would have deprived a defendant of the right of trial by a jury of twelve men; that the amendment "was no doubt designed to invest the legislature with authority to confer upon courts of special sessions full and exclusive jurisdiction in this class of cases, which it was held not to possess under the decisions of the courts; and it must be regarded as a modification and a restriction of the limitation of power which was held to exist by virtue of § 2 of article I in respect to offenses of the character specified," and that the act of 1879, chap. 390, conferring exclusive jurisdiction on courts of special sessions in cases of petit larceny charged as a first offense was valid.

The jurisdiction of the recorder's court of Poughkeepsie was considered in People v. Iverson (1899) 46 App. Div. 301, 61 N. Y. Supp. 220, where it was held that a defendant charged with being a disorderly person under the charter could not constitutionally claim the right of trial by jury. People ex rel. Eckler v. Clark (1881) 23 Hun, 374, where it was held that the act of 1834, chap. 78, which authorized a person accused of disturbing a religious meeting to demand a trial by a jury of six, did not violate this constitutional provision.

Summary proceedings.-The jury provision does not apply to summary proceedings for the recovery of real property, and the statute authorizing a jury of six in such cases is constitutional. Roberts v. Cone (1870) 3 Alb. L. J. 151.

Sunday law. A person accused of Sabbath breaking is entitled to a jury trial. Re Erbe (1894) 13 Misc. 404, 35 N. Y. Supp. 102. Venue. A defendant in a civil action has no constitutional right to a trial by jury in a county where the cause of action accrued. People v. Rouse (1891) 39 N. Y. S. R. 656, 15 N. Y. Supp. 414.

Village ordinance.-A person charged with violating a village ordinance prohibiting obstructions in streets is not entitled to a trial by jury. People v. Van Houten (1895) 13 Misc. 603, 35 N. Y. Supp. 186.

Waiver.-A defendant who pleads guilty to a charge within the jurisdiction of the court cannot afterwards be heard to assert that the statute under which he is convicted is unconstitutional for the reason that it deprives him of the right to a trial by jury. Plato v. People (1857) 3 Park. Crim. Rep. 586.

The right of trial by jury may be deemed waived by the conduct or silence of the parties. Baird v. New York (1878) 74 N. Y. 382; Greason v. Keteltas (1858) 17 N. Y. 491; Barlow v. Scott (1861) 24 N. Y. 40; West Point Iron Co. v. Reymert (1871) 45 N. Y. 703;

People ex rel. Yale v. Eckler (1880) 19 Hun, 609; Mackellar v. Rogers (1888) 109 N. Y. 468, 17 N. E. 350.

83. [Religious. toleration]-The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

[Const. 1777, art. 38; 1821, art. 7, § 3; 1846, art. 1, § 3.]

The origin of this section will be found in the chapter on the first Constitution, in the first volume of this work, where, in notes to the original draft, the opinions and purposes of prominent delegates on the subject of religious toleration are disclosed by the amendments offered by them in framing the section. The reader will also find in the index other references to the subject of religious opinions, forms of worship, test oaths, and other aspects of the development of religious liberty during the colonial period. These citations show varying but gradually expanding ideas concerning religious toleration, culminating in the broad and comprehensive view expressed in the first Constitution. The object sought to be attained by the constitutional declaration is evinced by the preamble to the section in the first Constitution, which states that "we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind." The framers of the first Constitution, not content with the mere declara

tion of the principle of religious toleration, sought to guard it from infringement by the additional provision contained in 8 35, that the continuance of the English common and statute law thereby declared should not include any statutes or parts of the common law "as may be construed to establish or maintain any particular denomination of Christians or their ministers." But even these provisions, intended to accomplish the separation of church and state, and insure absolute freedom from ecclesiastical influence, did not satisfy the founders of our government, for, by another section, which might be deemed a corollary to the other provisions, they excluded ministers of the Gospel and priests of every denomination from the right to hold office; stating, as a reason, that these persons, being dedicated "to the service of God and the cure of souls, ought not to be diverted from the great duties of their function;" and this exclusion was not abrogated until 1846. The section securing religious liberty, omitting the preamble, was continued in the Constitution of 1821, and also in the Constitution of 1846, with a clause added in the latter Constitution, relating to the competency of witnesses. The section was not changed by the Constitution of 1894.

The courts have had little occasion to consider this section, for its meaning is so plain and comprehensive, and public approval of its object is so general, that it needs little judicial attention. The constitutional provision relating to religious toleration was considered by Chief Justice (afterwards Chancellor) Kent in People v. Ruggles (1811) 8 Johns. 290, 5 Am. Dec. 335, where blasphemy was declared to be an offense punishable at common law, and a conviction of the defendant on a charge of contumelious reproach and profane ridicule of Christ was sustained. In the course of his opinion the Chief Justice, after quoting from the English case of Rex v. Woolston,

We

2 Strange, 834, Fitzg. 64, the statement that "whatever strikes at the root of Christianity tends manifestly to the dissolution of civil government," says that "such offenses have always been considered independent of any religious establishment or the rights of the church. stand equally in need now, as formerly, of all the 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 doctrines of Christianity as the rule of their faith and practice." Offenses like that charged in this case do not relate to any religious establishment or to any form of government, but are punishable "because they strike at the root of moral obligation, and weaken the security of the social ties." "The noble and magnanimous" constitutional declaration was not intended to withdraw "religion in general, and with it the best sanctions of moral and social obligation, from all consideration and notice. of the law. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, are granted and secured; but to revile with malicious and blasphemous contempt the religion professed by almost the whole community is an abuse of that right."

Ten years afterwards, in the Convention of 1821, the subject of religious liberty was again fully considered, and the following section was once adopted: "The legislature shall not pass any laws by which any person shall be compelled to attend upon, or support, any place of public worship; or to maintain any ministry against his consent; or which shall, in any manner restrain the free exercise of religious profession and worship." Erastus Root proposed the following additional provision: "The judiciary shall not declare any particular religion to be the law of the land, nor exclude any witness on account of

his religious faith." Mr. Root denied that, under the Constitution, courts had power to declare blasphemy to be an indictable offense. He said it had been determined that Christianity was the law of the land, and that it had been borrowed from the common law of England. Chancellor Kent, who wrote the opinion in the Ruggles Case, replied to Mr. Root, saying that he had not stated that decision correctly. "The court had never declared or adjudged that Christianity was a religion established by law. They had only decided that to revile the author of Christianity in a blasphemous manner, and with a malicious intent, was an offense against public morals, and indictable. The authors of our Constitution never meant to extirpate Christianity more than they meant to extirpate public decency. They meant to preserve, so far as it came within their cognizance, the morals of the country, which rested on Christianity as the foundation. The common law, as applied to correct such profanity, is the application of common reason and natural justice to the security of the peace and good order of society." Daniel D. Tompkins also opposed the Root amendment. The next day Mr. Root submitted his amendment in the following form: "It shall not be declared or adjudged that any particular religion is the law of the land;" and this was adopted by a vote of 62 to 26. Chancellor Kent voted for it, saying it could do no harm and might be a security. Mr. Root also offered an amendment that "no witness shall be questioned as to his religious faith." Colonel Young said that if this was intended to admit witnesses who did not believe in a Supreme Being, he was opposed to it. "The testimony of the atheist and infidel ought not to be placed. upon an equality with others, as he could feel no responsibility." Chancellor Kent also opposed the amendment, saying that the oath of such a person, taken on a book in