IN WHAT SENSE IS CHRISTIANITY THE COMMON LAW IN

THIS NATION?

While by the decisions of the supreme courts of New York and Pennsylvania Christianity is declared to be a part of the common law of these commonwealths, I think it must be conceded that the highest legal authorities in this country agree that offences against God and his laws cannot be punished under our laws unless they are also offences against society.

Sunday laws under our constitutional system cannot be sustained because of the religious duty to observe Sunday as a holyday. But the civil Sunday is entrenched in our laws without infringing upon religious liberty.

We will confine our testimony on this phase of our subject to the recently expressed opinions of two eminent living jurists.

Judge Cooley says: "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. 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 improved 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. Some of those precepts, though we may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws."

Judge Andrews says, in reference to the question as to how far and in what sense Christianity can be said to be the common law of the country, that "the claim that Christianity is a part of the common law seems to have originated in the dictum of Sir Matthew Hale, who on the trial of a person indicted for blasphemy said, 'Christianity is parcel of the law of England.' This was qualified by Lord Mansfield in 1767, who said that 'the essential principles of revealed religion are part of the common law.' Blackstone and other text-writers have repeated the declaration of Sir Matthew Hale."

I do not find that, except in the case of blasphemy, the

courts of England ever assumed to punish offences against religion unless they were created and defined by statute. In general, crime consists in the violation of human laws and institutions, and not in the violation of the laws of God except in so far as the divine laws have been incorporated by specific enactment into municipal law. In the state constitutions of the American states is generally, if not uniformly, to be found a provision that the common law of England shall form a part of the law of the state so far as it is applicable to the existing condition and is not repugnant to any provision of the instrument.

Christianity is not a part of the law of this country in such a sense as makes its commands or precepts binding upon the people, except so far only as they have been made a part of the statute or municipal law by adoption and incorporation. We live under laws made by a Christian people. Christianity underlies and has largely influenced the laws of Christian nations, The duties which men owe to each other and to society are proper subjects of civil cognizance, but the duties which they owe to God are of moral obligation only, and are not within the proper domain of civil authority, and any attempt to enforce them by legislation would be repugnant to our constitutional system.

Religious toleration, I cannot doubt, is one of the great steps in the march of human progress and intellectual freedom. We cannot prevent, if we would, speculation upon religious questions. The spirit of inquiry pervades the realm of truth in every department. Moral truths, like the truths of physical science, are eternal and unchangeable; but human conceptions of them in the one case, as in the other, are affected by the infirmities and limitations of the human understanding. The formulas in which men have sought to embody the statement of religious doctrine, while to a great extent they retain the mould in which they were originally cast, have been in many respects insensibly modified in their interpretation. With the widening of our intellectual and moral views many doctrines which were once regarded as fundamental have come to be considered as tentative merely, if they have not wholly lost their original significance. The spirit of Christianity is tolerant of differences of opinion. honestly entertained. But it cannot be said, I think, that religious toleration in its development has been distinctly a Protes

tant principle, though it has come more and more to be recognized as an essential condition of religious growth. Holding fast to what is fundamental, we can well afford to give up or not to insist upon those things which are debatable and upon which sincere men may honestly differ. The discussions of these days suggest to thoughtful men the question whether a broad toleration within a church is not as important to its best interests as toleration between the churches is to religion in general. I am persuaded that no more beneficent change in the interest of religion has been accomplished during the last century than that which has resulted from divorcing the church from state control, leaving religion to fight its own battles with error, unaided by and independently of the civil power. Christianity in the early centuries made its way in spite of and against the law. If, as Christians believe, it is of divine origin, and supplies an infinite human need, it is sure to go on from conquest to conquest until all peoples and nations shall come under and acknowledge its regenerating power.

CONCLUSION.

