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“The act [the Sabbath law] does not to any extent rest upon the ground that it is immoral or irreligious to labor on the Sabbath any more than upon any other day. It simply prescribes a day of rest, from motives of public policy and as a civil regulation.
The day of rest prescribed by the statute is the Christian Sabbath ; yet so entirely does the act rest upon grounds of public policy that
it would be equally constitutional and obligatory did it name any other day, and it derives none of its force from the fact that the day of rest is Sunday.”
In the case of The Board of Education of Cincinnati vs. Minor and others (23 Ohio State Reports, pp. 246, 247), the same Court said :
“We are told that this word religion' must mean ‘Christian religion,' because · Christianity is a part of the common law of this country,' lying behind and above its constitutions. Those who make this assertion can hardly be serious and intend the real import of their language. If Christianity is a law of the State, like every law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The only foundation (rather, the only excuse) for the proposition that Christianity is a part of the law of this country, is the fact that it is a Christian country and that its
constitutions and laws are made by a Christian people.”
The Superior Court of New York City, in the case of Andrew vs. The New York Bible and Prayer-Book Society (4 Sandford's Superior Court Reports, pp. 180-184), said:
“The maxim that Christianity is part and parcel of the common law has been frequently repeated by judges and text writers, but few have chosen to examine its truth and attempt to explain its meaning
If Christianity is a municipal law in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil power who refuses to embrace its doctrines and follow its precepts; and if it must be conceded that in this sense the maxim is untrue it ceases to be intelligible, since a law without a sanction is an absurdity in logic and a nullity in fact."
It will readily be seen in the light of these authorities, that those who affirm Christianity to be a part of the common law do not use the term law in its usual sense. They so modify the import of the term as virtually to deny what in strictness of language they affirm. The maxim does not mean that Christianity in this country is an established religion; or that its precepts, by the force of their own authority, form any part of our system of municipal law ; or that courts are entitled to base their judgments upon the Bible ; or that any religious observances or duties are to be penally enforced; or that any legal discrimination in favor of Christianity is allowable. All such constructions are excluded by our State constitutions. Laws against blasphemy and labor on the Christian Sabbath are not based upon the theory that Christianity possesses any civil authority, or upon the fact that these acts are offenses against God. Mr. Pomeroy, in his “Introduction to Municipal Law" (p. 392), says that such laws “stand on exactly the same footing as those forbidding disorderly houses, public intemperance, and all other acts which disturb the peace."
Should a person attempt to walk the streets of a city in the state of absolute nudity, the indecency and offensiveness of the act to others and its tendency to disturb the public peace would make the act a crime against society. So blasphemy is punishable as a crime because it is indecent and offensive to man, or, as Mr. Wharton
says, a nuisance," or, as Justice Story said, an "annoyance to others and an “injury” to the public ; and, hence, punishment, whether under statute or common law, is not designed to enforce the requirements of Christianity, but rather to protect the people and preserve good social order. The law pays this respect to the religious sensibilities of believers and the demands of public propriety; and, as Justice Clayton says, it would do the same thing if Mohammedanism or Judaism were the
prevalent religion of the land. It does not establish or give any authority to the religion which it thus protects against wanton and malicious insult. It does not make the religion in any proper sense a part of the law, since it neither compels its acceptance nor forbids its rejection.
The maxim, then, which we have been considering is certainly a very unfortunate choice of words. Its apparent meaning has to be almost entirely explained away. Being necessarily subjected to so large a depletion, in order not to be utterly false, it might well, at least in this country, pass into disuse among writers and judges. At the most there is but a fragment of truth in it, and that truth is not aptly expressed. Much more accurate would it be to say that the common law takes notice of Christianity as an existing fact founded on the choice of the people, and seeks to protect them in its enjoyment against such blasphemous aspersions as violate the sense of decency and endanger the peace of society. This is the sense in which Justice Clayton explains and affirms the maxim, and this is really all the import which Chief Justice Kent attached to it. Neither of these learned jurists declares what the Supreme Court of Ohio so emphatically denies. The subject-matter of the affirmation, on the one hand, and of the denial, on the other, is not the same; and this clearly shows that the words of the maxim are not fitly chosen.
Christianity, as a legalized system, is unknown to our laws. As a protected system it stands on the common footing of all other religious systems. Judge Appleton, of the Supreme Court of Maine, in the case of Donahoe vs. Richards (38 Maine Reports, p. 379), said in regard to the constitution of that State that it “ does not recognize the superiority of any form of religion or of any sect or denomination," and that it "regards the Pagan and the Mormon, the Brahmin and the Jew, the Swedenborgian and the Buddhist, the Catholic and the Quaker as possessing equal rights." What is thus affirmed of Maine is simply a fundamental principle pervading our American constitutions.
THE NATIONAL CONSTITUTION.
The Constitution of the United States declares itself to be “the supreme law of the land.” By “ land," as here used, is meant not only the territory embraced within the limits of the several States, but also any territory belonging to the United States and not organized into States. Over this entire domain and the people resident therein the Constitution asserts its jurisdictional supremacy in respect to all the objects and purposes set forth in the instrument itself.
The same Constitution also declares the source