THE NATURE AND FORM OF THE AMERICAN GOVERNMENT FOUNDED IN THE CHRISTIAN RELIGION. BY THE HONORABLE GEORGE SHEA, CHIEF JUSTICE OF THE MARINE COURT OF THE CITY OF NEW YORK. BOSTON: HOUGHTON, MIFFLIN AND COMPANY New York: 11 East Seventeenth Street. 1883. - I Copyright, 1882, BY GEORGE SHEA. All rights reserved. The Riverside Press, Cambridge : Stereotyped and Printed by H. O. Houghton & Co. INTRODUCTORY NOTICE. THE substance of the following pages was the theme of an address by me before the Dean, the Faculty, and Students of the General Theological Seminary of the United States, delivered at St. Peter's Hall, city of New York, April 18, 1882. I selected the subject, not only because it carries with it valuable and interesting principles, but as, also, appropriate to a time when I was honored by being elected trustee of that institution, and to the place vacated by the death of the distinguished jurist and scholar, the venerable Samuel B. Ruggles. Many of the comments in the text and many of the notes may ap- pear somewhat remote to a direct consid- eration of the immediate subject, which 250566 iv Introductory Notice. is to show the Christian character of our system and plan of governance. Legiti- mate governments are not made : they are growths ; and plants of slow growth, too. They take their health, strength, durabil- ity, and complexion more from the atmos- phere in which they are cultured than the isolated root from which they spring. The force of origin and association is supreme in forming the immutable character of civil communities. Thus has it been with the genius of our American government ; which, even in its federative qualities, is the express image of the ancient Common- wealth of England, as that Commonwealth was the product of Scandinavian civiliza- tion, enlightened and tempered by Chris- tianity. GEO. SHEA. NEW YORK, August 19, 1882. No. 205 WEST 46x11 STREET. THE AMERICAN GOVERNMENT FOUNDED IN THE CHRISTIAN RELIGION. THE nature and character of that sys- tem and that form of government in its religious alliances common to the people of the United States of America, is the subject which I purpose to consider. I purpose to indicate the origin of those rules of human conduct which may be de- scribed, accurately and historically, as the civil polity of our country. For though in parts of our country annexed since the formation of the national Constitution, as Louisiana, Florida, and the Territories of New Mexico, jurisprudences derived, though indirectly, from the Roman Law prevail, yet that Common Law peculiar to the ancient Saxon Commonwealth of England is so 6 The American Government general, that our country, comprehensively, can be spoken of as under the dominion of one common law as well as of a com- mon general government. The word common, acknowledging and declaring that which is usual, general, pub- lic, seems to have been a significant phrase with those to whom England owes her early institutions. The word itself, when used in those institutions, recognizes, and was intended to recognize as established, the People, in their most general and com- prehensive sense, as the source of political power, and the public good as the end for which that power is delegated to municipal government. The Scandinavian founders of nations, in their earliest institutions, dealt with man as free and equal. Free and equal : but not in the sense absurd to reason and pic- tured by doctrinaires. Subordination is not slavery, nor unnatural. The Puritan poet declares, in his grand harmonious numbers, that even Founded in the Christian Religion. 7 " Orders and degrees Jar not with liberty, but well consist." * Perfect liberty was, in such simple and vigorous institutions, attained and upheld by obedience to the laws of GOD and man ; which were esteemed by them, and justly, to be one and the same rule when in ap- plication to human society. A superb chapter might have been added by Mon- talembert to his " History of the Monks of the West," describing the influence of The Church, not as a part of the state gov- ernment, but as the inspirer, corrector, modifier, the liberating power which, from rude and crude elements, helped to raise and shape the national character of the English people. The Church made the great kings and lawgivers of the Saxon commonwealth, as The Church had, in the elder time, made the great lawgivers, pa- triots, and kings of the people of Israel. It was such royal law-givers who erected 1 Milton, Paradise Lost) book v., lines 792, 793. 8 The American Government the institutions and declared the laws of their dominion in Britain. This was cen- turies before the Norman went into Eng- land, and centuries before the Institutes of Justinian were heard of in that island. If there can be said to be a genius for civil society, which induces, more than another, towards a republican system of govern- ment, it surely is that disposition brought into Britain, from the isles of the Elbe and from the Rhine, by the Jutes, the Angles, and the Saxons. Those several tribes ap- pear to have been originally one nation : Scandinavian in origin, certainly a people speaking the same language. 1 They were 1 M. Paul du Chaillu is this summer in Norway, en- gaged in finishing The History of the Vikings. The work is founded upon recently disclosed important au- thentic materials, and likely, in his hands, to cast a sober and certain light uporf an epoch of great historical value, now esteemed simply legendary. The history will trace the Scandinavian races, which must include the Norman to their common Phoenician origin, and English institu- tions to the genius and parentage of Scandinavian polity. Founded in the Christian Religion. 9 cruel in their enmities, 1 but within the harsh justice of the age ; still they were a religiously disposed people, unlike the Mexican aborigines of our own continent, who are inferred to have entirely disso- ciated the idea of an Almighty Divine Providence from their scheme of govern- ance : and they have faded from the face of the earth before the advance of civiliza- tion, like unhealthy night -mists before the morning sun. The tribes that came from the Elbe and Rhine had no king. This, according to the great Lord Somers, 2 de- 1 "Behold a people cometh from the north country ; . . . they are cruel and have no mercy." Jeremiah vi. 22, 23. 2 " When GOD gave liberty to his people to make a king, he did neither constitute nor elect any till they desired it, nor commanded them to do it themselves, but ieft it to their own free will, whether they would have a king or no king ; nor were they appointed to take him out of any one line : Every Israelite might be chosen. None but strangers were excluded : and the people were left to the liberty of choosing and instituting any one of their brethren." The Judgment of Whole Kingdoms IO The American Government notes in an early condition of civil society an accord with the will of GOD. Those tribes, on sudden occasions and afterwards at prescribed periods, selected from among themselves one who should lead them. 1 This is the natural order. They believed that political organization in society had its origin by the human family, and that the family is a divine institution. Beside, they carried this principle of association further, and united in a formidable league with kindred peoples and neighbors : which league continued till after their departure and Nations, etc., p. 31. This pamphlet was reprint- ed and published (eleventh edition) at Philadelphia, in 1773. Its effect is very evident in the formation of opinion among the leaders of the colonial resistance. There can be no doubt that its frequent publication at that era was part of the plan by which those leaders were diffusing political knowledge throughout the country. Somers had left an ineffaceable impress in the best minds of America. 1 History of the Anglo-Saxons^ by Sharon Turner, vol. i., page 182, Appendix, quoting Bede, Hist. Eccles. lib. v., ch. x., p. 192. Founded in the Christian Religion, n for Britain, when it gradually dissolved in the fatherland ; but, only, again to assert its vitality and its efficacy centuries later in the settlement of Britain. To such a people, inspired by such principles and obedient to such tendencies, the language signifying a commonalty be- came habitual. The expression of the thought appears to recur whenever they speak concerning the relations of the peo- ple to affairs of state or religion. The State, in their nomenclature, is "The Com- mwi-wealth ; " its body of jurisprudence, " the Common Law ; " its universal tribunal, " The Common Pleas ; " and, when the Scandinavian in Britain became enlight- ened by the Christian religion, we quickly have " The Common Prayer." I know not when that term as important in litera- ture as it is dear to The Church was flrst used. Surely before the time of Al- fred the Great : for I find him relating, that "south of the Humber there were few 12 The American Government priests, indeed," he says, " when I began my reign, who could understand the mean- ing of their common-prayer ; or translate a line of Latin into English." l There began the mission of " a Free Church in a Free State." 2 There we will see evolved the energizing elements of that national character, which has won for Great Britain its commanding posi- tion among European dominions and sov- ereignties in modern times ; and to which elements the people of the United States, by lineal right, have succeeded, conformed, and possess. The unwritten, traditional Constitution of England acknowledges the omnipo- tence and providence of GOD. But this it does in its traditions, maxims, common- law, and throughout the administration of government. It " acknowledges " GOD ; does not legislate the existence of GOD. 1 Palgrave's History of the Anglo-Saxons, p. 163. 2 Among the last words uttered by De Tocqueville. Founded in the Christian Religion. 13 The existence of GOD is "presupposed," as Richard Hooker would say, by the idea of law and government. 