RELIGION AND THE ST,.~,,
OR,
THE BIBLE AND THE PUBLIC SCHOOLS.
BY ~
SAMUEL 1~EAR, D.D.
NEW YORK:
& COMPANY, PUBLISHERS,
75I BROADWAY.
I876.
DODD, MEAD 
Copyright.
SAMUEL T. SPEAR, D.D.
I876. 
)AI
CONTENTS.
STATEMENT OF THE QUESTION.
PAGE.
I 5
24
34
44
55
66
77
I.-The New Political Programme................
II.-Roman Catholics.............................
III.-The Protestants..............................
IV.-The School Problem...........................
V.-Secular Education.............................
VI.-Religious Teaching by the State.................
VII.-The Bible in the Public Schools................
THE GENERAL ARGUMENT.
VIII.-The Unchristian Method......................
IX.-Governmental Jurisdiction....................*
X.-State Theology..............................
XI.-Civil Government..............................
XII.-The Political Value of Religion................
XIII.-State Personality..................................
XIV.-State Conscience toward God...................
XV.-The Majority Conscience........................
THE SPECIAL ARGUMENT.
XVI.-The Divine Right of Civil Government.........
XVII.-Christianity and the Common Law...............
XVIII -The National Constitution......................
XIX.-Religious Amendment of the Constitution.......
9
. 88
99
110
120
132
142
154
i64
174
i87
202
213 
Conz/en/s.
XX.-The Guaranty i)f Religious Liberty..............
XXI.-State Constitutions..............................
XXII.-Constitutional Rights of Conscience............
XXIII.-Taxation of Religious Corporations.............
XXIV.-Sabbath Legislation............................
XXV.-The Civil Oath............................
XXVI.-National and State Chaplains...................
XXVII.-Criminal Blasphemy and profanity..............
XXVIII.-Thanksgiving and Fast-day Proclamations........
XXIX.-Preambles to State Constitutions................
XXX.-The Law of Religious Societies..................
XXXI.-Fragmentary Thoughts.......................
XXXII.-The Conclusion.................................
0
IO
PAGB.
223
236
247
262
276
290
30i
3I3
325
332
347
363
376 
PREFACE.
The contents of this volume were originally
published as a series of articles in the correspondence columns of THE INDEPENDENT. During their
publication the author received numerous letters
from various parts of the country, expressing a
strong interest in the discussion, and suggesting
that, at the completion of the series, the whole
should be given to the public in the form of a book.
The approval of the articles thus indicated, the references occasionally made to them by the secular
and religious press, and the insertion of some of
them in other newspapers, led the author to conclude that their collection and publication in a volume  might possibly contribute some help to the
public mind in arriving at the true solution of the
much debated School question. They now appear
just what and as they were at their original publication, with the exception of a few changes made
in their titles.
The School question has for years past excited
no little attention among the people, and it will
probably continue to do so for years to come. It
I! 
Preface.
is only a branch of the larger question that relates
to the proper attitude to be assumed and maintained by civil government with reference to religion.
In respect to this larger question, the American
people, alike in their constitutions and laws, have
adopted a policy entirely antagonistical to any union
between Church and State. Shall this policy be applied to the public school, organized and managed
by State authority, and supported by general taxation? Shall this school, like the State itself, be exclusively secular in its purposes and processes, or
shall it, in addition to the secular element, be made
the instrument of religious instruction and worship?
The object of this volume is to answer these
questions. As to the correctness of the conclusion, and the pertinency and power of the argument to sustain it, the reader can fairly judge only
by perusing the entire series of essays. If hle will
turn to the last number, entitled "The Conclusion,"
he will find a summary of the whole discussion, and
be the better able to judge of the relations of its
several parts to each other. No one aspect of the
question exhausts it; and.no examination of it can
be deemed at all thorough or complete that does
not carefully consider the principles and ends of
civil government, especially as constitutionally established in this country.
It being granted that civil government should
confine itself exclusively to the attainment of secular and temporal ends, and it being further granted
I 2 
Preface.
that the political system of the American people is
based on this principle, and also granted that the
public school is an institution of the State, and not
of the Church, then the onlyconclusion, at all consistent with the premises, is that the school should
be a fair expression of the character of the State.
This is the conclusion adopted by the author; and
his main effort in this volume has been fully to
state the premises and show that they prove this
conclusion. The argument is addressed to the people as citizens, and not as religionists, whether Protestant or Catholic.  In the latter aspect they can
never agree upon a common school policy: yet in
the former they should agree by fully respecting
each others' rights as citizens, and hence by asking
nothing of each other which they do not as cheerfully concede.
BROOKLYN, September, I876.
I 3  
RELIGION AND THE STATE,
OR
THE BIBLE AND THiE PUBLIC SCHOOLS.
STATEMENT OF THE QUESTION.
THE NEW POLITICAL PROGRAMME.
Ex-Speaker Blaine, in his letter of October
20th, I875, addressed to a gentleman in Ohio just
after the election in that State, suggested an amendment to the Constitution of the United States,
which he has since submitted to the House of Representatives in the following form:   "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in
any State for the support of public schools, or derived from any public fund therefor, shall ever be
under the control of any religious sect; nor shall
any money so raised ever be divided between religious sects or denominations."
The first clause of the First Amendment to the
Constitution declares that "Congress shall make no
I5
* 4-1 - 
]Religion and the State.
law respecting an establishment of religion, or prohibiting the free exercise thereof."   Mr.  E.  P.
Hurlbut, formerly one of the Judges of the Supreme
Court of the State of New York, in a pamphlet
published some years since, and entitled "A
Secular View of Religion in the State," suggested that this amendment should be so altered
as to read as follows: "N eithyer Congress nor aiiny
State shall make aiy law respecting an establishment of religion, or prohibiting the free exercise
thereof." The words in italics are the ones which
Judge Hurlbut proposed to add. If there be good
reason for imposing such a restriction upon Congress, there must be an equal reason for imposing
it upon the several States. While Congress has no
power except such as has been delegated to it by
the Constitution, the States possess all governmental powers except such as the Constitution denies
to them or grants exclusively to the General Government. There is nothing in the fundamental law
of the land to prevent them from establishing Protestantism, Roman Catholicism, Judaism, or even
Mormonism, according to the will of the majority,
and imposing special disabilities and burdens upon
the dissenting minority. Mr. Blaine proposes to
withdraw this power from the States, and subject
them to the same restriction that now applies to
Congress.
The only difficulty that we feel in regard to this
part of the amendment respects the extent of its
I6 
The New Poitical Programme.
application. Does the language reach and inhibit
all religious tests as qualifications for voting or holding State offices, and all exercise of the power of
taxation in support of religious institutions? The
constitutions of some of the States contain religious
tests; and those of New Hampshire and Connecticut provide for a tax levy as the means of sustaining Christian societies. Those who believe in the
absolute divorcement of the State from religion, and
who think it expedient to place this doctrine in the
organic law of the land will, of course, approve of
Mr. Blaine's proposition, so far as it goes; yet they
will naturally raise the inquiry whether it is not too
narrow in its scope. In their view it is less, except
by a very liberal construction, than the whole truth;
and for this reason they are likely to regard it as
defective.
The other part of the amendment relates specifically to the School question.  Its provision is that
"no money raised by taxation in any State for the
support of public schools or derived from any public fund therefor shall ever be under the control
of any religious sect, n6r shall any money so
raised ever be divided between religious sects or
denominations."   This language clearly comprehends and precludes all propositions for a division
of State school funds among religious sects, or placing any portion of such funds under the control of
any such sect. Would it settle the much-debated
School question? It would do so in part, since it
2
I 7 
Religion  and the Stale.
would put an end to all discussion about any divis.
ion of money "raised by taxation in any State for
the support of public schools, or derived from any
public fund therefor." This certainly would be avery
important point to gain; and possibly it is all that
ought to be sought in an amendment to the National Constitution.   Yet it manifestly does not cover
the whole question in controversy.  The manner
of conducting public schools, including the subject
of Bible-reading and religious worship  therein,
which is one of the sharpest issues between the
Catholic and the Protestant, would be still left to
the discretion of each State.  So also there would
be no inhibition upon the use of public funds for
sectarian or religious purposes, raised by taxation
or held by the State, unless they were so raised or
held "for the support of public schools." The
money that is the subject-matter of the restriction
is public money, either raised by taxation or derived
from some public fund therefor; and this, and this
only, is the money that must not, according to the
proposition, be placed "under the control of any
religious sect," or "divided between religious sects
or denominations."
So much we offer in explaining the programme
of ex-Speaker Blaine.    If he designed to arrest
public attention, he certainly has the satisfaction of
having achieved a decided success.
The President also in his Message to Congress,
December 7th, I875, called the ~ttention of the
I8 
The New Political Programme.
public to the same subject. In the Message he
says:    "I suggest for your earnest consideration, and
most respectfully recommend it, that a constitutional amendment be submitted to the Legislatures
of the several States, for ratification, making it the
duty of each of the several States to establish and
forever maintain free public schools, adequate to
the education of all the children in the rudimentary
branches within their respective limits, irrespective
of sex, color, birthplace, or religion, forbidding the
teaching in said schools of religious, atheistic, or
pagan tenets, and prohibiting the granting of any
school funds or school taxes, or any part thereof,
either by legislative, municipal, or other authority,
for the benefit or in aid, directly or indirectly, of
any religious sect or denomination, or in aid or for
the benefit of any other object, of any nature orkind
whatever."
In addition to this, the President says: "I would
suggest the taxation of all property equally, whether
church or corporation, exempting only the last resting-place of the dead, and. possibly, with proper
restrictions, church edifices." In his recapitulation,
at the close of his Message, the President names
the following questions which he deems of "vital
importance, which may be legislated upon and set.
tled at this session:   I. "That the States shall be required to afford
the opportunity of a good common-school education
to every child within their limit,;."
I9 
Religion and 1he S/ale.
2. "No sectarian tenets shall ever be taught in
any school supported in whole or in part by the
State, nation, or by the proceeds of any tax, levied
upon any community. Make education compulsory
so far as to deprive all persons who cannot read and
write from becoming voters after the year I890disfranchising none, however, on grounds of illiteracy who may be voters at the time this amendment
takes effect."
3. "Declare Church and State forever separate
and distinct, but each free within its proper sphere;
and that all Church property shall bear its own proportion of taxation."
The President's programme fills a larger space
and embraces more particulars, than that of Mr.
Blaine. What he says about the taxation of Church
property would be very appropriate in a Governor's
message, addressed to a State Legislature; but we
do not see that Congress has any thing to do with
the question in the exercise of its taxing power, or
in that of proposing amendments to the Constitution. The President is right in his opinion that
Church property should be taxed, in common with
all other private property; yet the whole genius and
spirit of the Constitution leave this question to be
determined by the respective States. So, also, the
President's theory as to an intelligence qualification
for voting, may be very sound doctrine; yet there
is not the slightest probability that two-thirds of
Congress will propose the theory in the form of an
20 
fhe Vew Poli/ical Programme.
amendment to the Constitution, or that three-quar.
ters of the States would ratify such an amendment.
The principle is adopted in the constitutions of only
three States in the Union; and this one fact is quite
sufficient to settle the point in the negative. The
question, moreover, is one which, according to the
general policy of the Constitution, should be determined by each State for itself.
The plan of the President in regard to the public schools is both positive and negative. The positive part consists in making it the constitutional
duty of the States to establish and maintain such
schools and to give adequate opportunity for "the
education of all the children in the rudimentary
branches within their respective limits, irrespective
of sex, color, birthplace, or religion."  The public
would be interested to learn from the President how
such a duty would be enforced in case a State failed
to comply with it. Without some method of enforcement it would be practically of but little consequence. Whether a State shall have a public school
system or not is purely and absolutely a State question-as much so as the question whether it shall
have a prison or a police system; and it should be
left to the sovereign discretion of every State. The
General Government was not organized to educate
the people, or take the superintendence of their
education.
The negative part of the President's plan substantially coincides with the amendment proposed
2 1 
ReligioI  and the Slate.
by Mr. Blaine in respect to the use of school funds,
and goes beyond it in prohibiting the teaching of
religious, sectarian, atheistic, or pagan tenets in any
school sustained in whole or in part by the State.
Whether Bible-reading, opening the school by
prayer, and singing religious hymns would come
within the prohibition, would be a question of construction, in regard to which we here express no
opinion, because the President has not given the
exact words of the amendment which he desires to
have adopted.   All he has done is to indicate the
subject in general terms, showing very clearly the
drift of his own mind, but not showing the precise
thing which he would have accomplished.
The only other idea in the President's programinme in relation to religion is the one which
"declares Church and State forever separate and
distinct, but each free within its proper sphere."
This language is altogether too general, too ambiguous, and too susceptible of diverse constructions
to be of any practical service.   The way to gain
the end is not to delegate the powers which in
their exercise involve a-union of Church and State,,
or prohibit specifically the exercise of any powers
which necessarily lead to the result. A mere general dogma on any subject will not do for a constitutional law. Making constitutions which are to be
the basis of powers to be exercised, or restraints
to be imposed and enforced, is a work that demands
the utmost accuracy in the use of words.
22 
T/ie New Polilical Programme.
Taking, then, ex-Speaker Blaine's proposed
amendment, and the President's general suggestions
together, it seems by no means improbable that
they will give a new impetus to the discussion of
the principles, political and religious, that are involved in the School question. The editorials of
newspapers, the numerous letters of correspondents,
and the conflicting sentiments expressed by different persons, show that the discussion has already
begun with renewed earnestness. Precisely what
shape the question will take, and to what extent and
in what manner it may be allied, if at all, with the
policy and movements of political parties, especially in the approaching Presidential election, is a point
not now determinable with any certainty; yet it
would not be at all Surprising if the Republican
party should think it expedient to court, and,- if possible, make an issue with the Democracy on this subject. The Democratic party depends largely upon
Catholic votes for its hopes of success; and it is
well known that the attack upon our public school
system, and the clamor for a division of school funds,
come mainly from  Catholics.   They, of course,
will not be likely to look with favor upon Mr.
Blaine's amendment, or upon the views of the President; and, hence, the difficult problem for the
managers of the Democratic party to solve is to
decide what shall be its attitude on this subject.
Shall they accept or oppose the amendment proposed by Mr. Blaine?
23 
Religion and Ilthe State.
With such an issue, if made, as a mere matter
of party strategy between Republicans and Democrats, we have no concern. Yet the great principles which are involved in the question, and which
in their various applications bring to the surface
the whole subject of Church and State, civil government and religion, in their relations to each other,
are matters of the very deepest interest. Some
years since the attention of the public was strongly
called to this subject, by the action of the Board of
Education at Cincinnati. At that time the author
of this article expressed his views on the question
in a series of communications published in T,le
Independent. He proposes now to renew the discussion in another series, regarding himself as at
liberty to make any use which he thinks proper of
the published results of previous labors. The present seems an opportune moment for asking the
people to think upon a question which, if ever settled rightly and finally, must be settled in accordance with the principles that lie at the foundation
of our political system.
II.
THE ROMAN CATHOLICS.
The Roman Catholics of this country, considered as a class, and especially as represented by their
clergy and their religious journalists, are by no
24 
Tze Roman  Catlholics.
means pleased with our American public school system as an instrumentality for the education of their
children. It is not what they want, or what they
would make it, if they had the power. Justice to
them demands that we should correctly understand
and fairly state the grounds upon which they base
their dislike of this system.
First of all, we should remember that, in the
view of Catholics, no educational system applied to
children is or can be right, whatever it may be in
its secular character, that is not also distinctively
religious. The secular without the religious element gives a "godless" and atheistic education;
and, hence, a school organized on this principle is
a "godless school," periling the soul while attending to the comparatively insignificant knowledge
that relates purely to the interests of time.  It is
far more important that children should learn to
pray and worship God, and be instructed in the
tenets of religion, than that they should learn the
multiplication table, or how to read and write, or to
speak the English language correctly. No Christian
certainly will make any issue. with the Catholics as
to the importance of a religious education: it is not
possible to overstate this importance, or evince too
much zeal in regard to it; and yet, whether they
are right in denouncing every school system that
does not meet this specific demand, is quite another
question. A system may be very good for some
purposes, and for this reason deserve to be sup
25 
Religio26  and the Slate.
ported, while it may not comprehend all desirable
ends.
The next thing to be borne in mind is that, when
the Catholic speaks of a religious education, he
means an education after the specific type of his
ownI faith. He means Catholicism in its tenets,
ceremonies, usages, and forms of worship. Give
him this in the public school, and not another word
of complaint will be heard from either priest or
layman to the end of time. Put into the school
religion after the Protestant model, in either its
character or its tendencies, and this for his children
is the next thing to a "godless" school, if not quite
as bad, since it teaches them "damnable heresies."
The danger is that it will make them Protestants,
or prevent them from being Catholics, and in either
event ruin their souls.   The  reading  of  King
James's version of the Sacred Scriptures, opening
the public school by prayer, and singing a religious
hymn will not satisfy the Catholic, for two reasons:
First, as an educational regimne it is, in his view,
exceedingly defective in q?anitity, and in this respect he is entirely right; secondly, not being
Catholic, but, so far as it is anything, Protestant iii
its character and tendency, it is still worse in quality. It is no relief to his conscience, and no answer to his objections, to supplement secular with
this kind of religious education. Between a purely
"godless" school and one that in his estimate is
Protestant, he sees very little to choose. Neither
26 
The Rornman Catzolics.
meets  the requirements  of  his  faith.   He  de sires to protect his children against the evils of
both.
We see nothing strange or mysterious in this
general position of the Catholics, if we look at the
question as one of ecclesiastical and religious policy. Intense and exclusive ecclesiasticism is both
a sentiment and a policy of their Church life-a
conviction and a practice thoroughly fostered by
their religious teachers.  As religionists, they are
educated to have no fellowship with Protestants or
extend to them any Church recognitions. They are
tlie Church, and there is no other Church upon the
earth. I'rotestants are heretics; and wherever the
Catholic creed is fully carried out there heresy is a
crime,  punishable by the civil power.  Moreover,
the Catholic clergy seek to make hatred of Protestantism a part of the religion of their people. This
they do in order to isolate them as a distinct order
of religionists by themselves, and, as far as possible, to make them claiziiiisi, and thus guard them
against all dangerous contact with Protestant heretics.  Their policy is to husband their own resources by taking the best possible care of the religious
faith of their own people, and that of their children;
and it is but just to say that they are skilful adepts
at this business.   No  Church organism has ever
existed that in the unity and singleness of its purpose, and in the persistency of effort with which
it is worked, will at all compare with that of the
27 
R]eligion and the Slate.
Catholics.   It makes Churchmen of the most intense type and developes the purely Church theory
with immense efficiency.
The managers and manipulators of this organism-the persons who do the brain-work, and who
are almost exclusively the clergy-understand very
well that Catholicism in this country depends for
its life and progress upon two conditions: first, a
large and continuous importation of foreign-born
Catholics; secondly, home production, by educating the children of Catholics into the faith of their
parents and the faith of the Church. Take away
either of these sources of supply, and especially
the latter, and conversions to Catholicism from the
outside world among the adult population would by
no means replenish the losses by death. The clergy are too sagacious not to see that, on this soil and
in this atmosphere, a school system in which their
creed is not made a primary and elementary part
of the education of Catholic children will not meet
the stern ecclesiastical necessities of Roman Catholicism in these United States. Ignorance and
despotic control are historically the strongholds of
Catholicism.   It is not, never has been, and until
greatly modified never can be the religion of popular
enlightenment. Surrounded as it is in this country
by a predominant non-Catholic influence, and brought
in contact with the institutions of free and independent thought, "the holy Roman faith" has a
very hard battle to fight; and, hence, the most zeal
28 
Thie Roman  Catholics.
ous care over the education of Catholic children
is with it a matter of life and death.  This care it
must give, or run the hazard of not being transmitted in the line of family descent. It must bring
the children under its power in their earliest years;
and anything that does not meet this necessity fails
at a most vital point.
This statement of the question, as it respects
Catholics, proceeds from no ultra-Protestant spleen
against them, and no wish to call in question their
sincerity or in the slightest manner to abridge
their rights. We have no sympathy with, and
hardly any respect for, that stupid and furious
Protestantism which sees nothing good in Catholicism, and brands it as evil and only evil, and that
continually. The best apology that can be made
for it is its sheer ignorance. Nor do we intend to
place a low estimate upon the value of a religious
education. On this point we heartily agree with
the most strenuous Catholic, however widely we
may differ from him as to what is such an educa
tion, or as to the means by which it should be
furnished. Nor, again, do we desire to curtail the
privileges of the Catholic in the freest and fullest
propagation of his own faith, by whatever means
he chooses to adopt, in consistency with the laws
of the land, provided always that. he also chooses to
pay his own bills. The law secures to him this
right, in common with all other citizens, and defends him in its exercise. This is a free country
29 
Religion and t1e State.
for Catholics, as well as for Protestants, and both
would do well to keep this fact in mind.
When, however, the leaders and teachers of the
Catholic host make war upon our public school
system because it does not answer their Church
purposes; when they identify all true religion with
the Catholic faith, as the sole measure and criterion
thereof, and, hence, denounce all education as
"godless" and "irreligious" that does not inculcate this faith; especially when they ask a subsidy
from the school funds of the State or demand from
the State a portion of these funds as the means of
supporting schools one of whose prime objects
shall be to teach Catholicism-yes, when this is
the programme of the Catholic clergy and the
Catholic press, there certainly can be no harm in
looking at the philosophy of the movement. Such
a programme, whatever may be its reasons in the
minds and hearts of Catholics, or however necessary it may be for their purposes, brings before the
American people a series of the very gravest
questions.   These questions are to be thoughtfully
considered.
We confront the whole programme, as an
aggregate and in all its parts, with the generic
proposition that the public school should be made
neither a Catholic nor a Protestant machine, any
more than it should be made a Jewish, a Mormon,
or an infidel machine. It should be a State
machine, and this only, supported by general taxa
3o 
Tze Romanl CUaiolics.
tion and conducted under the exclusive authority
of the State; and this one principle furnishes an
unanswerable reason why it should have nothing to
do with the Protestant, as such, or the Catholic, as
such, and should deal with both on precisely the
same terms, knowing them only as citizens, and,
hence, knowing nothing about them as religionists
or about their respective creeds.  This is the true
theory of the American public school system, and
to the theory the practice should conform. If
there be anything in the practice inconsistent
therewith, then let it be corrected, no matter who
may be offended thereby.' The Protestant has just
as many rights in the public school as the Catholic,
and izo more; and the latter has in it just as many
rights as the former, and no more. Either can send
his children to this school, and have them there
educated in the common branches of useful secular
knowledge, at the public expense; and this is all
that either should ask at the hands of the State.
