the United States that such offences are forbidden; they are punishable likewise under the common law, which has force in those states as well as in England. Of this admirable part of the civil economy, Christianity is not merely an inherent, it is a constituent part. This, though denied by Mr. Jefferson, Dr. Cooper, and others, has been so decided by many of the ablest judges in the land. For it has been held, that while the abolition of religious establishments in the United States necessarily abolishes that part of the common law which attaches to them in England, it does nothing more, and thus many offences still remain obnoxious to it, on the ground of their being contrary to the Christian religion. A person was indicted at New-York, in 1811, for aspersing the character of Jesus Christ, and denying the legitimacy of his birth. He was tried, condemned, fined, and imprisoned. On that trial, Chief-justice Kent, still living, and believed to be second to none in the country in point of legal knowledge, expressed himself as follows: Union are as one. But we must not be understood as meaning thereby, that irreligion and licentiousness are also guarantied by the organic laws, or by any laws whatever. This would be absurd. Rights of conscience are religious rights, that is, rights to entertain and utter religious opinions, and to enjoy public religious worship. Now this expression, even in its widest acceptation, cannot include irreligion; opinions contrary to the nature of religion, subversive of the reverence, love, and service due to God, of virtue, morality, and good manners. What rights of conscience can atheism, irreligion, or licentiousness pretend to? It may not be prudent to disturb them in their private haunts and secret retirements. There let them remain and hold their peace. But they have no right, by any law in the United States that I am aware of, to come to propagate opinions and proselytize. Such attempts, on the contrary, are everywhere opposed by the laws, and if, at times, these laws are evaded, or their enforcement intentionally intermitted, this does not proceed from any question of their being just, but from a "The people of this state, in common conviction that, in some circumstances, it with the people of this country, profess the is the less of two evils not to enforce them. general doctrines of Christianity as the It is sometimes the best way to silence a rule of their faith and practice; and to noisy, brainless lecturer on atheism, to let scandalize the Author of these doctrines him alone, and the immoral conduct of is not only, in a religious point of view, exsome preachers of unrighteousness is the tremely impious, but, even in respect to best refutation of their impious doctrines. the obligations due to society, is a gross At times, however, another course must violation of decency and good order. Nobe pursued. The publication of licentious thing could be more offensive to the virtubooks and pictures, profane swearing, blas-ous part of the community, or more injuphemy, obscenity, the interruption of pub-rious to the tender morals of the young, lic worship, and such like offences, are than to declare such profanity lawful. It punishable by the laws of every state in the American Union. Now, whence had these laws their origin, or where do we find their sanction? Take the laws against profane swearing. Where did men learn that that is an offence against which the laws should level its denunciations? Surely from the Bible, and nowhere else. would go to confound all distinction between things sacred and profane." "No government," he maintained, " among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals as to permit Not more than one state, if even one, is with impunity, and under the sanction of supposed to have no laws for the due ob- their tribunals, the general religion of the servance of the Sabbath. But whence community to be openly insulted and decame such regulations? From the light famed." "True," he adds, "the Constituof Nature? From the conclusions of hu- tion has discarded religious establishments. man wisdom? Has philosophy ever dis- It does not forbid judicial cognizance of -covered that one day in seven should be those offences against religion and moralconsecrated to God? I am aware that expe- ity which have no reference to any such rience, and a right knowledge of the animal establishment, or to any particular form of economy, show that the law setting apart government, but are punishable because one day in seven is good, favourable to hu- they strike at the root of moral obligation, man happiness, and merciful to the beasts and weaken the security of the social ties. of burden. But the Sabbath is of God; and To construe it as breaking down the computting aside some dim traditions and cus-mon law barriers against licentious, wantoms among nations near the spot where ton, and impious attacks upon Christianithe Divine command respecting it was first ty itself, would be an enormous perversion given to Moses, or of the people in whose of its meaning."* code it afterward held a permanent place, we find it only in the Bible. But it is not only by the statute law of These just opinions were fully sustain * Johnson's "Reports," p. 290. ed by the decision pronounced in Penn-not, as we have shown, from any want of sylvania, at the trial of a man indicted for power in the states to create such an esblasphemy, not against God directly, but tablishment, but because it has been found against the Bible; the design charged upon inexpedient to attempt promoting religion him being that of "contriving and intend-in that way. Experience has shown that ing to scandalize and bring into disrepute with us all such establishments have been, and vilify the Christian religion and the upon the whole, more injurious than beneScriptures of truth." On that occasion, ficial. They have been renounced because, the late Judge Duncan said, that "even if from the nature of the case, they could Christianity were not a part of the law of never be made to operate in such a way the land, it is the popular religion of the as not to do some injustice to one portion country; an insult to which would be in-or other of the citizens. dictable, as tending to disturb the public peace;" and added, “ that no society can tolerate a wilful and despiteful attempt to subvert its religion.”