Page:The Green Bag (1889–1914), Volume 14.pdf/310

 Christianity and the Common Law. preserver. ' The common law took cogniz ance of offences against God only when by their inevitable effect they became offences against man and his temporal security.1 There are two other matters to which reference should be made in considering the relation of Christianity to the common law, for they at least illustrate the limitations of the doctrine. Lord Hale has said,2 and he was followed by our own Kent,3 that blas phemy was a crime, among other reasons, be cause one of its evil consequences was to impair the efficiency of an oath, being incon sistent with the reverence due to the latter, and tending to lessen in the public mind its religious sanction. This understanding of the common law can hardly be correct. The consensus of American opinion at least is that the sanction of an oath is the fear and invocation of some god, not necessarily the God of the Scriptures; that he, therefore, who believes in any god,— whether Christian or pagan, — to reward virtue and punish vice either here or hereafter, and to bind an oath upon the conscience of the witness by the penalty of his displeasure, is a competent wit ness, nor need that belief or anticipated punishment have any reference to a future life. Only he who believes not in any god can be bound by no religious tie and is at common law incompetent to testify in a court of justice.4 Thus it appears that our doc■ Clayton, J., in State v. Chandler, 2 Harr. (Del.), 553But in spite of the dictum of the learned Story, it may well be doubted in the light of all the decisions whether the divine origin of Christianity has anything to do with the punishment of blasphemy, or whether the punish ment is incapable of being otherwise justified. See Cooley's Constitutional Lim., 472. ' Rex v. Taylor, 1 Ventr., 293; 3 Keb., 607. 3 People v. Ruggles, 8 Johns. (N. Y.), 289. Ohio, 121; Omichund v. Barker, Willes, 549; Butts v. Swartwood, 2 Cowen, 431; People v. Matteson, ibid., note; Hunscomb v. Hunscomb, 15 Mass., 184; Norton v. Ladd, 4 N. Y., 444; Scott v. Hooper, 14 Vt., 535.
 * Arnold v. Arnold, 13 Vt, 362; Brock v. Milligan, 10

273

trine of the binding force of an oath does not stand or fall by the presence of the teachings of Christianity as an essential part of the common law. Secondly, it may be asked, do the statutes regulating Sabbath observance rest upon any tacit recognition of Christianity as the state religion, or imply the existence of an alliance between that faith and the body politic? Wherever this question has come before the courts for answer they have held uniformly in the negative. The laws imply nothing more than this, of which no law can lose sight but to its own detriment, that the re ligion of Christianity is in fact and indeed the faith of the land. The laws, therefore, which enforce abstinence from labor upon the Christian Sabbath have nothing to do with religion as such. They are merely cal culated to protect the social customs of the people and preserve the public peace; they are mere civil regulations resting not on grounds of religion or morality, but on prin ciples of policy, and made for the govern ment of man as a member of society. The fact that that society is Christian in its faith and sympathies is important only as determining the form and spirit of those laws. 5 These then are the limitations of the doc trine that Christianity is a part of the com mon law, and this the meaning of the maxim of Lord Chief Justice Hale in its true and only sense, that the common law would not permit the essential truths of re vealed religion to be ridiculed and reviled, or in other and simpler terms, that blasphemy was at common law an indictable offence. 5 Linchmuller v. People, 33 Barb., 548; Neuendorf v. Duryea, 69 N. Y., 557 (561); Specht v. Commonwealth, 8 Pa. St., 312 (325); Johnson v. Commonwealth, 22 Id., 102; Commonwealth v. Nesbit, 34 Id., 398; Bloom v. Richard, 2 Ohio St., 387; McGatrick v. Wason, 4 Id., 567.