk." 
 
 CHAPTER IX. 
 
 DECISIONS OF THE UNITED STATES SUPREME COURT. 
 
 The question was in issue before that court in 1844 
 in the case of Vidal and others v. the Executors of 
 Stephen Girard. 
 
 Stephen Girard, who died in Philadelphia, Pa., in 
 1 83 1, left by his will forty-five acres of land and two 
 millions of dollars to found and endow a college, in 
 which poor white male orphans between six and ten 
 j^ears of age were to be received, educated, and main- 
 tained until they were between fourteen and eighteen 
 years of age. One of the provisions of the will was as 
 follows, viz. : " I enjoin and require that no ecclesiastic, 
 missionary, or minister of any sect whatever shall ever 
 hold or exercise any station or duty whatever in the 
 said college ; nor shall any such person ever be ad- 
 mitted for any purpose within the premises appro- 
 priated to the purposes of said college. ' ' The will was 
 contested on three grounds : ist, on account of the 
 uncertainty in the description of those who are in- 
 tended to receive its benefits ; 2d, on account of the 
 incompetence of the city of Philadelphia to receive the 
 trust ; 3d, because the plan proposed by Mr. Girard 
 was derogator>^ to the Christian religion. Mr. Web- 
 ster, the great expounder of the Constitution, appeared 
 
1 40 Legal Decisions. 
 
 for the contestants, and made in the case one of 
 his notable legal arguments. Upon the last ground 
 of contest the substance of his argument was : ist. 
 Our civil institutions are Christian. 2d. Any bequest 
 which is made purposely hostile to Christianity cannot 
 receive the protection of the law as a charity. 3d. 
 The hostility manifested in the provisions of the will 
 against the agents employed in the promotion of Chris- 
 tianity must be construed as hostility to Christianity 
 itself. He argues that while there is in this land per- 
 fect freedom of opinion, of speech, and worship, yet 
 the law cannot use its power to establish and per- 
 petuate anything that is directly and avowedly hostile 
 to Christianity. He says: "Any man may go into 
 that State [Pennsylvania] and speak or write as much 
 as he pleases against a popular form of government, 
 freedom of suffrage, trial by jury ; he may decry civil 
 liberty, and assert the divine right of kings, still he 
 does nothing criminal ; but if to give success to such 
 efforts special powers from a court of justice is required 
 it will not be given. ... If Mr. Girard in his 
 life time had founded schools and employed teachers to 
 preach and teach infidelity, or against popular govern- 
 ment, free suffrage, trial by jury, or the alienability of 
 property, there was nothing to stop him or prevent 
 him from doing so ; but where any one or all of these 
 come to be provided for a school or system, as a cliarit}^ 
 and come before the courts for favor, then in neither 
 one, nor all, nor any, can they be favored, because they 
 are opposed to the general public policy and public law 
 of the State. ' ' He says : ' ' There can be found no such 
 thing as a school of instruction, in a Christian land, 
 from which the Christian religion has been, of intent 
 and purpose, rigorously and opprobriously excluded, 
 and yet such school regarded as a charitable trust, a 
 
Legal Decisions. 1 4 1 
 
 foundation. I do not say that there may not be charity 
 schools in which religious instruction is not provided. 
 I need not go that length, although I take that to be 
 the rule of the English law, but what I do say and 
 repeat is that a school for the instruction of the young, 
 which sedulously and reproachfully excludes Christian 
 knowledge, is no charity, either on principle or author- 
 ity, and is not therefore entitled to the character of a 
 charity in a court of Equity. I have considered this 
 proposition, and am ready to stand by it. I am willing 
 that inquiry should be prosecuted to any extent of re- 
 search to controvert this position. " " There is nothing 
 we look for with more certainty than this general 
 principle, that Christianity is part of the law of the 
 land. This was the case among the Puritans of Eng- 
 land, the Episcopalians of the Southern States, the 
 Pennsj'lvania Quakers, the Baptists, the mass of the 
 followers of Whitefield and Wesley, and the Presbyte- 
 rians, — all brought and adopted this great truth, and all 
 have sustained it. And where there is zwy religious 
 sentiment among men at all, this sentiment incorpo- 
 rates itself with the law. Every thing declares it, — the 
 massive cathedral of the Catholic, the Episcopal church 
 with its lofty spire pointing heavenward, the plain 
 temple of the Quaker, the log church of the hardy pio- 
 neer of the wilderness, the mementos and memorials 
 around us, the graveyards, their tombstones and epi- 
 taphs, the silent vaults, the mouldering contents, — all 
 attest it. The dead prove it, as well as the living. 
 All, all proclaim that Christianity, general, tolerant 
 Christianity, Christianity independent of sects and par- 
 ties, that Christianity to which the sword and fagot 
 are unknown, general, tolerant Christianity, is the law 
 of the land.'" 
 
 ' Works, vol. vi., pp. 133, 177. 
 
142 Legal Decisions. 
 
 The will was sustained by the court. Not, however, 
 because the validity of the first two propositions in 
 Mr. Webster's argument was questioned, their validity 
 being expressly affirmed by the court, but because the 
 construction of the will set forth in the third proposi- 
 tion, which was that the hostility manifested in the 
 will against the agents employed in promoting Chris- 
 tianity must be construed as hostility against Christi- 
 anity itself, was held by the court not to be a necessar}^ 
 construction, and not in accordance with the facts in 
 the case. Justice Story delivered the opinion of the 
 court, which was unanimous. The Court says : " It is 
 also said, and truly, that the Christian religion is a part 
 of the common law of Pennsylvania ; . . . yet it 
 is so in this qualified sense, that its divine origin and 
 truth are admitted, and, therefore, that it is not to be 
 maliciously and openly reviled and blasphemed against, 
 to the annoyance of believers, or the injury of the pub- 
 lic. . . . There must be plain, positive, and express 
 provisions demonstrating, not only that Christianity is 
 not to be taught, but that it is to be impugned or repu- 
 diated. Now in the present case there is no pretence 
 to say that any such positive or express provisions ex- 
 ist, or are even shadowed forth in the will. The tes- 
 tator does not say that Christianity shall not be taught 
 in the college, but only that no ecclesiastic of any sect 
 shall hold or exercise any station in the college. Sup- 
 pose, instead of this, he had said that no person but a 
 layman shall be an instructor, or officer, or visitor in 
 the college. What legal objection could be made to 
 such restriction, and yet the actual prohibition is in 
 effect the same in substance. But it is asked, why are 
 ecclesiastics excluded if it is not because they are the 
 stated and appropriate preachers of Christianity ? The 
 
Legal Decisions. 143 
 
 answer may be given in the very words of the testator : 
 ' In making this restriction I do not mean to cast any 
 reflection on any sect or person w'hatsoever ; but I de- 
 sire to keep the tender minds of the orphans who are 
 to derive advantage from this bequest free from the 
 excitement which clashing doctrine and sectarian con- 
 troversy are so apt to produce.' . . . But the ob- 
 jection itself assumes the proposition that Christianity 
 is not to be taught because ecclesiastics are not to be 
 instructors or ofl&cers. Why may not la3-men instruct 
 in the general principles of Christianity as well as 
 ecclesiastics ? There is no restriction as to the religious 
 opinions of the instructors or officers — why may not 
 the Bible, and especiallj' the New Testament, without 
 note or comment, be read and taught as a divine reve- 
 lation, in the college, its general precepts expounded, 
 its evidences explained, and its glorious principles of 
 morality inculcated ? What is there to prevent a work, 
 not sectarian, upon the general evidences of Christianity 
 from being read and taught by lay teachers ? Certainly 
 there is nothing in the will that proscribes such studies. 
 Above all, the testator positively enjoins, ' that all the 
 instructors and teachers in the college shall take pains 
 to instill into the minds of the scholars the purest prin- 
 ciples of morality, so that on their entrance into active 
 life the}' may, from inclination and habit, evince benev- 
 olence towards their fellow-creatures, and a love for 
 truth, sobriety, and industry, adopting, at the same 
 time, such religious tenets as their matured reason may 
 enable them to prefer.' Now, it may well be asked, 
 what is there in all this which is positively enjoined 
 inconsistent with the spirit or truth of Christianity? 
 Are not these truths all taught by Christianity, al- 
 though it teaches much more ? Where can the purest 
 
1 44 Legal Decisions. 
 
 principles of morality be learned so clearly or so per- 
 fectly as from the New Testament ? Where are benevo- 
 lence, the love of truth, .sobriety, and industry so 
 powerfully and irresistibly inculcated as in the sacred 
 volume? The testator has not said how these great 
 principles are to be taught, or by whom, except it be 
 by laymen ; nor what books are to be used to explain 
 or enforce them. All that we can gather from his lan- 
 guage is that he desires to exclude sectarians and sec- 
 tarianism from the college, leaving the instructors and 
 officers free to teach the purest morality, the love of 
 truth, sobriety, and industry by all proper means, and 
 of course including the best, the surest, and the most 
 impressive. We are satisfied that there is nothing in 
 the devise establishing a college, nor in the regulations 
 and restrictions contained therein, which are inconsis- 
 tent with the Christian religion, or are opposed to any 
 known policy of the State of Pennsylvania. ' ' ' 
 
 In this decision it is expressly asserted that Chris- 
 tianity is a part of the common law of the State of 
 Pennsylvania, and it is distinctly implied that the 
 Christian religion is so connected with our civil insti- 
 tutions that, if the will in question had required any- 
 thing to be taught, or if there had been anything in 
 the regulations and restrictions contained therein which 
 was inconsistent with the Christian religion, the devise 
 would not have been protected by the power of the 
 United States. 
 
 In the case of Rector, etc., of Holy Trinity Church, 
 V. United States, on " Construction of Statutes," 
 "Alien Contract Labor Law," Mr. Justice Brewer, 
 delivering the opinion of the court, said : " . . . But 
 
 ' Reports of Decisiofis in the Supreme Courts of the United 
 States, vol. xv., 2 ; 3 Howard, pp. 83-87. 
 
Legal Dc ci si 071S. 145 
 
 beyond all these matters, no purpose of action against 
 religion can be imputed to any legislation, State or 
 National, because this is a religious people." After 
 reviewing the commission to Columbus, the colonial 
 grants and charters, various State constitutions, the 
 cases of Updegraph v. Commonwealth, The People v. 
 Ruggles, and Vidal v. Executors of Stephen Girard, as 
 ofl&cial declarations of the fact that Christianity is part 
 of the common law, he says : " If we pass beyond these 
 matters to a view of American life, as expressed by its 
 laws, its business, its customs, and its society, we find 
 everywhere a recognition of the same truth. . . 
 These and many other matters which might be no- 
 ticed, add volumes of unofiicial declarations to the 
 mass of organic utterances, that this is a Christian na- 
 tion." The summary of the decision is in part as 
 follows : 
 
 "4. It being historically true that the American peo- 
 ple are a religious people, as shown by the religious ob- 
 jects expressed in the original grants and charters of 
 the colonies, and the recognition of religion in the most 
 solemn acts of their history, as well as in the Consti- 
 tutions of the States and the Nation, the courts, in 
 construing statutes, shoidd not impute to any legisla- 
 ture a purpose of action against religion. 
 
 "5. Although the Alien Contract Labor law (23 St., 
 p. 332) prohibits the importation of ' any ' foreigners 
 under contract to perform ' labor or service of any 
 kind,' yet it does not apply to one who comes to this 
 country under contract to enter the service of a church 
 as its rector. 36 Fed., Rep,, 303. Reversed." ' 
 
 ' Decision rendered February 29, 1892. The Supreme Court 
 Reporter, vol. xii., p. 511. 
 
146 Jefferson's Argument. 
 
 CHAPTER X. 
 
 JEFFERSON'S ARGUMENT. 
 
 Whii^E the great legal authorities of England and 
 the United States agree in the opinion that Christianity- 
 is a part of the common law, at least one very eminent 
 man has held, and with apparent learning has endeav- 
 ored to maintain, the opposite opinion. 
 
 Mr. Thomas Jeiferson, shortly after the decision of 
 the Supreme Court of New York in the case of The 
 People V. Ruggles, and of the Supreme Court of Penn- 
 sylvania in the case of Updegraph v. The Common- 
 wealth, wrote a letter to Major John Cartwright, then of 
 London, controverting the principles laid down in these 
 decisions. The letter is dated at Monticello, June 5, 
 1824. In it he says : " I am much indebted for your 
 kind letter of February 29th, and for your valuable 
 volume on the English Constitution. ... I was 
 glad to find in your book a formal contradiction at 
 length of the judiciary usurpation of legislative pow- 
 ers ; for such the judges have usurped in their repeated 
 decisions that Christianity is a part of the common 
 law. The proof of the contrary which you have ad- 
 duced is incontrovertible. . . . But it may amuse 
 you to learn when and by what means they stole this 
 in upon us. In a case of quare impedit. . . Here I 
 might defy the best read lawyer to produce one scrip 
 of authority for this judiciary forgery : and I might go 
 on further to show how some of the Anglo-Saxon 
 priests interpolated into the text of Alfred's laws the 
 20th, 2ist, 22nd and 23d chapters of Exodus, and the 
 15th of the Acts of the Apostles, from the 23d to the 
 29th verses. But this would lead my pen and your 
 patience too far. What a conspiracy between Church 
 
yeffersons Argument. 147 
 
 and State ! Sing Tantarara, rogues all, rogues all. 
 Tantarara, rogues all." ' 
 
 The argument of this letter, revised and amplified, 
 is an Appendix to Jefferson's Reports of Cases Deter- 
 7nined in the General Court of Virginia from 1730- 
 174.0, and from 1768-1772 Published at Charlottes- 
 ville, Va., by F. Carr & Co. 1829, the Appendix hav- 
 ing no connection whatever with the subject-matter of 
 the work to which it is appended. It is as follows : 
 
 " In Quare impedit in C. B. H. 6, fo. 38, the defend- 
 ant Bishop of Lincoln pleads that the church of the 
 plaintiff became vacant by the death of the incumbent ; 
 that the plaintiff and I. S. each pretending a right, 
 presented two clerks ; that the church being thus ren- 
 dered litigious, he was not obliged by the ecclesiastical 
 law to admit either until an \\\Q^\s\\S.ovi. de jure patrona- 
 tus in the ecclesiastical court ; that by the same law 
 this inquisition was to be at the suit of either claimant, 
 and was not ex-officio to be instituted by the Bishop 
 and at his proper costs ; that neither party had desired 
 such an inquisition ; that six months passed, wherein 
 it belonged to him of right to present, as on a lapse, 
 which he had done. The plaintiff demurred. A ques- 
 tion was, how far the ecclesiastical law was to be re- 
 spected in this matter by the common law court. And 
 Prisot (c. 5.) in the course of his argument uses this ex- 
 pression : ' A tels leis que ils de seint eglise ont en 
 ancien scripture, covient a nous a donner credence ; 
 car ceo common ley sur quel touts manners leis sont 
 fonde s. Et auxy, Sir, nous sumus obliges de conustre 
 loiu- ley de saint eglise : et semblablement ils sont obliges 
 de conustre nostre ley, et, Sir, si poit apperer or a nous 
 que I'evesque ad fait come un Ordinary fera en teil cas, 
 '^ Works, vol. vii., pp. 359-361. 
 
148 yeffersofts Argument. 
 
 adonq nous devous ceo adjurer bon, on auterment 
 nemy,' etc. It does not appear what judgment was 
 given. Y. B. ubi supra 3. c. Fitzh. Abr. Qu. imp. 89. 
 Bro. Abr. Qu. imp. 12. Finch mis-states this in the 
 following manner : ' To such laws of the church as have 
 warrant in Holy Scripture our law giveth credence,' 
 and cites the above case and the words of Prisot in the 
 margin. (Finch's law. B. I. c. 3. published 1613.) 
 Here we find ancieti scripture converted into Holy Scrip- 
 ture, whereas it can only mean the ancient written laws 
 of the church. It cannot mean the Scriptures : ist. 
 Because the term ancient scripture must then be under- 
 stood as meaning the Old Testament in contra-distinc- 
 tion to the yV<?w, and to the exclusion of that, which would 
 be absurd and contrary to the wish of those who cited 
 this passage to prove that the scriptures, or Christianity, 
 is a part of the compion law. 2nd. Because Prisot says 
 ' ceo (est) Common ley sur quel touts manners leis sont 
 fondes. ' Now it is true that the ecclesiastical law, so 
 far as admitted in England, derives its authority from 
 the common law. But it would not be true that the 
 Scriptures so derive their authority, 3rd. The whole 
 case and arguments show that the question was, how 
 far the ecclesiastical law in general should be respected 
 in a common law court. And in Bro's Abr. of this case 
 lyittleton says, 'les juges del Common ley prendra con- 
 usans quid est lex ecclesiae vel admiralitates et hujus 
 modi ? ' 4th. Because the particular part of the ecclesi- 
 astical law then in question, viz. : the right of the 
 patron to present to his advowson, was not founded on 
 the law of God, but subject to the modification of the 
 law-giver, and so could not introduce any such general 
 position as Finch pretends. Yet Wingate (in 1658) 
 thinks proper to erect this false quotation into a maxim 
 
yeffersoii s Argument. 149 
 
 of the common law, expressing it in the very words of 
 Finch but citing Prisot. Wingate, Max. 3. Next 
 comes Sheppard (in 1675) who states it in the same 
 words of Finch and quotes Y. B., Finch and Wingate. 
 3. Shep. Arb. tit. Religion. 
 
 ' ' In the case of King and Taylor, Sir Matthew Hale 
 lays it down in these words : ' Christianity is parcel of 
 the laws of England.' (I. Ventr. 293. 3. Keb. 607.) 
 But he quotes no authority. It was from this part of 
 the supposed common law that he derived his authority 
 for burning witches. So strong was this doctrine be- 
 come in 1728 by additions and repetitions from one an- 
 other that in the case of The King v. Woolston the court 
 would not suffer it to be debated, whether to write 
 against Christianity was punishable in the temporal 
 courts at common law, saying it had been settled in 
 Taylor's case, ante, 2 stra. 834. Therefore Wood in his 
 Institutes, lays it down that all blasphemy and profane- 
 ness are offences by the common law, and cites Strange, 
 ubi supra, Wood, 409. And Blackstone (about 1763) 
 repeats, in the words of Sir Matthew Hale, that ' Chris- 
 tianity is part of the laws of England, ' citing Ventr. and 
 Stra. ubi supra, 4. Bl. 59. I^ord Mansfield qualified a 
 little by saying, in the case of the Chamberlain of Lon- 
 don V. Evans, 1767, that ' The essential principles of re- 
 vealed religion are part of the common law.' But he 
 cites no authority and leaves us at our peril to find out 
 what in the opinion of the judge, and according to the 
 measure of his foot or his faith, are those essential -^xxwdX' 
 pies of revealed religion, obligatory on us as a part of 
 the common law. Thus we find this string of authori- 
 ties, when examined to the beginning, all hanging on 
 the same hook, a per\^erted expression of Prisot's, or on 
 nothing, for they all quote Prisot, or one another, or 
 
1 5 o yeffersons Argument. 
 
 nobody. Thus Finch quotes Prisot ; Wingate also ; 
 Sheppard quotes Prisot, Finch, and "Wingate. Hale 
 cites nobody ; the court in Wollston's case cites Hale. 
 Wood cites Wollston's case ; Blackstone that and Hale ; 
 and Lord Mansfield, like Hale, ventures it on his own 
 authority. In the earlier ages of the law, as in the 
 Year Books, for instance, we do not expect much recur- 
 rence to authorities by the judges, because in those days 
 there were few or none such made public. But in later 
 times we take no judge's word for what the law is fur- 
 ther than he is warranted by the authorities he appeals 
 to. His decision may bind the unfortunate individual 
 who happens to be the particular subject of it, but it can- 
 not alter the law. Although the common law be termed 
 the Lex non scripta, yet the same Hale tells us : ' When 
 I call those parts of our laws Leges no?i seripto', I do 
 not mean as if all those laws were only oral, or com- 
 municated from the former ages to the latter merely by 
 word. For all these laws have their several monu- 
 ments in writing whereby they are transferred from one 
 age to another, and without which they would soon 
 lose all kind of certainty. They are for the most part 
 extant in records of pleas, proceedings and judgments, 
 in books of reports and judicial decisions, in tractates 
 of learned men's arguments and opinions, preserved 
 from ancient times and extant in writing.' (Hale's Com- 
 mon Law, 22.) Authorities for what is common law 
 may, therefore, be as well cited as for any part of the lex 
 scripta. And there is no better instance of the necessity 
 of holding the judges and writers to a declaration of their 
 authorities than the present, where we detect them en- 
 deavoring to make law where they found none and to 
 submit us, at one stroke, to a whole system no particle 
 of which has its foundation in common law, or has re- 
 
yeffersons Argume7it. i 5 1 
 
 ceived the ' esto ' of the legislator. For we know that 
 the common law is that system of law which was intro- 
 duced by the Saxons on their settlement in England, and 
 altered from time to time hy proper legislative authority 
 from that to the date of the Mag7ia Charta, which termi- 
 nates the period of the common law or lex non scripta and 
 commences that of the statute law or lex scripta. This 
 settlement took place about the middle of the fifth cen- 
 tur}-, the conversion of the first Christian king of the 
 Heptarchy having taken place about the 3-ear 598, and 
 that of the last about 686. Here then was a space of 
 two hundred years during which the common law was 
 in existence and Christianity^ no part of it. If it ever, 
 therefore, was adopted into the common law it must 
 have been between the introduction of Christianity- and 
 the date of the MagJia Charta. But of the laws of this 
 period we have a tolerable collection by Lambard and 
 Wilkins ; probably not perfect, but neither vers* defec- 
 tive ; and if any one chooses to build a doctrine on any 
 law of that period, supposed to have been lost, it is in- 
 cumbent on him to prove it to have existed and what 
 were its contents. These were so far alterations of the 
 common law and became themselves a part of it, but 
 none of these adopt Christianity as a part of the com- 
 mon law. If therefore from the settlement of the Sax- 
 ons to the introduction of Christianity among them 
 that system of religion could not be a part of the common 
 law, because they were not 5-et Christians ; and if having 
 their laws from that period to the close of the common 
 law we are able to find among them no such act of adop- 
 tion, we maj' safel}- affirm (though contradicted by all 
 the judges and writers on earth) that Christianity 
 neither is nor ever was a part of the common law. 
 ' ' Another cogent proof of this truth is drawn from the 
 
1 5 2 yefferson s Argument. 
 
 silence of certain writers on the common law. Bracton 
 gives us a very complete and scientific treatise of the 
 whole body of the common law. He wrote this about 
 the close of the reign of Henry III., a very few years 
 after the date of the Magna Charta. We consider this 
 book as the more valuable as it was written about the 
 time that divides the common and statute law ; and 
 therefore gives us the former in its ultimate state. Brac- 
 ton too was an ecclesiastic, and would certainly not have 
 failed to inform us of the adoption of Christianity as a 
 part of the common law had any such adoption ever 
 taken place. But no word of his which indicates any- 
 thing like it has ever been cited. Fleta and Britton, 
 who wrote in the succeeding reign of K. I., are equally 
 silent. So also is Glanvil, an earlier writer than any 
 of them ; to wit, temp. H. 2, but his subject might not 
 perhaps have led him to mention it. It was reserved 
 then for Finch five hundred years after in the time of 
 Charles II. by a falsification of a phrase in the Year 
 Book to open this new doctrine, and for his successors 
 to have joined full mouthed in the cry, and give to the 
 fiction the sound of fact. Justice Fortescue Aland, who 
 professed more Saxon learning than all the judges and 
 writers before mentioned put together, places this sub- 
 ject on more limited ground. Speaking of the laws of 
 the Saxon kings he says : ' The ten commandments 
 were made part of their law, and consequently were 
 once part of the law of England ; so that to break any 
 of the ten commandments was then esteemed a breach 
 of the common law of England, and why it is not so 
 now perhaps it may be difficult to give a good reason.' 
 (Preface to Fortescue' s Reports, xvii. ) The good reason 
 is found in the denial of the fact. 
 
 " Houard in his Contumes Anglo-Normandes I. 87. 
 
ycffcrsons Argument. 1 5 3 
 
 notices the falsification of the laws of Alfred, by pre- 
 fixing to them four chapters of the Jewish law, to wit, 
 the 20th, 2ist, 22nd, and 23rd chapters of Exodus ; to 
 which he might have added the 15th of the Acts of the 
 Apostles, verse 23 to 29, and precepts from other parts 
 of the scripture. These he calls Hors d'oeuvre of some 
 pious copyist. This awkward monkish fabrication 
 makes the preface to Alfred's genuine laws stand in 
 the body of the work. And the very words of Alfred 
 himself prove the fraud, for he declares in that preface 
 that he has collected these laws from the laws of Ina, 
 of Offa, Aethelbert and his ancestors, saying nothing 
 of any of them being taken from the scripture. It is 
 still more proved by the inconsistencies it occasions. 
 For example, the Jewish legislator, Exodus xxi, 12, 
 13, 14, (copied by thepseudo Alfred 13) makes murder 
 death. But Alfred himself 1^1. xxvi, punishes it with 
 a fine only, called a weregild, proportioned to the con- 
 dition of the person killed. It is remarkable that Hume 
 (Appendix I. to his History), examining this law of 
 Alfred without perceiving the fraud, puzzles himself 
 with accounting for the inconsistency it had intro- 
 duced. To strike a pregnant woman so that she die 
 is death by Exodus xxi, 22, 23, and Pseudo Alfred 
 S. 18, but by the LI. Alfred ix, the offender pays a 
 weregild for both the woman and the child. To 
 smite out an eye or a tooth. Exodus xxi, 24-27, 
 Pseudo Alfred S. 19, 20, if of a servant by his master 
 is freedom to the servant ; in every other case retalia- 
 tion ; but by Alfred lyl. xl, a fixed indemnification is 
 paid. Theft of an ox or a sheep by the Jewish law, 
 Exodus xxii, I, was repaid fivefold for the ox and 
 fourfold for the sheep ; but by Alfred 1,1. xvi, he who 
 stole a cow and calf was to repay the worth of the 
 
154 yeffersons Argument. 
 
 cow and 40 s. for the calf. Goring by an ox was 
 the death of the ox, and the flesh was not to be 
 eaten, Exodus xxi, 28, Pseudo Alfred S. 21. By LI. 
 Alfred xxiv the wounded person had the ox. This 
 Pseudograph makes municipal laws of the ten com- 
 mandments ; S. i-io regulates concubinage ; S. 12 
 makes it death to strike, or to curse father or mother ; 
 S. 14, 15 give an eye for an eye, tooth for tooth, hand 
 for hand, foot for foot, burning for burning, wound for 
 wound, stripe for stripe ; S. 19 sells the thief to repay 
 his theft ; S. 24 obliges the fornicator to marry the 
 woman he has lain with ; S. 29 forbids interest on 
 money ; S. 28, 35 make the laws of bailment, and very 
 different from what Lord Holt delivers in Coggs v. 
 Bernard, and what Sir William Jones tells us they 
 were ; and punishes witchcraft with death, S. 30, 
 which Sir Matthew Hale I. P. C. cli. 33, declares was 
 not a felony before the stat. I. Jac. c. 12. It was under 
 that statute he hung Rose Callender and Amy Duny 16. 
 Car. 2. (i 662) on whose trial he declared that there were 
 such creatures as witches, he made no doubt at all ; 
 for, first, the scriptures had affirmed so much ; second, 
 the wisdom of all nations had provided laws against 
 such persons, . . . and such hath been the judg- 
 ment of this kingdom, as appears by that act of parlia- 
 ment which hath provided punishments proportionable 
 to the quality of the offence. And we must certainly 
 allow greater weight to this position, ' that it was no 
 felony till James' statutes ' deliberately laid down in 
 his H. P. C, a work which he wrote to be printed and 
 transcribed in his lifetime, than to the hasty scripfum, 
 that ' At common law witchcraft was punished with 
 death as heresy, by writ de heretico aviiburendo ' in his 
 methodical summary of the P. C. p. 6 ; a work ' not 
 
ycffcrsons Argumetd. 155 
 
 intended for the press, nor fitted for it, and which he 
 declared he had never read over since it was written.' 
 Preface. Unless we understand his meaning in that 
 to be that witchcraft could not be punished at common 
 law as witchcraft, but as heresy. In either sense how- 
 ever it is a denial of this pretended law of Alfred. 
 Now all men of reading know that these pretended laws 
 of homicide, concubinage, theft, retaliation, compulsory 
 marriage, usiu^% bailment, and others which might 
 have been cited from this pseudograph were never the 
 laws of England, not even in Alfred's time ; and of 
 course that it is a forger}-. Yet, palpable as it must 
 be to a lawyer, our judges have piously avoided lifting 
 the veil under which it was shrouded. In truth, the 
 alliance between Church and State in England has ever 
 made their judges accomplices in the fi'auds of the 
 clergy, and even bolder than they are, for instead of 
 being content with the surreptitious introduction of 
 these four chapters of Exodus, they have taken the 
 w-hole leap, and declared at once that the whole Bible 
 and Testament in a lump make a part of the common 
 law of the land, the first judicial declaration of w^hich 
 was by this Sir Matthew Hale. And thus they incor- 
 porate into the English code laws made for the Jews 
 alone, and the precepts of the gospel, intended by their 
 benevolent author as obligatory onl}^ in foro conscicntice, 
 and they arm the whole with the coercions of municipal 
 law. They do this too, in a case where the question 
 was not at all, whether Christianity was a part of the 
 law of England, but simpl}^ how far the ecclesiastical 
 law was to be respected by the common law courts of 
 England, in the special case of a right of presentment ; 
 thus identifying Christianity with the ecclesiastical law 
 of England." ' Th. Jefferson. 
 
 ' Jeflfersou's Reports, Appendix, pp 137-142. 
 
156 Clayton* s Answer to yefferson. 
 
 Clayton's Answer. — Chief-Justice Clayton, of Dela- 
 ware, in the decision in the case of the State v. Chand- 
 ler, November, 1837, already referred to, makes the 
 following reply to the argument of Mr. Jefferson : 
 
 " The defendent's counsel in the progress of the ar- 
 gument on this subject referred to a letter written by 
 Thomas Jefferson to Major Cartwright, dated June 5, 
 1824, and published in the fourth volume of his post- 
 humus works. This letter we notice because respecta- 
 ble counsel have cited it. It is phrased in terms more 
 becoming to the newspaper paragraphs of the day than 
 the opinion of a grave jurist who feels respect for the 
 memory of the eminent lawyers of England, because 
 he knows and can appreciate their worth. The opin- 
 ion of Lord Mansfield, who was one of the brightest 
 luminaries of the common law, palpably misunderstood 
 by this writer, is by him denounced as a ' judicial forg- 
 ery. ' He considers, and so states, that by this maxim 
 mentioned by I/)rd Mansfield which recognizes revealed 
 religion as a part of the common law, his lordship has 
 ' engulped Bible, Testament and all into the common 
 law ' ; whereas this mode of garbling a remark and then 
 replying to it has done gross injustice to that great 
 man, whose celebrated argument for religious toleration 
 in the English house of lords in the case of Evans, 
 does by no means justify the imputation cast upon him. 
 So far from meaning that Bible and Testament were 
 part of the common law for other purposes than that 
 of punishing subversion, reviling and ridiculing them ; 
 so far from pretending that any man could be punished 
 by the common law for mere infidelity or for worship- 
 ping God as he pleases, or for any violation of any di- 
 vine precept, not expressly adopted by man as human 
 law, which would make courts and juries the regula- 
 
Claytons Answer to yefferson. 157 
 
 tors of every man's conscience, Lord Mansfield ex- 
 pressl}^ says : ' Conscience is not controllable by human 
 laws, nor amendable to human tribunals. Persecution 
 or attempts to force conscience will never produce con- 
 viction, and are only calculated to make hypocrites or 
 martyrs. ' ' There is nothing, ' he adds, ' more unrea- 
 sonable, more contrary to the spirit and precept of the 
 Christian religion, more iniquitous or unjust, more 
 impolitic, than persecution. It is against natural reli- 
 gion, revealed religion, and sound policy.' 
 
 " Mr. Jefferson endeavors to show that the maxim 
 that Christianity is a part of the common law of Eng- 
 land is entirely derived from an opinion of Prisot in the 
 Year Book, 34 H., 6, folio 38., (145-8). In a case quare 
 impedit a question was made, how far the ecclesiastical 
 law was to be respected in a common law court, and 
 Prisot gives his opinion in these words : ' Prisot . . . 
 a tiels I>ys. . . .' The whole of Mr. Jefferson's 
 complaint is that Finch has mistaken this passage by 
 translating '' atuicient scripture,'' holy scripture. Mr. 
 Jefferson translates Priscot's Norman French so as to 
 make him decide ' that to such laws of holy church as 
 have warrant in ancient writing, it is proper for us to 
 give credence ' ; while, says he. Finch interprets the 
 passage, ' to such laws of the church as have warrant 
 in holy scripture our law giveth credence. ' Now the 
 question which the judge was considering, when he de- 
 livered this opinion, was, whether the sentence of the 
 bishop or ecclesiastical court should have faith and 
 credit at common law. He made the same decision 
 which was afterwards made in 11 H., 7, 9, and again 
 in Caudrey's case reported in Sir Edward Coke, 5 Rep. 
 I. In Caudrey's case, 'it was resolved by the whole 
 court that the sentence given by the Bishop by the con- 
 
158 Claytons Answer to yeffcrson. 
 
 sent of his colleagues was such as the judges of the 
 common law ought to allow to be given, according to 
 the ecclesiastical laws : for seeing that their authority 
 is to proceed and give sentence in a cause ecclesiastical, 
 upon their proceedings by force of that law, the judge 
 of the common taxu ought to give faith and credit to tlicir 
 sentence and to allow it to be done accordi7ig to the ecclesi- 
 astical law. For Cuilibet in siia arte perito credendum 
 est. ' And this, ' says I^ord Coke, ' is the common 
 received opinion of all our books ' ; for which he then 
 cites the very case, 34 H., 6, 14, where the opinion is 
 given by Prisot. The point decided was the legal prin- 
 ciple that the sentence of a competent court, of exclu- 
 sive and peculiar jurisdiction, is conclusive, where that 
 sentence comes incidentally in question in another court. 
 The judge therefore concluded that ' If it should ap- 
 pear to us (the common law judges) that the Bishop 
 has done as an ordinary may do in such a case (that is, 
 has not exceeded his jurisdiction) then we ought to ad- 
 judge these good or otherwise.' According to what 
 Mr. Jefferson calls Finch's interpretation, the judges 
 decided that the sentence of the ecclesiastical tribunal 
 when warranted by the holy scriptures shall be credited 
 in a common law court as the decision of a competent 
 tribunal, provided the ecclesiastical tribunal did not ex- 
 ceed its jurisdiction. According to Mr. Jefferson's ver- 
 sion, the judges decided that the same sentence when 
 warranted by ' the ancient written laws ' should be so 
 acknowledged and credited. What these written laws 
 were Mr. Jefferson does not inform us ; but the common 
 law was emphatically the lex non scripta or unwritten 
 law, as contra-distinguished from the statute law, and 
 Mr. Jefferson probably knew that ; he must have in- 
 tended either statutes of parliament or the written laws 
 
Claytons Answer to yefferson. i 59 
 
 of the church. The statutes of parliament could not 
 have been intended, for they did not regulate the eccle- 
 siastical jurisdiction ; and the words ' car ceo est common 
 ley sur que ionts manner leys sontfondens ' when applied 
 to them would be nonsense. For how could they be 
 said to be the foundation of all human laws. If by 
 written laws Mr. Jefferson meant the written laws of 
 the church at that day, they at that day credited the 
 holy vScriptures and professed to be built upon them. 
 The ecclesiastical tribiinals, as we know from Caudrey's 
 case, assumed jurisdiction of all offences purely against 
 God and the Holy Scriptures, pro salute animce^ with- 
 out reference to the mere effect of such offences on 
 the peace of society, which the common law never 
 did. But the common law judges, by yielding up that 
 jurisdiction to the ecclesiastical courts, refusing to re- 
 verse or revise their decisions when incidently or col- 
 laterally presented in a common law court, thus simply 
 recognizing those decisions as ecclesiastical and not as 
 common law, did no more intend by that to acknowl- 
 edge the laws of holy church as common law, than they 
 intended to acknowledge admiralty law as common law 
 when they gave faith and credit to an admiralty de- 
 cision. 
 
 " It is not within our knowledge that any common 
 law judge has cited the case in the Year Book or referred 
 to it in any manner, to prove his opinion in citing a 
 case of blasphemy, with the malicious reviling of Chris- 
 tianity, was punishable at common law. The labor 
 with which Mr. Jefferson has searched the Year Book 
 to convict Finch of a mistranslation would have been 
 saved had he been aware that he was only proving, by 
 his own construction of the passage, that the ecclesias- 
 tical law was founded in the written laws of the church. 
 
1 6o Clayton s A nswer to yefferson. 
 
 and not in the scriptures alone. As friends of religious 
 liberty, we would prefer that the common law should 
 have ' engulphed Bible and Testament ' rather than 
 the laws of the church, as understood at that day, 
 which not only professed to comprise the Bible and 
 Testament, but usurped entire control over the con- 
 sciences of men, or burnt the body under pretext of 
 saving the soul. 
 
 "Having thus seen Mr. Jefferson's premises, let us 
 next consider the argument built upon them to convict 
 Mansfield of judicial forgery. He says that Hale de- 
 cided that Christianity was parcel of the laws of Eng- 
 land, but quoted no authority ; that by such echoings 
 and re-echoings from one to another, in 1728, the court 
 (composed of lyord C. J. Raymond, and Page, Reynolds, 
 and Probyn, justices) in the case of the King v. Wool- 
 ston, for blasphemy, 2 Str., 834, would not suffer it to be 
 debated whether writing against Christianity in general 
 was punishable in the temporal courts at common law ; 
 that Justice Blackstone adopts Hale's opinion and cites 
 the adjudged cases ; and finally, that Lord Mansfield 
 had used the words before quoted as delivered by him 
 in Evans' case, ' that the essential parts of revealed 
 religion are parts of the common law,' thus, says 
 Mr. Jefferson, engulfing Bible, Testament, and all 
 into the common law without citing any authority. 
 ' And thus far, ' he adds, ' we find this chain of au- 
 thorities hanging link by link one upon another, a7id 
 all ultimately upon one and the same book \]iook .^] a7id 
 that a mistranslation of the words auncient scripture used 
 by Prisot.' He concludes that he ' might defy the 
 best read lawyer to produce another scrip of authority 
 for this judicial forgery.' This letter-writer then first 
 admits expressly that neither Hale nor Mansfield had 
 
Clayton s Answer to yefferson. 1 6 r 
 
 cited any authority' for their opinions, and immediately 
 after charges the principles for which their great names 
 are cited with hanging on what he calls a mistransla- 
 tion of the words of Prisot. He thought that his eru- 
 dition had enabled him to detect the ver>' source from 
 which their ignorance and folly, or their knavery, had 
 sprung. Had Hale or Mansfield quoted the passage 
 from Prisot which Mr. Jefferson has thus plumed him- 
 self on the translation of, as the foundation for a judi- 
 cial opinion, then they would have been responsible 
 for the translation of the passage, but neither of them 
 quoted the Year Book ; they had no occasion to quote 
 any authority. Long before Lord Hale decided that 
 Christianity was a part of the laws of England, the 
 Court of King's Bench, 34 Eliz., in Ratcliflf's case, 3 
 Coke Rep., 40 b., had gone so far as to declare that 
 ' in almost all cases the common law was grounded 
 on the law of God which it was said was the causa 
 causans,' and the court cited the 27th chapter of Num- 
 bers to show that their judgment on a common law 
 principle in regard to the law of inheritance was 
 founded on God's revelation of that law to Moses, 
 Mr. Hargrave, in his note on Co. Lit. 11 b.. observ'es 
 that ' this inference from God's precepts to Moses is 
 unwarranted, unless it can be shown that it was pro- 
 mulgated as a law for mankind in general, instead of 
 being like many other parts of the Mosaical law, a 
 rule for the direction of the Jewish nation only.' The 
 author of the reports and the commentary on Littleton 
 was a professor of Christianity, as is visible in all his 
 writings. That Hale, with such an authority before 
 him, should have deemed it necessary- to cite Coke, 
 familiar as his writings were to the profession at a time 
 when his works were the principal text-book of everj- 
 
1 62 Clay toil s Anszvev to yefferson. 
 
 lawyer, cannot be the subject of much wonder ; and 
 we know, notwithstanding Mr. Jefferson's defiance, 
 that even Finch himself quoted 8 H., 8, ' Ley de Dieu 
 est Ley de terre ' — the law of God is the law of the land. 
 Doc. and Stud., lib. i., c. 6. Plowd, 265, to sustain his 
 position that the holy scripture is of sovereign author- 
 ity, and to show the extent and meaning of the maxim. 
 But independent of Lord Coke, or any other judge. Sir 
 Matthew Hale was an authority of himself, and is con- 
 sidered as a sufficient authority for a common law prin- 
 ciple in every case when there is no contrary authority. 
 What sources of legal knowledge his great erudition 
 may have consulted on this subject, we have no means 
 of certainly knowing, nor is it necessary to inquire. 
 
 " As for the alleged translation of Finch, we have ex- 
 amined the whole passage and are well satisfied that 
 if Finch construed ' auncient scripture ' to mean holy 
 scripture, such a translation of the Norman French would 
 be the true translation. But in fact Finch has not ven- 
 tured any translation of the passage whatever, notwith- 
 standing Mr. Jefferson professes to copy the very words 
 in which he has translated it. We speak with the 
 work of Henry Finch of Gray's Inn, book i, chapter 
 iii., published in London, 1759, before us. Mr. Jeffer- 
 son has made a translation for Finch in words with 
 inverted commas, then attempted to prove his transla- 
 tion false, and failed to do it. Finch evidently believed 
 that Prisot spoke of the holy scripture, and therefore 
 cited the Year Book, with other authorities, to sustain 
 a general position in the text, that the scriptures were 
 of sovereign authority, — a position which, like that of 
 every other compiler, was good to the full extent of 
 his authority, and no further ; and it is sustained by 
 the Year Book so far as to show that the common law 
 
 ^ 
 
Clayton s Answer to Jefferson. 163 
 
 did recognize the decisions of ecclesiastical courts 
 which were founded on the scriptures as co?icliisive 
 when brought collaterally in question in a comvion taw 
 court. Lord Mansfield's judicial forgery stood, as the 
 cases we have cited prove, upon other and many other 
 authorities than Mr. Jefferson appears ever to have 
 read." ' 
 
 CHAPTER XI. 
 
 THE TREATY WITH TRIPOLI. 
 
 Article XI. of the Treaty with Tripoli, ratified by 
 the United States, February 10, 1797, is as follows : 
 
 ' ' 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 tranquillity of Musselmen ; and as the 
 said States never have entered into any war or act of 
 hostility against any Mahometan nation, it is declared 
 by the parties that no pretext arising from religious 
 opinion shall ever produce an interruption of the har- 
 mony existing between the two countries. ' ' 
 
 The Constitution of the United States, Article VI., 
 declares that "All Treaties made, or which shall be 
 made, under the authority of the United States, shall 
 be the supreme law of the land, and the judges in every 
 State shall be bound thereby. ' ' 
 
 There can be no doubt that the stipulations of a 
 treat}'- have the character of a supreme law, but nobody 
 pretends that all the arguments tised therein have such 
 a character. The first clause of Article XI. in this 
 Treaty alleges a supposed fact as an argument, bearing 
 ' 2 Harrington, pp. 558-562. 
 
1 64 The Treaty with Tripoli. 
 
 upon a conclusion, afterwards stated, and has no more 
 than an argumentative force. That allegation has been 
 regarded as of so little authority that a majority of the 
 courts which have been called upon to adjudicate on 
 the question, whether " The government of the United 
 States of America is, in any sense founded, on the 
 Christian religion," do not even mention it. 
 
 Furthermore, whatever may have been the authority 
 of that Treaty, it was superseded by the Treaty of June 
 4, 18 15, in which the clause in question is omitted. 
 Article XIV. of that Treaty is as follows : 
 
 ' ' As the government of the United States of America 
 has in itself no character of 'enmity against the laws, 
 religion, or tranquillity of Musselmen," etc. 
 
 This omission in the second Treaty of the statement 
 made in the first, that " The government of the United 
 States of America is not, in any sense, founded on the 
 Christian religion," may fairly be construed as a re- 
 traction of that statement, and as an authoritative 
 denial of its truth. Such construction is especially 
 warranted by the fact that Chancellor Kent had ren- 
 dered his famous decision in the case of People v. Rug- 
 gles only three years before the negotiation of this 
 treaty. 
 
 In summing up the results of this part of our inves- 
 tigation we may take it as established, by the charters 
 and acts of the colonies, by the constitutions and acts 
 of the States, by the intent, and the temporary force, of 
 the Ordinance of 1787, by the necesssities of the case 
 as expressed in the common law, by the principles of 
 equity, by the decisions of the Supreme Courts of the 
 States, and by the decisions of the Supreme Court of 
 the United States, that the civil institutions of this land 
 are necessarily, legally, and rightly Christian. 
 
 ^ 
 
PART III. 
 
 A question of theory'. What ought to be the relation of the 
 Christian religion to the civil government, in the United 
 States ? 
 
 165 
 
I 
 
CHAPTER I. 
 
 ANTIQUATED THEORIES. 
 
 The large amount of thought which men in all times 
 have been compelled to bestow upon the subject under 
 consideration, together with the native impulse of the 
 human mind to find a principle whereby individual 
 facts may be brought into a comprehensive imit^', has 
 very naturally led to the formation of various theories 
 of the State and the Church, and of the relation of each 
 to the other. 
 
 ist. The first we shall mention may be called the Med- 
 iaeval Ecclesiastical Theon-. According to this theory 
 the civil organization is comprehended in the Church. 
 The temporal powers derive their authority' from the 
 Church and are responsible to it. Pope Gregor}- VII., 
 the illustrious reformer of his time, who made the 
 first distinct enunciation of theory' and the first demand 
 for its universal acceptance, compared the Church to 
 the sun, and the State to the moon, and contended that 
 as the moon is subject to the sun, and shines onlj- with 
 a light derived from the sun, so the State is subject to 
 the Chtu-ch, and derives all its powers from the Church. 
 He likened the temporal and spiritual powers belong- 
 ing to the Church to the two eyes belonging to one 
 head. The commission our Lord gave to his disciples, 
 to go into all the world and teach all nations to observe 
 
 167 
 
1 68 Medicsval Ecclesiastical Theory. 
 
 all things whatsoever he had commanded them, was 
 interpreted as establishing but one authority in the 
 world, — the authority of Christ, which was to be ex- 
 ercised by his representatives. His expression, " It is 
 enough," when in answer to his direction "He that 
 hath no sword let him sell his garment and buy one," 
 they said * ' I^ord, behold here are two swords, ' ' was 
 interpreted as meaning that two swords were sufficient 
 for all the purposes of His kingdom on earth ; the one 
 being the symbol of the spiritual, and the other the 
 symbol of the temporal power. It was assumed that 
 he delivered both swords to Peter, and that Peter de- 
 livered them into the hands of his successors in the 
 primacy, the bishops of Rome. If the sword of the 
 temporal power is found in the hands of civil rulers, it 
 has been placed there by the supreme pontiff. They 
 hold it at his will and are to be responsible to him for 
 all the use they make of it. An}- temporal power that 
 is independent of the Church is to be regarded as an 
 usurpation established by violence and maintained by 
 iniquity, the fruit of which cannot be otherwise than 
 evil. 
 
 This theory was not conceived and promulgated in 
 its full form at any particular date. It was the result 
 of the interaction of all historical forces, social, politi- 
 cal, and religious, throughout a long period ; from the 
 time of Pope Zacharias (752), or before till the time of 
 Pope Boniface VIII. (1303), a period of nearly six hun- 
 dred years. It was not the fabrication of any particular 
 man, but was rather a growth. Neither was it like the 
 mould, a growth from corruption. It was rather in its 
 beginning like the mustard seed, the smallest of all 
 seeds, which became a great tree wherein the fowls of 
 the air lodged. It derived its life from the highest con- 
 
Antiqjiated Theories. 169 
 
 ception of the mission of the Church, the noblest aims 
 and the purest intentions. The times seemed to have 
 prepared the way for it, and the voice of God, in his 
 providence, seemed to be calling the Church to enter 
 upon her high mission. The evils following upon the 
 dissolution of the Roman empire were appalling. The 
 temporal powers in their weakness, distraction, and bar- 
 barism, seemed to aggravate rather than cure these evils. 
 The Church seemed to be endowed with all the powers 
 necessary to bring in a universal reign of righteousness 
 and peace. The temporal powers were divided ; the 
 Church was united ; the temporal powers were weak, 
 patriotism being almost extinct, tribes and nations 
 being little else than marauding hordes. The Church 
 was strong, deriving its strength from the religious 
 sentiments and the superstitious fears of the people, 
 which at the time exerted a powerful influence upon 
 the conduct of men ; and its power seemed to be all 
 pervasive, penetrating all the nations of Europe. Why 
 should she not avail herself of the opportunity thus 
 offered to realize the highest conception of her charac- 
 ter, and fulfil her appointed mission in the world ? It 
 is no matter of wonder that Pope Zacharias, by his 
 legate, anointed and crowned Pepin le Bref, King of 
 the Franks (752) ; that Leo III. placed the imperial 
 crown on the head of Charles the Great, bestowed on 
 him the title of ' ' Augustus Emperor, ' ' and upon his 
 kingdom the title of " The Holy Roman Empire" 
 (800) ; that Hadrian II. when I,othair, king of I,otha- 
 ringia, died without issue, bestowed the crown upon 
 lyouis, in preference to his brother Charles the Bald, 
 who had seized the kingdom ; that Pope John VIII. 
 five years later bestowed the imperial crown upon 
 Charles (875) ; that John XII. anointed Otho I. of Ger- 
 
I 70 Medicsval Ecclesiastical Theory. 
 
 many as emperor (962) ; that Gregory VII. excommu- 
 nicated and deposed Henry IV., emperor of Germany, 
 and compelled him to stand without the castle gates of 
 Canossa, bareheaded and clothed with hair cloth, ex- 
 posed for three days in January to the inclemency of 
 the weather, before he would remove the ban of excom- 
 munication (1076) ; and that Innocent III. deposed John 
 (Lackland) King of England and gave his kingdom to 
 Philip II., Augustus of France (121 3). 
 
 This theor}^, plausible as it was at the time, was 
 never without its opponents. Many learned and able 
 men asserted the divine ordinance both of Church and 
 State, and maintained that each was independent of 
 the other in its own sphere. Political complications 
 tended constantly to keep up and strengthen this op- 
 position. The popes who attempted to carry out the 
 theory were in perpetual conflict with the political 
 powers, and often also with the clergy residing in the 
 territory of the opposing powers. The theory was 
 afiirmed in its fullest form and its acceptance demanded 
 in the most peremptory manner by Boniface VIII. in 
 his quarrel with Philip IV., the Fair, of France. The 
 Pope sent haughty letters to the King, in which he as- 
 serted that the kings of France, with all other kings 
 and princes whatsoever, were obliged by a divine com- 
 mand to submit to the authority of the popes, as well 
 in all political and civil matters, as in those of a reli- 
 gious nature. The King answered wnth contempt. The 
 Pope rejoined with greater arrogance, and finally issued 
 the famous Bull " Unam Sanctam Ecclesiam," Novem- 
 ber 18, 1302, in which he asserted that Christ had 
 subjected the whole human race to the authority of the 
 Roman pontiff ; that the Church could have but one 
 head ; that a two-headed Church would be a monstros- 
 
Antiquated Theories. i 7 1 
 
 ity ; that Christ had granted a two-fold power to his 
 Church, the spiritual aud the temporal swords, and that 
 the temporal sword wielded by the monarch was borne 
 only at the will and by the permission of the pontiff. 
 The Pope excommunicated the King and absolved his 
 subjects from their allegiance. The King called a coun- 
 cil to depose the Pope and sent an agent to seize his 
 person, who executed his commission in such an insult- 
 ing and brutal manner that the Pope soon after died of 
 an illness brought on or aggravated by his anguish and 
 mortification (1303). 
 
 Since the downfall of Boniface VIII. scarcely any 
 attempt has been made to put this theory in practice. 
 
 2d. Erastianism. This theory takes its name from 
 Thomas Erastus, a Zwinglian Protestant, who was born 
 at Baden in Switzerland, September 7, 1524, but spent 
 the most of his life at Heidelberg, as court physician 
 and professor of medicine in the university of that city. 
 Having studied philosophy and theology in his early 
 life at the university of Basel, he took an interest in 
 the theological controversies of the day. He was strenu- 
 ously opposed to the exercise of rigid discipline in the 
 Church, and wrote against what he called the excom- 
 municatory fever of the Protestant Church, afl&rming 
 that exclusion from the sacraments was not a legitimate 
 punishment for any offences whatever. In his opposi- 
 tion to the rigidity of discipline he came at last to deny 
 the right of the Church to exercise discipline at all. 
 He held that the Jewish Church, in which there were 
 no traces of two diverse jurisdictions, the one civil, the 
 other ecclesiastical, was the divinely appointed model 
 for all time. He said that there was no reason why the 
 Christian magistrate at the present day should not 
 possess the same power which God commanded the 
 
172 The Theojy of Paternalism. 
 
 magistrate to exercise in the Jewish commonwealth. 
 He contended that excommunication was not a divine 
 ordinance, but a device of man ; that the Church has 
 no power to make laws and decrees, still less to inflict 
 pains and penalties of any kind, the punishment of all 
 offences belonging to the civil magistrate exclusivel)^ ; 
 that the sacraments being means of grace ought not to 
 be withheld from any citizen desiring to receive them ; 
 that the sins of professing Christians, like the sins of 
 all other persons, are to be punished by the civil mag- 
 istrate with civil penalties, and not by pastors and elders 
 with ecclesiastical penalties. 
 