Catholics, however, and, we regret to say, some
Protestants, are not satisfied with such a plan of
State education. The reading of King James's
version of the Scriptures in the public schools is
demanded by a certain class of Protestants; and to
it the Catholic objects, as an offense to his conscience. What he wants is the Douay version;
and this is just what these Protestants do not want,
and would not for a moment tolerate. Though
the Catholic claims that this kind of Bible-reading
31 
Rel[gion anid I1e Slale.
shall be discontinued, yet his plan is much broader
and deeper than the simple expulsion of King
James's version from the public schools. What he
wants is to have Catholicism formally and methodically taught to his children in the school which
they attend; and, inasmuch as this cannot be done
in the public school under present arrangements,
he desires that the State should in some way so
modify its system as to gain this end at the expense
of the public. Such a division of the school funds
as would give him a certain proportion thereof,
and allow him to use it for the support of Catholic
schools would just meet his wishes. This, or the
nearest possible approach to it, is the ultimate
point at which he aims.
The system of parochial schools after the
Catholic model, is burdensome to those who have
to pay its expenses; and, although Catholics, especially in large cities, have on this subject shown
their faith by their works, still it would be a most
welcome relief to them if the State would in some
way secure to them the substantial ends of the
parochial system without its charges-in a word,
if the State would pay the bills and let them regulate the teaching. Such a plan would secure the
whole end of the Catholic agitation about the
public school, so far as the question of ways and
means is concerned. The entire agitation converges at last to this one practical point: Shaill
Catholics pay the cost of their owni ecclesiastico
32 
Thze Roman Ca/tholics.
educatiovnalpropagaiidism, or shall the State pay it?
Here the question is one of dollars and cents.
The amendment proposed by ex-Speaker
Blaine answers this question by declaring that
"no money raised by taxation in any State for the
support of public schools, or derived from any public fund therefor, shall ever be under the control
of any religious sect, nor shall any money so raised
ever be divided between religious sects or denominations." Though this would not dispose of all
the issues involved in the School problem as debated by religious sects, yet, if the amendment were
placed in the fundamental law of the land, one
question, and that too a very important one, would
receive a final settlement. The Rev. Thomas S.
Preston-one of the most considerate and able
writers on the Catholic side of the question-in a
pamphlet published by him  a few years since, took
the ground that education and religion are inseparable; anid that the State should adopt a system
by which "every religious denomination which has
its own schools shall draw its proportion of the
sum raised by general taxation, according to the
number of children whom  it educates." We shall
have occasion hereafter to examine both of these
propositions; yet for the present it is sufficient to
say that ex-Speaker Blaine's amendment gives an
emphatic and unqualified negative to the latter
proposition; and if Congress will propose, and the
State Legislatures will ratify the amendment, that
3
33 
Religi on a z d ize S/ale.
will be the end of all schemes for a division of
school funds among religious sects.
III.
THE PROTESTANTS.
The term Protestant, used as a title of distinction from Catholics, applies to all the professedly
Christian sects of this country. These sects may
be regarded as forming one great body of religionists, in the aggregate more numerous and influential than the contrasted Catholic sect. Considered,
however, relatively to each other, they are divided
into several branches, or religious denominations
-as Baptists, Congregationalists, Episcopalians,
Lutherans, Methodists, Presbyterians, the Reformed Church in America, Unitarians, Universalists,
and other smaller sects-all agreeing in being
Protestants, as distinguished from Catholics, and
yet thus divided, as the result of differences in
doctrine or polity or both. They all claim the
Christian name, and all profess to rest their religion, either wholly or in'part, upon the authority
of the Bible. Their number, their intelligence,
their general standing as citizens, their Church
wealth, their religious zeal, and their instrumental
agencies for operating upon the thoughts of men,
invest them with great power in reference to any
public question. Taken as a whole, they unques
34 
The Protestants.
tionably form the best and most useful portion of
the American people. The religion, the moral
influence for good, and the numerous charities of
the land, are largely identified with their efforts.
There is one aspect of the School question in
respect to which these Protestants march together
as nearly a solid host. However much they may
be divided among themselves, they are, with very
few exceptions, an absolute unit in opposing the
Catholic  programme  in  regard to  the  public
schools. Submit to them the question whether
any portion of the school funds shall be placed in
the hands of the Catholics for the support of their
sectarian schools, or whether the public schools
shall be so conducted as practically to be Catholic
schools, or whether the school funds shall be divided pro rata among religious sects, according to the
number of pupils taught in their respective denominational schools, and the overwhelming mass of
Protestants would promptly reject each of these
propositions. It is quite possible that some HighChurch Episcopalians would accept the last proposition; yet the School question can be placed in no
form that will be satisfactory to Catholics, without
at once awakening the earnest and most intense
opposition of the great majority of Protestants.
While the latter are willing that the former should
organize and conduct as many parochial or private
schools as they choose to support, they are not
willing to be taxed for any such purpose; and any
35 
-Reigoz;!on and( /Se S/ale.
political party that should place them in this position would be swept from power, at the very first
opportunity. With some this opposition is largely
a matter of anti-Catholic prejudice; but, with the
more intelligent Protestants, it rests on the palpable inconsistency between what the Catholics
desire and the whole genius and nature of our
political institutions. Nothing can well'be more
certain than that the Catholics cannot Romanize
our public schools or foist their own sectarian
schools upon the State for support, as a general
thing, unless they immensely increase the number
of their voters. They are met at every point of
the contest by a nearly-united opposing Protestantism. Here Protestants are of one mind, having
little if any ground of debate among themselves. 
When, however, we change the issue from the
purely negative form of resistance to Catholics,
and ask these Protestants to give us a positive
scheme of their own, their unity and harmony
very speedily disappear.   The great mass of them
may be conveniently arranged into three classes:   I. A small number, as compared with the
whole, take the ground' (advocated by the Rev.
John Miller, of Princeton, in a letter published in
the New York Tribuize, December 9th, I875) that
the whole system of State schools for popular
education is a mistake; and that the true solution
of the School question consists in dropping the
system altogether, and remitting the entire business
36 
The Prolestltals.
to the family and such auxiliary agencies as it sees
fit to employ. This was the view held by the late
Gerrit Smith. The theoretical basis upon which
it rests is that the education of children, especially
in a democratic republic, does not lie within the
normal functions of government at all. The constitution of things assigns this duty to the family;
and the State might as well undertake to stand in
loco parentis in respect to the discipline and government of children as to do so in reference to their
education. Education is the proper work of
parents, and not that of the State. This theory
is supplemented by adding that education and religion cannot be separated, and that the moment
the State attempts to give the former it necessarily
becomes involved in the latter; that, on the whole
it will be best for the State and best for the people
to leave education tQt the family and to voluntary
effort; and that the State cannot participate in the
work without becoming entangled in the collisions
and jealousies of religious sects, making itself
more or less a party thereto, and perhaps doing
injustice to some, if not all of them.
These are among the reasons assigned by this
class of Protestants for abandoning the whole
scheme of government education. The State has
travelled beyond its proper sphere as really as it
would if it should undertake to be a banker, a
manufacturer, a merchant, a grocer, or a pedler;
and by so doing it has gotten itself into difficulty
37 
l]eligion and the Slale.
and the people into difficulty. The remedy is to
retire from the business, and let that alone which
it should never have touched. The various sects
will then settle the School question, just as they do
all other questions of religious propagandism, and
give the State no trouble on the subject. These
views have so few advocates, as compared with the
whole body of the people, that they scarcely enter
at all into public discussion.
2. The second class of Protestants embraces
those who believe that the State should have a
system of popular education supported by general
taxation, and managed exclusively by its own authority; and that the system should be rigidly confined to the secular sphere of knowledge, leaving
religious instruction and worship to be attended to
by other agencies. Those who adopt this view deny
that education and religion, so far as the former
comes within the province of the State, are inseparable; and they also deny that an American State,
founded in its government not on the principle of
theocracy, but on that of a representative democracy, can properly have anything to do with teaching, regulating, controlling, or patronizing any or
all of the different systems of religion which may
be embraced or practiced by its citizens. On this
subject they sweep the whole deck of all forms of
State religion, and plant themselves upon the doctrine of an absolute and unqualified divorce of the
State from things spiritual. They are secularists in
38 
Tze Protestants..
respect to the ends and functions of civil government-as much so as they are in respect to the
ends and functions of a bank corporation or a railroad company: and they are equally secularists in
regard to the purposes and, hence, the management
of the public schools. The State, in their view,
cannot pass beyond its sphere here without a selfcontradiction.
The exact number of Protestants who take this
ground it is not possible to tell; yet the view is
widely held by the membership of the professedly
Protestant sects in this country. The discussion
of the School question, within the last twenty years,
has added largely to the number of its advocates.
Many of the religious papers and  most of the secular papers of the country support the view, as
impartially just to all parties, and the only thing
that is so.
3. The third class embraces those Protestants
who, while they believe in the necessity and wisdom of State education, and also utterly protest
against the Catholic programme in respect to the
public schools, nevertheless, insist upon the reading
of the Bible in these schools, without note or comment, as one of the standard exercises thereof, and
would be glad to supplement this reading by opening the schools with prayer and the singing of a
religious hymn   The  Bible-reading is the main
thing which they demand. By this they mean the
reading not of the Douay version, used by the Cath
39 
ReAligion and Sie Slate.
olics, and not the version made some years since
by a portion of the Baptists, but King James's
version of the Old and New Testament, in common
use among Protestants. This is the Bible about
which they are talking, and upon which they concentrate their zeal.
And, inasmuch as they belong to different sects
-some of them being Presbyterians, others Congregationalists, others Methodists, others Baptists,
and so on through the whole list-and, still further,
inasmuch as they cannot agree as to any system of
special teaching out of the Bible and upon its authority, or cannot trust the Bible-reader to expound
and enforce those views upon which they are agreed,
they compromise this matter among themselves by
agreeing that the Bible shall be read without note
or comment. Read it must be; but explained and
applied it must not be, lest perchance the latter
should in some way be tinged with a specific sectarian proclivity, to the advantage or disadvantage
of some one or more of these sects. If, for example, a Baptist teacher and reader should attempt to
make the Bible teach immersion by putting upon it
the Baptist construction, or an Episcopal teacher
and reader should seek to make it teach apostolical
succession, or a High Churchman should undertake
to make it teach a system of ritualism, it would not
be long before these advocates of Bible-reading in
the public schools would be at serious odds with
each other. Any such experiment would give rise
4o 
Thze Proteslaniis.
to a new School question. The only thing to which
these Protestants can agree is the bald and naked
act of reading, without any verbal comment that
will touch a single one of their denominational peculiarities. And, since the book read is non-sectarian as between them, so also this reading process
as between them is and must be non-sectarian.
This statement is not made for the purpose of
caricature, and certainly not for that of offense.
We simply mean squarely to state the position of
these Protestants, without the slightest impeachment of their motives. Many of them rank among
the theological and religious lights of the land.
They hold the doctrine, and they hold it earnestly,
that the reading of King James's version of the
Sacred Scriptures, without note or comment, should
be a daily exercise in all the public schools of the
country. They protest against the exclusion of
this use of this Bible from these schools. This
they have done over and over again as individuals,
and by the resolutions and deliverances of ecclesiastical bodies representing their views. They form
by no means a small and insignificant portion of
those who belong to the various Protestant sects, if
they do not constitute an actual majority.
We design hereafter to examine the merits of
this view somewhat at large; and, hence, now content ourselves with the single remark that these
Protestants substantially ask for themselves in i'espect to the public schools what they deizy to Catho
41 
Religzon and the Stale.
lics. They would not for a moment consent to
substitute the Douay version for that of King
James.   Make the substitution, and they would
very generally demand the expulsion of that Bible.
The Bible upon which they insist is the one which
Catholics regard as the Protestant Bible, and which
certainly is such in its use. Now, do they not
know that this Bible to the Catholic and the infidel
is a sectarian book, as really as the Westminster
Catechism or the Prayer-Book of the Episcopal
Church; and that the New Testament portion of
it is a sectarian book to the Jew? This is the fact;
and they ought to have the consideration to see it,
and the candor to admit it. King James's version
is all very well for them, since they are agreed in
accepting it; but it is not so for these other parties,
who are taxed in common with them for the support of public schools, and who under our theoryof
government have just as many and just as sacred
rights as they have in these schools. The very
terms of their doctrine commit them to a species of
self-preference in the schools of the State, which
they claim for themselves, but will not concede to
anybody else. Whether they are in favor of Biblereading depends upon wJihat Bible is to be read.
Let the Catholic select the book to be read, and
then he will favor the reading of that book; and
this in principle is precisely the doctrine of these
Protestants.  The religious meim and tuJ m in this
matter form a very significant part of the whole
question.
42 
The Protestants.
It so happens, too, that, outside of Protestants
and Catholics, there is a large body of citizens who
have their peculiar religious notions, represented
by neither, yet who are voters and taxpayers.
There are Jews, Swedenborgians, Shakers, Spiritualists, Deists, Pantheists, Positivists, Atheists, and
multitudes who can hardly be said to have any
settled faith on religious subjects. All these people
are citizens, belonging to the State, if they do not
to the Church; and they have as much proprietorship and right in the common school as the most
devout Christian, whether he be Catholic or Protestant. The public school is the common property of the whole people, and not exclusively of any
portion of them. The argument to show that no
Christian should be taxed to support infidelity is
just as good to show that no Deist should be taxed
to support Christianity, unless we adopt the theory
that one of the functions of civil government is to
decide what religion is true, and then provide for
its maintenance.
The discussion of the School question, as the
reader will readily see from. the simple statement
of it, draws within its own circle the great question
of the ages. It involves the whole subject of the
province of civil government, considered in relation
to religion. In the principles relating to it, and by
which it is to be determined, it is one of the most
elementary and far-reaching questions of human
society.   If the State may properly undertake the
43 
Religion and /te S/tale.
work of religious propagandism anzywhere or at any
point of its action, then it may, in its discretion, do
so everywhere.  If religion comes within its sphere,
then it has as much right to establish a State religion, and to teach and enforce it, as it has to establish a State prison for convicts. If we concede
the principle, we must accept its consequences.
The extent to which it shall be exercised is simply
a matter of legal discretion. Dr. Ralph Wardlaw
declares that "the province of the State in respect
to matters of religion is that it has no province at
all"; and if we adopt this view, then we must accept its consequences.
IV.
THE SCHOOL PROBLEM.
The attitude of religious sects, especially the
Catholics and a portion of the Protestants, in respect to the public schools of this country, creates
the necessity of inquiring in what way the difficulties that beset the system can be best solved.
One solution of the problem is to abandon the
system altogether and remit the whole work of
education to private and voluntary effort.  The
great objection to this view is that the remedy is
far worse than the disease. The country can much
more safely get along with the sectarian quarrel
44 
T/e School Problem.
about the public school, if there must be such a
quarrel, than it can without the school. Popular
education in some form, gratuitously afforded and
managed by the State, has so many advantages,
meets so large a sphere of wants, rests on so broad
an experience of its utility, and is so intimately
identified with the perpetuity, safety, and success of
our republican institutions,that its total abandonment
is not a thing to be thought of for a moment. Such
a course, by involving a vast reduction of educational opportunities and entirely withdrawing them
from a large number of the poorer classes, would
be practically equivalent to a plan for lessening
general intelligence.   The statement of the idea
supplies its own refutation.   The necessity and
wisdom of public schools are as thoroughly established in the convictions of the American people as
the doctrine of liberty itself. The system is virtually
a part of the doctrine. We, hence, spend no time
in proving that it ought not to be abandoned in
order to escape from the difficulties which attend
its continuance.
A second solution of. the problem, strongly
urged by the Catholics and favored by some Protestants, is the distribution of the public school
money, either the whole or a part of it, among religious sects, to be used by them for the support of
their own denominational and sectarian schools.
This idea is totally inconsistent with the public
school system as at present organized, and would
45 
Religioiz and t1e Stale.
in the end prove its destruction. Moreover, it
would be exceedingly difficult, if not wholly impracticable, to make the distribution according to
equity. How much should the Catholics receive?
The number of children taught by them would not
answer this question, since it would be no index to
the tax paid by themn, especially when we remember
that the great majority of them pay no taxes at all.
Their tax contribution is all that they could justly
claim, unless it is proposed to educate their children in the Catholic faith with funds derived from
other sources. The plan would add to the cost of
education by an unnecessary increase of machinery,
would lessen its opportunities in sparsely settled
districts, and would almost certainly make the education inferior to that given in the public schools,
with the single exception of the religious element.
If the principle of distribution is good for Catholics,
then it would be equally so for all the other sects;
and if generally adopted, the public school would
disappear altogether. So also the whole tendency
of such a plan would be toward the disintegration,
and not the unification of the American people, by
planting elements of antipathy, antagonism and religious bigotry in the bosoms of children, unfriendly
to the interests and duties of a common citizenship
in after years. And, finally, the State through its
taxing power would become the supporter and
patron of religious sectarianism, and compel the
people indiscriminately to pay the expenses thereof.
46 
The School Problem.
The proper answer to this distribution theory is
a plump  and unqualified negative.   The money
raised by general taxation belongs to all the people,
and the State through its own agents should control
its uses to the last dollar. It should open its schools
to all children of suitable age, free of charge; and
if Catholics or Protestants choose to have their
children educated elsewhere, then this is their business, and not that of the State. The plea that they
are thus subjected to a double taxation, and, hence,
that the State ought either to give them a portion
of the school money or omit to tax them for school
purposes, is false. Their self-imposed burdens for
sectarian purposes are not taxation at all, and no
reason for tax exemption. They choose to have it
so, anl, hence, they must patiently take the consequences. The State might just as well exempt
those from taxation who for other than religious
reasons choose to send their children to private
schools at their own expense. The general public
surely cannot abandon or modify a good system to
suit sectarian necessities or proclivities. The system should have in it no just ground of objection;
and then it should be firmly maintained, whether
Catholics or Protestants like it or dislike it.
A third plan is that of a szupptlemenitary system
of religious teaching, added to the public school, by
classifying the children according to the faith of
their parents and giving the instruction, not in the
regular school hours, but at a special period set
47 
Relizgion and the S/ate.
apart for this service, either before or after these
hours. We do not see that this mends matters at
all, since the real difficulty is not with the time ot
giving religious instruction, but with giving it at
all in connection with any school which the State
controls and the people support by general taxation.
The State, in its school system, has nothing to do
with the hours which precede or those which succeed the regular period assigned for the application
and use of that system, and, hence, should make
no arrangement with religious sects in respect to
them. If Catholic or Protestant or Jewish parents
want to have their children instructed in their
respective creeds, then let them attend to this business in their own way, and at their own time; yet
let them not attempt to make the State a party
either to the process itself, or to the character of
the instruction. If the State is to go into the business of religious and sectarian instruction at all,
then let it do so openly, without any indirection, and
not shove it into a corner.
A fourth plan is to establish schools by law,
and then remit the whole question of religious
teaching, as to kind, quantity, and method, to the
several school districts, leaving each district to
decide for itself by a majority vote. If Protestants
have the majority in a given district, then the school
would be Protestant; and if Catholics have the
majority, then the school would be Catholic. So,
if Infidels form the majority, they might make the
48 
The School Probilem.
deism of Thomas Paine the religion of the school,
and use his "Age of Reason" as the text-book for
teaching it. All must be taxed in each district, and
the local majority is empowered to decide what and
how much religion shall be taught, and to its decree the State affixes the seal of public authority.
What, then, is this school district? Simply a
small division of the State-a creature of State
power, exercising such powers and such only as the
State sees fit to confer.  Were the School question
remitted to such districts, or to the towns, villages,
or cities of the State, the Legislature would abdicate
all direct control over it.  This would settle nothing
and establish no general policy. If the whole people as represented in the Legislature, cannot wisely
dispose of the subject, is there any prospect that
the people acting in these divisions of the State will
be able to do so? The plan would beget animosities
and strifes in the school districts and lead to a
general war of sects over the public schools. The
stronger sect or sects would prevail, and the weaker
would have to succumb to their views. In some places
the school would be stamped.with Catholicism, and
in others it would be distinctively Protestant, and
might be Presbyterian or Methodist or Baptist in
its specific type; and whatever it was in its religious and sectarian character, it would be such by
the authority of the State. Catholics, when in the
minority, would be taxed to support Protestant
schools; and Protestants, when in the same position,
4
49 
Religion and l,he Slare.
would be taxed to support Catholic schools; and it
is possible that, in some cases, both would be taxed
to support Infidel schools. The actual result would
be the virtual support of some kind of religion or
some species of infidelity, under the sanction of State
authority. The School war, so far from being terminated, would go on with increased intensity and
bitterness. The question is one that belongs to each
State as a whole; and we are persuaded that nothing
is to be gained by remitting it, as an undetermined
problem, to its minor divisions, and leaving each
division to adopt its own mode of settlement. There
should be some general law as to the management
of public schools, applicable to the whole, and governing all its parts.
If, then, these four plans for solving the School
problem should be rejected, what shall be done?
The answer of a certain class of Protestants is
that the reading of King James's version of the
Sacred Scriptures as an opening exercise, either
with or without prayer and religious singing, is the
proper thing to be done, provided that the reading
be without note or comment; and this is a fifth
solution of the problem. To this the Jew objects,
alleging that the New Testament part of this version is not true, and that he does not want to have
his children taught religious error. The Catholic
also objects, declaring that the version is not only
not correct, but is a Protestant version and adapted
to promote Protestantism, and that he does not
50 
The School Problem.
wish to have his children taught in the Protestant
faith. The Infidel also objects, saying that the
whole version is a mass of fictions; and that he
ought not to be taxed to support religious superstitions, and that the public school for which he is
taxed ought to be available for his children, without
this objection.
All these objectors happen to be citizens of the
State in which they reside, and under our political
system they stand upon the same level with Protestants. They share in the burdens of government
and are amenable to its laws. The State of which
they are citizens, considered as a civil p6wer, existing and acting for temporal purposes, is no more
Protestant than it is Catholic, and no more Christian than it is Jewish or Mohammedan. It is simply apolitical body; and, as such, it has no religion
to teach or sustain or compel the people to sustain.