1 In the written Constitution of this our own country, taken together with " the laws \& pursuance thereof," as we, to attain a like end, take the unwritten Constitution of England, we have a similar acknowledgment of GOD presupposed, as the source and life of law and governance. The Constitu- tion of the United States of America does not, for like decorous reasons, in express terms within itself proclaim the exist- ence of GOD ; nor does it set forth a leg- islative profession of faith that the sacred truths of revealed religion are inspired and of GOD'S WORD. But its entire con- text, and " the laws in pursuance thereof" like the form of that more ancient Saxon government upon which ours was mould- i See the Introduction, especially p. xvii., by Dean Church, of St. Paul's Cathedral, London, to the Ecclesi- astical Polity (Clarendon Press Series). 14 The American Government ed, declare, with approved wisdom and decorum by necessary //^supposition and inference, that the tenets of the Christian religion lie at the foundations of the gov- ernment, and are to protect and regulate its operations. The American system of government, in its respect and care for religion, is more in accord with the grand principle which " gives to GOD the things which belong to GOD " than that of England has been since nearly the time of the Conquest. Regal and, in our time especially, parlia- mentary discipline has sorely tried the patience, if not the allegiance, of The Church and of Christian communities. Those statesmen who established our form of Constitution knew, and were not unmindful of, the warnings of history. Wherefore it is that Congress is prohib- ited by the Constitution 1 from making 1 Amendments to the Constitution of the United States, Art I. Founded in the Christian Religion. 15 any "laws respecting an establishment of religion." When the Constitution thus guarded our religion as a thing which belongs not " to Caesar," it, with rare force of asseveration, acknowledges that which it places beyond the consequences of human legislation. Let us pause for a moment to reflect, and gratefully, that they have placed beyond the meddling disposition of men, met for secular legis- lation, that Church which has proved to be the life and grace of all modern gov- ernment ; and, particularly, that we are thereby spared the incoherent strife begot by a parliament and by law courts disci- plining the priesthood, as in the England of to-day. There is a class of erratic- minded religionists in our country, whose mere feeling, or, what they misconceive to be conscience, disquiets them, often to the extent of making them refuse to accept public trusts 'in the national and state services, or to sit even as jurors; 1 6 The American Government and this because the Constitution, in their fancy, omits to establish, as by human positive law, that GOD exists ; and, which would then ultimately and inevitably come to pass, take the Church of CHRIST, as was done by Roman-imperial and by Norman policy, under the oppressive and malign patronage of the civil service. It is for this cause that I have chosen to speak to you, the DEAN, the FACULTY, and STUDENTS of the GENERAL THEOLOG- ICAL SEMINARY OF THE UNITED STATES, concerning the unity the absolute and simple unity, not relative indebtednesses of the Christian ecclesiastical polity with the principles and administration of our constitutional government and of the common law of the land. It is important that we all, as American citizens, should have correct and definite conceptions on this subject. In endeavoring to attain this desirable end we must have an adequate knowledge Founded in the Christian Religion. 17 of the chief source, or rather as, in- deed, is the historic fact of the duality of primary and consociate powers which once constituted and still find expression in " the manner of the kingdom " : of Great Britain; and, therefore, are manifest in that, which is its express image, the Constitution of the United States. Those dual and consociate forces were, in pro- gression of time: ist. The ancient prin- ciples of the early Saxon Commonwealth, and its inherent disposition to federative government. 2 2d. The ameliorating influ- ences of the ancient Irish Church in Eng- 1 " ' Samuel told the people the manner of the king- dom, and wrote it in a book, and laid it up before the Lord,' i Sam. x. 25. 'T is plain the manner of the king- dom signifies the Constitution of the Government/* Somers's Judgment of Whole Kingdoms, etc., p. 33. 2 Turner's Hist, of the Anglo-Saxons, 3 vols. ; Pal- grave's Rise and Progress of the English Commonwealth, and his History of the Anglo-Saxons ; Reeves's History of the Common Law, vol. i., chap, I ; Pauli's Life of Alfred the Great, trans, by Thorpe ; Forsyth's History of Trial ty Jury ; and Freeman's Norman Conquest, ist vol. 1 8 The American Government land during the rise and settlement of that early Saxon Commonwealth. 1 The position of the Irish Church in Saxon civilization in England, and the la- bors of its scholar-monks in continental Europe, must be learned by him who would intelligently esteem the history of Anglican institutions in England. It is a wide theme, and an erudite theme. It is receiving to- day laborious attention from eminent schol- ars in England and in Germany. It is a subject essential to the complete elucida- tion of our general theme. But we must abridge our range of thought now to a few 1 Montalembert's Monks of the West, 3d and 4th vols. ; and Turner's Hist, of Anglo-Saxons, vol. i., b. 3, chaps. 8, 9. Green's Making of England, published since the above monograph was written, contains a vivid and in- teresting account of the missions of the scholar-monks of Ireland among the Saxons in England, and of their influ- ence upon that civilization. Latin Christianity was lim- ited and stopped in its progress till the Synod of Whitby in the year 664 ; at which time the Irish scholar-monks had already brought the rulers and people of England deter minately within the pale of Christianity. Founded in the Christian Religion. 19 of its circumstances, important among which are these : That the Church planted in Kent by Augustine, in the year 598, was soon after checked and confined in its career ; that much which it had gained was lost, and that it did not begin again to advance till long after the death of Augus- tine, and not till the result of the Synod of Whitby, in 664, opening the countries of the Anglo-Saxon to the more practically organized missions of Latin Christianity, gave cause and occasion at that Synod to the pure and noble scholar-monks of Ireland to go from the Saxon dominions, and accomplish their glorious careers upon the continent of Europe. The British Church had little, and ceased before the time that Augustine went to Canterbury to have any, effect upon the Saxons ; and, after the worse than fruitless attempted conference between Augustine himself and its delegates, in 601, that church drew back, and forever after dwelt among its own peo- 2O The American Government pie in Cornwall, Devonshire, and Wales. Then came the Danes, who, entering Eng land, stood as a solid wedge between the Latin churches and the several people of the Saxon kingdoms. This it was which had left the field there for missionary work open to but one side, and that was the side accessible from the western shores to the Irish Church. After saying thus much, I can more intelligibly continue my theme, historically, showing the vitality of Scan- dinavian institutions, how they withstood an imperial alien civilization which other institutions in other countries could not withstand ; how, borne safely through ages of adversity in England, those free institu- tions were reestablished in 1688, exempt from mutability and decay ; and find in our American system of government an expression more in sympathy with the originals from which each proceed. Within a space of sixty years, two com- manding events, sufficiently connected Founded in the Christian Religion. 21 with each other in time and political affin- ity to constitute one epoch, began to affect the course of English polity. The conquest of England, as it is called, by the Normans, extended through the years 1068-1071. In that brief space the Church planted by Augustine was by the Conqueror reorganized, or, according to the fact, reduced to the service of the state : following the spirit of imperial domination when the Romans were under the Empire. This was one event. The discovery at Amalfi, whether real or merely pretended, in the year 1130, of a perfect copy of Justinian's Pandects, served to bring the civil or Roman juris- prudence into new favor over the west of Europe. This body of law had long been quite laid aside, and, perhaps, forgotten. Its study was introduced with great zeal at once into universities on the continent, notably that of Bologna. The clergy of continental Europe took the method and 22 The American Government many of the maxims of their canon law from this august code. Nations just beginning to gather strength anew, after the exhaus- tion and prostration which followed the disruption of the Roman Empire, adopted the civil law, as the best written plan known to them, for the bases of their respective institutions of government ; and some, as with the Normans, associated it with and interwove it into their own feudal customs. It was not long before the foreign fashion reached England. The Church of England had from the time of Alfred its own canon law ; but that was produced directly from the Holy Scrip- tures, tradition, and the councils of The Church, not from profane legislation. Theobald, a Norman abbot, elected to the see of Canterbury, was a benevolent zealot in the revived study. He brought into England with him, as part of his retinue, learned proficients, and among them was Roger, surnamed Vicarius, whom he sta- Founded in the Christian Religion. 23 tioned in the University of Oxford. This is the second event. It is natural, when viewed within the social and political surroundings which followed its course, that the Roman law was, and is to this day in England and the United States of America, only a most in- teresting and superb exotic. 