 This theory is the opposite of the Mediaeval Ecclesi- 
 astical theory. According to this theory, the State is 
 the only divine institution, and is possessed of all the 
 powers commonly supposed to belong to the Church. 
 According to the other, the Church is the only divine 
 institution and is possessed of all the powers commonly 
 supposed to belong to the State. According to the one 
 theory, the State, and according to the other, the Church, 
 is charged with the care of both the temporal and spirit- 
 ual interests of mankind. 
 
 ^d. The third theory may be called the theory of 
 Paternalism. According to this theory. Church and 
 State are not distinct institutions, which may be in 
 union, or may be co-ordinate and independent of each 
 other, or may be in subordination the one to the other, 
 but are identical. While this theory does not concern 
 itself specially with the relation of the Church and 
 State to each other, yet fully carried out, it necessarily 
 involves a Church and State system. Dr. Thomas Ar- 
 nold, one of the propounders and advocates of this 
 theory, held that the State is a moral person and re- 
 sponsible for the whole well-being of the citizen. He 
 
Antiquated Theories. i 73 
 
 argued that the right of the State to take life in capital 
 punishment, and to require the sacrifice of Hfe in de- 
 fensive war, involves as a necessary- co-relative the right 
 and dut}- of the State to care for the whole life of the 
 citizen. It is under obligation, therefore, to pro\'ide 
 for his physical, social, mental, moral, and spiritual wel- 
 fare. Persons who reject the first two theories, the one 
 merging the State in the Church, the other merging the 
 Church in the State, may yet upon this theorj' hold to 
 a union of Church and State. Mr. Gladstone in a book 
 published in his early life, entitled The State in its Re- 
 lations li'itfi tJie CJiiirch, says : " Wherever there is power 
 in the universe, that power is the propertj^ of God, the 
 King of that universe ; his property of right, however, 
 for a time withholden or abused. . . . The powers, 
 therefore, that dwell in individuals, acting as a govern- 
 ment, as well as those that dwell in individuals acting 
 for themselves, can only be secured for right uses by 
 applying to them a religion." 
 
 These theories maj- be regarded as now antiquated. 
 The first may still be held in the Church of Rome, as 
 a theon,-, but there is now no place in the civilized world 
 where the assertion of it would not be deemed absurd, 
 and the attempt to carr^- it out preposterous. 
 
 The second was abh- espoused in the Westminster 
 Assembly of Divines, but it was almost unanimously 
 rejected, only one member, ( Lightfoot), voting against 
 the proposition, that "The Lord Jesus, as King and 
 head of his Church, hath therein appointed a govern- 
 ment in the hand of church officers distinct from the 
 civil magistrates." And now it is held only by a Pres- 
 byterian body in Scotland and in the United States, the 
 Reformed Presbyterian Church, which in both countries 
 is insignificant in numbers. 
 
1 74 Macaulay- Gladstone Theories. 
 
 The third theory has nowhere met with any general 
 acceptance. The small amount of attention given to 
 it, Mr. Walter Bagehot, — in his Physics and Politics, 
 explains by saying that Dr. Arnold ' ' .spoke to ears 
 filled with other sounds, and minds filled with other 
 thoughts," which, though true, falls short of being an 
 adequate explanation of the fact. The true explana- 
 tion is, that the political world had passed far be3^ond 
 the point in its development at which such a theory 
 could command any serious attention. Mr. Bagehot 
 hints at this explanation when he says, " Dr. Arnold 
 himself, fresh from the study of Greek thought and 
 Roman history, used to preach that this identity was 
 the great cure for the misguided modern world. 
 
 . But though the teaching was wrong, for the 
 modem world, to which it was applied, it was excel- 
 lent for the old world from which it was learned." 
 
 Mr. Macaulay in his review of Gladstone's book, The 
 State in its Relations with the Church, says : " Mr. Glad- 
 stone conceives that the duties of governments are pa- 
 ternal ; a doctrine which we shall not believe till he can 
 show us some government which loves its subjects as 
 a father loves his child, and which is as superior in in- 
 telligence to its subjects as a father is to a child. He 
 tells in lofty, though somewhat indistinct language, 
 that ' Government occupies in moral the place of 
 ro Tcav (the all) in physical science.' If government 
 be indeed ro nav in moral science, we do not under- 
 stand why rulers should not assume all the functions 
 which Plato assigned to them. Why should they not 
 take away the child from the mother, select the nurse, 
 regulate the school, overlook the playground, fix the 
 hours of labor and recreation, prescribe what ballads 
 :jhall be sung, what tunes shall be played, what books 
 
Macaulay- Gladstone Theories. i 75 
 
 shall be read, what physic shall be swallowed ? Why 
 should they not choose our wives, limit our expenses, 
 and stint us to a certain number of dishes of meat, of 
 glasses of wine, and cups of tea ? " 
 
 The currents of modem progress have been tending 
 so strongly away from the whole theorj' of paternalism 
 that it has been, ever>^where, losing instead of gaining 
 in acceptance. Mr. Gladstone long since secured the 
 disestablishment of the Irish Church, and now in his 
 old age has devoted his great powers to the establish- 
 ment of a policy which is entirely out of harmony with 
 the theorj^ he espoused in early life. 
 
 CHAPTER II. 
 
 NO THEORY TO BE OFFERED. ONI^Y JUSTICE TO BE 
 SOUGHT. 
 
 It is not our purpose to discuss the merits of the 
 foregoing theories ; neither is it our purpose to pro- 
 pound any theory of our own. The task before us is 
 not that of constructing theories, but of discovering 
 and removing injustice, a less fascinating task perhaps, 
 but a more worthy one. Indeed it will be no small 
 part of our work to guard against the subtle influence 
 of false theories, ill-digested and unformulated, anti- 
 Christian as well as Christian, which in the confusion 
 of thought that now prevails upon the subject are likely 
 to perv^ert the judgment and lead to injustice on the one 
 hand or the other. 
 
 Two well-established facts must, we think, be ac- 
 cepted as having their foundation in nature : id. The 
 fact that the civil institutions of a Christian people are 
 necessarily Christian. 2d. That the forces of pro- 
 
1 76 No Theory to be Offered. 
 
 gress have not only caused the several theories we have 
 just mentioned to be now antiquated but have been 
 tending towards a still further restriction of the reli- 
 gious function of civil government. These facts must 
 both be taken account of in any proper determination 
 of the questions relating to the subject. Upon each of 
 them when looked at alone, a false theory may be built, 
 the inevitable outcome of which will be injustice. The 
 problem before us therefore is the finding of the proper 
 adjustment, — the co-ordination of these two facts. Our 
 work will therefore be empirical rather than speculative 
 in its character. Confining ourselves, in the main, to 
 particular cases, we shall endeavor to define the limits 
 of these two facts, so that the one shall not be made 
 the means of inflicting injustice upon non-Christian or 
 anti-Christian people ; and the other shall not be made 
 the means of inflicting injustice upon Christian people. 
 The principles of judgment adopted ought, as a gen- 
 eral rule, to be able to bear the test of substitution ; 
 that is, they ought to be equally applicable to Budd- 
 hism, Mohammedanism, or Atheism, were any one of 
 those systems of belief to become as prevalent in our 
 land as Christianity now is — a rule which would sug- 
 gest the expediency of reducing the religious functions 
 of the government to the last degree compatible with 
 the rights of its Christian people. 
 
 Although the fact is indisputable that the civil in- 
 stitutions of this country are necessarily, rightl}^ and 
 lawfully Christian, yet it must be admitted that the 
 boundaries of the fact and its legitimate effect have not 
 as yet been well defined. Indojd, legislation has in 
 some cases been framed apparently upon the assump- 
 tion that our government has, and can have, no Chris- 
 tian character whatever. Jurists and courts have gone 
 
Oiily yustice to be Soitght. i 7 7 
 
 so far as to afl5nn that the government can of right 
 base no determination or requirement upon Christian 
 principles ; that, when it happens to require the obser- 
 vance of a Christian institution, such as the Lord's day, 
 it must be for reasons purely secular, and not in the 
 least degree religious. In this legislation and these 
 affirmations appears verj^ clearly the influence of an 
 ill-digested, tacitly assumed, anti-Christian theory, a 
 theory based exclusively on the first of the facts above 
 mentioned. 
 
 It is assumed that the progress begun in these 
 modern times is thus only continued towards its proper 
 terminus in perfect freedom, — a goal which cannot be 
 reached until the government shall have been divested 
 of all Christian character. 
 
 The question still remains, therefore, to be answered : 
 What may the government do, and what ought it to do 
 in its Christian character ? — How far are its determi- 
 nations and requirements to be governed by the princi- 
 ples of Christianity ? This question we now propose 
 to answer ; and seeing that the three theories just men- 
 tioned, which are all extreme on the Christian side of 
 the question, are rejected by all (no one now believing 
 that it is the duty of the government to take upon it- 
 self all forms of Christian work) our answer will have 
 to be in a measure negative, a fixing of hmitations. 
 
 CHAPTER III. 
 
 LIMITATIONS. 
 
 It is no part of the proper function of the govern- 
 ment to inculcate, or propagate, or even foster, Chris- 
 tianit}^, (certain special cases excepted, which we shall 
 
Limitations. 
 
 presently mention). We cannot agree with Judge 
 Story when in the passage before quoted from his 
 Commoitary on the Co7istitution of the United States 
 he says : " It is impossible for those who believe in the 
 truth of Christianity to doubt that it is the especial 
 duty of the government to foster and encourage it 
 among all citizens and subjects," if by that statement 
 he means to say that it is the duty of the government 
 not only to give favor and preference to Christianity 
 when called upon to take action in its courts on ques- 
 tions pertaining thereto, but to go further and adopt 
 positive measures for the fostering and encouragement 
 of Christianity. It seems to us that the exercise of 
 such a function by the government would defeat its 
 own end, — would be detrimental to both Church and 
 State. It cannot be doubted that the advancement 
 which has been thus far made in the science of govern- 
 ment, has been marked by a progressive elimination 
 of this function from the power of the government ; 
 nor can it be doubted that this elimination has been 
 the product of the true law of progress, differentiation 
 in form, and specialization of function. 
 
 The living creature which is nothing but a globu- 
 lar sack, using the whole body in turns, as mouth, 
 stomach, legs, and arms, is lower in the scale of being, 
 than the animal which is completely furnished with 
 organs and members, each of which has its special 
 work to do. Man with only two hands is higher in 
 the scale of being and has more manual skill than the 
 Simians, which are quadrumana, using their feet also 
 as hands. The right-handed man has more dexterity 
 than the man who uses both hands alike. The wood- 
 man clearing away the forest may use his axe, if need 
 be, as a mattock, a beetle, or a wedge, but by using it 
 
Limitations. 1 79 
 
 as a mattock he would dull its edge, and by using as 
 a beetle or a wedge he would batter its head or bulge 
 its eye, thereby rendering it less efficient, if not alto- 
 gether unfitted, for its own appropriate work. If he 
 would do the most work with the least expenditure of 
 force and the least injurj^ to his tools, he must furnish 
 himself with the four implements ; and use the axe 
 onh^ for chopping, the mattock only for grubbing, the 
 wedge only for splitting, and the beetle onl}' for driv- 
 ing the wedge. Even the fact that the axe is essenti- 
 ally a wedge will not justify him in using it in the 
 the place of a wedge after that implement has been 
 provided. The same rule holds good for human so- 
 ciet5% The life of man is one, and if the State and the 
 Church both are organs of that life it is to be presumed 
 that each will perform its appropriate special function 
 best when it confines itself exclusively to that one func- 
 tion. Especially ought this distribution of function to 
 be precise and exclusive in a republican form of govern- 
 ment, for it can be done without violation of the rights 
 of any supposed paternal prerogative. In a republic 
 there is no rational basis for vSUch prerogative. The 
 claim of superior prerogative, without the possession 
 of the appropriate superior gifts, is absurd. The au- 
 thorit}' of the father over his children has ample basis 
 in his superior gifts ; but in a republic the rulers can 
 lay claim to no such gifts. There has been no such 
 special communication to them by the divine Spirit as 
 that which was sj^mbolized by the anointing of the 
 kings of Israel. There is no lingering shadow of such 
 a communication in the plea of transmission by hered- 
 ity, as there is in the monarchies of Europe. In a 
 republic, therefore, the citizen may justly claim the 
 utmost freedom in the care of his varied interests ; and 
 
i8o Limitations. 
 
 in that form of government the organs of his life ought 
 to be brought to the highest degree of speciaHzation, 
 since that is the condition of their attaining the high- 
 est degree of efficiency. It must be presumed there- 
 fore that human society will be in its highest condition 
 when civil government confines itself exclusively to 
 the secular work of protecting the person and property 
 of the citizen ; leaving to the Church the care of his 
 spiritual interests. It must be presumed that Christi- 
 anity will be purer, have more vital energy, and make 
 more rapid advancement, when the government does 
 not engage in its propagation. 
 
 The great founder of Christianity we think had this 
 law of progress in his mind when he bade his impetu- 
 ous disciple put up his sword, saying, " They that take 
 the sword shall perish by the sword ' ' ; when he said 
 to the Pharisees and Herodians " Render therefore 
 unto Caesar the things that are Caesar's, and unto God 
 the things that are God's " ; when he said to Pilate, 
 ' ' My kingdom is not of this world, else would my ser- 
 vants fight, that I should not be delivered to the Jews. ' ' 
 Nothing is more marked in his life than the little con- 
 cern he manifested to secure the aid of governmental 
 power for the advancement of his cause ; nothing more 
 striking than the calm assurance with which he sent 
 forth his handful of followers to make the conquest of 
 the world, not only without the aid of secular power, 
 but against the most determined opposition of the 
 mightiest secular power on earth. The watchword 
 God gave to his church was, " Not by might, nor by 
 power, but by my Spirit, saith the I^ord of Hosts." 
 
Mystical Theories of the State. i8i 
 CHAPTER IV. 
 
 MYSTICAL THEORIES OF THE STATE. 
 
 I. Personality of the State. — There are mystical 
 theories of the State, in accordance with which it is 
 held that the care of the life of man, in all its depart- 
 ments, is inherent in, and inseparable from, the State ; 
 the theory that the State is a personality having all the 
 attributes of the personalities composing it and stand- 
 ing in authority over all. Plato held that the State 
 was a living body ; Mr. Herbert Spencer regards it as 
 a vital organism ; the late Rev. Elisha Mulford, D. D., 
 argues in his work entitled The Nation, that it is a 
 moral personality ; Prof J. K. Bluntschli asserts in his 
 work entitled The Theory of the State, that it is a mas- 
 culine moral personality. Bluntschli says: "Whilst 
 history explains the organic nature of the State, we 
 learn from it at the same time that the State ... is 
 a moral and spiritual organism, a great body, which 
 is capable of taking up into itself the feelings and 
 thoughts of the nation, of uttering them in laws, and 
 realizing them in acts ; we are informed of the moral 
 qualities and of the character of each State. History 
 a.scribes to the State a personality which, having spirit 
 and bod}^ possesses and manifests a will of its own. 
 
 ' ' The glory and honor of the State have always ele- 
 vated the hearts of its sons and animated them to sacri- 
 fice. For freedom and independence, for the rights of 
 the State, the noblest and best have in all times and 
 all nations expended their goods and their lives. To ex- 
 tend the reputation and the power of the State, to fur- 
 ther its welfare and its happiness, has universally been 
 regarded as one of the most honorable duties of gifted 
 men. The joys and sorrows of the State have always 
 
Mystical Theories of the State. 
 
 been shared by all its citizens. The whole idea of 
 Fatherland and love of country would be inconceivable 
 if the State did not possess this high moral and personal 
 character. . . . 
 
 " The personality of the State is, however, only recog- 
 nized b}'- free people ; and only in a civilized nation- 
 State has it attained to full efficacy. In the earlier 
 stages of politics only the Prince is prominent ; he 
 alone is a person, and the State is merely the realm of 
 his personal rule. The same is true with regard to the 
 masculine character of the modern State. This be- 
 comes first apparent in contrast with the feminine 
 character of the Church. A religious community may 
 have all the other characteristics of a political commu- 
 nity, yet she does not wish to be a State, and is not a 
 State just because she does not consciously rule her- 
 self like a man and act freely in her external life ; but 
 wishes only to serve God and perform her religious 
 duties. To put together the results of this historical 
 consideration, the general conception of the State may 
 be determined as follows : the State is a combination 
 or association {Gesammtheif) of men, in the form of 
 government and governed, on a definite territory, 
 united together into a moral, organized, masculine per- 
 sonality ; or, more shortly, the State is the politically 
 organized national person of a definite country." ' 
 
 It is very evident that according to this theory the 
 care for the religious interests of the people cannot be 
 separated from civil government without detriment to 
 the life of the whole body, for — to use an illustration 
 of Bluntschli given in another place — " The head can- 
 not be separated from the body and made equal to it 
 without killing the man." 
 
 ' The Theory of the State, Oxford, 1892, pp. 22, 23. 
 
Mystical Theories of the State. 183 
 
 This theoty, if it be anything more than a dream of 
 mysticism, if it be admitted to have a speculative valid- 
 ity, can have very little bearing upon practical politics ; 
 not more than cosmogony, geology, and chemistry have 
 upon practical agriculture. As yet, success in farming 
 is attained b}- empirical, rather than by scientific meth- 
 ods. As in the one case, so in the other, the question 
 is usually one of results, rather than of principles, 
 allowing, of course, some influence to scientific princi- 
 ples in the determination, but not allowing them to 
 overbalance the practical judgment, as applied to exist- 
 ing conditions. Providence, by the ordering the condi- 
 tions, historical and local, builds the State ; not man, 
 by the application of his theories. 
 
 It is to be noticed that Bluntschli, while holding 
 formally the theory of the moral personality of the 
 State, makes very little further reference to it in the 
 learned and scientific treatise from w^hich we have 
 quoted. Notwithstanding that his theory implies the 
 ultimate supremacy of the State over all human inter- 
 ests, yet he seems to have come, practically, to the posi- 
 tion we have just taken. He sa3'S : " The idea that 
 the objective difference of political function requires a 
 corresponding subjective separation in the organs to 
 w^hich these functions belong, has been produced by 
 the course of modern politics. . . . Excessive power 
 united in one hand certainly endangers personal free- 
 dom. If the difierent branches of power are separated, 
 they are all mutually limited. Nevertheless the de- 
 cisive reason for such specialization is not the practical 
 security of civil liberty, but the organic reason that 
 every function will be better fulfilled if its organ is 
 specially directed to this particular end, than if quite 
 different functions are assigned to the same organ. The 
 
184 Mystical Theories of the State. 
 
 statesman only follows the example of nature ; — the eye 
 is adapted for sight, the ear for hearing, the mouth for 
 speaking, the hand for seizing. The body-politic should 
 in the same way have a separate organ for each func- 
 tion." Yet to save the theory, and tempted by the il- 
 lustration employed, he goes on to say, "The favorite 
 expression ' separation ( Trennung) of powers ' leads to 
 false applications of a true principle. A complete sepa- 
 ration or sundering of powers would be a dissolution 
 of the unity of the State. Just as in the body natural, 
 all the limbs are connected together, so in the body- 
 politic, the connection of the organs is not less impor- 
 tant than their difference. In the State there must be 
 unit}^ of power, and so the powers, though distinguished 
 according to their functions, must not be absolutely 
 separated." He criticises the exactness and compre- 
 prehensiveness of the threefold distinction made by 
 Montesquieu in the powers of the State, — Legislative, 
 Executive, and Judicial, — observing that it has been 
 "adopted by English political theorists," and "has 
 been carried out with rigor, but not without exaggera- 
 tion, in the United States of North America, and has 
 been .sanctioned by a whole series of modern European 
 constitutions ' ' ; and goes on to say : ' ' The function of 
 sovereignty may appear to be exhausted \>y this three- 
 fold distinction, and we can easily understand how re- 
 cent constitutions have commonly limited themselves 
 to these. But on closer examination we find that there 
 are two other groups of organs and functions, both of 
 which are indeed subordinate to that of government, 
 but may still be distinguished from it, having much less 
 the character of authority and command, which in gov- 
 ernment is essential. These are : 
 
 " /F. The superintendence and care of the intellect- 
 ual elements of civilization {Statscultur.) 
 
Mystical Theories of the State. 185 
 
 ' ' V. The administration and care of material inter- 
 ests iStatswirthshaff)^ Political economy in the original 
 sense. 
 
 ' ' In these two groups there is no question of govern- 
 ing. The great factors of civilization, — religion, science, 
 art, — do not belong to the organism of the State. Thus 
 the relation of the State, even to the external institu- 
 tions of religion, science, and art, to the Church and 
 the school, is fundamentally different from the relation 
 between government and subjects, in its own proper 
 sphere. Such matters cannot be subjected to the do- 
 minion of the State ; its functions are therefore limited 
 to superintendence and fostering care {Aufsicht tind 
 Pflege).^ . . . 
 
 ' ' This distinction in the functions of the State has 
 only in recent times come to be gradually recognized. 
 We still suffer from a confusion of commanding and 
 fostering. Sometimes things are commanded or for- 
 bidden, which should only be managed or controlled ; 
 sometimes there is a timid assistance or control, where 
 there ought to be energetic and authoritative action. 
 But matters are better than they were a hundred, or 
 even fifty years ago. Many institutions have been al- 
 ready separated from the direct administration of gov- 
 ernment, and are managed without the employment of 
 force in a spirit of scientific and technical care, and in 
 the interests, at once, of the welfare and the freedom 
 of the community." ' 
 
 If we should accept this theory of the State as true, 
 and accept also the illustration used — the human body 
 — as fully analogous, we might still question the cor- 
 rectness of the application of the illustration to the 
 truth it was intended to illustrate, viz. : that as the 
 head holds in subjection to itself and governs every 
 ' Ibid., pp. 51S, 519, 524, 555. 
 
1 86 Mystical Theories of the State. 
 
 other part of the body, so the civil government must 
 hold in subjection to itself and govern every depart- 
 ment of man's social life. We may maintain that the 
 soul, mind, spirit, or whatever that may be called 
 which constitutes the personality of man, resides, not 
 in the head alone, but in the whole body, and varies 
 its manifestations as the organs through which it acts 
 are varied. As in the electrical system of the city, the 
 electricity, fluid, vibrating medium, or whatever it may 
 be, pervades the whole, and is manifested, here, as the 
 dazzling light of the arc lamp, there, as the soft light 
 of the incandescent lamp, and in another place as mo- 
 tive power ; so that which constitutes human person- 
 ality pervades the whole body, and is manifested in the 
 living cell as vital principle, in muscular fibre as con- 
 tractile energy, and in the nervous tissue as sensation, 
 feeling, will, and thought. The brain is only one of 
 the organs through which this all-pervading something 
 acts, and has no superiority to the rest, excepting that 
 it may be conceded to be primary while the others are 
 secondar)^, just as the crank of the machine in the 
 hands of the man who turns it may be said to be pri- 
 mary. So if we should concede this theory of the State 
 to be true, we might still maintain that the people con- 
 stitute the personality of the State ; that the civil 
 government and the Church are both alike organs 
 through which the people act ; and that while both 
 are united with and dependent upon the same people, 
 they are yet, as organs, separate from and independent 
 of each other. While the civil government is Chris- 
 tian, it is no part of its proper function to inculcate, 
 propagate, or even to foster Christianity', as it is no 
 part of the function of the eye to hear, or of the ear 
 to see. 
 
Mystical Theories of tJie State. 1 8 7 
 
 The distinction Bluntschli makes between the State 
 as a masculine personahty and the Church as a femi- 
 nine personaHty involves the separation we are con- 
 tending for. Whatever may have been the union of 
 function in the earlier stages of man's development, 
 it is very plain that now the man cannot exercise the 
 specific functions of the woman, nor can the woman 
 exercise those of the man. No one would ever think 
 of trying to maintain that the fields on which the mem- 
 bers of the husbandman's fam.ily are working and the 
 house in which they dwell are two persons, the one 
 masculine and the other feminine. There is nothing 
 more in the case than the simple fact that in the fields 
 the one family is engaged in one department of work 
 for the common good, and in the dwelling house it is 
 engaged in another department of work for the same end. 
 So, in the State and the Church, there is nothing more 
 than the fact that the one nation is engaged in difierent 
 departments of work for the common good. There is 
 as much reason for saying that there is a masculine and 
 feminine personality in the former case as in the latter ; 
 and to make the theory complete, we should have to 
 affirm that the mart constitutes a third personality, a 
 neuter perhaps. Mere increase of dimension may excite 
 the imagination, but it cannot make any difference in 
 principles. 
 
 Mr. Gladstone in the work before referred to ad- 
 vanced this theor5^ He says : " National will and 
 agency are indisputably one, binding either a dissent- 
 ing minority or the subject-body in a manner that 
 nothing but the recognition of the doctrine of national 
 personality can justify. National honor and good faith 
 are words that are in every one's mouth. How do 
 they less imply a personality in nations than the duty 
 
1 88 Mystical Theories of the State. 
 
 towards God for which we now contend ? They are 
 strictly and essentially distinct from the honor and 
 good faith of the individuals composing the nation. 
 France is a person to us, and we to her. A wilful in- 
 jury done to her is a moral act, and a moral act quite 
 distinct from the acts of all the individuals composing 
 the nation. Upon broad facts like these we may rest 
 without resorting to the more technical proof which the 
 laws afford in their manner of dealing with corpora- 
 tions. If, then, a nation have unity of will, have per- 
 vading sympathies, have capability of reward and 
 suffering, contingent upon its acts, shall we deny its 
 responsibility ; its need of religion to meet that respon- 
 sibility ? . . . A nation, then, having a personality, 
 lies under the obligation, like the individuals compos- 
 ing its governing body, of sanctifying the acts of that 
 personality by the offices of religion, and thus we have 
 a new and imperative ground for the existence of a 
 State religion." It is to be observed that this theory 
 is employed by Mr. Gladstone to justify the union of 
 Church and State, for if the State be a person it is 
 bound like every other person to be religious. This 
 theory, we feel warranted in saying, belongs to the re- 
 actionary rather than to the progressive tendencies of 
 the times, an indication of which is to be found in the 
 fact that Mr. Gladstone himself has abandoned it. 
 Having long since descended from the heights of 
 speculative, to the arena of practical politics, he was 
 compelled to leave his theories behind and deal with 
 existing evils separately and empirically, or rather to 
 accept with more confidence the general theory of 
 freedom. 
 
 It is interesting to observe how his large experience 
 and practical wisdom have confirmed his faith in natural 
 
Mystical Theories of the State. 189 
 
 forces, operating in a state of freedom, for the remedy 
 of existing evils and the establishment of justice. Upon 
 the merits of the theory in question as propounded by 
 him in his early days, it will suffice to quote Mr. 
 Macaulay's criticism : 
 
 " Is it not perfectly clear that this argument applies 
 with exactly as much force to every combination of 
 human beings for a common purpose, as to govern- 
 ments ? Is there any such combination in the world, 
 whether technically a corporation or not, which has 
 not this collective personality from which Mr. Glad- 
 stone deduces such extraordinary consequences ? L,ook 
 at banks, insurance offices, dock companies, canal com- 
 panies, gas companies. ... Is there a single one 
 of these combinations to which Mr. Gladstone's argu- 
 ment will not apply as well as to the State ? In all 
 these combinations, in the Bank of England, for ex- 
 ample, or in the Athenaeum Club, the will and agency 
 of the society are one and bind the dissentient minority. 
 The Bank and the Athenaeum have a good faith and 
 a justice different from the good faith and justice of the 
 individual members. The Bank is a person to those 
 who deposit bullion in it. The Athenaeum is a person 
 to the butcher and the wine merchant. If the Athe- 
 naeum keeps money at the Bank, the two societies are 
 as much persons to each other as France and England. 
 Either society may pay its debts honestly ; either may 
 try to defraud its creditors ; either may increase in pros- 
 perity ; either may fall into difficulties. If then they 
 have this unity of will ; if they are capable of suffering 
 good and evil, can we, to use Mr. Gladstone's words, 
 ' deny their responsibility or their need of a religion to 
 meet that responsibility ? * Joint-stock banks, there- 
 fore, and clubs, ' having a personality, lie under the 
 
1 90 Mystical Theories of the State. 
 
 necessity of sanctifying that personality by the offices 
 of rehgion ' ; and thus we have ' a new and impera- 
 tive ground ' for requiring all the directors and clerks 
 of joint-stock banks, and all the members of clubs, to 
 qualify by taking the sacraments. ' ' 
 
 There is no agreement among the advocates of the 
 mystical theory upon the organic unit, which on ac- 
 count of its possessing functions of its own, is to be re- 
 garded as a person. With some it is the Nation, with 
 others the State, and with others society. The last are 
 the most philosophical as society is the larger generali- 
 zation. Society is the genus ; the Nation and State 
 are species : society is primary ; the Nation and State 
 are secondary : society is the source from which the 
 Nation and State derive all their functions. In some 
 scientific treatises on those functions which are supposed 
 to constitute the personality of the State, society alone 
 is spoken of as the subject of them. Society is the 
 person against whom all socialists, anarchists, and 
 vagabonds, charge their grievances. They growl and 
 threaten alike in all civilized Nations and States, for 
 they find that while the Nations and States differ, 
 society and the great body of law are essentially the 
 same in them all. The anarchist may plead — and his 
 plea cannot be gainsaid — that he has no malice afore- 
 thought or personal hatred against the man he has 
 killed with his bomb, and therefore that the essential 
 element of the crime of murder is wanting in his act. 
 It is another person he hates and desires to kill. If it 
 were only men he had to deal with he would reason 
 with them ; he would never think of doing anything 
 so preposterous as attempting to bring about the re- 
 form he desires by killing off all the men who differed 
 from him in opinion. He has no hope, however, of 
 
Mystical Thcoi'ies of the State. 191 
 
 persuading that mystical person with whom he imagines 
 he has to deal ; there is nothing left for him but to kill 
 that person. He throws his bomb at a shadow which 
 he mistakes for a person, but, unfortunately, it always 
 kills a man when it kills anybody. This theory, there- 
 fore, which seemed to be nothing but a harmless dream, 
 has become, in some cases, a very mischievous thing, — 
 a deadl}^ thing to man}- innocent persons. 
 
 2. Sovereignty. — There is another mystical theorj^ 
 of the State, not so distinct in its outline, nor so highly 
 developed in its form, as the foregoing, which has arisen 
 from a supposed necessity of hypostatizing a something 
 to serve as the residence of that essential attribute of all 
 government, sovereignty. The existence of sovereignty 
 is as necessar}^ in the freest republic as in the most ab- 
 solute monarchy. Blackstone says : " How the several 
 forms of government, as we now see them in the world, 
 began, is a matter of great uncertaint}', and has occa- 
 sioned infinite disputes. It is not my business or inten- 
 tion to enter into any of them. However they began, 
 or by what right soever they subsist, there is, and must 
 be, in all of them, a supreme, irresistible, absolute, un- 
 controlled authority, in which W\Q.jiira smnmi imperii, 
 or the rights of sovereignty, reside." ' 
 
 The necessity of sovereignty may be readily recog- 
 nized, but its residence cannot be so easily found. In 
 a democracy the sovereignty is said to reside in the 
 people, but the suffrage, the instrument by which 
 the sovereignty is supposed to be exercised, nowhere 
 belongs to all the people." In our own land it is 
 withheld from women ; from all male residents who 
 
 ' Com., Introduction, Sec. 2. 
 
 * Judge Cooley says in his Constitutional Limitations : "Sov- 
 ereignty as applied to States, imports the supreme, absolute. 
 
192 Mystical Theories of the State. 
 
 were born in a foreign country until they comply with 
 certain terms and forms of naturalization ; from all 
 native-born males, who are under twenty-one j^ears 
 of age ; who have not resided in the state, county, and 
 precinct a prescribed time before the election ; from the 
 inmates of insane asylums and almhouses ; and from 
 all who have been convicted of an infamous crime. 
 But by whom withheld ? By the sovereign. But who 
 and where is the sovereign ? If the ballot is given or 
 withheld by the sovereign it cannot be itself a mark of 
 sovereignty, or a guide to its residence. When women 
 set up a claim to the ballot on the ground that it belongs 
 to them by natural right, it is answered that the elective 
 franchise is not the natural right of any body, but a 
 privilege conferred upon those who poSvSess it. When 
 they argue that being taxed, they ought to have repre- 
 sentation in the government, it is answered that taxation 
 gives no right to representation ; that also is a privilege, 
 given or denied, as the sovereign may think best. Great 
 numbers of men, citizens as well as aliens, own property 
 and are taxed where they have no right to vote. It is 
 answered, also, that it has been ordained by the sover- 
 eign that the officers, elected by the few upon whom 
 
 uncontrollable power by -whicli any State is governed." i, 
 (Fourth Edition). 
 
 " The theory of our political system is that the ultimate sover- 
 eignty is in the people, from whom springs all legitimate 
 authority. . . What are we to understand by the People in 
 this connection ? . . . As a practical fact the sovereignty is 
 vested in those persons who are permitted by the Constitution 
 of the State to exercise the elective franchise." 36, 37. 
 
 " The authority of the people is exercised through <?/<?r//<?«5 
 by means of which they choose legislative, executive, and ju- 
 dicial officers, to whom are to be entrusted the exercise of powers 
 of government." 752. 
 
I 
 
 Mystical Theories of the State. 193 
 
 the privilege of the suffrage lias been conferred, shall 
 be the representatives of all, men and women, adults 
 and minors, the taxed and the untaxed. It appears 
 from the arguments of those who are contending for 
 the real existence of this something, that all of the so- 
 called political rights are not rights at all, but privileges, 
 granted by the sovereign ; and it becomes therefore all 
 the more important that we should know who, or what, 
 this supreme authority is. As a matter of course, it 
 cannot be those male citizens who have the suffrage, 
 for they are recipients of the grant, and the same per- 
 sons cannot be both grantors and recipients. It must 
 be then something or somebod)'^, above and antecedent 
 to, the exercise of the elective franchise, above and 
 before any action of anj' or all of the citizens ; and we 
 still have to ask what, or who is it. The difficulty of 
 answering this question has led to the hj^pothesis of an 
 individual existence antecedent to all governmental 
 organization, and from which the government derives 
 all its authority. 
 
 Resort is had to this hypothesis to justify certain 
 measures of the government ; for example, it is argued 
 that the State has an absolute dominion over the prop- 
 ert}^ of the citizen because its antecedent existence has 
 made property possible, — a superfluous and impertinent 
 argument, since if the sovereign has conferred all rights, 
 he must be the possessor of all rights ; if he is the 
 source and author of all law, he must himself be above 
 all law, and it follows that " where no law is, there is no 
 transgression. ' ' The sovereign can do no wrong. His 
 own nature is his only law, and the supposition that he 
 would violate his own nature is inadmissible. It is 
 argued also that this hypothetical existence — the State 
 — may have interests of its own different from, and even 
 
194 Mystical Theories of the State. 
 
 antagonistic to, the interests of the people, or, at least, 
 to their opinion of what their interests are ; in which 
 case, its own self-preservation must be the first and 
 supreme law ; and the maxim, sains popidi siiprema est 
 lex is converted into sahis civitatis S7ipre?na est lex. 
 
 But how does this sovereignty come into being ? It 
 is said that it springs up necessarily from the living of 
 men in proximity to one another. It cannot get its 
 being from any act of organization performed by them, 
 for then it would be their creature, and not their sover- 
 eign. It has therefore a necessary, independent, and 
 antecedent existence ; and the question still remains, 
 What is it ? 
 
 It is conceived of so vaguely by those who contend 
 for it that they apply to it the terms, people, state, 
 nation, society, and brotherhood, interchangeably, as 
 though these terms were equivalent, or as though they 
 stood for different stages in the development of the 
 same thing. The last generalization, — the universal 
 brotherhood of man, — is supposed to be the ideal State, 
 the ultimate abode of sovereignty. This theory, capti- 
 vating as it is to the benevolent heart and the scien- 
 tific imagination, is, like Plato's Republic, a dream of 
 mysticism, not the product of an induction. Better be 
 a thorough-going Platonist and hold that the idea of 
 the State, as of all other things, is an eternal individ- 
 ual existence ; and that the government, like all other 
 things, derives its being from the eternal idea, of which 
 it is but an imperfect realization. 
 
 A scientific induction will show that the sovereignty 
 in government is nothing but preponderating force, 
 which enables those who possess it to do as they will. 
 They will be governed in the exercise of it, more or 
 less, by benevolent, moral and prudential considerations 
 for they have a sympathetic, moral, and rational nature. 
 
Mystical Theories of the State. 195 
 
 but the ultimate basis of sovereignty in government is 
 force, no less so in a democracy than in a monarchy. 
 Prof William G. Sumner, in one of his essays, ridicules 
 the popular phrase " the peaceable arbitrament of the 
 ballot"; maintaining that the ballot is a weapon of 
 war, and not an implement of peace, and is serviceable 
 for preserving peace only by indicating on which side the 
 preponderance of force lies. A minorit}- of the strong 
 will never be controlled by a majority of the weak ; a 
 minority of wolves will never be controlled by a major- 
 ity of sheep ; nor wnll a minority of men ever be con- 
 trolled by amajority of women, unless by some revulsion 
 in nature the women become amazons and the men 
 pygmies. Carljde's assertion that "the ultimate ques- 
 tion between every two human beings is ' Can I kill 
 thee, or. Canst thou kill me,' " is only a harsh and 
 extravagant way of stating a truth. Mr. Bagehot, in 
 his Physics and Politics, states it much more appro- 
 priately when just before referring to the assertion of 
 the rugged Scotchman, he says, " The savage virtues, 
 which tend to war, are the daily bread of human 
 nature." 
 
 The preponderance of force in every form of govern- 
 ment is ultimately with the people. It is potential 
 energy, and is kept from becoming kinetic, only by the 
 restraint of circumstances, as it is in the ph5^sical world 
 by the restraint of position, which, in both cases, is 
 adventitious. Every government, even the most des- 
 potic, rests ultimately upon the consent of the governed. 
 A very complex aggregation of influences may move 
 them to give their consent, but without it no govern- 
 ment could stand. ' 
 
 ' Mr. Herbert Spencer, in his essay, entitled "The Social 
 Organism," says : " We all know that the enactments of repre- 
 sentative governments ultimately depend on the national will. 
 
196 Mystical Theories of the State. 
 
 That the sovereignty does not reside in a mystical, 
 antecedent, unchangeable something, but in the pos- 
 sessors of the predominating force, seems to follow 
 from the conceded right of revolution. When the pre- 
 ponderance of force is with those who are opposed to 
 the existing government, and they are minded to over- 
 throw the old and establish a new, they put forth an 
 act of sovereignty. They may act unwisely, may mis- 
 take what is for the good of the people, as they have 
 often done in the republics of Central and South Amer- 
 ica, but the possessor of the preponderating force, the 
 sovereign, is under no law, and is accountable for his 
 acts only to himself. All nations recognize a de facto 
 government, which gives promise of maintaining itself, 
 without troubling themselves with the question dejure. 
 The sovereignty of the East Indies resides in Great 
 Britain, not in a mystical something, aboriginal, and 
 sprung from the soil of India. Before the year 1776 
 the sovereignty over the British colonies in America 
 resided in England ; or if in both England and 
 America, that mystical something was nevertheless a 
 unit. There are two sovereigns now where there was 
 
 They may, for a time, be out of harmony with it, but eventually 
 they must conform to it. . . . In the case of a government, 
 representing a dominant class, the same thing holds, though not 
 so manifest. For the very existence of a class, monopolizing all 
 power, is due to certain sentiments in the commonalty. But 
 for the feeling of loyalty, on the part of retainers, a feudal 
 system could not exist. . . . Even where the government is 
 despotic the doctrine still holds. The character of the people 
 is, as before, the original source of this form. . . . Moreover, 
 such regulations as a despot makes, if really operative, are so 
 because of their fitness to the social state .... and when 
 they are out of harmony with the national character they are 
 soon practically abrogated." 
 
Mystical Theories of the Siatc. 1 9 7 
 
 only one before. Did that one multiply itself in 1776 
 by fission ? 
 
 The genesis of the State may be easily traced. Black- 
 stone says that ' ' the only true and natural foundations 
 of society are the wants and fears of individuals " ' ; a 
 statement which needs a slight modification and the 
 addition of two or three items : 
 
 The duties of man may be classified under four heads : 
 Self-development, Reproduction, Service to his Fellow- 
 men, and the Worship of God. 
 
 The first, to realize the archetypal idea of man, the 
 image of God, the likeness to Christ. 
 
 The second, to make up to the world the losses caused 
 by death, to keep the world in perpetual possession of 
 the beauty and joy of youth, and to secure, through 
 heredity, the gains made by individual effort and by 
 divine assistance as a cumulative inheritance. 
 
 The third, to mitigate the woes and promote the de- 
 velopment of mankind. 
 
 The fourth, to elevate the nature and supply the proper 
 motive and inspiration for the performance of all duty. 
 
 These duties are enforced by divine inculcation and 
 command. Man is instructed to regard God as his 
 father, and therefore, himself as a child, whose great 
 object in life must be to grow unto the likeness of the 
 father, and these commands are given him: "Be ye 
 perfect even as your Father in heaven is perfect ' ' ; 
 " Be fruitful and multiply, and replenish the earth " ; 
 ' ' Love th}' neighbor as thj-self " ; " Whosoever will be 
 chief among you, let him be your servant ; even as the 
 Son of man came, not to be ministered unto, but to 
 minister, and to give his life a ransom for many" ; 
 " Thou shalt love the Lord thy God with all thy heart, 
 ' Com., Introd., section 2. 
 
198 Mystical Theories of the State. 
 
 and with all thy soul, and with all thy mind, and with 
 all thy strength " ; " Thou shalt worship the Lord thy 
 God, and Him only shalt thou serve." In order to 
 secure the fulfilment of these duties, appropriate im- 
 pulses, desires, sympathies, and aspirations have been 
 implanted in man, and these are the forces by which 
 all social organization has been produced. The first 
 desire, in the order of nature, is the desire for food, 
 whereby the welfare and development of the body are 
 promoted ; and even in the lowest stages this desire 
 begets the idea of property, especially when the same 
 object will serve for more than one gratification. The 
 suckling will soon claim property in the mother's 
 breast. If the animal taken in the chase cannot all be 
 eaten at once, the same desire that prompted to the 
 taking of it will prompt to the preservation of it, to 
 satisfy the hunger when it shall return, and will give 
 the idea of the right of possession, soon to be followed 
 by the general idea of property, founded on the labor 
 of obtaining that which satisfies desire. Now, since 
 man is moved primarily by his desires, with little re- 
 straint from a sense of right, one will take by force from 
 another whatever he may want, and a combination of 
 the weak will be made for protection against the strong ; 
 while natural sympathies will act as co-operating forces 
 to draw men into association. We have then, as the 
 result of this one desire, the embryo of social organi- 
 zation and government. The desire which prompts to 
 reproduction will tend more directly to this end, for 
 the co-operation of two are necessary to the gratifica- 
 tion of that desire. If there are as many women as 
 men, and numbers of them are not at once available, 
 the man will be prompted to retain the first woman to 
 whom he has been united, as his own. The woman 
 
Mystical Theories of the State. 199 
 
 being physically the weaker will be governed by the 
 man, and division of labor, the first step toward civili- 
 zation, will begin. While reason would suggest, to 
 the lowest intellect, that there would be greater gain to 
 all if the different parts of labor were assigned to the 
 persons best fitted to perform it, yet the division is de- 
 termined at first by mere brute force. The man com- 
 pels the woman to relieve him of all toil but that which 
 is easiest and most agreeable to himself. She becomes, 
 therefore, his burden-bearer and his slave. Here we 
 have government, with sovereignty, and the sover- 
 eignty has its basis in mere force. Children, when 
 they come, will form a new element in the social or- 
 ganization, but the sovereignty of superior force remains 
 the same, softened and restrained, in some degree, by 
 the tenderness of the parental instinct. 
 
 The man, observing that the satisfaction of his de- 
 sires is affected b}^ powers not of himself, and over 
 which he has no control, such as accidents and diseases, 
 heat and cold, drought and deluge, projects the attri- 
 butes of his own nature into the outer world, and imag- 
 ines it to be governed by beings of like passions with 
 himself, only greater ; and he fixes upon the use of 
 certain things, and the performance of certain rites, 
 which he fancies will propitiate or defeat these powers. 
 He now has the rudiments of a religion, but it contem- 
 plates nothing more than averting bad luck and bring- 
 ing good luck. It will be regarded as a matter of the 
 greatest importance, for to do an^^thing which would 
 bring bad luck to the family, clan, or tribe would be a 
 crime worse than treason. It will therefore be governed 
 by the strictest regulations, and those regulations will 
 be prescribed by the sovereign, the possessor of the pre- 
 dominant force. 
 
200 Mystical Theories of the State. 
 
 Deeds of valor, done by the man himself, or by others, 
 
 he delights to recount to his fellowmen, and his imagina- 
 tion, stimulated by the pleasure derived from the recol- 
 lection, adds embellishment to the account. The story 
 is handed down to his posterity, from whom it receives 
 further embellishment, till finally the hero is deified and 
 associated with the beneficent or the destructive powers 
 of nature ; and the religion advances from fetichism to 
 mythology. The rites of religion will be assigned to 
 particular persons, who will constitute a priesthood, but 
 still the religion will be a matter of State, and the power 
 of regulating it will be in the hands of the sovereign. 
 
 The rapacity of other men will cause families to unite 
 in tribes for mutual protection, while all the social im- 
 pulses will be tending to the same end. The organiza- 
 tion will become more complex, and there will be greater 
 specialization of work. The possessor of the sovereignty 
 will see that the more elaborate and comprehensive 
 regulations, now necessary, need a specialized adminis- 
 tration, and the final arbiter, force, will be in some de- 
 gree veiled from sight behind a council of chiefs, and a 
 series of customs which have become institutions. 
 
 When the hunter stage gives place to the pastoral, 
 the idea of property will become more definite ; the 
 family will become the patriarchate, a more complex 
 social and governmental organization, and the institu- 
 tional limitations to the exercise of sovereignty or brute 
 force will be multiplied. 
 
 When the wandering herdsman ceases to subsist en- 
 tirely upon the produce of his herds and the spontane- 
 ous products of the earth, and begins to make cereals 
 a part of his subsistence, he will take up his abode on 
 the fields he cultivates ; there will be a larger need of 
 implements, which wnll cause a more extended division 
 
 \ 
 
Mystical Theoi^ics of tJie State. 201 
 
 of labor and a more extensive barter ; society and gov- 
 ernment will go on in its development to a still higher 
 stage. From this stage specialization of function and 
 organ will go on more and more rapidly ; the divisions 
 of labor will be multiplied ; money, and after that the 
 machinery of credit, will be invented to facilitate ex- 
 changes ; institutions will become more fixed ; the gov- 
 ernment, sharing in the progress and carried along by 
 the same laws of progress, will become more complex ; 
 its various functions will be distributed among a larger 
 number of agencies, and force, the final arbiter, will be 
 so far withdrawn from view that many will find difii- 
 culty in telling what the final arbiter they now call 
 sovereignty is, or where it resides. 
 
 It is very plain now, we think, that the resumption 
 by the government of any of the distributed functions 
 would be a reversal of progress ; or, if there were con- 
 ditions which rendered such resumption necessary, it 
 would be evidence that the people had turned about 
 and were making their way towards barbarism. It is 
 just as plain, we think, that to set up a hypostatized 
 something — State, or whatever else it may be called — 
 as the original possessor of all governmental power, in 
 order to justify any particular act of the so-called sover- 
 eignty, is to look backwards. If we should admit that 
 the whole subject of education and religion belonged 
 originally to the State, the admission would furnish no 
 ground for the resumption of the control of either, or 
 both, in whole, or in part, by the government at the 
 present time. It would be just as absurd as to plead, 
 what embrj'ologists tell us of the development of the 
 individual man, that he passes through all the grada- 
 tions of animal life, from that of the amoeba upwards, 
 to justify his swimming to shore when his boat is sunk, 
 
202 Mystical Theories of the State. 
 
 or his going on all fours through a narrow tunnel to 
 escape from a military prison in which he is held cap- 
 tive by an enemy. The possessor of the force necessary 
 to do a needed thing will neither ask nor offer any other 
 justification than the necessity. 
 
 Sovereignty is nothing but preponderating force, 
 which, among civilized peoples, is veiled from sight and 
 powerfully restrained by a wondrously complex and 
 firmly fixed system of institutions. There is no ante- 
 cedent existence in which that ghost of kingship, sov- 
 ereignty, resides. The State is not an eternal idea ; nor 
 is it an autocthonous something, sprung from the earth, 
 as Aphrodite sprang from the foam of the sea ; exist- 
 ing before all government, and imparting to govern- 
 ment all its powers. 
 
 The ever-present political problem is, not the discov- 
 ery and the exposition of the powers of a supposed 
 primordial something in which sovereignty resides ; 
 but the bringing of enlightenment, a sense of justice, 
 the love of man and the fear of God, to act upon the 
 possessors of the preponderating force.' 
 
 ' It may be objected that the genesis of the State, as above 
 given, is purely imaginary, entirely unlike the actual genesis ; 
 that it is not only unhistorical, but is in contradiction to a his- 
 tory which is of the greatest antiquity and of the highest au- 
 thority. According to that history, man was created either at 
 the highest stage of civilization ; in which case the savages, like 
 the vicious and criminal classes of our cities, are witnesses to 
 a degeneration, not to an elevation ; or, man was created at a 
 middle stage, and the savages are witnesses to degeneration, 
 while the civilized peoples are witnesses to an elevation. It 
 may be said, also, that there is no example now on earth of the 
 extremely low condition which the scheme requires as its start- 
 ing point. 
 
 It may be answered that the science of anthropology has 
 
Religious A7nendment. 203 
 
 CHAPTER V. 
 
 RELIGIOUS AMENDMENT OF THE CONSTITUTION OF 
 THE UNITED STATES. 
 
 The omission of all recognition of the existence of 
 God and of the Christian religion in the Constitution 
 of the United States has been regarded by many worthy 
 citizens as a very serious defect, if not a grievous sin. 
 An organization has been formed for the purpose of se- 
 curing an amendment to the Preamble of the Constitu- 
 tion which, it is supposed, will remedy the defect and 
 avert the evil consequences of the sin. 
 
 It appears that the placing of a recognition of the 
 Divine Being in the Constitution, which is now deemed 
 to be a matter of so great importance, was not spoken 
 
 found, in the geological and archaeological fields of its investiga- 
 tion, almost conclusive proof that the low stage in question did 
 exist, and was prevalent in pre-historic times. This fact, at the 
 one extreme, and our high civilization, at the other, with every 
 gradation between, warrants the belief that the scheme, as pre- 
 sented, does set forth the actual course of human progress. 
 
 In a scientific investigation, whether it be of the divine works, 
 or of the divine word, our only concern is the ascertainment of 
 facts, not the bearing of facts, in the one domain, upon facts in 
 the other. If, upon independent grounds, we believe the Bible 
 to be the word of God, that question is settled ; it is no longer 
 an open one. If it be not settled, very much more than a few 
 instances of seeming conflict between Science and Revelation 
 will have to be taken into consideration ; and a range of learn- 
 ing and scientific investigation, much wider than the field of 
 natural science, will have to be traversed, in order to settle it. 
 A seeming conflict will only show that there has been a fault 
 in the ascertainment of facts ; and the thing to be done in such 
 a case, is the discovery of the fault ; not the denunciation of 
 Science on the one hand, nor the rejection of the Bible on the 
 other. 
 
204 Religious A^nendnie^it. 
 
 of in the convention, nor even thought of outside of 
 the convention, until after the Constitution had been 
 completed and submitted for adoption. It is said that 
 the Rev. Dr. John Rogers, an eminent divine of the 
 Presbyterian Church, in New York City, inquired of 
 Alexander Hamilton on his return from the convention 
 why some suitable recognition of the Almighty had 
 not been placed in the Constitution, and that the reply 
 was, " Indeed, Doctor, we forgot it." 
 
 A statement made by lyUther Martin, a member of 
 the convention from Maryland, after its adjournment, 
 has been cited to show that the matter had not been 
 entirely forgotten, viz. : " However, there were some 
 members so unfashionable as to think that a belief of 
 the existence of a Deity and a state of future rewards 
 and punishments would be some security for the good 
 conduct of our rulers, and that in a Christian country 
 it would be at least decent to hold out some distinction 
 between the professors of Christianity and downright 
 infidelity or paganism." This statement, however, 
 taken in its connection cannot serve the purpose for 
 which it is cited. Mr. Martin upon his return addressed 
 the House of Delegates of Maryland, giving a long and 
 elaborate discussion of the work of the convention. 
 Among other things he said : " The part of the system 
 which provides that no religious test shall be required as 
 a qualification to any office or public trust under the 
 United States was adopted by a great majority of the 
 convention and without much debate. However, there 
 were some members so unfashionable," etc' 
 
 Mr. Martin was on other grounds strenuously op- 
 posed to the adoption of the Constitution ; he did not 
 sign it, and the probability is that this objection to it 
 > Elliot's Debates, vol. i., pp. 385, 386. 
 
Religious Amendment. 205 
 
 was an after-thought. At any rate it is evident that 
 his objection was not to the omission of a bare recog- 
 nition of the existence and authority of the Divine 
 Being, but the omission of something which would 
 have been far different in its practical effect. The se- 
 curity for the good conduct of our rulers which he 
 thought necessary was a religious test. It was by this 
 means the distinction between the professors of Chris- 
 tianity and downright infidelitj^ or paganism, which he 
 thought necessary to decency, was to be made. 
 
 If it be true as Hamilton is reported to have said it 
 was, that a recognition of the Almighty was omitted 
 from the Constitution through mere oversight, neverthe- 
 less the oversight cannot but be regarded as remarka- 
 ble, and every Christian citizen will be ready to ask 
 how it happened to occur. An examination of the 
 circumstances in which the Constitution was formed 
 will furnish ample explanation of the fact, and will 
 also afford entire relief from even a suspicion that the 
 omission was made with any anti-Christian purpose. 
 