Such is the essential character of an American
State; and such it should be, since it is only by
this feature that the rights of conscience in respect
to religion are guaranteed against encroachment.
The objection, therefore, of the Catholic, the Jew,
and the Infidel against any Protestant regime in
the public school is a valid one, and admits of no
answer unless we abandon the fundamental principles of our republican system. It is as much an
act of tyranny and wrong to tax a Catholic or a
Jew to support a religion in which he does not
believe as it is to apply the same principle to a
5 I 
Reiz'io-zi  azcd l,ie S/ate.
Protestant. There is essentially no difference in
the two cases. Mere numbers can never make a
difference, unless religious liberty is a question of
numbers, which is not the fact.
Discarding, then, as we must, by the stern demands of logic and, as we believe, by the demands
of a true religion, this fifth solution of the School
problem, we still press the question: What shall
the State do? But one answer is left, and that answer constitutes the sixth solution, which is the
one we adopt and describe as follows:   The State, by which we mean the people acting
in their organic capacity through the machinery of
law, should say to all the religious sects, to all antireligionists, and indeed to all classes of citizens,
that its ground as to the public schools is the one
of absolute and impartial "neutrality" with reference to the doctrines and tenets of religion, whether
drawn from the Bible or elsewhere; that the ends
for which it exists do not include such doctrines
and tenets, either as a means or an end; and that
the only aspect in which it can consider Protestants, Catholics, Jews, Rationalists, Infidels, indeed,
every man, woman, and child subject to its jurisdiction, is simply that of citizenship, without any discrimination for religious reasons. The public
school is not a Church, or a synagogue, or a theological seminary; but a piece of State machinery,
organized and supported for purely temporal ends
as really as a court of justice, a constitutional
52 
The School Problem.
convention, or a legislative body. Its function is
not to make or unmake Christians, or predispose
children to this or that form of religious faith. It
does not propose a complete education; and does
not propose a religiozus education at all, either partial or complete. It proposes to do a certain thing,
on the ground of its necessity and utility to the
State, and to stop there, by not entering that field
which lies beyond the purview of civil government.
In short, it proposes a secular education, and that
only-an education that would be needful and useful in this life, if there were no God and no future
for the human soul.
This we believe to be the true ground on which
to place a school system organized and conducted
by the authority of an American State.  It is the
proper language of the State to the Catholic, and
just as proper to the Protestant, the Jew, or the
Infidel. It is the one answer to be given to everybody who asks the State to use its school system
for any other purpose than that of secular education.
To all such claimants and all such petitioners the
State should turn a deaf ear, and confine its system
of education within the limits of the ends for which
it exists as a State. They should all be practically
taught that the State will protect them in the exercise of their religious liberty, and will not on the
subject of religion extend its agency the breadth
of a hair beyond this point.
The general argument on which this doctrine
53 
.Reisgioit at[1  the Slate.
rests will be presented in its proper place. Yet it
may be well here to say that the objections to the
doctrine urged by those who dissent from it, when
traced to their final application, are simply objections to the systes of gover,nment which the American people have chosen to adopt and under which
they are now living. The objectors, in effect, find
fault with the theory of a State that has no religious
creed to teach, support, or enforce. Their argument, if good at all, is good to rehabilitate the machinery and prerogatives of a state religion. They
really object to the American doctrine of a State.
We do not; but heartily accept it as true, being
willing, without qualification or reservation, to extend it to all its legitimate applications. As a Protestant and a Presbyterian, we have no objection
to the reading of King James's version of the Sacred Scriptures in the public schools, and should
have none to the teaching of the "Shorter Catechism" there, regarding it as a most excellent
compendium of Christian doctrine; yet, as an
American citizen, taxed in common with all others
for the support of these schools, we ask for no such
tribute to our faith in distinction from the faith of
the Catholic or the Rationalist, and concede no
such claim to any religious sect or creed.
The Supreme Court of Maine, in the case of
Donohue vs. Richards (38 Maine Reports, p. 40I),
expressly rejected the idea that Christianity, before
the law, is entitled to any higher or other privileges
54 
Secular Education.
than those that are common to "the Pagan and
the Mormon, the Brahmin and the Jew, the Swedenborgian and the Buddhist, the Catholic and the
Quaker." This is simply carrying out the American theory of civil government by an impartial
application of its principles. Those who are not
willing that an American State should occupy this
position either do not understand the theory of
such a State or are not content to abide by its fundamental doctrine.
V.
SECULAR EDUCATION.
Bishop Butler remarks that "the  constitution
of human creatures, and, indeed, of all creatures
that come under our notice, is such as that they
are capable of naturally becoming qualified for states
of life for which they were once wholly unqualified."
This presents the fundamental law of human improvement. The first and for a considerable period
the only form of its action we find in the nursery,
where infant children gain that stock of information
and those mental and physical aptitudes by which
they become miniature men and women.  Speedily
they quit the nursery and enter upon the sterner
and more  methodical task of a higher culture.
What meets them in the outset is commonn   educa
55 
Religion and 1he Slale.
tion, in distinction from academic, collegiate, literary, or professional. The great mass of them
stop with this, and for their sphere it is sufficient.
A common education is such as the average man
needs for daily use in the average work of life.
More would be no disadvantage to him; yet he has
not time to obtain it, and also do the other things
which must be done according to his programme
of existence.
It is the specific function of the public school,
organized and supported by the State, to meet these
graduates from the nursery with the facilities for
a common preparatory education before they become men and women, and, indeed, before they acquire those special arts the prosecution of which is
to be the business of their after-lives. The public
school is just what its name imports-a public
school, a school to give a certain amount of education to all the children of the land that have reached
and not exceeded the appropriate age. It does not
support these children, or divorce them from home
government, or in any way supersede or disturb
the rfegime of the family-; but it does take the daily
charge of their education during a certain number
of allotted hours, and during these hours places
them under the discipline and government of the
school teacher. It thus comes to the aid of the
family, and supplies what without it in a large
number of cases would not be supplied at all.
The State, appreciating the importance of such
56 
Secular Educaion.
education to the general community, deemns it a just
and needful exercise of its power to devise a system
for this purpose, to establish school-boards, to build
school houses, to hire teachers, to adopt certain
general rules in application to the subject, and
charge the cost thereof to the people by compulsory
taxation. Most of the States of this Union have
such a system. The constitutions of some of the
States make it the duty of their respective Legislatures to establish common schools, and in no state
is the power denied to the Legislature thereof. The
system is a State system; and, however much the
General Government may be profited thereby, it
has nothing to do with it and no control over it.
Anv interference with it or attempt to regulate it
by the authority of Congress would be simply an act
of legislative usurpation, because without any warrant in the Constitution of the United States.
Whether the schools shall be what are called
"mixed schools," or separate schools, in which different races shall be educated separately, is a matter
for each State to determine in the exercise of its
own discretion.
As to the quantity and quality of the education
thus provided for, it is conceded on all hands that
at the very least, it should embrace reading, writing,
spelling, arithmetic, and grammar. These are the
branches of knowledge which the people have most
occasion to'use. To them the State may, according
to the scope of its policy, add other branches-as
57 
Re'igzion and I/e S/ale.
geography, history (especially of the United States),
natural philosophy, physiology, book-keeping, the
lower grades of mathematics, the system of American jurisprudence in its general principles, and perhaps the simpler forms of mental and moral science.
Precisely how near the common school should come
to the higher academy and the college is an interesting and important question of public policy; but
it is not the question in dispute among religious
sects.
The public school, by the very terms of both the
process and the end, naturally and necessarily involves the element of moral education. -The children form a society for the time being, and for that
time the school-house is their dwelling place. In
it they spend their school-hours, in constant intercourse with their teachers and subject to their authority. These teachers, if what they should be,
are discreet and well-behaved persons, having a
good moral character, cleanly in their habits, pure
and chaste in their language, and honest and upright in their discipline.  It is their province to
preserve school order, to subject their scholars to
wholesome restraints, to commend and encourage
them when they do well, to condemn and rebuke
them when they do wrong, to see to it that they
accomplish their task; and thus develop in this
theater a set of school virtues, in the habits of patience, diligence, industry, steadiness of application,
submission to authority, respect for superiors and
58 
Scczidar E                       5dcaioz.
for the rights of each other, cleanliness of person,
good manners, self-control, truthfulness, honesty,
and the like-habits which in kind have their basis
and sanction in our moral nature, and which, moreover, are just the habits to fit and dispose them to
act well their part in maturer years. These virtues
are State virtues, social virtues, business virtues, and
are also in constant demand for the purposes of
this life, independently of any considerations that
respect the future, and may be powerfully enforced
by arguments that relate purely to the interests
of time. They are certainly goo)d for this world,
and good for citizenship, whether there be any
hereafter or not.
Such elementary moral principles have existed
in human thought and to some extent in human
practice, wh-erever man has been found.   They attach themselves to his nature and relations.  They
are not peculiar to Christendom or Christianity;
but rather belong to man as vzaiz.  I-is depravity
has never sunk sc) low as to involve their total absence. Chiristianity fosters these virtues and begets
others of a higher grade; but it is a grave mistake
to suppose that those who administer Christianity,
repeat its precepts, teach its doctrines, and preach
its sanctions, whether in the pulpit or out of it, are
the only apostles of morality in the world, or that
they have any exclusive monopoly in this kind of
teaching. This is not true, never has been, and
never will be true.
59 
Realizgion and the Stale.
Morality, in the large sense, is a spontaneous
outgrowth of human nature and human relations,
notwithstanding the terrible depravity that has infected the race.  It is a thing of home, of the street,
of the public lecture, of business intercourse, of the
State, of the court-room, of the jury-box, of the
school-room-yea, of the ten thousand influences
that operate in the formation of the human character-as really as it is of the ministry or the Church.
The State itself is a moral teacher, by legislative
enactment and judicial administration. There is a
generic morality, whose usefulness no one questions, that comes within the province of the public
school, just as really as do the spiritualities and
higher sanctions of religion come within that of the
ministry and the'Church; and to it nobody objects,
whatever may be his religious creed. For the want
of a better term, let us call it secular morality-a
morality that has its basis in the natural dictates of
conscience and its direct sphere in the relations and
actualities of the present life. Any theological creed
that cannot see it needs reforming.  It is certainly
the kind of morality which the State is immensely
concerned to secure; which makes the orderly, the
peaceful, and law-abiding citizen; and which also
forms one of the primary objects and great blessings
of the public school.
We give this outline sketch as a definition of
what we mean by a common school seculai ec(,cation. It is not religious in the sense of relating to
6o 
Secular Educationz.
God or the duties we owe to him, or of affirming or
resting upon the authority of the Bible, or adopting
or denying any specific system of religious belief.
It is just what it is-secular education-and as such
distinct from the dogmas of religious sects, whether
true or false. It omits to consider these dogmas,
just as chemistry does not determine mathematical
questions and as political economy does not discuss
any theory in geology. It is neither Protestant nor
Catholic, heterodox nor orthodox, Christian nor
Pagan, because the matters indicated by these terms
do not come within its scope.
The public school, as the instrumentality of an
American State, whose creature it is and for whose
purposes and by whose authority it exists, is sufficiently explained and justified by being patterned
after the State. There is nothing in it more dreadful than there is in the State itself. If the people
can be content to live under the one, they ought to
be content with the other. In having no religious
system to teach and in denying no such system it
fairly represents the State-not the Christian or the
Infidel, the Protestant or the Catholic; but a State
that in its organic being has no religious creed and
no rule or form of worship. It is all that such a
State can make it in consistency with its fundamental
principles. A theocratic Stato might go further;
but a democratic State cannot, without self-contradiction.
But it is objected that this is not a complete
6I 
Rcligioi aid Ilihe Slalc.
education, since it does not include religion. Who
ever said that it was so? No system of education is
absolutely complete. Neither the pulpit nor the
Sabbath-school furnishes such a system, since neither teaches all which it is desirable to know.
Education involves a division of labor, and no system
undertakes to comprehend every possible kind of
knowledge. The incompleteness of the secular
education of the public school is no objection to it
that would not equally apply to that of the sanctuary
or the theological seminary. Though not complete,
it is certainly good as far as it goes.
Again, it is said that such a system, by not
including religious teaching, omits the most importait part of education. This is true, and equally
true of every system that does not include religion.
The transcendent importance of religious education
dues not prove it to be either necessary or wise to
combine such education at the same time and by
the same agency with every other process of educational culture. A young man may very properly
study book-keeping, without at the same time
studying the Catechism, or going through the discipline of the Sabbath-school.   We  see no just
objection to an arrangement which assigns the
teaching of arithmetic to the schoolmaster, and
leaves religious teaching to other agencies. The
schoolmaster has not the entire charge of the children, and certainly does not undertake their entire
education. The fact that he teaches what is secular
62 
Scrcuar Educalion.
does not preclude others from teaching what is distinctively religious; and it does not in any way
imply that the latter, our whole existence being
taken into the account, is not far more important
than the former. The importance of things spiritual, as compared with things temporal, supplies no
reason why the State should give its attention to the
former in the public school system that would not
be equally pertinent to show that it should give the
same attention in the Church system. This, indeed,
is one of the old arguments for Church and State
which the people of this country profess to have
outgrown. It may be (in the sequel of this discussion we expect to show the fact) that things
spiritual lie outside of State jurisdiction altogether;
and that civil government is not an agency fitted
to take charge of them, and cannot do so without
more evil than benefit. And if this be a fact, then
the importance of these things does not bring them
within the purview of the State at all.
We are again told that a school system confined
to secular instruction is "godless"  and "irreligious."   There is a sense in which this is true,
and in that sense there is nothing in the. objection.   A  merchant makes  out a bill for the
sale of goods to his customer, with not a word
about religion in it.  That is a " godless" bill, in
the negative sense. A young man attends a medical
school, and there hears nothing about theology.
That is a "godless" school, in the same sense.  So
63 
Rcligioz and Ihe'Slae.
one listens to a lecture on astronomy, in which no
reference is made  to God.   That is a "godless"
lecture. A boy works eight hours per day in a factory, in which no religious instruction is given.
That is a "godless" factory.   So a child goes to
the public school, and while there is exclusively
occupied with secular branches, and not religious
studies at all.  That is a "godless" school in the
same and in no other sense.
The impression, however, meant to be conveyed
by the terms "godless" and  "irreligious," when
applied to the secular public school, is that the
school is aiiti-religious, and must be so unless it
makes religious teaching one of its functions. In
this sense the statement is utterly and absolutely
false, unless the religion had in view be of a kind
that will not stand the test of popular enlightenment; and, if so, the sooner the world gets rid of
it the better. So far from being hostile to trze religion, the secular culture which the child gains in
the public school, the power to read and understand
the meaning of words, the discipline of the intellectual faculties, the increased grasp and activity of
mind, and the moral habits there acquired, not only
place no impediment in the way of religious teaching, but actually prepare the mind for it, by supplying important conditions, if intelligence is favorable
to religion. The drill of the day-school is a very
good drill for that of the Church and the Sabbathschool.  It is by no means certain that the latter
64 
Secular Education.
will not be more profitably and successfully performed by not being combined and mixed up with
the routine of the former. Be this as it may, the
public school is no enemy to true religion, because
teaching religion is not made one of its objects.
We see, then, nothing in a purely secular system
of education, established and conducted by the State
and modeled after the type of its own organic life,
that should create the slightest alarm in any reasonable mind. Ignorance, bigotry, sectarianism, intense
ecclesiasticism, and a domineering priestcraft may
lift up their hands in holy horror; yet a sober common sense, serenely, if not pitifully, contemplates
the spectacle. Must an American State change its
essential nature to accommodate religious fanatics?
Must it virtually become a theocracy, and that, too,
by no higher authority than that of the people, in
order not to be the enemy of God?  Is religion
such an article that it is put in jeopardy by the
acquisition of knowledge in respect to things temporal? Does it harm religion, to teach children to
read, to cipher, to reason, to practice good manners,
to deport themselves well in school hours, and submit to school discipline and authority? Does this
impair the power of the Church, or that of the family,
or interfere with the zeal and success of those who
choose to embark in the work of religious instruction
according to their own methods, at their own
charges, and in conformity with their own ideas of
truth?
5
65 
Re6liioYzn and iSe Stale.
Those who are suspicious that an educational
system which simply does izot teach religion, but
for sufficient reasons leaves it to be taught elsewhere, is and must be hostile to religion, pay a
very poor compliment to the thing they are so
anxious to preserve.   Those who think that the
public school must be "irreligious" in the bad sense
if it has not the Bible, or the Catechism, or both in
it, must also think an American State to be "irreligious" in the bad sense because it has no Bible or
Catechism in its fundamental organization, and,
hence, makes no distinction among its citizens on
any religious ground. The effectual way for them
to cure the difficulty is to reform the State, and thus
strike at the evil in its source, by producing a theological or theocratic State. Religious teaching, by
its authority, would then be in order; and so also
the destruction of individual religious liberty would
be in order. The hanging of witches would be in
order.   The  religious persecutions of the Dark
Ages would be in order. Every man ought to
thank Gocl that our political system does not provide for this kind of order.
VI.
RELIGIOUS TEACHING BY TIlE STATE.
Religion, considered as a communicable system,
consists in a body of beliefs or forms of thought
66 
Religious Teaching by ihe Stare.
whose objective center is God. As an experimental
system it consists in the emotions and affections
awakened and sustained by these ideas or beliefs.
As a practical system it consists in the embodiment
of both elements in outward action.   Thoughts
first, emotions and affections next, and outward
action last-such is the order of nature in respect
to religion. The power of the religious teacher lies
mainly, if not exclusively, in the first of these categories. He cannot awaken emotion or affection,
or influence action, except by using the ideas which
supply the occasion for both. The thoughts which
he transfers constitute his means of religiously impressing others.
Such a teacher must, of course, have something
to teach-something which he knows or thinks he
knows, at any rate, believes; and this something,
be it more or less, true or false, is his creed in regard to God, and the duties which men owe to him.
Religious teaching, measurable by no standard,
analyzable into no elements, and definable by no
quantity or quality, is merely a name. Something
must be taught, or there is no teaching. This something must be in the teacher's mind; and, in order
not to be a deceiver, he must himself believe it.
He ought to be, at least, a decent illustration of
his own creed, since otherwise he will practically
contradict it.  Irreligious, immoral, and  profane
teachers handling the things of godliness present
an incongruity which human nature declines to
67 
Religion and the Slafe.
fellowship. Hypocrites succeed only by not being
known.
If, then, the State, in its corporate capacity
and in addition to the other things which it must
do, undertakes the work of religious teaching,
whether in the public school or elsewhere, it must
comply with the conditions of the process. One
of these conditions is a creed of doctrinal beliefs
adopted by the State as the basis and guide of the
instruction to be given under its patronage and
direction. A State without a creed, seeking to do
the work which demands a creed, is an absurdity.
What shall the creed be?  The State is the only
party that can authoritatively answer this question.
It so happens that the term religion is a word of
many meanings as to the ideas indicated by it.
The State must, hence, give a specific import to the
term, and thus define its own religion;  and, in
order not to be a trifler, it must fix upon that religion which it holds to be,true, and upon this bestow
its sanction. The State surely should not propagate
heresy; and, since there are many heresies in
the world, it must separate the wheat from the
chaff, rejecting the latter and using only the former
in its educational system. Let us have sound doctrine from the lips of the State through its legally
authorized teacher.
If, for example, the theology of the Bible, taken
as a whole, be that which the State adopts, then let
its ideas be made a living and practical power in its
68 
Religious Teachitzg bjy tZe Slale.
educational system. Let the work be done effectually. And, to this end, let the legal agent of the
State be commanded to teach the religion of the
State as found in t4ie Bible; to catechise the children in the name and by the authority of the State;
and employ all the forces of the living voice and
the active mind to impress its ideas upon their
hearts. There surely can be no just objection to
this course, provided the work belongs to the
State.   Never mind the disputes among religious
sects, since the Bible, being adopted by the State,
is the State book on the subject of religion, and to
it on this subject the infallible rule of State faith and
State practice. The State, for its own purposes, has
decided that this book contains the true religion,
and also what version is the true translation of the
original Scriptures. And now, having settled these
points, it should not hesitate to wield the power of
the book to the fullest extent. To limit the teacher
to the mere reading of the Bible, without comment
and without any explanation, is to aim at the minimum rather than the maximum of power. No such
practice is adopted in teaching arithmetic or grammar; and no such practice should be adopted in
teaching religion, provided it be the purpose of the
State to do the work in the best manner. If the
work is to be done at all, let it be well done.
And then again, the selection of proper teachers
to do this work is quite as important as the creed
to be taught. These teachers should be orthodox
69 
Religion and ithe S/ale.
according to the standards of the State, not only
well versed in the secular branches of knowledge,
but competent teachers, and at least respectable
examples of the religion of the State which they are
expected to teach. And, to guard against any mistake on this point, they should be thoroughly examined by a board of State theologians, not only as
to their general competency and character, but also
as to their religious and doctrinal views, especially
as to their understanding and acceptance of the
religious creed of the State, and their aptness to
explain and apply this creed; and no one should
be appointed to the service who upon such an examination is found deficient.   No  ecclesiastical
body will put its seal upon a candidate for the
ministry whose  theology does not substantially
accord with its own. And surely the State can follow no better rule in appointing its teachers of religion. If the religion of the State be Protestantism
in its generic sense, or in any of its sectarian senses,
then let the teachers be selected in accordance
with this idea. So if the religion of the State be
Roman Catholicism, then Roman Catholics, and
these only, are the proper persons to be appointed.
Dissenters who form the minority are not to be
heard or considered in this matter. Indeed, they
ought not to exist at all; and if they will exist,
the best that they can expect is mere toleration,
provided they are peaceable. The State in its sovereign capacity has a will and a religion of its own,
70 
ReZligious Teachzizg by the Slale.
and with both the majority coincides. The minority may be taxed to help pay expenses; but its
views must bow to those of the majority, both as
to the doctrines taught and as to the persons teaching them. The minority, of course, cannot expect
to furnish the teachers, any more than a defeated political party can expect offices. Dissenters are not
orthodox; and this is a good reason why they should
not be trusted with the theology of the State, in
the pulpit, in the public school, or anywhere else.