* To this general conviction we must ascribe what appears at first sight to be an anomaly; the power to aid religion by legal enactment expressly conferred in the The application of the common law, by Constitutions of some of the states,* and the courts of Pennsylvania, to the protec- yet that power suffered to lie dormant, nor tion of clergymen living in the discharge is there the least prospect of its ever being of their official duties, confirms all that has exercised again. But although the states been said respecting the light in which have thought it best for the interests of reChristianity is regarded by the state gov-ligion itself, as well as most equitable to all classes of the inhabitants, to relinquish ernments. is called an establishment, yet they have deemed it neither unwise nor unjust to pursue the same end indirectly. Several instances of this kind have been stated already; we may notice a few more. Farther, every state has laws for the all attempts to promote religion by what protection of all religious meetings from disturbance, and these are enforced when occasion requires. Indeed, I am not aware of any offence that is more promptly punished by the police than interfering with religious worship, whether held in a church, in a private house, or even in the forest. All the states have laws for the regulation of church property, and of that devoted to religious uses. In some states, every religious body, immediately on being organized, is pronounced de facto incorporated; and in none, generally, is there any difficulty in procuring an act of incorporation, either for churches or benevolent societies. The states do much to promote education in all its stages, though in doing so they often assist the cause of religion, in what might be considered nearly the most direct manner possible. For instance, they aid colleges directed by religious men, and that, too, without stipulating for the slightest control over these institutions. On this we shall yet have occasion to speak more at large, and we introduce it here merely to indicate what the states are thus doing No state allows the oath of an atheist to for Christianity in the way of concurrence be received in a court of justice, and in one with other bodies. Some states have givonly, in so far as I am aware, is that of a en considerable sums to endow colleges at disbeliever in a future state of rewards and the outset. Others contribute annually to punishments received as evidence. That their support, and this while well aware state is New-York, where the law requires that the colleges aided by such grants are simply the belief in a state of rewards under a decided religious influence. So is and punishments; in other words, if a man it also with the academies, of which there believes that there is a God who punishes are several even in the smallest states, and men for evil actions, and rewards them many in the largest. Young men are infor their good ones, whether in this world structed in the classics and mathematics or in that which is to come, his oath will be at these, preparatory to being sent to colreceived in a court of justice. Of course, lege, and as many of them are conducted the man who believes neither in the exist- by ministers of the Gospel and other relience of God, nor in any sort of divine pun- gious men, they are nurseries of vast imishment, cannot be sworn, nor his testimo-portance both for the Church and the State. ny be allowed, in a court in that state. CHAPTER X. THE LEGISLATION OF THE STATES OFTEN If there be no Established Church in any of the states at the present time, it is * 11 Sergeant and Rawle's Reports, p. 394. Again, by promoting primary schools,. the states co-operate in promoting religion; for mere intellectual knowlege, although not religion, greatly facilitates its diffusion by means of books. In the six New-England States, it is long since provision was first made by law for the good education of every child whose parents choose to avail themselves of it; and, ac * Maryland, New-Hampshire, and South Carolina. cordingly, hardly is there an adult native | religious services. The civil power deof those states to be found who cannot eides within what degrees of consanguinread. Some uneducated persons there are, ity and affinity it may take place. On this especially in Maine, New-Hampshire, and point, and this mainly, can any collision Rhode Island, but they are few compared take place between the ecclesiastical and with what may be found in other lands. civil authorities. For instance, the GenIn all the six states, except Connecticut, eral Assembly of the Presbyterian Church each "town" is required to assess itself for has lately decided, or, rather, repeated a deas many schools as it may need. Connec- cision given indirectly some years ago, ticut has a school fund of above 2,000,000 that a man may not marry his deceased dollars, yielding an annual revenue of above wife's sister, and pronounced all such mar112,000 dollars, and this maintains schools, riages to be contrary to the Scriptures, and a part of the year at least, in every school incestuous. Such marriages, on the other district of the state. In New-York, Penn-hand, are expressly allowed by the laws sylvania, and Ohio, there are efficient pri- of Connecticut, and are not forbidden by mary school systems in operation, sup- those of any other state excepting Virginported by law, and capable of supplying all ia. In all cases of this kind, a man must the youth with education. The state sup- make his election as to which he will obey port consists partly of the interest of per--the Church or the State. As condemmanent state funds set apart for the pur- nation by the former subjects a man to pose, partly of money raised in each of the no civil penalties, all that he can suffer is townships by assessment. The systems excommunication. pursued in New-Jersey and Delaware, though less efficient, are highly useful. Efforts are making in several of the Western States to introduce a like provision, and a good deal is done in the Southern States to educate the children of the poor, by means of funds set apart for that purpose. The instruction given in the primary schools of the United States depends for its character upon the teachers. Where these