 I. It is to be remarked in the first place that the 
 public mind, of which the Constitutional convention 
 was a reflection, was especially intent upon guarding 
 against the evils of a union between Church and State, 
 and for that reason gave too little attention, perhaps, 
 to the opposite evils. The lessons of history, especially 
 as connected with the founding of some of the colo- 
 nies, aroused a fear of the complication of religion with 
 the civil government ; and to this fear the omission 
 must be, in large measure, attributed. 
 
 It cannot be denied that the infidelity prevailing in 
 France at that time had become fashionable with a par- 
 ticular party in this country, the party whose political 
 predilections were with the French. It was not fash- 
 
2o6 Religious Amendment. 
 
 ionable, however, with that large and very respectable 
 party which cherished an admiration for the British 
 Constitution, and desired to establish a modification of 
 that Constitution in this country. The Christian sen- 
 timent of the country was still so prevalent and power- 
 ful as to render it impolitic for the unbeliever to show 
 any wanton disrespect to it. This will appear from the 
 following letter of Benjamin Franklin, who was reputed 
 to be a deist and a friend of Thomas Paine, the person 
 to whom the letter is supposed to have been addressed : ' 
 
 ' ' I have read your manuscript with some attention. 
 By the argument it contains against a particular Provi- 
 dence, though you allow a general Providence, you 
 strike at the foundations of all religion. For without 
 the belief of a Providence that takes cognizance of, 
 guards and guides, and may favor particular persons, 
 there is no motive to worship a deity, to fear his dis- 
 pleasure, or to pray for his protection. I will not enter 
 into any discussion of your principles, though you seem 
 to desire it. At present I shall only give you my opin- 
 ion, that, though your reasonings are subtle and may 
 prevail with some readers, you will not succeed so as 
 to change the general sentiments of mankind on that 
 subject, and the consequence of printing this piece will 
 be a great deal of odium drawn upon yourself, mischief 
 to you and no benefit to others. He that spits against 
 the wind spits in his own face. 
 
 " But were you to succeed, do you imagine any good 
 would be done by it ? You yourself may find it easy 
 
 ' Sparks, in a note, says, " This letter was first published by 
 William Temple Franklin, but without the name of the person 
 to whom it was directed. ... It is supposed to have been writ- 
 ten to Thomas Paine, and the circumstances are such as to ren- 
 der this supposition in the highest degree probable." 
 
Religious Amendment. 207 
 
 to live a virtuous life without the assistance afforded by 
 religion ; yoxx having a clear perception of the advan- 
 tages of virtue and the disadvantages of vice, and pos- 
 sessing strength of resolution sufficient to enable you 
 to resist common temptations. But think how great a 
 portion of mankind consists of weak and ignorant men 
 and women, and of inexperienced, inconsiderate youth 
 of both sexes, who have need of the motives of religion 
 to restrain them from vice, to support their virtue, and 
 retain them in the practice of it till it becomes habitual, 
 which is the great point for its seciurity. And perhaps 
 you are indebted to her originally, that is, to your reli- 
 gious education, for the habits of virtue upon which you 
 now justly value yourself You might easily display 
 your excellent talents of reasoning upon a less hazardous 
 subject, and thereby obtain a rank with our most dis- 
 tinguished authors. For among us it is not necessary, 
 as among the Hottentots, that a youth to be raised into 
 the company of men should prove his manhood by beat- 
 ing his mother. 
 
 " I would advise you, therefore, not to attempt un- 
 chaining the tiger, but to burn this piece before it can be 
 seen b}- any other person ; whereby you will save j^our- 
 self a great deal of mortification by the enemies it may 
 raise against you, and perhaps a good deal of regret and 
 repentance. If men are so wicked with religion, what 
 would they be if wit/iout it. I intend this letter as a 
 proof of my friendship and therefore add no professions 
 to it, but subscribe simply 
 
 "Yours, B.Franklin."' 
 
 Judge Story says, in his Commentary on tJie Consti- 
 tution : ' ' Probably at the time of the adoption of the 
 
 ^ Franklin's IVritmgs. Sparks, vol. x., pp. 281-282. 
 
2o8 Religious Amendment. 
 
 Constitution and of the amendment to it, now under 
 consideration (Congress shall make no law respecting 
 an establishment of religion, or prohibiting the free 
 exercise thereof), the general, if not the universal senti- 
 ment in America was that Christianity ought to receive 
 encouragement from the State, so far as it is not incom- 
 patible with the private rights of conscience and the 
 freedom of religious worship. An attempt to level all 
 religions and to make it a matter of State policy to hold 
 all in utter indifference would have created universal 
 disapprobation, if not universal indignation." ' 
 
 Judge Story lived so near to the time of the adoption 
 of the Constitution that these words may be taken as 
 not merely an opinion formed upon a careful study of 
 the materials of history, but as at least hearsay testi- 
 mony to the fact. 
 
 It cannot be maintained that there was in the general 
 public any demand either open or tacit, that an athe- 
 istic or anti-Christian character should be given to the 
 Constitution ; nor can it be maintained that in the con- 
 vention there was a covert purpose to impart to it such 
 a character. The refusal of the convention to adopt 
 the resolution offered by Dr. Franklin, proposing that 
 the daily sessions be opened with prayer, cannot in view 
 of the whole record of the case, which we here give, 
 be taken as revealing an irreligious bias in the conven- 
 tion. 
 
 "Dr. Franklin: — 'Mr. President, the small pro- 
 gress we have made after four or five weeks' close at- 
 tendance and continual reasonings with each other ; 
 our different sentiments on almost every question, 
 several of the last producing as many noes as ayes, is, 
 metliinks, a melancholy proof of the weakness of the 
 ' P. 700. 
 
Religious Amendment. 209 
 
 human understanding. We indeed seem to feel our 
 want of political wisdom, since we have been running 
 about in search of it. We have gone back to ancient 
 history for models of government, and examined the 
 different forms of those republics which having been 
 formed with the seeds of their own dissolution, now no 
 longer exist. And we have viewed modern States all 
 round Europe, but find none of their Constitutions suit- 
 able to our circumstances. 
 
 " * In this situation of this Assembly, groping, as it 
 were, in the dark to find political truth, and scarce able 
 to distinguish it when presented to us, how has it hap- 
 pened, Sir, that w^e have not hitherto once thought of 
 humbly appl3nng to the Father of lights to illuminate 
 our understandings. In the beginning of the contest 
 with Great Britain, when we were sensible of danger, 
 we had daily prayer in this room for the divine protec- 
 tion. Our prayers. Sir, were heard and they were 
 graciously answered. All of us who were engaged in 
 the struggle must have observed frequent instances of a 
 superintending Providence in our favor. To that kind 
 Providence we owe this opportunity of consulting in 
 peace on the means of establishing our future national 
 felicity. And have we now forgotten that powerful 
 friend? I have lived. Sir, a long time, and the longer 
 I live the more convincing proofs I see of this truth, 
 that God governs in the affairs of vien. And if a spar- 
 row cannot fall to the ground without His notice, is it 
 probable that an Empire can rise without His aid ? We 
 have been assured. Sir, in the sacred writings, that 
 ' except the Lord build the house they labor in vain 
 that build it.' I firmly believe this, and I also believe 
 that without His concurring aid we shall succeed in 
 this political building no better than the builders of 
 
2 1 o Religious Ainejidmenf. 
 
 Babel. We shall be divided by our little partial local 
 interests ; our projects will be confounded, and we our- 
 selves shall become a reproach and by-word down to 
 future ages. And what is worse, mankind may here- 
 after from this unfortunate instance despair of establish- 
 ing governments by human wisdom and leave it to 
 chance, war, and conquest. 
 
 " ' I therefore beg leave to move that hereafter prayers, 
 imploring the assistance of Heaven and its blessings 
 on our deliberations, be held in this assembly every 
 morning before we proceed to business, and that one or 
 more of the clergy of this city be requested to oflBciate 
 in that service." 
 
 " Mr, Sherman seconded the motion. Mr. Hamilton 
 and several others expressed their apprehension that, 
 however proper such a resolution might have been at 
 the beginning of the convention, it might at this late 
 day, in the first place, bring on it some disagreeable 
 animadversions ; and in the second place, lead the 
 public to believe that the embarrassments and dissen- 
 tions within the convention had suggested the measure. 
 It was answered by Dr. Franklin, Mr. Sherman, and 
 others, that the past omission of a duty could not 
 justify a further omission ; that the rejection of such 
 a proposition would expose the convention to more un- 
 pleasant animadversions than the adoption of it ; and 
 that the alarm out of doors that might be excited for 
 the state of things within would at least be as likely 
 to do good as ill. 
 
 ' ' Mr. Williamson observed that the true cause of the 
 omission could not be mistaken. The convention had 
 no funds. 
 
 ' ' Mr. Randolph proposed, in order to give a favorable 
 aspect to the measure, that a sermon be preached at 
 
Religious A mendment. 2 1 1 
 
 the request of the convention on the fourth of July, the 
 Anniversarj' of Independence, and thenceforth prayers, 
 etc., be read in the convention every morning. 
 
 " Dr. Franklin seconded this motion. And after sev- 
 eral unsuccessful attempts for silently postponing this 
 matter by adjourning, the adjournment was at length 
 carried without any vote on the motion, Thursday, 
 June 28th." ' 
 
 Unless the three reasons against the adoption of Dr. 
 Franklin's motion can be proved to have been without 
 ground, and to have been disingenuously given, the 
 defeat of that motion cannot be regarded as, in itself, a 
 sufficient proof that an anti-Christian bias prevailed in 
 the convention, and that the members, controlled by 
 such a bias, purposely made the Constitution what it 
 is now charged with being, an atheistic document. 
 
 In at least two of the State conventions objection 
 was made to the last clause of Article VI. of the Con- 
 stitution, prohibiting all religious tests and qualifica- 
 tions to any office or public trust under the United 
 States. It will be seen from the arguments urged in 
 favor of the prohibition, and from the character of the 
 persons contending for it, three of them being clergy- 
 men, that the motive which prompted the proposing 
 and adopting of that prohibition was a fear of the evils 
 that might result from a religious establishment, and a 
 desire to give all citizens equal rights, with eligibility to 
 all offices and public trusts without discrimination on 
 account of their religious belief or unbelief. There is 
 no evidence whatever of an intention to disparage Chris- 
 tianity or to make an atheistic Constitution ; and it is 
 
 "^ Journal of the Federal Convention. Kept by James Madisou. 
 Edited by E. H. Scott. Chicago, Albert Scott & Co. 1S93, pp. 
 259-261. 
 
2 1 2 Religious Amendment. 
 
 fair to assume that if there was no such intention in 
 this matter that there was none in the omission of a 
 recognition of the existence of God and of the authority 
 of the lyord Jesus Christ, 
 
 Convention of Massachusetts. — Mr, Parsons, of 
 Newburyport, said: "It has been objected that the 
 Constitution provides no religious test by oath, and we 
 may have in power unprincipled men, atheists and 
 pagans. No man can wish more ardently than I do 
 that all our public offices may be filled by men who 
 fear God and hate wickedness, but it must remain with 
 the electors to give the government this security. An 
 oath will not do it. Will an unprincipled man be en- 
 tangled by an oath ? Will an atheist or a pagan dread 
 the vengeance of the Christian's God, a Being in his 
 opinion a creature of fancy and credulity ? It is a 
 solecism in expression. No man is so illiberal as to 
 wish the confining places of honor or profit to any one 
 sect of Christians, but what security is it to the govern- 
 ment that any public officer shall swear that he is a 
 Christian ? . . . Sir, the only evidence we can 
 have of the sincerity of a man's religion is a good life, 
 and I trust that such evidence will be required of every 
 candidate by every elector, ' ' ' 
 
 " In the conversation of Thursday on the Sixth 
 Article , . . several gentlemen urged that it was 
 a departure from the principles of our forefathers 
 who came here for the preservation of their religion ; 
 and that it would admit deists, atheists, etc, into the 
 general government ; and people being apt to imitate 
 the examples of the court a corruption of morals ensue. 
 Gentlemen on the other side applauded the liberality of 
 the clause and represented in striking colors the impro- 
 • Elliot's Debates, vol. ii., p. 90. 
 
Convention of Massachusetts. 2 1 3 
 
 priety of, and almost impiety of the requisition of a test 
 as practised in Great Brittain and elsewhere. In this 
 conversation the following is the substance of the 
 obser\^ation of Rev. Mr. Shute : 
 
 " ' Mr. President, to object to the latter part of the 
 paragraph under consideration which excludes a re- 
 ligious test is I am sensible very popular, for the most 
 of men somehow are rigidly tenacious of their own senti- 
 ments in religion, and disposed to impose them upon 
 others as the standard oi truth. If in my sentiments 
 on the point in view, I should differ from some in this 
 honorable body I only wish from them the exercise of 
 that candor with which true religion is apt to inspire 
 the honest and well-disposed mind. 
 
 " ' To establish a religious test as a qualification for 
 office in the proposed Federal Constitution it appears 
 to me, Sir, would be attended with injurious conse- 
 quences to some individuals and with no advantage to 
 the whole. By injurious consequences to some, I mean 
 that some who in every other respect are qualified to 
 fill some important post in government will be ex- 
 cluded, by their not being able to stand the religious 
 test, which I take to be a privation of a part of their 
 civil rights. 
 
 " ' Nor is there to me any conceivable advantage. Sir, 
 that would result to the whole from such a test. Un- 
 principled and dishonest men will not hesitate to sub- 
 scribe to anything that may open the way for their 
 advancement, and put them in a situation the better to 
 execute their base and iniquitous designs. Honest 
 men alone, therefore, however well qualified to serve 
 the public would be excluded by it and their country 
 be deprived of the benefit of their abilities. 
 
 " ' In this great and extensive empire there is and will 
 
2 1 4 Religious Amendment. 
 
 be a great variety of sentiments in religion among its 
 inhabitants. Upon the plan of religious test the ques- 
 tion I think must be, Who shall be excluded from 
 National trusts. Whatever our bigotry may suggest, the 
 dictates of candor and equity, I conceive, will be None. 
 
 ' ' ' Far from limiting my charity and confidence to 
 men of my own denomination in religion, I suppose and 
 I believe. Sir, that there are worthy characters among 
 men of every denomination ; — among Quakers, the 
 Baptists, Church of England, the Papists, and even 
 among those that have no other guide in the way of 
 virtue and heaven than the dictates of natural religion. 
 
 " ' I must therefore think, Sir, that the proposed plan 
 of government in this particular is wisely constructed ; 
 that as all have an equal claim to the blessings of 
 the government under which they live and which they 
 support, so none should be excluded from them for 
 being of any particular denomination in religion, 
 
 " 'The presumption is that the eyes of the people 
 will be upon the faithful in the land, and from a regard 
 to their own safety they will choose for their rulers men 
 of known abilities, of known probity, of good moral 
 characters. The apostle Peter tells us that God is no 
 respecter of persons, but in every nation he that feareth 
 Him and worketh righteousness is acceptable to Him. 
 And I know of no reason why men of such a character 
 in a community of whatever denomination in religion, 
 cczteris paribus, with other suitable qualifications should 
 not be acceptable to the people, and why they may not 
 be employed by them with safety and advantage in 
 the important offices of the government. The exclu- 
 sion of any religious test, therefore, clearly appears to 
 me, Sir, to be in favor of its adoption.' ' 
 ' Ibid., pp. 1 1 7- 1 19. 
 
Convention of Massachusetts. 2 i 5 
 
 " Rev. Mr. Payson : ' Mr. President, after what 
 has been observ^ed relating to a rehgious test by gentle- 
 men of acknowledged abilities, I did not expect that it 
 would again be mentioned as an objection to the pro- 
 posed Constitution, that such a test was not required 
 as a qualification for office. Such were the abilities 
 and integrity of the gentlemen who constructed the 
 Constitution as not to admit of the presumption that 
 they would have betrayed so much vanity as to at- 
 tempt to erect bulwarks and barriers to the throne of 
 God. Relying on the candor of this convention, I will 
 take the liberty to express my sentiments on the nature 
 of a religious test and will endeavor to do it with such 
 propositions as will meet with the approbation of every 
 mind. 
 
 " ' The great object of religion being God supreme, 
 and the seat of religion in man being the heart or con- 
 science, i. e. , the reason God has given us employed on 
 our moral actions in their most important consequences, 
 as related to the tribunal of God, hence I infer that 
 God alone is the God of the conscience, and conse- 
 quently attempts to erect human tribunals for the con- 
 sciences of men are impious encroachments upon the 
 prerogatives of God. Upon these principles, had there 
 been a religious test as a qualification for office, it 
 would in my opinion have been a great blemish upon 
 the instrument. ' ' 
 
 "Rev. Mr. Backus: 'Mr. President, I have said 
 very little in this honorable convention, but I must beg 
 leave to offer a few thoughts upon some points in the 
 Constitution proposed to us, and I shall begin with the 
 excluding of any religious test. Many appear to be much 
 concerned about it, but nothing is more evident, both in 
 ' Ibid., p. T20. 
 
2 1 6 Religious Aineridment. 
 
 reason and the Holy Scriptures, than that religion is 
 ever a matter between God and individuals, and there- 
 fore no man or men can impose any religious test with- 
 out invading the essential prerogatives of the I/)rd Jesus 
 Christ. Ministers first assumed that power under the 
 Christian name, and then Constantine approved of the 
 practice when he adopted the profession of Christianity 
 as an engine of State policy. And let the history of 
 all nations be searched from that day to this, and it will 
 appear that the imposing of religious tests hath been 
 the greatest engine of tyranny in the world. And I 
 rejoice to see so many gentlemen who are now giving 
 in their rights of conscience in this great and important 
 matter. Some serious minds discover a concern lest if 
 all religious tests be excluded the Congress would here- 
 after establish Popery or some other tyrannical way of 
 worship. But it is most certain that no such way 
 of worship can be established without any religious 
 test.' " ■ 
 
 The Convention of North Carolina. — " Mr. 
 He;nry Abbot : ' Some are afraid, Mr. Chairman, that 
 should the Constitution be received they would be de- 
 prived of the privilege of worshipping God according to 
 their consciences ; which would be taking from them a 
 benefit they enjoy under the present Constitution. They 
 wish to know if their religious and civil liberties would 
 be secure under this system, or whether the general gov- 
 ernment may not make laws infringing their religious 
 liberties. The worthy member from Edenton men- 
 tioned sundry political reasons why treaties should be 
 the supreme law of the land. It is feared that by the 
 power of making treaties they might make a treaty 
 engaging with foreign powers to adopt the Roman 
 ' Ibid., pp. 148, 149. 
 
Convention of North Carolina. 2 1 7 
 
 Catholic religion in the United States, which would 
 prevent the people from worshipping God according to 
 their own consciences. The worth}- member from Hali- 
 fax has in some measure satisfied my mind on this sub- 
 ject, but others may be dissatisfied. Many wish to 
 know what religion shall be established. I believe a 
 majority of the community are Presbyterians. I am 
 for m}' part against any exclusive establishment, but if 
 there were any I would prefer the Episcopal. The ex- 
 clusion of religious tests is by many thought dangerous 
 and impolitic. They suppose that if there be no re- 
 ligious test required pagans, deists, and Mahometans 
 might obtain ofiice among us, and that the senators and 
 representatives might all be pagans. Every person em- 
 ployed b}' the general and State governments is to take 
 an oath to support the former. Some are desirous to 
 know how and by whom they are to swear, since no 
 religious tests are required ; whether they are to swear 
 by Jupiter, Juno, Minerva, Proserpina, or Pluto. We 
 ought to be suspicious of our liberties. We have felt 
 the effects of oppressive measures, and know the happ3^ 
 consequences of being jealous of our rights. I would 
 be glad if some gentleman would endeavor to obviate 
 these objections in order to satisfy the religious part of 
 the society. Could I be convinced that the objections 
 were well founded, I would then declare my opinion 
 against the Constitution.' 
 
 "Mr. Iredei.1, : ' Mr. Chairman, nothing is more 
 desirable than to remove the scruples of any gentleman 
 on this interesting subject. Those concerning religion 
 are entitled to particular respect. I did not expect any 
 objection to this particular regulation, which in my 
 opinion is calculated to prevent evils of the most per- 
 nicious consequences to society. Every person in the 
 
2i8 Religious Amendvient. 
 
 least conversant with the history of mankind knows 
 what dreadful mischiefs have been committed by reli- 
 gious persecutions. Under the color of religious tests, 
 the utmost cruelties have been exercised. Those in 
 power have generally considered all wisdom centred in 
 themselves ; and that they alone had a right to dictate 
 to the rest of mankind ; and that all opposition to their 
 tenets was profane and impious. The consequences of 
 this intolerant spirit has been that each Church has in 
 turn set itself up against every other, and persecutions 
 and wars of the most implacable and bloody nature 
 have taken place in every part of the world. 
 
 ' ' ' The power to make treaties can never be supposed 
 to include the right to establish a foreign religion among 
 ourselves, though it might authorize a toleration of 
 others. But it is objected that the people of America 
 may perhaps choose representatives who have no reli- 
 gion at all, and that pagans and Mahometans may be 
 admitted into offices. But how is it possible to exclude 
 any set of men without taking away that principle of 
 religious freedom which we ourselves so warmly con- 
 tend for ? This is the foundation on which persecution 
 has been raised in every part of the world. The peo- 
 ple in power were always right and everybody else 
 wrong. If you admit the least difference, the door to 
 persecution is opened. Nor would it answer the pur- 
 pose, for the worst part of the excluded sects would 
 comply with the test, and the best men only kept out 
 of our counsels. But it is never to be supposed that the 
 people of America will trust their dearest rights to per- 
 sons who have no religion at all or a religion materially 
 different from their own. 
 
 " ' It would be happy for mankind if religion was per- 
 mitted to take its own course and maintain itself by 
 
Religions A me7idment. 219 
 
 the excellence of its own doctrines. The divine au- 
 thor of our religion never wished for its support by 
 worldly authority. Has he not said that the gates of 
 hell shall not prevail against it ? It made much greater 
 progress for itself than when supported by the greatest 
 authority on earth.' " ' 
 
 These expressions, coming as they do from the oppo- 
 site ends of the Republic, indicate the purpose that was 
 uppermost in the public mind in forming and adopting 
 the Constitution, and its prevalence. One party desired 
 a religious test that would exclude not only atheists, 
 pagans, and Mahometans, but Roman Catholics also, 
 from all offices and public trusts under the United 
 States. The other party, advocating the largest reli- 
 gious freedom, and regarding it as fraught with no 
 perils to the public welfare, desired a Constitution so 
 formed that every citizen qualified to serve the people 
 in a political capacitj' might be eligible to ofiice ; a Con- 
 stitution so formed that an Aristides, a Cato, a Marcus 
 Aurelius, or a Frederick II. would not be barred if the 
 people should desire their service in office. There was 
 no one seeking to place in the Constitution a bare and 
 impotent recognition of the existence of God. Nobody 
 seems to have thought of it. Had the latter party of- 
 fered to the former such a recognition as a concession 
 or compromise, the offer would have been spurned. 
 The latter party prevailed, and as a natural result of 
 the contest, neither a religious test nor a recognition of 
 the existence of God was to be found in the Constitution. 
 Neither the prohibition of a religious test nor the omission 
 of the name of God can be justly taken as evidence of 
 an intention to make a Constitution which should be 
 atheistic or anti-Christian in its character and effect. 
 * Ibid., vol. iv., pp. 191-194. 
 
2 20 Religious Amendment. 
 
 II. A Constitution is that part of legislation which is 
 enacted directly by the people for the purpose of giving 
 instructions to the legislature and prescribing limits to 
 its action ; courts being established to declare when the 
 legislature has failed to compl}^ with the instructions 
 given or to confine itself to the limits prescribed. The 
 Constitution is framed for this practical purpose, and 
 not for the proclamation of the sentiments of the people 
 upon subjects which maybe deemed to be of importance. 
 Such proclamation, if made at all in connection with a 
 Constitution, is made in a preface, styled a Bill of Rights. 
 That the members of the convention which framed the 
 Constitution of the United States intended to confine 
 themselves strictly to the practical purpose of such an 
 instrument, appears in the fact that they framed no 
 Bill of Rights, and gave to the Constitution throughout 
 a restrictive rather than a declarative character. They 
 did not see fit to afiirm in the Constitution even those 
 few and fundamental principles which were set forth in 
 the Declaration of Independence, that all men are cre- 
 ated free and equal, that they are endowed by their 
 Creator with certain inalienable rights, that among these 
 are life, liberty, and the pursuit of happiness, that to 
 secure these rights governments are instituted among 
 men deriving their just powers from the consent of the 
 governed. In the State conventions fault was found 
 with the Constitution because it did not contain any 
 such declarations. The convention of North Carolina 
 adopted a long Declaration of Rights, including the 
 principles set forth in the Declaration of Independence ; 
 and resolved that it be submitted and acted upon by a 
 National convention, to be called for the purpose before 
 the ratification of the Constitution on the part of the 
 State of North Carolina.' 
 
 ' Elliot's Debates, vol. iv., 242-244. 
 
Religious A mendment. 2 2 1 
 
 Judge Story, in his Commentary on the Constitution, 
 speaking of the Amendments, says that they ' ' princi- 
 pall}' regard subjects properly belonging to a Bill of 
 Rights " (p. 698). And of the amendment denying to 
 Congress the power to make a law respecting an estab- 
 lishment of religion or prohibiting the free exercise 
 thereof, he says : " The real object of the amendment 
 was not to countenance, much less to advance Mahom- 
 etanism, or Judaism, or infidelity, by prostrating Chris- 
 tianity ; but to exclude all rivalry among Christian 
 sects, and to prevent any National ecclesiastical estab- 
 lishment which should give to a hierarchy the exclu- 
 sive patronage of the National government. It thus 
 sought to cut off the means of religious persecution 
 (the vice and pest of former ages) and the power of sub- 
 verting the rights of conscience, in matters of religion, 
 which have been trampled upon almost from the days 
 of the apostles to the present age " (p. 701). 
 
 III. The omission in the Constitution is to be attrib- 
 uted, in some measure, to a like omission in the Arti- 
 cles of Confederation, as one of its producing causes. 
 
 The delegates of the States, in promulgating the 
 Articles of Confederation, do for themselves make the 
 following acknowledgment, viz. : 
 
 " And wliereas, it has pleased the Great Governor 
 of the world to incline the hearts of the legislatures 
 we respectively represent in Congress, to approve of 
 and to authorize us to ratify the said Articles of Con- 
 federation and perpetual union : Know ye . . . " 
 Yet in the articles themselves there is no mention of 
 the name of God or declaration of a belief in the Chris- 
 tian religion. The members of the Constitutional 
 convention regarded themselves as bound by their in- 
 structions to adhere as closely as possible to the Arti- 
 cles of Confederation. At the very outset, Mr. Ran- 
 
22 2 Religions Ame?zdment. 
 
 dolph offered a series of resolutions, of which the first 
 was, 
 
 * ' Resolved, That the Articles of Confederation ought 
 to be so corrected and amended as to accomplish the 
 object of their institution, namely, ' common defence, 
 security of liberty, and general welfare.' " ' 
 
 It would be puerile, however, to allege the mere 
 copying of the Articles of Confederation as a sufficient 
 explanation of the omission in the Constitution. The 
 features of both the Articles of Confederation and the 
 Constitution which have been noticed as remarkable — 
 their restrictive character, and the omission of all 
 declarative statements — are to be traced to a common 
 cause. 
 
 The delegates of the States, in framing the Articles 
 of Confederation, never supposed for a moment that 
 they were doing anything so solemn and important as 
 the framing of a new system of government. They had 
 not been commissioned to do any such thing. The peo- 
 ple were familiar with the thirteen State governments 
 and regarded them with that reverence and affection 
 which men bestow upon old institutions with which are 
 associated all the interests and experiences of their lives ; 
 and they were jealous lest the general welfare should be 
 made a pretext for encroachment upon the prerogatives 
 of those governments. They would not allow the Con- 
 tinental Congress to assume the powers of a govern- 
 ment. It could recommend but had no power to execute. 
 The Congress under the Articles of Confederation could 
 not do much more, and it was this rigid reservation of 
 all the powers of government to the States that caused 
 the failure of the Confederation. The Articles of Con- 
 federation were intended to be nothing but a league or 
 i/*/V/.,p. 6i. 
 
Religious Amendment. 
 
 compact between the States for certain specified pur- 
 poses, — not a new government superadded to that of 
 the States, and the object of the Constitutional conven- 
 tion was nothing more than correcting and enlarging 
 those articles, so that they might the better serve the 
 purpose for which the}- were intended. The convention 
 spent a long time in a fruitless effort to accomplish this 
 purpose, till at last the members felt constrained to tran- 
 scend the limits of their instructions and frame a Con- 
 stitution, the adoption of which would be a new gov- 
 ernment. So great, however, was the jealousy of the 
 people for the prerogatives of their State governments, 
 that large numbers of them, after the adoption of the 
 Constitution, contended that it was only a compact be- 
 tween sovereign States, and not a government to which 
 the States were to be subject against their interest or 
 will. Various incidents in our histor)-, such as the 
 alien and sedition laws of 1798, the tariffs of 1824 and 
 1828, and the extension of the system of African slaver}^ 
 to the new Territories, have serv^ ed to keep the question 
 open. 
 
 The legislature of Kentuck}', in 1798, passed certain 
 resolutions, of which the first was : 
 
 " Resolved, That the several States composing the 
 United States of America are not united on the princi- 
 ple of unlimited submission to their general government, 
 but that by compact under the style and title of a Con- 
 stitution for the United States, and of amendments 
 thereto, they constituted a general government for 
 special purposes, delegated to that government certain 
 definite powers, reserving each State to itself the resid- 
 uary mass of right to their owm self-government ; and 
 that whensoever the general government assumes un- 
 delegated powers, its acts are unauthoritative, void, and 
 
2 24 Religious A-niendnient. 
 
 of no force ; that to this compact each State acceded as 
 a State, and is an integral party ; that this government 
 created by this compact was not the exchisive or final 
 judge of the extent of the powers delegated to itself,' 
 since that would have made its discretion, and not the 
 Constitution, the measure of its powers, but that, as in 
 all other cases of compact among parties, having no 
 common judge, each party has an equal right to judge 
 for itself, as well as of infractions, as of the mode and 
 manner of redress." 
 
 These resolutions were sent to the several States, and 
 all the replies received being unfavorable, excepting 
 that of Virginia which had passed a resolution the 
 same year declaring the same principles, the legisla- 
 ture of Kentucky in 1799 re-afl5rmed the resolution of 
 the previous year, adding the declaration, "that the 
 several States who formed that instrument being sov- 
 ereign and independent have the unquestionable right 
 to judge of its infractions, and that a nullification by 
 those sovereignties of all unauthorized acts done under 
 color of that instrument is the rightful remedy." 
 
 These resolutions of Kentucky and Virginia were in- 
 tended to be only solemn protests, nothing more being 
 contemplated than a conference of the States, or other 
 movement, to secure a repeal of the obnoxious laws. 
 
 The labor of slaves being too rude and wasteful to 
 be profitably applied to manufacturing, the Southern 
 States became agricultural, while the Northern States 
 became more distinctively manufacturing. In addition 
 to this the invention of the cotton gin and the repeal 
 of the Knglish tariff on cotton, the long staple cotton 
 of America being necessary to enable the English to 
 compete with American manufacturers, caused the in- 
 terest of the Southern States to be more exclusively 
 
Religiotis Amendment. 225 
 
 agricultural, and the people of those States to become 
 verj' strongl)- opposed to a tariflf for the protection of 
 manufacturers. The duty on imports was increased in 
 1824, and in 1825 the legislature of South Carolina 
 declared, " that it is an unconstitutional exercise of 
 power on the part of Congress to lay duties to protect 
 domestic manufactures." The higher tariff of 1828 
 was regarded as an aggravation of the wrong, and a 
 convention which was called by the legislature October 
 26, 1832, and which met on the 24th of the follow- 
 ing November, adopted an ordinance asserting the prin- 
 ciples set forth in the Kentucky and Virginia resolutions 
 of 1798, but going on still further to "nullify certain 
 acts of the Congress of the United States, purporting 
 to be laws, laying duties and imposts on the importa- 
 tion of foreign commodities ' ' ; the ordinance declared 
 it unlawful to attempt to enforce the collection of such 
 duties b}- an officer of the State or of the United States ; 
 enjoined upon the legislature the passage of acts to en- 
 force this ordinance ; and finally declared that if any 
 attempt should be made b}- the Federal government to 
 coerce the State, they would hold themselves absolved 
 from all further obligations to maintain or presence 
 their political connection with the people of the other 
 States, but would organize a separate government. 
 President Jackson was firmh- determined to enforce 
 the collection of the duty on imports, and a conflict of 
 arms was averted only by a compromise. Congress en- 
 acting that there should be a progressive reduction of 
 duties until 1842. 
 
 The question whether the Constitution was a com- 
 pact betu-een States or whether it established a govern- 
 ment, was so far an open one that Mr. Calhoun, senator 
 from South Carolina, offered on the 22d of Januarj*, 
 
2 26 Religious Amendment. 
 
 1833, a series of resolutions in the Senate embodying 
 the former doctrine. Mr. Webster of Massachusetts, 
 in his famous speech of February 16, 1833, on those 
 resohitions, gave the question its final settlement as one 
 of logic and interpretation, proving that the Constitu- 
 tion was not a mere league or compact between sov- 
 ereign States, but that it established a government ; 
 that this government derived its authority from the 
 people, the same source from which the State govern- 
 ments derived their authority ; that it was as sovereign 
 within its prescribed sphere as the governments of the 
 States were within their spheres, and that its authority 
 was ordained by the people to be paramount, they hav- 
 ing declared in Article VI. that "This Constitution 
 and the laws of the United States made in pursuance 
 thereof . . . shall be the supreme law of the land, 
 and the judges in every State shall be bound thereby, 
 anything in the Constitution and laws of any State to 
 the contrary notwithstanding. ' ' ' 
 
 The question was settled, however, only as a question 
 of logic, for when the interests of people are involved 
 their opinions and actions are not determined by logic. 
 
 Opposition to slavery as a system began to rise in 
 the North, which as it grew begot a determination to 
 prohibit the extension of the system into new territory, 
 while the profits of cotton raising created in the South 
 a determination to perpetuate and extend the system. 
 The controversy was growing in earnestness year by 
 year, till at last the election of Abraham Lincoln to the 
 Presidency and Hannibal Hamlin to the Vice-Presi- 
 dency in i860, both Northern men, was taken by the 
 South as a final and irreversible subjection of their 
 special interests to the dictation of the North. 
 ' Works, vol. iii., pp. 448—505. 
 
Religious Amendment. 227 
 
 The legislature of South Carolina on November 7, 
 i860, called a State convention, which met at Charles- 
 ton, December 17th, and passed " an ordinance to dis- 
 solve the union between the State of South Carolina 
 and other States united with her under the compact 
 entitled the Constitution of the United States of 
 America," declaring that "the ordinance adopted by 
 us in convention on the 23d day of May in the year 
 of our lyord 1788, whereby the Constitution of the 
 United States was ratified, and also all acts and parts 
 of acts of the general assembly of the State ratifying 
 amendments of the said Constitution, are hereby re- 
 pealed, and that the union now existing between South 
 Carolina and other States under the name of the United 
 States of America is hereby dissolved." Ten other 
 Southern States took similar action. The forces of 
 South Carolina seized the United States Custom-house, 
 post-ofiice, and arsenal in Charleston and took posses- 
 sion of Forts Moultrie and Pickney in Charleston harbor. 
 On the 12th of April, 1861, they fired upon Fort Sumter, 
 and the great Civil War began, which continued until 
 April 9, 1865, when General lyCe, commander of the 
 Confederate army, surrendered to General Grant, and 
 war, the last arbiter in the affairs of nations, decided 
 that the Constitution of the United States established 
 a government, and not a mere league of States. 
 
 It is not to be wondered at that the Constitutional 
 convention, knowing that it had gone beyond the in- 
 structions given it, and aware of the deep-rooted and 
 strong prejudice in favor of the State governments, 
 should deem it expedient to omit those formal declara- 
 tions which in other circumstances would have been 
 included in an instrument intended to found a new 
 government. The impression was prevalent at the 
 
2 28 Religious Amendment. 
 
 time that the Declaration of Independence had brought 
 a new Nation into existence, and that the Articles of 
 Confederation and the Constitution were simply adjust- 
 ments of the internal affairs of the nation. The Dec- 
 laration of Independence began the work, but came 
 very far short of completing it. Had there been noth- 
 ing more it would have brought into being thirteen 
 Nations instead of one. But under the prevailing 
 impression that the work had been fully done by the 
 Declaration of Independence, it was perfectly natural 
 that there should be a recognition of the Divine Being 
 in the one instrument, and not in the other. The omis- 
 sion was not made in the latter with impious intent, 
 nor by an oversight which would imply any lack of 
 piety in the members of the convention. The Nation 
 had not been converted from Christianity to atheism in 
 the brief period between 1776 and 1787. 
 
 We have a case perfectly analogous in the Consti- 
 tution of the German Empire, dated April 14, 1871, 
 which, if the words "of God's grace," be excepted, 
 says nothing about religion and requires no religious 
 tests as qualification for civil and political offices under 
 the National government. No one ever thinks of de- 
 nouncing it as an atheistic document or charging its 
 framers with impiety. It was simply a new adjustment 
 of the internal affairs of a nation already existing ; it 
 provided for no official connection with the Church, 
 but left the subject of religion to the several States, each 
 of which has its own State church.' 
 
 The Christian people of this countr}^ knowing all the 
 
 circumstances and sharing in the general impression 
 
 referred to, accepted the Constitution as it was, content 
 
 with the indisputable fact that the civil government of 
 
 ' Church and State, Schaflf, pp. 91, 92. 
 
Religious Amendment. 229 
 
 a Christian people is necessarily Christian. They were 
 perhaps the more reconciled to the acceptance of it by 
 the fact that nearly all the State Constitutions contained 
 the recognition desired, the State governments being 
 then regarded as of paramount importance. 
 
 Of late years, however, the omission has been seized 
 upon as a means of enforcing a particular theory of 
 civil government ; the theory that civil government in 
 its proper form must be destitute of all religious char- 
 acter. This theory has been held principally and has 
 been urged most strenuously by those who deny the 
 truth of Christianity and of all religion. During a com- 
 paratively brief period, after the middle of the present 
 century, atheism gained in respectability by the philo- 
 sophical speculations of certain men who had attained 
 to great eminence in natural science. These men, hav- 
 ing passed over into the domain of philosophy, gave 
 forth their pronouncements with the authority of dis- 
 coverers and first occupants. They soon found, how- 
 ever, that the new territory had been long occupied, 
 much longer than that from which they came, and that 
 there were giants in that land. Their authority was, 
 therefore, of brief duration, but while it was at its 
 height the unbeliever was emboldened to demand that 
 the administration of the whole government be con- 
 formed to his dogmas on the subject of religion. A 
 national organization, called the Liberal League, was 
 formed for the purpose of accomplishing this end. It 
 was demanded that the employment of chaplains by the 
 government should cease ; that the administration of 
 oaths should be abandoned ; that the crime of blas- 
 phemy should be blotted from the statute book ; that 
 the Sabbath laws should be repealed ; that the holding 
 of religious exercises and the reading of the Bible in the 
 
230 Religious Amendment. 
 
 public schools should be prohibited. The demand was 
 so far yielded to, that in some States provision for the 
 salaries of chaplains was either neglected or prohibited ; 
 the law relating to blasphemy was repealed ; the Sab- 
 bath laws were either repealed or greatly modified, and 
 with the co-operation of a certain religious denomina- 
 tion, the reading of the Bible in the public schools was 
 prohibited. It is not strange that a goodly number of 
 Christian people began to feel the need of some organ- 
 ized effort to secure their rights and to defeat the at- 
 tempt to substitute an atheistic for the Christian basis 
 of their government. 
 
 The Civil War, happening to be nearly coincident with 
 the new movement, was looked upon by a number of 
 Christian citizens as a judgment of God upon the na- 
 tion for its failure to honor him in its fundamental law. 
 It was during the darkest days of the Civil War that the 
 organized effort to secure a religious amendment to the 
 Constitution of the United States took its rise. 
 
 On Feb. 3, 1863, a convention met at Xenia, Ohio, 
 which had been called for prayer and Christian confer- 
 ence, with special reference to the state of the country. 
 On the second day of the convention John Alexander, 
 then of Xenia, presented a paper in which the sins of 
 the nation were confessed and the importance of re- 
 pentance and reformation insisted upon. After speak- 
 ing of President I^incoln's Emancipation Proclamation, 
 then recently issued, and the hopeful prospect of an 
 anti-slavery amendment to the Constitution, the paper 
 proceeds as follows : 
 
 ' ' We regard the neglect of God and his law, by 
 omitting all acknowledgment of them in our Consti- 
 tution, as the crowning original sin of the nation, and 
 slavery as one of its natural outgrowths. Therefore, 
 
Religions Amendment. 231 
 
 the most important step remains yet to be taken, to 
 amend the Constitution so as to acknowledge God and 
 the authority of His law ; and the object of this paper 
 is to suggest to this convention the proprietj^ of con- 
 sidering the subject and of preparing such an amend- 
 ment to the Constitution as they may think proper to 
 propose, in accordance with its provisions." 
 
 Mr. Alexander gave an outline of the amendments 
 to the pre imble to the Constitution which seemed to 
 him to bt needed, and the whole paper was approved 
 by the convention. 
 
 On February 6th, just three days after the meeting 
 at Xenia, and without any knowledge of that meeting, 
 a convention of Christians of various denominations 
 met in Sparta, Illinois, and adopted resolutions pledg- 
 ing the members of the convention to " labor to bring 
 the nation to repentance toward God and to a faithful 
 administration of the government according to the 
 principles of the word of God." 
 
 After several adjourned meetings of these conventions 
 it was thought best to call a national convention of all 
 citizens favorable to the measure, without any distinc- 
 tion of party or creed. This convention met in Alle- 
 gheny City, January 27, 1864, and formed a permanent 
 organization under the title, The National Association 
 for the Amendment of the Constitution, which has since 
 been changed to the National Reform Association. 
 
 The amendment proposed is to the preamble, and in 
 the body of the Constitution only such changes as may 
 be necessary to give effect to that amendment. The 
 preamble as amended would be as follows, the amend- 
 ments being in brackets : 
 
 " We, -the people of the United States, [humbly ac- 
 knowledging Almighty God as the source of all author- 
 
-J- 
 
 Religious Amendment. 
 
 ity and power in civil government, the I/ord Jesus 
 Christ as the Ruler among the nations, his revealed 
 will as the supreme law of the land, in order to consti- 
 tute a Christian government,] and in order to form a 
 more perfect union, establish justice, insure domestic 
 tranquillity, provide for the common defence, promote 
 the general welfare, and secure [the inalienable rights 
 and] blessings [of life], liberty [and the pursuit of hap- 
 piness] to ourselves, our posterity, [and all the in- 
 habitants of the land], do ordain and establish this 
 Constitution for the United States of America.' 
 
 Men of high position in all the walks of life have 
 
 ' The amendment proposed has undergone several modifica- 
 tions, but its final form may be regarded as embodied in a joint 
 resolution which was presented to both houses of Congress 
 January 26, 1894, and by them referred to the appropriate 
 committees : 
 
 " Resolved by the Senate and House of Representatives of 
 the United States of America in Congress assembled, tzvo thirds 
 of each House concurring therein, That the following amended 
 form of the Preamble of the Constitution of the United States 
 be proposed for ratification by conventions in the several 
 States, which when ratified by conventions in three fourths of 
 the States shall be valid as a part of said Constitution, namely : 
 
 preambi<e;. 
 
 " We, the people of the United States [devoutly acknowledg- 
 ing the supreme authority and just government of Almighty 
 God in all the affairs of men and nations ; grateful to Him for 
 our civil and religious liberty ; and encouraged by the assurances 
 of His Word to invoke His guidance, as a Christian nation, 
 according to His appointed way, through Jesus Christ,], in order 
 to form a more perfect union, establish justice, ensure domestic 
 tranquillity, provide for the common defence, promote the gen- 
 eral welfare, and secure the blessings of liberty to ourselves 
 and our posterity, do ordain and establish this Constitution for 
 the United States of America." 
 
Religious Amendment. 
 
 joined in the movement, but it has never been regarded 
 with favor by a large majority of the Christian people 
 of the land, and of late years has been losing rather 
 than gaining in strength. It would be uncharitable to 
 attribute the failure of Christian people to enter into 
 the movement to lack of the true Christian spirit, and 
 it would be unreasonable to attribute it to mere immo- 
 bility. They have reasons for their refusal of co-oper- 
 ation, some of which are obvious : 
 
 1. The prevailing conviction that our civil govern- 
 ment is, now without any such amendment, Christian, 
 necessarily so while the people are Christian, and that 
 for all practical purposes the amendment would not 
 make it any more so than it is. 
 
 2. The universal opposition to the imposition of a 
 religious test as a qualification for office or public trust, 
 and the fear that the amendment might be made to 
 operate as such a test. The advocates of the amend- 
 ment disavow anj- intention of establishing a religious 
 test ; what they desire, they say, is simply something 
 declaratory, nothing that would coerce the conscience of 
 any man, nothing that would debar any one from any 
 right or privilege on account of his religious belief. The 
 amendment, they say, is intended only to preserve the 
 nation from the sin of dishonoring God in its funda- 
 mental law, and to exert a wholesome educational influ- 
 ence upon the people ; yet they argue in its favor that 
 it will furnish a basis for coercive legislation on Chris- 
 tian subjects, which does not now exist ; it will furnish 
 a legal basis for the enactment of Sabbath laws, for the 
 requirement that legislation on all moral subjects shall 
 conform to the law of God, and for resistance to the 
 prohibition of the Bible in the common schools. So 
 far as these objects are proper, we have already ade- 
 
2 34 Religious Amendment. 
 
 quate basis for legislation in the fact that the civil 
 institutions of a Christian people are necessarily Chris- 
 tian. Besides it is doubtful whether a mere declaration 
 in the preamble of the Constitution would serve as a 
 basis for the legislation desired. Judge Story in dis- 
 cussing the preamble in his Commentary on the Consti- 
 tutio7i says : ' ' The preamble never can be resorted to, 
 to enlarge the powers confided to the general govern- 
 ment or any of its departments. It cannot confer any 
 "^o^^^r per se. It can never amount, by implication, to 
 an enlargment of any power expressly given. It can 
 never be the source of any implied power when other- 
 wise withdrawn from the Constitution" (p. 164). 
 
 The preamble, if it could furnish any basis for the 
 legislation desired, has already furnished a sufficient 
 basis in the declaration that the object of the Constitu- 
 tion is to "establish justice." More than justice no 
 Christian should desire, and ample provision for secur- 
 ing that end has been made in the establishment of 
 courts. 
 
 The decisions of the courts may vary, but as the 
 needle of the compass after oscillating from one side to 
 the other is brought to rest at last on the magnetic 
 meridian by the power of the ever-present and unseen 
 world currents, so will the action of the courts be 
 brought by a like power to rest upon the line of exact 
 justice. It is not necessary in order to establish jus- 
 tice that every right should be secured by a special 
 written law. It has not been necessary in order to se- 
 cure the rights of the people that the common law 
 should all be converted into statute law. Submission 
 by general consent to those principles of right wdiich 
 are embodied in the system of rules, entitled interna- 
 tional law, and submission by special agreement to 
 
Religious Amendment. 235 
 
 the decisions of international arbitration have secured 
 justice betu-een nations without any international con- 
 stitution or a word of enacted law. We are told that 
 the ' ' law was added because of transgressions, till the 
 seed should come to whom the promise was made ' ' ; 
 and we are sure that when the promise of God that 
 " They shall not hurt nor destroj- in all my holy moun- 
 tain " shall be fulfilled, it will not be by the restraints 
 of written Constitutions and laws, but by the power of 
 the law of righteousness and love written in the hearts 
 of men, for " The earth shall be full of the knowledge 
 of the Lord, as the waters cover the sea." ' 
 
 ' So long as man dwells in the body, his manifold inward life 
 will need to be embodied in outward form ; but both principles 
 and facts warrant the belief that undue attention to the outward 
 form will be followed by a decline in the vigor of the inward 
 life. The ancient Phariseeism has shown this to be true of the 
 spiritual life, as the modem prize ring and excess in athletics 
 have shown it to be true of the physical life. 
 
 In California nearly every mountain, valley, river, bay and 
 city is made, by its name, a memorial of a Christian saint, and 
 if there were any virtue in a formal public recognition of Chris- 
 tianity the atmosphere of that State ought to be as redolent of 
 sanctity as it is of the eucaljrptus and the orange blossom ; but 
 California is the only State in the Union which has repealed its 
 Sabbath laws. 
 
 In no other State, of equal age and wealth, does so large a 
 proportion of the churches receive aid from the Home INIission- 
 ar}- contributions of the churches outside of its boundaries. (59.6 
 per cent, of the Presbj-terian churches in 1S94 ; while in Iowa, 
 which is only four years older, it was 43.5 per cent., and there is 
 no reason to regard the Presbyterian churches as exceptional.) 
 
 In no other State has the baser element in politics succeeded 
 in so befouling the nation with an unjust prejudice against a 
 peaceable and industrious class of foreigners. And in no other 
 Northern State does so large a proportion of the white inhabi- 
 tants set so low a value upon human life. 
 
236 Religious Amendment. 
 
 If it be said that the proposed amendment will serve 
 a practical purpose in proclaiming to the world the true 
 character of our government and in exerting an educa- 
 tional effect upon our own people, the reply may be 
 made that it is seriously defective. It will make a false 
 proclamation and give an erroneous education. There 
 is no mention in it of the third person of the Trinity, 
 nor any recognition of his existence. It will proclaim 
 and teach a duo-unity, not a tri-unity, in the God-head. 
 If to omit the name of God in the Constitution is to 
 dishonor God, surely then to mention the name of any 
 other person of the Trinity and to omit that of the 
 Hol}^ Spirit, is to dishonor him. And it is a dishonor 
 which cannot be regarded as a light matter since our 
 I^ord has declared a penalty against it above that for 
 dishonoring any other member of the Trinity : ' ' There- 
 fore I say unto you, all manner of sin and blasphemy 
 shall be forgiven unto men, but the blasphemy against 
 the Holy Ghost shall not be forgiven unto men. And 
 whosoever speaketh a word against the Son of man it 
 shall be forgiven him, but whosoever speaketh against 
 the Holy Ghost it shall not be forgiven him, neither in 
 this world, neither in the world to come." ' 
 
 3. If the amendment be simply declaratory, it can- 
 not be expected to affect the dealings of God with the 
 nation, unless the nation, as such, is under obligation 
 to make the declaration. It is not reasonable to sup- 
 pose that if the nation be Christian in fact God would 
 withhold his blessings on account of the absence of any 
 verbal declaration of the fact ; nor that if the nation be 
 not Christian in fact God would be induced by the mere 
 verbal declaration to mitigate the severity of his judg- 
 ments against it. On the contrary, it is rather to be 
 ' Matthew, xii. 31, 32. 
 
Religio2is Amendine^tt. i^j 
 
 supposed that in this latter case he would add to his 
 judgments, for the sin of hypocrisy and falsehood 
 would call for punishment in addition to that of with- 
 holding the honor which is his due. It may be re- 
 marked in passing that the force of the argument in 
 favor of the amendment which was drawn from the 
 Civil War, regarded as a punishment inflicted upon the 
 nation for the dishonoring of God in its organic law, 
 has been greatly weakened bj- the fact that blessings 
 of incalculable value have resulted from the war ; — the 
 extinction of slaver}-, and the industrial regeneration 
 of the Southern States. The war may have been a di- 
 vine infliction upon the nation for its sins, but surel}- 
 it could not have been for this sin of omission, for the 
 blessings resulting from the war have been accumulat- 
 ing, while the alleged sin has been persisted in. 
 
 The advocates of the amendment, in order to hold 
 that the nation, as such, is under obligation to make 
 the declaration, are constrained to adopt the mystical 
 theory of the State. The argument is that the State is 
 a moral person, and that it is therefore under all the 
 obligations to God that bind any other moral person ; 
 one of which is to profess His name and to acknowl- 
 edge His authority. ''Resolved, That the State, as a 
 power claiming and exercising supreme jurisdiction 
 over vast numbers of human beings as the sovereign 
 arbiter of life and death, and as an educating power, 
 has necessarily a moral character and accountability 
 of its own." ' 
 
 " If the State has a character, then it must also have 
 some sort of personality. . . . Moral character be- 
 
 ' Proceedings of the Natiotial Convention to secure the Reli- 
 gious Amendnie7it of the Constitution of the United States, 1872, 
 p. 50. 
 
Religious Amend^nent. 
 
 longs only to rational beings. . . . But whatever 
 that personality may be, and I cannot discuss that ques- 
 tion here, in it the moral character of the State inheres. 
 . Whatever then may be the opinion of an}^ one 
 as to what constitutes the character of the State, it is 
 certain that it is not the character of any one of its sub- 
 jects ; neither is it the sum, or sum and differences of 
 all their characters. . . . The State is an official 
 person, ordained by God, and holds a delegated au- 
 thority from him. . . . Men associated tmder a 
 Constitution and laws in keeping with it form a com- 
 posite person or an associated personality." ' 
 
 ' ' The State is not only an organism, so to speak ; 
 even Hobbes arguing against its organic being, yet 
 represented it as a colossal living man ; but it is a 
 sovereign, conscious, moral personality. ... Its 
 life does not consist of a body of enactments, but in the 
 limitation of its being in a moral personality. . . . 
 It needs, therefore, to regulate the relations of its mem- 
 bers as moral personalities, and to assert justice, which 
 is only the recognition of the relations among the moral 
 personalities of its members, and between them and its 
 own moral personality. And in doing this it derives 
 all its sanctions of administration from morality and 
 religion. ' ' ^ 
 
 It is very plain that the advocates of the amendment 
 do not wish to be understood as speaking of the State 
 as a person by a mere play of the imagination, in the 
 use of the common figure of speech, personification, as 
 when we apply the feminine pronoun to the ship, or 
 speak of the breeze as whispering, the wind howling, or 
 
 1 Prof. O. N. Stoddard, LUD. Ibid., pp. 50, 52, 53. 
 ' Hon. M. B. Hagans, Judge of the Superior Court of Cincin- 
 nati. Ibid., p. 10. 
 