There is not the slightest objection to these
procedures on the part of the State, provided always
that the work assumed to be undertaken by it,
comes within its province. To treat the idea of
religious teaching in its school system as one of
great fmportance; to magnify it in sermons, essays,
editorials, and speeches; then in practice to shrink
from its vigorous application, and shear it down to
the smallest significance for the sake of dodging
the jealousies of religious sects; thus to make but
little of the idea except in public discussions about
it: this is not at all our notion of teaching religion
by State authority. If we are to have the thing,
then let us have it, with the right sort of doctrines,
with the right sort of teachers, with no heretics
among them, and in a manner and to a degree
worthy of the State and worthy of the thing itself.
Let the State put honor upon the office whose
duties it assumes and professes to perform. Ecclesiastical bodies, from the local church up to the
7 I 
Rel7z'iOl z alcd /Ie Stare.
highest judicatory, are wont to be careful and circumspect as to doctrines and teachers; and for
this they are to be commended. Should not the
State, having a theological doctrine for its educational system, be equally careful and circumspect?
Indifferentism poorly becomes a State that has a
theological creed to administer and propagate; and
as a matter of history, it has seldom been chargeable with this kind of delinquency.
These statements, the reader may be assured,
are not made for mere sarcasm. We write precisely as we think. Concede the principle that
religion, either as an end or a means, falls properly
within the administrative agency of the State, and
the inference is irresistible that the State must
have a religion to administer; that it must determine what that religion shall be; and that it must
and should appoint suitable persons to do the executive part of the work. We have no difficulty
with the natural and necessary modes of making
the principle effective-none whatever-since they
result from it by inevitable sequence. Nor have
we any scruples about the so-called rights of dissentient minorities, since there are no such rights,
provided the principle be a sound one. They have
no right to be talking about the rights of conscience against the just exercise of the powers of
the State. They are by the very terms of the case
mere grumblers. TIhe administration of religion
being one of the functions of the State, then the
72 
Rehlgious Teaching by the State.
State must, of course, follow its own conscience,
just as it does when it hangs a murderer; and the
individual who, on the score of his private conscience, gets in the way of the State conscience,
must get out of the way or be crushed by it. He has
no right to arrest or control the action of the State
conscience with his private judgment, since the
former is only exercising its legitimate powers and
discharging its duty. It is a mere farce to talk
about the rights of an individual and unofficial conscience against the operations of a government
that is acting within the scope of its appropriate
powers. There can be no such rights in consistency with the existence of government. Where a
government has jurisdiction it must judge of its
own duties. Grant that religion comes within this
jurisdiction, and that is the end of the question.
The procedures in asserting and exercising it follow as a matter of course.
Our great difficulty with the doctrine of those
who demand that the State shall become a religious
propagandist in its school system is with the principle that lies at its bottom, and not at all with the
details of its execution, however stringent or seemingly severe, provided they are necessary to the
end. Their doctrine logically commits them to
the principle of State jurisdiction and State duties
in respect to things spiritual; and if they refuse to
accept the consequences, no matter whether they
are Protestants or Catholics, then they are afraid
73 
-Rel~/a-iof  and M/ie Stale.
of their own creed. If, on the other hand, they
carry out the principle and make it a living and
operative power, and not a mere sham for the sake
of appearances, then, alas! for the real rights of
conscience and the liberties of men, they land us,
body and soul, into the system of State rclijiolznamely, religion defined by the State, taught by the
State, supported as a charge upon its treasury, and
if necessary, penally enforced by the State. This
is all very well for t/cmn, since they always assume
their religion and that of the State to be identical.
How would it be if the fact were just the reverse?
This question bigotry, whether in a Catholic or a
Protestant bosom, seldom has time to consider.
When Protestant and Puritan New England hung
witches and persecuted Quakers, and when Roger
Williams was banished from his home on pain of
death, things moved along very finely for the religionists in power; but not as smoothly with the
victims of their mistaken and maddened zeal. The
principle upon which these religionists acted, being
conceded and developed, with no limitations except
those furnished by itself, sets the State to doing a
thing which does not belong to it and which, if it
be true to its own position, will be sure to make it
a persecuting power.
Macaulay well says that "the experience of
many ages proves that men may be ready to fight
to the death and to persecute without pity for a religion whose creed they do not understand, and
-74 
Rehikious Teachizg by l?ae Sal7e.
whose precepts they habitually disobey." Many a
dark chapter in history confirms the truth of this
remark. The moment religion is in any way armed
with the civil power the fatal step is taken.
We deny the rightfulness of the power in this connection by entering a universal demurrer to its action.
We deny that the State has the right to tax the
Jew to propagate Christianity, or to make Infidels
help to liquidate the expense account of a religion
which they repudiate. We place this denial on the
broad ground that religion in itself, in its very
nature, in the processes of its culture and promotion, in its relations to God and the interests of
another life, lies above and beyond the jurisdiction
of the State, unless God himself has constituted
that State.  The State is not an exhorter or a persuader or a debating club, but a positive law power
for secularpurposes; and, hence, when it attempts to
administer religion it must of necessity give to it the
law force, deciding what religion is true and by what
methods it sh all be promoted. There is no escape from
this result if we admit the principle from which it
springs; and, the principle being true, then the result
is right. If religious teaching is really one of the
proper functions of the State, then all that is necessary to the end, of which the State itself must be
the judge, is included therein. Moreover, the implications of the function  need only to be fully
drawn out to cover the whole ground of State religion, with all its ways and means.
75 
Religion and thAe State.
To the authority of the State when acting within
its appropriate sphere every citizen should cheerfully bow, supporting it, if necessary, by the sword.
If it be a democratic State, the will of the majority,
legally expressed, should be the rule for the whole.
But when the State engages in the work of religious
teaching, whether in the public school or elsewhere,
and does the things which must be done to realize
the end, then it not only disowns the elementary
principles of a democratic government. but is guilty
of a legal usurpation, against which every lover of
liberty, be he saint or sinner, Protestant or Catholic,
ought to protest in thunder-notes. Not a few Protestants in dealing with the School question, and especially in their zeal to resist the demands of the
Catholics, have reasoned as if our American State
Governments were Protestant State Governments;
as if Protestantism were a part of their public law;
and, hence, as if Protestants had some rights which
are not common to all the people. We entirely
sympathize with them in their opposition to the
Catholic demand; but we utterly dissent from the
political heresies with which they seek to sustain it.
We believe them to be radically wrong in asking
the State to assign any religious work to the public
school system. If it does not make a sham of the
work by the manner of its performance, it will be
sure to do injustice to somebody.
76 
Bible in Public Schools.
VII.
THE BIBLE IN THE PUBLIC SCHOOLS.
The question of the Bible in the public schools,
in order to be properly understood and discussed,
needs explanation. What are these schools? They
are not at all private institutions; but wholly the
creatures of State authority, and, as such, supported
by  general  taxation.   The  property,  including
school-houses and their sites and the fixtures and
appurtenances thereof, is public property. Schoolboards and trustees and teachers are officers, provided for by law and subject to its regulations. The
whole machinery, from beginning to end, is exclusively a system of State machinery for educational
purposes; not the less so because local divisions of
the State-as cities, villages, and school-districtsdirectly work it. These divisions are only parts of
the State, acting by its authority and under its
supervisory control. What they do the State does
through them.
The term Bible, as used in  connection with
these schools, does not mean the Sacred Scriptures
of the Old and New Testament in the form of
Hebrew and Greek, since these languages are unintelligible to the great mass of the people. The
Bible, or the book involved in this discussion, is
77 
Religion and the State.
simply a version of these Scriptures. Two such
versions are in use-the one known as King
James's version, used by Protestants, and, hence,
sometimes designated as the Protestant Bible; the
other being the Douay version, and used by Catholics, and, hence, called the Catholic Bible. Each
of these parties claims for the Bible it uses the
greatest perfection, and that the Bible of the other
does not, in several important respects, correctly
represent the  original  Scriptures.   The  consequence is that the Bible of each is a sectarian book
to the other, as really as is the Westminster Confession of Faith such a book between the Presbyterian and the Methodist.
Both versions- that of King  James  and the
Douay version-claim to teach a supernatural religious system given to the world by the inspiration
of God, hence, bearing the stamp of his authority
and having for its object the instruction and salvation of sinners. These features mark the original Scriptures, and they fully appear in both of
these versions.  The distinctive characteristic of
each is that of a relizious book, demanding human
belief and obedience upon the warrant of God.
No matter which version we use, and no matter
whether we accept or reject its authority or that of
the Scriptures of which it is a translation, still we
cannot fail to recognize the fact that religion, and not
science, constitutes the subject treated of.  By re.
ligion we mean a system of truths purporting to be
78 
Bible it Public Schools.
supernaturally given to men, in which God is revealed to them and their duties to him made known,
and in accordance with which he will judge them
and appoint their destiny in the final day. We
here raise no question as to the truth of what is
thus alleged, since the argument in hand does not
turn at all upon the answer. We believe in the
truth of the system; yet we should reason in the
same way if we did not thus believe.
- This explanation of the public school as a czivt
institution of the State, and of the Bible as a
religious book, shows that, if the State is to employ
the latter in conducting the former, it has several
very grave questions to settle. First of all, it must
decide whether it will do so at all, and in deciding
this point it must, except upon a supposition that
will be specified in the sequel, determine whether
it will undertake to be a propagator of religion at
the expense of the general public. If it decides
this question in the affirmative, then it must also
determine what form of religion it will propagate.
Shall it be Roman Catholicism, and for this purpose shall the Douay version or the Catholic Bible
be used? No, says the Protestant, declaring that
he does not wish to have his children taught in or
disposed toward that system of faith, and that he
has no idea of being taxed for its support. Very
well.  Shall it be Protestantism, and shall Ki?,4
James's version or the Protestant Bible be the book
used? No, says the Catholic, affirming with equal
79 
Religio  and Ize S/ace.
emphasis his rights as against any such instruction.
It seems then that these parties cannot agree as to
the Bible to be used, to say nothing now about the
manner of the use. Each wants his own Bibie,
and neither wants that of the other.
Shall this difficulty be solved by  taking the
ground that the religion to be taught shall be Pro testantism when and where Protestants are in the
majority? Yes, say a certain class of Protestants,
always assuming Protestants to be the majority,
and either wittingly or unwittingly committing
themselves to a principle which would make the
religion of the public school Catholicism, or Mor monism, or Judaism when and where Catholics, or
Mormons, or Jews form the majority. If the ma jority doctrine is good for Protestants in settling
the kind of religion which the State shall propagate
at the expense of the whole when Protestants are
in the majority, then it is just as good for these
other parties when they happen to be the majority.
Is not this the very principle that has been adopted
by kings and priests and popes in forcing their own
religion upon the minority? Did not our Pilgrim
Fathers quit their English homes, cross the ocean,
and come to this then western wilderness in order
to escape from the tyranny of the religion of the
majority? If the State is to determine the religious
.mestion by the number of persons who are the
adherents of a specific religion and put its stamp
upon the religion of the majority, then its ground
80 
Bible in Public Schools.
is that on which all State religions have rested, and
under the color of which religious proscription and
persecution have been perpetrated and justified.
The religion of the majority has never been per secuted, and in the nature of things never can be.
Persecution strikes at the religion of the minority.
We thus see that this question of using the
Bible in the public schools involves very important
matters for the State to decide; that it cannot decide affirmatively to use the Bible without deciding
what Bible it will use and, so far, what religion it will
propagate; that it cannot satisfy all the parties that
are disputing over this question; and that it cannot
adopt the religion of the majority as its rule.without accepting a principle which has, in all ages, been
the enemy of religious  liberty.   We  more than
suspect that the State had better say to all these
parties that it is a political and not a religious
organization, and that the public school is simply a
civil institution, for certain temporal purposes; and,
hence, that it cannot be used as the instrument of
any religious propagandism. We do not see what
else an American State can say without contradicting the fundamental theory of its own existence.
The State, in taking this ground, which is the shortest and simplest road out of the difficulty, disposes
of the whole question by its own absolute neutrality
on the subject of religion, and its refusal to be a party to any of the religious creeds of its citizens.  It
6
8I 
Re82piolz and tle State.
simply lets these creeds alone, neither patronizing
nor persecuting them.
If, however, the State decides to have the Bible
in the public schools, and decides what Bible to
have there, then another series of questions relating
to the mnaizier and exteizt of its use at once arises
for settlement. To put the Bible there in the merely physical sense would be a farce.  What shall be
done with the book? This question admits of three
answers.
The first answer proposes that the Bible shall
be used as a conommo readizg book, for the single purpose of teaching the art of reading-just as Hesiod,
Homer, and Virgil are used as college classics, to
teach the Greek and Latin languages, or as the
spelling-book is used in the public school to teach
the art of spelling. Such a use would have no reference to the religion to be taught; and, hence, it
would not involve the question of religion at all. It
would, however, raise the inquiry whether the Bible,
taken as a whole, and used simply for the purpose
of discipline in the art of reading, is a book well
suited to this end. We frankly say that we think
not. It was not written to answer any such end.
Many portions of it would be eminently unsuitable;
and those parts most appropriate would have to be
selected, and the State would have to make the selection by charging the school teacher with this
duty, or by appointing a committee for the purpose.
Moreover, this use of the Bible would be an act of
82
I 
,Bzile i11 Public Schools.
the State justly offensive to those who regard it as
a divine revelation. It would not be a proper use,
since it would sink the book to the level of the
grammar or the spelling-book; and, by making it
a common book used for a merely secular end, dispossess it of its distinctively sacred character.  It
would not impress the mind with the divine authority of the book, without a sense of which nearly all
its power is lost. We can hardly think that any
Christian would insist that the Bible shall be in the
public school merely as a reading classic. This,
surely, is not the theory upon which the newspapers and the ministry have been discussing the question of the Bible in the public schools.
A second answer proposes that the Bible, as such
shall not be used at all; but that a selection of passages therefrom shall be made, and that a portion
thereof shall be read in the public schools as a daily
exercise, or at stated periods; for moral and religious
purposes, either with or without other religious services. This excludes a part of the Bible and includes a part, and employs the included part as the
means of religious instruction, and of course commits the State in the public school to this work.
Several questions here arise.  By what authority
shall the selection be made, and from which of the
two versions shall it be made? What part of the
Bible shall be thus selected? How far shall the selection embrace the peculiar doctrines of the Bible
in relation to the person and work of Christ? Shall
83 
Religion and the State.
we have the Christian morals of the Bible without
the Christian motives furnished by the doctrines,
or shall we have the morals and the motives together; and if the latter, then shall we have the whole
system of doctrines, or only a part of it, and if merely a part, then what part? If it be said that such
parts should be selected as embody the principles
of our common Christianity, which all Christian
sects are agreed in accepting, this only creates the
necessity for further questions. What are the principles of our common Christianity upon which these
sects are agreed? What passages of the Bible contain these principles and nothing else? How many
sects are included in these Christian sects?  Are
the Universalists, the Unitarians, and the Quakers
included? What is to be done with the opinions
and preferences of those who do not come within
the limits of these sects, yet who, being citizens and
taxpayers, have some rights in the public school?
Upon all these points the State must act, provided it attempts to put in practice the selection
theory. It must affirmatively settle these two propositions: first, that the public school shall, upon
its authority, be in part a religious institution on
the basis of the Bible; secondly, that the religion
there taught shall be of a defined quantity and quality, indicated by the selection. How much would
this come short of State religion? We say State
religion, because no such system can be adopted
without or against the authority of the State, and
84 
Bibie iin Public Schools.
because no such system can be practiced and not
be a State religion.
The third answer is that a portion of the Bible,
to be selected by the teacher, should by him be read,
"without note or comment" as a daily opening or
closing exercise, either with or without prayer and
singing. This in theory, whatever might be the practical result, would be a process of religious worship and  instruction.   It would  conform to the
usages of the country in respect to public worship.
When Christians assemble for this purpose the devout reading of the Bible is a part of their worship.
Singing and public prayer have the same character.
Those Protestants who insist upon this use of the
Bible in the public school are content with it, provided always that King James's version be the Bible
used, and that it be read without note or comment.
A great many who are not Protestants are not thus
content; and many who are Protestants think it not
only inexpedient, but practically unjust to a portion
of the community.
The one feature marking this use of the Bible we
have in the fact that it transfers to the public school,
on a small scale and for a short period each day, a
part of the ordinary worship of Christians on the
Sabbath.   Who  makes  the  transfer?   Not the
teacher who reads the Bible and conducts the worship, since he is a subordinate officer; not the
Board of Education, except as exercising powers bestowed by the State; but the State itself, in its sov
85 
Religion and lie Stage.
ereign capacity.   The State governs  the public
school by laws enacted in regard to it. According
to this theory, it makes religion a part of its school
system, derives that religion from a book called the
Bible, and then taxes all the people for the support
of this public-school State religion. The direct
agency may be by boards of education; but the
ultimate authority is that of the State itself.  It establishes a religious system in its public school, and
makes that system Christian in its generic character,
and Protestant in its specific type, if King James's
version be the book used. And this is just what
those Protestants demand who insist that the Bible
-namely, King James's version-shall be thus used
by a democratic State.
The result, then, that we reach from this analysis
of the question is simply this:-that, by using the
Bible in the public schools, unless the use be merely that of a reading-book, an American State,
founded on the principle of the strictest impartiality towards all religious sects and of making no
discrimination between them, undertakes to create
and does create a religious establishment in these
schools at the public expense, and after the Christian model, either Protestant or Catholic in its
specific type, and to this end affirmatively determines all the questions and institutes all the agencies
necessary to make it a fact. This, in plain English,
is just what the proposition means, and what those
demand who advocate it.  The public school is what
86 
Bible in Public Schools.
it is by State authority; and so far as religion is
there, whether as a matter of instruction, or worship, or both, it is there by this authority, and there
established by being included in a State school system. We do not overstate the proposition, but
simply state it according to the fact.
Now, whether this is a good or a bad system,
congruous with the nature of an American State or
contradictory thereto, just to all the people or grossly unjust to a portion of them, is a question that
cannot be wisely settled by one's prejudices, and
surely ought not to be settled by furious clamor,
either in the pulpit or out of it. It is a question
that cannot be correctly answered without considering the ends and province of civil government,
and especially the nature of the civil governments
established in this country. This series of articles
on the School question, of which the present one is
the seventh, has been gradually advancing to the
point where these governmental questions come to
the front, and demand a hearing. He who attempts
to solve the School problem as a mnere ecclesiastic,
fired only by religious and perhaps largely by Church
zeal, may as well stop before he begins. His vision
is not broad enough clearly to apprehend, or thoroughly discuss, the real points that lie in the prob
lem.
87 
Religio;z and the Slate.
THE GENERAL ARGUMENT.
VIII.
THE UNCHRISTIAN METHOD.
It is a rule, alike of common sense and Christian
morality, that no end, however good in itself, should
be sought by unlawful and improper means. We
are not to do evil that good may come. In obeying
one law we are not to violate another. Christianity
neither needs nor approves of any unchristian
methods for its propagation. It permits no one to
contradict any of its own principles on the theory
of serving its interests, or making it the minister of
human benefits. It is, hence, pertinent to inquire
whether those who demand that our public school
system shall be used as one of the means for teaching and propagating Christianity, and who to this
end insist that the Bible shall be read, and other religious servrces shall be had in the public schools,
are not amenable to the charge of seeking a good
end in an improper manner. It will be well for
them not to assume that they are infallible, or the
only persons who have any genuine religious zeal,
who believe and reverence the Bible, or upon whom
God has placed the seal of his favor. It may be
that they are entirely wrong as to their incet,od, and
that the wrong involves a trespass upon the rights
of others; and whether such is the fact or not, is
certainly a fair subject for honest inquiry.
88 
The Unchris/liaiz Method.
We propose, then, to consider this point, and for
this purpose quote, as follows, the language of Judge
Welch, in delivering the opinion of the Supreme
Court of Ohio in the case of The Board of Education of Cincinnati vs. Minor and Others (23 Ohio
State Reports, Granger, pp. 249, 250):
"If it be true that our law enjoins the teaching
of the Christian religion in the schools, surely then
all the teachers should be Christians. Were I such
a teacher, while I should instruct the pupils that the
Christian religion was true and all other religions
false, I should tell them that the law itself was an
uichristiian law.  One of my  first lessons to the
pupils would show it to be unchristian. That lesson would be:'Whatsoever ye would that men
should-do to you, do ye even so to them, for this is
the law and the Prophets.'   I could not look the
veriest infidel or heathen in the face and say that
such a law was just or that it was a fair specimen
of Christian republicanism. I should have to tell
him that it was an outgrowth of false Christianity
and not one of the lights which Christians are commanded to shed upon an unbelieving world."
In another part of the opinion (p. 253), Judge
Welch said:   "Government is an organization for particular
purposes. It is not almighty, and we are not to
look to it for everything. The great bulk of human
affairs and human interests is left by any free government to individual enterprise and individual
89
i 
Religion and the Stale.
action. Religion is eminently one of these interests, lying outside the true and legitimate province
of government."
In another part of the opinion (p. 248), the Judge
also said:   "Lcgal Christianity is a solecism; a contradiction
of terms. When Christianity asks the aid of government beyond mere ipartialprotection it disowns itself.  Its essential interests lie beyond the
reach and range of human governments. United
with government religion never rises above the
merest superstition; united with religion government never rises above the merest despotism; and
all history shows us that the more widely and completely they are separated the better it is for both."
In still another portion of the same opinion (p.
249), the Judge further said:   "Properly speaking, there is no such thing as
'religion of State.' What we mean by that phrase
is the religion of some individual or set of individuals, taught and enforced by the State. The State
can have no religious opinions; and if it undertakes
to enforce the teaching of such opinions, they must
be the opinions of some natural person or class of
persons."
It is not at all surprising that the Court, holding
these views of government considered in relation
to religion, should have spoken of the enforced teaching of Christianity in the public schools as being
"'uizchristiai "-yea, as a method of teaching alike
9o 
The Unchristlian Metlhod.
inconsistent with the system itself and the legitimate province of civil government. The Court
decided that Ohio had no such "unchristian law,"
and that the Board of Education of Cincinnati,
when resolving to discontinue "religious instructioni and the reading of religious books, including
the Holy Bible," in the public schools of that city,
was simply exercising a power vested in the board
by law.'
It is well to keep in mind in all our reasoning
upon the School question that the State, as a political organization, has never been trusted by the
Divine Founder of Christianity with the duty of its
propagation.  He never said to the State: "Go ye
into all the world and preach the Gospel," or "Lo!