1 * The people of England, at the time when the Roman law was introduced at Oxford, had already, during the preceding seventy years passed under the Norman rule, felt severely the impairing effects of many Norman innovations. England had then, what continental Europe at that era had not, a mild, rational, equitable, and purely national body of law ; long in use and es- tablished. The people adhered with an in- telligent patriotism to their tried institu- tions. The Norman was laboring in vain l Blackstone's Commentaries, vol. i., b. 2, chap, i., " On Study of the Law ; " Freeman's History of Norman Conquest, vol. i., p. 17. 24 The American Government to impose upon them a plan for governing by a feudal system a government of mil- itary tenures. England was then an agri- cultural nation, and its institutions were free, and strictly in sympathy with such a people. England has, in this century, been made preeminently a nation of manufac- turers and traders. The common law of England came from the Sacred Scriptures chiefly, which preach freedom and libera- tion to all nations. Trial by jury, of Scandinavian origin, in the form in which it exists in England ; the privilege of the writ of habeas corpus ; the village com- munity ; international law, the offspring of liberal commerce and practical Christian- ity, were not only unknown, but alien, to the temper of Roman governance. There- fore, the Norman domination, in its long course of tyranny, never was able to reach so far as to touch the sure founda- tions of the Saxon Constitution. The restoration of The Church, commonly Founded in the Christian Religion. 2$ called the Reformation, finally recovered, and secured exemption, from a dictation and supervision which the policy of the Conqueror inaugurated. Nothing new was acquired, old things were regained. 1 The 1 The Paddock Lectures for 1881, by the Right Rever- end the Bishop of Connecticut, Dr. Williams, Studies on the English Reformation, are an admirable general exposition, conceived in a most just and conciliatory spirit, and likely to satisfy all pertinent and intelligent questions concerning that momentous epoch. From Hallam's View of the State of Europe during the Middle Ages, vol. ii., pp. 323, 324, 1 quote the following re- flections, to show that that which we call " progress " is in historical truth a recurrence to those primary principles from which nations have wandered, or have been driven by usurpation. There is not an important moral or polit- ical reformation related in history but has been equally the assertion and reestablishment of an ancient well-or- dered freedom, and a manifestation of a living power. " One is surprised, " says Hallam, " at the forbearance displayed by the barons, till they took up arms at length in that confederacy which ended in establishing the great Charter of liberties. As this was the first effort towards a legal government, so it is beyond comparison the most important event in our history, except that revolution, without which its benefits would have been rapidly anni- 26 The American Government revolution of 1688 simply resettled, and thereby established, likewise, the prin- ciples of the ancient Saxon governance of Alfred and of Edward the Confessor. From the moment that the Norman thus attempted to superinduce a foreign civiliza- hilated. ... All that has since been obtained is little more than as confirmation or commentary ; and if every subsequent law were to be swept away, there would still remain the bold features that distinguish a free from a despotic monarchy. . . . An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter. In this just solicitude for the people, and in the moderation which infringed upon no essential pre- rogative of the monarchy, we may perceive a liberality and patriotism very unlike the selfishness which is some- times rashly imputed to those ancient barons. And, as far as we are guided by historical testimony, two great men, the pillars of our church and state, may be consid- ered as entitled beyond the rest to the glory of this mon- ument : Stephen Lan'gton, Archbishop of Canterbury, and William, Earl of Pembroke. To their temperate zeal for a legal government, England was indebted during that critical period for the two greatest blessings that pa- triotic statesmen could confer : the establishment of civil iberty upon an immovable basis, and the preservation of national independence." Founded in the Christian Religion. 27 tion upon that Scandinavian civilization ; from the moment that the same force at- tempted to organize The Church in the temporal interests of despotism ; from the moment that the common law was to be suborned to an intrusive jurisprudence, two great parties arose. The history of those parties relates the moral, intellectual, and political history of England. Recite the names of the leaders of those parties during the last eight centuries, and you re- call, on one side, every name that is de- tested, and, on the other side, every name that is venerated in English history. By what opposing forces was this moral, intellectual, and political struggle, which began in 1070, waged ? On the one side was the tyranny of military and personal government, with an organism of law and religion as its handmaid. In opposition, was the spirit of orderly liberty : embodied in the indestructible ancient constitution, the principles of the .common law of the 28 The American Government land, and The Church. Many, like Lan- franc and Anselm, came kindly by the " courage of opinions " which springs from "a free church in a free state;" they brought with them that courage from their native Italy ; from the propagative genius of communities of religious learning, where the intrepid charity of the Monks of the West, scholars and soldiers of the Cross, had planted houses of refuge and church- centres of erudition and pious devotion, on the plains of Lombardy ; l by the shores of 1 The famous Abbey of Bobbio, for example. It was founded in 612 by S. Columban, the great rival of the Benedictines, and the associate missionary on the Rhine and in Switzerland, of S. Gall (Milman's History of Latin Christianity, ii., pp. 237-247 ). He was born in Lein- ster, Ireland, in 543. The library and school of that foun- dation were the most celebrated of the Middle Ages ; there he " lighted the flame of science and learning, which for a long time made it the torch of Northern Italy" (Montalembert, Monks, iii., etc). He there died November 21, 615. The place is desolate, neglected, and not easy to reach; but the tomb of S. Columban, in the ruins of the Abbey, has been visited, even in this utilita- rian day, by the churchman-tourist from America. Founded in the Christian Religion. 29 Constance and Zurich ; * in the valley of the Nahe; 2 on the banks of the upper Rhine. 3 The sway of The Church in pro- 1 The Benedictine Abbey, founded about 606, by S. Gall, an Irish monk, and in the eighth and ninth centuries one of the most important scientific seminaries in Europe. The library is very rich in rare and valuable MSS., of which there exists a catalogue, dating from the year 823. Its treasures are still sought by the literary antiquarian. Among them is one of the three known copies of the Gospels, by MacDurnan, the Irish monk and caligrapher (seventh century). Trinity College, Dublin, has a copy. The third, esteemed the chief literary-treasure of the Lambeth Palace Library, London, is a specimen " of that rare and peculiar Hiberno-Saxon art," of which S. W. Kershaw, M. A., the librarian, has recently published a history, with fac-similes of some of its illuminated pages. See, as to the Irish MSS. on the continent, Montalem- bert, Monks, vol. i., pp. 121, 122, and notes. 2 The monastery on the heights of Disibodenberg, founded (eighth century) by the Irish bishop Disibodus, who died A. D. 750 ; he was the first propagator of Chris- tianity in this district. The ruins still testify to the ex- tent and grandeur of the buildings, and are among the most significant which I have seen in the vicinity of the Rhine. The establishment was abandoned in 1559. 8 S. Suibertus, a native of Ireland, first preached the 3 be sure, is inherent in the race itself. But without such ancient institutions and def- inite laws, as those which ennobled that people, the battle would have been to the strong. Those institutions were founded on an obedience to divine law, and order abided with them even in the midst of rev- olution. It was by the peaceful revolu- tion of 1688, when the representatives of all England, in congress assembled, called the nation as it were to order, and pro- ceeded in due form of law and according to precedent, that the liberties and peace of Great Britain were rescued and made sure. That was not rebellion, it was not treason ; 1 it was not what is called prog- 1 "That cause is just which defends the laws, which protects the common good, which preserves the state ; 3 34 The American Government ress. It was retroaction. It was, in a word, revolution : by which that which had been was brought legitimately around again. I have dwelt on the principle of the Rev- olution and Settlement of 1688, because it was the prototype and immediate authority for the American Revolution ; and I have spoken, as introductory to that era, of the development of the early Saxon institu- tions, because they are the foundations of our own Constitution. It was an intelligent and graceful thought which led the founders of the American Republic to name our first na- tional vessel Alfred, after the founder of the Saxon Commonwealth. 1 For he had and that cause is unjust which violates the laws, de- fends the breakers of the laws, protects the subverters of the Constitution. They neither are, nor can be, traitors who endeavor to preserve and maintain the Constitution." Somers, Judgment of Whole Kingdoms, etc., pp. 9, 28. 1 November 25, 1775. Founded in the Christian Religion. 