Religions Amendment. 239 
 
 the brook babbling. But if the State be, as they hold 
 that it is, an actual person, it must be held to possess, 
 not one or two, but all the attributes of personality. 
 If it may have a belief of its own, either coincident with 
 or differing from that of the persons who are its sub- 
 jects ; if it may profess its belief; if it may have a re- 
 sponsibility of its own to God, it must also be capable 
 of hearing God's commands and threatenings, of re- 
 penting and praying for the forgiveness of its sins, and 
 of rejoicing in forgiveness '\\\ propria persona^ apart from 
 the hearing, repenting, praying, and rejoicing of any 
 other person whatever. These acts performed by one 
 person cannot be the acts of another and a distinct 
 person. 
 
 The legal maxim " Qui facit per alium facit per se,^' 
 making the principal responsible for the act of his agent, 
 has made us familiar with the transfer of the responsi- 
 bility for an act from one person to another ; and the 
 theological doctrine of imputation has made us familiar 
 with the transfer of the consequences of an act from one 
 person to another ; but no legal maxim and no theo- 
 logical doctrine teaches anything so absurd as the trans- 
 fer of the act itself from one person to another.' 
 
 The advocates of the amendment, driven on by their 
 
 ' The theological doctrine of Realism seems to imply such a 
 transfer, and yet those who hold it would probably deny the 
 implication. Realism denies the doctrine of imputation as an 
 explanation of the state of sin and misery into which mankind 
 are fallen ; that is, the transfer of the consequences of Adam's 
 sin to his posterity, upon the ground of a covenant or repre- 
 sentative relationship ; and explains the present state of man- 
 kind by the hypothesis that all mankind were in Adam, and 
 that they acted when he acted. They may have been con- 
 strained to act by him in whom they were contained, but their 
 present condition is the consequence of their own act. 
 
240 Religious Amendment. 
 
 zeal, do not stop to define personality or to follow the 
 definition to its necessary consequences. A person in 
 the proper sense of the term is a suppositiini intcUigeiis, 
 a distinct individual existence, having a power of know- 
 ing, feeling, and willing of its own, and a consciousness 
 of its own ; that is, the power of knowing that it knows, 
 feels, and wills. In speaking of itself it must use the 
 personal pronoun of the first person. If this nation, 
 therefore, be a person and in the Constitution speaks as 
 a person, it should have said " I, the Nation, do ordain 
 and establish this Constitution " ; or, if common sense 
 revolt at such a consistent carrying out of the theory, 
 then at least, ''Wo. {pluralis majestatis), the Nation, 
 and not We, the People." 
 
 A personality may be constituted of a part of one vast 
 substance, and yet that substance be in no respect a per- 
 son. The iceberg is of the same substance as the ocean, 
 but it does not follow that the ocean possesses all the 
 specific properties of the iceberg. The latter is an in- 
 dividual concrete thing, entirely different from the water 
 of the ocean in gravity, solidity, and in the property 
 of refracting and reflecting light. 
 
 Three persons in the Godhead are represented in the 
 Scriptures as having all the attributes of personality, 
 not of a figurative or modal, but an actual personalit}- ; 
 but the one substance or essence of which these three 
 divine persons are composed is not a person. Panthe- 
 ists do not hold that "the All " is a person, but that 
 it comes into the self-consciousness of personality only 
 in man. If, therefore, the State were a substance or 
 thing distinct from the personality of its subjects, it 
 does not necessarily follow that it is a person. 
 
 The hypothesis of the personality of the State leads 
 
Religious Amendment. 241 
 
 to absurd consequences if fully and consistently carried 
 out, and it is unnecessary. God is competent in knowl- 
 edge and power to deal with individual men in accom- 
 plishing all his purposes on earth ; for he is omniscient 
 and omnipotent, and is a discerner of the thoughts and 
 intents of the heart. He is represented in the Scriptures 
 as dealing directly with individuals and with masses 
 of men in accordance with the character of the individ- 
 uals composing the masses. The calls to repentance 
 addressed to Israel in old times were calls for changes 
 in the spirit and conduct of individual kings and people, 
 and not for changes in the utterances of a body sup- 
 posed to have a personality different and apart from 
 that of the individual Israelite. It can hardly be sup- 
 posed that God would send judgments upon the nation 
 as a person for a constructive dereliction when the in- 
 dividuals composing the nation were pure in their 
 intentions and faithful in their conduct. Did he 
 do so, the judgments sent upon the national person 
 would fall upon the innocent individual persons. 
 Neither can it be supposed that if the individual 
 persons had become corrupt, he would withhold his 
 judgments from the national person because of the 
 piety expressed in its fundamental law\ In that case 
 the guilty would find immunitj^ under the shelter of the 
 innocent national penson. 
 
 It must be admitted that the political parties within 
 a State possess all the attributes of personality that are 
 said to belong to the State itself. They are great organ- 
 ized bodies, characterized by unity in the apprehension 
 of truth, in feeling and will, and also in action. They 
 are spoken of as having an individuality of their own, 
 
 distinct from that of the persons of whom thev are com- 
 16 
 
242 Religious Amendment. 
 
 posed. They are regarded with contempt and hatred, 
 while persons belonging to them are honored and be- 
 loved. The variation in the constituent elements may 
 be greater, in the political party, than it is in the State, 
 but no one holds that invariability and permanence of 
 the constituent elements are essential to the person- 
 ality of the State, and if not essential in the one case 
 they cannot be in the other. Like the State, the great 
 political parties are included in the providential govern- 
 ment of Him who notices the fall of the sparrow and 
 numbers the hairs of our head. He uses them, in the 
 determination of the history and destiny of the nation, 
 as He does the nations, in the determination of the 
 history and destiny of the world. He deals with them 
 as individuals, holding them responsible for their 
 principles and acts. He visits them with defeat or 
 overthrow for their follies, errors, and iniquities, just 
 as He does the nations. But if the political parties are 
 persons and the State is a person, then we have two or 
 more persons within a person, a dichotomy and, it 
 may be, a trichotomy or more, in that which is 
 atomic. ' 
 
 The people composing the State are actual persons, 
 amendable to the laws of God. The State is a meta- 
 phorical person, amenable only to the laws of Rhetoric. 
 
 ' We do uot overlook the fact that we, who are persons, are 
 in God, and that God, in whom there are three persons, is in us ; 
 but we hardly think that the tti}'stery of the omnipresence and 
 the trinity can properly be made available to relieve this case of 
 its absurdity. Mystery is to be believed only in the extreme of 
 logical necessity. It is not to be made a convenient resort for 
 the support of every theory, that is unable to stand without it. 
 A theory needing such support may be, justly, set aside as be- 
 longing to the realm of the clouds. 
 
Exceptions to Limitations. 243 
 
 CHAPTER VI. 
 
 EXCEPTIONS TO LIMITATIONS. 
 
 We have seen that the law of progress, differentiation 
 in form and specialization in function, applies to civil 
 govennnent as well as to ever^-thing else : and that as a 
 general rule this law will limit the fiuictions of govern- 
 ment to purely secular affairs. From this rule certain 
 special cases are to be excepted. 
 
 When the State takes to itself for any length of time 
 the charge of the whole life of the subject, as it does in 
 the army and navy, in the prisons, reformatories, homes 
 for soldiers and outcast children, almshouses, hospitals, 
 asylums, academies, colleges and universities, it is under 
 obligation of the strongest character to teach religion, 
 and the religion which it is under obligation to teach is 
 the Christian religion. If it be granted that man has 
 a religious element in his nature, — and a vast majority 
 of the people in a Christian land do grant it,— then, not 
 to develop that part of his nature equally with the rest 
 is to distort and dwarf the man ; it would be the same 
 as to develop his sense of hearing to the highest degree 
 while keeping him in total darkness until his eyes had 
 become atrophied ; the same as to give all attention to 
 the development of his bodj' and none at all to the de- 
 velopment of his mind. Not to supply him with the 
 consolations of religion in his trials and troubles would 
 be the same as not to supply him with medicines in his 
 sickness. To eliminate the truths of religion from the 
 teaching given him would be the same as to eliminate 
 an essential element, such as starch, albumen, lime or 
 phosphorus from the food given him. Not to teach 
 him the Ten Commandments, the Lord's Praver and 
 
244 Exceptions to Lhnitations. 
 
 the Sermon on the Mount would be the same as not to 
 teach him the multiphcation table and the rules of 
 syntax. For the State, while it has charge of the whole 
 man, to be indifferent or neutral while he is becoming a 
 Mormon, a Buddhist, or an atheist would be the same 
 as to be indifferent or neutral while he is becoming a 
 whiskey drinker, an opium eater, or a clay eater. To 
 allow him to depend for his Christian teaching and 
 nurture upon extraneous and voluntary agencies would 
 be the same as to allow him to depend upon such agencies 
 for his food and medicine and secular knowledge. 
 
 In the case of Warner v. Smith, 8 Conn. 17., an appren- 
 tice had escaped from his master and suit was brought 
 by the master against the guardian for the return of the 
 apprentice. It was pleaded in defence that the master 
 had denied him the ordinary opportunities for religious 
 nurture, and the Supreme Court of Connecticut said : 
 "As the master stands in loco pare7iiis,\\e is under 
 higher obligation to instruct him in the principles of 
 morality and religion ; but instead of performing this 
 parental duty this master compelled this apprentice, un- 
 necessarily, to work on the lyord's day. From such an 
 apprenticeship, it was the right, it was the duty of the 
 ward to escape, and of the guardian to receive him." 
 
 Surely the State is itself to be governed by the princi- 
 ples which it prescribes for the government of the citi- 
 zen. When it takes the whole man in its charge, it is 
 under obligation to provide for the whole man. The 
 practical difficulty arising from the diversity of creeds 
 and sects in the Christian Church is not to be pleaded 
 as insuperable, and therefore rendering the performance 
 of the duty impossible. It is to be met with judgment 
 and prudence, just as the like difficulty is met in other 
 similar cases. There are almost as many schools of 
 
Exceptmis to Limitations. 245 
 
 medicine and dietetics as there are sects in religion ; yet 
 the government has not been deterred by any difficulty 
 arising from this fact from providing medical attendance 
 and a course of diet for those who are in its charge. 
 The United States government has already recognized 
 the obligation resting upon it to provide for the teach- 
 ing of Christianity in such cases. 
 
 When the general government adopted the policy of 
 civilizing the Indians by the establishment of schools 
 among them for the instruction of their children, it was 
 felt that it would be incongruous with all enlightened 
 ideas of civilization to provide schools for these wards 
 of the nation and exclude all religious instruction from 
 those schools ; yet under the impression that the gov- 
 ernment could not legitimately teach Christianity it 
 was thought necessary to adopt a plan for the accom- 
 plishment of the good work which would at least seem 
 to transfer the responsibility to other parties. What 
 was called the ' ' contract system ' ' was therefore adopted 
 by which those Christian denominations which had 
 competent missionary organizations were given seve- 
 rally the charge of particular Indian schools. In these 
 schools religious and secular instruction was to be given, 
 and the denominations in charge were to receive from 
 the government a stipulated amount for each pupil. 
 
 In carrjang out the plan of contract schools for the 
 Indian children it was found necessary in order to allay 
 the opposition that might arise from the assumption 
 that the government could not in any case legitimately 
 engage in the work of teaching Christianity, to resort 
 to such empt}' and pitiable pleas as — that the money 
 appropriated for this purpose belonged to the Indians 
 by right and was not taken out of the national treasury, 
 and indeed that none of it was used to pay for religious 
 
246 Exceptions to Limitations. 
 
 instruction, since the religious bodies in charge of the 
 schools contributed from their benevolent resources 
 more than enough to pay for the time and labor em- 
 ployed in giving such instruction. This plan, so far as 
 it was intended to transfer the responsibility of the re- 
 ligious teaching of the Indian children to other parties, 
 was utterly futile, for the government as principal is re- 
 sponsible for everything that its agent does with its 
 knowledge and consent, even when the agent works 
 under contract. By this plan the government becomes 
 a teacher, not only of Christianity, but of sectarianism, 
 for it cannot be pretended that the religious teaching 
 given by Roman Catholics, Episcopalians, Presbyteri- 
 ans, Methodists, and Friends will not be more or less in 
 accordance with the peculiar doctrines of those denomi- 
 nations. The teaching of religion by this plan is there- 
 fore far more incongruous with the principles of our 
 government than such teaching by persons appointed 
 for the purpose by the government would be. If in 
 such a case it would be a barbarous method of civiliz- 
 ing, to establish schools and exclude all religious teach- 
 ing from them, the government ought to teach religion 
 openly, avowedly, and not by a subterfuge. 
 
 Had not the government, while placing the Indian on 
 reservations of land, recognized his independence by 
 making treaties with him and purchases of him, it 
 would have been under obligation to teach the adult 
 Indian the Christian religion, and not to leave him as 
 it has done to depend on voluntary agencies for such 
 teaching : it would have been under obligation to 
 enforce with prudence and consideration a prohibition 
 of his paganism. 
 
 In the lease of the fur seal fisheries on the islands of 
 St. George and St. Paul in the territory of Alaska made 
 
Religion in the Public Schools. 247 
 
 by the government to the North American Commercial 
 Company, one of the stipvilations requires the company 
 to provide school-houses and competent teachers eight 
 months in the year, and a house of religious worship ; 
 and hy the latter clause is meant a house of Christian 
 religious worship, not a house of pagan, or Jewish, or 
 Mohammedan religious worship. 
 
 In all the cases mentioned, it is the duty of the State 
 not only to provide for the teaching of the Christian 
 religion, but to prohibit the teaching of any other reli- 
 gion, or of irreligion. It should require that Christian 
 religious exercises be maintained in its schools, acade- 
 mies, colleges, and universities ; and should also require 
 that all the teaching therein should be professedly in 
 accord with the truths of the Christian religion. 
 
 CHAPTER VII. 
 
 RELIGION IX THE PUBLIC SCHOOLS. 
 
 The fact that our civil government is Christian does 
 not in itself furnish suflScient ground for the require- 
 ment of religious teaching in our public schools ; nor is 
 the relation between the mental, moral, and spiritual in 
 man so intimate as to render the separate development 
 of any one department of his nature either impracti- 
 cable or necessarily pernicious. There may be such 
 an order of dependence that it will be possible to de- 
 velop in some degree the mental nature without at the 
 same time developing the moral and spiritual ; in a 
 less degree, the moral without the mental ; and in still 
 less degree, the spiritual without the moral and mental. 
 There can be no education, in the proper sense of the 
 term, unless the development of the three parts of our 
 
248 Religion in the Public Schools. 
 
 nature be carried forward abreast and with equal pace ; 
 but it is not necessary that this should all be done at 
 the same hour or by the same agency. In this case 
 the State is not in loco parentis ; it does not take charge 
 of the whole life of the pupil. It is charged with pro- 
 viding for only one of the wants of his nature. Were 
 it in charge of the whole life of the pupil, it would be 
 under obligation to provide for the nourishment of his 
 body. It knows however that another and better 
 agency, the family, is making provision for that want ; 
 and while it may be true that all families are not com- 
 petent to provide the most wholesome food, yet the 
 State is not chargeable with inhumanity in refusing to 
 make this provision. It does not thereby leave the pupil 
 to starve. So in refusing to make provision for the re- 
 ligious development of the pupil in the public schools 
 it cannot be justly accused with being irreligious or 
 anti-Christian. It does not thereby deprive him of all 
 spiritual nurture. It knows that other and better 
 agencies, the family and the church divinely appointed 
 for the purpose, are making provision for that want ; 
 and it simply leaves that very important provision to 
 be made by those agencies. Those Roman Catholics, 
 Lutherans, and Reformed, who withdraw their children 
 from the public schools and send them to parochial 
 schools, and who seem to have a just ground of opposi- 
 tion to the public-school system in that they are 
 taxed for a public provision which they cannot con- 
 scientiously use, do not over-estimate the importance 
 of religious instruction for the young ; but they mis- 
 take in thinking that the State is under obligation to 
 give such instruction or none at all. The public-school 
 system has not been fitted for that work, and in this 
 country it would be impracticable to fit it for that 
 
State Requirements of Teachers. 249 
 
 work. It requires of its teachers, besides a good 
 moral character, only qualifications for teaching cer- 
 tain branches of secular learning ; it does not require 
 the qualifications necessary for the conducting of re- 
 ligious services or the imparting of religious knowl- 
 edge. It cannot be true that a particular work 
 belongs to the public school system and is obligatory, 
 when the regulations of the system do not and cannot 
 require of the teachers the qualifications necessary for 
 the performance of that work. An atheist might pos- 
 sess all the qualifications required for teaching in our 
 public schools, and it would certainly be an incongru- 
 ous thing to have an established order which would 
 require such a one to lead in the reading of the Scrip- 
 tures and in the repeating of the Lord's Prayer as an 
 act of worship. ' 
 
 ' Unless it shall be decided that the teacher in the public 
 school is, like the janitor, an employe, and not the incumbent 
 of an office or the fiduciary of a public trust, the requirement 
 of a religious qualification as a condition of his appointment 
 would be a violation of that clause in the State and Federal 
 Constitutions which prohibits a religious test as a qualification 
 to any office or public trust. The requirement of a religious 
 qualification is undoubtedly made in the case of chaplains, and 
 the qualification required is more than merely religious, — it is 
 Christian, no minister of any other religion being eligible ; but 
 the requirement is only tacitly, not formally, made. This qualifi- 
 cation being essential to the performance of the functions of the 
 office, the requirement of it is necessarily involved in the insti- 
 tution of the office. Since none but ministers of the gospel are 
 ever appointed to the office, it is not necessary that the require- 
 ment of a religious qualification should be formally made ; their 
 ordination being a formal guaranty of their possessing it. 
 Teachers in the public schools, however, occupy no position 
 which furnishes any such guaranty. The requirement, if 
 made in their case, would have to be formally made, and it is 
 
250 Religion in the Public Schools. 
 
 It may not be impertinent to notice the fact that 
 the persons making the demand for religious in- 
 struction in the public schools are not consistent in 
 carrying out the principle on which they say the de- 
 mand is based, in that they do not insist upon the 
 application of the principle in those cases in which 
 they might do so with justice and with a reasonable 
 prospect of success. The master, teaching the ap- 
 prentice his trade, the private tutor, and the music 
 teacher are not required to begin their lessons with 
 prayer, or to combine the communication of religious 
 with secular knowledge. Such a requirement is not 
 made of the commercial college, the medical college, or 
 the law school, and jet all these are patronized by all 
 Christian people without objection. Why is not all 
 the teaching in these cases denounced as ' ' godless ' ' 
 and therefore pernicious, as well as the teachings in 
 the public schools. Indeed it is practically conceded 
 in these cases that secular instruction, unaccompanied 
 with religious instruction, is not necessaril}^ pernicious. 
 
 There are, however, two other ostensible grounds 
 upon which the demand for religious instruction in our 
 public schools may be based. One of these we shall 
 now consider ; the other we .shall notice incidentally 
 farther on. 
 
 The first attaches itself very closely to the ground 
 upon which the system itself is supposed to be based. 
 
 not probable that such a requirement, so made, would be 
 tolerated by the public or sustained by the courts. If the re- 
 quirement were deemed to be as essential to the office of teacher 
 as it is to the office of chajjlain, that office oui^ht to be ex- 
 pressly excepted from the Constitutional prohibition. Indeed 
 it would have been better had the office of chaplain been so 
 excepted. 
 
The Essentials of Good Citizenshif>. 25 i 
 
 The theory may be stated thus : Intelligence is neces- 
 sary to good citizenship ; therefore the State is bound 
 to furnish all the j-outh of the land with such instruc- 
 tion as will enable them to avail themselves of the or- 
 dinary means of intelligence, and also to compel attend- 
 ance upon the instruction provided. In syllogistic 
 form, the theory would be thus stated, viz.: 
 
 Major premise. Self-preservation is a law that binds 
 the State as well as the individual, and under this law 
 the State is bound to provide whatever is essential to 
 good citizenship. 
 
 Miliar premise. Education is essential to good citizen- 
 ship. 
 
 Conclusion. Therefore the State ought to provide com- 
 mon schools and compel attendance upon them. 
 
 It is very plain that if any other subject than educa- 
 tion may be properly put before the predicate in the 
 Minor premise, the syllogism will be as conclusive for 
 that subject as it is for education. If it be true that 
 " the fear of the L,ord is the beginning of wisdom," — 
 if it be true that an illiterate disciple of Christ whose 
 ' ' delight is in the law of the Lord ' ' will be a better citi- 
 zen than the educated unbeliever who walks ' ' in the 
 coimsel of theungodl}'," then, according to this theor}-, 
 it is just as conclusive that the State should provide for 
 religious instruction in the common school as that it 
 should provide the school itself. But the theory is too 
 comprehensive by far to be tenable. Suppose that the 
 Mi?ior premise of the sj'llogism affirm that the influence 
 of religion not only in childhood, but throughout life, is 
 essential to good citizenship (and who will deny the 
 truth of the affirmation ?), then it is just as conclusive 
 that the State should provide for the religious instruc- 
 tion of the adult as for that of the child. There is no 
 
252 Religion in the Public Schools. 
 
 open link in this logic ; it cannot be parted in the mid- 
 dle ; it reaches all the way from the compulsory at- 
 tendance of children upon the public school to the 
 compulsory attendance of adults upon public worship. 
 The logic of this theory of the public-school system is 
 the same as that of Article III. of the Bill of Rights, 
 adopted by Massachusetts in 1780 : 
 
 ' 'As the happiness of a people and the good order and 
 preservation of civil government essentially depend 
 upon piety, religion, and morality ; and as these cannot 
 be generally diffused through a community but by the 
 institution of the public worship of God, and of public 
 instructions in piety, religion, and morality. There- 
 fore, to promote their happiness and to secure the good 
 order and preservation of their civil government, the 
 people of this commonwealth have a right to invest 
 their legislature with power to authorize and require 
 the several towns, parishes, precincts, and other bodies 
 politic, or other religious societies, to make suitable 
 provision at their own expense for the institution of 
 the worship of God and for the support and mainten- 
 ance of public Protestant teachers of piety, religion, 
 and morality in all cases where such provision is not 
 made voluntarily. 
 
 ' ' And the people of this commonwealth have a right, 
 and do invest their legislature with authority to enjoin 
 upon all the subjects an attendance upon the instruc- 
 tions of the public teachers aforesaid at stated times 
 and seasons, if there be any on whose instructions they 
 can conscientiously and conveniently attend." 
 
 The logic, granting the assumption on which it is 
 based, is as unanswerable in the one case as it is in 
 the other. 
 
 This theory of the public-school system, notwith- 
 
The Theory of General Consent. 253 
 
 standing that it is affirmed in all the school journals, 
 in all teachers' associations, County, State, and Na- 
 tional, by all County and State superintendents of 
 public schools, and acted upon by all the State legisla- 
 tures, has been practically abandoned by all its advo- 
 cates. It has been abandoned in the establishment of 
 high-schools and State universities. Nobody pretends 
 that a knowledge of algebra, geometry, conic sections, 
 calculus, physics, chemistry, geolog}^ astronomy, of 
 the French, German, Greek, and Latin languages, is 
 essential to good citizenship, or that the provision for 
 the teaching of these things in our public schools and 
 State universities rests on any such basis. These things 
 are taught to the few at the expense of the many, in 
 direct violation of the fundamental postulate of the 
 theory. Yet nobody seems disposed either to object to 
 the violation or to confess an abandonment of the the- 
 ory. The reason of the inconsistency is to be found in 
 the fact that a different theory is half-consciously held, 
 but is so simple and obvious that it is hardly thought 
 of, much less propounded as a theory. It is the theory 
 of general consent. This theory, on account of its sim- 
 plicity, has held its place in practice while the other 
 has continued to hold its place in discourse. 
 
 While the primary function of civil government is 
 the protection of the citizen from the unjust interfer- 
 ence of his fellow-citizen with his person and property, 
 and while as a general rule the public welfare will be 
 highest w^hen the government confines itself to its 
 primary function, leaving all else to individual free- 
 dom ; yet, because what Terence said of himself is 
 also true of all men, — " I am a man, and I count noth- 
 ing human as foreign to me," — consent is readily given 
 that the government shall do many things which do 
 
2 54 Religion in the Public Schools. 
 
 not belong to its primary function, the provision under- 
 stood being that it does not renounce the principles of 
 freedom and assume the principles of paternalism. 
 
 Without considering whether there is a natural right 
 of property in the form in which thought is expressed or 
 conception realized, as well as in the paper, marble- 
 canvas, or machine upon which the hand has wrought, 
 we readily concede that the government may very 
 properly promote literature and art by giving a copy- 
 right to the author and artist ; it may encourage 
 invention by giving a patent to the inventor ; it may 
 also promote science by fitting out expeditions for ex- 
 ploration and discovery, by providing for astronomical 
 observations and meteorological investigations, and by 
 maintaining museums ; it may establish a weather ser- 
 vice, and make daily announcements of the coming of 
 storms and changes in temperature ; it may maintain 
 parks for the pleasure of the people ; it may diminish 
 the perils of the sea by making surv^eys and charts of 
 all the coasts, establishing light-houses and maintain- 
 ing life-saving stations, along all our shores ; it may 
 maintain a postal system, carrying the letters, the 
 newspapers, and periodicals of the people, — all this 
 upon the ground of general consent, and not upon 
 the ground of inherent prerogative or indispensable 
 obligation. 
 
 The postal system is one that contributes v^ry greatly 
 to the promotion of intelligence among the people, and 
 supplies a facility of immense importance to the busi- 
 ness of the countiy, but that system has not its basis 
 in the duty of the government, in its paternal character 
 to promote the intelligence and prosperity of the people. 
 Why when it added the carrj^ing of parcels to that sys- 
 tem did it not also add the whole business of transpor- 
 
Theory of Good Citi3e7iship. 255 
 
 tation ? Why when it added the transmission of small 
 sums of money to that system did it not also add the 
 whole banking business of the country ? Why is the 
 telegraph system, which promotes intelligence by the 
 transmission of the daily news and affords a facility of 
 immense importance to the business of the country, 
 left in private hands? May it not be safely predicted 
 that if the telegraph system shall ever be incorporated 
 with the postal system, it will be to protect the citizen 
 from the unjust exactions of a monopoly, and not be- 
 cause the government is bound in its paternal character 
 to make the intelligence and prosperity of the people 
 one of its chief concerns. Would any one think of 
 arguing that because the postal system promotes the 
 intelligence of the people and was provided for that 
 purpose, every citizen should be compelled to receive 
 through the mails certain periodical publications graded 
 according to his intelligence, and to exercise himself in 
 composition by writing a certain number of letters 
 every week. 
 
 The postal system and the public-school system, 
 alike, have their basis in general consent, which is 
 given on account of economy, efficiency, uniformity, 
 equal and perpetual availibility for all the people. If 
 the alleged basis of the public-school system in the 
 paternal prerogative of the State and its right of self- 
 presentation should be abandoned in theory, as it has 
 been in practice (of which, it must be admitted, there is 
 not the least reasonable prospect), it would be far more 
 just if, as in the postal system, the public provision 
 were made, only the cost charged for the use of it, only 
 those who use it required to pay for the maintenance 
 of it, and they to pay only in proportion to the use 
 they make of it. Under such a plan arrangements 
 
256 Religiofi in the Ptiblic Schools. 
 
 might be made which would remove some present diffi- 
 culties, without developing others not now existing. 
 The postal laws allow railroad, express, and naviga- 
 tion companies to carrj^ their own correspondence, and 
 make no exactions of them for the support of the postal 
 system. So under a public-school system similarly or- 
 ganized, those Christian people who feel bound in con- 
 science to maintain parochial schools might be allowed 
 to do so, without being subject to the injustice of pay- 
 ing taxes for the teaching of the children of other 
 people, while bearing all the expense of teaching their 
 own ; and without being liable to the charge of hos- 
 tility to a system which has been established to secure 
 the welfare and safety of the State. The State might 
 prohibit the teaching of any other children in the paro- 
 chial schools, as it prohibits the corporations referred 
 to carrying any other than their own correspondence ; 
 it might also prohibit the establishment of parochial 
 schools where, on account of the sparseness of the 
 population, they would cripple or destroy the public 
 schools ; and it might require that the teaching in the 
 parochial schools be in the English language. 
 
 Objection might be made that, while the plan of 
 requiring those who use the public schools to pay the 
 cost of maintaining them might be more just, it would 
 fail to reach the very persons who were in most need 
 of its advantages, and would deprive the State of the 
 very benefit the system was intended to secure. It may 
 be a question, however, whether gratuitousness is the 
 only or the best means of securing the prevalence of a 
 common education. There can be no doubt that with 
 all its advantages it is attended with counteracting 
 evils. People do not appreciate that which costs them 
 nothing as they do that which they have to pay for. 
 
Gratuitous Education. 257 
 
 To pauperize the people is to shrivel the nerves of en- 
 ergy and to destroy the spirit of self-reliance, — evils 
 which an enlightened public policy regards as of no 
 small moment. It is probable that the requirement of 
 an educational qualification for the exercise of the elec- 
 tive franchise, with other co-operating influences, would 
 be quite as effective to the end desired as mere freedom 
 from charge. This opinion is not without the support 
 of facts. The State derives a very important benefit 
 from the prevalence of religion among the people, but 
 that benefit is left by the State to be provided entirely 
 at the expense of those who desire it, and there can be 
 no doubt that the public benefit from that source is as 
 large in this country under this system as it is else- 
 where under a Church and State sj-stem. De Tocque- 
 ville in his Democracy hi America says : " There is no 
 country in the whole world in which the Christian 
 religion retains a greater influence over the souls of 
 men than in America. . . . Upon my arrival in 
 the United States the religious aspect of the country 
 was the first thing that struck my attention, and the 
 longer I stayed there the more did I perceive the great 
 political consequences resulting from this state of 
 things. ... I questioned the members of all the 
 different sects, and I more especially sought the society 
 of the clergy. ... I found that they differed upon 
 matters of detail alone, and that thej' mainly attributed 
 the peaceful domain of religion in their country to the 
 separation of Church and State." * 
 
 Mr. James Bryce says : ' ' To estimate the influence 
 and authority of religion is not eas}-. Suppose, how- 
 ever, we take either the habit of attending church or 
 the sale of religious books as evidences of its influence 
 ' 1848, vol. i., pp. 332, 337. 
 
258 Religion i7i the Public Schools. 
 
 among the multitude ; suppose that as regards the 
 more cultivated classes we look at the amount of re- 
 spect paid to Christian precepts and ministers, the 
 interest taken in theological questions, the connection 
 of philanthropic reforms with religion. Adding these 
 various data together, we may get some .sort of notion 
 of the influence of religion on the American people as 
 a whole. ... In all these respects the influence 
 of Christianity seems to be, if we look not merely to 
 the numbers but also to the intelligence of the persons 
 influenced, greater and more wide spread in the United 
 States than in any part of western Continental Europe, 
 and I think greater than in England." ' 
 
 This fact thus attested by discerning and impartial 
 foreigners is pertinent by way of analogy, but we have 
 a fact more directly pertinent in the condition of educa- 
 tion in Iceland. That island is outside of the world's 
 great currents of intelligence and literature, and yet it 
 is said to be the best educated country on the face of 
 the earth. Mr. John Thorgeirson, in a communication 
 to one of our religious journals, says: " The general 
 education in Iceland is wholly domestic, and there are 
 no public schools in the country ; neither any direct 
 compulsory educational law. But the laws and cus- 
 toms of the country demand that every parent or guar- 
 dian of children shall under the direction of the parish 
 minister teach those in their care to read, write, and 
 cipher, and instruct them in domestic science, general 
 history, and especially in the literature of their own 
 country. . . . Persons that can neither read nor 
 write in Iceland are b}' law and custom regarded as 
 mental imbeciles. They are not regarded competent 
 to manage any inheritance left to him or her, but nuist 
 ' The American Coiiunoiiwcalih, vol., ii., p. 583. 
 
Education in Iceland. 259 
 
 remain wards. They are not allowed to inarr>', as they 
 would be incapable of educating children ; neither are 
 the}' regarded as bright enough to understand the 
 meaning of an oath, and hence are not competent wit- 
 nesses in court." ' 
 
 These statements are confirmed, in general, by one 
 of the authors of the article in the Encyclopedia Bri- 
 tannica on " Iceland," J. A. Hjaltalin, who sa)'S : " The 
 Icelanders have long been famous for their education 
 and learning, and it is no exaggeration to say that in no 
 other country is such an amount of information found 
 among the classes which occupy a similar position. A 
 child of ten unable to read is not to be found from one 
 end of the island to the other. A peasant understand- 
 ing several languages is no rarity, and the amount of 
 general information which they possess might be envied 
 b}- many who have had greater facilities for acquiring 
 knowledge. Till within the last few years there were 
 no elementary schools on the island ; all the children 
 were taught by their parents or near neighbors. Now 
 a few elementary schools have been started, but their 
 number is still too small to make any general difference 
 in the education." ^ 
 
 ' The Independent, 1893, p. 1336. 
 
 - We are aware that any state of things which has become 
 institutional in any countrj' is the product of all antecedent 
 conditions and is fixed by its adaptation to present circum- 
 stances. To suppose, therefore, that the educational methods 
 of Iceland could be transplanted and flourish in this country 
 would be almost as unreasonable as to suppose that the Iceland 
 moss could be transplanted and made to flourish on all our 
 mountains ; yet, such examples if kept in mind will encourage 
 and reinforce the sense of justice until a way shall be found to 
 remove all unnecessary' hardship and renied\- all inju?tice. 
 
 The public school must be accepted as an established institu- 
 
26o Religion in the Public Schools. 
 
 The exercise of paternal prerogatives on the part of 
 the government is not necessary to the attainment of 
 the end aimed at in the establishment of a public-school 
 
 tion of this land. Whatever may be the defects of the theories 
 invented to serve as the basis of it, the benefits to be derived 
 from it are so obvious and so great that it is not likely ever to 
 be abandoned. There is no more probability that it will ever 
 be transferred to private hands than there is that the postal 
 system will be transferred to the express companies. The lat- 
 ter system was not by any means perfect when first adopted. 
 It has undergone many modifications, improving it and adapt- 
 ing it to new conditions, and all without a word of opposition, 
 simply because the defects were pointed out and the changes 
 suggested by those who were known to desire its improvement 
 and not its destruction. It is not unreasonable to believe that 
 the public-school system will undergo modification when the 
 defects are pointed out and the alterations are proposed by 
 persons who cannot be suspected of secret unfriendliness or of 
 a covert purpose to destro}' it. 
 
 The Roman Catholic Church, which is by far the most con- 
 spicuous complainant of the injustice of our public-school sys- 
 tem, has itself put a check upon any tendency there might be 
 to remove the injustice complained of. Holding an uu-catho- 
 lic theory of the Church, a remnant of the hortus siccus of 
 mediaeval logic, it is unwilling to admit that it is only a part of 
 the kingdom of Christ on earth, a branch of the true vine, and 
 — to use its own phraseology — a sect among sects, and, like the 
 Apostle John, who said, " Master, we saw one casting out devils 
 in thy name and he followeth not us, and we forbade him 
 because he followeth not us," it has laid the ban on all Protes- 
 tantism, affirming that all religious teaching by Protestants, or 
 by others than regularly authorized Roman Catholic ecclesias- 
 tics, is so pernicious as to be worse than none. It denounces 
 as " godless " schools in which there is no religious teaching, 
 and proclaims by its actions that it regards all schools in which 
 there is unsectarian religious teaching by Protestants as worse 
 than "godless." Its protest against our public-school system 
 is twofold : a protest against a purely secular education ; and a 
 
P^'otcst of the Roman CatJioIic CJmrch. 261 
 
 system. Neither is the paternal theory of government 
 necessary as a basis for a pubhc-school system. That 
 theory may be rejected, with all its logical conse- 
 
 protest against any non-sectarian or Protestant religious instruc- 
 tion therein. The latter, though kept in the background in 
 all public discussions of the subject, is held to be of equal im- 
 portance with the former. Where it could not have its own 
 sectarian teaching established in the public schools it has at- 
 tempted to exclude all religious instruction therefrom (see the 
 cases, presently to be cited, of Donahue v. Richards in Maine, 
 and John D. Minor et al. v. the Board of Education of the City 
 of Cincinnati et al. in Ohio), and in some cases, by the co-opera- 
 tion of those who hold the anti-Christian theory of the State, it 
 has succeeded in the attempt, thus causing the rights of a great 
 majority of Christian people to be trampled upon, and a serious 
 injury to be inflicted upon the public. (See the case of Weiss 
 et al. V. District Board of School District No. 8, of the City of 
 Edgerton, in Wisconsin, presently to be cited.) 
 
 Is it at all strange that Protestants are slow to accede to a de- 
 mand which involves such unfavorable implications against 
 themselves, and which no Protestant sect is narrow and bigoted 
 enough ever to think of making for itself ? Protestants are will- 
 ing to fulfil the Lord's injunction, "All things, whatsoever ye 
 would that men should do to you, do ye even so to them," but 
 they do not feel under obligation to go beyond it. It is probable 
 therefore that the great mass of the people will be content with 
 the public-school system as it is, whatever may be its basis, so 
 long as it may be made Christian without being sectarian. They 
 count it no injustice that their own sectarian teachings are ex- 
 cluded, and it is therefore difficult for them to regard the exclu- 
 sion of Roman Catholic sectarian teaching as an injustice. 
 Could a new system be proposed which would afford the relief 
 desired, and at the same time secure all the beneficent results 
 of the old, without producing any new evils, they would no 
 doubt readily make the change. The presentation of such a 
 system, and not complaint of the injustice of the old, is the 
 thing to be done. When the conditions of the public welfare 
 are such that hardship must fall upon persons whose consciences 
 
262 Religion in the Public Schools. 
 
 quences, and yet may the State properly maintain such 
 a system. 
 
 Mr. Macaulay, in his review of Gladstone's The State 
 in its Relations with the Church, states very clearly and 
 illustrates very aptly the principle for which we are 
 contending. He says : " We consider the primary end 
 of government as a purely temporal end, the protection 
 of the persons and property of men. . . . We think 
 that government should be organized solely with a view 
 to its main end, and that no part of its efficiency for 
 that end should be sacrificed in order to promote any 
 other end, however excellent. But does it follow from 
 thence, that governments ought never to pursue any 
 end other than the main end ? In no wise. Though 
 it is desirable that every institution should have a main 
 end, and should be so formed as to be in the highest 
 degree efficient for that end ; yet if, without any sacri- 
 fice of its efficiency for that end, it can pursue any other 
 good end, it ought to do so. Thus the end for which a 
 hospital is built is the relief of the sick, not the beauti- 
 fying of the street. To sacrifice the health of the sick 
 to splendor of architectural effect ; to place the build- 
 ing in a bad air, only that it may present a more com- 
 manding front to a great public place ; to make the 
 wards hotter or cooler than they ought to be in order 
 that the columns and windows of the exterior may 
 please the passers-by, would be monstrous. But if, 
 without any sacrifice of the chief object, the hospital 
 can be made an ornament to the metropolis, it would 
 
 will not permit them to conform to those conditions, those per- 
 sons have no just ground of complaint so long as they are not 
 compelled to do what their conscience forbids. In that case 
 the individual must endure hardship for conscience' sake ; the 
 public welfare should not be sacrificed for his relief. 
 
The Principle for zuhich we Contend. 263 
 
 be absurd not to make it so. In the same manner, if 
 a government can without any sacrifice to its main end 
 promote any other good work, it ought to do so. The 
 encouragement of the fine arts, for example, is by no 
 means the main end of government, and it would be 
 absurd in constituting a goveniment to bestow a thought 
 upon the question, w^hether it would be a government 
 likely to train Raphaels and Domenichinos. But it by 
 no means follows that it is improper for a government 
 to form a national gallery of pictures. The same may 
 be said of patronage bestow^ed on learned men, of the 
 publication of archives, of the collecting of libraries, 
 menageries, plants, fossils, antiques, of journeys and 
 voj'ages for purposes of geographical discover}^ or as- 
 tronomical observ^ation. It is not for these ends that 
 government is constituted. But it may w^ell happen 
 that a government may have at its command resources 
 which will enable it, without any injury to its main ob- 
 ject, to pursue these collateral ends far more eflfectuall)^ 
 than any individual or voluntary association could do. 
 If so, government ought to pursue these collateral 
 ends.'" 
 
 Upon the theory we have been setting forth, religion 
 may very well have a place in the public schools, just 
 as music, pictures, flowers, and calisthenics have, by 
 general consent. And let it be remembered that the 
 consent which gives legal validity to a usage \s general, 
 not necessarily una7iimo2is consent. The tenure w^ould 
 be a valid and strong one, but religious exercises ought 
 not to be made an indispensable requirement. On the 
 one hand, pupils whose parents are conscientiousU' op- 
 posed to such exercises ought not to be compelled to 
 attend upon them. On the other hand, such exercises 
 ' Edinbtirgh Revieiv, April, 1839, and Essays. 
 
264 Religion in the Public Schools. 
 
 ought not to be prohibited upon the demand of unbe- 
 lievers, any more than pictures and music and flowers 
 ought to be prohibited upon the demand of boors. On 
 the one hand, nobody has a right to demand that the 
 State should provide sustenance for the pupils in the 
 common schools. On the other hand, nobody has a 
 right to demand that every provision looking to the 
 bodily welfare of the pupils, hygiene and calisthenics, 
 for example, should be excluded. So on the one hand, 
 nobody has a right to demand that full courses of reli- 
 gious instruction be given in our common schools ; and 
 on the other hand, nobody has any right to demand that 
 everything of a religious character be excluded.' 
 
 It is a happy circumstance that so large a proportion 
 of the teachers in our common schools have the es- 
 thetic and religious feelings which make it a pleasure to 
 them to bring into the school-room, not only the refin- 
 ing and elevating influence of music and pictures and 
 flowers, but also of a simple unsectarian Christian wor- 
 ship. Those who do so ought not to be interfered with 
 either upon the plea that our civil institutions are desti- 
 tute of religious character, — an untenable plea, as we 
 have already shown, — nor upon the plea of injustice to 
 the unbelieving taxpayer, — also an untenable plea, as we 
 shall presently show. All these means of refining and 
 elevating the character, however, should be kept in a 
 subordinate position, as accessories to the main purpose 
 of the school. The State is not qualified to give full 
 courses of religious instruction, that not being among 
 the main objects of its organization. It may therefore 
 very well leave the great bulk of such instruction to be 
 given by the family and the church, the two divine in- 
 
 ' See case of Foster North v. Board of Trustees, University of 
 Illinois, presently to be cited. 
 
The Principle for zvhich we Contend. 265 
 
 stitutions appointed especially for that work. The 
 work will be better done by an organ specialized for 
 that purpose than by one that had been specialized for 
 another purpose. 
 
 Decisions of the Courts on Religion in the Pub- 
 lic Schools. — The Board of Education of the city of 
 Cincinnati, Ohio, on the ist day of November, 1869, 
 adopted the following resolutions, viz. : 
 
 ''Resolved, That religious instruction and the reading 
 of religious books, including the Holy Bible, are pro- 
 hibited in the Common Schools of Cincinnati, it being 
 the true object and intent of this rule to allow the chil- 
 dren of the parents of all sects and opinions in matters 
 of faith and worship, to enjoy alike the benefit of the 
 Common-School fund. 
 
 ' ' Resolved, That so much of the regulations on the 
 course of study and text-books in the Intermediate and 
 District Schools (p. 213, Annual Report) as reads as 
 follows : ' The opening exercises in every department 
 shall commence by reading a portion of the Bible by or 
 under the direction of the teacher, and appropriate 
 singing by the pupils,' be repealed." 
 
 John D. Minor and others brought action before the 
 Superior Court of Cincinnati, by petition for an order 
 to restrain the Board of Education from carrying out 
 the above resolutions. ' The parties were heard by the 
 Court in general term, November 30, 1869 ; W. M. 
 Ramsc}', George R. Sage, and Rufus King appearing 
 for the plaintiffs, and Judges F. B, Stallo, George 
 Hoadly, and Stanley Matthews for the defendants ; 
 
 ' The statement aud history of the case, the arguments of 
 counsel on both sides, and the opinions of the justices have 
 been published in full in The Bible in the Public Schools, 
 Cincinnati, Robert Clarke & Co. 
 
266 Legal Decisions. 
 
 Judges Storer, Taft, and Hagans on the bench. The 
 cause was argued with great ability and almost ex- 
 haustively on both sides. 
 
 The Court decided that " The injunction must be per- 
 petual," Taft dissenting. 
 
 Judge Hagans in his opinion, referring to the incorpo- 
 ration of Aj'ticle III Ordinaiice of lySy^ with the Consti- 
 tution of Ohio, says : " It is admitted that the common 
 schools of Ohio are in operation under the present Con- 
 stitution, adopted in 1851. The last sentence of the 
 seventh section of the Bill of Rights declares : ' Religion, 
 morality, and knowledge, however, being essential to 
 good government, it shall be the duty of the General 
 Assembly to pass suitable laws to protect every religious 
 denomination in the peaceable enjoyment of its own 
 form of public worship, and to encourage schools and the 
 means of instruction.' There is a vast difference, how- 
 ever, between omitting or not rcqtiiring, and the p)V- 
 hibition of a thing. It could not be claimed that if the 
 Legislature had omitted to pass suitable laws to protect 
 religious worship that it would be competent for the 
 City Council to enact an ordinance to prohibit the 
 police from doing it. This last clause provides two 
 modes of reaching the declared end : 
 
 " I St. To protect every religious denomination in the 
 peaceable enjoyment of its own mode of public wor- 
 ship. . . . There shall be no respect to the con- 
 sciences or opinions of nullifidians or other sects of 
 belief, by law, nor shall any rights of conscience they 
 have be allowed as against the 'peaceable enjoyment 
 of their own mode of public worship ' by ' every re- 
 religious denomination,' and the reason is because 're- 
 ligion, morality, and knowledge ' are essential to good 
 government. 
 
Legal Decisions. 267 
 
 " As another, and the last mode, which the Constitu- 
 tion enjoins on the Legislature to provide for reaching 
 the desired end, it enacts, * And ' — mark the copula- 
 tive conjunction — ' to encourage schools and the means 
 of instruction.' 
 
 " Both the State and religion grow out of the same 
 element of the human soul, and they cannot therefore 
 be separated or treated as one independent of the other. 
 Hence, we shall find that religion of some sort was 
 always a necessary adjunct of the State, furnishing 
 both bonds and sanctions as pledges of its safety and 
 perpetuity. And just in proportion as these bonds and 
 sanctions were weak, growing out of the relative purity 
 of the religion of the people, more or less force was 
 necessary for government. But there never was a State 
 that existed long without the bonds and sanction of 
 some religion. The mistake of most governments has 
 been that the State has allied itself with religion, has 
 erected establishments with a view of producing uni- 
 formity of faith ; — an alliance which has been hurtful 
 to both parties to it. But while the State and religion 
 are thus inseparably connected with each other in their 
 origin, and necessary to each other's existence and per- 
 petuity, their objects, spheres, means, and ends are 
 widely different. 
 
 " Tenth. If we should in any sense worship science, 
 or art, or the collective wisdom of all ages, or the souls 
 of our ancestors and of posterity, like Comte, or intel- 
 lect like Buckle, or virtue like Bentham, or any other 
 divinity, and make that worship the manifestation of 
 our religious convictions, these resolutions would pro- 
 hibit instruction therein, and emasculate the schools ; 
 besides doing violence to some consciences. 
 
 ' ' It appears from a careful survey of the character 
 
268 Legal Decisions. 
 
 and spirit of the Constitutional provisions we have 
 been examining, and of the legislation in pursuance 
 thereof, that it must be true for the purposes of the 
 State that Christianity, not in the sense of ecclesiasti- 
 cism, is the prevailing religion in the State. . . . 
 The framers of the Constitution felt that the moral 
 sense must necessarily be regulated and controlled by 
 the religious belief ; and that whatever was opposed to 
 religious belief, estimated by a Christian standard, and 
 taking into consideration the welfare of the State, would 
 be in the highest degree opposed to the general public 
 sense, and have a direct tendency to undermine the 
 moral support of the laws and corrupt the community. 
 . . . It is not claimed anywhere that the Holy 
 Bible does not impress on the children of the common 
 schools the principles and duties of morality and justice 
 and a sacred regard for truth, love of country, human- 
 ity, universal benevolence, sobriety, industry, chastity, 
 moderation, temperance, and all other virtues, which 
 are the ornaments of human society. . . . Nor 
 is it claimed seriously that the Bible is adverse in any 
 translation to any of these virtues as proper to be in- 
 culcated. On the contrary, its sublime morality fur- 
 nishes those teachings best fitted to develop the morals 
 and promote the virtues that strengthen and adorn both 
 social and public life. In any view we can take of 
 these resolutions, in this case, they are unconstitutional 
 and void." 
 
 Upon the plea made by the counsel for the defence 
 that the Bible containing the New Testament was to 
 the Jew, and King James's version read without note or 
 comment was to the Roman Catholic, a sectarian book, 
 and that its use in the public schools was a viola- 
 tion of the Constitution which provides that " No 
 
Legal Decisions. 269 
 
 preference shall be given by law to any religious so- 
 ciety. ' ' and that ' ' Xo religious or other sect or sects shall 
 ever have any exclusive right to, or control of, any part 
 of the school funds of this State," Judge Storer in his 
 opinion said : " The whole argument that seems to us 
 reaches the real question before us is predicated upon 
 the supposition that the Bible is a volume whose teach- 
 ings lead to sectarianism, and which ought not there- 
 fore to remain in the schools. We do not admit the 
 assertion, either in whole or in part. WTiat we under- 
 stand by sectarianism is the work of man, not of the 
 Almightj-. . . . We mar\'el not that the admix- 
 tures and devices of men have obscured revelation 
 when scarcely a week passes by without the annuncia- 
 tion of some new annotation or analysis or the defence 
 of some peculiar dogma. All these we admit tend to 
 the same result, which is necessarily a devotion to a 
 sect. But we cannot admit that the Bible necessarily 
 induces any such consequences. If it is candidh' ex- 
 amined, studied without preconceived prejudice, its 
 truths admitted to the test of enlightened conscience, 
 we doubt not the answer always will be, as it ever has 
 been, the acknowledgment of its sacred character and 
 a veneration for its truthfulness. . . . The Cath- 
 olic does not deny the inspiration of the Scriptures, but 
 does not admit the accuracy of what is called King 
 James's version. Yet, with comparatively few excep- 
 tions, the omission of the Apocr^-phal Books and the 
 rendering of some peculiar passages, we do not sup- 
 pose there is anj- essential difference between the 
 versions. . . . It is urged, however, that the con- 
 science of the Catholic parent cannot permit the 
 ordinary- version to be read as an exercise, as no reli- 
 gious teaching is permitted by his Church unless it is 
 
2 JO Legal Decisions. 
 
 directed by the clergy or authorized by the Church it- 
 self, and it is therefore offensive to the moral sense of 
 those who are compelled to listen when any portion of 
 the Bible is read ; but the rule has long since been 
 abolished requiring children to be present, or to read 
 from the version now in use, if it should be the ex- 
 pressed wish of the parents first communicated to 
 the teachers. . . . But is it consistent with this 
 claim of counsel that, even if the Bible should be pro- 
 hibited. Catholic children would not attend the common 
 schools unless subject to the teachings of their spiritual 
 guides. The schools have been denominated godless, 
 while the Scriptures are yet read as a daily exercise. 
 What must they become, and what will they be termed, 
 when the Scriptures are forbidden ? What appears to us 
 to underlie this view of the case is the alleged injustice 
 that Catholic parents, in common with other property- 
 holders, should be taxed for the support of schools that 
 are independent of the control of the church, and con- 
 sequently opposed to its whole economy. This has 
 been pressed in argument, though no one of the coun- 
 sel for the plaintiffs or defendants have intimated there 
 should be a division of the school fund. With the jus- 
 tice or injustice, therefore, of the mode of taxation we 
 have nothing to do in deciding the questions submitted 
 to us. If the point should ever arise, we trust we shall 
 attentively consider all the objections that may be raised 
 to the present organization of the schools ; but it fur- 
 nishes no ground of argument against the reading of 
 the Bible that the taxes for the support of the schools 
 are not equally assessed or properly distributed. . . . 
 If then, ' no religious test,' to use the language of 
 the Bill of Rights, is required of teacher or scholar, if 
 no act of worship in a sectarian sense is performed, if 
 
Legal Decisions. 2 7 1 
 
 no sectarian or denominational teaching is introduced, 
 and e\en the possibiHty of either is prevented by the 
 resolution long since promulgated, that those who de- 
 sire may be exempted from the general rule, we cannot 
 see how the defendants can justify the exclusion from 
 the schools of what has been permitted there for nearly 
 half a century wdthout rebuke. . . . We are satis- 
 fied, . . . that the resolutions prohibiting the Bible 
 and all religious instruction are ultra vires, and there- 
 fore void. . . . While we hold that every form of 
 religious worship is to be alike protected by law, and 
 the conscience of every man cannot be questioned, 
 while the broad shield of the Constitution is over all 
 citizens without distinction of race or sect, we cannot 
 ignore the right of the petitioners for the relief they 
 have sought ; nor can we with our views of legal duty 
 sustain the action of the defendants. 
 