I am -with you alway, even unto the end of the
world." He said these things to his apostles, and
to those who through them should believe on his
nanme.  The apostleship of his Word he located in
his disciples and followers, and not in kings, governors, rulers, senators, or legislative assemblies.
To the former he gave his commission, and on them
imposed its duties, forewarning them of persecutions for his name's sake, and promising to be their
helper. An apostle sums up the whole idea when
he speaks of the Church-the company of believers
and confessors of the faith-as the pillar and
ground of the truth. Jesus presented the same
thought when speaking of his disciples as the light
of the world, and commandiog them to let their
9I 
Religion and Die State.
light so shine before men that they might see their
good works and glorify their Father who is in
Heaven.
What, then, according to the express plan of
Christ, has the State to do with teaching or propagating his religion? Absolutely nothing'whatever.
It has no commission or warrant to touch the work
at all. The duty is assigned to another and different agency. It is, hence, true, as said by Judge
Welch, that a law enjoining the teaching of Christianity in the public schools, which are purely State
institutions, sustained by general taxation and governed by the civil power, would be "an unchriistian
law"-unchristian in the sense of changing and
contravening the policy established by the Son of
God himself. It would employ the State power for
religious and spiritual purposes; and this certainly
was not the theory of Christ. It would be antiChristian; and, hence, those who propose to serve
God in this way are, in our judgment, gravely mistakened in their method. Their plan is to call into
action a power that has no commission to do the
work, and never attempted to do it without far
more damage than benefit.
This, however, is not the whole case, since the
teaching of Christianity or any other religion by
the State, and, of course, at the public expense, in
a community of diverse religious beliefs as is the
fact with the American people, is "unchristian" in
the sense of violating the golden rule of equal and
92 
The Uichrisliianz Method.
impartial justice, as laid down by Jesus himself;
and in this sense it becomes a positive wrong, if
injustice be a wrong. Let us see how this matter
stands in a practical operation.
The teaching of Christianity in the public
schools, for example, in the Protestant form, must
be paid for by taxation, and all the people who have
any taxable property must share in the burden.
Now, are they all Christians and all Protestants?
By no means. There is a great diversity among
them as to their religious opinions; and yet they
are all citizens, and, as to their citizenship and their
respective religious faiths, they-are, by the guaranteed rights of our political system, and by the rule
of right reason, just equal before the laws.   No
one class tolerates all the rest, since they are equals.
Is it, then, just for the State in its public schools to
extend the hand of favoritism to Protestantism and
Protestants, and tax Catholics, Jews, Infidels, Rationalists, Swedenborgians, etc., to pay the expenses
thereof? Others may answer this question as they
think best; yet we pronounce it grossly unjust. It
makes a distinction by State' authority which cannot be made without violating the rule of equal justice; and when the Catholic, or the Jew, or the Infidel protests against the distinction, he has justice
on his side.  He  may be voted down, but he cannot be reasoned down.   No amount of zeal can
sanctify the injustice or make it anything but injustice.
93 
R-eigioi, an zd the State.
The same injustice in kind would be perpetrated if Catholicism or Judaism were thus taught in
the public schools. The only difference would be
that Protestants would be among the parties suffering the wrong. There is no doubt that they would
very readily perceive it, and loudly declaim against
it, however willing some of them may be to have
the injustice inflicted upon others. No one who
will look at this question candidly can maintain
that any religious regime in the public school can
be put into practice in this country of diverse religious beliefs without violating the rule that "whatsoever things ye would that men should do to you,
do ye even so to them." The Saviour himself, by
the plain meaning of the rule, stamps the practice
as wrong. It is not simply a mistake. It is more.
It is a moral zv oiizg, because it is not equal justice
to the rights of all the people; and because the
State makes a discrimination as to the religious
faith of its citizens and taxes all to support one of
the forms of such faith. It is Church and State in
the public school.
But should not the majority, either in the school
district or in the State, settle the question as to
w/ia form of religion shall be taught in the public
school? We shall have occasion in another connection to consider this majority doctrine; yet
here we say emphatically: No!  The rule of the
majority within the limits of those objects which
properly come under the jurisdiction of civil gov
94 
The Unchrisliaf n M/eliod.
ernment is a good rule; but, when civil government
exceeds those limits by undertaking to do things in
respect to which it has no rightful jurisdiction, then
the rule ceases to be operative. Majorities may
then become the oppressors of minorities; and
this is precisely what happens when the majority,
whether in a State, a city, or school district, imposes
upon a minority the legal necessity of contributing to the support of a religion from which it dissents. There are no rights more sacred than those
which relate to one's religious faith; and there is
no injustice more abominable than that of compelling a man to aid in the support or propagation of
a religious system which he regards as false.  It is
the very climax of legal tyranny. The object of
the various clauses in regard to the rights of a religious conscience found in the bills of rights of
the several State constitutions is to protect the minority in the matter of religion. They are designed
to take this one subject out from the jurisdiction
of government entirely, and leave it to individual
conviction and choice, with simply an equal and
impartial protection of  the  rights  of all. WVe,
hence, utterly reject the majority rule as a rule for
civil government in relation to religion. It has no
application to the question and  can never cancel
the wrong of compelling the minority to pay taxes
for the propagation of the religion of the majority.
\Ve are, however, reminded by Catholics,. and
also by some Protestants, that a public school in
95 
Reli~gion and the Slate.
which religion, and that too, of the kind which they
approve is not taught at al], is an offense to their
consciences, and hence, an invasion of their religious rights. These parties do not complain of
what such a school positively is or of the secular
knowledge which it imparts, since this is certainly
good as far as it goes; but they do complain that
it does not go far enough.  It is defective because
it does not, by including religion, sweep the whole
circle of education. \Ve submit the following answer to this sort of religious conscience, if such it
may be called:   I. A public school in which no religion is
taught invades the religious rights of nobody. It
taxes no one to teach religion. It simply lets this
one subject entirely alone, and justifies its existence
and support by general taxation on grounds which
have no reference to religion, and in respect to
which all have a common interest, however widely
they may differ in their religious opinions.
2. This so-called conscience assumes that it is
the province and duty of the State in its public
school, if it sees fit to establish one, to discharge
the religious duty which the constitution of things
and the law of Christianity assigns to the family
and the Church.  Now, where did these Catholics
or these Protestants learn that any such duty is imposed on the State?  Certainly not in the Bible,
and certainly not out of it by right reason. Unfortunately for the assumption, the State is neither
96 
The Unchristianii Melhod.
a father nor a mother, and is not charged with the
special duties of either. The State is not a Church
or, at least, should not be, and has no apostolic
commission to fulfil. Civil government holds no
such relation to God or man that the propagation
of religion, whether among the young or the old,
is one of its duties. That is, indeed, a very singu lar conscience which asserts a personal grievance
and injustice because the state does not do what
does not belong to it.
3. This conscience, when sifted to the bottom, is
merely an opinion that the State should have religious teaching in its public school, and clearly involves no right of conscience that such teaching
should be there. We do not deny the right of any
man to have such an opinion; yet when he presents the omission of the State to undertake the
work of religious teaching as a violation of his
rights of conscience he assumes that his conscience
is the proper guide for determining the positive duties of the State. How much this comes short of
sheer stupidity we leave the reader to judge.
4. What the State does by secular education
for the common good of the whole body politic,
and, hence, by general taxation of the whole, in no
way interferes with religious education by such
agencies as parents or the Church may choose to
employ. It simply does not enter this field; yet
it does not shut it up against others, or control it
in any way. Religious education is to the State
7
97 
.Religionz acnd Ithe S/ale.
unoccupied territory, left entirely open to all who
choose to enter it. The territory which it does
occupy comes within the scope of its powers; and
the occupancy furnishes sufficient advantages to
the whole people to justify it at -the public expense.
5. If parents, for religious or other reasons,
do not choose to use the advantages for a secular
education afforded by the State, then this is and
must be their own matter. The State, by the very
terms of the case, puts nothing into the. public
school in conflict with any right of religious conscience which they possess; and if, nevertheless,
they do not like the school, then they are at liberty
to dislike it, and, if they thus choose, to educate
their children elsewhere, at their own charges.
This is their privilege; and if they avail themselves
of it, then so be it. Let them, however, not stultify common sense by saying that their religious
rights are outraged, because they are taxed to
support a public school whose single object is
scuclar education-an object in which all the people, including themselves, have a common interest.
The conclusion that we reach from this examination of the question is this: A public school
system planned on the principle of secular education, and, hence, excluding all religious teaching
and religious worship is, in a community indiscriminately taxed for its support and in which
there are diverse forms of religious faith, the only
State school system that is just, that does not
98 
Governmener/al yurisdiclion.
violate the fundamental theory of the Saviour in
respect to the propagation of his Gospel, and that
accords with the golden rule of doing to others as
we would have them do to us. It respects the
rights of all, and commits no encroachment upon
the rights of anybody.  Accepting this conclusion,
we necessarily accept  another,  which is this:
those who demand religious teaching and religious
worship in the public schools of this country are
justly amendable to the charge of seeking a good
end by an unchristian method. We bring this
charge not against their motives, but against what
they propose.
IX.
GOVERNMENTAL JURISDICTION.
Jurisdiction is a law term used to denote the
idea of governmental authority over persons and
things within the scope of its action.  No such
authority is absolutely universal as to the persons
subject to it, or as to the territory over which it
extends, or as to the matters which it embraces.
Many things are so entirely private in their nature
or so little concern the general public that they
are by universal consent left exclusively to individual choice, without any attempt to regulate
-a9
ee. e.
~* v v~       
Religion and the State.
them by law. Governments exist for particular
purposes, which by no means include the entire
bulk of human affairs.
How, then, is it with religion considered as a
faith or a worship, as a spiritual exercise or a
social expression thereof? Does it come within
the rightful jurisdiction of human government?
Does it properly belong to any such government
to regulate, administer, propagate, or in any way
take charge of the religion of the people? The
answer given by history is that most of the governments of the world have assumed that religion lies
within the scope of their regulating and administrative agency. The legislation consequent upon
the assumption, whether more or less liberal, or
more or less oppressive, will be according to the
general civilization of the people. Pains and
penalties, discriminations on religious grounds,
special immunities granted or denied on these
grounds, compulsory taxation for the support and
propagation of religion, the appointment and
control of religious teachers, religious tests as
qualifications for civil office or to testify in a court
of justice-these are among the things which the
assumption carries along with it, and by which it
makes itself operative. The principle is the same
in all cases, varying only in the extent to which it
is applied.
It seems not a little strange that a principle
fraught with so much evil and so essentially false,
IO
.1.,:  I9        n,   
:  * -.    *''  -    -  
Governmental yurisdiction.
as well as absurd, should have lasted so long and
spread so extensively among the nations of the
earth, and that even now the discovery of
its falseness should be limited to so small a
portion of the human family. Its victims usually
perceive the wrong when they feel its burden;
yet it has often happened, as was the case
with our Puritan Fathers, that they no sooner
cease to be victims than they are ready to become
oppressors-forgetting,  "as victors, the lessons
which as victims they had learned." One would
think that so simple a proposition as that which
affirms the existence and inalienable character of
the rights of a religious conscience as above and
beyond all human authority ought to have been
among the earliest and most widely-extended discoveries of the race. The fact, however, is sadly
the reverse. Of all the forms of wrong which
men have suffered from each other, none have
been less reasonable or more merciless and unrelenting than those of religious zeal armed with
the civil power. There is no darker chapter in the
history of governments than that which chronicles
their misdeeds in the attempt to administer and
propagate religion. The attempt is essentially a
horrible human tyranny begun, and every step of
the process is that tyranny continued.
The doctrine of a personal God, related to men
as their Creator and Preserver, being received into
the mind as the objective basis of religion, natu
IOI 
Re/ligion ad o lie S/atle.
rally connects itself with the idea of this God as a
supreme lawgiver, to whose authority we are directly subject and from whose administrative control
no power can release us. His will, no matter how
ascertained is the final law. Peter and John were
simply true to universal thought when they said:
"We ought to obey God rather than men." Daniel
was true to the same thought when he disregarded
the edict of a king rather than violate that of his
God. The martyrs who took joyfully the spoiling
of their goods and cheerfully died at the stake for
what they regarded as obedience to God were true
to the doctrine that God, and not man, is the
supreme ruler, and that the authority of the latter
-whether that of the parent, the magistrate, the
legislative assembly, or the king-when in confict
with that of the former, is not for a moment to be
regarded.  No human law can outlaw the law of
God. There is but one supreme authority in the
universe, and this is exclusively vested in God
himself. No one disputes this proposition who
believes in the existence of a personal God.  It is
one of the first truths of all religion.
Now, as to the question whether there is such
a God, thus related to each individual man, and,
if so, as to what are His laws and what duties He
requires us to perform; and as to the  further
question whether this God has made a supernatural revelation of His will to men, and, if so,
as to what that revelation contains-as to these
102 
Govermental 7urisdiction.
questions no human being, unless directly inspired
by God himself, can authoritatively judge for
another. What others think may be a source of
light, and, in this sense, of value; but it is no rule
to the individual, unless he thinks the same thing.
He must adopt their thoughts before they can
become his rule; and in doing so it is not possible
for him to disown his own reason or his own conscience. These faculties form his best light, and
necessarily imply a negation of the authority of
any other human being to govern his thoughts, or
the right of any human power forcibly to interfere
with their peaceable exercise. God has established
no ecclesiastical bureau in any earthly government to take the religious charge of the individual
reason and conscience, to supersede their personal
functions, and dispense truth and piety to men
according to order. All such bureaus, whether
managed by kings or popes, invade a province
exclusively occupied by the Divine Government,
and, hence, insult the majesty of Heaven while
they outrage the rights of earth. Each individual
soul must and does think for itself upon its own
direct responsibility to the King of kings; and
that too, no matter how ignorant or how much
superstition may have warped the understanding.
What it thinks is necessarily a law whose  jurisdiction no merely human opinion or authority can
either displace or destroy. It is sovereign for the
individual.
I03 
Reigion acd /he Slale.
Moreover, religion consists essentially in voluntary homage and obedience rendered to God by a rational and accountable being. Its spiritual phenomena belong to a realm to which no human authority can extend. Such authority may punish their
outward expression or the want of such expression;
but the seat of religion lies beyond its agency. No
parent can lash his child into piety and no king can
make his subjects devout toward God by commanding them to be so. Religion was never forced into
any soul, or forced out of it. Whoever worships
and obeys God, worships and obeys the God of
whom he thinks, and in whose existence he believes.  He does so under the inner guidance of his
own reason and conscience, and not under the authority of the reason and conscience of another.
This is the immutable law of his own being, as well
as of the character of the service rendered.
It follows, then, from the very nature of religion,
as a matter between the soul and its God, from the
absolute and supreme authority of God and from
the necessary supremacy of the individual reason
and conscience in determining the religious question
between God and the soul, that civil governments
cannot extend their agency to the administration or
regulation of religion without committing a trespass
upon the rights of God and man at the same time.
They cannot make its laws, since here God himself is the sole lawgiver. They cannot add to its
sanctions or modify or cancel its claims.   They
I04
i 
Governmental 7urisdiclio~.
cannot coerce men into piety, since the service
itself admits of no coercion. They cannot destroy
the authority of the individual reason and conscience, since this authority is indestructible by any
human  power.    Each  soul, as to its faith, its
thoughts and affections, and the obligations which
bind it to God, is as free from the rightful control
of human authority as it could be if no such authority existed. And this is what is meant by religious
freedom-freedom not from God's authority, but
from man's authority, so that each one is left to
follow the dictates of his own conscience.
This statement needs to be qualified by the remark that no one, as a member of civil society, has
a right so to exercise his religious liberty as to
make himself a trespasser upon the rights of others,
or act in a manner inconsistent with the good order and safety of that society. While free to think
what he pleases, and equally free peaceably to express and propagate his opinions, he is not free to
commit acts which society cannot, in consistency
with its own welfare, permit to be done with impunity, for any reasons.  It is the province of just and
enlightened legislation to fix the limits within which
individual liberty must move, and beyond which it
must yield to the general good. It is possible to
err here; yet without such limits fixed somewhere
the community would be at the mercy of every
man's superstition, and each would be licensed to
do what he pleased under the color of religion.
I05 
Religion and the State.
Society cannot, as an organism regulated by law,
exist upon any such principle. A penal code to
protect the rights of men by preventing crime is,
hence, not repealed by the doctrine of religious
liberty.
Restraining, then, the outward exercise of this
liberty within the limits established by sound reason
and impartial justice, human governments have but
a single additional duty to perform; and this is to
protect it. Protection here does not mean patronage,
or support, or regulation of religion in any way;
but it does mean that no one, no matter who he is,
or what may be his religion, or whether he belongs
to the majority or the minority or stands absolutely
alone, shall be interfered with when peaceably worshipping God according to the dictates of his own
conscience or when peaceably imparting his religious convictions to others, and that no one shall be
compelled by law to perform any religious duty or
be subject to any disability on the ground of nonperformance, or be required by compulsory taxation
to contribute to the maintenance or propagation of
any religious system. It does mean that, within
the limits demanded by the rights of others, each
individual shall be left absolutely free as to his religion and as to its social expression, being protected in his person against oppression and in his
property against religious exactions. It does mean
such a complete, universal, and impartial equality
before the laws as excludes all discriminations
io6 
Governmenlal 7urisdiclion.
among citizens on religious grounds, and permits
every one to judge for himself as to what religion he
shall adopt, or whether he shall adopt any, and then
ctS to what he shall do or omit to do within the
bounds of decency and social order.  It does mean
-if law, as it justly may, authorizes the existence of
civil corporations whose purposes are religiousthat it should protect the rights of these corporations in their civil character, without any discrimination among them, and let their religious functions and purposes entirely alone. Protection is
the one word that defines the whole duty of civil
government in respect to the religion of its citizens. This is all they need, all to which they are
entitled, and the utmost that a just government can
consistently render.
- But what has this discussion as to the jurisdiction of human governments to do with the School
question? We answer that the public schools of this
country are supported by taxation; that taxation is
a compulsory process; that as such it involves one
of the highest attributes of government; and that
if these schools are made the instrument of religious
instruction then this instruction, both as to quantity
and quality, and also as to agency, is established
there by the authority of the State, and that the
people are compelled by law to pay the expenses
thereof-and that, too, whether they believe the
religion taught to be true or to be a mass of superstition.  Religious instruction in the public school
I07 
ReIigioiz and /he Slate.
is, in respect to the taxpayers, a coerced support of
religion. Among the "things which are not lawful
under any of the American constitutions," Judge
Cooley, in his" Constitutional Limitations," p. 469,
specifies  "comnpulsory  support, by  taxation  or
otherwise, of religious instruction." He immediately adds: "Not only is no one denomination to be
favored at the expense of the rest, but all support
of religious instruction must be entirely voluntary."
This principle is clearly violated by the state if it
makes such instruction a part of its public school
system. The support is then not voluntary, because
the taxpayer has no option whether to render it or
not.
Judge Welch, of the Supreme Court of Ohio, in
delivering the opinion of the Court in the case of
The Board of Education of Cincinnati vs. Minor
and others (23 Ohio State Reports, Granger, p.
250), said that the teaching of the Christian religion
in the public schools "violates the spirit of our constitutional guaranties and is a state religion in embryo; that if we have no right to tax him [the
citizen] to support worship, we have no right to tax
him to support religious instruction; that to tax a
man to put down his own religion is of the very
essence of tyranny: that, however small the tax, it
is a first step in the direction of an establishment of
religion; and I should add that the first step in
that direction is the fatal step, because it logically
involves the last step."
io8 
Goveritmenlafl  1u-isdIion.
Mr. Horace Mann in his twelfth report on the
schools in Massachusetts, says: "But if a man is
taxed to support a school where religious doctrines
are inculcated which he believes to be false and
which he believes that God condemns, then he is
excluded from the school by the Divine law, at the
same time that he is compelled to support it by the
human law. This is a double wrong. It is politically
wrong, because, if such a man educates his children
at all, he must educate them elsewhere, and thus
pay two taxes, while some of his neighbors pay less
than their due proportion of one; and it is religiously wrong, because he is constrained by human power to promote what he believes the Divine Power
forbids. The principle involved in such a course
is pregnant with all tyrannical consequences. It is
broad enough to sustain any claim of ecclesiastical
domination ever made in the darkest ages of the
world." The only escape from the adoption of this
principle is for the state to abandon its school system altogether,orto exclude religious instruction from
that system, on the ground that such instruction
does not come within the proper jurisdiction of
civil government. The latter, and not the former,
is the course we advocate.   It is the only course
possible in a State school system supported by compulsory taxation that is consistent with the religious
rights of the people.
No man has a right to say that his religion, in
distinction from that of his neighbor, shall be
Io9 
Religion and the S/ate.
taught in a school for the support of which both
are taxed in common. What the State should say
is that the religion of neither shall be taught, and
that the support of religion, whether it be true or
false, shall not anywhere or to any extent be made
a charge upon its public treasury. This is fair and
just to all. Any other ground assumes a jurisdiction in the State which cannot exist in consistency
with the rights of conscience, and which, if it be
conceded at all, logically covers the whole ground
of a State religion.
X.
STATE THEOLOGY.
The term State means any distinct and independent body of persons occupying a given territory and
united together under some form of civil government.   The governmental organization of a State
for the purpose of enacting and administering law,
is practically the State itself.  It is such as the
agent of its legal operations. By the term theology
is meant the science of God, embracing what is
assumed to be known in regard to him and consistin;,r subjectively in human beliefs with reference to
the Supreme Being.   What men thus believe is
their theology; and if they believe in the doctrine
of God at all the naturalsequel is some form of reli
IIO
I 
State  Theoiogy.
gious worship. The combination of the ideas indicated by these terms gives a state theology, or a
government in which the State asserts a legal doctrine or creed in regard to God and stamps the
same with its own authority. The State, then, is a
theological State. Its opinions, whether in respect
to God himself or the duty and mode of religious
worship, form a part of its laws: and this distinguishes them from i&dividiial beliefs or convictions
that rest merely on private judgment, and, hence
admit of no coercive enforcement
The natural and, as a most ample experience
shows, the sure result of State theology is either
such an identification of Church and State that
the two are practically the same thing, or such an
intimate legal union of the two that they mutually
act through each other. In the one case the State
is the Church and the Church is the State; and
in the other, though formally distinct as organisms,
they are, nevertheless, blended in a common set of
functions in respect to religion.   In both cases
we have the union of ecclesiastical and civil powers,
and in both we have religion with the sanction of
human law impressed upon it.