35 organized his nation upon the precepts and mandates of Holy Writ. Our own government and the laws which administer it, like those of Alfred the Great, are, in every part, legislative, judicial, and ex- ecutive, Christian in nature, form, and purpose. In using the term Christian, I do not and cannot use it in an excluding sense. Alfred, in collating the laws of England, certainly considered the Jewish law as part essentially of a Christian sys- tem of secular government and as the au- thority and foundation of the common law. Let me repeat, therefore, that I use the word compendiously and in this inclu- sive import. Continue your attention, while I now follow the historical traces which lead us to the conclusion that Christianity is of our civil polity. I esteem it a special privilege to defend the form of government under which we live from the imputation that it is a government which declines or avoids 36 The American Government an acknowledgment of Almighty God, a merciful Providence, and revealed religion. How such a marvelously absurd conceit first arose I have not been able, nor am I disposed, to search out. It first got a no- torious currency from a letter written by Thomas Jefferson, in 1811, to a Major Cartwright. It was then and has since often been construed, but erroneously, to contain an insidious argument to prove that Christianity is not a part of the com- mon law. The reputation of Thomas Jef- ferson has to sustain many things which the minds of careful men are not willing to accept for sound doctrine, and many things are imputed to his name of which he was not intentionally the author nor the propagator. I think fair dealing re- quires that he should not be held answer- able for, in his letter to Major Cartwright, 1 uttering such a thought. I do not mean to say that had occasion then, or at any 1 Jefferson's Correspondence, vol. vii., pp. 355-361. Founded in the Christian Religion. 37 other time, seemed to him to call for the assertion he might not have asserted that fallacious assumption. But sufficient to the occasion is the evil thereof. He cer- tainly then did not. A public controversy, nevertheless, arose. Great names ap- peared in the arena of debate, and a most erudite and irrelevant discussion was added to the literary tumults of that day. What Mr. Jefferson wrote was : that a decided case, reported in the Year-Book of the 34th Henry VI., pp. 38-40, had not adjudicated that Christianity was of the common law. So that the issue joined for the discussion was : whether a secular tribunal had, in that case, judicially recognized Christianity as part of the general law which an Eng- lish court was required to administer. The war of words bore no relation to the solu- tion of the question. If Christianity be part of that law, surely it exists as such independently of all human tribunals. The office and duty of the judge is simply to 38 The American Government declare that which is law, 1 and unless the maxim of which we speak can be ascer- tained and established, by evidence, as coming from an authority above and greater than the delegated power of a hu- man tribunal, the maxim stands on very new-made and infirm ground. These words are a literal translation of Mr. Justice Prisot's judgment in the case : " As to those laws," he says, " which those of Holy Church have in ancient scripture, it behooves us to give them credence, for this is Common Law." Mr. Jefferson in- ferred that those words " ancient scrip- ture " mean ancient writings, and not the Holy Scriptures or Bible. For all that his contention is worth, with regard to its value on the main point, it may as well be 1 The derivation repeated by Skeat in his masterly Etymological Dictionary of the English Language, just published, is most significant of the judicial function : "The stem iu-dic = ius-dic, meaning 'one who points out what is law ; ' from ius, law, and die-are, to point out, make known." Founded in the Christian Religion. 39 conceded that Mr. Jefferson is correct ; it is not worth the argument whether it is he or his assailants who are correct. For, of what was the judge speaking ? He himself explains that he is speaking of the principles of that primal and eternal jus- tice upon which " all manner of laws are founded." He alludes clearly to some understood, fundamental doctrine in con- cert with the institutions of the country; some supreme law, having a foundation in nature J and by Divine appointment, not merely a positive ancient code of The Church. It is plain that, in this use of the words " ancient scripture," Mr. Jus- tice Prisot meant simply the ancient writ- ings or legal institutions of England ; and then, in that relation, he acknowledges the natural and revealed law, which, being the will of God, is that " upon which all man- ner of laws are founded." Thus inter- 1 " All laws are founded in nature, and not in opin- ion." Cicero. 40 The American Government preted, the famous case in the Year-Book testifies to the Christian character of the constitution and laws of England ; from which, I again aver, we derive our own American legal institutions. At some future time I may write concerning the unity of those municipal laws particular- ly with the mandates of Holy Scriptures. Now I speak chiefly of the nature and form of our government itself. All that is excellent in human nature is the product of an excelling quality which has led the way. There were heroes be- fore Agamemnon, and there were princi- ples before heroes. There was an Alfred, surnamed the Wise, 1 before there was an Alfred, surnamed the Great. Centuries be- fore Alfred the Great gave a more perfect form and procedure to the governance and 1 A. D. 684-728. Turner's History of Anglo-Saxons, vol. i., pp. 332-336. Alfred the Great was born A. D. 849; died 901. He fashioned his character and public Career upon the ideal of his royal predecessor, Alfred the Wise, of Northumbria. Founded in the Christian Religion. 41 laws of his Commonwealth, that govern- ment and those laws were known to and cherished as a birthright by the people of England ; they had then long been re- spected, and had been, by a line of Saxon law-givers, embodied from time to time in an administration suitable to the traditions and habits of the race. I do not purpose even to outline the history of the rise of that Commonwealth. I draw attention to the chief tributaries which filled and shaped its course as a gov- ernment of power and equity, of " folk- right," as Edward the Confessor called it. They are the parent sources of our nation- ality ; we, by political descent, are their children ; and, " if children, then heirs " of this elder race, from which Great Britain herself inherited her original stock of good doctrines and institutions. When Alex- ander Hamilton said that the Constitution of England was the best " model to work from," he thought for the colonists who 42 The American Government had, as Montesquieu observed, "grown great nations in the forest they were sent to inhabit," in like mind with Alfred, who only adjusted the administration of public affairs to the temper which an an- cient people brought with them from their immediate fatherland, and in the atmos- phere of which the Angles in Britain had "grown to be a nation." While the Saxon Commonwealth was in progress of accre- tion and consolidation, the Roman power had departed, the dominion of the Briton had passed away from that part of the country, and the Anglo-Saxon occupa- tion, from the Pictish sea to the Channel, was complete in 638. Latin Christianity, checked in its mission among the Saxons, as I have already stated, rested awhile from its labors. The scholar-monks of Ireland, invited by and associated with the Saxon kings, "occupied the entire field." J 1 Green's Making of England, pp. 269-313 : King w Oswald obtained a bishop from Icolm-kill to instruct his Founded in the Christian Religion. 43 There was not, however, yet an Eng- land. The work of God's providence had rude subjects ; " and " had the satisfaction of perceiving the blessings of Christianity diffused into Wessex." Tur- ner's History, etc., vol. i., pp. 316, 317. And see Bede, lib. iii., c. 21, as to Diurna : " Christianity spread through Mercia with great celerity. Its two first bishops were Irishmen ; and the third, though born an Angle, was edu- cated in Ireland." Turner's History, ibid., p. 323. " It was not the Church of Paulinus which moved Oswald to this struggle for the Cross. Paulinus had fled from Northumbria at Eadwine's fall ; and the Roman Church in Kent shrank into inactivity before the heathen reac- tion. Its place in the conversion of England was taken by missionaries from Ireland. . . . Ireland, which re- mained unscourged by invaders, drew from its conver- sion an energy such as it has never known since. Chris- tianity had been received there with a burst of popular enthusiasm, and letters and arts sprung up rapidly in its train. The science and Biblical knowledge which fled from the Continent took refuge in the famous schools which made Durrow and Armagh the universities of the West. The new Christian life soon beat too strongly to brook confinement within the bounds of Ireland itself. Patrick, the first missionary of the island, had not been half a century dead when Irish Christianity flung itself with a fiery zeal into battle with the mass of heathenism which was rolling in upon the Christian world. . . . For 44 The American Government still to be done. The means to do it were ready at hand. The Saxons in Britain were at last to be subdued to a Chris- tianized civilization. Though the British Church was hostile to the Saxon, who a time, it seemed as if the course of the world's history was to be changed, as if the older Celtic race that Ro- man and German had swept before them, had turned to the moral conquest of their conquerors ; as if Celtic and not Latin Christianity was to mould the destinies of the churches of the West. . . . Thence, from the monastery which gave to the spot its after-name of Holy Island, preachers poured forth over the heathen realms. . . . Aidan himself wandered on foot, with the king as his in- terpreter, preaching among the peasants of Yorkshire and Northumbria. . . . The labor of Aidan, the victories of Oswald and Oswi, seemed to have annexed England to the Irish Church. The monks of Lindisfarne, or of the new religious houses whose foundation followed that of Lindisfarne, looked for their ecclesiastical tradition, not to Rome but to Ireland ; and quoted for their guid- ance the instructions not of Gregory but Columba." Green's History of the English People, vol. i., pp. 21, 22, 28. And see Montalembert's Works, etc., vol. ii., pp. 1-131 ; and Green's Making of England, pp. 213-230, 269-313.