Imagens das páginas

3. Compulsory attendance upon religious worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizen or to society; but those which spring from the relations between himself and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws are obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies, which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship.

4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is. to place itself * between the finite being and the Infinite [* 470] when the former is seeking to render the homage that is

due, and in a mode which commends itself to his conscience and judgment as being suitable for him to render and acceptable to its object.

5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation.

These are the prohibitions which in some form of words are to be found in the American constitutions, and which secure free

[merged small][ocr errors][merged small]

dom of conscience and of religious worship.

No man in relig

ious matters is to be subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.2


1 This whole subject was considered very largely in the case of Minor v. The Board of Education. in the Superior Court of Cincinnati, involving the right of the school board of that city to exclude the reading of the Bible from the public schools. The case was reported and published by Robert Clarke and Co., Cincinnati, under the title, "The Bible in the Public Schools," 1870. The point of the case may be briefly stated. The constitution of the State, after various provisions for the protection of religious liberty, contained this clause: Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction." There being no legislation on the subject, except such as conferred large discretionary power on the Board of Education in the management of schools, that body passed a resolution, "that religious instruction and the reading of religious books, including the Holy Bible, are prohibited in the Common Schools of Cincinnati; it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the Common School fund.” Certain tax-payers and citizens of said city, on the pretence that this action was against public policy and morality, and in violation of the spirit and intent of

the provision in the constitution which has been quoted, filed their complaint in the Superior Court, praying that the board be enjoined from enforcing said resolution. The Superior Court (Judge Taft dissenting) made an order granting the prayer of the complaint: but the Supreme Court, on appeal, reversed it, holding that the provision in the constitution requiring the passage of suitable laws to encourage morality and religion was one addressed solely to the judgment and discretion of the legislative department; and that, in the absence of any legislation on the subject, the Board of Education could not be compelled to permit the reading of the Bible in the schools. Board of Education v. Minor, 23 Ohio, N. 8. 211. On the other hand, it has been decided that the school authorities, in their discretion, may compel the reading of the Bible in schools by pupils, even though it be against the objection and protest of their parents. Donahoe v. Richards, 38 Me. 376; Spiller v. Woburn, 12 Allen, 127.

2 Congress is forbidden, by the first amendment to the Constitution of the United States, from making any law respecting an establishment of religion, or prohibiting the free exercise thereof. Mr. Story says of this provision: "It was under a solemn consciousness of the dangers from

ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the sub

But while thus careful to establish, protect, and defend relig-ious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades * of [* 471] religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. This public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme

ject. The situation, too, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, Congregationalists; in others, Quakers; and in others again there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an

imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the infidel, may sit down at the common table of the national councils, without any inquisition into their faith or mode of worship." Story on the Constitution, § 1879.

Being himself as the author of all good and of all law; but the same reasons of State policy which induce the government to aid institutions of charity and seminaries of instruction, will incline it also to foster religious worship and religious institutions, as conservators of the public morals, and valuable, if not indispensable, assistants in the preservation of the public order.

Nor, while recognizing a superintending Providence, are we always precluded from recognizing also, in the rules prescribed for the conduct of the citizen, the notorious fact that the prevailing religion in the States is Christian. Some acts would be offensive to public sentiment in a Christian community, and would tend to public disorder, which in a Mahometan or Pagan country might be passed by without notice, or even be regarded as meritorious; just as some things would be considered indecent, and worthy of reprobation and punishment as such, in one state of society which in another would be in accord with the prevailing customs, and therefore defended and protected by the laws. The criminal laws of every country are shaped in greater or less degree by the prevailing public sentiment as to what is right, proper, and decorous, or the reverse; and they punish those acts as crimes which disturb the peace and order, or tend to shock the moral sense or sense of propriety and decency, of the community. The moral sense is largely regulated and controlled by the religious belief; and therefore it is that those things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as crimes against society, since they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws, and to corrupt the community.

[* 472] *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 make the marriage-tie permanent and forbid 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. That standard of morality which requires one to love his neighbor as himself we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen; and one could hardly be held responsible to the criminal laws if in goodness of heart and spontaneous charity he fell something short of the Good Samaritan. The precepts of Christianity, moreover, affect the heart, and address themselves to the conscience; while the laws of the State can regard the outward conduct only: and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive law of the State.1

Mr. Justice Story has said in the Girard Will case that, although Christianity is a part of the common law of the State, it is only 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 to the injury of the public.2 It may be doubted, however, if the punishment of blasphemy is based necessarily upon an admission of the divine origin or truth of the Christian religion, or incapable of being otherwise justified.

Blasphemy has been defined as consisting in speaking evil of the Deity, with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning the Supreme Being calculated and designed to impair and destroy the reverence, respect, and confidence due to him, as the intelligent Creator, Governor, and Judge of the world. It embraces the idea of detraction as regards the character and attributes of

[merged small][merged small][ocr errors][merged small]
« AnteriorContinuar »