When the time shall come, when under the inspiration of religious liberty the individual citizens of this republic and the citizens of all lands shall become free men by a saving and experimental knowledge of the truth, and shall become loyal and loving subjects of the Prince of peace, then church and state will be united, not by legal enactments which impose unequal burdens and inflict unjust and discriminating penalties, but by the cohesive power of self-sacrificing Christian love, that is above law because it obeys law. Then the organic law of the state will be the expression of the Christian life of the people, themselves the rulers and the ruled, and debates concerning the province of the state and the province of the church will no longer be heard, because the state will be Christian and Christians will constitute the state.

THE PRESENT CONDITION OF RELIGIOUS

LIBERTY THROUGHOUT THE WORLD.

BY HON. J. L. M. CURRY, LL.D., OF WASHINGTON.

"La religion n'est pas plus nationale que la conscience. On ne peut proclamer une religion nationale, parce que la verité ne se vote pas."

MIRABEAU, 1789.

"L'état laïque pour être fidèle à son caractère essentiel, doit remplir deux conditions; d'une part, il est term de respecter scrupuleusement la liberté des opinions quelles qu'elles soient, pourvu qu'elles ne troublent pas l'ordre public; d'une autre part, il lui est interdit de favoriser aucune forme religieuse aux dépens d'une autre." PRESSENSE, 1874.

OBVIOUSLY a definition or explanation of terms is necessary for clearness of treatment. Religion is the expression in belief or conduct of a conscious relation between man and God. Prof. Schultz says: "Religion is the free devotion to God which arises through the conviction of the inability of the world to satisfy our spiritual, especially our moral, personality."

Freedom is the simple, unrepressed exercise of our powers. without subjection to the will of another. Freedom of religion,. then, would be the human right of worship, or non-worship, without the interference of another, subject only to the limitation that this free exercise is not to interfere with the like liberty of others. Religious freedom is the "free exercise and enjoyment of religion as an inherent, inviolable, and inalienable right of man," and means "full liberty of religious thought, speech, and action, within the limits of the public peace and order." Civil government, as such, has no religious functions. Religious doctrine and worship are outside its sphere of administration. "The state has nothing to do with churches except to protect them in their property and liberty, and the state must be equally just to all forms of belief and unbelief which do not endanger the public safety." Churches, denominations, sects, religionists, should be on a plane of undistinguishable equality before the law. Once,

church and state were universally united. The right of civil government to prescribe, regulate, and support worship was universally practised. Church membership and citizenship were commensurate, on equivalent terms or conditions. The Erastian theory put doctrine, discipline, and worship of a church under the rule of the civil authority. Heresy was made a crime against the state and was punishable as other crimes. Freedom of worship has been slowly conceded. Prior to the adoption of the constitution and the resultant union of the states, religious liberty was almost, if not entirely, unknown outside of Rhode Island. It is easier to get and maintain any other kind of freedom. The battle has been often baffled, but the victory is finally sure. Any contravention of the divine title of each person to the free use of the faculties with which God has endowed him is a violation of his right to liberty. The individual right to worship God is the highest, most valuable, most indefeasible of these faculties. Any civil disability imposed upon sect, denomination, church, or person because of religious opinions, any favoritism or partiality shown to sect, denomination, church, or person, any interference with absolute freedom of worship, any preference, resulting in civil, social, ecclesiastical, or pecuniary advantage, shown by civil authority to one cult over another, any coercion or privilege employed to favor one creed at the expense or to the prejudice of another, is an unscriptural and indefensible interference with religious liberty. We need not use ambiguous and misleading words about tolerance. Government has nothing to do with toleration. An establishment is necessarily, semper et ubique, an interference with, a denial of, soul-liberty. Government has no right to formulate a religious creed, to give the benefit of its sanction, its partnership, its discriminating favor, to any creed. To give one cent of public money, or the slightest civil preference, or legal advantage, to one creed rather than to another, nay, to any creed at all, is radically, scripturally, universally, wrong. If an establishment is defensible or right in Spain or Great Britain, it is right everywhere.

After these definitions and explanations of religious liberty, it is proper to say that the purpose of this essay is not argumentative, but historical. The thesis assigned implies a comparison betwixt the past and the present, and this preliminary statement is to fix upon a standard of comparison. Applying the defini