Every State theology must necessarily have some
spcczfic character; and as to what it shall bewhether Pagan or Christian, and, if the latter,
whether Catholic or Protestant-the State itself
must be the judge. Its opinion on this subject it
expresses through the edict of a king or the vote of
I I I 
Rtel,koit and Ihe Slale.
a legislative assembly. It does the work of a theological professor, adding thereto the power of the
civil arm.   It teaches by command.   Its dogmas
are laws. All the reasons which demand or justify
a State theology at all equally demand that it should
be put into effective action. If it be the right and
duty of the State to have a theology, then it is its
duty to be governed by it and to govern the people
by it. The least that it can do is to devise the
ways and means of asserting, perpetuating, and enforcing it. If it is worth anything it deserves this
tribute. State patronage, State disabilities or penalties for dissenters and State administration are
the logical corollaries.  To this there can be no
just objection, since if the State ougght to have a
theology, then it ought to use the necessary means
to maintain and administer it.  It should see to it
that not only the children in the public schools, but
also the adult population-indeed, all the peopleenjoy the benefits thereof.   That would be a very
queer theology which the State first adopts and
legalizes and then leaves to shirk for itself.   We
hold it to be the duty of the State to sustain its
own theology, provided always that theology comes
within its proper sphere.
This, moreover, would be practically an easy
task if all the people thought exactly alike and their
common thoughts were faithfully represented by
the theology of the State. Such, however, does
not happen to be the case.
11 2
I 
Slale Thfeology.
What, then, shall be (lone with those who dis
sent from this theology and decline to conform to
its requirements? This question the State must
answer, and generally does so answer as to involve
the principle of proscription or persecution.  It is
a fact wide as the world and spread all over the
records of history that State theologies have with
great uniformity been persecuting theologies.
Christ and his apostles and their followers were
persecuted by the State theology of the Jews.
Pagan Rome had such a theology, and for three
bloody centuries she wielded its power against the
Christians.   Constantine established Christianity
as a State theology and made it a persecuting power. The State theology of the Roman Catholic and
that of- the Protestant show the same record. State
theology drove the Puritans out of England and
murdered the Huguenots in France. It made our
Puritan fathers persecutors. Mohammedanism as
a State theology and Paganism as such are marked
by the same feature.   The missionary efforts of
modern times to propagate Christianity among the
heathen meet with one of their most formidable obstacles in State theologies, and the same was true
of like efforts in the apostolic age. It is a general
fact that the moment theology allies itself with the
State and commands its powers it becomes persecuting in respect to all w.lO dissent from it, and that,
too, whether it be Pagan or Christian, Catholic or
Protestant. History paints this fact in lurid colors.
8
I I3 
Religion and the State.
Nor is there anything strange or unnatural in
such a fact. It results from the very nature of the
case. The theology of the State is a part of its organic or statute law, and, of course, it should be sustained by its authority and power.   Heresy is,
hence, a crime, as really as murder, and as such it
should be punished. So the State reasons, and
that, too, correctly, provided we accept the doctrine
of State theology. Catholic States and Protestant
States have reasoned in this way.   What we call
religious persecution State theology calls punishment to prevent crime.   What we call religious
liberty it calls a dangerous exercise of private judgment. Saul of Tarsus was a conscientious persecutor, regarding himself as doing God service; and it
is-but just to say that State theologies have generally been conscientious in their deeds of murder
and blood. They have nrot looked upon themselves
as ruffians and outlaws, but rather as the conservators of the divine honor and the true interests of
souls.  The thoughts of an after and a wiser age
were not their thoughts when they trampled the
religious rights of men into the dust and shocked
Heaven, if not earth, with their cruelties.   Religious zeal misdirected is a terrible passion: and
all State theologies, because administered by men,
are apt to have this zeal.
We present, then, the disabilities, the persecutions, and the martyrdoms, which are so conspicuous
in the history of State theology, as more than sug
JI4
I 
State Theology.
gesting that there must be some radical mistake in
the doctrine itself. A doctrine that can by perversion turn the mild and genial religion of Jesus into
a flaming persecutor, and make it a ferocious enemy
to religious liberty as vested by God in individual
souls; a doctrine that undertakes to adjudicate upon questions lying exclusively between the soul and
its Maker; a doctrine that substitutes carnal for
spiritual weapons; a doctrine that resorts to the
law of force, where nothing is pertinent except the
peaceful persuasion of argument and the gentle and
loving voice of entreaty; a doctrine that in practical execution becomes an abominable despotism exercised over the bodies and attempted over the souls
of men-yes, such a doctrine has written upon its
face in letters of light the glaring evidence of being essentially and fundamentally wrong. Judging
it by its fruits, we find it difficult to use terms sufficiently intense to describe the degree of that
wrong.   Its prevading principle is hostile alike to
God and man, although it professes to be the servant of both.
It is, moreover, a significant fact of history that
Christianity has always prospered most in the true
sense when it has had least to do with the State
and the State has had least to do with it. For the
first three centuries it was the theology of individual conviction, resting simply on its own evidence,
holding no other relation to the State than that of
a persecuted religion, and doing its entire work by
II5 
Religion and the Slate.
the use of spiritual means; and then it was that it
spread itself among the nations of the earth with a
purity and power that have never since been exceeded. Then it was that venerable and pompous
systems of Paganism yielded to the resistless energy of its moral march. Afterward it became a
State theology; and then, in the hands of the State
it was not only corrupted and half-paganized, but at
once assumed, and for centuries maintained, the character of a persecuting religion. All the persecutions of the Romish Church, and, indeed, all the
persecutions that have existed in the name of
Christianity, have had their basis in State theology.
If God should be pleased to constitute a theocracy
on earth, and by inspiring it guarantee its infallibility; then it would be the duty of men to bow to its
authority; but until we have this fact established by
appropriate evidence the conclusion drawn from history is that the State should confine itself exclusively to things temporal, and leave theology to the individual convictions and private judgments of men.
This is certainly the truth in respect to Christian
ity.
There can be no doubt that a true theology in
the heads and hearts of the people is a veryimportant and much-needed influence for good in relation
to civil government; yet it does not follow that the
State is the proper party to take care of this theology, to define it, to teach it, to support it, or in any
Wly invest it with the sanction of law.  Those who
II6
i 
State Theology.
set up the proposition that religion is essential to
morality, and also the further proposition that morality is essential to good government, and then
infer that the State should establish and support religion are guilty of a palpable inon-sequi tur in logic.
The truth of their premises does not prove that of
their conclusion. It may be true (facts show it to
be so) that the State will receive the largest and
purest contribution of morality founded on religion
when the latter is left entirely to the educational
influences of the family and the Church; and if so,
then State theology is not only a superfluity, but a
positive damage to the best interests of the commonwealth. The morality as derived from religion
which the State needs will be best supplied by the
confinement of its agency to things temporal and
the entire omission on its part of any attempt to
administer things spiritual. The State can do religion no favor so great as to have nothing to do with
it, and itself no favor so great as to-let religion
alone.   The moment the two are put in alliance
with each other both are injured.
Those who drew the plan of our National
Government built the system upon the principle
that religion and civil government were to be kept
entirely distinct; and, for the most part, all the
State governments are constructed upon the same
theory. The general character of both is that they
neither affirm nor deny any doctrine in respect to
God and that they command no duty as a religious
I117 
"elhioit and the Stale.
duty. They deal with the temporal rights and obligations of citizenship, without any reference to the
question whether the citizen is a religionist or not.
His religious faith is no part of his citizenship and
no criterion of his rights. It confers upon him
no immunities and imposes no disabilities. It is a
matter between himself and his God, and with it
the civil authority does not concern itself.   He is
not forbidden to be an atheist and not commanded
to be a Christian. He forfeits no rights by being
the one and gains none by being the other; and
as between these two extremes of opinion, the
State  does  not  undertake  to decide which  is
the true and which is the false opinion. Such
is the great American principle in respect to the
sphere of civil government. This principle, being
the exact antipodes of State theology, admits of no
reconciliation with it.
We submit this summary of thoughts in regard
to State theology for the consideration of those
who insist that the public school system of this
country shall be made the instrument of religious
education. Catholics, in respect to their own children, desire that the education should be thoroughly religious in the sense of teaching the Catholic
faith; and to this there is no objection if they will
give it at their own charges and not ask the State
to be a party thereto, either by remitting taxes in
their favor or appropriating public money for the
purpose. A very considerable number of Protest
I I8
i 
State Theology.
ants who are agreed in being opposed to any teaching of Catholicism by the State also desire that the
amount and kind of religious education in the public
school should be equal to that naturally furnished
by reading King James's version of the Sacred
Scriptures in tnese schools, either with or without
the supplement of prayer and religious singing.
Both classes, while widely at variance as to what
the religious teaching shall be, nevertheless, want
the teaching by the authority of the State and at
the expense of the general public.
The practical meaning of this demand is that an
American State shall in its public school adopt the
principle of State theology.   Have those who make
the demand well considered the fact that they logically ally themselves with all the religious despotisms that have ever existed among men?  They in
effect accept and advocate a principle which has in
all ages been the enemyof religious liberty, against
which heroes have fought, on whose cruel altars
martyrs. have bled, and whose historic enormities
are sufficient to startle the world.   They assume
that an American State has a theology to teach and
support; and in this one assumption they pass the
Rubicon, and grant what never did anything for
Christianity but to corrupt and weaken it as a
moral and spiritual power.
The question of Bible reading and other religious
exercises in the public school, when sifted to its
bottom, is really a question of State theology. It
jI9 
2Religion and tAhe State.
comes to this at last. And, to say nothing now
about the conflicts of opinion as to what the theology shall be and the utter impossibility of satisfying all the parties with any theology, we are opposed to the whole underlying theory, anywhere and
everywhere, whether applied to men, women, or
children, in a school system or a church system. If
the State will simply take care of the citizen in his
rights as a human being and a member of the body
politic, the religionist will have all the care that he
needs and certainly all to which he is entitled. It
cannot connect its authority with the religionist or
his faith as such without exceeding its own proper
jurisdiction and without immensely more mischief
than benefit. In order to be a democratic State,
governed by the rule of equal and impartial justice,
it must leave the religionist and his creed to take
care of themselves, concerning itself only with the
citizen. The moment the State abandons this
ground the elementary law of a democratic government is gone.
XI.
CIVIL GOVERNMENT.
It is of the utmost importance to society that
human rights as to person and property should be
defined and protected by the authority of law; that
the public peace should be preserved; that crime
I20
II 
Civil Government.
should be punished; that controversies among individuals should admit of settlement by legal arbitration, and that the people should be defended against
encroachments by foreign enemies. For these and
similar temporal purposes, civil government in some
form is a necessity, in the sense that either they
cannot be secured at all or cannot be so well secured without it.  Though not absolutely perfect and
though capable of great abuses, it is, nevertheless, the
best machinery for these ends that human wisdom
can employ. No other can take its place or do its
work. No government was ever so oppressive that
it was not far better than anarchy. The total
absence of all government would be the very extreme of the savage condition.
The purposes of government, as thus specified,
are moral in kind, since they relate to the rights of
life, liberty, and the pursuit of happiness.  They
are also temporal in their scope, since they have
no reference to what may or may not await us
after death. The present advantages of civil government are sufficient to vindicate its propriety,
even if no other and higher interests were attached
to human nature. The atheist ought to believe in
its necessity and wisdom. The things of time do
not cease to be real and do not lose their value
while they last because they are limited to this life.
And yet, if we concede the doctrine of a personal God, to whom we owe duties, and that of a
future state, to which death consigns us, then what
I2I 
Religion and  hie State.
are called things spiritual, in distinction from things
temnporal, form immeasurably the largest and most
important field of human thought.   Our chiefest
interests must lie in the former. It has, hence,
been inferred that civil government, being so necessary and useful in the sphere of things temporal,
should extend its regulative agency and supervision
into the higher sphere of our spiritual relations,
and, in so doing, define, teach, and enforce religious
duties. State religion-namely, religion allied with
and sustained by the civil power-is the formal expression of this idea. Those who demand that our public school-system-a system which is purely governmental, because ordained, established, and conducted
by State authority-should be the instrument of religizois as well as of secular education, in logical effect,
commit themselves to this doctrine. They ask the
State to be the minister and propagator of religion
in the public school, and thus grant the principle that
the civil power may. and should extend its action
into the sphere of things spiritual. Theirargument
is essentially the one which has in all ages been
urged in behalf of State religion.  We object to both
the argument and the conclusion, whether applied
to a public school system or anywhere else.
The fact that civil government is the best possible agency to attain certain temporal ends does not
prove that it is equally well adapted to spiritual
and religious ends, or that it is at all adapted to the
latter purpose.   To show that a thing is good in
I22
i
I 
Civil Government.
one relation and for one object clearly does not
show that it would be good in another relation and
for a different object. Macaulay, in his review of
Gladstone's work on Church and State, says:
"It is of very much more importance that men
should have food than that they should have pianofortes.   Yet it by no means follows that every
piano-forte maker ought to add the business of a baker
to his own; for, if he did so, we should have both
much worse music and much worse bread."
A society of men organized for one purpose may,
as thus organized, be well adapted to its attainment;
but if it were to add some other purpose, and attempt to accomplish both at the same time, it might
fail in respect to both, as it would not in respect to
the first purpose if its action had been strictly confined thereto.  So civil society, acting through government and wielding the forces of legislative, judicial, and executive power, may be and is a most
appropriate organization to maintain public order,
to establish justice, and punish crime; but it does
not follow that it is equally well fitted or fitted at all to
undertake the cure of souls, to'teach religion, and
prescribe rules for the observance of men in their
relations to God. The transcendent importance of
things spiritual, as compared with things temporal,
furnishes in itself no reason why government should
embrace the former in its sphere of action. It may
be that they will be best promoted by being let
alone, so far as government is concerned, and that
I 23 
Religion and the Slate.
its duties in the temporal sphere will be best discharged by exclusive confinement to them.
No human government is omnipotent or omniscient, and, hence, no such government can give its
attention to everything that concerns the welfare of
society.   The effort would not only overwhelm it
with the magnitude of the task, but so interfere
with the freedom of individual action as to produce
more evil than good. Society may be as much damaged by being governed too much as by being governed too little.   The things which governments
can wisely do are few when contrasted with that
vast bulk of things which must be left to individual
thought and enterprise.   The care of infant children in the family is a very important interest; yet
nobody pretends that government should regulate
the nursery, beyond the general prevention of crime.
What men eat and drink, as to both quantity and
quality, is also important; but no one claims that
government  should establish  rules  of personal
hygiene. The business which men pursue and
their manner of pursuing it are most vital questions;
yet government cannot assume the work of managing the industries of society, beyond the general
function of protecting individual rights. The great
mass of human interests must be left and by every
wise government are left to the spontaneous and selfimposed care of those whom they specially concern.
Religion, considered as a faith in regard to God
or as a practice in the expression of this faith,
I24
I
t
( 
Civil Government.
evidently belongs to this class of interests. It is in
its very nature a matter between the individual
soul and its God, and, hence, placed beyond the appropriate jurisdiction of civil government.   It is
not possible to conceive of anything more entirely
foreign to that jurisdiction.
Moreover, all civil governments act authoritatively and sustain their authority by the compulsory
law of force. They grant to the subject no discretion. They assume their own infallibility, as against
the right of the individual practically to dispute it.
They put their opinions into execution, if necessary,
by the sword. Where, then, is there any proper
place in things spiritual-things that have their
center in God and refer mainly to the interests of
the after-life-for any merely human government to
exercise its authoritative power over the individual
will? Shall it adopt a creed for the people, and
thus decide what creed they shall adopt? Shall it
regulate their mode of worship? Shall it tax them
for the support of a religion which it thinks to be
true, but which some of them may think to be false?
Shall it make its conscience the law for their conscience? There is no religious belief and no religious duty to which it can add the civil sanction
without invading the inalienable rights of the individual conscience; and, at the same time, assuming
an authority which belongs to God only. It may
justly require that no one shall make his religion an
excuse for crime against the temporal good order
I25 
Religion and the State.
and safety of society, and so it may protect every
one in the free and peaceable exercise of his religion;
but beyond these two points it cannot go without
taking the fatal step which logically involves the
whole principle of State religion.
Concede religion to be one of the ends for the
attainment of which governments exist among men,
and all laws necessary and proper for carrying this
end into effect follow as a matter of course, and this
is in its very nature the essence of religious despotism. Every step in this direction places the religious liberty of the individual at the pleasure of the
government, armed with the whole power of society
to enforce that pleasure.   If government may tax
him to support and teach religion, then it may establish for him a religion which he must observe
whether he believes it or not.   The only escape
from this result is that theory of civil government
which limits it to things temporal and denies to it
any jurisdiction or any duties beyond impartial protection in the sphere of things spiritual. This, and
this only, secures religious liberty, as against any oppression by the civil power.
The correctness of this theory is strongly confirmed by the general fact of history that when
religion and civil government are legally united
neither derives any benefit from the union, but both
are seriously damaged by it. The most characteristic feature of such a union is that of a bad religion
and a bad government at the same time, each being
I26
I
I' 
Civil Government.
harmed by the other. Let it be remembered that
the governments of the world have almost always
been wrong on the subject of religion; that the
majority of them have been opposed to the religion
of the Bible and quite often persecuted it; that
they have generally used religion for selfish and' 
ambitious purposes; that by uniting it with the 
State they have corrupted both; and that, for a
rule, their religious propagandism has been mainly
that of error, rather than truth.  These facts prove
most conclusively that civil government is a failure
when it attempts to administer and regulate religion; and, hence, in the interests of pure religion, as
well as those of good government, every Christian,
every statesman, and every citizen should protest
against any theory that carries even a single drop of
State religion in its veins. We cannot import rulers
from the skies or impart to earthly rulers the inspiration and infallibility of the skies. Governments
must be managed by men; and if history proves any
thing, it proves that men are very poor managers
when they exercise the civil power in relation to religion. Their positions make them despots in theory, and
in practice they often become demons incarnate,
treading under foot the rights of conscience with a
ferocity as reckless as it is cruel.
The theory which unites government and religion and makes the latter one of the ends to be pursued by the former, if good at all, is equally good
for ail governments-for "the powers that be" in
127 
Religion and the State.
Turkey, Japan, and China, as really as for those of
these United States.   Apply the theory in China,
and it means State power employed to sustain, propagate, and enforce Buddhism and idolatry. Apply
it in Turkey, and it means the same power thus
employed in the interests of Mohammedanism. It
so happens that the world is fruitful in religious
systems; and, unless we adopt the doctrine that all
these systems are equally true or equally false, the
theory, as thus applied, would lead to the most opposite results and entirely confound the distinction
between the true and the false. If when applied
to Christianity it would promote the truth, it would,
with equal certainty, promote the grossest superstition and error when applied to Paganism. A change
of circumstances often gives one a view of things
otherwise not so readily taken.
Let us then suppose a Protestant to transfer his
residence to China and to become subject to the
government of that country. While in this country,
we will further suppose, he belonged to the class
demanding that religion shall be included in the
educational regimeof the. public schools, and was hoirifled at the idea of not having King James's version
of the Sacred Scriptures read in these schools for
religious purposes. How does he reason when the
principle comes to be applied to him in China? The
Chinese Emperor agrees with him in his principle, and proposes to tax him, not to support
and teach Protestant Christianity, but to sup
I28
i
l 
Civil Governmeri.
port and teach the religion of China, which
he regards as an abominable idolatry.  This would
probably open his eyes to the nature of his own
doctrine. Yet, if it is the right of one government
to enter the province of things spiritual, and tax the
people to support and propagate religion, then it is
the right of all governments to do so.
The principle, if valid at all, is just as valid for
Paganism as it is for Christianity, for idolatry as it
is for the purest worship, for the most superstitious
form of Roman Catholicism as it is for the most
enlightened Protestantism. No Protestant would
ask for its application in any other than a Protestant country; and this is a good reason why he
should not ask for it there. If it is not good in
China- or Catholic Spain, it is no better in these
United States. The principle is the same, no matter to what religion it is applied, or whether Pagans
or Christians, Catholics or Protestants form the
majority of the people. It is the principle of State
religion, good everywhere or good nowhere.   If
Protestants were in the minority in this country
and Catholics in the majority, the former certainly
would not advocate a public school system, to be
supported by general taxation, in which Catholicism
should be taught.
The conclusion from this line of thought is that
civil government, though the best possible machinery to secure certain ends connected with our temporal interests, is not a contrivance adapted to
9
I29 
Reiligion and the State.
secure the ends that relate to our spiritual welfare.
"Surely," says Macaulay, "if experience shows that
a certain machine, when used to produce a certain
effect, does not produce that effect once in a
thousand times, but produces in the vast majority
of cases an effect directly contrary, we cannot
be wrong in saying it is not a machine of
which the principal end is to be so used."
The learned essayist might justly have said that
it is not a machine properly adapted to this end at all.
The notorious and world-wide failures of civil government to make itself useful in the department of
things spiritual, when attempting to manage and
conduct them, furnish the most complete demonstration that, however useful it may be elsewhere, it is
not suited to this purpose. A sledge-hammer is a
very good instrument with which to break a rock,
but a very poor tool with which to mend a watch
or perform a delicate operation in surgery. So
civil government is a very good agency within certain limits and for certain objects; but beyond
these limits and objects it has no function
to perform, and when its powers are extended beyond them they are found in practice to be immensely more injurious than beneficial to the very
interests they seek to serve.
Mr. Madison was right when he said: "Religion
is not within the purview of human government."
lie was right again when he said: " Religion is essentially distinct from human government and ex
I3o
i 
Civil Government.
empt from its cognizance. A connection between
them is injurious to both. There are causes in the
human breast which insure the perpetuity of relig
ion without the aid of law." In a letter addressed
to Gov. Livingston, July ioth, 1822, he further
said: " I observe with particular pleasure the view
you have taken of the immunity of religion from
civil government in every case where it does not
trespass on private rights or the public peace. This
has always been a favorite doctrine with me." He
certainly was not an atheist or a hater of religion;
but was a profound thinker, who did more than any
other man in framing the Constitution of the
United States, and as such he saw that it
was best for the State, and best for religion, that
the two should be kept absolutely independent and
distinct.