are pious, they find no difficulty in giving a great deal of religious instruction; where they are not so, but little instruction is given that can be called religious. The Bible is read in most of the schools. Several of the states have liberally contributed to the establishment of asylums for the deaf and dumb, and for the blind, almost all of which institutions are under a decidedly religious influence. The governments of several states containing large cities, have done much in aid of the efforts of philanthropic individuals and associations for establishing Retreats or Houses of Refuge, where young offenders who have not gone hopelessly astray may be placed for reformation. These institutions have been greatly blessed. As for divorces, they are wholly regulated by the civil government, and fall within the jurisdiction of the States. In some they are allowed for very few causes; much more looseness of practice prevails in others. In South Carolina, I understand that no divorce has been granted since it became a state. In some states. it belongs to the legislatures to grant divorces, and in others to the courts of law. What are called mixed marriages, or marriages between Protestants and Roman Catholics, which have given rise to so much trouble of late in some countries of Europe, occasion no difficulty with us. Marriage, by our laws, being a civil contract, is held valid at common law whenever the consent of the parties, supposing there is no legal impediment, is expressed in a way that admits of proof. The refusal of a priest to grant the nuptial benediction, or the sacrament of marriage, except upon conditions to which the parties might not be willing to agree, would be of little consequence. They have only to go to the civil magistrate, and they will be married without the slightest difficulty. No Roman Catholic priest, or Protestant minister in the United States, would dare to refuse to perform the ceremony of marriage, unless for most justifiable reasons; for if he did, he would soon hear of it through the press, which is with us an instrument for correcting any little instances of tyranny or injustice with which any man, no matter who, may think fit to annoy persons placed in any sense under his authority. Before concluding my remarks on the indirect bearing of the State legislation in America upon religion, I have a few words to say on one or two subjects connected with religion, but different from those already mentioned. One is marriage, which, with us, is in a great degree a civil institution, regulated by the laws of each state, prescribing how it should be performed. In so far as it is a contract between the parties, under proper circumstances of age, consent of friends, sufficient number of witnesses, &c., it has, with us, no necessary connexion with religion. In all of IN WHAT CASES THE ACTION OF THE CIVIL AU the states it may take place, if the parties choose, before a regularly ordained minister of the Gospel, and be accompanied with CHAPTER XI. THORITY MAY BE DIRECTED IN REFERENCE BESIDES the incidental bearing which the of the Sabbath, the securing of Church property, and the undisturbed tranquillity of public worship by every variety of Christian sects. The law makes no distinction among these sects, and gives to no one the predominance over the others. It protects all equally, and gives no political privileges to the adherent of one over those of another sect. "The laws of the several states author Jegislation of the individual states has upon religion, and which sometimes comes not a little to its help, there are cases in which the civil authority intervenes more directly, not in settling points of doctrine, but in determining questions of property; and these are by no means of rare occur rence where there are conflicting claims in individual churches. This, indeed, has happened twice at least, in reference to property held by large religious denomina-ize the acquisition and holding of church tions. The first of these cases occurred in New-Jersey, and on that occasion the courts decided upon the claims to certain property, urged by the Orthodox and the Hicksites, two bodies into which the So-regulations for that purpose. Without gociety of Friends, or Quakers, has been divided throughout the United States. And although the trial took place on a local cause, or, rather, for a local claim, yet the principle upon which it was decided affected all the property held by Quaker societies in the state. property, under certain limitations as to value, either by making a special corporation for that purpose, or through the agency of trustees empowered under general ing into detail on this subject, it is enough to say that they proceed upon the principle of allowing the church to hold a sufficient amount of real and personal property to enable it to perform its appropriate functions, and, at the same time, to guard against abuse, by allowing too great an amount of The second case occurred recently in wealth to be perpetually locked up in mortPennsylvania, where the Supreme Court main by grants and testamentary disposihad to decide upon the claims of the Old tions ad pios usus. In some of the states and New School, to certain property be- of the Union, the English statute of mortlonging to the General Assembly of the main has been introduced, by which reliPresbyterian Church, on its being divided gious corporations are disabled from acinto two separate bodies, each of which quiring real property unless by special assumed the name of the Presbyterian license of the government. In others, the Church. Here the court had of necessity capacity to acquire it is regulated and limto decide which of the two ought by law ited by the special acts of legislation into be considered the true representative corporating religious societies. The ecand successor of the Presbyterian Church clesiastical corporations existing before before its division. The decision, how-the Revolution, which separated the United ever, did not rest on doctrinal grounds, but States from the parent country, continue wholly on the acts of the bodies them-to enjoy the rights and property which selves, the court refusing to take up the question of doctrines at all, as not being within their province. Not so in the case of the Quakers just referred to. There the