- And as to the mission of Aidan, see Milman's History of Latin Christianity, vol. ii., pp. 190-192. Founded in the Christian Religion. 45 had driven its people from their native soil to " the strangers' land," 1 and though that Church had repelled irreconcilably the demands of Latin Christianity for su- preme ecclesiastical jurisdiction ; 2 though Latin Christianity had made little way to the Saxon heart, and was finally hemmed in by the Danish irruptions, the future England was not stayed. It saw and sought the influences of educational and 1 Nations often have two or more designations : those used by foreigners, and that more properly used by themselves. So it comes that the " Cymri " are called Britons. This name was given to them by the Romans, and derived from " Prydain," or Britain, the country in which they were found. But in our common Saxon tongue we call them Welshmen, a descriptive term formed from the old English or Saxon Wilisc, an adjec- tive, signifying that which is foreign or strange. For example, Italy is the Welschland of the modern Ger- mans, and their Welschers are the Italians, foreigners to them, as were the Cymric-Britons to the Jutes, Angles, and Saxons. 2 Green's Making of England, p. 221 ; Montalembert's Monks, etc., vol. ii., pp. 178, 179. 46 The American Government spiritual life, and thereby national devel- opment and greatness, from that copious fountain, destined to water and make fruitful many other " thirsty soils," the Irish Church. The relations between the Saxons and the Irish were during this epoch, the sixth and seventh centuries, and indeed in centuries later, cordial, 1 were fostered by mutual friendly inter- course, and by special benefits conferred upon the Saxons. Many actual circum- stances elicited fervent sympathy and con- duced to beneficent cooperation between the pious and learned men of that com- munion, and the tribes which were to be the founders of the English nation. 2 1 Bede, lib. iv., chap. 26 : Malmsbury, p. 20, quoted in Turner's History, etc., vol. i., b. 3, chap. 8, and note 49. 2 " It was at this period that Ireland appears to have been conspicuous for the literature of some of her mo- nastic seminaries. Bede states, that many of the noble and middle classes of the English left their country and went to Ireland, either to study the Scriptures, or to pass Founded in the Christian Religion. 47 The Angles, guided by the learning, piety, and wisdom of these, their spiritual allies, caused their own language, 1 their literature, their own customs and laws, to be paramount throughout Britain, and Britain became the Angles-land. The a more virtuous life. Some connected themselves with the monasteries, and preferred passing from the abode of one master to that of another, applying themselves to reading." " The body of King Ecgfrid was taken to Icolmkill, and buried there." Alfred of Northumbria, surnamed the Wise, the prototype of Alfred the Great, " devoted himself to piety and literature, and voluntarily (before he succeeded to the throne) retired into Ireland, that he might pursue his unambitious studies." " Learned monks from Ireland had given to his father and coun- try what intellectual information they had acquired." Turner's History of the Anglo-Saxons, vol. i., b. 3, chaps. 8,9- 1 " The English language is simply Low Dutch, with a very small Welsh, and a very large Romance infusion into its vocabulary. The English language retained its purely Low-Dutch character down to that great infusion of Romance words into our vocabulary which was a result, though not an immediate result, of the Norman Con- quest." Freeman's History of the Norman Conquest^ vol. i., pp. 14, 17. 48 The American Government Irish monk had done his task in Eng- land. Alfred the Great, when the times served to cultivate the arts of peace, acted the part of the true reformer. He avoided innovation, he restored, strengthened, and improved that which existed ; and the elements of the system of constitutional government which he erected, including the pre-supposition of Divine authority therefor, are those upon which our gov- ernmental structure rests. Wherefore it is needful that we understand the Consti- tution and laws of his Saxon Common- wealth, so that we may clearly compre- hend and esteem our own. Alfred the Great apparently concerned himself in four things chiefly : (i.) Plans for the moral and intellectual culture of his. countrymen ; and to gain that object the diffusion of knowledge throughout the people. The usual tendency of the Mid- dle Ages was to centralize learning, and Founded in the Christian Religion. 49 keep it within a designated caste, disso- ciate from the other social orders. Al- fred's policy, contrariwise, and in associa- tion with that of the scholar-monks of Ire- land, was to counteract this tendency, cre- ate a national habit of thought by the use of the native tongue 1 in all literature; and direct education, so as to enable every in- dividual to obtain a share, according to his station and degree, in the common inheri- tance of knowledge and wisdom. A circu- lar letter, issued by Alfred to the bishops in England, expresses the earnestness of intention, the comprehensiveness, precis- ion, and patriotism of his mind. He rec- ommends the translation these are his words of " useful books into the lan- guage which we all understand, so that all the youth of England . . . may be ground- ed in letters, for they cannot profit in 1 " Aidan and his brethren, now familiar with the Saxon speech, preached the Gospel in every part of the kingdom." Milman's Hist. Latin Christianity, ii., 191. 4 50 The American Government any pursuit until they are well able to read English." Already, before Alfred's time, some knowledge of the Bible was, through the English Caedmonian version, familiar to the people. The venerable Bede, also, had rendered the Gospel according to St. John, and also other portions of Holy Scriptures, into the common speech. There were, besides, the Anglo-Saxon versions of The Psalter ; and the second book which Alfred, in the course of his theological studies, read, was a selection from The Psalms, "with the daily prayers according to the usage of the ancient Church." It is an evidence of the success with which the scholar-monks of the Irish Church had diffused Saxon literature upon the Conti- nent, that Alfred was taught his love for his native tongue and its literature by a Frenchwoman, his step-mother Judith, the granddaughter of Charlemagne. 1 1 Turner's Hist. Anglo-Saxons, vol. i., pp. 432, 433. and Montalembert's Monks of the West, vol. ii. Founded in the Christian Religion. 51 (2.) Alfred thought it a primary duty for the Christian sovereign to institute good laws and necessary rules of practice for their administration. Some of his pred- ecessors had done much, and few more than he whose auspicious name he bore, Alfred the Wise, of Northumbria. The Code, as it is called, of Alfred the Great differs in no fundamental doctrine or rule from the jurisprudence of his predecessors in the royal office. Ethelbert had reduced the traditionary legal customs of the Kentish Jutes to writing. Ina, King of West- Saxons ; Off a, of Mercia, and other Saxon monarchs, had from time to time published their " Dooms," or judg- ments. It was from these statutes many of them taken directly from the Bible Alfred selected those articles and chapters which he thought most authentic and suitable ; some he amended, few were rejected. The greater part of the laws from which he made his compilation are 52 The American Government still in existence ; and the alterations made by insertion, alteration, and omis- sion do not, when taken together, afford any characteristics peculiar to Alfred's work. 1 He made no substantial alteration whatever in the laws and usages of his realm. He introduced, he encouraged, no new doctrine. He himself tells how it was that he would not venture upon it. He was fearful that by such precedent new laws enacted by him might, in their turn, be rejected by posterity, as not war- ranted by the ancient authority and gen- uine " law of the land." That there were defects in the Saxon law none knew bet- 1 Sir Roger Owen's work (MSS., Harleian Collection, British Museum) on The Antiquity and Excellency of the Common Laws of England, quoted in Whitelock's Commentary on the Parliamentary Writ, vol. i., p. 208 ; Wilkins' Leges Anglo-Saxonica, pp. 28-46; Barring- ton's Observations on the more Ancient Statutes, p. 116 ; Thorpe's " Ancient Laws and Institutes of the Anglo- Saxons ; " and Stubbs' "Documents Illustrative of Eng- lish History" pp. 59-74. Founded in the Christian Religion. 53 ter ; but he judged (we have his own word to this effect 1 ) that it was sound policy to permit a defective law to remain than to weaken the foundation upon which all law depends, respect for Established Authority. This was the secret strength of our Rev- olution of 1776; "a constitutional war," as Lord Shelburne has admitted it to be. 2 1 " I then, Alfred, King, these [laws] together gathered and had many of them written which our foregangers held, these that we liked, and many of them that we not liked I threw aside, with my Wise Men's thought, and on other wise bade to hold them. For why I durst not risk of my own much in writ to set, for why it to me un- known was what of them would like those that after us were. But that which I met, either in Ine's days my kinsman, or in Offa's the King of the Mercians, or in uiEthelberhts that erst of English kin baptism under- went, those that to me righted seemed, those have I herein gathered and the others passed by. I then, Alfred, King of the West-Saxons, to all my wise men these showed, and they then quoth that to them seemed good all to hold." Alfred's Dooms, Thorpe's Laws and In- -titutes, vol. i., pp. 58, 59; Freeman, Hist. Norman Con* guest, vol. i., pp. 53, 64. 