 " A majority of the court are of this opinion, and a 
 perpetual injunction will therefore be decreed, as prayed 
 for in the petition." ' 
 
 ' This decisiou was reversed by the Supreme Court of Ohio 
 upon the ground that the mandate of the Constitution (quoted 
 above by Judge Hagans) applied to the Legislature alone, and 
 that the Legislature had taken no action in the matter further 
 than to establish a common-school system and to commit the 
 management and control of it exclusively to Directors, Trus- 
 tees, or Boards of Education. 
 
 The Court said, inter al. : "It is claimed in behalf of the de- 
 fendants in error (i) that these provisions of the Constitution 
 require and enjoin religious instructions, or the teaching of re- 
 ligious doctrines, in the public schools, irrespective of the wishes 
 of the people concerned therein ; and (2) that this requirement 
 and injunction rests, not upon the legislature alone, but, in the 
 absence of legislation for that purpose, is a law of the State 
 propria rigore, binding upon courts and people. 
 
 " If it is not conceded, it must be conceded that the legislature 
 
272 Legal Decisions. 
 
 In the case of Weiss ct al. v. District Board of School 
 District No. 8, of the City of Edgerton, the Superior 
 Court of Wisconsin, March 18, 1890, gave a decision, 
 which was unanimous, and of which the following is 
 the authorized summar}-, viz.: 
 
 " I. In a petition for a writ of mandamus to compel 
 the discontinuance of Bible reading in the common 
 
 have never passed any law enjoining or requiring religious in- 
 structions in the public schools, or giving the courts power in 
 any manner, or to any extent, to direct or determine the par- 
 ticular branches of learning to be taught therein, or to enforce 
 instructions in any particular branch or branches. . . . 
 
 " There is a total absence, therefore, of any legislation looking 
 to the enforcement of religious instruction in the reading of 
 religious books in the public schools ; and we are brought back 
 to the question, What is the true meaning and effect of these 
 Constitutional provisions on this subject? Do they enjoin re- 
 ligious instructions in the schools, and does this injunction 
 bind the courts, in the absence of legislation ? We are unani- 
 mously of the opinion that both of these questions must be 
 answered in the negative. . . . 
 
 " Equally plain is it that if the supposed injunction to provide 
 for religious instructions is to be found in the clause of the 
 Constitution in question, it is one that rests exclusively upon 
 the legislature. In both sections the duty is expressly imposed 
 on ' the general assembly.' The injunction is to ' pass suita- 
 ble laws.' Until these 'laws' are passed it is quite clear to 
 us that the courts have no power to interpose. The courts can 
 only execute the laws when passed. They cannot compel the 
 general assembly to pass them." 23 Ohio, N. vS., 211. Dec, 
 1872. 
 
 The question still remains whether, if the Legislature had 
 passed laws enjoining or authorizing ixwy form of religious in- 
 struction or exercise in the public schools, this Court would hold 
 those laws to be constitutional. From the tenor of a disquisi- 
 tion at the conclusion of the decision we infer that it would not 
 do so. 
 
Legal Decisions. 273 
 
 schools, averments that petitioners are taxed for the 
 support of the schools and are equally entitled to the 
 benefit thereof, and that the reading of the Bible therein 
 is contrary to the rights of conscience, and is sectarian 
 instruction, such as is prohibited by Constitution, Wis- 
 consin, Art. ID, S. 3, are sufl&ciently broad to cover 
 every valid objection that may be made to such read- 
 ings. 
 
 " 2. Averments, in answer to such petition, that the 
 reading of the Bible in the schools is not sectarian in- 
 struction, and that there is no material difference be- 
 tween the King James version used in the schools and 
 the Douay version, are not admitted by demurrer ; the 
 former being a conclusion of law, and the latter not 
 well pleaded because against common knowledge. 
 
 " 3. The 'sectarian instruction,' prohibited in the com- 
 mon schools by Constitution, Wisconsin, Art. 10, S. 3, 
 is instruction in the doctrines held by one or other of 
 the various religious sects and not by the rest ; and 
 hence the reading of the Bible in such schools comes 
 within the prohibition, since each sect, with few ex- 
 ceptions, bases its peculiar doctrines upon some portion 
 of the Bible, the reading of which tends to inculcate 
 those doctrines. 
 
 "4. The practice of reading the Bible in such schools 
 can receive no sanction from the fact that pupils are not 
 compelled to remain in the school while it is being 
 read, for the withdrawal of a portion of them at such 
 time would tend to destroy the equality and uniformity 
 of treatment of the pupils, sought to be established and 
 protected by the Constitution. 
 
 "5. The reading of the Bible is an act of worship, 
 as that term is used in the Constitution, and hence 
 the tax-payers in any district who are compelled to 
 
2 74 Legal Decisions. 
 
 contribute to the erection and support of common 
 schools, have the right to object to the reading of 
 the Bible therein, under Constitution, Wisconsin, Art. 
 I., S. i8, cl. 2, declaring that " No man shall be com- 
 pelled ... to erect or support any place of worship. ' ' 
 
 "6. As the reading the Bible at stated times in a com- 
 mon school is religious instruction, the money drawn 
 from the State treasury for the support of such school 
 is " for the benefit of a religious seminary " within the 
 meaning of Constitution, "Wisconsin, Art. i., S. i8, cl. 
 4, prohibiting such an appropriation of the funds of the 
 State." 
 
 Lyon, J., in giving his opinion said : 
 
 "II. In considering whether such reading of the 
 Bible is sectarian instruction the book will be regarded 
 as a whole, because the whole Bible without exception 
 has been designated as a text-book for use in the 
 Edgerton schools. 
 
 "III. The courts will take j udicial notice of the con- 
 tents of the Bible, that the religious world is divided into 
 numerous sects, and the general doctrines maintained 
 by each sect. . . . Thus they will take cognizance 
 without averment of the facts that there are numerous 
 religious sects called 'Christians,' respectively main- 
 taining different and conflicting doctrines ; that some 
 of these believe the doctrine of predestination, while 
 others do not ; some, the doctrine of eternal punish- 
 ment of the wicked, while others repudiate it ; some, 
 the doctrines of the apostolic succession and the au- 
 thority of the priesthood, while others reject both ; 
 some, that the holy Scriptures are the only sufhcient 
 rule of faith and practice, while others believe that the 
 only safe guide to human thought, opinion, and action 
 is the illuminating power of the Divine vSpirit upon the 
 
Legal Decisions. 275 
 
 humble and devout heart ; some, in the necessity and 
 efficac}- of the sacraments of the church, while others 
 reject them entirely ; and some, in the literal truth of 
 the Scriptures, while others believe them to be allegori- 
 cal, teaching spiritual truth alone, or chiefly' . 
 
 " V. . . . The question therefore seems narrowed 
 down to this : Is the reading of the Bible in the 
 schools — not merely selected passages therefrom, but 
 the whole of it — sectarian instruction of the pupils? 
 In view of the fact already mentioned, that the Bible 
 contains numerous doctrinal passages upon some of 
 which the peculiar creed of almost every religious sect 
 is based, and that such passages may reasonably be 
 understood to inculcate the doctrines predicated upon 
 them, an affirmative answer to the question seems un- 
 avoidable. Any pupil of ordinary intelligence who 
 listens to the reading of the doctrinal portions of the 
 Bible will be, more or less, instructed thereby in the 
 doctrines of the divinity of Jesus Christ, the eternal 
 punishment of the wicked, the authority of the priest- 
 hood, the binding force and efficacy of the sacraments, 
 and many other conflicting sectarian doctrines. . . 
 
 " It should be observed, in this connection, that the 
 above views do not, as counsel seemed to think they 
 may, banish from the district .schools such text-books 
 as are founded upon the fundamental teachings of the 
 Bible, or which contain extracts therefrom. Such 
 teachings and extracts pervade and ornament our sec- 
 ular literature, and are important elements in its value 
 and usefulness. Such text-books are in the schools 
 for secular instruction, and rightl}' so ; and the Consti- 
 tutional prohibition of .sectarian instruction does not 
 include them, even though they may contain passages 
 from which some inference of sectarian doctrine micrht 
 
2 76 Legal Decisions. 
 
 possibly be drawn. Furthermore, there is much in the 
 Bible which cannot justl}' be characterized as sectarian. 
 There can be no valid objection to the use of such mat- 
 ter in the secular instruction of the pupils. Much of 
 it has great historical and literar}' value, which may 
 be thus utilized without violating the Constitutional 
 prohibition. It may also be used to inculcate good 
 morals ; that is, our duty to each other, which may 
 and ought to be inculcated by the district schools. 
 No more complete code of morals exists than is 
 contained in the New Testament, which re-affirms 
 and emphasizes the obligations laid down in the 
 ten commandments. Concerning the fundamental 
 principles of moral ethics the religious sects do not 
 disagree. . . . 
 
 " XI. The drift of some remarks in the argument of 
 counsel for the respondent, and perhaps also in the 
 opinion of Judge Bennett, is that the exclusion of 
 Bible reading from the district schools is derogatory to 
 the value of the holy Scriptures, a blow to their influ- 
 ence upon the conduct and consciences of men, and 
 disastrous to the cause of religion. We most emphati- 
 cally reject these views. The priceless truths of the 
 Bible are best taught to our 3'outh in the church, the 
 Sabbath and parochial schools, the social religious 
 meetings, and above all by parents in the home circle. 
 There, these truths may be explained and enforced, 
 the spiritual welfare of the child guarded and pro- 
 tected, and his spiritual nature directed and cultivated 
 in accordance with the dictates of the parental con- 
 science. The Constitution does not interfere with 
 such teaching and culture. It only banishes theological 
 polemics from the schools. It does this, not because 
 of any hostility to religion, but because the people who 
 
Legal Decisions. 277 
 
 adopted it believed that the public good would thereby 
 be promoted, and they so declared in the preamble. 
 Religion teaches obedience to law, and flourishes best 
 where good government prevails. The Constitutional 
 prohibition was adopted in the interests of good govern- 
 ment, and it argues but little faith in the vitality and 
 power of religion to predict disaster to its progress 
 because a Constitutional provision, enacted for such a 
 purpose, is faithfully executed." 
 
 Orton, J., said : "As the State can have nothing to 
 do with religion except to protect every one in the en- 
 joyment of his own, so the common schools can have 
 nothing to do with religion in an}' respect whatever. 
 The}' are as completely secular as anj- other institutions 
 of the State, in which all the people alike have equal 
 rights and privileges. The people cannot be taxed for 
 religion in schools more than anywhere else. 
 The clause ' No sectarian instruction shall be allowed 
 therein,' was inserted ex indiistria to exclude every- 
 thing pertaining to religion. They are called by those 
 who wish to have not onl}- religion, but their own reli- 
 gion taught therein, ' Godless schools.' They are God- 
 less and the educational department of the government 
 is Godless, in the same sense that executive, legisla- 
 tive, and administrative departments are Godless. So 
 long as our Constitution remains as it is, no one 
 religion can be taught in our common schools. 
 There is no such source and cause of strife, quar- 
 rels, fights, malignant oppositions, persecutions, and 
 war, and all evils in the State, as religion. Let it once 
 enter into our civil afiairs, our government would soon 
 be destroj-ed. Let it once enter into our common 
 schools, they would be destro5'ed. Those who made 
 our Constitution saw this, and used the most apt and 
 
278 Legal Decisions. 
 
 comprehensive language in it to prevent such a catas- 
 trophy." ' 
 
 The Constitution of Wisconsin might very well have 
 prohibited/'<:?;'//-sY?;/ instruction also in the public schools, 
 for partisanship is as prominent a feature of our social 
 life as sectarianism. The partisan publications, daily 
 and weekl}^ read by the people of that State, it is safe 
 to say, outnumber the sectarian publications in the pro- 
 portion of a hundred to one ; and while the religious 
 discourses outnumber the political addresses delivered, 
 yet it cannot be denied that an immensely large pro- 
 portion of the former dwell upon themes on which all 
 Christians are agreed, and are not sectarian, while 
 ever}^ one of the latter is intensely partisan. Such a 
 prohibition no doubt would have been placed in the 
 Constitution had the convention that framed it been 
 perfectly free from a very prevalent bias. The words 
 of Justice Orton in this decision, "There is no such 
 source and cause of strife, quarrels, fights, malignant 
 oppositions, persecution and war, and all evils in the 
 State, as religion," reveal an excessive fear of the 
 Christian religion which can hardly be attributed to 
 anything else than a bias in favor of an ill-digested and 
 tacitly assumed anti-Christian theory of our civil insti- 
 tutions, — a bias which seems to avail itself of every 
 opportunity to establish that theory. Supposing that 
 the Constitution of Wisconsin had prohibited partisan 
 as well as sectarian instruction ; would this court have 
 adjudged the Constitution of the United States to be a 
 partisan document ? Would it have given as the ground 
 of this opinion the fact that there are now over one 
 hundred volumes of decisions upon conflicting claims, 
 based upon different views of the meaning of that 
 
 ' The N. W. Reporter, vol. 44, ])p., 967-982. 
 
Legal Decisions. 2 79 
 
 clocuraeut ; that almost from the beginning two great 
 political parties have been in contention as to the con- 
 struction to be put upon it ; that every Congress has 
 debated its meaning ; and that a great war grew^ out of 
 conflicting interpretations of it ? 
 
 And, further, had the Constitution of the United 
 States been written in a dead language ; were there 
 now in common use two versions of it ; both derived 
 from a received text, the one a translation into the ver- 
 nacular, the other a translation into another dead lan- 
 guage and re-translated into the vernacular ; the two 
 differing only as such translations might be expected to 
 differ ; and did the political leaders of a small minority, 
 sa}' one tenth of the population, lay it down as one of 
 the doctrines of their party that the common people 
 were incompetent to form any correct opinions of the 
 meaning of the Constitution, and therefore were not to 
 read it or hear it read, but were to accept implicitly the 
 interpretations of it promulgated by the Supreme Court 
 of the United States, and to receive those interpreta- 
 tions onl)' from persons who had been regularly ad- 
 mitted to the Bar ; would this court hold that both of 
 these versions were partisan documents ; that the read- 
 ing of either of them in the public schools even with- 
 out note or comment would be partisan instruction, and 
 that such reading was therefore prohibited by the Con- 
 stitution of the State ? 
 
 An}- one will be able to see that, by the subtle potencx- 
 of the definition of partisan instruction here given, the 
 partisan tenet of a small minority is put in operation as 
 the law of the State. The tenet of the majorit}- is re- 
 jected, and that majority is compelled to pay taxes for 
 the purpose of establishing the tenet of the minority in 
 the administration of the public schools. A decision 
 
2 So Legal Decisions. 
 
 having such an effect ought to be based upon a defini- 
 tion of partisan instruction less obviously defective than 
 the one here given. It is little wonder that the Su- 
 preme Court of a neighboring State declined to recog- 
 nize the validity of the principles laid down in this 
 decision. 
 
 James H. Nichols v. The School Directors, Appeal 
 from the Circuit Court of Livingston County, Illinois. 
 Bill for an injunction by complainant as a citizen, tax- 
 payer, and freeholder of the school district, to restrain 
 the directors from allowing the school-house of that dis- 
 trict to be used by any society or organization for the 
 purpose of a religious meeting-house. 
 
 The Supreme Court of Illinois, September, 1879, said, 
 Mr. Justice Sheldon delivering the opinion of the court, 
 Hon. N.J. Pillsbury (Judge) presiding: 
 
 "The grievance as set forth in the bill is that the 
 defendants have as such directors given permission to 
 different church organizations to hold religious services 
 in the school-house against the protest of complainant 
 and other tax-payers of the district ; that under this 
 permission some of the church organizations purpose 
 holding stated meetings in the school-house ; that by 
 this means complainant is compelled to aid in furnishing 
 a house of worship for religious meetings contrary to 
 the law of the land ; that he is opposed to such use of 
 the house by the societies, and that such meetings are 
 about to be held in the same contrary to his wishes. 
 
 ''Statute. '. , . and who may grant the temporary 
 use of school-houses, when not occupied for schools, for 
 religious meetings and Sunday-schools, for evening 
 schools and for literary societies, and for such other 
 meetings as the directors may deem proper.' ' 
 ' Revised Statutes, 1874, p. 958, S. 39. 
 
L egal Decisions. 2 8 1 
 
 " There is clearly suflEicient warrant in the statute, if 
 that be valid, for the action of the school directors. 
 But the statute is assailed as being unconstitutional. 
 The clauses which are pointed out as being supposed 
 to be violated bj^ this statute are the following only : 
 
 ' Art. II., S. 3. No person shall be required to attend 
 or support any ministry or place of worship against his 
 consent ; nor shall an}' preference be given by law to 
 any religious denomination or mode of worship.' 
 
 " 'Art. VIII., S. 3. Forbidding among other public 
 bodies, the General Assembl)', or any school district, 
 from ever making any appropriation or paying from 
 any public fund whatever, anything in aid of any 
 church or sectarian purpose, etc. ; and forbidding the 
 State or anj' public corporation from making any grant 
 or donation of land, money, or other personal property 
 to any church, or for an}' sectarian purpose.' 
 
 " ' Art. VIII., S. 2. All land, moneys, or other prop- 
 erty, donated, granted, or received for school, college, 
 seminary or university purposes, and the proceeds 
 thereof, shall be faithfully applied to the objects for 
 which such gifts or grants were made.' 
 
 " The thing contemplated by the Constitutional pro- 
 vision first above named, was a prohibition upon the 
 legislature to pass any law by which a person should 
 be compelled without his consent to contribute to the 
 support of any ministry or place of worship. Such a 
 matter as the subject of complaint here, we do not 
 regard as within its purview. 
 
 " Religion and religious worship are not so placed 
 under the ban of the Constitution that they may not be 
 allowed to become the recipient of any incidental bene- 
 fit whatever from the public bodies or authorities of the 
 State. That instrument itself contains a provision 
 
282 Legal Decisions. 
 
 authorizing the legislature to exempt property used for 
 religious purposes from taxation ; and, thereby, the 
 same as is complained of here, there might be indirectly 
 imposed upon the tax-payer the burden of increased 
 taxation, and in that manner the indirect supporting 
 of places of worship. In the respect of the possibility 
 of enhanced taxation therefrom, this provision of the 
 Constitution itself is even more obnoxious to objection 
 than this permission given by the school directors to 
 hold religious meetings in the school-house. There is 
 no pretence that it is in any way in interference with 
 the occupation of the building for school purposes. 
 
 " We think the court rightly sustained the demurrer 
 and dismissed the bill as making no case for an injunc- 
 tion. The decree is affirmed.' " 
 
 In the case of Donahue v. Richards et a!., 38 Maine, 
 p. 376, suit had been brought by the father of Bridget 
 Donahue against the superintending school committee 
 of the town of Ellsworth, Me., for expelling her from 
 school for a refusal to comply with the orders of her in- 
 structor to read in the common version of the Bible, 
 designated in the report as the Protestant version ; such 
 reading being a part of the general course of instruction, 
 and this version being directed to be read in this course. 
 
 The nonsuit was confirmed on the ground that ' ' In 
 no case can a parent sustain an action for any wrong 
 done to the child, unless he has incurred some direct pe- 
 cuniary injury therefrom, in consequence of some loss 
 of service, or expenses necessarily consequent there- 
 upon.' ' It was decided that for injury to the person, the 
 reputation, or the property of the child, the suit must 
 1)e brought in her own name. Whereupon action was 
 brought by plaintiff who was fifteen years of age, 
 ' 93 lUiuois, 61. 
 
Legal Decisions. 283 
 
 through her father, as her prochein ami, against the 
 superintending school committee, to recover damages 
 for maliciously, wrongfully, and unjustifiably expelling 
 her from one of the town schools in Ellsworth. 
 
 In this case, Donahue, prochein ami, v. Richards <?/ a/. 
 38 Maine, 379, Appleton, J., giving the decision, the 
 Court said : 
 
 " The present suit is by the minor for the alleged 
 wrongful exclusion from school in consequence of her 
 refusal to read one of the books directed by the defend- 
 ants, who are the superintending school committee of 
 the town of Ellsworth, to be used in the school of which 
 she was a member. 
 
 " The questions involved in the decision of this case 
 are their liabilit}', when acting in good faith in the dis- 
 charge of their duty, to an action at the suit of the in- 
 dividual expelled, even if the exclusion was erroneous ; 
 their powers as to the selection of the books to be used ; 
 their legal right to expel a scholar in case of a refusal 
 to read in a book by them prescribed ; the Constitution- 
 ality of a regulation by which the Bible, or any version 
 of it, is designated as one of the books to be read. 
 
 " The defendants are public officers, discharging an 
 important public trust, and in the exercise of this 
 authorit}', necessarily clothed to a certain extent with 
 judicial powers. In doing the act of which complaint 
 is made, thej^ were acting under the obligations of offi- 
 cial duty and the sanctions of an oath. The plaintiff 
 claims that when thus acting, and without malice or 
 intentional wrong on their part, they can be held re- 
 sponsible in damages for an erroneous decision, an error 
 in judgment, either as to the facts or as to the conse- 
 quences rightly deducible from them. In fine, that 
 they should be held liable if they erred in judgment 
 
284 Legal Decisions. 
 
 in a matter submitted to their determination, and upon 
 which they were bound to act. 
 
 ' ' Her claim to be exempt from a general regulation of 
 the school rests entirely on her religious belief, and is 
 to the extent that the choice of reading books shall be 
 in entire subordination to her faith, and because it is her 
 faith. . . . The preference [of a religious sect] is 
 manifestly given, if in the selection to be made the de- 
 fendants were bound to defer to the doctrines and 
 authority and teachings of the sect of which she is a 
 member. The right of negation is, in its operation, 
 equivalent to that of proposing and establishing. The 
 right of one sect to interdict or expurgate would place 
 all schools in subordination to the sect interdicting or 
 expurgating. If the claim is that the sect of which 
 the child is a member has a right to interdict, and that 
 any book is to be banished because under the ban of 
 her church, then the preference is practically given to 
 said church, and the very mischief complained of is 
 inflicted on others. ... If Locke and Bacon and 
 Milton and Swift are to be stricken from the list of 
 authors which may be read in the schools, because the 
 authorities of one sect may have placed them among 
 the list of heretical writers, whose work it neither per- 
 mits to be printed, nor sold, nor read, then the right of 
 sectarian interference in the selection of books is at 
 once yielded, and no books are to be read to which it 
 may not assent. ... If one sect may object, the 
 same right must be granted to others. This would give 
 the authorities of every sect the right to annul any 
 regulation of the constituted authorities of the State 
 as to the course of stud}' and the books to be read. It 
 is placing the legislation of the State, at once and for- 
 ever, in subordination to the decrees and the teachings 
 
Legal Decisions. 285 
 
 of any and all sects when their members conscientiously 
 believe such teachings. It at once surrenders the power 
 of the State to a government not emanating from the 
 people, nor recognized by the Constitution, 
 and the use of books would be made to depend not 
 upon the judgment of those to whom the law entrusts 
 their selection, but upon that of the authority of a 
 Church ; so that each sect would have precedence, as 
 a sect, and for that cause. . . . The claim so far 
 as it may rest on conscience is a claim to annul any 
 regulation of the State made by its constituted authori- 
 ties. As a right existing on the part of one child it is 
 equalh' a right belonging to all, . . . and thus, the 
 power of selection of books is withdrawn from those to 
 whom the law entrusts it, and by the right of negation 
 is transferred to the scholars. The right, as claimed, 
 undermines the power of the State. It is that the will 
 of the majority shall bow to the conscience of the 
 minorit)', or of one. . . ." 
 
 Mr. Foster Xorth, a student of the Universitj- of 
 Illinois, after nearh- six years of acquiescence in the reg- 
 ulation requiring attendance upon chapel exercises, ab- 
 sented himself from those exercises. 
 
 On April 17, 1885, the Faculty, after having had 
 conference with Mr. North and having entered upon 
 its minutes that "He would be expected to comply 
 with the regulations of the University as long as he 
 remains a student therein," voted the following order, 
 viz. : 
 
 . " Case of F. Xorth referred to Regent. If he claims 
 conscientious scruples against attendance at chapel, he 
 may be excused ; if not, he will be suspended. ' ' 
 
 On the 24th of April, Mr. North replied in writing, 
 refusing the offer to be excused on account of the re- 
 
286 L eza I Decisions. 
 
 piignance of the chapel exercises to his religious con- 
 victions, saying that he had " no religious convictions 
 for the chapel exercises to be repugnant to" ; and 
 secondly, he took the ground that the Faculty had no 
 right to make any regulation requiring students to at- 
 tend chapel ; and that the act of formally expressing 
 his wish not to attend would be a recognition of a right 
 which he strenuously denied. Whereupon the follow- 
 ing communication was addressed to him, viz.: 
 
 " Illinois Industrial University, 
 " Regent's Office, 
 "Urbana, 111., April 30, 1885. 
 " Mr. Foster North, 
 
 " Dear Sir : — It is in evidence before the Faculty of 
 this University that during most of the current term you 
 have purposely absented yourself from the general as- 
 sembly of the students, required daily of them by the 
 regulations of this institution. You aver that you have 
 not done this on account of any conscientious objec- 
 tions to any of the exercises there held, religious or 
 other, but because you deny the authority of the Fac- 
 ulty to require your attendance there, so long as any 
 part of the exercises are religious in form. You there- 
 fore deny the authority of the Faculty as now adminis- 
 tered. 
 
 •" The Faculty cannot accept your view of the case or 
 admit your propositions thereupon ; nor can they allow 
 you to nullify their regulations. I am therefore directed 
 to say to you that you are from this date suspended in- 
 definitely from the University. 
 
 "S. H. Peabody, 
 
 '' Rege?tt. 
 " By order of the Faculty." 
 
« Legal Decisions. 287 
 
 Mr. North appealed to the Board of Trustees, a ma- 
 jority of whom sustained the action of the Faculty. 
 The Board asked the advice of the Attorney-General 
 of the State, Hon. George Hunt, their legal adviser, 
 who gave an elaborate opinion sustaining the action 
 of the Board." 
 
 In 1890 Mr. North petitioned the Supreme Court of 
 Illinois for a writ of mandamus against the Trustees 
 of the Universit}' requiring them to reinstate him in the 
 University. 
 
 Upon the hearing of this petition the Court said, Mr. 
 Justice Wilkin delivering the opinion of the court : 
 
 " . . . It certainly will not be insisted that the 
 rule requiring students to attend chapel exercises is un- 
 reasonable or unlawful, as applied to those who are 
 willing to obe}' it. The legality of the rule is ques- 
 tioned on the sole ground that it violates that clause of 
 Section 3, Article II. of the Constitution of this State, 
 which says, ' No person shall be required to attend or 
 support any ministr}' or place of worship against his 
 consent.' It is not pretended by the petitioner that 
 the exercises at chapel meetings were sectarian, and 
 therefore objectionable ; but the only objection to those 
 exercises was, and is, that the}' were in part religious 
 worship, within the meaning of the above-quoted lan- 
 guage of the Constitution. In the view we take of the 
 case that fact may be conceded. The real question on 
 this branch of the case is, Was it a violation of that 
 constitutional provision for respondents to adopt the 
 rule, and require obedience thereto by those attending 
 the Universit}^ unless excused therefrom ? 
 
 " There is certainly nothing in this section of our Con- 
 
 ' Report of the Board of Trustees of the University of Illi- 
 nois to the Governor of It/ifiois, iSS6, pp. 39, 43, 62, 63, 66, 72. 
 
288 Legal Decisions. 
 
 stitution prohibiting this and like institutions of learn- 
 ing from adopting reasonable rules requiring their 
 students to attend chapel exercises of a religious nature, 
 and to use at least moral suasion and all argumentative 
 influences to induce obedience thereto. . . . Shall 
 a court say such a requirement is, in and of itself, a viola- 
 tion of said Constitutional provision, merely because 
 some one or more students attending the University may 
 object to obeying it ? More especially should this be 
 done when, as is here shown by the answer, the rules 
 expressly provide that for good cause students may be 
 excused from obedience to the regulations. We have 
 said, in construing this section of the Constitution, 
 * Religion and religious worship are not so far placed 
 under the ban of the Constitution that they may not be 
 allowed to become the recipient of any incidental bene- 
 fit whatever from the public bodies or authorities of the 
 state' (Nichols v. The School Directors, 93 Illinois, 61). 
 It may be said with greater reason that there is nothing 
 in that instrument so far discountenancing religious 
 worship that colleges and other institutions of learning 
 may not lawfully adopt all reasonable regulations for 
 the inculcation of moral and religious principles in 
 those attending them. 
 
 " We are clearly of the opinion that the rule is not 
 unlawful. At most it could only be fairly contended 
 that under said clause of the Constitution one so desir- 
 ing it should for reasonable cause be excused from its 
 observance. The whole of said Section 3 being con- 
 sidered, it is clear that it is designed to protect the 
 citizen in the free exercise of his religious opinions, 
 and it should be liberally construed to that end. 
 
 " As we have seen, he was requested to base his ap- 
 plication to be excused from attending chapel exercises 
 
Legal Decisions. 289 
 
 oil the only reasonable ground that it could be based. 
 He not only refused to do that, but according to the 
 allegations of the answer, which he admits, refused to 
 ask to be excused on any ground. His expulsion was 
 the result of his own wrong. Neither the respondents 
 or the Faculty have been guilty of a violation of law, 
 or of doing any wrong. 
 
 " The authorities cited by counsel for the petitioner 
 do not militate against this conclusion. The case of 
 the State ex rcl. Weiss et al, v. District No. 8, etc., 
 decided by the Supreme Court of Wisconsin, in 1890, 
 (A^. ]V. Reporter, vol. xliv, p. 967) is much relied on as 
 sustaining the petitioner's right to the writ. The case 
 is wholly unlike this. The relators in that case were 
 members of the Roman Catholic Church and tax-payers 
 in the school district. Their children attending the 
 school were also members of that church. The com- 
 plaint was that, Bible reading in the school was ex- 
 clusively from ' King James's Version,' and therefore 
 sectarian instruction in violation of Section 3, Article 
 X, of the Constitution of that State, which ordains 
 that ' No sectarian instruction shall be allowed in the 
 district .schools of this State.' Lyon, J., who wrote 
 the principal opinion in the case, confines his discus- 
 sion and decision to that question onl}-, and as we 
 read the petition that was the only Constitutional 
 question raised by it. In the concurring opinions filed 
 by Casody and Orton, J. J., there is a discussion of the 
 questions as to whether or not such Bible reading, as 
 alleged in the petition, was a violation of the rights of 
 conscience, and amounted to compelling the relators to 
 aid in the support of a place of worship against their 
 consent, within the prohibition of other sections of 
 that Constitution. 
 
290 Fit I I Liberty. 
 
 " It is manifest all that is said in that case could not 
 be approved by this court consistently with our former 
 decisions, as is there expressly recognized ; but, if it 
 could, still it would by no means follow that a peremp- 
 tory writ should be issued in this case. None of the 
 questions there decided are necessarily involved here. 
 
 ' ' We are clearly of the opinion that there is no suffi- 
 cient ground here shown to authorize the ordering of 
 the peremptory writ of mandamus, and it is therefore 
 denied." ' 
 
 CHAPTER VIII. 
 
 FULIv LIBEIRTY, 
 
 The; government should allow full liberty of belief 
 and unbelief, and the largest liberty of action to the 
 believer and unbeliever alike, which is consistent with 
 justice and the good order of society. 
 
 It will happen that Christian considerations will 
 enter into some of the legislation of the State, and that 
 certain Christian observances will be established by 
 law, — an inevitable result where the people are almost 
 wholly Christian, as we have shown, but in all these 
 cases the State should show its Christian character, 
 first of all, in not usurping the place of God, and 
 assuming the right to coerce the consciences of men. 
 It should show its confidence in the truth by not desir- 
 ing to employ against those who deny the truth any 
 other force than the force of truth itself The State, 
 Christian though it be, should not compel anj' man to 
 
 ' North :'. Board of Trustees of the University of Illinois, 27 N, 
 E. Rep., 54, March 1891. 
 
Ftdl Liberty. 291 
 
 act contrar}' to his convictions ; nor should it impose 
 an}- coercive disabihties upon anj* man for refusing so 
 to act. It should not require the Quaker or the atheist 
 to take an oath ; nor should it exclude either from the 
 witness stand, or from office, on account of his refusal 
 to take an oath. It has appointed the Lord's day as a 
 day of rest. It should not require of the unbeliever, 
 the Jew, or the Christian Sabbatarian, any obser\'- 
 ance of that da}- which would imply on his part that 
 he was obser\-iug it as a Christian dut}-, or for the 
 Christian reason of the appointment. It should require 
 of these citizens only that they abstain from all acts on 
 that day which would offend the sensibilities of Chris- 
 tian people, disturb them in their worship, or disturb 
 the good order of society. Any prohibitions or penalties 
 laid upon them for the non-observance of the day ought 
 to be based on these reasons, and on these alone. 
 Were a man alone in the depths of a forest, the State 
 ought not to punish him for felling trees, or hunting, 
 or fishing, on the first day of the week. Were there 
 a company of persons away by themselves in such a 
 solitude, and did they choose to divert themselves on 
 that day with the game of base-ball, or with the music 
 of a brass baud, or with a dramatic performance, it ought 
 not to punish them for so doing ; but it might prohibit 
 all such diversions where they would offend the sensi- 
 bilities of Christian people or disturb them in what 
 thej' regard as the proper use of the day. This differ- 
 ence in action on the part of the State w-ould imply 
 and would be based upon a just discrimination in prin- 
 ciple. While establishing a Christian ordinance, and 
 establishing it as such, it would not be requiring the 
 unbeliever to observe it as Christian, or for the Chris- 
 tian reasons, upon which the obser\'ance is based. 
 
292 Full Liberty. 
 
 The old laws upon the observance of Sunday, which 
 are still in force in most of the older States, go further 
 than this ; but the later jurists, and a few of the States 
 in their legislation, and in the decisions of their courts, 
 have adopted the principle of discrimination we have 
 been setting forth.' To this extent the regulations of 
 the State ought to be governed by a respect for the 
 personal liberty and the feelings of the unbeliever. 
 
 CHAPTER IX. 
 
 UNTENABI<E THEORIES. 
 
 The abstaining of the government from the propa- 
 gation of Christianity, and from the enforcement upon 
 the unbeliever of the observance of a legally estab- 
 lished Christian ordinance, as a religious duty, or for 
 the Christian reasons upon which the ordinance is based 
 
 ' The older States, in framing their Sunday laws, have fol- 
 lowed the old English statute, which prohibited the doing or ex- 
 ercising of any worldly labor, business, or work, on the Lord's 
 day, works of necessity and charity excepted. Under these 
 laws a great number and variety of questions have been brought 
 to the courts for decision, such as the validity of contracts and 
 promissory notes, made on Sunday ; damages for injuries re- 
 ceived upon public highways, and from public carriers, by acci- 
 dent in travelling on Sunday, or for failure of a public carrier to 
 transport perishable freight on Sunday. One or two cases may 
 serve as examples of the decisions rendered under this form of 
 the statute. 
 
 Michael Connelly, in passing over Dover Street, Boston, at 
 nine o'clock Sunday night, Oct. 6, 1872, walked off an open 
 drawbridge, which was not protected by any guard or barrier. 
 Upon suit for damages, the court decided that " One who works 
 by night, instead of by day, and who travels on Sunday, for the 
 
Untenable Theories. 293 
 
 does not work a divestiture of all Christian character, 
 and does not remove all Christian basis from its regu- 
 lations. That such a divestiture has somehow been 
 made is coming to be a general impression. Even 
 Christian jurists, and also courts, which cannot be 
 charged with any prejudice against Christianity, have 
 made affirmations which seem to imply it. The natural 
 history of this impression can easil}^ be made out. 
 
 In the first place, almost any one, upon finding that 
 these two propositions must be accepted : (a) That it 
 is not the proper function of the government to incul- 
 cate, propagate, or foster Christianity : (b) That full 
 liberty of conscience is to be guaranteed to the believer 
 and unbeliever alike, and finding that the regulations 
 prescribed for the observance of a Christian ordinance, 
 established by law, are such as not to imply on the 
 part of the unbeliever observance as a Christian duty 
 
 purpose of seeing his master and inducing him to change his 
 hours of labor from night to the day, in order that he may 
 sleep better is not travelling from necessity or charity, and 
 cannot maintain an action, against the town, for an injury sus- 
 tained by him, while so travelling, by reason of a defect in the 
 highway which the town is by the law obliged to keep in 
 repair." Connelly f. City of Boston, 117 Mass., 64. Jan., 1875. 
 
 " One who travels on Sunday, to ascertain whether a house 
 he has hired, and into which he intends to move the next day, 
 has been cleaned, is not travelling from necessity or charitj-, 
 and cannot maintain an action, for injury sustained at a rail- 
 road crossing, through the negligence of the servants of the 
 railroad corporation." Smith v. Boston & Maine R. R., 120 
 Mass., 490. Sept., 1876. 
 
 Mr. Geo. E. Harris, of the Washington, D. C, Bar, has made 
 a classification and a brief digest of the decisions upon the 
 Sunday laws in the United States, filling an octavo volume of 
 over three hundred pages. Published by The Lawyers Co-oper- 
 ative Pub. Co., Rochester, N. Y., 1892. 
 
294 Unteitable Theories. 
 
 or for Christian reason thereof ; would be led to sup- 
 pose that the government, if Christian at all, is so only 
 in name. Hence we think it is that w'e find in the 
 latest writings of some jurists and in the recent deci- 
 sions of some of the courts, affirmations that our civil 
 government is Christian, but connected with these af- 
 firmations, others which imply that it is so in nothing 
 but the name. Hence also the growing tendency to 
 give up the name. If it be Christain only in name, 
 that were better given up, for an empty name is a pre- 
 tence that there is something where there is nothing. 
 In the second place, co-operating with this cause of 
 the impression, there may be a visionary theor}' of the 
 ideal government, — the theory that in such a govern- 
 ment there would be no trace of a religious character, 
 as in an ideal church there would be no trace of a secu- 
 lar character. A person of an ingenuous mind can 
 hardly help believing that the ideal ought to be realized, 
 and he would very naturally take the progress which 
 has been made in the enlargement of the boundaries of 
 personal liberty as having for its end the realization of 
 that ideal. But if the correctness of the ideal should 
 be conceded, as a matter of theor}^, yet it would be 
 true in this case, as in all others, that the realization 
 of the ideal is impossible in this world. That ideal 
 would be like the point, the line, and the surface in 
 mathematics ; available for abstract processes but im- 
 possible of realization in material things. It would 
 be in politics, analogous to Sir William Thomson's 
 theory of matter in phy.sics, that it is " the rotating 
 portions of a perfect fluid, which continuously fills 
 space," a beautiful theory as an abstraction, but liable 
 to this practical objection that a perfect fluid, one that 
 is absolutely without viscosity, and free from internal 
 
Uiit enable Theories. 295 
 
 friction, cannot be conceived of as existing. So in 
 this case, the ideal State cannot exist or even be con- 
 ceived of as existing. It would be, in the nature of 
 things, impossible, as we have shown, to keep the reli- 
 gion of a people from entering into their civil institu- 
 tions. This ideal, as such, ma}- be a harmless fancy, 
 but to attempt to carr}- it out in the practical affairs of 
 the world would be injurious, as it is always injurious 
 to attempt to conduct the affairs of life upon an impos- 
 sible hypothesis. 
 
 Whatever maj' be the natural histor}' of the impres- 
 sion in question, there can be no doubt that it is becom- 
 ing prevalent among writers of eminence ; and that 
 some of our courts, or rather, perhaps, some of our 
 legislatures, for the courts have been governed gener- 
 ally in their decisions by the letter and intent of the 
 statutes, have shown a disposition to establish it in the 
 law of the land. 
 
 The Rev. M. B. Anderson, D. D., in a paper read 
 before the Social Science Association, at Saratoga 
 Springs, September, 1879, on the Relations of Christi- 
 anity to the Common Laic, and published in the Albany 
 Laiv Journal of October 4th and i ith of that year, saj's : 
 ' ' The common law has taken account of Christianity 
 as a positive system for the purpose of punishing blas- 
 phemy and malicious ridicule of Christian doctrines 
 and rites. The common law has recognized these as 
 crimes against the State, and not as sins against God. 
 It has regarded them in the light of moral nuisances, 
 against which the believers in Christianity have a right 
 to be protected. . . . That portion of the common 
 law which makes blasphemy, Sunday desecration, the 
 disturbance of religious assemblies, indictable offences, 
 seems naturally to fall into the class of laws which pro- 
 
296 Untenable Theories. 
 
 vides for the community protection against nuisances 
 whether physical or moral in their nature." 
 
 Judge Cooley, in his Coisiihitional Limitations (pp. 
 588, 589), says: "It is frequently said that Christi- 
 anit}^ is part of the law of the land. In a certain sense 
 and for certain purposes this is true. The best features 
 of the common law, and especially those which regard 
 the family and social relations, which compel the parent 
 to support the child, the husband to support the wife ; 
 which makes the marriage tie permanent and forbids 
 polygamy ; if not derived from, have at least been im- 
 proved and strengthened by the prevailing religion and 
 the teachings of its sacred book. But the law does not 
 attempt to enforce the precepts of Christianity on the 
 ground of their sacred character or divine origin. 
 Christianity is not a part of the law of the 
 land in any sense which entitles the courts to take no- 
 tice of and base their judgments upon it, except so far 
 as they can find that its precepts and principles have 
 been incorporated in and made a component part of the 
 positive law of the State." 
 
 He questions the correctness of Justice Story's state- 
 ment in the Girard will case, that Christianity is a 
 part of the common law in the sense that ' ' its divine 
 origin and truth are admitted, and therefore that it is 
 not to be maliciously and openly reviled and blasphemed 
 against to the annoyance of believers or to the injury 
 of the public," saying, "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 jus- 
 tified." He shows that the punishment of blasphemy 
 is capable of being otherwise justified. He says : 
 "Blasphemy has been defined as consisting in speak- 
 
Utitenable Theories. 297 
 
 ing evil of the Deity, with an impious purpose to 
 derogate from the Divine majesty and to alienate the 
 minds of others from the love and reverence of God. 
 It is purposely using words concerning the Supreme 
 Being calculated and designed to impair and destroy 
 the reverence, respect, and confidence due him, as the 
 intelligent Creator, Governor, and Judge of the world. 
 It embraces the idea of detraction as regards the char- 
 acter and attributes of God, as calumny usually car- 
 ries the same idea when applied to an individual. It 
 is a wilful and malicious attempt to lessen men's rev- 
 erence of God by denying his existence or his attri- 
 butes as an intelligent Creator, Governor, and Judge 
 of men, and to prevent their having confidence in him 
 as such. Contumelious reproaches and profane ridi- 
 cule of Christ or of the Holy Scriptures have the same 
 evil effect in sapping the foundations of society and 
 of public order, and are classed under the same head " 
 
 (PP- 589.590). 
 
 His objection to Justice Story's statement seems to be 
 that the common law cannot properly admit the divine 
 origin and truth of the Christian religion, nor base any 
 action on the admission. It is clear enough that blas- 
 phemy may be punished as sapping the foundations of 
 public order, so long as the people believe in the divine 
 origin and truth of Christianity. It is not so clear how 
 it can be punished as sapping the foundations of society, 
 unless the divine origin and truth of Christianit}' be 
 admitted. In the one case, onl)^ the fact that such is 
 the belief of the people is admitted. In the other, that 
 belief is admitted to be true. Upon the question, what 
 the decision of a court, under the statute and common 
 law, ought to be, we should be verj^ far from setting up 
 an opinion of our own, against that of one who isprob- 
 
298 Untenable Theories. 
 
 ably the most eminent living jurist in the land ; but 
 our question is, what ought the statute to be ; would a 
 statute, having a positive Christian character, be funda- 
 mentally wrong ; and would the courts be bound to 
 declare it so to be. Upon this question, we flatter our- 
 selves that we shall be in agreement with Judge Cooley. 
 He says : ' ' But while thus careful to protect and defend 
 religious freedom and equality, the American Constitu- 
 tions contain no provisions which prohibit the authori- 
 ties from such solemn recognition of a superintending 
 Providence, in public transactions and exercises, as the 
 general religious sentiment of mankind inspires, and 
 as seems meet and proper in finite and dependent beings. 
 Whatever may be the shades of religious belief, all 
 must acknowledge the fitness of recognizing, in impor- 
 tant human affairs, the superintending care and con- 
 trol of the great Governor of the Universe ; and of 
 acknowledging, with thanksgiving, his boundless favors 
 or bowing in contrition when visited with the penalties 
 of his broken laws. No principal of Constituti'onal law 
 is violated, when thanksgiving or fast days are ap- 
 pointed ; when chaplains are designated for the army 
 and navy ; when legislative sessions are opened with 
 prayer or the reading of the Scriptures ; or when reli- 
 gious teaching is encouraged, by a general exemption 
 of houses of religious worship from taxation for the 
 support of the State government." 
 
 He goes on, however, to say that " This public recog- 
 nition of religious worship, however, is not based en- 
 tirely, perhaps not even mainly, upon a sense of what 
 is due to the Supreme Being himself, as the author of 
 all good, and of all law ; but the same reason of State 
 policy, which induces the government to aid institutions 
 of charity and seminaries of instruction, will incline it 
 
Untenable Theories. 299 
 
 also to foster religious worship and religious institu- 
 tions, as conservators of public morals, and valuable, 
 if not indispensable, assistants in the preservation of 
 the public order. ' ' ' 
 
 It is ver}' plain that he regards the public recognition 
 of religious worship, in the particular acts he has men- 
 tioned, as based in part upon a sense of what is due the 
 Supreme Being ; that is, upon a purel}- religious consid- 
 eration, his only question being, whether it is entirely, 
 or even mainly, so based. This being conceded, it is 
 difficult to see how the government can be justified in 
 basing an action upon "the general religious senti- 
 ments of mankind," or upon a recognition of the truth 
 of bare theism, and not be justified in basing an action 
 on the general Christian sentiment of the people, or 
 upon a recognition of the truth of Christianity ; for the 
 ground of the justification, in the latter case, is pre- 
 cisely the same that it is in the former ; and, although 
 not so extensive, yet is so ample, that if accepted as a 
 sufficient basis of action in the one case, it cannot be 
 rejected as insufficient in the other. Now if it is not a 
 violation of any principle of Constitutional law for one 
 department of the government — the executive — to base 
 an action upon the assumption of the truth of the 
 Christian religion, or of the fact that the people believe 
 it to be true, it cannot be a violation of any such princi- 
 ple for the other departments of the government — the 
 legislative and judicial — to do so. Whether with or 
 without statute, therefore, the government is positively 
 Christian. It may, in all its departments, base an ac- 
 tion on purely Christian reasons. Not only may it do 
 so, but there are cases, as we shall presently show, in 
 which it cannot help doing so. 
 
 ' Ibid., pp. 587, 588. 
 
300 Sunday Laws. 
 
 CHAPTER X. 
 
 SUNDAY LAWS, OPINIONS OF THE COURTS. 
 
 The older statutes and the present statutes of the 
 older States prohibit all sport, worldly labor, work, or 
 business, excepting works of necessity and mercy, on 
 the Lord's Daj^ ; thus being based in part upon the con- 
 sideration of the sanctity of the day. Some of the 
 newer statutes are so framed as to exclude that consid- 
 eration entirely, and recognize only the secular basis of 
 the law ; for example, the statute of Illinois on Sunday 
 is as follows, viz. : 
 
 "261. Whoever disturbs the peace and good order 
 of society by labor (works of necessity and charity ex- 
 cepted) or by any amusement, or diversion, on Sunday, 
 shall be fined not exceeding $25. 
 
 " 262. Whoever shall be guilty of any noise, rout, or 
 amusement, on the first day of the week, called Sun- 
 day, whereby the peace of any private family maj^ be 
 disturbed, shall be fined not exceeding $25." 
 
 Under such a statute any acts, not otherwise prohib- 
 ited, will be allowable which do not disturb the peace 
 and good order of society, or the peace of a private 
 family. Contracts and notes made on Sunday will be 
 valid. 
 
 The Supreme Court of Illinois in the case of Rich- 
 mond V. Moore, 107 Freeman, p. 429, October, 1883, 
 Walker delivering the opinion, affirmed the validity of 
 a contract made on Sunday. Moore having engaged 
 Richmond to sail the vessel Scotia during the season of 
 1880, and having prevented Richmond from fulfilling 
 the contract, the latter brought suit for damages. Moore 
 pleaded in defence that the contract having been made 
 
Opinions of the Courts. 301 
 
 on Sunday was void. The Court said : "... The 
 common law does not prohibit contracts on Sunday. 
 This is the doctrine of all decisions of English and 
 American courts, with not more than one or two ex- 
 ceptions. The doctrine that contracts made on Sun- 
 day are void depends therefore alone on statutory enact- 
 ments. And in the various States of the Union the 
 statutes vary in language or substance, and the deci- 
 sions of different courts have been based on the phrase- 
 ology of their several statutes. The common law, on 
 the other hand, seems always to have prohibited all 
 judicial decisions on Sunday. The 29 Charles 11, C. 7, 
 p. 257, seems to be the basis of the enactments of the 
 various States of the Union. It is this : ' That no 
 tradesman, artificer, workman, laborer, or other person, 
 whatsoever, shall do or exercise any worldl}^ labor, 
 business, or work on the Lord's day.' It contains ex- 
 ceptions, of which are works of necessit}^ and charity. 
 A mere glance at that and our statute will show that 
 they are materially different. That prohibits labor and 
 business ; ours only prohibits labor or amusement that 
 disturbs the peace and good order of society. 
 The British statute makes the mere act of labor or busi- 
 ness penal. . . . Our statute by its ver}' terms is 
 for the preservation of the peace and good order of .so- 
 ciet}' from disturbance. It is not, nor can it be held to 
 be, the purpose of the statute to compel the perform- 
 ance of a religious dutj', however necessary to the fu- 
 ture welfare of the individual failing to perform it. The 
 object of the statute is to protect persons, keeping the 
 Christian Sabbath as a day of holiness, from disturb- 
 ance in that observance, and not to compel the per- 
 formance of a religious duty, as such. That is no part 
 of governmental duty under our statutes. The spirit- 
 
302 Sunday Lazvs. 
 
 ual welfare of our people is left entirely to the hierarchy 
 of the various churches. The government protects all 
 alike in their religious iDcliefs and unbelief. It is no 
 part of the function of our government to prescribe and 
 enforce religious tenets. The great purpose of the for- 
 mation of our system of government is to protect the 
 people in the enjoyment of their temporal and spiritual 
 rights, and to prohibit crime, vice, and wrong, to any 
 portion of the community ; and to pass and enforce 
 laws for the promotion of the temporal interests of the 
 people, and as far as possible secure their temporal wel- 
 fare and happiness. Although it is no part of the 
 functions of our government to propagate religion and 
 to enforce its tenets, when the great body of the peo- 
 ple are Christians in fact or sentiment, our laws and our 
 institutions must necessarily be based upon and embody 
 the teachings of the Redeemer of mankind. It is im- 
 possible that it should be otherwise. And in this sense 
 and to this extent our civilization and our institutions 
 are emphatically Christian ; but not for the purpose of 
 compelling men to embrace particular doctrines or creeds 
 of any church, or to support one or another denomina- 
 tion by public burdens ; but simply to afford protection 
 to all in the enjoyment of their belief or unbelief. It 
 may be that in suppressing crime, vice, and immorality 
 it may incidentally enforce religious doctrines. The 
 Christian religion forbids all crime, vice, and immoral- 
 ity, and good government equally requires their sup- 
 pression. They are suppressed by the government 
 because required for the general welfare ; not because 
 they are religious doctrines." 
 
 The Supreme Court of Ohio in the case of Bloom v. 
 Richards, 2, Ohio State Reports, 38, December, 1853, 
 A. G. Thurman delivering the opinion, after noticing 
 
opinions of the Courts. 303 
 
 the fact that Christianity was part of the common law 
 
 of England, said : "But the Constitution of Ohio hav- 
 ing declared that ' All men have a natural and inde- 
 feasible right to worship Almighty God according to 
 the dictates of conscience,' ... it follows that 
 neither Christianity, nor any other S5'stem of religion, 
 is a part of the law of this State. We have no union 
 of Church and State, nor has our government ever been 
 vested with authoritj^ to enforce any religious obser- 
 vance simply because it is religious. . . . We are 
 to regard the statute under consideration as a mere mu- 
 nicipal or police regulation whose validity is neither 
 strengthened or weakened by the fact that the day it 
 enjoins is the Sabbath da}-." 
 
 In McGatrick v. Wasson, 4 Ohio State Reports, 571, 
 572, the same court two j-ears later said, by the same 
 justice: "... But was it a work of necessity 
 [Shipping cargo on Sunday when navigation was about 
 to close] within the meaning of the act ? In answering 
 this question we must always keep in mind that it is 
 no part of the object of the act to enforce the observ- 
 ance of a religious duty. The act does not to any 
 extent rest upon the ground that it is immoral or irreli- 
 gious to labor on the Sabbath any more than upon any 
 other day. It simply prescribes a day of rest, from 
 motives of public policy, and as a civil regulation ; and 
 as the prohibition itself is founded on principles of pol- 
 ic}', upon the same principles certain exceptions are 
 made, among which are ' works of necessity and char- 
 ity.' In saying this I do not mean to intimate that 
 religion prohibits works of necessity or charity on the 
 Sabbath, but merely to show that the principles upon 
 which our statute rests are wholly secular, and that 
 they are none the less so because they may happen to 
 
304 Sunday Laws. 
 
 concur with the dictates of religion. Thus the day of 
 rest prescribed by the statute is the Christian Sabbath ; 
 yet so entirely does the act rest upon grounds of public 
 policy that, as was said in Bloom v. Richards, 2 O. S. 
 R-. 39 1 > 392, it would be equally Constitutional and 
 obligatory did it name any other day ; and it derives 
 none of its force from the fact that the day of rest is 
 Sunday. For, as was also said in that case, no power 
 is possessed by the legislature over things spiritual, but 
 only over things temporal ; no power whatever to en- 
 force the performance of religious duties simply because 
 they are religious, but only within the limits of the 
 Constitution, to maintain justice and promote the pub- 
 lic welfare. ..." 
 