court considered the question of doctrine, in order to determine which body was the true Society of Friends. they had previously held under acts of Parliament, or of the provincial Legislatures. Blasphemy is punished as a criminal offence by the laws of the several states. “Perjury is, in like manner, punished as a crime; the form of administering the oath being accommodated to the conscientious views of different religious sects. The Quakers are allowed to affirm solemnly; the Jews swear upon the scriptures of the Old Testament only; and certain Christian sects with the uplifted hand. I apprehend that I have now said enough to place the nature of the mutual relations between Church and State in America fairly before the reader, and will dismiss the subject by giving some extracts from a communication which the Hon. Henry “There has been much discussion among Wheaton, ambassador from the United our jurists as to how the oaths of infidels States to the Court of Berlin, has had the ought to be considered in courts of justice. goodness to address to me, and which pre- But, so far as I recollect, the general resents, in some respects, a resumé, or sum-sult is to reject the oath of such persons mary of what may be said on this subject: In answer to your first query, I should say that the State does not view the Christian Church as a rival or an enemy, but rather as an assistant or co-worker in the. religious and moral instruction of the people, which is one of the most important duties of civil government. only as deny the being of God, or a future state of rewards and punishments, without absolutely requiring a belief in revealed religion. The laws regulating marriage with us are founded on the precepts of Christianity; hence polygamy is absolutely forbidden, and punished as a crime under the denomination of bigamy. Marriages between relations by blood in the ascending or de"There are ample laws in all the states scending lines, and between collaterals in of the American Union for the observance i the first degree, are absolutely forbidden in “It is not true that the Church is treated as a stranger by the state. all the states; and in some, all marriages | overthrow and its consequences; and, finalwithin the Levitical degrees are also forbidden. ly, the relations which have subsisted between the churches and the civil govern"The common law of England, which ments since the Revolution. We are now requires consent merely, without any par- about to enter upon the consideration of ticular form of solemnization, to render a the resources which the churches have marriage legally valid, is adopted in those developed since they have been compelled states of the American Union which have to look, in dependance upon God's blessnot enacted special legislative statutes on ing, to their own exertions, instead of relythe subject. In some of the states mar-ing on the arm of the state. riage is required to be solemnized in the presence of a clergyman or magistrate. "All our distinguished men, so far as I know, are Christians of one denomination or other. A great reaction has taken place within the last thirty years against the torrent of infidelity let in by the superficial philosophy of the eighteenth century. "I believe the separation of Church and State is, with us, considered almost, if not universally, as a blessing." A review of the ground which we have gone over may be given almost in the very words of an able author, to whom we have been repeatedly indebted. 1. "The first settlers of the United States went to it as Christians, and with strong intent to occupy the country in that char acter. 2. "The lives they lived there, and the institutions they set up, were signalized by the spirit and doctrine of the religion they professed. With these extracts, which give the views of one of the most distinguished 3. The same doctrine and spirit, destatesmen and diplomatists of America, scending upon the patriots of the federal and which confirm the positions we have era, entered largely into the primary State advanced on all the points to which they | Constitutions of the Republic, and, if analrefer, we close our remarks on the exist-ogy can be trusted, into the constructive ing relations between the Church and State meaning of the Federal Charter itself. in that country. CHAPTER XII. 4. "Christianity is still the popular religion of the country. 5. "And, finally, notwithstanding some untoward acts of individual rulers, it is to this day, though without establishments, and with equal liberty to men's conscien REVIEW OF THE GROUND WHICH WE HAVE ces, the religion of the laws and of the E GONE OVER. We have now arrived at the close of the Third Book of this work. government. If records tell the truth-if annals and documents can outweigh the flippant rhetoric of licentious debate, our public institutions carry still the stamp of We have traced the religious character their origin: the memory of better times of the early colonists who settled in Amer-is come down to us in solid remains; the ica; the religious establishments which monuments of the fathers are yet standing; they planted; the happy and the unhappy and, blessed be God, the national edifice influences of those establishments; their continues visibly to rest upon them."* BOOK I V. THE VOLUNTARY PRINCIPLE IN AMERICA; ITS ACTION AND CHAPTER I. THE VOLUNTARY PRINCIPLE THE GREAT AL- OF ITS MISSION. THE reader has remarked the progress of Religious Liberty in the United States from the first colonization of the country until the present time, and traced the effects of its successive developments in modifying the relations between the churches and the state. He has seen that when that country began to be settled by European emigrants, I in the beginning of the seventeenth century, freedom of conscience and the rights of the immortal mind were but little understood in the Old World. Those even who fled to the New, to enjoy this greatest of all earthly blessings, had but an imperfect apprehension of the subject and its bearings. That which they so highly prized for themselves, and for the attainment of which they had made such sacrifices, they were unwilling to accord to others. Not that men were not allowed, in ev* "An Inquiry into the Moral and Religious Character of the American Government,” p. 139, 140. |