2 " The Romans had a war of a character similar to that 54 The American Government In these characteristics of the founder of the Saxon Commonwealth we see that ven- eration for precedent which controls the English mind to this day. A reverence for the past has proved in crises of civil strife and revolution the sheet-anchor of England's safety. (3.) Village communities are an impor- tant social and political institution. Their existence in Alfred's municipal system in- dicates the far more distant origin of the idea upon which he regulated the political position of the people towards the State. We trace this particular institution to the earliest ancestors of the Anglo-Saxons ; we see it this day in the more ancient and still living village communities of India; and it is remarkable, and of special value being carried on in America. They did not call their enemies rebels ; the war itself they called the Social War ; and in the same sense he desired to call the war m America a Constitutional War" Fitzmaurice's Life o/Shelburne, vol. ii., p. 304. Founded in the Christian Religion. 55 in our own political history, " that," as Sir Henry Sumner Maine informs us, " the earliest English emigrants to North Amer- ica, who belonged principally to the class of yeomanry, organized themselves in vil- lage communities for purposes of cultiva- tion." 1 The powerful part which our New England towns and town-meetings took in the Revolutionary era, from 1 763 to say 1777, shows their political utility. Lastly : Alfred's guiding object "crown- ing all," subordinating every member of the body of government to this function, was to inflame temporal legislation and administration with the spirit of the law of God. 2 In doing this Alfred did not by * Maine's Village Communities, p. 201. 2 Two instances remarkably exemplify this purpose : I. This case arose in Coke's time : A. on a trial at law, swore wilfully, absolutely, and falsely against B. in a capital charge. B. was, in consequence, convicted and put to death. Question : Was the false witness guilty of murder ? 3 Coke's Institutes, 48. The crime was pun- ishable by death according to the Divine, or Mosaic law, 56 The American Government needless human enactment vainly strain to assert what all religiously acknowledged: and by the common law of many civilized nations ; but not by modern English law as adjudicated. 4 Black- stone's Com., 138, 139. By the ancient law of England it was punished by death, but, as Coke says, " no instance of conviction allowed since." It was under the mandate of this Divine law that Alfred proceeded in the cases of the " unjust judges," for, in violation of their official oaths, illegally having prisoners put to death. Alfred " hanged Markes, because he adjudged During to death by twelve men not sworn. He hanged Freberne, because he adjudged Harpin to death when the jurors were in doubt about their verdict : for when in doubt we ought rather to save than condemn." Mirroir des Justices^ pp. 296-298. During his reign, and the after Saxon dominion to the time of Edward the Confessor, the usage was univer- sal throughout the realm of accompanying the names of those who signed, whether as parties or witnesses, writ- ten instruments with "holy crosses." Then by the learned, also ; but the habit continues to our day, even in this country, when the parties are illiterate, perhaps with few knowing of its pious origin and significance. The introduction of the wax-seal was by Edward the Confessor, who learned of that and other Norman cus- toms at the court of his cousin William in Normandy. Founded in the Christian Religion. 57 THE EXISTENCE AND OMNIPOTENCE OF GOD, AND HlS PRESENCE IN HUMAN AFFAIRS. He reverently and simply prefaced his Collection of Laws by the Divine Law ; and, for the first time, preceded formally Anglo-Saxon legislation by the Decalogue, the principal provisions of the Mosaic law contained in the three chapters which fol- low the Decalogue, with some necessary formal modifications, and the canons of the Apostolic Council. 1 These sacred writings were not meant to constitute legislated parts of the human law, but, as in order of authority so in order of arrangement, their precedence declared them the authority, the foundation, and the fountain of jus- 1 " It would be difficult to find in any other collection of laws of the Middle Ages so large a portion of Biblical matter as in this ; and we know, too, that no other has so completely adopted the principles of the Mosaic law. ... In no other do we find the idea of blending the old Teutonic law with the Hebrew-Christian, so perfectly carried into effect." Pauli's Life of Alfred, trans, by Thorpe, p. 136, Bohn's edit. 58 The American Government tice and earthly rule. Self-evident, un- derstood, presupposed, it declares that no government other than those which rest therein is legitimate. " Do these," says Alfred, referring to those Divine pre- cepts, " and if these commands be obeyed, no other doom-book will be required." The Code of Alfred lives, .and nowhere more potentially than in the political insti- tutions of America. Great nations decline and fall : great men are often detected ; but a great book is, indeed, imperishable ; and, like the granite accretions of the rock, growing from age to age, indestructible. These suggestions are sufficient to show that the Constitution and laws of England and of the United States of America came into form and operation under benign influ- ences such as no other nation ever started with, and were cultured in associative in- fluences thoroughly indoctrinated with the genius of Christian civilization and civil liberty. Founded in the Christian Religion. 59 The colonists in America were more in- tense and intelligent in their devotion to the principles of Saxon institutions and the Common Law than the people of England, even during the Saxon strife with the early Norman aggressions. The teaching of Lord Somers he who restored English civil liberty to its ancient and pristine legal security was, as we have noticed, familiar to our colonial people. Blackstone's Com- mentaries was among those people as a book of popular literature. " I have been told by an eminent bookseller," said Edmund Burke to the House of Co'mmons in 1775, " that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use." The first great commentary by an Englishman, written in the English lan- guage, was this by Blackstone, in vindica- tion of England's ancient Saxon laws and 60 The American Government Constitution : and in protest against the asserted superiority or even equality for English rule of the civil law. One of the beautiful boasts of our mu- nicipal system is : that the Common Law, and therefore the Constitution in pursu- ance of which that law prevails, comes to us refulgent with the enlightening au- thority of the Christian religion. " There never has been a period," said Story, in his inaugural address as the Dane Pro- fessor in I82Q, 1 "in which the common law did not recognize Christianity as ly- ing at its foundations. It repudiates every act done in violation of its duties of per- fect obligation. It pronounces illegal every contract offensive to its morals. It recog- nizes with profound respect its holidays and festivals, and obeys their sacred man- dates. It still attaches to persons who be- lieve in its divine authority the highest degree of credibility as witnesses; and, 1 Story's Miscellaneous Writings, pp. 517, 533, 535. Founded in the Christian Religion. 6 1 until a comparatively recent time, infidels and pagans were banished from the halls of justice. The error of our government, it has been asserted, is in reality of a dif- ferent character : it tolerated nothing but Christianity." Story might have added to this enumeration that laws in pursuance of the spirit of our Constitution prohibit, under penalties, the name of God being publicly blasphemously uttered ; * and will not allow the worship of God to be wan- tonly and openly reviled to the annoyance of believers and bad example to the pub- lic. The sanctity of the LORD'S DAY is acknowledged, and contracts made on that day invalidated. 2 The conscience of each public servant is bound by "that adaman- tine chain, an oath," to the throne of God : 1 Judgment of the Supreme Court of the State of New York, delivered by Kent, Chief Justice, in the case of The People vs. Ruggles, reported in Johnson's Rep. t vol. viii., pp. 290-298. See Appendix A, pp. 67-80. 2 Appendix B, pp. 80-82. 62 The American Government in the legislative, in the judicial, in the executive departments. From the Presi- dent of the United States, from the Chief Justice of the United States, from the Senators, down to the humblest officer in the nation : l State, municipality, and 1 Art. 6, sect. 3, of the Constitution of the United States. The general rule in England, as in the United States of America in its national administration, is to the same purport. The regulations in other Christian coun- tries are worthy of remark. Spanish deputies swear fidelity and obedience to the King with their hands on the Gospels ; the member says, " I swear : " and the President answers, " If you do so, may God reward you, and, if not, may He call you to account." The Presi- dent of the Italian Chamber of Deputies invites a new member to be faithful to the King, etc. : the deputy then stretches out his right hand, and pronounces the single word, " Giuro." In the Kingdom of the Netherlands all new members of the States-General, of whatever re- ligious professions, with the exception of Anabaptists or Mennonites, have to take this oath : " I swear fidelity to the Constitution, so help me, God Almighty." In France, since the fall of the Empire (1872), no oath or affirma- tion is administered in any form to members of the leg- islative body of the Republic. ' Nor is there any form Founded in the Christian Religion. 