 A member of a religious society which kept Saturday 
 sacred as a day of rest was indicted in Pennsylvania 
 for laboring on Sunday and convicted. In this case, 
 Specht V. Commonwealth, 8 Penn.,312, the Supreme 
 Court of that State said : 
 
 ' ' Though it may have been a motive of the law- 
 makers to prohibit the profanation of a day regarded 
 by them as sacred, and certainly there are expressions 
 used in the statute that justify this conclusion, it is not 
 perceived how this fact can vitally affect the question 
 at issue. All agree that to the well-being of society 
 periods of rest are absolutely necessary. To be pro- 
 ductive of the required advantage these periods must 
 occur at stated intervals, so that the mass of which the 
 community is composed may enjoy a respite from labor 
 at the same time. They may be established by common 
 consent ; or, as is conceded, the legislative power of 
 the State may without impropriety interfere to fix the 
 time of their stated return, and enforce the observance 
 of the direction. When this happens, some one day 
 
Blasphemy. 305 
 
 must be selected, and it has been said the round of the 
 week presents none which being preferred might not 
 be regarded as favoring some one of the numerous re- 
 ligious sects into which mankind are divided. In a 
 Christian community, where a very large majority of 
 the people celebrate the first day of the week as their 
 chosen period of rest from labor, it is not surprising 
 that that day received the legislative sanction ; and as 
 it is also devoted to religious observances we are pre- 
 pared to estimate the reasons why the statute should 
 speak of it as the Lord's day, and denominate the in- 
 fraction of its legalized rest, a profanation. Yet this 
 does not change the character of the enactment. It is 
 still essentiall}' but a civil regulation, made for the 
 government of man as a member of society, and obedi- 
 ence to it maj^ properly be enforced b}^ penal sanctions." 
 Justice Coulter dissented from the grounds assumed 
 for the Constitutionality of the act of the Assembly, 
 holding "It to be Constitutional because it guarded 
 the Christian Sabbath from profanation, and in the 
 language of the Act, prohibited work or worldly em- 
 plo3'menton the Lord's day, commonl}' called Sunday ; 
 and not because of the mere usefulness of the day as 
 a day of rest and cessation from worldly labor." 
 
 CHAPTER XI. 
 
 BI^ASPHEMY. 
 
 Judge Cooley says : " But it does not follow, be- 
 cause blasphemy is punishable as a crime, that there- 
 fore one is not at libertj- to di.spute and argue against 
 the truth of the Christian religion, or of any accepted 
 
3o6 Blasphemy. 
 
 dogma. Its ' divine origin and truth ' are not so far 
 admitted in the law as to preclude their being contro- 
 verted. To forbid ' discussion on this subject, except 
 by the various sects of believers, would be to abridge 
 the liberty of speech and of the press in a point which 
 with many would be regarded as most important of all. 
 Blasphemy implies something more than a denial of 
 any of the truths of religion, even of the highest and 
 most vital. A bad motive must exist ; there must be 
 a wilful and malicious attempt to lessen men's rever- 
 ence for the Deity or for the accepted religion. But 
 outside of such wilful and malicious attempt, there is 
 a broad field for candid investigation and discussion, 
 which is as much open to the Jew and Mahometan as 
 to the professors of the Christian faith. No author or 
 printer who fairly and conscientiousl}- promulgates the 
 opinions, with whose truths he is impressed, for the 
 benefit of others, is answerable as a criminal. A ma- 
 licious and mischievous intention is in such a case the 
 broad boundary between right and wrong ; it is to be 
 collected from the ofiensive levity, scurrilous and op- 
 probrious language, and other circumstances, whether 
 the act of the party was malicious. Updegraph v. 
 Commonwealth, ii S. & R., 394. Legal blasphemy 
 implies that the words were uttered in a wanton man- 
 ner " with a wicked and malicious disposition, and not 
 in a serious discussion upon any controverted point in 
 religion." People z'. Ruggles, 8 Johns, 293, />^r Kent, 
 Ch. J. The courts have always been careful in admin- 
 istering the law to say that they did not intend to in- 
 clude in blasphemy disputes between learned men upon 
 particular controverted points. The Constitutional 
 provisions for the protection of religious liberty not 
 onl}^ include within their protecting power all senti- 
 
The State v. Chandler. 307 
 
 merits and professions concerning or upon the subject 
 of religion, but they guarantee to every one a perfect 
 right to form and promulgate such opinions and doc- 
 trines upon religious matters, and in relation to tha 
 existence, power, attributes, and providence of a Su- 
 preme Being, as to himself shall seem reasonable and 
 correct. In doing this he acts under an awful respon- 
 sibilit}^, but it is not to any human tribunal." ' 
 
 The Supreme Court of Delaware, in the case of the 
 State V. Chandler, 2 Harrington, 553, said : " The 
 common law took no cognizance of offences against 
 God, onl}^ when by their inevitable effect they became 
 offences against man and his temporal security. It 
 was never pretended by an}' common law court that he 
 who did not love his neighbor as himself, or who did 
 not visit the fatherless and widows in their affliction, 
 and keep himself unspotted from the world, was there- 
 fore indictable at common law. The same is true of 
 the laws of God, as revealed in the Old Testament. 
 No lawyer ever framed an indictment in a common law 
 court charging that the defendant did not honor his 
 father and mother, or merely coveted his neighbor's 
 property. True, there are many instances in which 
 the divine precepts have been enacted into statutes, 
 and in case of violation of these or of any divine man- 
 date which had been adopted into the common law, 
 because the peace and safety of civil society could not 
 be secured without it, the common law courts become 
 the avengers of the public wrong. ... It [the 
 common law] became the preserver of the peace and 
 good order of society throughout the land, and noticed 
 what was the religion of the people to the end that it 
 might preserve that peace and good order. It sus- 
 ' Constitutional Limitations, pp. 591, 592. 
 
3o8 Christian Character Remains. 
 
 tained indictments for wantonly and maliciously blas- 
 pheming God, or the founder of the Christian religion, 
 because such blasphemy tended to subvert the peace 
 and good order which it was bound to protect. But it 
 sustained no indictment for a mere sin against God, as 
 a common law offence, where these objects of its care 
 were not affected. It did not look to the condition of 
 man in another world to punish, and thus prepare him 
 for it in this. That was the loathsome duty of some 
 ecclesiastical commissioner, some fiery bigot or Star 
 Chamber judge. While these punished blasphemy as 
 a spiritual offence, pro salute animis, the common law 
 only punished it when it tended to create a riot, or 
 break the peace, or subvert the very foundations on 
 which civil society rested, , . ," 
 
 CHAPTER XII. 
 
 CHRISTIAN CHARACTER REMAINS. 
 
 The principles set forth in these decisions are in the 
 main unquestionably correct. It is right that the gov- 
 ernment should carefully abstain from inflicting a pen- 
 alty for an offence which is against God only, and 
 which does not at the same time threaten the peace 
 and good order of society ; right, also, that it should 
 take pains to make it understood, when the offence is 
 against both God and man, that it punishes only for 
 the offence against man. But the assinnption which 
 seems to be made in some of these decisions and in the 
 legislation upon which they are based, that the govern- 
 ment in doing this has acted upon some principle 
 which requires the removal of every vestige of Chris- 
 
Christian Character Remai^is. 309 
 
 tiau basis, motive, and purpose from its laws, is un- 
 warranted. Such removal is not accomplished even 
 when the statute on Sunda}- observance is so framed 
 that the penalty for its violation can be inflicted only 
 for the disturbance of the peace and good order of so- 
 ciety. Besides, the making of laws with penalties 
 attached to them does not cover the whole field of 
 governmental action. There is a large scope in which 
 legislation, not penal, may be rightly determined by 
 Christian considerations. The assumption in question 
 is improbable, unreasonable, and inconsistent with 
 facts. 
 
 ist. It might be probable enough that a great body 
 of Christian people, as they become enlightened and 
 imbued with the spirit of their master, would abstain 
 from requiring the unbeliever to observe a religious 
 ordinance for religious reasons ; but when they have 
 the power in their own hands, when their religion is 
 already incorporated with their civil institutions, is it 
 probable that, without any known or possible motive, 
 the}' would go beyond that, cast their religion entirel}- 
 out of their civil institutions, and exclude every Chris- 
 tian motive, reason, and consideration from their action 
 as a body politic ? 
 
 2d. It is unreasonable. A father might very well 
 make it understood that a waif, happening to be a 
 member of the family, was not required to perform 
 certain acts of respect and obedience as 2i filial AvXy, but 
 only for the sake of the good order of the family. 
 Should the father take his journey into a far country, 
 leaving the management of his estate to his children 
 until his return, the children likewise might well make 
 it understood that the waif would not be required to 
 do as a. filial duty anything that the father had required 
 
3IO Christian Character Reinai^is. 
 
 to be done, but only as obligatory for the good order 
 of the family. It would be very strange if any one 
 of the children should argue that, by so doing, they 
 had divested the regulations prescribed for the govern- 
 ment of the family of all fatherly authority, and that 
 those regulations were binding, and ought to be recog- 
 nized as binding upon themselves, not as a filial duty, 
 but only for the good order of the family. For the 
 discrimination in behalf of the waif there is reason 
 and motive enough ; for the extension of it to the chil- 
 dren there is neither reason nor motive, and the hypoth- 
 esis that such extension of it is a necessary consequence 
 of making it in behalf of the waif is absurd. 
 
 Again, it is unreasonable because such a divorce of 
 co-existing motives as is supposed in the case is unnat- 
 ural. When two different motives are known to exist 
 in the same breast at the same time, both of which 
 may prompt to the same action, it is hardly reasonable 
 to afiirm that the act has been produced by either 
 motive, to the entire exclusion of the other. A man, 
 looking forward to an action in which a good and a 
 bad motive may be combined, may desire and purpose 
 to suppress the bad and act only from the good motive. 
 But looking back at the action done, it would hardly 
 be proper for him to afiirm as a matter of unquestion- 
 able fact that the bad motive had been entirely in- 
 operative. Much more difficult and improbable would 
 the divorce of the motives be if both were of such 
 character as to receive the heartiest approval of his 
 conscience. When a man relieves the sufferings and 
 saves the life of a sick horse, his pecuniary interests 
 and his humane feelings will both combine in prompt- 
 ing him to the act, and the assumption must be that 
 both were operative in what he did. If he were a 
 
Sunday Lazvs have a Christian Basis. 3 1 1 
 
 member of a large association which employed many 
 horses in its business, and all the members were pos- 
 sessed of the like humane feelings, then the humane 
 motive must be presumed to have entered, with the 
 economic motive, into every rule of the company re- 
 garding the life of the beast. Indeed if the animals 
 were cattle instead of horses, and the association a 
 slaughtering company whose object it was to take 
 instead of to save the life of the animals, we should 
 still insist that humanity did in some degree enter into 
 the regulations prescribed for the business. It is as 
 unreasonable to suppose that Christian motives have 
 been entirely excluded from the legislation of a Chris- 
 tian people on subjects that have both a religious and 
 secular character, as to suppose that humane motives 
 have been entirely excluded from the legislation of a 
 humane people against cruelty to animals. It is verj- 
 plain that this supposition springs from an erroneous 
 presupposition as to the nature of our political insti- 
 tutions. 
 
 CHAPTER XIII. 
 
 SUNDAY LAWS HAVE A CHRISTIAN BASIS. 
 
 Judge Cooley in his Constitutional Limitations ( p. 
 594) says : ' ' The laws which prohibit the ordinary 
 employments on Sunday are .... based upon 
 the demonstrations of experience that one day's rest 
 in seven is needful to recuperate the exhausted energies 
 of body and mind." And the Supreme Courts of Ohio 
 and Illinois in the decisions referred to make the same 
 assumption. When and to whom was the demonstra- 
 tion of experience made ? Not to the ancient Greeks, 
 
312 Sunday Laws have a Christian Basis. 
 
 with all their speculative penetration ; not to the an- 
 cient Romans, with all their practical wisdom ; not to 
 the millions of China, nor to the various peoples of 
 India, during all the ages of their civilization. France 
 during the revolution of 1793 substituted one day in 
 ten, for the one in seven, as the day of rest, and the 
 failure of that experiment may have tended to confirm 
 the fitness of the old order to the nature of man. But 
 the fitness of one day in seven rather than one day in 
 ten was no discovery of man. It may be admitted that 
 the demonstration of experience does justify the ac- 
 ceptance of one day in seven, but to say that the fitness 
 of one day's rest in seven was first demonstrated by 
 experience, and that then the Sabbatic legislation was 
 based on the demonstration, is to give an untrue history 
 of that legislation. The actual historical order was : 
 first, the divine institution, or purported divine institu- 
 tion ; then legislation based upon that institution, and 
 then the confirmation of experience. 
 
 Again. Why was Sunday and not Wednesday, or 
 some other day of the w^eek, made the day of rest? 
 The Supreme Court of Ohio in the case of Bloom v. 
 Richards, already referred to, says : " We are to regard 
 the statute under consideration as a mere municipal or 
 police regulation whose authority is neither strength- 
 ened nor weakened by the fact that the day of rest it 
 enjoins is the Sabbath day. . . . Regarded merel)^ 
 as an exertion of legislative authority, the act would 
 have had neither more nor less validity had any other 
 day been adopted." ' 
 
 The Supreme Court of Illinois in the case already 
 referred to, says : ' ' Considerations of public policy de- 
 manding such periods of rest, and the great body of 
 
 ' 2 Ohio State Reports, 392. 
 
Sunday Laws have a Christian Basis. 3 1 3 
 
 Christians holding the observance of the Sabbath to be 
 a religiousduty , it is natural that the law-making power, 
 as a matter of public policy, should specify Sundaj^ as 
 the day of rest ; thereb)^ conforming public policy to 
 religious sentiment. But that Sunday is kept as a holy 
 day by most Christian denominations neither adds to 
 nor detracts from the validity of the enactment. Had 
 any other day of the week been selected the enactment 
 would have had the same binding force." ' 
 
 If these statements were not intended to affirm the 
 identical proposition, that a law, if made by the con- 
 stituted authorit}^ would be a law, they were intended 
 to affirm that there is a something, called the State, 
 separate from the People, which is governed in all its 
 action by nothing but considerations of public policy, 
 and that this something, though existing in a country 
 in which "The will of the people is the law of the 
 land," is so totally destitute of all religious character 
 that the particular day appointed as the day of rest 
 would have been to it a matter of utter indifference. 
 So far as its own character and the considerations by 
 which it is to be governed are concerned, it might just 
 as well have appointed any other day than Sunday.^ 
 It has been said that if the people of this country were 
 Mohammedan, the legal day of rest would have been 
 Friday, which, it is alleged, proves that the State is, 
 and must be indifferent to all religious consider- 
 ations in the appointment of the day. If it did prove 
 
 ' 107 Illinois Reports, Freeman, p. 437. 
 
 * Here we have mysticism employing its phantasm for the sup- 
 port of the anti-Christian theory of the State, as we had it before 
 (p. 237) employing a like creation of its fancy for the support 
 of the Christian theory. There the State was a person. Here 
 it is a nondescript, undefined something. 
 
3 1 4 Siuiday Laws have a Christian Basis. 
 
 any such thing, it would be that the State, as an ab- 
 straction, is thus indifferent ; but with such a State, — 
 an imaginary State, not composed of people, we have 
 nothing to do. The fact adduced proves, however, the 
 very opposite, viz.: that the religious reasons which 
 induce the people to observe the day, enter of necessity 
 as an effective and determining factor into the legisla- 
 tion prescribing and regulating the observance. 
 
 If, upon my returning from the field, after a hard 
 day's work, weary almost to fainting, and very thirsty, 
 I should find on my table a glass of wine and a glass 
 of water, and I should choose the wine, it would be 
 preposterous for me to say that I was determined in my 
 choice solely by the desire to quench my thirst, and 
 not at all by ni}^ desire for the invigorating influence of 
 the wine. It is no less preposterous to say, when the 
 State chooses the Lord's Day as the legal day of rest, 
 that it was determined in its choice wholly by temporal 
 and secular considerations, and not at all by religious 
 considerations. 
 
 It is beyond all question that part of the law appointing 
 a weekly day of rest — that part which determines that 
 it shall be one da)' in seven and not one day in six, or 
 eight, or ten, and that part which makes the Lord's 
 Day and not some other day the daj' of rest — was deter- 
 mined by Christian considerations, and by Christian 
 considerations alone. The choice of the people had 
 been determined b}' those considerations, and it was 
 the will of the people that gave this feature to the law. 
 
 It requires a great leap in logic to assume that the 
 State in exempting the unbeliever from all obligation to 
 observe Sunday as a religious ordinance, and inflicting 
 penalty only w^hen the non-observance is of such a char- 
 acter as to disturb the peace and good order of society, 
 
Sunday Laws have a Christian Basis. 3 1 5 
 
 has thereby removed ever}- Christian consideration from 
 the basis of the law and proclaimed itself in all things, 
 non-Christian. The very statute which Mr. Justice 
 Thurman was construing in Bloom v. Richards, saying 
 that its prohibition in relation to Sunday was " a mere 
 civil regulation," provides in its first section that " if 
 any person shall be found on the first daj- of the week, 
 commonly called Sunday, sporting, fishing, shooting, 
 or at common labor," he shall be punished. Surely 
 fishing would be no offence if the law had been intended 
 to be only a civil regulation to preser\-e the peace and 
 good order of society. Mr. \V. M. Ramse\-, of counsel 
 for the plaintiff" in Minor <?/«/. v. The Board of Education 
 of Cincinnati, in alluding to this point in the decision 
 verj- aptly said : " A quiet seat by the bank of a pleas- 
 ant stream with a fishing-rod would be an admirable 
 disposition of one's self for a day of rest and reinvigora- 
 tion after six days of toil." 
 
 If we look at the statutes of Ohio and Illinois respec- 
 tivel)-, as a whole, we shall find in them ample ground 
 for the opinion that the legislatures of those States 
 intended, in the form they gave to their penal Sunday 
 statutes, to restrict the infliction of the penalty- to the 
 offence against man, and did not intend to remove ever}- 
 Christian consideration from the laws of the State. 
 The statutes of Ohio which were in force when the 
 decision in .Bloom :•. Richards was rendered provided 
 that the family Bible should be exempt from execution. 
 The Apprentice law bound the master to give to the 
 apprentice at the close of his term a new Bible. The 
 statute regulating county jails required that each pris- 
 oner be furnished with a Bible. The Penitentiar\- act 
 required the warden of the penitentiary' to furnish each 
 criminal '^•ith a Bible. It required that a Chaplain be 
 
J 
 
 1 6 Sunday Laws have a Christian Basis. 
 
 employed, that he " shall be a minister of the Gospel, 
 in good standing in some one of the denominations of 
 this State" ; that he " shall devote his whole time and 
 ability to the welfare of the convicts ' ' ; that he shall 
 hold his office for one j^ear, and that he shall receive an 
 annual salary. 
 
 The statutes of Illinois, S. 31, C. 108, relating to 
 the penitentiary, which were in force when the decision 
 of the Supreme Court in Richmond v. Moore was ren- 
 dered, provided that ' ' Facilities for attending religious 
 services regularly on Sundays shall be afforded each 
 convict so far as the same can be done judiciously, and 
 upon no pretext shall a convict, on contract, be required 
 to labor on Sundaj^ ; nor shall any convict be required 
 to do any other than necessary labor for the State on 
 that day." 
 
 Section 44 provided ' ' That no labor shall be per- 
 formed by the convicts in the penitentiary of this State 
 in any stone quarry or other place outside the walls of 
 the penitentiar>\ " 
 
 If there is any place in the world where labor on 
 Sunday will not disturb the peace and good order of 
 society, is it not inside the walls of a penitentiar}- ? 
 Surely it cannot be maintained that this regulation w^as 
 intended to be purely civil, merelj' to preserve the good 
 order of society from disturbance, and is destitute of 
 all Christian character. Can it be truthfully said that 
 it was based upon purely economical reasons derived 
 from the demonstrations of experience, and to no degree 
 and in no respect whatever upon the Christian reason 
 derived from the convictions of the people ? Can it be 
 maintained that purely secular and economical consid- 
 erations form the basis of the statute which provides for 
 the appointment of a chaplain for the penitentiary, and 
 
Sicnday in the ConsiittUion. 3 1 7 
 
 for the payment of his salarj-, and which requires him 
 " to perform religious services in the penitentiar}-, 
 . to visit the convicts in their cells for the pur- 
 pose of giving them moral and religious instruction," 
 and ' ' to furnish at the expense of the State a Bible to 
 each convict ' ' ? 
 
 CHAPTER XIV. 
 
 SUNDAY IN THE CONSTITUTION OF THE UNITED 
 STATES. 
 
 The 7th Section of Article I. of the Constitution of 
 the United States contains the following provision, viz. : 
 
 "If an^- Bill shall not be returned by the President 
 within ten days (Sundaj-s excepted) after it shall have 
 been presented to him, the same shall be a law, in like 
 manner as if he had signed it, unless the Congress by 
 their adjournment prevent its return, in which case it 
 shall not be a law." 
 
 This exemption of the President from the necessity 
 of studying the merits of a bill on Sunda}- surely could 
 not have been based solely on a regard for the peace 
 and good order of society, and in no degree whatever 
 on a respect for the religious character of the day. 
 How could such study in the privac\- of the executive 
 office disturb that peace and good order ? 
 
 In view of this exemption and the ground upon which 
 it was undoubtedly based, it cannot be maintained that 
 President Lincoln either violated the spirit or .strained 
 the letter of the Constitution when he issued the fol- 
 lowing order, viz. : 
 
3 1 8 Stmday in the Exposition. 
 
 " Executive Mansion, 
 "Washington, Nov. 15, 1862. 
 
 "The President, Commander-in-Chief of the Army 
 and Nav}', desires and enjoins the orderly observance 
 of the Sabbath by the officers and men in the miHtary 
 and naval service. The importance for man and beast 
 of the prescribed weekly rest, the sacred rights of a 
 Christian people, and a due regard for the Divine will, 
 demand that Sunday labor in the Armj^ and Navy be 
 reduced to the measure of strict necessity. The disci- 
 pline and character of the national forces should 
 not suffer, nor the cause they defend be imperilled by 
 the profanation of the day or name of the Most 
 High. ..." 
 
 It is in no violation of either the spirit or letter of the 
 Constitution that in the military and naval academies, 
 and at all the army posts, Sunday is kept as a day of 
 rest and Christian worship, by the authority of the 
 government. 
 
 In 1892 the World's Columbian Exposition, a body 
 incorporated b}- the legislature of the State of Illinois 
 for the purpose of celebrating the four hundredth anni- 
 versary of the discovery of America by an exposition 
 of the world's arts and manufactures, to be held in the 
 city of Chicago in 1893, sought aid of the United States 
 government in carrying forward their enterprise. Con- 
 gress, by act of August 5, 1892, granted aid to the 
 amount of ^2,500,000 which was to be delivered in 
 5,000,000 half dollar silver souvenir coins. To this 
 grant the following condition was attached, viz. : 
 
 " Section 2. And it is hereby declared that all appro- 
 priations herein made for or pertaining to the World's 
 Columbian Exposition, are made upon the condition 
 
Sufiday in the Cojistit^itioji. 3 1 9 
 
 that the said exposition shall not be opened to the 
 public on the first day of the week, commonly called 
 Sunday ; and if the said appropriations be accepted by 
 the corporation of the State of Illinois, known as the 
 World's Columbian Exposition, upon that condition, it, 
 is hereby made the dut}^ of the World's Columbian 
 Exposition Commission, created by act of Congress of 
 April twenty-fifth, eighteen hundred and ninety, to 
 make such rules, or modification of the rules of the said 
 corporation, as shall require the closing of the Exposi- 
 tion on the said first day of the week, commonly called 
 Sunday." 
 
 The grant was accepted, and on October 25, 1892, 
 rules were adopted by the corporation and the connnis- 
 sion, among which was one providing that the gates 
 should be open from May ist to October 30th ever>^ day 
 of the week except Sunday, when the gates should be 
 closed. B}- another rule the Board of Directors of the 
 corporation reserved ' ' the right to amend or add to 
 these rules whenever it may be deemed necessarj' for 
 the interest of the Exposition." B}' act of Congress 
 March 3, 1893, the Secretary- of the Treasur}' was di- 
 rected to retain part of the appropriation until the local 
 corporation had given the government securit}- for a 
 proposed loan for the payment of awards for foreign 
 exhibitors, or had paid such awards, since such awards 
 constituted a debt for which the local corporation was 
 liable under the act creating the Exposition, and which 
 the government was in honor bound to see paid. On 
 May 12th the board of directors of the World's Colum- 
 bian Exposition resolved to open the grounds, but not 
 the buildings, on vSunday, and on May i6th passed cer- 
 tain resolutions which recited that there was a wide- 
 spread demand that not only the grounds but the main 
 
320 Sunday in the Exposition. 
 
 buildings should be opened, and that the welfare of the 
 public, and especially the wage-workers, would be pro- 
 moted by permitting the people to enter the Exposition 
 on Sunday, and that a large majority of the people of 
 this country demanded this privilege. Also that the 
 withdrawal by Congress, by the act of March 3, 1893, 
 of over one fifth of the entire appropriation made in aid 
 of the Exposition, had thereby removed all obligation 
 on the part of the corporation to comply with the con- 
 ditions of the act of August 5th. It was resolved that 
 both the buildings and grounds should be opened during 
 the Sundays of the Exposition period ; that the opera- 
 tion of the machinery should be suspended as far as 
 practicable, and all exhibitors and emploj^ees relieved 
 from duty except so far as essential to the protection 
 of life and property ; that there should be religious ser- 
 vices and sacred music ; and further, that " In case the 
 above is carried into effect, this corporation pledges and 
 obliges itself to return to the government of the United 
 States that portion of the appropriation received by vir- 
 tue of act of August 5, 1S92, to 7C'it, the sum of $1,929- 
 120, from and out of the net receipts of this corporation, 
 after the payment of all just and valid obligations, 
 before any pa3'ment shall be made to the stockholders 
 or the city of Chicago." 
 
 The United States brought suit, in the United States 
 Circuit Court, (N. D., Illinois,) praying that the 
 World's Columbian Exposition might be enjoined from 
 opening the Exposition and the grounds and gates 
 thereof on Sunday, and be commanded to close the 
 Exposition and grounds and gates on that da}'. 
 
 Objection was made by the defendant to the equity 
 jurisdiction of the court, but the objection was over- 
 ruled, on the ground that " The government has suffi- 
 
Sunday in the Constitution. 321 
 
 cient interests at stake, because it has possession of the 
 grounds, has property there, and has pecuniar>^ interest 
 in imported goods subject to duty, and also indirectly 
 in the gate receipts and income from all sources, and, 
 besides, is under the highest obligations of honor and 
 law to protect the property and interests of foreign na- 
 tions and of the several States of the Union, and of all 
 exhibitors brought there upon its invitation." Also 
 upon the ground that the grant of $2,500,000 to the 
 corporation is a charitable donation. 
 
 The court on June 8, 1893, decided that the injunc- 
 tion prayed for should be issued, Woods and Jenkins, 
 circuit judges, concurring, and Grosscup, district judge, 
 dissenting. 
 
 The defendant appealed to the United States Circuit 
 Court of Appeals, Seventh District, and the appeal was 
 sustained. The Court on July 26, 1893, said: "We 
 have given to this record patient investigation, and to 
 the able arguments of counsel the attention which their 
 merits deserved and the character of the controversy 
 demanded, and we can discover no tenable ground, ex- 
 cepting the case from the ordinary rule which requires, 
 in order to the exercise of jurisdiction in chancery, 
 some injurj- to property, whether actual or prospective ; 
 some invasion of property or civil rights ; some injury 
 irreparable in its nature and which cannot be redressed 
 at law. The application of that rule is fatal to the 
 maintenance of the order under review, and whatever 
 temptation to leave the beaten path the record of a par- 
 ticular case may be supposed to afford, it is not for 
 courts of justice in the exercise of an unregulated dis- 
 cretion to remove the settled landmarks of the law. 
 
 "The order is reversed, and the cause remanded 
 for further proceedings, not inconsistent with this 
 
32 2 Sunday i?i the Exposition. 
 
 opinion " ; Fuller, circuit judge, and Brewer and 
 Allen, district judges, all agreeing. 
 
 The defendants before the Circuit Court had an- 
 swered to the prayer of the plaintiff among other 
 things, that, " If the true meaning and intent of Con- 
 gress as expressed in said act of Congress of August 5, 
 1892, was to prohibit and restrain the public from their 
 entrance upon and enjoyment of the grounds and ap- 
 purtenances of Jackson Park and Midway Plaisance, 
 not occupied by buildings erected for the purpose of 
 installation of exhibits at said Exposition, or of the en- 
 tire Exposition, on the first day of the week commonly 
 called Sunda}^ then the said defendant avers and 
 charges that said act of Congress is an unlawful re- 
 striction of the rights and privileges of the public, is 
 contrary to the laws and Constitution of the State of 
 Illinois, and repugnant to the Constitution of the 
 United States, and is therefore wholly void." 
 
 To this Judge Wood in giving his opinion replied : 
 " Whether influenced by the sentiment against such 
 opening or by other considerations, it would be irrele- 
 vant to inquire, but Congress in extending further aid 
 saw fit to couple with it the condition and requirement 
 that the Exposition should be closed on Sundays. 
 Without making the gift, the government, as I think, 
 might at any time have enacted or required the adop- 
 tion of this rule." 
 
 Judge Jenkins in his opinion said: "It is said that 
 this legislation by Congress is without the power of 
 Congress ; that it is unconstitutional ; that it seeks to 
 establish religious tests. I cannot concur in the objec- 
 tion. Legislation with respect to the first day of the 
 week has nothing to do with the matter of religious 
 tests, or the compulsion of a particular religious belief 
 
Sunday in the Constitution. 323 
 
 or service. It is founded upon the necessities of the 
 human race, as taught hy experience, the needed rest 
 which human beings require from the avocations of six 
 days' labor ; and it is justified by that experience out- 
 side of and irrespective of any question of creed or 
 any question of rehgion, and all the laws seek to 
 do — the laws of the several States, which have ex- 
 isted almost from the existence of the States — is to 
 provide for that needed rest, and to provide for non- 
 interruption in that rest and in such religious services 
 in which any citizen may choose to indulge. It is 
 not an imposition upon any one of compulsion in re- 
 spect to religious belief, or in respect to attendance at 
 church. It provides simply for the protection and for 
 the peace of those who may choose to attend church, 
 that the}' shall not be interrupted b\- labor on that day. ' ' 
 The defendant in his appeal to the Circuit Court of 
 Appeals abandoned his plea that the act of Congress, 
 August 5, 1892, requiring that the Exposition should 
 be closed on Sundays, was " repugnant to the Constitu- 
 tion of the United States." Justice Fuller in his state- 
 ment of the case said : " On the 14th of June the 
 corporation, defendant below, appellant here, applied 
 to the Circuit Court for leave to amend its answer, 
 which was granted, and the answer amended by strik- 
 ing out the words, ' ayid repugnant to tlie Co7istitutio7i 
 of the United States' from the paragraph heretofore 
 quoted." ' 
 
 ' United States v. World's Columbian Exposition ct al. 
 Circuit Court, N. D., Illinois, June 8, 1893. Federal Reporter, 
 vol. 56, pp. 630-653. 
 
 World's Columbian Exposition et al. v. United States, Circuit 
 Court of Appeals, Seventh District, Jul}- 26, 1893. Ibid., pp. 654- 
 675. 
 
324 S7inday in the Common Law. 
 
 The Circuit Court of Appeals took into consideration 
 no facts but those bearing upon the question of the 
 jurisdiction of the Circuit Court in the case as a court 
 of equity, and decided no other question. It decided 
 only that the Circuit Court had no jurisdiction in the 
 case as brought before it by the United States, and that 
 its action thereon was therefore void. It appears, 
 however, that the defendant by his amended appeal 
 conceded that the enforcement of the law of the United 
 States, requiring the gates of the World's Fair to be 
 closed on Sunday, could not be successfully resisted in 
 the courts on the plea that such a law was " repugnant 
 to the Constitution of the United States," and therein 
 conceded the correctness of the opinion of the Circuit 
 Court which pronounced the law in question to be 
 Constitutional. 
 
 CHAPTER XV. 
 
 SUNDAY IN THE COMMON LAW, 
 
 The supposed principle that all restraint of action on 
 Sunday is based on the purely secular consideration of 
 the peace and good order of society, cannot possibl}^ 
 apply to the common law restriction, which makes 
 Sunday a dies non juridiais, so that no valid judicial 
 act can be performed on that day excepting in cases of 
 extreme necessit}-. In the case of Scammon v. The 
 City of Chicago, (40 Illinois Reports, North, p. 146 
 April, 1866,) legal process had been instituted to con- 
 demn certain lots for the failure to pay an assessment 
 for paving a street, notice of which is required by the 
 statute to be given by six days' publication in the cor- 
 
Sunday in the Common Law. 325 
 
 poration paper. In this case, publication on Sunday 
 in the Chicago Tribune, was one of the six da3-s. The 
 Supreme Court said : " At common law Sunday is, in 
 legal phrase, dies Jionjuridiais. No valid j udicial pro- 
 ceeding can be had upon that day. If the service of 
 civil process would be invalid on Sunday, it necessarily 
 follows that a publication of this notice on Sundaj-, if 
 the law required but one publication, would be equally 
 invalid ; and the same rule must be applied to the 
 present case, in which the Sunday publication must be 
 counted to make out the requisite number. The no- 
 tice stands in the place of process. To permit it to 
 be given on Sunday is against the spirit and policy 
 of our law." 
 
 In the case of Thomas v. Hinsdale et al., Myers 
 came to Hinsdale's office, who was an acting Justice 
 of the Peace, early in the morning on Sunday, and 
 made affidavit for attachment against Harriet C. 
 Thomas. The Justice of the Peace issued the writ, 
 and appointed McDonough a constable to execute it. 
 Mrs. Thomas brought action for trespass, which was 
 not sustained by the lower court. The Supreme Court, 
 Breese delivering the opinion, decided that " the magis- 
 trate performed an act the law gave him no authority 
 to perform. McDonough executed the writ, having no 
 authority whatever to execute it. No justification is 
 shown, nor can be. The judgment is reversed, and the 
 cause remanded for further proceedings consistent with 
 this opinion." ' 
 
 In this case it may be said that the exeadion of the 
 
 writ might disturb the peace and good order of society, 
 
 but it was issuing the writ on Sundaj' which made the 
 
 execution of it void of authority, — an act done in the 
 
 ' 78. Illinois Reports, Freeman, p. 259. 
 
J 
 
 26 Sunday in the Common Law. 
 
 privacy of the Justice's office and which could not dis- 
 turb any Christian in his worship, pubHc or private, 
 any more than could the making of a contract in the 
 same office. 
 
 In the case of Baxter v. The People, Baxter was tried 
 for murder. The jur}^ brought in their verdict on Sun- 
 day. The court received the verdict, and pronounced 
 judgment, sentencing Baxter to be hanged. The Su- 
 preme Court of Illinois said [3 Oilman, 368, Caton, J., 
 delivering the opinion, December, 1846] : " That courts 
 have no right to pronounce a judgment, or do any other 
 act strictly judicial on Sunday, unless expressly au- 
 thorized by statute, seems too well settled to admit a 
 doubt by the decisions in England and in this country. 
 It appears that anciently, among the Christians, courts 
 did sit on Sunday, but by a canon of the church made 
 in the year 517, this was prohibited, and that rule seems 
 to have been adopted into the common law and may be 
 considered well settled. ... The question seems 
 to have been frequently before the English courts, and 
 the courts of most of the States of the Union ; and the 
 decisions are very uniform, that a judgment cannot be 
 entered of record on Sunda5\ The cases all show that 
 a judgment entered of record on Sunday is not only 
 erroneous but void. But although the law seems to be 
 well settled that a judgment cannot be entered of rec- 
 ord on Sunday, yet I think it equally well settled that 
 the verdict of a jury may be entered of record on Sun- 
 day. We think the authorities clearly establish that 
 when a cause is submitted to the jury before twelve 
 o'clock on Saturday night, the verdict of the jury may 
 be received on Sunday, but that is not a judicial day 
 for rendering any judgment ; and if it attempt to ren- 
 der a judgment, still in law it would be no judgment 
 
Sunday in the Common Law. 327 
 
 but absolutel}' void, and will be so declared and may 
 be reversed by this court, — not that such reversal will 
 take from it any force or vitality, for it never had any, 
 not having been rendered by a court having authority 
 to render an}- judgment whatever at that time. 
 Suppose, after this verdict had been received, the cause 
 had been continued to the next term for judgment and 
 the court adjourned ; and that sometime during vaca- 
 tion and without appointing a special term, through 
 some misapprehension, the judge had opened court and 
 rendered judgment ; such a judgment would have been 
 a nullity, but no more so than this." Koerner, J., dis- 
 sented, holding that as under the statute of Illinois the 
 jun.- is made judge of both the law and the facts, the 
 verdict of the jiu"y was a judicial act, and that it, as 
 well as the judgment of the court, w^as void. 
 
 Xow taking the history of the common law require- 
 ment as it is given in this case, can it be maintained 
 that no religious reason, motive, or consideration is to 
 be found in our legal regulations of the obser^-ance of 
 Sunday, that those regulations are based wholly on 
 temporal considerations, nothing being prohibited but 
 what disturbs the peace and good order of society ? 
 Would the rendering of a judgment by a court on Sun- 
 day disturb the peace and good order of society, more 
 than the rendering of a verdict by a jun* ? Is the lat- 
 ter permitted because it does not disturb the public peace, 
 and for no other reason ? Is the former prohibited be- 
 cause it does disturb the public peace, and for no other 
 reason ? 
 
328 The Oath. 
 
 CHAPTER XVI. 
 
 THE OATH. 
 
 The administration of the oath is inconsistent with 
 the assumption that the government cannot be deter- 
 mined in anything it does or requires by a religious 
 consideration. Whatever may be its form, — whether 
 putting the Bible to the lips, or laying the hand upon 
 it, or the lifting up of the hand ; whether the words 
 "So help me, God " be omitted or not, — the adminis- 
 tration of an oath is a religious act. The whole his- 
 tory of the oath proves that it has a specifically religious 
 character. Why is the crime, in bearing false witness, 
 the violation of the oath, and not the utterance of false- 
 hood ? Is it true that no higher sentiment is appealed 
 to than regard for the truth ? If the oath administered 
 to a witness b}' a court is entirely destitute of religious 
 character, it is nothing more than a contract made by 
 the witness with the court or with the body-politic as 
 represented by the court, to tell the truth. Why such a 
 contract, and why punish the false witness for violation 
 of the contract, and not for the falsehood ? When a 
 man comes into the court-room he is not required to 
 take an oath, or make a contract to respect the court ; 
 yet he will be punished for contempt. Why would it 
 not be enough to punish the false witness for uttering 
 falsehood, making that act the crime, as the act of con- 
 tempt is the crime in the other case. The oath differs 
 essentially from a contract ; it is not even a contract 
 with the Divine Being, but is an appeal to Him who 
 has said " Thou shalt not bear false witness against 
 thy neighbor," to take cognizance of and punish aii}^ 
 departure from the truth in the act of witness-bearing. 
 
Restriction of Frinction. 329 
 
 Were there among the people no belief in God, were 
 the oath divested of all religious character, no oath 
 ought to be or would be required. The oath is esseu- 
 tiallv religious. 
 
 CHAPTER XVII. 
 
 RESTRICTION OF FUNCTIOX NOT RENUNCIATION. 
 
 That the government should restrict to the narrow- 
 est limits the exercise of its function, as Christian ; 
 that it should decline to engage in the work of propa- 
 gating, or even to adopt any positive measures for the 
 fostering of Christianity ; that it should carefully avoid 
 an}' coercion of the conscience of the unbeliever, not 
 requiring of him the performance of a religious duty 
 when it requires of him the observance of a legally 
 established Christian ordinance, allowing him the larg- 
 est libert}- of action compatible with the rights of Chris- 
 tian people and the good order of societ}-, is explicable. 
 Motive enough for so doing can be found in considera- 
 tions of reasons and justice. But that the government 
 of a people who are, in overwhelming majorit}-. Chris- 
 tian, should go farther than that, and divest itself of 
 all Christian character, would be inexplicable. There 
 would be no practical necessity for so doing ; nor even 
 a theoretical necessit}-, except upon the part of a few 
 unbelievers who would hardly claim that the theory 
 of the few ought to prevail against that of the many. 
 
 There is no doubt that the restriction of the religious 
 function of the government thus far made will be at- 
 tributed by man\' to the force of a supposed principle, 
 which as 3-et lies beneath the public consciousness, but 
 which is struggling upward, and will in the natural 
 
330 Demand for Neutrality. 
 
 course of evolution finally attain unto full realization 
 in the entire suppression of that function. But it is to 
 be remembered that the most rigid restriction does not 
 always and necessarily imply a latent tendency to sup- 
 pression. There is no restriction which municipal 
 governments enforce more rigidly than that which for- 
 bids the encroachment of buildings upon the street 
 line ; even the projection of the capital of a column, 
 or a cornice beyond that line, is prohibited. But it 
 would be very absurd to interpret that restriction as 
 implying a latent opposition, which may be expected 
 to work out to the final suppression of all building. 
 Equally absurd is it to infer the existence of a similar 
 opposition from the limitations the government has put 
 upon the exercise of its Christian function. The prin- 
 ciples of religious liberty are the open highways in the 
 city of God on earth. Christian laws are the walls of 
 the buildings that stand on its boundary lines. Neither 
 can be permitted to encroach upon the other, but to the 
 detriment of the whole. 
 
 CHAPTER XVIII. 
 
 the; dkmand for neutrality. 
 
 The demand which is now being made for the re- 
 moval of every trace of Christian character from our 
 civil government is destitute of foundation either in 
 reason or justice, but the plea made by the unbeliever 
 for that removal is plausible. He says that what he 
 asks for is only that the government shall be neutral 
 on the subject ; neither for nor against Christianity, 
 or any other religion ; only the omission of all require- 
 
Demand for Neutrality. 331 
 
 ments based upon Christianity. In that case, he sa}'S, 
 Christian people of course would not be required to pay 
 taxes for the support of what was contran.' to their con- 
 victions and what thej- believed to be pernicious. 
 Whereas in the case, as it now stands, that is just 
 what the unbeliever is compelled to do. 
 
 Plausible as this plea is, it will be seen at once that 
 a ver}- positive action would have to be taken in order 
 to reach the negative result. Christianity holds now, 
 as it has held from the beginning, a place in the law 
 of the land, and it would have to be dislodged before 
 the supposed negative position could be reached. 
 Furthermore, the action would of course take its sig- 
 nificance from the reasons upon which it was based. 
 Christian people, having abated all injustice arising 
 from the exercise of the Christian function of their 
 government, can have no reason for desiring the dis- 
 lodgement in question ; and the unbeliever, having re- 
 ceived the abatement of all injustice, can have none 
 but a theoretical reason for desiring the dislodgement ; 
 which reason is that Christianitj- is a superstition, and 
 like all other superstitions false and pernicious. 
 
 The term sect is commonly applied to the various 
 schools into which the adherents of a religion are 
 di\aded. It is a familiar term as applied to the various 
 denominations of Christians, but in a broad view unbe- 
 lievers as a class must be regarded as a sect. Their 
 dogmas on the subject of religion are well defined, and 
 they are divided into sects among themselves ; — Mate- 
 rialists denying the existence of mind or spirit, either 
 finite or infinite ; Pantheists denying the personality 
 of the all-pen'ading source of all existence ; and Ag- 
 nostics den^-ing that the primal being, whose existence 
 may be admitted, can be known. The doctrines of 
 
332 Demand for Neutrality. 
 
 each sect are not only well defined, but like the doc- 
 trines of the Christians, are made to rest on an elabo- 
 rate sub-structure of philosophy and logic. When 
 facing Christianity all of these sects agree in the 
 negation of its truths, and taking all parties to the 
 question into view they are to be reckoned as one sect. 
 They are united in organizations for the purpose of 
 maintaining and propagating their doctrines, to the 
 overthrow of what they regard as the false doctrines 
 of Christianit3^ 
 
 The whole controversy lies in the domain of the re- 
 ligious feelings ; and although they are contending for 
 irreligion, it is very plain that they are not destitute 
 of those feelings of admiration for the true, the beauti- 
 ful, and the good, which in Christians are expressed in 
 worship. They are worshippers. Truth, or reason, 
 or law, or humanity, or nature is the object of their 
 worship, a worship that leads naturally to some sort of 
 personification. That scene enacted in the Cathedral 
 of Notre-Dame in Paris, November 26, 1793, when 
 Damoiselle Candeille of the opera was borne on a throne 
 upon the shoulders of men to the altar, the worship of 
 the Goddess of Reason supplanting the worship of the 
 blessed Virgin, cannot be easily forgotten. And with 
 that spectacle before our eyes it can hardly be denied 
 that atheists are possessed of those feelings which natu- 
 rally express themselves in worship. 
 
 Seeing then that unbelievers possess all the specific 
 characteristics of a sect ; definite doctrines upon the 
 subject of religion ; organization for the defence and 
 propagation of those doctrines ; and even in some pro- 
 per sense a worship, they are to be regarded in this 
 controversy as a sect, and the demand they are making 
 of the government is to be regarded as nothing else 
 
Demand for Neutrality. 333 
 
 than the establishment of their sectarian doctrines. 
 Mr. Francis E. Abbot in .speaking before the National 
 Reform Association at its meeting in Cincinnati, Feb- 
 ruar}- i, 1872, making a protest against the proposed 
 religious amendment of the Constitution of the United 
 States, which that association was organized to secure, 
 said, " I respect this movement very sincerely. It 
 seems to me to have the logic of Christianity, behind 
 it, and if I were a Christian, if I believed in Chris- 
 tianity, I do not see how I could help taking my stand 
 b}' 30ur side." ' 
 
 It is fair to infer from this declaration that what the 
 members of that association were endeavoring to accom- 
 plish for their belief, he was endeavoring to accomplish 
 for his belief, that is, to make it the supreme ruling- 
 principle of the government. As they were demanding 
 that the government should be bound to violate no 
 principle of Christianity, so he was demanding that it 
 should be bound to violate no principle of atheism. 
 It is fair to infer that the two parties differed onl)' as to 
 which should be established in the Constitution, Athe- 
 ism or Christianit}'. In the Index, the organ of the 
 Liberal League, published b}- Mr. Abbot, for January 
 4, 1873, the demands of the League were published as 
 follows : 
 
 " I. We demand that churches and other ecclesias- 
 tical property shall no longer be exempt from just 
 taxation. 
 
 " 2. We demand that the employment of chaplains 
 in Congress, in State legislatures, in the navy and 
 militia, and in prisons, asylums, and all other institu- 
 tions supported by public money, shall be discontinued. 
 
 ' ' 3. We demand that all public appropriations for 
 ' Proceedings, p. 33. 
 
334 Deinafid for Neutrality. 
 
 educational and charitable institutions of a sectarian 
 character shall cease. 
 
 " 4. We demand that all religious services now sus- 
 tained by the government shall be abolished, and 
 especially that the use of the Bible in the public schools, 
 whether ostensibly as a text-book, or avowedly as a 
 book of religious worship, shall be prohibited. 
 
 " 5. We demand that the appointment by the Presi- 
 dent of the United States or by the Governors of the 
 various States of all religious festivals and fasts shall 
 wholly cease. 
 
 "6. We demand that the judicial oath in the courts 
 and in all other departments of the government shall 
 be abolished, and that simple affirmation under the 
 pains and penalties of perjury shall be established in 
 its stead. 
 
 " 7. We demand that all laws, directly or indirectly 
 enforcing the observance of Sunday as the Sabbath, 
 shall be repealed. 
 
 " 8. We demand that all laws looking to the enforce- 
 ment of "Christian " morality shall be abrogated, and 
 that all laws shall be conformed to the requirements of 
 natural morality, equal rights, and impartial libertj'. 
 
 "9. We demand that, not only in the Constitution 
 of the United States and of the several States, but also 
 in the practical administration of the same, no privilege 
 or advantage shall be conceded to Christianit}^ or any 
 other religion ; that our entire political system shall be 
 founded and administered on a purely secular basis, 
 and that whatever changes shall prove necessary to this 
 end be consistentl}^ unflinchingly, and promptly made." 
 
 Upon what ground does the Liberal League make 
 these demands ? Upon the ground that under the gov- 
 ernment on its present basis, and as it is now adminis- 
 
Detnaiid for Neutrality. 335 
 
 tered, they are deprived of the Hberty of belief and of 
 acting in accordance with their belief; — on the ground 
 that the}^ are required to do anything which would 
 impl}- on their part a belief in the doctrines of Chris- 
 tianity ; — on the ground that they are subject to any 
 hardships that are not necessarily incident to the rule 
 of the majority ? That cannot be, for there is no such 
 ground. It has already been removed ; or if a vestige 
 of it remain Christians will join with them in securing 
 its speedy removal. 
 
 The demand as now made can be only on the giDund 
 that the doctrines of Christianit}^ are false and the doc- 
 trines of atheism are true. The demand of the unbe- 
 liever is that the government shall adopt and act upon 
 the doctrines which he believes to be true. That this 
 is the demand, which is disguised under the plea of 
 neutrality, may be made plain by a simple illustration. 
 
 Certain ver}^ respectable and eminent philologists de- 
 sire a reform in the orthography of the English lan- 
 guage ; among other things the omission of all silent 
 letters, such as the a in hear, dear, fear, etc.; the e in 
 care, dare, w^ear, etc. They claim that the adoption 
 of the reform would save in the aggregate an immense 
 amount of labor and money to the public generally, 
 and an immense amount of nervous energy to the 
 pupils in our vSchools. Those who prefer the old mode 
 of spelling hold that the letters alleged to be superflu- 
 ous serve as diacritical marks, and serve for that pur- 
 pose as well as any marks that could be invented to 
 take their place. They maintain that the difference 
 between them and the reformers is only a difference in 
 tenet or doctrine as to diacritical marks. Now should 
 the government, beguiled by the plea of the reformers 
 that all they ask is omission, order the omission of 
 
2,;^6 Demand yhr Neutrality. 
 
 those letters in all its documents and records and in all 
 the books used in the public schools, who does not see 
 that such an order would involve the rejection of the 
 tenet of the majority and the establishment of the tenet 
 of the minorit3^ This is a case in which the remark 
 of Justice Appleton of Maine in the case of Donahue 
 V. Richards, that "The right of negation is in its 
 operation equivalent to the right of proposing and es- 
 tablishing," is true. The omissions, negations, and 
 prohibitions demanded by the unbeliever would be 
 equivalent to the establishment of his tenets. Such 
 establishment over a population that is almost wlioll}' 
 Christian would be a flagrant injustice. 
 
 Another simple illustration will serve to show that 
 acceding to the demand in question, instead of securing 
 justice, would inflict injustice ; instead of securing the 
 rights of conscience, would trample on those rights. 
 
 Suppose that a vegetarian becomes a member of a 
 boarding club which has always used meats, and that 
 he desires the club to change its policy and exclude 
 meats from the table. He might plead that all he asks 
 for is omission, negative action ; and that to secure no 
 more than what is simply just. He pays an equal 
 share with the rest into the common fund, and part of 
 his money goes to pay for provisions which he does not 
 use. Moreover, his conscience is involved in the mat- 
 ter ; he has conscientious scruples against eating the 
 flesh of animals ; while the other members have no 
 conscientious scruples against the use of vegetables. 
 Plausible as this plea of conscientious scruple ma}^ 
 .seem, it will appear upon examination to be an adroit 
 misrepresentation of the other side of the case. They 
 have no conscientious .scruples against the use of vege- 
 tables, but they have conscientious scruples against 
 
Demand for Neutrality. 2)Z7 
 
 subsisting on vegetables alone. Why does he use only- 
 vegetables ? Partly because he believes it to be a duty 
 to keep his body in the fullest vigor possible. They 
 hold the same belief for themselves. He holds that his 
 health would suffer detriment from the use of animal 
 food ; and they hold that their health would suffer detri- 
 ment from the disuse of it. Conscience is involved as 
 much on the one side as on the other. The onl}- question 
 in the case therefore is who shall rule, — the manj^ over 
 the one, or the one over the many ? The rule of the 
 many over the one is democracy- ; the rule of the one 
 over the many is despotism. If he is permitted to 
 remain in the club, to enjoy all its privileges and ad- 
 vantages, and is not compelled to partake of animal 
 food; he has no just ground of complaint if the club 
 refuse to change its old established principles so as to 
 conform with his peculiar views. He has all the 
 rights to which in those circumstances he is entitled. 
 
 There will undoubtedly be more or less of hardship 
 incident to the rule of the majorit}', as evil attends all 
 earthly things ; but hardship is not always injustice. 
 The Quaker is compelled to pay taxes for the sup- 
 port of a government that keeps an army and navy, 
 inflicts capital punishment, carries on war, and admin- 
 isters oaths. Those who believe that the administra- 
 tion of medicines is pernicious are compelled to paj^ 
 taxes for the support of physicians in government em- 
 ploy who administer medicines. Spelling reformers 
 are compelled to pay taxes for the support of schools 
 in which a system of orthography, to which they are 
 opposed, is taught. A man, who has neither horse 
 nor carriage, but does all his travelling by railroad, is 
 compelled to pay his fare on the railroad and also to 
 pay taxes to keep up the public roads and bridges. The 
 
2,2,^ Demand for Neutrality. 
 
 man who furnishes his own water and light is compelled 
 to pay taxes for building the city waterworks and gas 
 works. The parent who has no children to go to 
 school, or who prefers to send his children to a private 
 school, is compelled to pay tax for the support of the 
 public schools. The Jew and the member of those 
 Christian denominations which keep the seventh da}^ 
 of the week sacred are compelled to pay taxes for the 
 support of a government which will not allow them to 
 have a cause heard in court, or to have a legal process 
 issued, or a petition presented to the legislature, or to 
 have business done at the bank, or to enforce the pay- 
 ment of a debt on the first day of the week. 
 