The American people have only to apply the
principle avowed by Mr. Madison to our public
schools, and this would be the end of the whole discussion on the subject.   The conclusion would be
that, as a State agency to attain certain temporal
ends, the public school has nothing to do with
religion, and religion nothing to do with it.
The government employing it has no religion to
teach, not being a government for Christians any
more than for Deists, or for Protestants any more
than for Catholics.   It is not its business, as a
government, to affirm or deny, to teach or support
any religious system.
131
I! 
-2eZigioit avid ti/e iSa/e.
XII.
THE POLITICAL VALUE OF RELIGION.
Judge Hagans, of the Supreme Court of Cincinnati, in delivering his opinion in the case of Minor
and others vs. The Board of Education of Cincinnati and others, said: " In a word, it is the poliiical
value of religion, morality, and knowledge which
the State proposes to secure for its varied purposes,
and that only." This utterance was preceded by
an extended quotation from an article by Dr. Seelye,
which appeared in theBibliotheca Sacra, Vol. XIII,
N-o. 52. In this article Dr. Seelye says that "the
State has its own end," and that it "uses religion
as a means to this end; but religion itself is never
an end with the State. Everything relating to the
moral and religious life of its subjects is of interest
to the State only so far as the State can use it to
its own ends." Again he says: "With the State
religion is a means." He says again: "There are
temporal and earthly interests for the individual,
and it is to subserve these that there is a State, a
community, among men. These interests are undoubtedly more perfectly secured through the
agency of some religion, and hence the proper and
necessary connection of religion with the State.
But in this connection religion is ever the serv
I32
l 
The Political'alue of Religion.  I33
ant; never the sovereign.  It is to be used to secure
some end "-namely, some temporal end, that comes
within the province of the State. On this ground
we understand Dr. Seelye to hold to a legitimate
"connection of the State with religion, and the duty
of the State to maintain its religion," while he disclaims any right on its part to resort to persecution.
The substance of this theory, as adopted by
Judge Hagans and more fully explained by Dr.
Seelye, seems to be this: The State may and
should incorporate religion into its own being as a
part of its public law; not as an end, or on account
of what religion is in itself, considered as a spiritual system, but solely on account of what the State
can do with it as the means of promoting the civilization,-improvernent, and good earthly order of the
body politic. The State can make use of it as a
"servant," and, hence, in this character should
maintain it.  Its "political value" brings it within
the purview of civil government.
This theory is as old as the efforts of human
thought to vindicate the establishment and maintenance of religion by the civil power. There is nothing in it which limits it to Christianity in either
the Catholic or the Protestant form, and it has not
been so limited. It applies to any religious system,
whether Pagan or Christian, true or false.   Any
such system, which in the judgment of the State,
can be made useful for the attainment of its temporal ends may, as the means thereof, be legalized,
) 
Religion and the Stale.
adopted, and supported by the State. Almost any
religion is, in its social effects, better than blank
atheism; and, hence, it might be used by the State
as a means, rather than have a nation of pure atheists, especially as no religion has ever been so bad
as not to contain at least some rays of truth.  Of
course, it would be better for the State to adopt the
true system; but, in its absence, it will be better
to put its stamp on any system, and use it for
State purposes, rather than be wholly without religion.
Now, in order to give this theory the benefit of
the most favorable application, let us understand
the term religion to mean Christianity. The case
will then stand thus: The State may and should
establish a connection between itself and Christianity; not because Christianity is true, not because
it is a divine system in its authority, not on account
of its relation to the spiritual duties and immortal
interests of men, but solely on the ground of its
temporal utility.  Being an existing system known
to the people, it is good for this purpose-just as
revenue laws, currency laws, laws of debt and credit,
patent laws, commercial laws, police regulations,
courts of justice, state-prisons and indeed all the ordinary appliances of civil government are good to
secure the material and social prosperity of the
people. The State may, hence, maintain and use
it as one of the wheels in its complex machinery,
I34
l 
fThe Political Value of Religion.  I35
on the same principle that it maintains and uses
other wheels to run its own system. Not what
Christianity is, but what the State can get out of it
for temporal purposes, is the single thing to be considered.
It is hardly necessary to say that Christ and his
apostles did not preach the Gospel upon any such
theory.   They made no mention of it as the "servant" of the State.   They presented it as God's
supernatural interposition for the salvation of individual sinners. What the State should gain or lose
by it was not their question. Salvation, and not
State utility, was their grand idea.  They did not
concern themselves with the relations of the Gospel
to Caesar; but rather with its relations to God and
sinners against his law. They preached repentance
toward God and faith in the Lord Jesus Christ and
warned men to flee from the wrath to come. There
is a vast distance between the conception of Christianity as preached by its Author and his apostles
and the conception of it as a piece of State machinery, sanctioned and sustained by the State on account of its "political value" or as the means of
attaining a purely temporal end.
Let the State frankly enunciate the theory, and,
hence, say that it uses Christianity as a mere instrument for State ends; and let the people, including
the children in the public school, both understand
and accept the theory, and who believes that the 
Religion and ithe S/aSe.
system would then have any power to gain these
ends? No one ever was and no one ever will be
made a Christian on the ground of State utility. No
man ever made a prayer to God as the means of
turning himself into a good citizen. A truly pious
man will be a good citizen; but the motives that
make him pious rise infinitely above the range of
citizenship. The State can successfully work the
theory of "political value" only by being a hypocrite, pretending one thing while seeking another.
If a general should hold morning and evening
prayers with his army, or have religious lectures
delivered to his soldiers, simply to make them
better fighters in the day of battle, they would only
need to understand the sham to treat the whole
thing with contempt.   Religion cannot be brought
down to the level of State strategy or fighting
strategy, and yet retain its power as religion.   At
this level it has no value for either purpose.   The
moment we make it the means of an end immeasurably less than itself, and so regard it, we destroy its
power as religion.   The man who is religious for
the sake of making money is not religious at all;
and so the State that uses the Christian religion
simply for its " political value" adopts a theory
that cannot survive its own exposure. Let the State
by all means put the theory among the esoteric doctrines which are not to be known. Statesmen may
perhaps be admitted into the secret; but it will not
do to give it to the common people, and especially it
I 36
I 
The Polilical Value of Relizgion.   I137
will not do to tell the children in the public school
that they are trained in religion and its duties in
order to promote the temporal ends for which the
State exists.
The theory, moreover, involves all the perils to
religious liberty which ally themselves with the
system that makes the regulation of religious belief
and practice one of the ends of civil government.
The distinction between the two theories may be
very nicely worked out in an essay; yet, if the State
may establish a connection between itself and
religion as a means to State ends, then it may
equally decide what religion it will so use-whether
Christianity or some other system-and, having
settled this point, then it is equally privileged to
determine upon the methods by which it will sustain and apply the chosen system.   The power to
use Christianity as a means implies the power of
employing all the means of using it. Whether,
then, the State will simply teach the religion it uses
for temporal ends, or enforce it by pains and penalties, how far it will tolerate other religions, to what
extent it will tax the people for the support of its
own system, and by what rules it will regulate the
administration thereof-these and the like questions will be answered according to the bigotry or
liberality of those who enact and apply the laws.
The fatal step is taken by conceding that the State
has any jurisdiction in the premises, whether religion be viewed as a means or an end.
i 
Religion  and /he S/ale.
The voice of history is that all such deposits of
power with civil government, whether as a means
or otherwise, are exceedingly dangerous to the
liberties of the people.   No  small part of the
oppressions which have cursed mankind may be
traced, directly or indirectly, to the administration or
regulation of religion by State authority.   Their
justification has been State necessity or Church
necessity, or both put together. Even Christianity
has never been able to enter into any alliance with
the civil power without receiving damage and doing
damage. Many pages of its history are stained
with the blood of martyrs slain in order to maintain its authority and  put down  heresy.   The
framers of our National Government were eminently
wise in making all organic connection between
religion and that government, upon any theory or for
any purpose, and, hence, all disabilities, proscriptions or persecutions on religious grounds, constitutionally impossible.  There are no consequences
in the way of evil attaching themselves to this doctrine in practice that in the magnitude of the evil
will at all compare with the consequences of the opposite doctrine.
Christianity is a divinely-given system of religion, and, hence, authoritative over the individual
conscience; yet there does not exist on all the face
of the earth any civil government that has the right
for any purpose to administer this authority.   The
assumption of the right is an act of tyranny, and
I38
i, 
7he Political Value of Religion.
every exercise thereof is simply the continuance of
that tyranny.   When  Massachusetts, as was the
fact priorto I833, made every citizen taxable for the
support of the Protestant religion, whether he was a
Protestant or not, her constitution in this respect
bore the distinctive mark of religious despotism.
When, as was the fact prior to I82I, no person in
Massachusetts was eligible to the office of governor,
lieutenant-governor, or counsellor, or senator, or
representative in the legislature, unless he upon
oath declared his belief in the religion adopted and
sanctioned by the State, then the same feature
marked her constitution.   Such provisions are virtually persecuting, no matter upon what theory they
are defended.
Those who talk about the "political value" of
religion as a reason why the State should maintain
and teach it would do well to remember that Christianity has uniformly made its largest contribution
to the State when left to depend upon the voluntary
efforts of its friends, unconstrained and unregulated
except by the law of Christ. Its brightest pages are
the ones written when such has been the fact, and
its darkest  pages  are those written  when  the
reverse has been true.  What the State really wants
for its own good is the elevating and purifying
power of Christianity in the hearts of the people;
and all history shows that in reference to this end
the State can do nothing so wise foritself as simply
to do nothing and leave the work of maintenance
I39
II 
Religion and the State.
and propagation to other and more appropriate
agencies.   It has always proved itself to be a poor
preacher of the Gospel, and quite often a worse
theologian. It never did the work well and it never
can, because it is not well adapted to the work.
The Bible speaks of Christians, and not of the
State, as the visible Kingdom of God and as the habitation of God through the Spirit. To the former, and not
the latter, Christ gave the preaching and propagating
commission, and never said a word implying that the
civil power, as such, was to be called into his service.   The simple truth is that the Church, composed of his friends and inspired with holy zeal in
his cause, holding in her hands the sword of the
Spirit, which is the Word of God, and, without any
State battalions or State tax-gatherers, assailing the
citadels of sin and error-yes, the Church, unlicensed and unpatronized by the State, yet strong
in argument, patient in effort, persuasive in love,
and, above all, having the assurance of divine help,
constitutes the effective soldiery in this warfare. It
can make more converts than the State can, and
make better ones. Christianity, in itself, in its own
appointments, in the inspirations which it imparts
and the laws which it prescribes, contains all the
necessary instrumentalities for its own diffusion;
and the State can add nothing thereto with any
advantage.
Granting, then, as we most cheerfully do, the
great "political value" of the Christian religion
I40 
The Polilical Value of Religion. 14 I
as the means of producing good government,
we come to a conclusion entirely different from
that drawn by Judge Hagans and substantially
drawn by Dr. Seelye. The surest wayto realize this
value is to leave the spiritual agencies of Christianity
entirely to the voluntary, the self.-imposed and selfdirected efforts of its friends. Let them build their
own churches, choose and support their own ministers, and, subject to the rules of good public order,
manage their affairs according to their own discretion.   Let them replenish their own money-chest
and disburse their own free-will offerings. Let them
organize as many religious schools as they choose,
and in those schools teach what seems to them good,
whether on the Sabbath or the week day, and then
let them pay the expenses thereof.   Let the State
afford to them impartial protection, and stop there.
This gives Christian truth, and its friends a fair and
open field,without patronage and without State resistance.   More would be bad policy, even if we concede that the State has a right to do more. By doing
more it would lose rather than gain.
Elevate and sanctify the people, as individuals,
by a wide diffusion of the real power of Christianity,
and there will be no trouble about the State,
especially under a republican government. Such a
people will take care of the State, by choosing good
rulers and sustaining good laws. Their intelligence
and personal character will guarantee a government
of righteousness.   Masterly inactivity on the part
I 
Relizgio~ and the State.
of the State, in the sense of leaving the maintenance, propagation, and administration of the
Christian religion entirely to the voluntary principle, is just the position to call forth the intensest
activity on the part of the Church.   It is the best
position for the church, and the best position
for Christianity, and equally the best for the
State to derive from both the largest quantity of
moral power which it is possible to apply in this imperfect world.
XIII.
STATE PERSONALITY.
One of the arguments urged in favor of religious
teaching and worship in our public school system
is based on the theory that the State, as such, in its
political and corporate character, is virtually a
moral person, and, hence, like individuals, the subject of religious responsibility. It must to some
extent, at least, be a theological organism, and, as
such, discharge religious duties, or be justly exposed to the imputation of irreligion and antagonism toward God. Those who adopt this view reason in regard to the State, considered as a body
politic, just as they do in respect to living and conscious moral agents. A similar method of reasoning is employed by those who desire to have the
Constitution of the United States so amended as
I42
lt 
Slale Personality.
to make it a religious as well as a political instrument. An organic law without religion in it, like
a public school without religion in it, is an offense
to God; and neither should be-tolerated, especially
by a people who hold to the doctrine of a personal
God and the duty of religious worship.  The purpose of this article is to examine the merits of this
politico-religious theory.
What then, is a State, in the general sense of
this term? Bouvier, in his "Law Dictionary," answers this question by saying that it is "a self-sufficient body of persons united together in one
community for the defense of their rights and to do
right and justice to foreigners.  In this sense the
State means the whole people united into one body
po/litizc.' Chief-Justice Chase,in delivering the opinion
of the Supreme Court of the United States in the case
of Texas vs. White (7 Wallace, p. 720, 72I), said:
"It [a State] sometimes describes a people or
community of individuals united more or less
closely in political relations, inhabiting temporarily
or permanently the same country; often it denotes
only the country or territorial region inhabited by
such a community; not unfrequently it is applied
to the government under which the people live; at
other times it represents the combined idea of people, territory, and government. It is not difficult
to see that in all these senses the primary conception is that of a people or community. The people
e  * *f  constitute the State.  *  *  *  AState,
I43
) 
Religion anrd the S/ace.
in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries and organized under a
government sanctioned and limited by a written
constitution and established by the consent of the
governed."
The constituent elements of a State or nation are
these:  I. A number of individual human persons.
2. The political union of these persons under a
government of law vested in and administered by
legal agents. 3. Their conjoint occupancy of a
given territory, over which, as to persons and things,
the government exercises a supreme and independent jurisdiction. Individual persons, as the primary conception, and their common subjection to
the same government and common occupancy of a
given territory, as the complemental conceptions,
constitute a body politic or State. These persons
are succeeded by others holding similar civic relations, and thus the State is perpetuated. The title
of the State is simply a class-term to represent all
these individuals thus united together.
Is, then, a State, considered as a whole and in
distinction from the individuals composing it, a personality possessing a moral nature and subject to
religious responsibility?  Professor Pomeroy, in
his " Introduction to Municipal Law," p. 392, says
that "the State, as separated from the individuals
who compose it, has no existence except in a figure;
and that to predicate religious responsibility of this
I44
i 
Slate Personality.
abstraction is an absurdity. Whatever, then, the
State does, whatever laws it makes, touching religious subjects, are done and made not because the
State is responsible, but simply that the people may
be secure in the enjoyment of their own religious
preferences." This he presents as the theory of
our national and State constitutions, in accordance
with which "the State, as an organic body, has
nothing whatever to do with religion, except to protect the individuals in whatever belief and worship
they may adopt."  The word State or nation is an
abstract or class-term, used to designate a mass of
individuals in certain relations to each other, established and maintained by law; and to predicate personality of this numnerical aggregate, or of the relations existing between its constituent parts, except
as a mere figure of speech, is an absurdity. A corporate personality is simply a fiction. A person is
a living and conscious moral unit, and no collection
of such units, in whatever manner related to each
other, can make a person.
When the Bible speaks of a State or nation it
uses the title by which it is known; and this title
is not the name of a person, but simply a term applicable to a whole class of persons. God blesses
or curses a nation only by blessing or cursing the
individuals who compose it. National character,
national responsibility, and national virtue or vice
exist only in the people, and independently of the
people they have no existence. The only person
Io
I45 
Religion ac~d the State.
ality that even by a figure can be affirmed of bodies of men grows out of their organization into
bodies, and this consists wholly in a set of relations
which real persons hold to each other, and on account of which they are bodies politic or corporate,
in distinction from miscellaneous and unrelated individuals.
Pennsylvania, for example, is a State or body
politic, composed of individuals and existing as
a State only through these individuals.   Their
joint occupancy of a given territory and their common subjection to the same government make them
a body politic or State. There is no objection to
speaking of a State as a plural person, if we keep in
mind that this is but a phrase of rhetoric, used to
describe real persons in certain relations to each
other, and that in reality there is no such thing as
a plural person. A bank corporation is a plural
person in the sense of a number of real persons associated for the purpose of doing the banking business, and in this sense only. So a State is a plural
person only in the sense of a number of persons
politically associated under a government of law.
They do not, by the association, beget a real personality distinct from their own as separate individuals.
Passing this point without further illustration,
we come now to the inquiry whether individuals
who as separate and distinct persons are bound to
have a theology and glorify God in their bodies and
spirits, which are his, may lawfully unite them
146
I
,. 
S/ate Personalily.
selves together in social organizations that do not
include religion in their objects, and, hence, do not
embrace any religious creed, worship, or duty in the
terms of the union? Let us reduce this general
question to specific modes of statement.
May two men form a partnership whose sole business is to buy and sell goods? May bank corporations, railway companies, insurance companies, trust
companies, manufacturing companies, and the like
be organized for purposes which are purely temporal,
and, hence, in the objects to be attained, involve no
reference whatever to God or the duties which the
associated persons, as individuals, owe to the Sun
preme Being? Must we, as moral beings, abjure
every association with others which, as such, does
not profess faith in the existence of God, and which,
therefore, proposes no duty toward him as one of
the things to be accomplished by it? Must every
body of men, considered as a body, perform the religious duties which belong to them as individuals?
Is the mere absence of religion in a social organization for a temporal purpose to be set down as a
positive principle of irreligion?
We suppose it enough to ask these questions.
Their answer lies upon their very face. No one
unless a wild and impracticable fanatic, will lay it
down as a principle of religious ethics that the duties which each individual owes to God morally exclude him from associating with others for purposes
and objects that have no reference to God. Such
I47 
Religioic and tie State.
a principle would forbid two men to unite their
strength in lifting a stone, which neither alone
could lift, unless a religious creed was stamped on
the process.  There are many lawful associations
of men in which the alternative does not lie between religion and positive irreligion, so that it
must be one or the other; and to assume that this
is the alternative in respect to these associations,
and then proceed to denounce them as atheistical
and irreligious because they are not positively religiousintheir objects, may be a wonderful display
of zeal, yet it is zeal at the expense of common
sense.
How, then, is it with that particular organization, association, or union of persons that we call a
State or body politic? Must it be positively religious in its objects in order not to be positively
irreligious? Take for example, the people who in
adopting the Constitution and providing thereby
for the establishment of a civil government, styled
themselves "the people of the United States." By
this instrument they organized a great national
association, whose objects, as set forth in the preamble, were "to form a more perfect union, establish
justice, insure domestic tranquillity, provide for the
common defense, promote the general welfare, and
secure the blessings of liberty to ourselves and our
posterity." The whole Constitution is limited to
these confessedly tcmporal objects.  It neither affirms nor denies any doctrine in respect to God or
'I48 
SlaZe Persoizalily.
any duty of human beings toward him. It expressly declares that "no religious test shall ever be
required as a qualification to any office or public
trust under the United States." An atheist is,
hence, just as eligible to any national office as the
most devout Christian. And to put the purpose of
the people beyond the possibility of dispute or doubt
the First Amendment to the Constitution provides
that " Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof."
Here, then, is a constitution, and here a civil
government provided for by it, and here a great
national State organized under it, with no affirmation
or denial touching religion in the fundamental law.
Whether the people are Pagans or Mohammedans,
Atheists or Christians, does not appear in the law.
No matter what they are, considered religiously,
the objects specified are such as are of common
concern and importance to them all. Now, is this
Constitution opposed to God and atheistical in the
evil sense because it does not embrace any doctrine
of God in its provisions and does confine itself and
the government which its authorizes exclusively to
the temporal objects named in the preamble? Is
the nation a community of atheists because God and
religion are not found in its organic law? We
might as well say that the Constitution is opposed
to the Copernican theory of astronomy, because it
contains no doctrine on the subject of astronomy.
I49
i
i 
Religion and the State.
It is neither a theistic nor an arti-theistic constitution; but republican in its theory of government
and absolutely secular in its ends. The State established under it, existing as a body politic and doing
its work through the agency of a government, is
not a theological State, any more than it is a geological or astronomical State. It is a republican
organism, for purposes that relate purely to the
temporal interests of men; and, as such, it has no
opinions to express or enforce in regard to religion.
And in this attitude of simple omission there is no
opposition to God or to Christianity, and certainly
no express or implied avowal of atheism as a creed.
It is true, in all cases in which affirmation is a
duty, that negatives, not in the sense of positive
denials, but in that of not affirming, are equivalent
to positive denials. But where affirmation is not a
duty, there silence is not an offense. If one is not
bound to speak, there is no sin in not speaking.
Let it then be shown that States, as such, and civil
governments, as such, are bound to have a theology,
and assert it by legal provisions, and we shall concede their sinfulness if they fail to comply with the
obligation.  Let  us have the Scriptures, or the
intuitions, or the experience on which this proposition rests. The theory of State personality furnishes no such proof, since it is nothing but a mere
fiction of the brain. History shows that for governments, as such, to assume that religion is one of
their proper ends, and then act upon the assump
I5o
I 
S/ale Personalily.
tion, is among the gravest mistakes that can be
made in human society. Out of this one mistake
have arisen the politico religious despotisms that
have cursed the race, and to a large extent the religious corruptions that have dishonored God and
injured the interests of truth. There is no lesson
more clearly taught by history than that civil governments are not well fitted to be creed-makers or
creed-administrators in religious matters.
This being the fact, then these governments,
surely, are not to be regarded as atheistical and hostile
to God if they simply do not do what they are not fitted to do and what nolaw of God, in the Bible or out
of it, requires them to do. They are not to be indicted as offenders because they limit themselves to
their proper business.  Well would it be for the
world if all governments and States had been guilty
of this kind of offence.