63 village. The Constitution expresses, in these visible signs, the substantial idea ; it marks the reality of its Christian char- acter ; and it finally and affirmatively de- clares, in express terms, that the enact- ments which compose the Constitution were "done ... in the year of OUR LORD, 1787." It was the deliberate issue of re- which can be esteemed equivalent. Under the Empire merely a declaration was required to this effect: "I swear fidelity to the Emperor and the Constitution." The name of God was not included. The members of the German Parliament now take no oath nor make an affirmation. But the omission is said to be caused by a desire to avoid the delicate question as to the amount of loyalty due to the Emperor in contradistinc- tion to that due to state sovereigns. The members of the Prussian and most other state parliaments do take an oath beginning with the words, " I swear by God, the Omnipotent and Omniscient," and ending with, " So may God help me ; " and to this formula those who wish may add, " through Jesus Christ, to eternal bliss. Amen ! " The declaration in use in the United States, conforming to their religious spirit, begins, " I [A. B.], do solemnly swear [or affirm]," and ends, " So help me, God." 64 The American Government ligious traditions, circumstances, convic- tions, and acknowledgments. The original thirteen States inherited and continue in legal succession and am- plitude of jurisprudence, the common law; 1 and as to the courts of the national gov- ernment, their limitations concern subjects of jurisdiction, and not the applicability, within that jurisdiction, of the rules of the common law. 2 1 The common law, as it stood on the iQth of April, 1775, was adopted by the Constitution and made part of the law of the States. Constitution of 1777, section 35. It is determined by the highest and ultimate judicial power of the nation, Robinson vs. Campbell, 3 Wheat- orfs Rep., 212 ; 10 Ibid., 159, that the remedies in the federal courts were to be " according to the principles of common law and equity, as distinguished and defined in that country from which we derived our knowledge of those principles." "It is," says Kent, "the common jurisprudence of the United States, and was brought with them as colonists from England, and established here." Commentaries, vol. L, p. 543. 2 Story treats this doctrine in his Commentaries on the Constitution, 140, 141. Founded in the Christian Religion. 65 In conclusion, we can safely add that, when our nation came to formulate and express its peculiar constitution of govern- ment, a simple instrument of mere federo- nationality, it was, therefore, neither nec- essary nor desirable that such an instru- ment should contain an affirmative and declamatory formula, on behalf of the con- sociate States, that such a people, coming of such a lineage, believed in God and acknowledged Holy Writ. It would have savored of pretentious cant, and made at best only a parade calculated to offend men of good taste and sincere religious convic- tions. 1 Our colonial and, thence proceed- 1 Foster's Essay on some of the Causes by which Evan' gelical Religion has been rendered unacceptable to Persons of Cultivated Taste (see Essays on Decision of Character^ etc., pp. 177-311). An instance of inaugurating a Republic ostentatiously,. as if under the special auspices of God, was the impious pageant performed in the Champ de Mars, July 14, 1790 ; in which Talleyrand, then Bishop of Autun, acted, with ill-repressed satire, the conspicuous part of high-priest, or chief mummer. 5 66 The American Government, etc. ing, our United States, already possessed the principles of the ancient Constitution of their forefathers, with all time-honored traditions and self-evident truths, and ever walked in subjection to them. As the Decalogue, the Mosaic precepts, the Apos- tolic Councils, like the cloud that led and the pillar of fire that enlightened the people of Israel, go before the legal tradi- tions and unwritten governance of Great Britain and Ireland, so, in fact and in his- toric truth, do their sacred authority go before, illuminate, and guide our own gov- ernance and our administration of national affairs. Not less understood, not less man- ifest, not less reverenced and obeyed, be- cause not formulated by legislation. APPENDIX. A. PAGE 60. THE defendant was indicted in Washington County, State of New York, in December, 1810, for wickedly, maliciously, and blasphe- mously uttering and with a loud voice publish- ing, "in the presence and hearing of divers good and Christian people, etc., of and con- cerning the Christian religion and of and con- cerning JESUS CHRIST," certain false and blas- phemous words ; which need not, in this reci- tation, be repeated, but which the indictment averred to have been uttered by the prisoner " in contempt of the Christian religion, and in contempt of the laws of the State, to the evil and pernicious example of all others," etc. On the hearing of the appeal by the Su- preme Court, the counsel for the prisoner con- 68 Appendix. tended that the offense charged in the indict- ment was not punishable by the law of the State ; and that, from the preamble to and the provisions of the Constitution of the State and the silence of the Legislature, it was to be in- ferred that Christianity did not make a part of the common law of the State. There are no statutes concerning religion, except those rela- tive to the Sabbath and to suppress immoral- ity. The Constitution allows a free toleration to all religions and to all kinds of worship. The exception as to licentiousness refers to conduct, not opinions. Judaism and Mahomet- anism may be preached here without any legal animadversion. For aught that appears, the prisoner may have been a Jew, a Mahometan, or a Socinian ; and, if so, he had a right, by the Constitution, to declare his opinions. The offense charged in the indictment attacks only the Divinity of CHRIST. It is not an offense against religion in general ; nor does it affect moral evidence nor destroy confidence in hu- man testimony. To this argument the counsel for the prosecu- Appendix. 69 tion answered : that the common law of Eng- land, as it stood in 1776, was adopted by the Constitution and made part of the law of the State. Blasphemy and the contumelious re- proaches of OUR SAVIOUR were punishable by the Common Law of England, not on account of there being in England an Established Church, but it was a principle coeval with the English law, and had stood unshaken amid the rev- olutions and changes in Church and State. Blasphemy is defined to be denying the Be- ing or Providence of GOD ; contumelious re- proaches of CHRIST; profane scoffing at the Holy Scriptures, and exposing them to con- tempt and ridicule. The counsel cited four decided cases, whereby the Court of the King's Bench of England would not suffer it even to be debated that to write against Christianity in general was not an offense punishable at common law in the temporal courts. While the Constitution of the State has saved the rights of conscience, and allowed a free and fair discussion of all points of controversy among religious sects, it has left the principle 70 Appendix. engrafted in the body of our Common Law that Christianity is part of the law of the State, un- touched and unimpaired. That great lawyer and erudite scholar, Chan- cellor Kent, then Chief Justice of that court, in delivering the unanimous judgment of the court in that case, said : " The single question is : whether this be a public offense by the law of the land. After conviction we must intend that these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion. The language was blasphemous, not only in a pop- ular, but in a legal, sense ; for blasphemy, ac- cording to the most precise definitions, con- sists in maliciously reviling GOD or religion, and this was reviling Christianity through its Author. Emlyn's Preface to the State Trials, p. 8. See, also, Whitlock's Speech, State Trials, vol. 2, p. 273. The jury have passed upon the intent, or quo animo ; and, if these words spoken in any case will amount to a misdemeanor, the indictment is good. Appendix. 7 1 " Such words, uttered with such a disposition, were an offense at common law. In Taylor's case (Ventris' Rep., p. 293 ; Keble's Rep., vol. 3, p. 607 ; Tremaine's Pleas of the Crown, 226), the defendant was convicted, upon in- formation, of speaking similar words, and the Court of King's Bench said that Christianity was parcel of the law, and to cast contumelious reproaches upon it tended to weaken the foun- dation of moral obligation and the efficacy of oaths. And in the case of Rex v. Woolston (Strange's Rep., p. 834), on a like conviction, the court said : they would not suffer it to be debated whether defaming Christianity in gen- eral was not an offense at common law ; for that whatever strikes at the root of Christianity tends manifestly to the dissolution of civil govern- ment. But the court were careful to say that they did not intend to include disputes between learned men upon particular controverted points. The same doctrine was laid down in the case of The King v. Williams, for the pub- lication of Paine's Age of Reason ; which case was tried before Lord Kenyon, in July, 1797. 72 Appendix. The authorities show that blasphemy against GOD, and contumelious reproaches and profane ridicule of CHRIST or the Holy Scriptures (which are treated equally as blasphemy), are offenses punishable at common law, whether uttered by words or writings. Taylor's case, Ventris' Rep., p. 293 ; Blackstone's Commentaries, vol. 4, p. 59 ; Hawkin's Pleas of the Crown, vol. i, b. i, c. 5 ; East's Pleas of the Crown, vol. i, p. 3 ; Tremaine's Entries, p. 225^, Rex v. Doy- ley. The consequences may be less extensively pernicious in the one case than in the other; but, in both instances, the reviling is still an offense, because it tends to corrupt the morals of the people and to destroy good order. Such offenses have always been considered independent of any religious establishment or the rights of The Church. They are treated as affecting the essen- tial interests of civil society. " And why should not the language contained in the indictment be still an offense with us ? There is nothing in our manners or institutions which has prevented the application or the ne- cessity of this part of the Common Law. We Appendix. 