 These hardships are unavoidable incidents to all social 
 organization ? They furnish no valid reason for taking 
 the rule from the majority and giving it to the minority. 
 Nor would such transfer diminish the hardships : it 
 would only increase them. When these hardships are 
 reduced to the least possible amount and are made to 
 fall upon the least possible number of persons ; and 
 when no one is compelled to do what his conscience 
 forbids, there can be no just ground for complaint. 
 When the Quaker is not compelled to bear arms, or to 
 take an oath, he has all the respect shown for his pecu- 
 liar views that he has a right to demand. When on 
 the ground that he is conscientiously opposed to war 
 and that he pays taxes for the support of the govern- 
 ment, he goes farther and demands that the govern- 
 ment be neutral on the subject of war ; his demand is 
 not for the securing of his rights, but for the establish- 
 ment of his doctrines. His grievance is, not that he is 
 compelled to do anything that his conscience forbids, 
 but that all other people are not compelled to yield 
 their conscientious convictions to his ; it is that the 
 
Demand for Neutrality 
 
 majority conduct the affairs of the government in ac- 
 cordance with their own views of what is right, and 
 are not compelled to conduct those affairs in accordance 
 with his views ; or, in other words, that he is not 
 allowed to wield the power of a despot. He has a 
 perfect right to his opinion ; a perfect right to advocate 
 it ; to endeavor to persuade his fellow-citizens to his way 
 of thinking ; and if he should succeed in persuading 
 a majority of them, he has a right to have the govern- 
 ment administered in accordance with his views ; but, 
 until that be done, he has no right to keep up an outcry 
 of injustice, or to be obstructive in his action. To use 
 an illustration of Lord Brougham. If he should come 
 into a court of justice and say that his conscience not 
 onh- precluded him from taking an oath, but precluded 
 him also from giving evidence which in the existing 
 state of the laws might bring a fellowman to capital pun- 
 ishment, the answer he would receive would be this : 
 " Sir, the legislature is the only judge of the necessit}' 
 of taking away a man's life ; and neither your con- 
 science nor j-our notions of jurisprudence must stand in 
 the way of justice." 
 
 In the case of Simons Ex. :•. Gratts, 2 Pennsyl- 
 vania, 412, Levi Philips, the only plaintiff attending 
 to the preparation of the case, made deposition, stating, 
 " That he had scruples of conscience against appearing 
 in court to-day [Saturday] and attending to an}' secular 
 business, and that he believes that his presence and aid 
 will be material in the progress of the cause." His 
 honor overruled the objections of the plaintiff and or- 
 dered on the cause. 
 
 On appeal the Supreme Court said (Gibson, C. J., 
 delivering the opinion) ; ' ' The religious scruples of per- 
 sons concerned with the administration of justice will 
 
340 Demand for Neutrality. 
 
 receive all due indulgence that is compatible with the 
 business of the government ; and had circumstances 
 permitted it, this cause would not have been ordered for 
 trial on the Jewish Sabbath. But when a continuance, 
 for conscience' sake, is claimed as a right and at the 
 expense of a Term's delay, the matter assumes a differ- 
 ent aspect. 
 
 " It never has been held, except in a single instance, 
 that the course of justice ma}' be obstructed b}' any scru- 
 ple or obligation whatever. The sacrifice that ensues 
 from conscientious objection to the performance of a civil 
 duty ought, one would think, to be on the part of him 
 whose moral and religious idiosyncrasy makes it nec- 
 essary ; else the denial of the lawfulness of capital 
 punishment would exempt a witness from testifying to 
 facts that might serve to convict a prisoner of murder ; 
 or to say nothing of other functionaries of the law, 
 excuse the sheriff for refjtsing to execute one, capitally 
 convicted. That is an exemption which none would 
 pretend to claim ; yet it would inevitably follow from 
 the principle insisted on here. Rightly considered, 
 there are no duties so sacred as those which the citizen 
 owes to the laws. In the judicial investigation of facts, 
 the secrets of no man will be wantonly exposed, nor 
 will his principles be wantonly violated. But a respect 
 for these must not be suffered to interfere with that 
 organ of the government which has more immediatelj^ 
 to do with the protection of person and property : the 
 safety of the citizen and the very existence of society 
 require that it should not. That every other obliga- 
 tion shall yield to that of the laws, as to a superior 
 moral force, is a tacit condition of membership in every 
 society, whether lay or secular, temporal or spiritual ; 
 because no citizen can lawfully hold communion with 
 
Duties of the State as Christian. 341 
 
 those who have associated on any other terms ; and 
 this ought in all cases of collision to be accounted a 
 sufficient dispensation to the conscience. ... I am 
 for setting aside this non-suit, certainly not for any 
 supposed interference with the rights of conscience." 
 
 The case of the Quaker given in elucidation of the 
 point we are making, it is hardly necessary to saj^, is 
 altogether hypothetical. To the honor of the highly 
 respected and truly conscientious society of Friends, 
 be it said, that they keep up no agitation, make no 
 outcry of injustice, and are not persistently obstructive 
 to those measures of the government which they regard 
 as unrighteous. Of the unbeliever, however, more rest- 
 less and less tolerant than the quiet and amiable Friend, 
 it is doubtful whether so much can be truthfully said. 
 
 Christian believers can have no motive for divesting 
 their civil government of its Christian character. 
 
 Unbelievers can offer no ground in reason or justice 
 for such divestiture. 
 
 CHAPTER XIX. 
 
 DUTIES OF THE STATE AS CHRISTIAN, 
 
 1st. Not to Adopt Positive Measures for the 
 Fostering' of Christianity. — At the close of the sec- 
 ond part of our investigation, we arrived at the con- 
 clusion that the government of these United States was 
 necessarily, rightfully, and lawfully Christian. In Part 
 III. we entered upon the question : What may the 
 government do, and what ought it to do in its Chris- 
 tian character ? Our first answer to that question was 
 a negative one, viz. : That it was no part of the proper 
 
342 Ditties of the State as Christian. 
 
 function of the government to inculcate, propagate, or 
 even foster, Christianity ; certain special cases being 
 excepted. 
 
 We have been considering throughout the previous 
 discussion the question of inculcating and propagating, 
 but have given no special consideration to the question 
 oi fostering Christianity. Our negative answer to the 
 latter question may seem to be a step too far in the 
 way of restriction or concession. It can hardl}- be de- 
 nied that the laws against cruelty to animals are in- 
 tended to foster the humane sentiments of the people, 
 and thereby promote the public welfare. A true system 
 of ethics will concede, to the animal, rights which man 
 is bound to respect, but the animal, in relation with 
 man, does not possess the equal rights which man pos- 
 sesses in relation with his fellowman. Cruelty to the 
 animal is not a crime of the same order as injury to the 
 person of one man b}^ another. 
 
 It may be therefore that, like blasphemy and Sunday 
 desecration, cruelty to animals is prohibited only to 
 protect the citizens against nuisance, and the good or- 
 der of society from disturbance. But scarcelj- an}-one 
 denies, and almost everyone takes satisfaction in be- 
 lieving, that the laws in question, whatever other 
 purpose they may have been intended to serve, were 
 intended mainly to foster humane sentiments in the 
 breast of the citizen. 
 
 It would seem inconsistent therefore, to concede to 
 the government the right to foster humanity, and deny 
 its right to foster Christianity, especially since Chris- 
 tianity includes humanity, as the whole includes the 
 part, or the genus the species. If the right in the 
 latter case be granted, it is to be remarked that the 
 fostering in both cases is confined to the prohibition of 
 
Djiiies of the State as Christian. 343 
 
 acts which are of the character of nuisance and tend 
 to disturb the good order of society. It may be doubted, 
 however, whether an act of outrageous cruelty to an 
 animal perpetrated in seclusion whereof suflBcient proof 
 could be found, would escape the penalty on the plea 
 of seclusion. But aside from this, the cases are not 
 altogether alike. Difficulties would attend the exercise 
 of the fostering function in the one case that do not 
 attend it in the other. Strong religious feeling is not 
 so prevalent among the people as the humane feeling. 
 Xo one denies that it is a dutj- to be humane ; while 
 man}- den}- that it is a duty to be Christian. Besides, 
 the advocates of the humane treatment of animals are 
 not divided into sects, all differing in opinion as to 
 what particular form of humanity ought to be fostered ; 
 while another sect, of considerable strength, stands in 
 opposition to them all, aflBrming that humanity is a 
 factitious sentiment which interferes with the law of 
 natural selection and tends to prevent the survival 
 of the fittest. It seems, therefore, that as a matter of 
 practical necessity, if not of principle, the exercise of 
 the religious function of the government should be 
 reduced to the last degree consistent with a proper re- 
 gard for the feelings, convictions, and rights of Chris- 
 tian people. 
 
 Furthermore, when there is within the State a large 
 and well-organized body, which has for its special ob- 
 ject the propagation and fostering of Christianity, the 
 natural law of efficiency in all organic bodies — special- 
 ization in the form and function of organs — would j us- 
 tify the government in leaving the whole work of 
 fostering Christianity to the Church, — at least the use 
 of all positive measures to that end. The government 
 takes knowledge of Christianity as an organized sys- 
 
344 Duties of the State as Christian. 
 
 tem, not as an abstraction, an imperium in imperio. 
 Were there no organized Christian church, and were 
 the people Christian, it might be the duty of the 
 government, not only to foster, but to inculcate Chris- 
 tianity, just as it is the duty of the lowest animal or- 
 ganism to use any and every part of its body, as mouth, 
 legs, and arms. 
 
 It may be remarked that if the government abstain 
 from fostering Christianity while it does foster human- 
 ity, there is all the more ground for maintaining that it 
 should abstain with the most scrupulous care from doing 
 anything adverse to Christianity. If the case were 
 such that it could leave the fostering of humanity to an 
 organization better fitted than itself for the purpose, it 
 would be passing strange if it should make occasion 
 of that fact to profess itself to be inhuman, or even 
 neutral ; and stranger still if it should be found actu- 
 ally fostering inhumanity. 
 
 In accordance with the principles just set forth, the 
 State ought to abolish all distinctions between minis- 
 ters of the gospel and other citizens in the disqualifica- 
 tions for office. Up to 1846 the Constitution of New 
 York contained the following prohibition, viz.: 
 
 " Art. VII. Sec. 4. And, whereas, the ministers of the 
 gospel are by their profession dedicated to the service 
 of God and the care of souls, and ought not to be 
 diverted from the great duties of their function ; there- 
 fore, no minister of the gospel or priest of any denomi- 
 nation whatsoever shall at any time hereafter, under 
 any pretence or description whatever, be eligible to or 
 capable of holding any civil or military office or place 
 within this State. ' ' 
 
 The Constitutions of eleven other States have con- 
 tained similar prohibitions. These disqualifications were 
 
Duties of t lie State as CJiristian. 345 
 
 not intended to operate towards a divorce of Christianity 
 from the State, but, as is expressly stated, to more fully 
 secure its influence for the benefit of the State. They 
 were no more intended to be derogatory to Christianity 
 than the provision found in all the State constitutions 
 which prohibits anj' member of Congress or other per- 
 son holding office under the United States being a mem- 
 ber of the State legislature or holding any other office 
 under the State, was intended to be derogatory to the 
 general government. In both cases the intention was 
 to promote efficienc}- and purity in office by requiring 
 exclusive devotion to its duties. The disqualifications 
 imposed on ministers of the gospel were intended to 
 foster Christianity as a means of promoting the welfare 
 of the State. The fact has become manifest that Chris- 
 tianity does not need the fostering of the State, and 
 there has been a tendenc}- of late years towards the 
 withdrawal of these disqualifications, so that now they 
 remain in the Constitutions of only three States, Dela- 
 ware, Kentucky, and Tennessee, the first giving no rea- 
 son for the disqualification, and confining it to the time 
 that the minister ' ' continues in the exercise of the pas- 
 toral or clerical functions. ' ' 
 
 The fostering of any particular Christian sect, by 
 making appropriations to it from the public treasur}-, 
 is a wrong so obvious as to need no special considera- 
 tion. Were it the dut}- of the government, however, 
 to foster Christianity in general, a sect seeking an 
 appropriation might plead that it was simply doing its 
 own share in bringing the government to a performance 
 of its duty, and that the other sects, instead of condemn- 
 ing it, ought to follow its example. It might refer in 
 support of its plea to the appropriations lately made by 
 the federal government to different Christian denomi- 
 
346 Dtitics of the State as Christian. 
 
 nations for the carrying on of schools among the In- 
 dians ; but the fact referred to would give no support 
 to the plea. It was not the intention of the govern- 
 ment in making those apjDropriations to foster Christi- 
 anity in general, by fostering all the sects, in particular ; 
 for it did not propose to give appropriations to more 
 than a few of the leading denominations. The inten- 
 tion of the government was to foster Christianity among 
 the Indians, a work which as we have already .seen, it 
 was under obligation to do, and which it might better 
 have done directly than indirectly by selecting certain 
 denominations for the purpose, assigning territory to 
 them severally, and making appropriations to them, 
 which with .so much color of reason could be called .sec- 
 tarian. The public sentiment against making appropria- 
 tions from the public treasury to any Christian sect upon 
 any pretence whatsoever, whether of promoting educa- 
 tion or charity, is so widespread and firmly established 
 and the conditions in which such appropriations can 
 be obtained are .so unlikeh^ to occur and so repugnant to 
 the feelings of personal independence that no other safe- 
 guard is thought to be necessary to prevent the wrong. 
 
 On the 14th of December, 1875, Mr. James G. Blaine, 
 in accordance with a recommendation of President 
 Grant, proposed in the House of Representatives the 
 following amendment to the Constitution of the United 
 States, viz.: 
 
 " No State shall make any law respecting an estab- 
 lishment of religion, or prohibiting the free exercise 
 thereof ; and no money raised by school taxation in 
 any State for the support of public .schools, or derived 
 from any public fund therefor, nor any public lands 
 devoted thereto, shall ever be under the control of any 
 religious sect ; nor shall any money so raised, or land 
 
Duties of the State as Christian. 347 
 
 so devoted, be divided between religious sects or 
 denominations. ' ' 
 
 While the matter was pending in the House, both 
 the great political parties happened to hold their 
 quadrennial conventions, and both included in their 
 platforms an approval of the measure, either in form 
 or in principle. In the platform of the Republican 
 part}- is the following declaration, viz. : 
 
 " The public school system of the several States is 
 the bulwark of the American Republic, and with a 
 view to its security and permanence, we recommend an 
 amendment to the Constitution of the United States, 
 forbidding the application of any pubHc funds or prop- 
 erty for the benefit of any schools or institutions under 
 sectarian control." 
 
 In the platform of the Democratic party was the fol- 
 lowing declaration, viz. : 
 
 "The public schools, of which the establishment 
 and support belong exclusively to the several States, 
 and which the Democratic partj' has cherished from 
 their foundation, and is resolved to maintain without 
 prejudice or preference for any class, sect, or creed, and 
 without largesses from the treasury for anj-. . . ." 
 
 The amendment, with an added clause, was ap- 
 proved by the House of Representatives August 4, 
 1S76, by a vote of one hundred and eighty for and 
 seven against. In the Senate it was further amended 
 and as the vote stood twent>--eight for and sixteen 
 against it was defeated, Art. V. of the Constitution 
 requiring a vote of two thirds in both houses for the 
 proposing to the people or the legislatures of the States 
 of amendments to the Constitution. The matter has 
 since that time not been deemed of suflScient urgency 
 to be re\'ived and pressed to a conclusion. 
 
348 DtUies of the State as Christian. 
 
 Only one Christian sect (the Roman Catholic) now 
 seeks or shows any willingness to accept any such 
 appropriations, and the amendment in question has 
 therefore seemed to contain a direct condemnation of 
 that particular division of the Church, a thing which a 
 generous people would forbear inflicting until there 
 should be a practical necessity. In the present state 
 of public sentiment it is possible to obtain such an ap- 
 propriation only in particular localities, and only when 
 the sect seeking it includes in its membership votes 
 enough to make a balance of power between the con- 
 tending political parties, is able to control the votes of 
 its members, and is willing to make corrupt bargains 
 with the political partiesrfor the disposal of those votes.' 
 
 ' From 1886 to 1893 the Roman Catholic church received, 
 from the United States government, for contract schools among 
 the Indians, 12,366,416 and all the Protestant denominations 
 received, during the same period, for the same purpose, $937,977. 
 This vast disproportion may be attributed to greater vigilance, 
 persistence, and better organized efforts, in solicitation. But 
 that is only the proximate cause. No Protestant denomination 
 could hope to have obtained a like amount by a like effort. 
 The ultimate cause, the cause without which the result could 
 not have been accomplished, was nothing else than the con- 
 trol of Catholic votes by the Catholic clergy. The methods of 
 the Jesuits, and the control exercised by the clergy over the 
 people in secular affairs, are two surviving follies of the Ro- 
 man Catholic Church, surprising anachronisms in this country 
 and in this age. That church has the advantage of a vener- 
 able antiquity, of an imposing ecclesiastical organization, and 
 of a system of theology built up by ages of earnest thought, 
 and it might be expected to hold its own more securely and 
 extend itself more rapidly did it, like Protestant denominations, 
 rely upon the power of intellectual conviction, and the vigor of 
 spiritual life, rather than upon the force to be exerted through 
 an ecclesiastical machine. Its methods cause it to be regarded 
 
Duties of the State as Christian. 349 
 
 Furthermore, experience has shown that while a 
 minority wielding such a power may enjo}^ its unright- 
 eous gains for a time ; yet, with a powerful public moral 
 sentiment against it, the success it achieves is likely to 
 be in the end more disastrous than defeat. The great 
 public which suffers from the wrong may be slow to 
 move, but there is a point beyond which its forbearance 
 will not go, and the temerity the offender gains from 
 his successes will tend to hasten the retribution. A 
 far-sighted prudence therefore would restrain any sect 
 from seeking to obtain the fostering of the government 
 by appropriations from the public treasur)'. This, to- 
 gether with the rare occurrence of the conditions in 
 which such fostering is possible, and the odiousness 
 of those conditions when the}' occur, render any legal 
 prohibition practically unnecessary. Yet such a pro- 
 hibition would prevent the rising of a desire for such 
 fostering, and the vexation which would be produced 
 on the one side by its occasional success and on the 
 other side b}' its defeat, 
 
 2d. To give preference and favor to Christian- 
 ity. — While the State ought not to adopt any positive 
 measures for the fostering of Christianity ; 5'et when 
 Christianity is brought to its notice in such a way as 
 to require positive action, it ought to give preference 
 and favor to Christianity. It ought to do so, not on 
 the ground that being a person it must have a belief on 
 the subject of religion, and being a person in authorit}', 
 
 with contempt by all self-respecting people, and to be suspected, 
 as a dangerous political factor, by all patriotic citizens, outside 
 of its own communion. It may be, however, that a compre- 
 hensive paternalism belongs essentially to that form of church 
 government which recognises, as its supreme and infallible 
 head, one whose official title, in the official language, is Papa. 
 
350 Duties of the State as Christian. 
 
 it is under obligation to pronounce one religion true and 
 another false, but on the ground that Christianity^ is 
 the religion of the people. Other religions are entitled 
 to toleration and protection, but not to favor. A for- 
 eign language is entitled to toleration, and persons who 
 prefer it are entitled to protection in the use of it, but 
 the English language alone is entitled to favor. The 
 favor is not given to Christianity and the English lan- 
 guage because they are so essential to the government, 
 or so identified with it, that it could not exist if either 
 were to be changed. The one being the religion of the 
 people, and the other the language of the people, pub- 
 lic policy requires that both should receive preference 
 and favor from the State. 
 
 The Constitution of Illinois requires that, " All 
 laws of the State of Illinois and all official writings and 
 the executive, legislative, and judicial proceedings, shall 
 be conducted, preserved, and published in no other than 
 the English language." ' 
 
 Upon the appeal of William McCo)^ from a decision 
 of the Circuit Court of Cook County, the Appellate 
 Court of Illinois decided as follows, March, 1889, Gary, 
 P.J. 
 
 ' ' Upon a bill filed by a tax-paj-er of the City of Chi- 
 cago to enjoin it from entering into any contract for, or 
 the paying out of any money for publishing in the 
 German language, matters and things required by law 
 or ordinance to be published in a newspaper, this court 
 holds that under the State Constitution such publica- 
 tion must be in the English language alone. . . 
 If the city may publish at public expense in German, 
 why may it not pass ordinances and conduct its busi- 
 ness in Greek? . , . The decree of the Circuit 
 » Schedule, ^i8. 
 
Duties of the State as Christian. 351 
 
 Court dismissing the bill is reversed, and the cause re- 
 manded with directions to perpetually enjoin the city as 
 prayed in the bill. . . ." ' 
 
 We might ask in passing upon what ground the Eng- 
 lish language can be legally recognized as the language 
 of the people which would not entitle Christianity to be 
 legally recognized as the religion of the people. The 
 urgency of the public policy, it must be admitted, is 
 greater in the one case than in the other, but if the 
 English language can be made the established language 
 of the State so far as to prohibit the use of any other 
 language in the conducting, preser^-ing, or publishing 
 of official business, Christianity upon the same princi- 
 ple may be made the established religion of the State 
 so far as to prohibit an}- other than Christian religious 
 ser\'ices to be conducted b}' appointment of the State 
 and to be paid for out of the treasury- of the State. 
 
 3d. To give equal protection to Christians, Non- 
 Christians, and Anti-Christians. — The State ought 
 to protect Jews, Mohammedans, and pagans dwelling 
 among us in their worship when that worship is orderly 
 and not connected with immoral practices, punishing 
 all unnecessary and malicious disturbance thereof. 
 
 It ought also to protect all orderl}' meetings of un- 
 believers, even when assembled on the Lord's Day, for 
 the purpose of controverting the doctrines and disprov- 
 ing the evidences of the Christian religion. Such pro- 
 tection would no more imply indifference to Christianity, 
 than the protection of the subjects of a king from mob 
 violence when met within our borders in an orderly 
 manner, to advocate the principles of monarchy, would 
 impl}- indifference to republican institutions. 
 
 ' McCoy V. City of Chicago et al., 33. Appellate Court Re- 
 ports, 576. 
 
352 Duties of the State as Christian. 
 
 The protection ought to be impartiall3^ given as be- 
 tween the believer and the unbeliever. Care ought to 
 be taken, lest an ill-defined and untenable theor\' as to 
 the character of the government should produce a bias 
 and lead to a discrimination against Christian people. 
 If with Mr. Anderson (see p. 295) we are to regard the 
 common law, which makes blasphemy, Sunday dese- 
 cration, and the disturbance of religious assemblies, 
 indictable offences, as simply providing protection 
 against nuisances, we have a right to insist that as 
 much consideration be given to the religious feelings 
 of Christian people as to the mere bodily senses of the 
 public in general. 
 
 It may be said that the law requiring that a render- 
 ing establishment, or a slaughter-house, be removed 
 outside of city limits, had regard only to the effect of 
 the odors upon the health of the people, and no regard 
 whatever to their comfort as affected by the stench. 
 But while there is ground for the presumption that 
 some unpleasant odors are detrimental to health, it is 
 not certain that all are. It has not been positivel}^ as- 
 certained that the workmen in the establishments just 
 mentioned are especially subject to disease. The mo- 
 tive force that produces legislation in such cases comes 
 from the people, and the most energetic motive is the 
 one which is most likely to be foremost in action, and 
 that is, in this case, the feeling of discomfort. The 
 probabilit}', therefore, is that legislation as to nuisances 
 is based in a large measure upon the feelings of the 
 people. Were an action to be brought to secure the 
 removal of an establishment that filled the air with 
 offensive odors, it is not at all likely that the com- 
 plainant would be required to prove that the odors 
 were noxious as well as offensive. The religious feel- 
 
Duties of the State as CJiristian. 353 
 
 ings of the Christian are certainly as worthy of pro- 
 tection from offence, as the feeUngs excited by the sense 
 of smell. The State ought, therefore, to prohibit such 
 acts, displays, and demonstrations on the I^ord's day 
 as offend those feelings. The Christian ought not to 
 be required either to have no religious feelings, or to 
 suffer the pain of the offence as a penalty for having 
 them. 
 
 Christian people, also, have a right to protection in 
 the training of their children in what they regard as a 
 matter of verj- great importance. People who desire 
 to secure for their children the benefits of education, 
 have a right to demand that bear dances, brass bands, 
 and military parades shall not be obtruded upon the 
 attention of their children in such a way as to interfere 
 with the attainment of the desired end. Should those 
 who were engaged in these exercises sincerely believe 
 that education made people worse instead of better, 
 yet, as ever}' one will readilj^ see, they have no right 
 thus to defeat the efforts of those who think best to 
 educate their children. 
 
 The Supreme Court of Pennsylvania, in the case of 
 Johnston v. Com., 10 Harris, 102, Woodward, J., said : 
 " The right to rear a famil)' with a becoming regard to 
 the institutions of Christianity, and without compel- 
 ling them to witness the hourly infractions of one of 
 its fundamental laws ; the right to enjoy the peace and 
 good order of society, and the increased security of 
 life and propertj^ which result from a decent observ- 
 ance of the Sabbath, are real, substantial rights, which 
 the legislature sought to secure by this enactment (and 
 when has legislation aimed at higher objects ?) and as 
 much the subjects of governmental protection as any 
 other right of person or property." This decision was 
 
354 Duties of the State as Christian. 
 
 quoted by the Supreme Court of New York with ap- 
 probation in the case of lyindenmuller v. The People, 33 
 Barbour, 560. 
 
 For these very plain reasons business houses ought 
 not to be allowed to be open on Sunday, nor should 
 military companies, or brass bands, be allowed to parade 
 on the streets on Sunday, nor should base-ball games 
 or other shows be allowed even outside of city limits, 
 when they obtrude themselves on the public, by the 
 throngs on the streets going to or coming from the 
 place of exhibition. The law of nuisance should be 
 impartiall}^ enforced. Even if the government is to be 
 regarded as destitute of positive Christian character ; 
 if the statutes which make blasphemy and Sunday 
 desecration offences, are to be regarded as simply pro- 
 viding protection against nuisances, it is a wrong to 
 discriminate against Christian citizens in the enforce- 
 ment of the laws. If, however, it is true that our gov- 
 ernment is necessarily, rightfully, and legally Chris- 
 tian, such discrimination would become a still greater 
 wrong. That there is a tendenc}' towards such dis- 
 crimination is indicated by the fact that some of the 
 States have no law against blasphemy, and one (Cali- 
 fornia) has repealed its Sunday laws, and has made 
 Sunday merely a holiday, with no distinction between 
 it and any other holiday. 
 
 It may be that Christian people have become so im- 
 bued with their Master's spirit of meekness that blas- 
 phemy and desecrati'sn of the Sabbath do not now 
 provoke to a disturbance of the peace of society ; but 
 they still have feelings, and it is to be presumed that 
 increased meekness has been attended with increase in 
 the strength and tenderness of feeling. Therefore, the 
 nuisance in question is to them more aggravated now 
 
Duties of the State as Christian. 355 
 
 than ever before ; and there is more reason now than 
 ever before for making and enforcing laws for their 
 protection. 
 
 4th. Not to adopt any sectarian Christian doc- 
 trines, nor protect bequests for pious uses. — The 
 State ought not to take any action which involves the 
 adoption or establishment of any sectarian Christian 
 doctrine. The courts may interpret the doctrinal stand- 
 ards of all the Christian denominations ; not, how- 
 ever, to declare which are true or false, but just as they 
 would interpret a contract, a deed, a will, or anj' other 
 document, to compel the fulfilment of an}' obligation 
 that ma}' be dependent thereon. The State maj' pro- 
 tect bequests for charitable purposes, and ma}' decide 
 what ptu-poses are charitable. It may grant incorpora- 
 tion to churches, theological schools, and missionary 
 societies, which being corporate persons have the right 
 that belongs to all other persons to receive gifts and 
 bequests for the promotion of their proper work. 
 Notwithstanding that the bequests made to these in- 
 stitutions are intended to aid in the teaching and prom- 
 ulgation of certain Christian doctrines, yet the State in 
 granting them protection does not make any decision 
 upon the character of those doctrines ; not any more 
 than it approves of the theology of any other person 
 whom it protects in the enjoyment of property received 
 by bequest. It has been held, however, that the 
 State cannot protect bequests that have been made for 
 what are technically called pious uses. Boards of trus- 
 tees may become incorporated, but a trustee in the 
 technical .sense of the term is not a corporate per- 
 son. A corporate body is created by the State. The 
 trust, however, is created by an individual, and the 
 trustee is appointed by him, and it falls therefore to 
 
356 Duties of the State as C Jurist i an. 
 
 the courts to pass judgment upon the object of the 
 trust when it is brought before them for action. The 
 appointing power of the creator of the trust is absolute ; 
 he may appoint an alien enemy or a minor, and the 
 trustee may have become a felon or a lunatic. Equally 
 absolute is the power of choosing the object of his 
 benevolence. The trust may be in contra-vention of 
 the policy of the law, as for the creation of a perpetu- 
 ity, " a thing, odious in law and destructive to the com- 
 monwealth ; stopping commerce and preventing the 
 circulation of riches in the kingdom ; and therefore not 
 to be countenanced in equity." Or it may be for purposes 
 connected with immoral practices, as for the support of 
 illegitimate children that may happen in the future to 
 be born. The State, in granting protection to a trust, 
 acting through its courts, must give judgment approv- 
 ing of both the trustee and the object of the trust. It 
 is only upon the ground of such approval that the pro- 
 tection asked can be given. If the State grant protec- 
 tion to a bequest, placed in the hands of a trustee for 
 pious uses, it must be regarded as approving of the 
 special doctrine upon which the use is based. If the 
 doctrine be, as it may often happen to be, a mere super- 
 stition, the State in protecting the bequest would be 
 giving its approbation to the superstition, and also 
 acting in contra-vention of public polic}^, — diverting 
 funds from productive business, fruitful of benefits to 
 mankind, to a use which can be fruitful only of evil. 
 Whatever it may do in the case it must decide whether 
 the doctrine upon which the pious use is founded be a 
 superstition or not. In England a devise for a fund to 
 circulate a book teaching the supremacy of the Pope 
 in matters of faith ; to provide prayers and masses for 
 the good of the soul of the testator ; to maintain a 
 
Duties of the State as Christian. 357 
 
 taper forever before our Lady, has been held to be void, 
 as being for a superstitious use. The State ought not 
 to decide upon the truth or falseness of any sectarian 
 Christian doctrine ; and if the protection of a bequest 
 for pious uses necessarily involves such a decision the 
 protection ought not to be given. 
 
 In the case of Andrew v. The N. Y. Bible and Prayer 
 Book Society, 4 Sand ford's Superior Court Reports. 
 180-184, the question at issue was whether a legacy 
 given for the purpose of promoting the circulation of 
 the Book of Connnon Prayer in New York could be 
 sustained upon the ground of its being a pious use. The 
 court said : " . . . The use attached to this legacy 
 is not a charitable use, in the usual and legal sense of 
 the term. It is strictly a pious use : not otherwise chari- 
 table than as the noblest office of charit}'- is the dissemi- 
 nation of religious truth ; but it is impossible for a 
 court of justice to sustain a use upon this ground, un- 
 less in a country where the truths of religion have been 
 settled and defined by law, or judges have discretion- 
 ary power to determine and declare them. 
 Under a Constitution which extends the same protec- 
 tion to ever}' religion, and to ever)' form and sect of 
 religion, which establishes none and gives no preference 
 to any, there is no possible standard by which the va- 
 lidity of a use as pious can be determined ; there are 
 no possible means by which judges can be enabled to 
 discriminate between such uses as tend to promote the 
 best interests of societ)' by spreading the knowledge 
 and inculcating the practice of true religion, and those 
 which have no other effect than to foster the growth of 
 pernicious errors, to give a dangerous permanence to 
 the reveries of a wild fanaticism, or encourage and per- 
 petuate the observances of a corrupt and degrading 
 
358 Duties of the State as Christian. 
 
 superstition. Hence, unless all uses that may be de- 
 nominated pious shall be subjected to the same rule 
 as other trusts, we shall find no escape from this alter- 
 native ; either all uses for a religious purpose, whether 
 the religion they are intended to aid be true or false, 
 rational or absurd, must be upheld and enforced, or the 
 uses connected with a particular form of religion must 
 be selected as the special and exclusive objects of favor 
 and encouragement. If we adopt the first course, we 
 renounce the principle upon which pious uses were first 
 introduced, and upon which alone their defence can be 
 rested, namely, their tendency to benefit society by dif- 
 fusing the knowledge and practice of true religion. 
 We disregard and denj' the eternal distinctions between 
 truth and falsehood, and give the sanction of law to the 
 pernicious absurdity that all religions, however contra- 
 dictory in their tenets and in their precepts, have a just 
 and equal claim, not merely to the protection, but to 
 the favor of the government, and are not simpl}' to be 
 tolerated but encouraged. If we adopt the second al- 
 ternative, we violate that equality between different re- 
 ligions and different forms and sects of religion which 
 the principles of our government and the provisions of 
 our constitution are designed to secure ; we create an 
 odious distinction between different classes of our citi- 
 zens ; and by declaring that the religion which we favor 
 is alone true we establish it, in a restricted sense it 
 is true, but in a definite sense, as the religion of the 
 State. 
 
 " We are quite aware of the answer that has been 
 given to this objection. Christianity, it has been as- 
 serted, is now in a modified sense the religion of the 
 State. It is so as a part of the common law which our 
 ancestors introduced and we have retained. Christian- 
 
 1 
 
Duties of the State as Christmn. 359 
 
 ity, therefore, furnishes the test that is desired, so that 
 in judging of the vaHdity of a use as pious we have 
 only to inquire whether it is in harmony with the doc- 
 trines that Christianity teaches. 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 attempt 
 to explain its meaning. We have however the high 
 authorit}- of Lord Mansfield and of his successor, the 
 present Chief Justice of the Queen's Bench, Lord Camp- 
 bell (Campbell's Lives of Chief Justices, vol. ii., p. 513) 
 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, that blas- 
 phemy is an indictable offence at common law. The 
 truth of the maxim in this very partial and limited 
 sense may be admitted. But if we attempt to extend 
 its application we shall find ourselves obliged to con- 
 fess that it is unmeaning or untrue. If Christianity is 
 a mmiicipal law, in the proper sense of the term, as it 
 must be if a part of the common law, every person is 
 liable to be punished b}- the civil law who refuses to 
 embrace its doctrines and follow its precepts ; and if it 
 must be conceded that in this sense the maxim is un- 
 true, it ceases to be intelligible, since a law without a 
 sanction is an absurdity in logic and a nullity in fact. 
 
 " Let it be admitted, however, that Christianity is a 
 part of the common law in any sense of the maxim, 
 which those who assert its truth may choose to attrib- 
 ute to it. The onl}^ effect of the admission is to create 
 new difficulties quite as impossible to overcome as those 
 that have already been stated. How, we would then 
 ask, in judging of the validity of a use as pious, are we 
 to apply the test which Christianity is said to furnish ? 
 
360 Duties of the State as Christia^i. 
 
 It will not be pretended that the common law has sup- 
 plied us with any definition of Christianity. Yet with- 
 out a judicial knowledge of what Christianity is, how 
 is it possible to determine whether a particular use, 
 alleged to be pious, is or is not consistent with the 
 truths which Christianity reveals ? No religious use 
 has been or can be created that does not impl}^ the ex- 
 istence and truth of some particular religious doctrine, 
 and hence when we affirm the validity of a use as pious, 
 we necessaril}^ affirm the truth of the doctrine upon 
 which it is founded. In a country where a definite 
 form of Christianity is the religion established by law, 
 the difficulty to which we refer is not felt, since the 
 doctrines of the established church then supply the 
 criterion which is sought ; but with us, it can readily 
 be shown that the difficulty is not merely real and seri- 
 ous but insurmountable. 
 
 " I^et us suppose that a Roman Catholic had devised 
 his whole estate, real and personal, to trustees, to applj^ 
 the income forever, one half to the purchase of indul- 
 gences for the benefit of such as might seek them, and 
 the other moiety to the payment of dail}' masses for the 
 safety of his soul, and that the validit}' of this devise 
 were the question to be determined. In England such 
 uses are held to be void, as superstitious ; but the 
 statute by which they are declared so we have repealed, 
 and some other rule or principle must be found to gov- 
 ern our decision. The uses, it is manifest, imply the 
 existence and truth of certain important doctrines. 
 The}' imply that the Saviour has delegated to the Pope, 
 as His vicar on earth, the absolute and unconditional 
 power of pardoning sin. They imply the existence of 
 purgatory, and the duty and efficacy of prayers for the 
 dead. Such is the necessary import of the uses upon 
 
Duties of the State as Christian. 361 
 
 the validity of which, guided by the light of Christi- 
 anity, we are required to pronounce. Shall we, by 
 sustaining them as pious, declare that the doctrines 
 which they imply belong to the class of truths which 
 the New Testament reveals ; or shall we, by rejecting 
 them as superstitions, condemn as false and corrupt the 
 ancient faith which so large a class of our citizens avow 
 and follow? Are these questions, over which we, as 
 judges, whatever we may privately think, have any 
 jurisdiction? Are they questions which any court of 
 justice in this State, at any time since the formation 
 of our present government, could rightfully entertain 
 and decide? Such are the questions that must be con- 
 sidered and decided, if uses inconsistent with the gen- 
 eral rule of law are to be sustained as pious, and the 
 proper test of their legalit}' as such is their corre- 
 spondence with the true doctrines of Christianity. 
 
 ' ' For ourselves, if the case we have supposed w^ere now 
 before us, we should not hesitate in pronouncing our 
 judgment, abstaining from any remarks upon the 
 nature and tendenc}- of the uses, neither admitting 
 them to be pious, nor condemning them as superstitious. 
 We should hold the devise to be entirely void, as re- 
 pugnant to those wise and salutary rules of law which 
 forbid the citizen to withdraw his property, beyond a 
 limited period, from that free circulation which the 
 interests of commerce and the healthful action and per- 
 manence of our Republican institutions alike demand ; 
 and if this would be a proper decision in the case sup- 
 posed, it is manifest that the same judgment ought to 
 be pronounced in every case where a trust which in- 
 volves a perpetuity is sought to be maintained upon the 
 sole ground of its piet}-. We may be disposed to regret 
 that a perpetual trust for the distribution of that sub- 
 
362 Duties of the State as Christian. 
 
 lime manual of true devotion, perhaps the noblest of 
 human compositions, the Book of Common Prayer, can- 
 not be sustained ; but the regret must cease when we 
 reflect that it can only be sustained upon a principle 
 that would render just as valid a similar trust for the 
 circulation of the monstrous fables of the Talmud, or 
 the gross impostures of the Koran." 
 
 5th. Not to give favor and protection to a trust 
 created with purpose hostile to Christianity. — 
 The State ought not to give favor and protection to a 
 trust created with hostile purpose towards Christianity. 
 (See Webster's argument before the Supreme Court of 
 the United States, in the case of Vidal and others v, 
 the Executors of Stephen Girard, Works, vol. vi., pp. 
 133-177 ; also the decision of the court in that case. 
 Reports, vol. xv., 2, 3 Howard, pp. 83-87, both re- 
 ferred to and quoted in part, p. 139, All persons, 
 whether real or corporate, Christian or anti-Christian, 
 are entitled to freedom of opinion and of speech, and 
 are to be protected in the decent and orderly promul- 
 gation of their doctrines ; but a trust is not a person 
 in any sense of the term. Christianity, in a proper 
 sense, is the established religion of this nation ; es- 
 tablished, not by statute law, it is true, but by a law 
 equally valid, the law in the nature of things, the law 
 of necessity, which law will remain in force so long as 
 the great mass of the people are Christian. And not- 
 withstanding some implications in the decision just 
 cited, our courts are just as competent to decide be- 
 tween Christians and non-Christians, what the general 
 principles of Christianity are, as they are to decide 
 between Christians on the one part, and Mormons or 
 pagans on the other part, what the principles of moral- 
 ity are. 
 
Duties of the State as Christian. 36 
 
 o 
 
 When it grants incorporation to societies of Jews, 
 Mohammedans, pagans, and atheists, in order that 
 the}^ may be enabled to hold property, sue and be sued, 
 it creates a corporate person, which may be anti-Chris- 
 tian in its purpose, but the act no more implies the 
 adoption or the exercise of a positive agency in the 
 promulgation of the doctrines of those societies than 
 granting incorporation to the congregations, theological 
 schools, and missionary organizations of the various 
 Christian sects implies the adoption or the promulga- 
 tion of the sectarian doctrines those bodies were organ- 
 ized to teach. It may grant incorporation to societies 
 of disbelievers and unbelievers, just as it may grant 
 license for marriage to individual disbelievers and un- 
 believers, notwithstanding that its act results in the 
 one case in the creating, and in the other (as is to be 
 presumed) in the begetting of an anti-Christian person. 
 It may refuse to create a corporate person intended to 
 promote immoralit}-, just as it may refuse license for 
 the marriage of idiots and lepers ; but, excepting in 
 such cases, the person, w^hether created or begotten, is 
 entitled to protection in the freedom of opinion, of 
 speech, and publication, when that freedom is not used 
 in an indecent and disorderly manner. A trust, how- 
 ever, is not a person, and the denial of favor and pro- 
 tection to a trust created for a purpose hostile to 
 Christianity is not inconsistent with the granting of 
 incorporation to bodies which may be presumed to be 
 hostile to that religion. 
 
 6th. Not to discontinue any Christian practice 
 for any reason derogatory to Christianity. — The 
 government ought not to discontinue any Christian 
 practice or exercise which has become established by 
 custom ; such as the opening of the daily sessions of 
 
 I 
 
364 Duties of the State as Christian. 
 
 the Congress of the United States and of the legisla- 
 tures of the States, with prayer ; the employment of 
 Christian ministers as chaplains in the army and navy, 
 in the prisons, hospitals, and homes under its charge ; 
 and the opening of the daily sessions of the public 
 schools with religious exercises. If such exercises 
 should be discontinued in any case, it ought not to be 
 for any reason that is derogatorj' to Christianity. 
 
 The objection that the sessions of the courts, supreme 
 and subordinate, the meetings of the President's Cabi- 
 net, of the Governor's council, of City Councils, and 
 Boards of Education, though all needing divine guid- 
 ance as much as the Congress, the legislature, and the 
 public school, are not opened with prayer, and that the 
 principle, if it be a right one, ought to be made gen- 
 eral ; we are fully warranted in pronouncing a mere 
 cavil, for there are obvious reasons for an opening with 
 pra3'er in the one class of cases which do not exist in 
 the other. 
 
 A strong impression of greatness or importance pro- 
 duces an exalted state of feeling, which is kindred to 
 and naturally awakens the religious feeling. Great 
 perils, great calamities, great deliverances, cause the 
 most of men to think of the Almighty. Mountain 
 pinnacles fill the soul with awe and point to God. The 
 meeting of large numbers of men for a common object, 
 especially if the meeting be a formal one, is impressive, 
 and excites an emotion which naturall)^ tends upward. 
 It is perfectly natural that the great National and State 
 political conventions should be opened with prayer ; 
 not so natural that the meetings of the National execu- 
 tive committees should be opened with prayer ; per- 
 fectly natural that the National and State Teachers' 
 Associations should be opened with prayer ; not so 
 
Duties of tJic State as Christian. 365 
 
 natural that the meetings of sections and committees 
 should be so opened ; perfectly natural that the daily 
 sessions of Congress and the legislature should be 
 opened with prayer ; not so natural that the meetings 
 of their committees should be so opened ; perfectly 
 natural that the daily sessions of the public school 
 should be opened with prayer ; not so natural that the 
 meetings of the Board of Directors should be opened 
 with prayer. It would be hardly just for the unbe- 
 liever to say that in these cases of omission the public 
 authorities have come over to his ground, and that to 
 be consistent they ought to make the omission general. 
 They have not come over to his ground. They have 
 not made the omissions for his reasons at all. 
 
 7th, Either to exempt church property from 
 taxation or change principle of exemption.— The 
 customarj' exemption of propertj^ used for Christian 
 worship from taxation may very well be continued ; in- 
 deed, in the present state of the case, ought not to be 
 discontinued, for the discontinuance would involve a 
 discrimination against Christianitj-. There can hardly 
 be a doubt that it was the Christian sentiment of the 
 people prompted the exemption at the beginning, but 
 it is doubtful whether the continuance can be properly 
 based on any obligation which the government, as 
 Christian, owes to Christianity. If the exemption is 
 based upon the supposed duty of the government to 
 foster Christianit}', then it must follow that the places 
 of worship used b}- all non-Christians, — Confucians, 
 Buddhists, Mohammedans, and even the synagogues 
 of the Jews, are to be denied the like exemption ; for 
 it would be a self-stultification to foster contradictory 
 S)^stems of religion. A Christian people animated by 
 the true spirit of Christianity will not desire that the 
 
366 Duties of the State as Christian. 
 
 government shall foster their religion by laying upon 
 the followers of other religions burdens from which 
 they are exempt. Such fostering would possess the 
 essential character of persecution. 
 
 The exemption may very properly be made on the 
 general principle that all propertj^ which is used for a 
 public purpose, and not for pecuniary profit, is to be 
 exempt from taxation ; the principle upon which the 
 property of educational and charitable institutions, of 
 public libraries, agricultural, horticultural, mechanical, 
 and philosophical societies, is exempt. To make ex- 
 emptions upon such a principle, and not to exempt the 
 property used for Christian worship, would be to dis- 
 criminate against Christianity ; and not to exempt at 
 the same time the property used for other forms of re- 
 ligious worship would be to discriminate against all 
 religion. It cannot be denied that the exemption in 
 the case of the institutions and societies just mentioned 
 has a fostering purpose ; a purpose which as we have 
 seen cannot be applied to Christianity without involving 
 the persecution of other religions ; and cannot be ap- 
 plied to all religions without involving the absurdity 
 of fostering contradictory systems. To give them all 
 perfect freedom is one thing ; to foster them all is 
 another thing. 
 
 It would be better, perhaps, to abandon altogether 
 this principle of exemption, and exempt only Federal, 
 State, County, and Municipal property, on the ground 
 that it is the product of taxation. Two good reasons 
 may be given for the abandonment of this principle : 
 ist. It would inflict no hardship or injustice on any- 
 body. 2d. The principle is one which cannot be 
 consistently carried out. If the principle was made 
 really general and was consistently carried out, it 
 
Duties of the State as Christian. 367 
 
 would require that all the private pleasure-grounds and 
 art galleries of the wealthy which are open to the public 
 at stated times, the club-houses of the city, the houses 
 and other property of boating and yachting clubs, 
 should be exempt, for this property is all employed for 
 a public use, and not for pecuniary gain, if not exactly, 
 yet ver}' nearly in the same sense in which the houses 
 of religious worship are so employed. In accordance 
 with this principle the streets and pleasure-grounds of 
 Pullman, a suburb of Chicago, containing 11,000 in- 
 habitants, but owned entirely by the Pullman compau}', 
 ought not to be taxed ; while the church which is 
 owned b}^ the company and rented to the congregation 
 worshipping in it, just as all the other houses in the 
 place are rented, ought to be taxed. 
 
 8th. Conform its actions on moral questions 
 to the precepts of Christianity. — The State, when 
 it acts upon a moral question, ought to conform its 
 action to the precepts of Christianity. The courts, 
 however, are not to be deemed competent to enforce by 
 penal inflictions any of the precepts of Christianity 
 which have not been incorporated with the statutes. 
 But the legislature ought to be regarded as under ob- 
 ligation to frame the statutes on moral questions in 
 accordance with the precepts of Christianity. It should 
 not profess to have discovered by speculation, or to 
 have deduced from the writings of sages, or from the 
 experience of mankind, the moral code upon which it 
 bases its requirements ; nor should it pretend that its 
 moral requirements are based upon such a code, to the 
 entire exclusion of all considerations that may be drawn 
 from the precepts of Christianity. Ethics may have 
 been advanced in these latter days to the position of a 
 science, but it is not an exact science, its promoters not 
 
368 Duties of the State as Christiait. 
 
 being agreed, as yet, even upon its fundamental princi- 
 ples. For this reason, if there were no other, it is ex- 
 ceedingly doubtful whether the State can rightly launch 
 out upon the sea of speculative ethics, and require a 
 Christian people to accept its discoveries, as the rule 
 of their action or the basis of their laws. An abstract 
 code of morals for the State, independent of the moral 
 convictions of the people, is a fiction. The code by 
 which legislation is to be governed is the code of the 
 people ; and in this country, it is the code of Chris- 
 tianity. To impose any other code than that, or even 
 that as modified by unbelief, or by a debased moral 
 sentiment, would be a wrong ; an evil root which can 
 be expected to produce none but evil fruit. 
 
 Upon the subject of marriage and divorce, the State 
 ought to conform its regulations to the precepts of 
 Christianity, and not to any social code supposed to 
 have been derived from an extra Christian source. All 
 Christian people, Roman Catholics and Protestants 
 alike, believe that on this subject the Bible is a di- 
 vinely given rule of practice, and that there can be 
 therefore no departure from that rule but to the injury 
 of the public welfare. 
 
 No more serious mistake could be made than to re- 
 duce marriage to the condition of a mere civil contract, 
 as those are disposed to do who contend that the gov- 
 ernment ought to be destitute of all religious character. 
 Marriage is a relationship, having its basis in nature 
 and in the ordinance instituted by nature's God. The 
 contract is an incident, necessary to the beginning of 
 the relationship, but of small importance compared with 
 the relationship itself. The atoms of Oxj'gen and Hy- 
 drogen in water were brought into contact and held 
 together by the force of gravitation, inherent in each, 
 
Duii'es of ike State as Christian. 369 
 
 but that contact was only a necessary incident to the 
 union which afterwards took place, and which consti- 
 tuted a permanent relationship, making of twain one 
 new thing. To dissolve the relationship and force back 
 the connection into one of mere contact would be de- 
 structive to the constitution of the world. Scarcely 
 less destructive to the constitution of society would it 
 be to reduce marriage to the condition of a mere civil 
 contract. The consequences of such a step w'ould 
 speedily demonstrate that the law of Christ, in this 
 matter, is a law of nature. Much nearer to the true 
 law of social life is the doctrine of the Roman Catholic 
 Church which makes marriage a holy sacrament. 
 
 There is one instance in nature in which we have con- 
 tact without relationship. The Oxygen and Nitrogen 
 of the atmosphere are in contact but not in union, and 
 beneficently so. The Oxygen, however, is no free- 
 lover ; and it is ever ready to enter into permanent re- 
 lationship with some one of its affinities ; and when 
 the union is once consummated it would be perpetual, 
 did no extraneous force produce a dissolution. The 
 Oxygen in the atmosphere is like one of the sexes in 
 the period of minorit}-, ever read}- to convert the acci- 
 dental condition of contact into one of permanent rela- 
 tionship, from which, obedient to the laws of nature, it 
 never seeks release. Marriage is more than contract, 
 as chemical union is more than contact. 
 
 9th. To observe the Lord's day as a day of rest 
 and conform its regulations to the view held by 
 the majority of the people. — The government should 
 observe the Lord's day as a day of rest, and should 
 conform the regulations it prescribes for the observance 
 of that day to the view which is held by the majority of 
 Christian citizens. It has no right to inquire into or 
 
3 JO Duties of the State as Christian. 
 
 decide upon the merits of the different sectarian views 
 that maybe held upon that subject. It has passed far 
 beyond that stage of development in which it would 
 possess any such right. 
 
 It should observe and appoint the first day of the 
 week as the day of rest ; not however upon the ground 
 that it has rejected the views of the Sabbatarians and 
 adopted the views of those who hold to the divine ob- 
 ligation of what is called the Christian Sabbath, but 
 upon the ground that the good order of society and the 
 attainment of the object of the institution require that 
 a particular day should be appointed by law, and that 
 as the vast majority of Christian citizens observe the 
 first day of the week the appointment of that day will 
 be attended with the least hardship. 
 
 It ought to observe the day and order all its regula- 
 tions for the observance, in accordance with the pre- 
 vailing view as to the proper mode of the observance. 
 To observe the day, and order all its regulations for the 
 observance thereof in accordance with the view which 
 prevails on the continent of Europe, while the prevail- 
 ing view in this country is the one which is known as 
 the Puritanical view, would be as unjust as to adopt 
 and enforce the Puritanical view while the people were 
 holding the continental European view. In either case 
 the government would be a self-constituted propagator 
 of a particular religious doctrine ; and more than that, 
 it would be putting its power in the hands of a minor- 
 ity to ofiend and wrong the majority. It is no part of 
 the proper function of government to propagate any 
 particular form of Christian doctrine, whether liberal 
 or rigid, so called. To say that in adopting any Sun- 
 day legislation at all it must of necessity adopt and 
 propagate the one view or the other ; that it must be 
 
 m 
 
Duties of the State as Christian. 371 
 
 regarded therefore as perfectl}^ free to make its choice 
 between the two, and that the principles of hberty re- 
 quire it to choose the so-called liberal view, is to mistake 
 the facts in the case and the proper relation of the gov- 
 ernment to the whole question." The fact that the 
 Puritanical view has been the prevailing one in this 
 countr}' from the time of the first landing on the banks 
 of James River and Plymouth Rock cannot be ques- 
 tioned. It is found in the legislation of all the Colo- 
 nies, of all the original States, and of nearly all the 
 other States. It has been established in the sentiments, 
 traditions, and customs of the people from the begin- 
 ning. That this view has been the prevailing one in 
 this country' is shown \>y the fact that on the continent 
 of Europe, it is known and designated, not as the Puri- 
 tanical, but as the English and American view. The 
 government has not been free, and is not now free to 
 make any choice in the matter. For the government 
 to adopt and enforce any other view of the Sabbath 
 
 ' The use of the word liberal, in connection with a question 
 of truth or right, is mere cant ; for there can be no place for 
 liberality in the determination of such a question. Think of 
 a surveyor set to ascertain the exact dimensions of a piece of 
 ground ; or of an engineer sent out to ascertain the exact level 
 at which a section of railroad should be laid ; or of a chemist 
 employed to find the exact constituents of a compound body ; 
 appending to his report the statement that he had taken in 
 a large amount of liberality as a factor in the investigation ! 
 That very admission would be ground enough for the rejection 
 of his whole work as worthless. To confess liability to error is 
 not liberality ; it is honesty. Liberalism claims to have gone 
 beyond the limits of what is required ; Honesty professes that 
 it has endeavored to come up to those limits. Liberalism is 
 proud ; honesty is humble ; liberalism is boastful, honesty is 
 modest ; liberalism is censorious, honesty is charitable ; liberal- 
 ism is the pharisee of the parable, honesty is the publican. 
 
