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utterance sustained by any authority, and that, though frequently repeated by English judges, it never had any legislative authorization. He speaks of it as resting upon the “usurpation of the judges alone, without a particle of legislative will having ever been called on or exercised towards its introduction or confirmation.” He characterized it as "the most remarkable instance of judicial legislation that has ever occurred in English jurisprudence, or perhaps, in any other."
Is Christianity a part of the common law of this country, and, if so, in what sense and to what extent ? There is no pertinency in this question, considered in application to the General Government, since there is no common law of the Union. The Supreme Court of the United States, in the case of Wheaton vs. Peters (8 Peters, p. 591), said: “ There is no principle which pervades the Union and has the authority of law that is not embodied in the Constitution or laws of the Union.
The common law could be made a part of our Federal system only by legislative adoption." So, also, in the case of The State of Pennsylvania vs. The Wheeling Bridge Company (13 Howard, p. 518), the same Court said : “ The Federal courts have no jurisdiction of common law offenses, and there is no abstract pervading principle of the common law under which we can take jurisdiction.” It, hence, follows that the question proposed has no reference to the United States. The law of the Union is contained in the
Constitution, and in the statutes of Congress enacted in pursuance thereof.
If, then, Christianity be a part of our common law, it must be so exclusively in relation to the State governments. How far and in what sense is this a fact, if it be a fact at all ? In answer to this question, we submit the following exhibit of authorities referring to it:
Mr. Sedgwick, in his treatise on the “Construction of Statutory and Constitutional Law” (p. 14), says :
“ It is often said that Christianity is part and parcel of the common law. But this is true only in a modified sense.
Blasphemy is an indictable offense at common law; but no person is liable to be punished by the civil power who refuses to embrace the doctrines or follow the precepts of Christianity. Our constitutions extend the same protection to every form of religion and give no preference to any."
Judge Cooley, in his “Constitutional Limitations” (p. 472), observes :
“ It is frequently said that Christianity is a part of the law of the land. In a certain sense and for certain purposes this is true. . But the law does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin. Some of these precepts are universally recognized as being incapable of enforcement by human laws, notwithstanding they are of continual and universal obligation. Christianity, therefore, is not a part of the law of the land, in the sense that would entitle courts to take notice of and base their judgments upon it, except so far as they should find that its precepts had been incorporated in and thus become a component part of the law.”
In the same treatise Judge Cooley remarks: “It is not toleration which is established in our system; but religious equality.” The doctrine of this eminent jurist is that the principles of Christianity are not ipso facto, in virtue of their divine origin or sanction, any part of the law of the land, and not so at all, except as they may have been legally incorporated therein ; and that they cannot be thus incorporated in any sense that would be inconsistent with the fundamental principle of “religious equality."
Mr. Francis Wharton, in his work on “American Criminal Law” (vol. 3, p. 188), refers to cases in which the courts have spoken of Christianity as part of the common law, and then adds the following comment :
“ But when these cases are analyzed it will be found that, though in most of them the courts throw out the declaration that Christianity is part of the common law, yet they all of them rest on grounds independent of this general position ; for it is a common nuisance, and punishable as such by indictment at common law, to disturb the religious worship of others or flagrantly or indecently insult their religious belief, no matter what be their creed. Thus it would be held indictable to wantonly dis
turb a congregation of Mormons or Jews, or even of Mohammedans, when peaceably engaged in their religious rites.
Infidel and skeptical opinions are only indictable when publicly and grossly expressed in such a way as to become a common nuisance, or to provoke a breach of the peace. We may, therefore, conclude that, while the spiritual element of Christianity is protected by the common law, the former does not so enter into the latter as to place matters of religious faith within the jurisdiction of the civil authority, either for vindication or enforcement."
Justice Story, in delivering the opinion of the Supreme Court of the United States in the case of Vidal vs. Girard's Executors (2 Howard, p. 127), referred to Christianity as being " a part of the common law of Pennsylvania," and then immediately added : “But this proposition is to be received with its appropriate qualifications and in connection with the bill of rights found in its constitution of
government.” After quoting the section of the constitution relating to the rights of conscience, he proceed
ed to say:
Language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used ; and it must have been intended to extend equally to all sects, whether they believed in Christianity or not and whether they were Jews or infidels. So that we are compelled to admit that, although Christianity be a part of the
common law of the State, yet it is so in this qualified sense, that its divine origin and truth are admitted, and, therefore, it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public. Such was the doctrine of the Supreme Court of Pennsylvania in Updegraph vs. The Commonwealth."
In the case here referred to by Justice Story, and found in 11 Sergeant and Rawle's Reports, p. 394, the Supreme Court of Pennsylvania held the following language:
“Christianity, general Christianity, is and always has been a part of the common law of Pennsylvania; ... but with liberty of conscience. No preference is given by law to any particular religious profession. Protection is given to all by our laws. . . . It is only the malicious reviler of Christianity that is punished.
It is open, public vilification of the religion of the country that is punished,
to preserve the peace of the country by an outward respect to the religion of the country.
If, from a regard to the decency and good order of society, profane swearing, breach of the Sabbath, and blasphemy are punishable by civil magistrates, these are not punished as sins or offenses against God, but crimes injurious to an l having a malignant influence on society.”
Chief Justice Kent, in delivering the opinion of the Supreme Court of the State of New York in