73 stand equally in need, now as formerly, of all that moral discipline and of those principles of virtue which help to bind society together. The people of this State, in common with the people of this country, profess the general doc- trines of Christianity as the rule of their faith and practice ; and to scandalize the Author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such pro- fanity lawful. It would go to confound all distinctions between things sacred and profane j for, to use the words of one of the greatest oracles of human wisdom, 'profane scoffing doth by little and little deface the reverence for religion;' and he adds, in another place, * Two principal causes have I known of athe- i sm> curious controversies and profane scoff- ing.' Lord Bacon's Works, vol. 2, pp. 291, 503. Things which corrupt moral sentiment, 74 Appendix. as obscene actions, prints, and writings, and even gross instances of seduction, have, upon the same principle, been held indictable ; and shall we form an exception in these particulars to the rest of the civilized world ? No govern- ment among any of the polished nations of an- tiquity, and none of the institutions of modern Europe (a single and monitory case excepted 1 ), ever hazarded such a bold experiment upon the solidity of the public morals as to permit with impunity, and under the sanctions of their tri- bunals, the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient law- givers and philosophers embraced the religion of the country. Digest, b. i., 10, 2; 2 Cicero, De Legibus, b. 2, passim. 1 Revolutionary France of 1793. 2 " Jurisprudentia est divinarum atque humanarum rerum notitia" Cf. Justinian, Institutes lib. i., tit. i., sect, i : " Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust." Therefore, the knowledge of divine things was necessary, Sis well as the knowledge of human things, to say what was law in its administrative sense; that is, relating to Appendix. 75 " The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and 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 com- munity is an abuse of that right. Nor are we bound by any expressions in the Constitution, as some have strongly supposed, either not to punish at all, or to punish indiscriminately, the like attacks upon the religion of Mahomet or the whole mass of rights and duties protected and en- forced by legal remedies. Cf., also, Bracton's De Legibus et Consuetudinibits Anglia, vol. I, b. i., chap. 3, p. 13, sect, i (edition by Sir Travers Twiss, Q. C., D. C. L., now in course of publication by authority of the Lords Commissioners of the Treasury, under the direction of the Master of the Rolls, 1878-1882): "We must see now what is law ; and it is to be known that law is the common precept of prudent men in council, the coercion of offenses, which are committed voluntarily or through ignorance, and the common warrant of the body politic. Also GOD is the Author of justice, for justice is in the Creator, and accordingly right and law have the same signification." And, al'so, Hooker's (Of the Laws of Ecclesiastical Polity r , b. i., xvi., 8) noble ascription to Law. G. S. 76 Appendix. of the Grand Lama ; and for this plain reason, that the case assumes that we are a Christian people, and that the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those im- postors. Besides, the crime is crimen maliticz: and the imputation of malice could not be in- ferred from any invectives upon superstitions equally false and unknown. We are not to be restrained from animadversion upon offenses against public decency, like those committed by Sir Charles Sedley (Siderfin's Rep., p. 168), or by one Rollo (Sayer's Rep., p. 158), merely because there may be savage tribes, and per- haps semi-barbarous nations, whose sense of shame would not be affected by what we should consider the most audacious outrages upon decorum. It is sufficient that the com- mon law checks upon words and actions dan- gerous to the public welfare apply to our case, and are suited to the condition of this and every other people, whose manners are refined, and whose morals have been elevated and in spired with a more enlarged benevolence by means of the Christian religion. Appendix. 77 " Though the Constitution has discarded re- ligious establishments, it does not forbid judi- cial cognizance of those offenses against relig- ion and morality which have no reference to any such establishment, or to any particular form of government, but are punishable because they strike at the root of moral obligation and weaken the security of the social ties. The object of the 38th Article of the Constitution was to 'guard against spiritual oppression and intolerance,' by declaring ' the free exercise and enjoyment of religious profession arid worship, without discrimination or preference, 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 considera- tion and notice of the law. It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or dis- criminations incident to a religious establish- ment. To construe it as breaking down the 78 Appendix. common law barriers against licentious, wan- ton, and impious attacks upon Christianity it- self, would be an enormous perversion of its meaning. The proviso guards the article from such dangerous latitude of construction, when it declares that ' the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness, or justify practices incon- sistent with the peace and safety of the State.' This preamble and this proviso are a species of commentary upon the meaning of the article, and they sufficiently show that the framers of the Constitution intended only to banish test oaths, disabilities, and the burdens and some- times the oppressions of Church establish- ments; and to secure to the people of this State freedom from coercion, and an equality of right on the subject of religion. This was no doubt the consummation of their wishes. It was all that reasonable minds could require, and it had long been a favorite object on both sides of the Atlantic, with some of the most enlightened friends of the rights of mankind, whose indignation had been roused by infringe- Appendix. 79 ments of the liberty of conscience, and whose zeal was inflamed in the pursuit of its enjoy- ment. That this was the meaning of the Con- stitution is further confirmed by a paragraph in a preceding article, which specially provides that ' such parts of the Common Law as might be construed to establish or maintain any par- ticular denomination of Christians, or their ministers,' were thereby abrogated. "The legislative exposition of the Constitu- tion is conformable to this view of it. Chris- tianity, in its enlarged sense, as a religion re- vealed and taught in the Bible, is not unknown to our law. The statute for preventing immo- rality (Laws of New York, vol. i, p. 224; Re- vised Statutes, p. 675, sect. 69, et seg.) conse- crates the first day of the week as holy time, and considers the violation of it as immoral. This was only the continuation in substance of a law of the Colony, which declared that the profanation of the LORD'S DAY was ' the scan- dal of the Christian Faith.' The act ' concern- ing oaths' (Laws of New York, vol. i, p. 405 ; Revised Statutes, vol. 2, p. 407, sect. 82) rec- 8o Appendix. ognizes the Common Law mode l of adminis- tering an oath, 'by laying the hand on and kissing the Gospels.' Surely, then, we are bound to conclude that wicked and malicious words, writings, and actions, which go to vilify those Gospels, continue, as at Common Law, to be an offense against the public peace and safety." B. PAGE 6 1. A CASE decided in South Carolina, by the Court for the Correction of Errors, was that of a man who was prosecuted, by the city council of Charleston for selling goods on the LORD'S DAY, or " Christian Sabbath." The court in pronouncing, upon appeal, judgment against the prisoner, said : " Crimes are classed into 1 Cf. judgment of the English Court of Chancery (A. D. 1774) in case of Omychund v. Barker, reported in Atkyn's Reports, vol. I, p. 21 ; and in Smith's Leading Cases, with numerous additional adjudications, vol. I, pp. 195-210. G. S. Appendix. 8 1 mala in se and mala prohibita. What gives them that character? . . . The law delivered at Mount Sinai may be by us appealed to as pointing out that which is * evil in itself' Our law declares all contracts contra bonos mores illegal and void. What constitutes the stand- ard of good morals? Is it not Christianity? There certainly is none other. Say that can- not be appealed to, and we do not know what would be good morals. In this State the mar- riage tie is indissoluble. Whence do we take that maxim? It is from the teaching of the New Testament alone. In the court over which we preside we daily acknowledge Chris- tianity as the most solemn part of our adminis- tration. A Christian witness is sworn upon the Holy Evangelists, which testify of OUR SAVIOUR'S birth, life, death, and resurrection. This is so common a matter that it is little thought of as affording any evidence of the part which Christianity has in the Common Law. All blasphemous publications, carrying upon their face that irreverent rejection of GOD and His holy religion which make them dan. 6 82 Appendix. gerous to the community, have always been held to be libels, and punishable at Common Law . . . having no warrant of protection what- ever in our Constitution. We agree fully to what is appropriately said in Updegraff v. The Commonwealth of Pennyslvania (n Sergeant & Rawle's Rep. 394) : * Christianity, general Christianity, is, and always has been, part of the common law : not Christianity founded on any particular religious tenets \ not Christianity with an Established Church, and tithes, and spiritual courts ; but Christianity with liberty of conscience to all men.' We have said all which need be said on this interesting subject. It was not necessary for the decision of the case : it has only been said to prevent silence from being interpreted into a want of confidence in the proposition that Christianity may be justly appealed to as part of our Common Law" i J.ru.0 J3UUJX 10 UU-ti UJN TUJti XiAJX JJAii STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE. THE PENALTY WILL INCREASE TO SO CENTS ON THE FOURTH DAY AND TO $1.OO ON THE SEVENTH DAY OVERS UE a REC'D LD 20 m 250566 o