372 Duties of the State as Christian. 
 
 than the one which prevails among its Christian citi- 
 zens would be to exercise the power of a spiritua' 
 despot. 
 
 It is undoubtedly true that a part of the population 
 of this country, not by any means inconsiderable in 
 point of numbers, would prefer the continental Euro- 
 pean mode of observing the Sabbath. And it might 
 be pleaded that in strict justice the government ought, 
 in its own conduct and in the regulations it prescribes, 
 to follow a middle course between the two views. 
 The justice of this plea would have to be conceded, 
 perhaps, were the people of this country who hold 
 the view in question equal in numbers to those who 
 hold the Puritanical view, and were they of like char- 
 acter with those who hold the other view in Europe. 
 But the equality in numbers and the likeness in charac- 
 ter are both wanting. In Europe the doctrine of the 
 Sabbath there prevailing is held considerately by the 
 most sincere and earnest Christians. They regard their 
 doctrine as founded on important Christian principles. 
 They hold that the observance of the Lord's day as 
 a day of rest and public worship is necessary to the 
 highest Christian life, and therefore obligatory ; the 
 duty arising entirely from the value of the spiritual end 
 to which it is a means, and not in any degree from a 
 sanctity belonging to the hours of the day in them- 
 selves. To hold that the day now possesses a holiness 
 which can be profaned by acts, otherwise allowable, 
 even if done through inadvertence or an error in reck- 
 oning, — to assume, for instance, that by the divine 
 ordinance the day was made to begin with the evening, 
 and then hold, that to engage in such worldly occupa- 
 tions and recreations as are lawful in themselves, from 
 sunset till midnight on Saturday, would be a profana- 
 
Duties of the State as Christian. t^j^) 
 
 tion, the sinfulness of which could not be blotted out 
 by the most devout and scrupulous observance of an 
 equal number of hours after sunset on Sunday would 
 be, in their view, to go back into the bondage of the 
 Old Testament ceremonial law, from which Christ 
 made his people free. They believe that in this doc- 
 trine of the Christian Sabbath they are following the 
 most eminent reformers/ The people in this country, 
 however, who desire the establishment of the European 
 Sunda}' are not of such a character ; nor is their conduct 
 in the matter governed by any such principles. It can 
 hardly be regarded as a breach of charity to say that 
 they are, with slight exceptions, irreligious, including 
 in their number all that are positively anti-Christian, 
 and a large proportion of the vicious and criminal 
 classes. 
 
 The government possesses a positively religious char- 
 acter ; it is Christian, and to modify its regulation of 
 
 ' A note made by the late Rev. "William B. Sprague, D. D., 
 of Albauy, N. Y., of a visit to the late Dr. Aug. Neander will 
 serve to show the view of the Sabbath which is held by some of 
 the most eminent Christians in Germany. He says : 
 
 " Neander was the first person upon whom I called at Berlin. 
 . . . He spoke in a manner that indicated the highest rev- 
 erence and respect for the King, and when I asked him con- 
 cerning the King's religious character he remarked that he had 
 no doubt he was a truly pious man. I expressed some astonish- 
 ment at that, from having seen it stated in a French newspaper 
 that I had taken up that he attended the theatre on the Sab- 
 bath. ' But,' says Neander, 'I suppose you know that the same 
 views of the Sabbath are not entertained in Germany as in Eng- 
 land and America. I do not entertain them myself. ... I 
 would not go to the theatre any day of the week, but there is 
 nothing that I would do at any time that I would not do on 
 Sunday, if convenience required it.' . . . 
 
 "Immediately on my introduction to Neander he asked me 
 
3 74 Duties of the State as Christian. 
 
 a Christian observance in accommodation to the views 
 of the irreligious or the anti-Christian would be the 
 same as to modify the syntax and orthography of its 
 statute books, its records, and public documents in ac- 
 commodation to the usages of the illiterate ; or to 
 modify its laws relating to property in accommodation 
 to the doctrines of anarchists ; or to modify its laws 
 against brutalit}^ in accommodation to the views of 
 those who frequent the prize-ring and the dog-pit. 
 The government being Christian, and so long as it is 
 Christian, may very properly make accommodation 
 between the different views on the positive side of the 
 question ; but not between the views of the positive 
 and those of the negative. A general may have regard 
 to the views of the different arms of the service, in 
 disposing his forces for battle, but not to the views 
 of the enemy. If the government is Christian, the anti- 
 Christian must be regarded as in that respect an enemy. 
 
 if I would dine with him the next vSunday ; and as it presented 
 to me the alternative of dining in a Christian family or in a 
 hotel, I had no scruples in accepting the invitation. ... In 
 due time the servant announced that dinner was ready, and 
 what was my astonishment as I entered the dining-room to 
 find as many guests there as the room could possibly accommo- 
 date. . . . The manner in which the afternoon was spent 
 ■was quite in accordance with the German doctrine in respect to 
 the Sabbath ; and as the good-humored, not to say boisterous, 
 demonstrations were all in German, I must confess that I was 
 for once more than reconciled to my ignorance of the language. 
 What aggravated the case to me was that I had no reason to 
 doubt that the dinner part)' had been made on my account. 
 . I am sure he did not intend to do violence to my feel- 
 ings, and I am equally sure that if he had had any adequate 
 appreciation of the manner in which we regard the Sabbath, I 
 should not have been placed in a situation so painful to me." 
 — Visits to Enrotean Celebrities, pp. 131-135. 
 
Duties of the State as Christian. 375 
 
 All}' officer in the civil or military service of the 
 government who assumes that the government is desti- 
 tute of all religious character, or that the continental 
 European doctrine of the Sabbath is the established 
 doctrine of this government, and, upon that assumption, 
 requires his subordinates to do unnecessar}^ work on 
 Sunda}^ commits an offence against the people and in- 
 flicts a wrong upon his subordinates. An officer, so 
 offending, ought to be rebuked and restrained by his 
 superiors. 
 
 10. To require that all teaching in high schools, 
 State universities, military and naval academies 
 be in accordance with the fundamental truths 
 of Christianity. — The government ought to pro- 
 vide Christian teaching and nurture for all those 
 citizens to whom it stands in loco parentis. This duty 
 we have already considered to some extent (see p. 
 243), but we proceed, now, further to say that the State 
 is under obligation to require that all the teaching in 
 the high schools, universities, military and naval acad- 
 emies, be in accordance with the fundamental truths 
 of Christianity. Here is ground upon which there 
 can be no neutralit3\ A large range of subjects is 
 taught in these institutions, in which the teaching 
 must be either for or against Christianity. Theism ; a 
 divine production of all finite things (in one way or 
 another) ; the dependence of nature's laws upon the 
 divine will for their existence and their constancy ; the 
 distinction between matter and spirit, body and mind ; 
 are fundamental postulates of Christianity. If these 
 be denied Christianity cannot be believed ; and it is 
 impossible to teach Physics, Metaphysics, Philosophy, 
 History, Geography, Chemistry, Astronomy, or Biol- 
 og}^ as they ought to be taught, without making af- 
 
376 Duties of the State as Christian. 
 
 firmations that involve the acceptance or rejection of 
 one or another of the postulates mentioned. To teach 
 any of these subjects and make no affirmations on these 
 postulates, were the same as to teach optics or acoustics 
 and make no affirmation upon the doctrine of vibrations ; 
 or to teach Chemistry and make no affirmation on the 
 doctrine of atoms ; or to teach Biology and make no 
 affirmation on the origin of life. A State university 
 that should so teach on these subjects would speedily 
 fall into the lowest rank, and would soon become 
 extinct. Since, therefore, there must be teaching in 
 these institutions which is either for or against Chris- 
 tianity, the State, in a Christian land, is bound to 
 require that the teaching be not in contradiction to, 
 but in conformity with the fundamental truths of Chris- 
 tianity. The matter should not be left to accident, 
 with the secret hope that it will turn out favorably to 
 the Christian public. The State university, however 
 endowed, has no more independence of the people than 
 the public school, for there is no mystic source of 
 revenue, in the heights of heaven or in the depths of 
 ocean, whence the State may obtain monej^, and leave 
 untouched the amount the people have saved from the 
 earnings of their toil. Every cent of the funds of the 
 State university, whatever maj^ be the immediate source, 
 has come out of the pockets of the people, just as 
 really as though it had been raised by direct taxation ; 
 and to spend the money of a Christian people for the 
 support of a state university and not give positive 
 legislative guaranty that the teaching therein shall not 
 contradict the truths of the Christian religion, merely 
 hoping that it will turn out favorably to them, were as 
 great a wrong as it would be to take the people's money 
 out of the treasury of the State and lend it without 
 
 • 
 
Duties of the State as Christian. 2>77 
 
 taking note or security, hoping that the borrower when 
 the time of re-payment comes will be found in such a 
 financial condition, and in such a moral mood, that the 
 transaction will inflict no wrong upon the people. 
 
 Furthermore, when Christian people pay their taxes 
 for the support of State schools, and a number of them, 
 in addition to that, expend large sums of money for 
 the founding of institutions of learning in which they 
 shall have the guaranty in question, it cannot be just 
 for the State to use the proceeds of taxation to institute 
 a competition wdiich will tend to cripple or ruin those 
 institutions. Still greater will be the injustice if ad- 
 vantage should be taken of the special interest of a 
 Christian people in institutions of their own founding, 
 to convert the State university into the preserve of a 
 class, composed of atheists, agnostics, and the irreli- 
 gious, to be managed in accordance with their peculiar 
 views on the subject of religion. 
 
 If persons, belonging to this class, desire an institu- 
 tion of learning in which all the teaching shall be in 
 accordance with their views, no one will deny their 
 right to found such an institution. Let the State grant 
 them a charter ; let them endow the institution wdth 
 their own money, and let them proclaim openly its 
 object ; but let them not attempt to accomplish 
 their purpose, covertly and cheaply, b}' the use of 
 funds which have been derived, almost wholly, from a 
 Christian public. Even if the State w^ere not Christian, 
 if it were neutral on the subject of religion, the effort 
 to make the principles of atheism rule the teaching in 
 a State university would be a violation of right. In 
 that case, the teaching ought to be perfectly neutral, 
 which, as we have shown, would be an impossibilit)\ 
 But a State, composed of Christian people, as we have 
 
T^J^ Duties of the Stale as Christ? an. 
 
 also shown, is not, and cannot be, neutral ; it is, and 
 of necessity must be Christian. 
 
 If it be said that Christian people are in the majority 
 and have only themselves to blame for the wrongs the}' 
 suffer, it is to be replied that when they express their 
 will by the ballot the issue is always complicated with 
 other political questions ; that they share in the general 
 confusion of ideas on the relation of religion to civil 
 government ; and that a zealous minority may ver\' 
 easily avail itself of these circumstances to exercise 
 over them the power of a despot. Despots have al- 
 ways been a minority, and they have always established 
 their power by taking advantage of favoring circum- 
 stances. Mere opportunity does not make despotism 
 right. 
 
 Large accumulations of wealth cannot be expected to 
 endure in this country beyond two or three generations, 
 neither can they be used to found a hereditary aristoc- 
 racy ; the Constitution of the United States having 
 prohibited both the United States and the States grant- 
 ing any title of nobility. There will always, therefore, 
 be a strong tendency to emplo}' superabundant wealth 
 in the founding and endowment of institutions of charity 
 and learning ; and the history of the higher education 
 in this country amply sustains the opinion, that private 
 munificence will be a sufficient reliance for the purposes 
 of such education. The State university is in fact of 
 sentimental origin. It was provided to meet no real want, 
 or at best, only a prospective want, which was already 
 being provided for by private enterprise. The older 
 States, with their provisions, privately made, Massachu- 
 setts, with her Harvard, Amherst, and Williams ; Con- 
 necticut, with her Yale ; Rhode Island, with her Brown ; 
 New York, with her Columbia, Union, Hamilton, and 
 
Duties of the State as Christiati. 379 
 
 Cornell ; New Jersey, with her Princeton and Rutgers ; 
 and Marj'land, with her Johns Hopkins need, no State 
 university. If it be admitted that, where there is a 
 State university of high rank, no other similar institu- 
 tion is needed ; it must be admitted also, that the exist- 
 ence of such an institution will tend to prevent the flow 
 of private wealth into educational channels. It may 
 be doubted whether Michigan, with her Ann Arbor, 
 will ever have an institution of learning, privately 
 founded, equal in endowment and equipment to Chi- 
 cago University in Illinois ; which, considering the 
 exposure of a State institution to political and anti- 
 Christian influences ; and weighing justly all the other 
 considerations that enter into the question, can hardly 
 be regarded as the best provision for the higher educa- 
 tion of a Christian people. 
 
 If, however, a State could organize its university so 
 as to be entirely free from the influence of State politics, 
 and should give guaranty that the teaching therein 
 should not be subversive of Christianity, the abundant 
 funds available to put it, at once, in the condition of 
 the highest efiiciency, would be an advantage. 
 
 A further advantage might then be easily obtained 
 by the adoption of a system which would bring all the 
 private institutions into some sort of relation to the 
 State institution, such as that of colleges to a univer- 
 sity, thus specializing the work, getting the utmost 
 benefit from the expenditure, and making, of the whole, 
 one true university. Or, that failing, then, if the State 
 institution, and one or more of the private institutions, 
 should be made universities in reality as well as in 
 name, their competition would act as a perpetual stimu- 
 lus, inciting all to the attainment of the highest excel- 
 lence. 
 
380 Conclusion. 
 
 The contingencies, in which the State university may 
 be so managed as to inflict injustice upon Christian peo- 
 ple, are so Hkely to occur, that the State ought, either 
 not to establish such an institution, or ought, in estab- 
 lishing it, to adopt legislative safeguards sufficient to 
 prevent any such infliction. 
 
 But, the question of justice aside, when education 
 ascends above the requirements of merely mundane 
 utility, and aims at culture, not in the vulgar, but in 
 the full and proper sense of the word — the development 
 of a perfect man, — it enters the domain of religion ; 
 just as the blade, springing up from the buried seed, 
 enters the domain of light. To exclude religion from 
 such education would be to exclude the possibility 
 of the education itself. As well attempt to produce 
 a perfect development of plant or animal without sun- 
 light, as to produce a perfect development of man 
 without the religion of Him who is ' ' the light of the 
 world." 
 
 CHAPTER XX. 
 
 CONC1.USION. 
 
 The survey we have taken of the relation of religion 
 to civil government will justify us, we think, in saying 
 that in the United States of America religious liberty 
 has made its farthest advancement ; and that, a few 
 of the older States being excepted, has reached the ul- 
 timate stage of its progress. The State is without a 
 Church, but not without a religion. The government 
 is Christian, but is not sectarian ; nor is it an oppressor 
 
 1 
 
Conclusioji. 381 
 
 of its non-Christian citizens. It exercises a just regard 
 for the feelings and convictions of the unbeliever, as 
 well as for those of the believer ; indeed, it has come 
 to be the case in some of the younger States, b}' reason 
 of the confused ideas and inchoate theories of some 
 Christian people, that if there is any difference in its 
 treatment of the two parties it is in favor of the former 
 rather than the latter. 
 
 Having dislodged injustice from its stronghold in 
 that borderland where the domain of religion overlaps 
 that of civil government, we may cherish the hope 
 that our government will maintain the purest justice 
 in all else, and thus become strong and enduring. As 
 the atoms of the opaque and amorphous rock, coming 
 out of solution or fusion, form the crystal, so the prin- 
 ciples of libert)', coming down to us out of the past 
 ages, have given us a political structure, beautiful in 
 its form, strong in its constitution, and open to the 
 light. Like the stone which Nebuchadnezzar saw in his 
 dream, "cut out without hands," it has grown and 
 become a great mountain. We may not expect, or 
 even desire, that like that mountain, it shall fill the 
 whole earth, but we may expect that it will grow 
 wider-based and higher as the years go on. It ma}- 
 well excite our patriotic admiration as we behold it 
 crowned, not with the frowning battlements and black 
 enginery of war, but with the white-walled temple of 
 peace, sparkling with the light that beams down from 
 the heavenly habitations of righteousness, and sending 
 that light abroad over the earth as a hope-inspiring 
 illumination. 
 
 So long as it shall continue to be truly Christian 
 and scrupulously just, deriving its character from a 
 people who love the Lord their God, and delight in 
 
382 Co7iclMsion. 
 
 obedience to his righteous law, it may be looked upon 
 as at least one of the anti-types of that \io\y mountain 
 which the inspired singer of Israel praised as " the joy 
 of the whole earth. ' ' 
 
 I 
 
 3 
 
INDEX. 
 
 A 
 
 Abbot, Francis, on the religious 
 amendment of the Constitu- 
 tion of the United States, 333 
 
 Abbot, Henry M., of North 
 Carolina, on the exclusion of a 
 religious test from the Consti- 
 tution of the United States, 
 216 
 
 Academies, State and Federal, 
 teaching in, to be in accord- 
 ance with the principles of 
 Christianity, 375 
 
 Alaska Indians, the North Ameri- 
 can Commercial Co. required 
 by the United States to pro- 
 vide a house of worship for, 
 246 
 
 Amendment of the Constitution 
 of the United States, proposed 
 religious, 203, 230 ; proposed, 
 to prohibit appropriations for 
 sectarian purposes, 346 
 
 American Indians, contract 
 schools for, 245, 345, 348 
 
 Anderson, D.U., Rev. M. B., on 
 blasphemy and Sabbath dese- 
 cration, 295, 352 
 
 Animals, motive in humane treat- 
 ment of, 310 ; basis of laws on 
 cruelty to, 342 
 
 Antiquated theories of the State, 
 
 Appropriations for sectarian pur- 
 poses, 346 
 
 Army and Navy, Sunday in, 31S, 
 375 
 
 Arnold, Dr. Thomas, theory of 
 the State, 172 
 
 Atheism, demand for tlie estab- 
 lishment of, 332 
 
 Atheists, see " Unbelievers" 
 
 B 
 
 Backus, Rev. M., of Massachu- 
 setts, on the omission of a 
 religious test from the Consti- 
 tution of the United States, 
 215 
 
 Bagehot, Walter, on Dr. Arnold's 
 theory of the State, 174 ; on 
 the savage virtues which tend 
 to war, 195 
 
 Ballot, use of, a privilege con- 
 ferred by the sovereign, 192 ; 
 " the peaceful arbitrament of," 
 
 195 
 
 Baltimore, Lord, ist, 2d, 71 
 
 Baptism, of children, required by 
 law, 15 ; controverting the 
 doctrine of, forbidden in the 
 colony of Alassachusetts Bay, 
 on pain of banishment, 29 
 
 Baptists, object to the terms of 
 toleration in Massachusetts 
 Bay, 38 ; petition the Conti- 
 nental Congress for relief, 39 
 
 Bequests, to found a trust for 
 pious uses, not to be protected, 
 355 ; hostile to Christianity, 
 not to be protected, 362 
 
 Berkeley, Sir William, on the 
 church, free schools, and 
 printing, 16 
 
 383 
 
384 
 
 Index. 
 
 Bible, in the public schools, see 
 " Schools " ; exempt from 
 execution, and to be given to 
 apprentices, 315 ; to be given 
 to convicts, 315, 317 
 
 Bill of Rights, in the Constitu- 
 tion of Massachusetts, 104, 
 no, 252 ; not in the Constitu- 
 tion of the United States, 220, 
 221 
 
 Blasphemy, to be punished with 
 death, 42, 73 ; in the common 
 law, 127, 130, 134, 295, 296, 
 
 305 
 Bluntschli, Prof. J. K., theory of 
 
 the State, 18 r 
 Brewer, Justice, on the Christian 
 
 character of the government, 
 
 144 
 Bryce, James, on religion in the 
 United States, 257 
 
 Calhoun, John C, resolutions 
 offered by in the Senate, 1833, 
 226 
 
 California, comparative moral 
 and religious condition of, 235 ; 
 repealed Sunday laws, 354 
 
 Calvert, Sir George, and Ce- 
 cilius, 71, 73 
 
 Carolina, Charter of, 79 ; funda- 
 mental constitutions of, 81 ; 
 Church of England established 
 in colony of, 79, 81, 82 ; dis- 
 belief in God, a disqualification 
 for office, 82 ; South, the 
 Christian Protestant religion 
 established in the State of, 
 xoi ; resolutions of secession, 
 227 
 
 Cases cited : Andrew v. New 
 York Bible and Prayer Book 
 Society, 357 ; Ashley v. Wel- 
 lington, 108 ; Avery v. Tyring- 
 ham, 109 ; Baker et al. v. 
 Fales, no ; Baxter v. Peo- 
 ple, 326 ; Bloom v. Richards, 
 302, 312, 315 ; Boutell v. 
 
 Cowdin, 109 ; Brunswick v. 
 Dunham, 198 ; Burr v. First 
 Parish of Sandwich, 109 ; 
 Cochran v. Camden, 108 ; 
 Connolly v. City of Boston, 
 292 ; Dillingham v. Snow, 108 ; 
 Donahue v. Richards et al., 
 261, 282 ; Escanaba Co. v. 
 Chicago, 116 ; Godwin tV (7/. v. 
 Lunan, 23 ; Huse v. Glover, 
 116; Hutchinson et al. v. 
 Thompson etal., 116 ; Jeftsz/. 
 York, 109 ; Johnson v. Com- 
 monwealth, 132, 353 ; King, 
 hi re Circuit Court, W. D., 
 Tennessee, 95 ; Lessees of 
 Thomas Cochran's Heirs v. 
 David Loring, 116; Linden- 
 niullerz'. People, 128 ; McCoy, 
 V. City of Chicago, 350 ; Mc- 
 Gatrick v. Wasson, 303 ; 
 Menard v. Aspasia, 117 ; 
 Minor et al. v. Board of Edu- 
 cation of the City of Cincin- 
 nati, 261, 265, 271, 315; 
 Nichols V. School Directors, 
 280 ; North v. Trustees of the 
 University of Illinois, 264, 
 285 ; Oaks v. Hill, 109 ; 
 Parker v. May, 109 ; People 
 V. Ruggles, 127, 129, 145, 306 ; 
 Permoli v. Municipality of 
 New Orleans, 113, 117; Pol- 
 lard's Lessees v. Hagan, 117 ; 
 Rector etc. of Holy Trinity 
 Church V. United States, 144 ; 
 Richmond v. Moore, 134, 300, 
 312, 316; Sands v. Manistee 
 River Improvement Co., 117 ; 
 Scammon v. City of Chicago, 
 324; Shover v. State, 134; 
 Simons, Ex. v. Gratts, 339 ; 
 Smith V. Boston & Maine Rail- 
 road, 293 ; Sparrow v. Wood, 
 109 ; Specht v. Common- 
 wealth, 304 ; State v. Ambs, 
 132 ; State v. Chandler, 134, 
 iS^'i 307 ; Stebbins v. Jeu" 
 nings, log; Strader et al. v. 
 Graham, 114; Thomas v. 
 
hidex. 
 
 385 
 
 Cases cited — Continued. 
 
 Hinsdale, 325 ; United States 
 V. World's Columbian Ex- 
 position etal., 320 ; Updegraph 
 V. Commonwealth, 130, 145, 
 306 ; Vidal et al. v. Executors 
 of Stephen Girard, 139, 145, 
 362 ; Warner v. Smith, 244 ; 
 Weiss et al. v. Board of School 
 Directors, District No. 8, City 
 of Edgerton, 261, 272, 278, 
 289 ; Weld V. May, 109 ; 
 Williamette Iron and Bridge 
 Co. V. Hatch, 113; Williams 
 and Hogg v. Zanesville Canal 
 and Manufacturing Co., 1 14; 
 World's Columbian Exposition 
 V. United States, 321 
 
 Catechising, required by law, 9, 
 37, 50 
 
 Catholic, Roman Church, mem- 
 bers of not to be freemen or 
 eligible to office : Colonies, 
 21, 29, 41, 59, 64, 68, 71, 77, 
 82, 84 ; States, 97, 99, loi, 
 103, 104, 105 ; toleration by, 
 in Maryland, 73, 76 ; and 
 public schools, 248, 260, 272 ; 
 and public funds, 348 ; and 
 Indian contract schools, 348 ; 
 priests of, to be banished, 12, 
 37 
 
 Christian religion, the, in the 
 Roman Empire and European 
 States, 3 ; established in all 
 the Colonies, 6-85 ; in States, 
 97, 98, 100, loi, 104 ; enters 
 necessarily into the civil insti- 
 tutions of a Christian people, 
 
 124, 290 ; in the common law, 
 
 125, 126, 129, 131, 141, 142, 
 144, 146, 295, 296, 359 ; de- 
 cisions of the State courts on, 
 128 ; of the United States Su- 
 preme Court on, 139 ; not to 
 be fostered by the State, 177, 
 341 ; to receive favor and 
 preference, 349 ; adherents of, 
 to be protected from offence, 
 352 ; also, in the training of 
 
 their children, 353 ; trusts 
 hostile to, not to be protected, 
 
 362 ; practices of, in public 
 bodies, not to be discontinued, 
 
 363 ; the moral code of, to be 
 the basis of State action, 367 ; 
 no teaching, inconsistent with 
 the principle of, to be allowed 
 in State schools, academies, col- 
 leges, and universities, 375 
 
 Church, attendance upon, com- 
 pulsory, 7, 8, 20, 22, 25, 39, 
 48, 53, 57 ; delinquents to be 
 searched for, 26, 33, 40, 43, 49 ; 
 union of, with the States, not 
 prohibited by the constitution 
 of the United States, 94, 95 ; 
 taxation of property of, 298, 
 333i 365. Roman Catholic, 
 see " Catholic" 
 
 Civil War, in the United States, 
 and the Religious Amendment, 
 230,237; and the constitution, 
 227, 230 
 
 Clayton, Hon. John M., on 
 blasphemy, 134 ; answer of, to 
 Jefferson's argument, 156 
 
 Colleges of the State, teaching 
 in, to be in accordance with the 
 principles of Christianity, 375 
 
 Common law, 120 ; Christianity 
 in, see ', Christian Religion" ; 
 Sunday in, 324 
 
 Confederation, of Neiv England 
 Colonies, 58 ; only church mem- 
 bers to be free burgesses in, 
 58 ; the purity of religion to be 
 maintained and the opposite to 
 be suppressed, 59 ; Word of 
 God, to be the fundamental 
 law of, 59 ; heresy to be sup- 
 pressed, 60 ; the church, to be 
 supported by tax, 61 ; Quakers 
 to be banished from, 61 ; of 
 the United States, no recogni- 
 tion of the Divine Being in the 
 Articles of, 221 
 
 Connecticut, Colony, 44 : Funda- 
 mental Orders of, 45 ; God's 
 Word, the fundamental law of, 
 
386 
 
 Index. 
 
 Connecticut — Continued. 
 
 45 ! Quakers to be banished 
 from, 45 ; contempt of God's 
 Word, ministers and ordi- 
 nances, to be punished, 46 ; 
 attendance upon public wor- 
 ship, compulsory, 47, 48, 53 ; 
 Synod called by, to settle doc- 
 trines of theology, 48 ; Sunday 
 in, 48, 52 ; catechising, re- 
 quired by law, 50 ; towns of, 
 required to provide a ministry 
 of the gospel, 51 ; act of toler- 
 ation, 58 ; State, charter of, 
 1662, the organic law of, till 
 1818, 58 ; attendance upon 
 public worship compulsory, 97 
 
 Constitution, of tlic United Slates, 
 92 ; the Divine Name not 
 mentioned in, 92, 203 ; Article 
 VI. and Amendment I., Article 
 I. do not apply to the States, 
 94, 95, 96-11 1 ; amendments 
 of, proposed, the religious, 203, 
 230 ; on sectarian appropria- 
 tions, 346 ; no Bill of Rights 
 in, 220, 221 ; not a compact, 
 225 ; Sunday in, 317 ; of the 
 German Empire, the Divine 
 Name not mentioned in, 228 
 
 Convention, the Constitutional, 
 of the United States, sessions 
 of, not opened with prayer, 
 208 : of Massachusetts, on the 
 exclusion of a religious test 
 from the Constitution of the 
 United States, 212 ; of North 
 Carolina on, 216 
 
 Convicts, to be supplied with a 
 Bible, 315, 317 ; not to be re- 
 quired to labor on Sunday, 316 ; 
 to have the services of a chap- 
 lain, 315, 317 
 
 Cooley, Hon. Thomas M., on 
 sovereignty, 191 ; on Chris- 
 tianity in the law of the land, 
 296 ; on blasphemy, 296, 305 ; 
 on the appointment of Thanks- 
 giving and fast days, of chap- 
 lains, the opening of legisla- 
 
 tive sessions with prayer, and 
 the reading of the Scriptures, 
 and the exemption of church 
 property from taxation, 298 ; 
 on the basis of Sunday laws, 
 
 311 
 Cruelty to animals, why punished, 
 342 
 
 D 
 
 Davenport, Rev. John, founder 
 of the colony of New Haven, 
 
 53 
 
 Death, the penalty, for the re- 
 turning of Quakers after ban- 
 ishment, 33 ; for blasphemy, 
 42, 74 ; for burglary and rob- 
 bery on Sunday, third offence, 
 46 ; for presumptuous profan- 
 ing of the Lord's Day, 56 
 
 Delaware, profession of faith in 
 the doctrine of the Trinity and 
 of the inspiration of the vScrip- 
 tures, a qualification for office 
 in, 100 
 
 Divorce and marriage, action of 
 the State on, to be conformed 
 to the law of Christ, 368 
 
 Drunkenness, to be punished, 7, 
 19, 69 
 
 Dwight, Theodore W., LL.D., 
 on Christianity in the civil 
 institutions of the United 
 States, 126 
 
 E 
 
 Episcopal Church, Protestant, 
 
 allowed to share in the taxes 
 
 in Massachusetts, 37 
 Equity, incorporates the moral 
 
 code of a people with their 
 
 laws, 122 
 Erastianism, 171 
 Ethics, code of the State, none 
 
 other than that of the people, 
 
 367 . 
 Exceptions to the limitations of 
 the religious function of the 
 government, 243 
 
 i 
 
Index. 
 
 387 
 
 Exemption of church property 
 
 from taxation, 365 
 Expeditions of exploration, early, 
 
 had a religious object, 3 
 
 Fasting, observance of public 
 days of, compulsory, 16, 27, 
 30, 47, 57, 97 ; Judge Cooley, 
 on the appointment of, 298 
 
 Fostering of Christianity, no 
 part of the proper functions of 
 the government, 177, 341 
 
 Franklin, Benjamin, resolution 
 of, on the opening of the Con- 
 stitutional Convention with 
 prayer, 93, 208 ; speech of, 
 on the resolution, 20S ; letter 
 to Thomas Paine, 206 
 
 Genesis of the State, 197 
 Georgia, charter of, 83 ; cession 
 
 of Southwestern Territory to 
 
 the United States, 112 
 Gilbert, Sir H., expedition of, 4 
 Girard, Stephen, will case, 139 
 Gladstone, Hon. W. E., on the 
 
 union of Church and State, 
 
 T73, 187 
 Gorges, Sir Ferdinando, charter 
 
 of, for Maine, 40 
 Government, civil, of the United 
 
 States, necessarily legally, and 
 
 rightly Christian, 164, 299 
 
 H 
 
 Hagans, Hon. M. B., on the 
 Bible in the public schools, 
 266 ; on the personality of the 
 State, 238 
 
 Hale, Sir Matthew, on the com- 
 mon law, 121 ; on Christianity 
 in, 125, 149, 150, 155, 161. 
 
 Hamilton, Alexander, on tlie 
 omission of a recognition of the 
 divine Being in the constitu- 
 
 tion, 204 ; on the resolution of 
 Dr. Franklin, proposing that 
 the sessions of the constitu- 
 tional convention open with 
 prayer, 210 
 
 Hjaltalan, J. A., on education in 
 Iceland, 259 
 
 Humanity ; the fostering of, by 
 the State, 342 
 
 Iceland ; education in, 258 
 
 Illinois ; territorial government 
 of, and the ordinance of 1787, 
 112 ; tolls at locks in the Illi- 
 nois River and the Ordinance 
 of 17S7, 116 ; attendance upon 
 chapel exercises in the Uni- 
 versity of, 285 ; statute of on 
 Sunday, 300 ; prohibits labor 
 of convicts on Sunday, 316 ; 
 English the established lan- 
 guage of, 350 
 
 Incorjioration ; to be granted to 
 churches, theological schools, 
 and missionary societies ; also 
 to societies of Jews, Moham- 
 medans, pagans, and atheists, 
 for the promulgation of their 
 doctrines, 363 
 
 Indiana ; the territorial govern- 
 ment of, and the Ordinance of 
 1787, 112, 119 
 
 Indians ; American, contract 
 schools for, 245, 345, 348 ; of 
 Alaska, to be provided with 
 houses of worship by require- 
 ment of the United States, 246 
 
 Iredell, James, of North Caro- 
 lina, on the exclusion of a 
 religious test from the consti- 
 tution of the United States, 
 217 
 
 Jefferson, Thomas, letter to Dr. 
 Priestley, had no ]iart in fram- 
 ing the constitution of the 
 
;88 
 
 Index. 
 
 United States, 93 ; first mes- 
 sage of, as president, g3 ; letter 
 of, to Maj. John Cartwright, 
 146 ; controverts the doctrine 
 that Christianity is part of the 
 common law, 147 ; is answered 
 by Clayton, 156 
 
 Jews, observance of Saturday by 
 the, cannot delay a proceeding 
 in court, 339 ; to be granted 
 protection in the exercise of 
 religion, 351 ; and incorpora- 
 tion, 363 ; exemption of syna- 
 gogues from taxation, not to 
 foster the religion of, 365 
 
 Jurists, opinions of, on the rela- 
 tion of Christianity to civil 
 government in the United 
 States, 125, 296, 298, 305, 
 311 
 
 K 
 
 Kentucky, resolutions of 1798, 
 223 
 
 Language, the English estab- 
 lished, 350 
 
 Law, the conwioii, see "Com- 
 mon " ; Christianity in, see 
 "Christianity"; of God, the 
 fundamental civil, 45, 48, 54, 
 55, 59 ; authority of, not ac- 
 knowledged in the constitution 
 of the United States, 230, 232 
 
 League Liberal, the demands of, 
 
 333 
 
 Liberalism, cant in the profes- 
 sions of, 371 
 
 Liberty of belief and unbelief, 
 full, to be granted in a Chris- 
 tian State, 290 ; does not re- 
 move Christian character from 
 the State, 292, 308 
 
 Limitations to the religious func- 
 tions of the government, 177 ; 
 exceptions to, 243 
 
 Lincoln, Abraham, president. 
 
 order of, for the observance of 
 Sunday in the army and navy, 
 318 
 
 Locke, John, author of the Fun- 
 da )iiental Constitutions of Caro- 
 lina, 81 
 
 Lord's Day, see " Sunday." 
 
 M 
 
 Macaulay, T. B., on paternalism, 
 174; on the personality of the 
 State, 189 ; on the functions of 
 government, 262 
 
 Maine, colony of, 40 ; united to 
 the colony of Massachusetts 
 Bay, 41 
 
 Maine, Sir Henry J. S., on the 
 development of law, 123 
 
 Mansfield, W. M. Lord, on the 
 common law, and religion in 
 the, 125, 149, 150, 156, 161, 
 
 163, 359 
 
 Marriage, law of, to conform to 
 the law of Christ, 367 ; more 
 than contract, 368 
 
 Maitin, Luther, on the exclusion 
 of a religious test from the con- 
 stitution of the United States, 
 204 
 
 Maryland, Colony, 71 ; Act of 
 toleration, 73 ; repealed, 77 ; 
 re-enacted, 78 ; blasphemy, 
 etc., to be punished with death, 
 74 ; Sunday in, 75, 7S ; the 
 Church of England established 
 in, 78 ; State, the Christian 
 religion to be supported by 
 taxes, lor 
 
 Mason, Capt. John, a founder of 
 the colony of Maine, 40 
 
 Massachusetts Bay, Colony of, 
 27 ; only church members ad- 
 mitted to the freedom of, 28 ; 
 Sabl)ath in, 28, 31, 32, 33, 35, 
 
 39 ; breakers of, to be put in a 
 cage, 34 ; to be searched for, 
 
 40 ; establishment and support 
 of the church compidsory, 28, 
 35. 37. 39 > Koman Catholic 
 
Index. 
 
 389 
 
 Massachusetts Bay — Conthtued. 
 Church, not tolerated, 29 ; 
 priests and Jesuits to be ban- 
 ished, under penalty of im- 
 prisonment for life for return, 
 37 ; Baptists, opposing or con- 
 demning infant baptism, to be 
 banished, 29 ; received tolera- 
 tion, 3S ; complained of terms, 
 to the Continental congress, 
 39 ; contempt of God's Word, 
 of the ministers, and ordinances 
 of religion, to be punished, 29 ; 
 attendance upon the ministry 
 of the Word, compulsory, 30, 
 39 ; attendance at an unauthor- 
 ized place of meeting forbid- 
 den, 36 ; public and private 
 propagation of heresy to be 
 punished, 30 ; Pyncheon's 
 book, burned on Boston Com- 
 mon, 31 ; Quakers, to be ban- 
 ished, and to suffer death upon 
 returning, 33 ; four hanged on 
 Boston Common, 33 ; impor- 
 tation of forbidden, 34 ; granted 
 toleration, 38 ; catechising of 
 children and servants, required 
 by law, 37 ; Church of Eng- 
 land granted toleration, 37 
 
 Massachusetts, State of, union of 
 church and state in, 104 ; pro- 
 vision for public worship and 
 for the support of Protestant 
 teachers of religion, required 
 by law to be made, 104, 105 ; 
 Unitarian controversy causes 
 the separation of the church 
 from the state, no ; Sunday 
 in, 292 
 
 Miiyjiower, agreement made on, 
 by the Pilgrims, 24 
 
 Ministers of the gospel, public 
 provision to be made for the 
 support of, 10, 22, 28, 36, 37, 
 43, 44, 50, 51, 52, 6i ; disre- 
 spect to and disparagement of 
 prohibited by law, 7, 29, 42, 
 46, 60 ; disqualification of for 
 public office, reason of, 344 
 
 Moral questions, action of the 
 State on, to be in accordance 
 with the code of Christianity, 
 
 367 
 Mystical theories of the State, see 
 "State " 
 
 N 
 
 Navy, day of rest in, to be oli- 
 served in accordance with the 
 view held by the majority of 
 Christian citizens, 375 
 
 Neander, Dr. Aug., on the Sab- 
 bath, 373 
 
 Neutrality of the government on 
 the subject of religion, demand 
 for, 330 
 
 Nevv Hampshire, Colony, 41 ; 
 blasphemy to be punished with 
 death, 42 ; Sabbath in, 42 ; 
 towns required to maintain an 
 orthodox ministry, 44 ; Seale, 
 Protestantism, the established 
 religion of, 98 
 
 New Haven, colony of, 53 ; the 
 Scriptures to be the fundamen- 
 tal law of, 54, 55 ; only church 
 members to be free burgesses 
 in. 54. 55 » Sabbath breakers, 
 presumptuous, to be punished 
 with death, 56 ; attendance at 
 church on Sunday, fast, and 
 thanksgiving days, required by 
 law, 57 ; united with the colony 
 of Connecticut, 57 
 
 New Jersey, Province of, 68 ; 
 sold to the Quakers, 68 ; the 
 Church of England established 
 in, 68 
 
 New York, Province of, Sunday 
 in, 67 ; the Church of England 
 established in, 67 
 
 Nuisance, blasphemy and Sab- 
 bath desecration to be punished 
 as a, 2g5, 296, 352 ; law of, 
 should be impartially enforced, 
 352 
 
390 
 
 Index. 
 
 o 
 
 Oath, the, essentially religious, 
 328 
 
 Ordinance of 1787, iii ; a com- 
 pact, 112 ; not binding on the 
 States formed upon the N. W. 
 and S. \V. territories, 113, 117 ; 
 bound the United States to pro- 
 mote religion, morality, and 
 knowledge in the N. W. and 
 S. W. territories, 120 
 
 Pagans, to be protected in wor- 
 ship, 350, 351 
 
 Paine, Thomas, letter of Dr. 
 Franklin to, 206 
 
 Parsons, Theophilus, I.L.D., on 
 the exclusion of a religious test 
 from the constitution of the 
 United States, 212 
 
 Paternalism, iv.-vi., 172, 174, 
 and the public school system, 
 260 
 
 Payson, Rev. P. 1). D., on the 
 exclusion of a religious test 
 from the constitution of the 
 United States, 215 
 
 Penn, William, bought East Jer- 
 sey, 63 ; charter to, 68 ; on 
 the nature and source of gov- 
 ernment, 69 ; bought " The 
 Territories," 70 
 
 Pennsylvania, The Frame of 
 Gove7-nment for, 68 ; Charter 
 of Privileges for, 70 ; offenses 
 against God, to be punished, 
 6g, 71 ; Sunday in, 69 ; Roman 
 Catholics debarred from office, 
 71 ; belief in the doctrine of 
 the Trinity and of the divine 
 inspiration of the Scriptures, 
 required as a qualification for 
 office, 71 
 
 Personality of the State, see 
 " State " 
 
 Pilgrims, argument made by, on 
 the Mayfto'iocr, 24 
 
 Pious uses, trusts for, not to be 
 protected, 355 
 
 Plymouth, Company, 5, 6, 40; 
 Colony of, attendance upon 
 public worship compulsory, 
 25, 26 ; profanation of the 
 Sabbath, to be punished, 25, 
 26 ; travellers on the Sabbath, 
 not having a written permit, 
 to be arrested, 27 ; observance 
 of public days of fasting, hu- 
 miliation, and prayer required 
 by law, 27 ; united with the 
 colony of Massachusetts Bay, 
 
 27 
 Postal system, the basis of, in 
 
 consent, 254 
 Priestley, Dr. Joseph, letter of 
 
 Thomas Jefferson to, 93 
 Priests of the Roman Catholic 
 
 Church, to be banished, I2, 
 
 37 
 
 Property, church, to be exempt 
 from taxation, or the principle 
 of exemption changed, 365 
 
 Providence Plantations, charter 
 of, 62 
 
 Public schools, see " Schools " 
 
 Pyncheon, William, deposed from 
 office for heresy, required to 
 report progress in conversion 
 therefrom, his book on the 
 atonement burned on Boston 
 Common, 31 
 
 Quakers, importation of prohib- 
 ited, 13, 15, 34, 6i ; harboring 
 of prohibited, 14, 15, 45 ; to 
 lie banished, 33, 45, 61 ; re- 
 turning, to be punished with 
 death, and four hanged on 
 Boston Common, 33 ; receive 
 toleration in Massachusetts 
 Bay, 38 ; buy East and West 
 Jersey, 68 ; acquiesce in the 
 war, and judicial policy of the 
 government, 341 
 
Index, 
 
 391 
 
 Raleigh, Sir Walter, expedition 
 of, 4 
 
 Randolph, Edmund, resolution 
 of, on the object of the consti- 
 tutional convention, 222 ; on 
 the resolution of Dr. Franklin 
 to open the sessions of the Con- 
 stitutional Convention with 
 prayer, 210 
 
 Randolph, John, on the Ordi- 
 nance of 17S7, as a compact, 
 112 
 
 Realism, theological, 239 
 
 Religion, of a people enters into 
 their laws, 124, 290 ; the 
 Christian, in the common law, 
 see "Christian"; the State, 
 under obligation to teach in 
 certain cases, 243 ; not to be 
 fostered by positive measures, 
 177. 341 i to receive favor and 
 preference, 349 
 
 Rights, Bill of, in the constitu- 
 tion of Massachusetts, 104, 
 no, 252 ; none in the constitu- 
 tion of the U cited States, 220, 
 221 
 
 Rhode Island, the founding and 
 the charter of, 62 ; only those 
 professing Christianity, Roman 
 Catholics excepted, to be free- 
 men of, or qualified for office 
 in, 64 ; the charter of 1663, the 
 fundamental law of the State 
 till 1S42, 64 ; Sunday in, 65 
 
 Roman Catholic, see " Catholic " 
 
 Sabbath, see " Sunday " 
 
 Schools, free or public and reli- 
 gion in, 17, 247, 263, 375 ; no 
 religious qualification required 
 of teachers in, 249 ; theory of, 
 251 ; basis of system general 
 consent, 253 ; same as of the 
 postal system, 254 ; Roman 
 Catholics and, 24S, 260, 265, 
 
 272, 282 ; decisions of courts 
 on, 265r290. Government, 
 State, and Federal, the teach- 
 ing in to be in accordance with 
 the principles of Christianity, 
 243, 375, Contract, for the In- 
 dians, 245, 345 
 
 Science and Revelation, 202 
 
 Scripture, see " Word of God " 
 
 Sect, atheists and unbelievers 
 constitute a, 331 
 
 Sects, religious, appropriations 
 to, from the public treasury, , 
 245. 345 ; amendment of the 
 constitution of the United 
 States, proposed, to prohibit, 
 346 
 
 Sherman, Roger, on Dr. Frank- 
 lin's resolution, proposing to 
 open the sessions of the con- 
 stitutional convention with 
 prayer, 210 
 
 Shute, Rev. Mr., on the exclu- 
 sion of a religious test from 
 the constitution of the United 
 States, 213 
 
 .South Carolina, the Christian re- 
 ligion established by the first 
 constitution of, loi ; nullifica- 
 tion by, 225 ; secession by, 227 
 
 Sovereignty, what and where re- 
 siding, 191 ; is preponderating 
 force, 194 
 
 Spencer, Herbert, mystical theo- 
 ry of the State, iSi ; on the 
 necessity of the consent of the 
 governed, 195 
 
 Sprague, Rev. William B., D.D., 
 on Sunday in Germany, 373 
 
 State, the, antiquated theories of, 
 167, 171, 172; mystical theories 
 of, 181, 191, 237, 313;, anti- 
 Christian theories of, 177, 229, 
 313, 329 ; genesis of, 197 ; is 
 to teach the Christian religion 
 in certain cases, 243 ; is neces- 
 sarily Christian where the peo- 
 ple are Christian, 124, 299 ; 
 duties of, as Christian, 341 
 
 States, in the United States, con- 
 
392 
 
 Index. 
 
 stitutions of, g6-iii ; may 
 make laws respecting an estab- 
 lishment of religion, 95, iii 
 
 Stoddard, Prof. O. N., on the 
 personality of the State, 237 
 
 Story, Judge Joseph, the whole 
 power over the subject of reli- 
 gion left by the Constitution to 
 the States, 95 ; State not indif- 
 ferent on the subject of religion, 
 126, 207 ; Christianity in the 
 common law and the Constitu- 
 tion, 142, 178, 221, 234, 296 
 
 Suffrage, the, see " Ballot " 
 
 Sumner, Prof. William G., on 
 the ballot, 195 
 
 Sunday, as Sabbath or Lord's 
 Day and day of rest, laws on, 8, 
 II, 12, 17, 18, 25, 26, 28, 31, 
 33, 35. 39. 42, 48, 49, 52, 
 56, 65, 67, 69, 75, 78, 292, 
 316 ; in the older States based 
 on the statute of Charles II., 
 292, 301 ; have a Christian 
 basis and are not based on the 
 demonstrations of experience, 
 311 ; in the common law, 295, 
 301, 324 ; in the Constitution 
 of the United States, 317; 
 decisions of the courts on, 
 132, 134, 300, 302, 303, 304, 
 322, 324, 325, 326, 339 ; Presi- 
 dent Lincoln's order for the 
 observance of, in the army and 
 navy, 318 ; to be observed by 
 the State, and legislation on, to 
 be in accordance with the view 
 held by the Christian citizens, 
 369 ; citizens, holding a differ- 
 ent view, to be required to 
 observe, only so far as to avoid 
 offence to, and disturbance of 
 Christian people, 291 ; the 
 English and American, or 
 Puritanical view of, 370 ; the 
 continental European view, 
 372 ; convicts, employes of the 
 government, soldiers and mar- 
 iners, not to be required to do 
 unnecessary labor on, 316, 375 
 
 Taxation, church property, to be 
 exempt from, or the principle 
 of exemption changed, 365 
 
 Thanksgiving days, observance 
 of, required by law, 27, 30, 47, 
 57, 97 ; appointment of, vio- 
 lates no principle of constitu- 
 tional law, 29S 
 
 Theories, of the State, antiquated, 
 167 ; anti-Christian, 177, 229, 
 313, 329 ; mystical, 181, 187, 
 191, 313 ; untenable, 292 ; of 
 the public school system, 251 
 
 Tocqueville, Alexis de, on reli- 
 gion in the United States, 257 
 
 Trinity, denial of the doctrine of, 
 a disqualification for office, 18, 
 71, 100; forbidden, 73 
 
 Tripoli, treaty with, 163 
 
 Trusts, for pious uses, not to be 
 protected, 355 ; hostile to 
 Christianity, not to be pro- 
 tected, 362 
 
 U 
 
 Unbelievers, and the public 
 schools, 264, 280, 285, 377 ; 
 demand of, for neutrality on 
 the subject of religion, 330 ; 
 constitute a sect, 331 ; sum- 
 mary of demands of, 333 ; to 
 be protected in the orderly 
 propagation of their doctrines, 
 and to be granted incorpora- 
 tion therefor, 351, 363 
 
 Unitarianism, the controversy 
 on, causes the separation of the 
 church from the State, in 
 Massachusetts, no 
 
 University, of Illinois, decision 
 on chapel exercises in, 285 ; 
 the State, the teaching in, not 
 to be inconsistent with the 
 fundamental truths of Chris- 
 tianity, 375 ; not to be the 
 preserve of a class, 377 
 
Index. 
 
 393 
 
 Vermont, the Church of England 
 and the Congregational church, 
 established in the towns of, 
 66 ; constitution of, 97 ; belief 
 in God, in the inspiration of 
 the Scriptures and in the Pro- 
 testant religion, a qualification 
 for othce in, 98 
 
 Virginia, first colony of, 4 ; 
 charter of, 5 ; the Church of 
 England established in, 7, X2, 
 14, 23 ; house of worship, to 
 be provided at public expense, 
 6, 1 1 ; attendance upon public 
 worship compulsory, 8, 20, 22 ; 
 members of the assembly re- 
 quired to attend divine service, 
 II ; ministers of religion to be 
 supported by tax, 10, 22 ; pop- 
 ish priests to be banished, 12 ; 
 Quakers to be apprehended, 
 imprisoned, and banished, 
 importation and harboring of 
 prohibited, 13, 14, 15, 16, 
 dissenting ministers, preach- 
 ing, to be banished, 15 ; blas- 
 phemy and profane swearing, 
 to be punished, 7, 8, 17, 18 ; 
 also drunkenness, 7, 8, 18, 19 ; 
 also contempt of God's holy 
 word and sacraments, S ; also 
 desecration of the Sabbath, 11, 
 12, 17, 18, 20, 22 ; also neglect 
 to observe days of public fast- 
 ing and prayer, 16 ; persons 
 not behaving themselves sober- 
 ly and orderly during divine 
 service, to be presented, g ; the 
 baptism of children required, 
 15 ; the teaching of the Cate- 
 chism required by law, 9 ; 
 denial of the being of God, 
 the Holy Trinity, the truth of 
 the Christian religion, and the 
 divine authority of the Scrip- 
 tures, a disqualification for 
 office, 18, 21 
 
 W 
 
 War, the Civil, and the religious 
 amendments to the Constitu- 
 tion, 230 
 
 Webster, Daniel, argument of, 
 in the Girard will case, 140 ; 
 speech of, in the Senate, on 
 Calhoun's resolutions, 226 
 
 Wesley, John, and Charles, in 
 Georgia, 84 
 
 Williams, Roger, at Salem, 
 Massachusetts Bay, and ban- 
 ishment of, 62 ; charter for the 
 Providence Plantations, 62 
 
 Williamson, Hugh, on Dr. 
 Franklin's resolution, propos- 
 ing to open the sessions of the 
 Constitutional Convention with 
 prayer, 210 
 
 Wilson, Hon. James, on Chris- 
 tianity, as a part of the common 
 law, 126 
 
 Winthrop, John, charter for the 
 colony of Connecticut, 57 
 
 Word of God, taken as the funda- 
 mental law, 45, 54, 55, 59; 
 disbelief of, a disqualification 
 for office, 18, 21, 45, 54, 55, 
 59, 71, 98, 100, 102 ; con- 
 tempt of, or disrespect to, pun- 
 ished, 8, 18, 29, 43, 46, 60, 74 
 
 World's Columbian Exposition, 
 opening of, on Sunday, 318 
 
 Worship, public, attendance on, 
 compulsory, 7, 8, 20, 25, 26, 30, 
 39. 47, 48, 53, 57, 97 ; delin- 
 quents to be searched for, 26, 
 33, 40, 43, 49 ; unseemly be- 
 havior at, to be punished, 9, 22, 
 25, 34- 
 
 X 
 
 Xenia, in Ohio, convention at, in 
 1863, makes the first proposal 
 of a religious amendment to the 
 Constitution, 230 
 
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