But should not those who enact and administer
laws discharge their religious duties to God by acts
of homage and obedience to his will? Undoubtedly
they should; not because they are kings or rulers,
but because, like all other human beings, they are
personal subjects of the divineGovernment.  It so
happens, however, that the duties which they owe
to God do not extend to their official character as
civil rulers in any sense that confers on them the
right to prescribe the religious duties of those subject to their authority.  They are not prophets of
the Lord and not delegated to expound or execute
I 5 I 
Reheij,ion and the State.
the divine will. Simply as rulers, exercising govern.
mental power, they have no right to have any religion, and cannot have any without being usurpers
in theory and almost always oppressors in practice.
It is quite enough for them to perform their own
personal duties to God, and then concede precisely
the same privilege to all others, without any hindrance or constraint. Their official responsibility
has nothing to do with the enactment and enforcement of laws to regulate the religion of the people.
Here they have no rightful jurisdiction and, hence,
no duty to discharge to God or man.
All this clamor about atheism and positive irreligion being the necessary corollary of no religion
in the State organism is either a mere play upon
words or a gross blunder of the intellect. It invests
the State, in distinction from the people composing
it, with personal attributes, and then assumes that
its duties in the matter of religion are identical
with those of real persons. The individual must
have a theology in his head and his heart, and, therefore, the State must have the same in its head and
heart, not as an individual but as that mysterious
entity or something.known as a State.  Unfortunately for the theory, this something has neither a
head nor a heart: neither a body nor a soul. All
the existence which it has or can have is simply
that of certain relations which individuals hold to
each other and on account of which they are, taken
in the aggregate, called a State. And to our dull
I 5 2
1 
State Personality.
apprehension if these individuals, each for himself,
including rulers and subjects, do justly, love mercy,
and walk humbly with God, they will in the most
effectual way acknowledge and honor him. They
do not need, in order not to be opposed to God, to
write their religious creed in their governmental
constitution or make it one of the objects for which
they are associated as a body politic.
George Washington, surely, was not an atheist.
The men who framed the Constitution of the
United States were not atheists. The people who
placed their seal upon this instrument were not
atheists. They believed in God and large numbers
of them were devout worshippers; and yet they
adopted a constitution of government from which
they excluded-not by accident, but with deliberate
purpose-all distinctively religious ends and ideas.
No other example of atheism and hostility to God,
according to the theory we have been considering,
so openly enunciated and so long continued, canbe
found in all the annals of mankind. The logic of
this theory turns this Constitution into organized
atheism of the most frightful'character. Think of
it! Not a word about God, or about Christ, or
about the plan of salvation, or about Heaven or
Hell in any part of this instrument! Forty millions
of people, millions of whom are Christians, living
under such an atheistical Constitution! A civil
government created, and year after year conducted
for now almost a century, and no religion in it!
I53 
Religion and the State.
and Presbyterians, Baptists, Methodists, Congregationalists, Episcopalians, and various other religious sects parties to this enormity! The reader
need feel no alarm. The enormity is the wisest,
the best, the most reasonable plan for a civil
government upon which the light of day ever
dawned.
XIV.
STATE CONSCIENCE TOWARD GOD,
The advocates of religious instruction and worship in the public school, whether by the simple
reading of the Bible, or with the addition of other
exercises, insist that the State ought to have a conscience toward God. This conscience should embrace and affirm some definite system of religious belief; and this is the system to be taught in the public schools at the general expense. Not to have such
a conscience and not thus to express it makes the
State an offender against God. The central point of
this argument is furnished by the word conscience,
considered as an attribute of the State. The conscience in question is that of the State and the relation
had in view is the one which it holds toward God.
It is not only a State conscience, but it is a State
conscience toward God.  The duty to God which in
this case it imposes is that of religious instruction and
154
I 
SZafe Coiscie tce Zoward Gocd.
worship in the public school, organized and governed
by the State and supported by compulsory taxation.
Such is the argument. What is it worth?
In order to answer this question, we need in the
outset to explain the term coiscieice.  The term
denotes any one or all of the following facts in the
constitution and operations of the human mind: I.
The intuitive perception or idea of right and wrong
as opposite moral categories. 2. A rational judgment applying this idea to specific actions, either
done or to be done, and pronouncing them either
right or wrong. 3. The authoritative sense of obligation to do or forbear according to the decisions
of this judgment. 4. The moral emotion, either of
approbation or disapprobation, when an act being
done, is regarded as right or wrong. 5. The sense
of merit or demerit, according to the view which the
mind takes of the act, instinctively disposing virtue
to expect reward and vice to anticipate punishment.
All these facts exist in human nature. Universal consciousness attests their reality and all
languages have words for their expression. Whether
the general term conscience in any particular use
of it embraces all of them collectively, or simply
refers to one or more of them, we always decide by
the connections in which it is employed. The facts
themselves, though intimately related to each other,
are distinct, and, taken as a whole, they constitute
an essential part of our moral nature.
The fundamental condition of a conscience
I55
i 
1Reigiol[o  and le Slal/e.
towaMd God is some idea of God, of what he is, and
of our relations to him. This idea connects itself
naturally with that of obligation to him, and with
this is associated the direct and authorative sense
of duty toward God. Coupled with this is the
emotion of approval or disapproval, accordingly as
we judge ourselves to be right or wrong in this
relation. This emotion leads to the sense of good
or ill desert, as the effect of our moral attitude
toward the Supreme Being. Thus all the elementary facts which are comprehensively grouped under
the generic term conscience appear in human consciousness when the subjective in man is engaged
with the objective in God. They are not the fancies
of hair-splitting metaphysics; but realties, ranking
among the most important elements of our spiritual
being. Conscience iv man is always conscience
toward God when the latter enters the field of
vision. God seen and thought-of brings conscience
into action. Man in this respect is not a stone or
a brute; but a moral being, so constructed as to be
impressed with the idea of God.
All the facts of conscience, whether they relate
to God or man, are personal facts, existing solely
and only in inividza/ minds.  There may be millions of consciences, either concurrent or divergent
in what they affirm; yet every one of them belongs
to some specific person. There is no such thing as
an impersonal or general conscience not analyzable
into individual ones.   Wherever  we find a con
156 
State Coizscience toward God.
science toward God there we find a moral being for
its home.   Its individuality is as obvious as our
mental identity. Dispossessed of this feature, it
instantly ceases to have any existence.
The individuals in whom a conscience toward
God exists may, for the purposes of this article, be
arranged into two classes-the first embracing all
persons who are simply private citizens, and are,
hence, invested with no official functions in the
management of government; the second embracing
the officers of law, or those who wield the authority
and coercive power of government. All persons,
in every community and under every form of government, belong to one or the other of these classes.
The body politic is made up of rulers and the
ruled.
As to the first class, there is no doubt that every
member of it ought to have a conscience toward
God for?i'isclf and to act according to its dictates.
It is the highest authority that can be established
in his soul for the government of his own conduct. It is the supreme law of his inner nature. It
is, however, quite enough for him to place his own
actions under the control of his own conscience,
and leave all others to do the same thing. He may
approve or condemn the conduct of others; he may
extend or withhold his personal favors according
to his own sense of duty; he may seek to enlighten
those whom he deems to be in error; he may remonstrate against wrong; he may exercise all his pow
I 5 7 
Relidgion an~d i/e Stlae.
ers in thediscussion of moral and spiritual questions;
whether in relation to God or man; but he has no
right to be atrespasser upon the rights of conscience
as vested in others. A conscience toward God that
possesses the character of self-assuming and persecuting bigotry may be very zealous and sincere;
yet it is the conscience of a despot, who, if he had
as much power as zeal, would be a monster. Human
nature, alike in Catholic and Protestant bosoms, is
very apt to transcend the limits within which conscience may lawfully move and beyond which it
becomes the usurper of other men's rights, claiming
for itself prerogatives that do not belong to it.
As to the other class-namely, legal oficers, who
wield the power of the sword and whose will in relation to others is clothed with the attributes of law
-it is equally clear that they are bound to have a
conscience toward God and to obey its dictates.
They ought to rule in the conscientious and pious
fear of God. The fact that they are rulers and, as
such, possess authority over others, does not cancel
their personal responsibility to the King of kings.
God's government reaches them as really as it does
the humblest citizen or subject.
When, however, the civil ruler undertakes to
make his conscience toward God a law for the regulation of others, defining bylaw what shall be their
conscience toward God, and thus arming his conscience with the coercive powers of his office, then
the whole question is most materially changed. His
I58 
State Coniscience toward God.
conscience is then official, and asserts and enforces
a jurisdiction over the thoughts and actions of others
in respect to God.  It is not simply a reasoning
conscience; but a mandatory one, with the compulsions of civil government behind it. It is not an
apostleship to preach; but a statute to bind.  It
does not deal merely with the duties which
men owe to each other as members of the State;
but legislates in respect to the duties which they
owe to God. This sort of conscience in the civil
ruler, whether Christian or Pagan, Catholic or Protestant, is an outrage to individual rights and a
curse to human society. Such consciences, whether
right or wrong in the creed they affirm, are always
wrong in connecting with it their official power.
They are the consciences of usurpers.
If, then, the term State, as employed in the title
of this article, simply means the people who compose the State and to whom it is applied as a class
term, and who as individuals are subject to the authority of civil government, then there can be no
question whether the State-that is to say, the people —viewed as individuals aid citizens, each by
himself, should have a conscience toward God and
faithfully perform the duties which it imposes. If
the term means those who rule in the enactment and
execution of law, then it is equally clear that they
ought to have a conscience toward God and to be
influenced thereby in the discharge of all their duties,
whether official and public or private and personal
I59 
Relizioz acnd tle Slale.
If, however, the meaning of a State conscience
toward God be that the general conscience of the
people, as an aggregate of individuals, or that of
the civil ruler, or of both put together, should be
embodied in a legal statute, and thus become a aw,
recognizing a religious system and providing for
its enforcement or for its propagation at the public
expense, then, under the somewhat plausible
phraseology of a State conscience and of seeming
fidelity to God, we have a theory as old as religious despotism. Such a conscience is simply the
long standing heresy of tyrants. It is a conscience
that carries with it the power of compulsion. How
far other consciences shall be tolerated or whether
they shall be tolerated at all is a question in regard to which these /egal State consciences toward
God have never been safe judges. History gives
them a very bad reputation. The vicious and evil
character of their underlying principle is not to be
sanctified by a pious title. Satan does not become
an angel of light by wearing an angel's garb.
What kizd of a conscience toward God shall
the State, as a legislating, coercing, and taxing
power, possess and put into practice? What shall
it affirm as true and what shall it reject as heresy?
Shall it be a Pagan or a Christian, a Catholic or a
Protestant, a Trinitarian or a Unitarian State conscience toward God? These are very vital questions if, on the plea of duty to God, we are going
to establish an alliance between religion and the
i6o 
State Conscience toward God.
civil power. Manifestly, we want the right kind of
religion-the true, and not the false; and, in order
to be sure on this point, we need to find somewhere
a body of men, or, at least, one man, whose conscience toward God may be taken as the infallible
standard for all other consciences. The best way
to run the machinery of such a conscience is to get
a Pope, and then persuade some cecumenical council to vote that he is infallible, and then make him
the head of the Church, and either the light or
head of the State, or both at the same time. The
Papacy just fits this theory of a State conscience
toward God, and the theory just fits the Papacy.
But for Protestants to adopt it, or to use an argument which, if it means anything, implies the theory, is -to contradict one of the first principles of
their professed faith.   State consciences toward
God, in the sense of connecting with them the
civil power, ought to be the exclusive monopoly of
Roman Catholicism.
In respect to whom  shall the State have this
conscience toward God, and how shall it express
the same? The answer to this question given by a
certain class of Protestants, in the discussion of
the School question, is this: The State should have
a conscience toward God in respect to the chihreri
in the public schools. and then express the same
by  providing  for religious  instruction in these
schools-not according to the Catholic idea of such
instruction, but according to the Protestant notion
II
I 6I 
-namely, by the reading of King James's version
of the Sacred Scriptures, either with or without
other religious exercises; and that it should then
tax all the people-Catholics and Protestants, Jews
and Infidels alike-to pay the expenses. Such is the
State conscience toward God upon which these
Protestants insist. The meaning of their proposition is that the civil authority of the people, as represented by and operating through the agency of
government, should make tiheir conscience towards
God the rule of its action in the public school. For
their kind of conscience they claim the preference,
and demand that the State, as a body politic, should
concede the claim. A Catholic State conscience toward God would not be any more satisfactory to
them than is their conscience to a Catholic or a
Jew. Let the public school, in the matter of religion, be what they think it ought to be, and then
the State is all right, because it agrees with them.
Let it be what the Catholic desires it to be, and
then the State is all wrong, because it does not
agree with them.
But why limit this State conscience toward God
to the children and the public school? Why not
extend its benefits to adults, as well as children?
Why should not the State take charge of the whole
business of religious instruction in the community
-appoint ministers to preach to and teach the
people, build church-edifices, prescribe and regu
late the forms of worship, make religion according
Religioll 17,11t tIle Astutie.
i62 
State Conscielce toZUward God.
to the judgment of the State compulsory, and then
pay the expense out of the public treasury? Why
stop half way  with the work?  The  argument
which declares that the State should have a conscience toward God, and then give expression to it
by religious instruction and worship in the public
school, if good at all, is good to prove more than
those who use it are willing to admit. Generalize
their logic, and, unless they believe in the doctrine
of Church and State, they at once abandon it themselves, notwithstanding their zeal for it in a particular application.
There is, moreover, no reason why the State
should tax the people to teach a given system of
religion to children that is not just as good to show
that it should do the same thing in order to teach
religion to adults. The latter need it as really as
the former; and, hence, if the business of religious teaching belongs to the State, as a duty which
it owes to God, then it should be done on a scale
as comprehensive as the wants of the people. To
confine the effort simply to children is to fall very
far short of its whole duty.'Carry out the principle, and this State conscience toward God will not
stop with the public school, but will extend to the
entire people.  It need hardly be said that this
would most radically change the nature and purposes of our whole system of State governments.
We do not believe that it is the province of the
State, as such, to do the work at all, either in the
I63
l 
Religion angd the State.
public school or anywhere else, and, hence, we reject as both false and dangerous all State consciences toward God that make the State a religious propagandist. Individual consciences toward
God there should be. State consciences toward
God, in the sense of giving to individual con.
sciences the authority of law, there should not be.
XV.
THE MAJORITY CONSCIENCE.
Mr. Gladstone, in his work on "T'he State in
its Relations to the Church," reasoning from the
postulate of State personality, in distinction from
that of the people composing the State, derives
therefrom the doctrine of State religion as a duty.
The kind of religion to be established by the State
"must be that of the conscience of the governor or
none." Though meaning the parliamentary and
royal conscience in favor of the Church of England,
he, nevertheless, admits that the same principle
would equally apply to the conscience of a Mohammedan or Pagan prince. Not what is true, but what
"the governor" thinks, furnishes the rule for a
State religion. He must, of course, follow his
own opinions, and, hence, place the seal of his authority upon the religion which he thinks to be true.
Some who have participated in the discussion
of the Schoo] question in this country claim for the
I64
I 
The Majority Conscience.
so-called "majority conscience," as compared with
that of a dissenting minority, just what Mr. Gladstone so strenuously asserted in behalf of "the conscience of the governor." They simply substitute
the former for the latter conscience. In both cases
the conscience is legal and official, and not simply
advisory and argumentative.
Stated syllogistically, the argument stands thus:
The majority ought to rule; those Protestants who
demand religious instruction and worship in the
public schools by reading King James's version of
the Scriptures are the majority; therefore, these
Protestants ought to rule. Nothing can be more
conclusive than this reasoning, if we admit the
premises. But if either premise is false or needs
to be rmaterially modified, then the conclusion is not
quite so obvious.
There is no doubt that Protestants, taken as a
whole, are much more numerous in this country
than any other class of religionists; and in this
sense there is no objection to calling it a Protestant
country. Christianity under the Protestant form is
the prevalent religion of the land. We should,
however, bear in mind that Protestants, understanding by this term the church-membership of the various Protestant sects, do not embrace one-quarter
of the whole population of the United States. If
they were unanimous in the opinion that Biblereading and religious instruction should be had in
the public schools of the country, this would by no
j65 
1Relz'oloz and Ite S/ale.
means establish the truth of the minor proposition
in the above syllogism. It is well known that they
are not thus unanimous; that large numbers of
them adopt the theory of an exclusively secular education in any School system which the civil authority establishes, regulates, and supports by general
taxation; that infidels and free-thinkers hold the
same view; and that Jews andCatholics object to
being taxed for the maintenance of public schools
that are Protestant in their character or tendency.
The public mind is greatly divided, and so is the
Christian mind of this country divided, in regard to
the School question; and what is the preponderant
opinion of the people is very far from being settled.
It will be time enough to reason from the majority
conscience, as claimed by a certain class of Protestants, when the fact is established that this conscience represents the majority of the American
people.
It is well also to remember that our public
schools are not institutions of the General Government at all; but of the several State governments,
under whose authority they exist.  The majority
conscience in New York State has nothing to do
with the School question in Pennsylvania. It cannot overleap State boundaries without overleaping
its own jurisdiction. At the most, it is a majority
State conscience. And if the States, as is the usual
fact, remit under general laws the management of
public schools to local agencies, as boards of educa
I66
i
I 
The Majorily Contscience.
tion in cities and trustees in school districts, chosen
by the people, then this majority conscience narrows itself down to a city majority conscience or a
school-district majority conscience, as the case may
be. It does not even reach a whole State, to say
nothing about the whole country, except by adding
all these  local  majority  consciences  together.
Whether, then, King James's version, or the
Douay version, or neither shall be used in the public
schools would depend either upon the majority
State conscience or upon that of local majorities.
Hence, before the minor premise which we are now
considering can be affirmed as the basis of a general conclusion in regard to our school system, we
want to understand by a thorough canvass of all the
States what the majority conscience really demands.
We commend this item of statistical labor to those
Protestants who assume for this conscience a specific character as the means of proving a corresponding conclusion.
It often happens that by simply changing the
minor premise of a syllogism, while retaining the
major, we not only entirely change the conclusion,
but also reveal the true character of the latter premise. Take the following example: The majority
ought to rule; the disciples of Thomas Paine, who
demand that his "Age of Reason" shall be read
and taught in the public schools, are the majority;
therefore, these disciples ought to rule. Here we
have the same major connected with a different
I67 
Religion and the State.
niiior premise, and, consequently, a different con
clusion. Are Protestants, to say nothing about
Jews and Catholics, prepared to accept this conclusion, and then quietly submit to taxation for the
purpose of paying the expenses of teaching infidelity? Who doubts that they would protest against
it as an outrage? And yet the syllogism is just as
valid when used by the disciples of Thomas Paine,
being the majority in any State or any school district,
as it is when used by Protestants, they being the
majority. Its logical power is precisely the same
in both cases, unless we assume for Protestants some
special right which is not common to all citizens.
Take another example: The majority ought to
rule; Presbyterians, who demand that the Westminster Confession of Faith and the Shorter Catechism shall be taught in the public schools, are the
majority; therefore, these Presbyterians ought to
rule. This might be very agreeable to Presbyterians; but how would it be with the Baptists, the
Methodists, the Episcopalians, and other religionists, when required to pay taxes for the teaching
of Calvinism according.to the Presbyterian interpretation? They would complain of the injustice,
and this is precisely what Presbyterians themselves
would do under similar circumstances.
We might extend these illustrations through any
number of syllogisms, and, by simply changing the
minor premise, prove almost all sorts of conclusions. An obvious fallacy lies in the major prem
i68 
The Majority Consciece.
ise, especially in assuming the rule of the major ity, without any qualification. The rule itself sup poses a society of human beings bound together in
certain relations and for certain ends or objects;
and it is undoubtedly a good rule, so long as the
action of the majority is limited to these ends. A
railway company is organized to conduct a specific
business, and is by the terms of its charter confined
to that business. The majority of stockholders,
represented by the directors, may control the business within the limits of the objects for which the
company exists as set forth in its charter; yet no
one will pretend that the majority, simply because
it is such, would have the right to undertake the
work of Christian missions to the heathen and
spend the funds of the company in propagating the
Gospel. The answer of law and of common sense
to such a proposition would be that this work, however important, does not come within the scope of
the organization; and, hence, that the majority
cannotwield its powers for any such end. The
charter itself is the constitution of the company,
and protects the rights of the minority, by limiting
the powers of the majority.
The same principle applies to civil government
organized according to the democratic theory. The
majority are entitled to rule within the limits of the
objects for which such government exists; but the
moment these limits are exceeded, then the action
is simply usurpation and may be an outrage to the
0
I69 
Religion and Ihe State.
rights of the minority. No man, surely, will pretend that majorities under our system of government have a right to do just what they please. They
must act within certain limits or become oppressors.
Let it, then, be shown that religion or irreligion
in any form constitutes one of the ends of civil
government, as we have it in this country, and that
the people have vested their government with
power to propagate one or the other; let the well
established principles of American democracy in
regard to religion be thus reversed; and then we
shall grant that the majority conscience would have
the legal right to suit itself, and, at the general expense, provide for teaching Protestantism, Catholicism, Judaism, Mormonism, Deism, Paganism, or any
religious or anti-religious system, not only in the
public schools and to children, but also in the pulpit and to adults. It would then take the place of
the governor's conscience in the theory of Mr.
Gladstone, or the Pope's conscience in the theory
of Romanism. It certainly would be no better,
since we may as well have a religious pope in one
man clothed with the civil power, as a virtual pope
in many men.
The unqualified and unrestrained power of the
majority involves a principle that is fatal to the religious rights of the minority, and leaves the latter
without any protection against the abuses of power.
Adopting this principle, we may as well at once dis pense with constitutions and bills of rights altogether,
I 7o 
The MAajoriy Coitsciecic(.
and simply say that, for all things and all purposes,
no matter what, the existing majority may lawfully
do its own bidding and employ the whole power of
society for its accomplishment. This would be a
short cut to the doctrine of simple absolutism under
a democratic form. Any one who even half understands our political institutions knows that this is
not their character at all, and that religion in any
form is, as to the compulsory acceptance or support
thereof, among the things excepted from the jurisdiction of civil government. The people have
seen fit not to trust even a majority to pass any
law for the government of the whole in respect to
the maintenance and propagation of religion.
If, moreover, we look at the question as one of
ethics, aside from constitutional limitations, we can
hardly fail to see that this majority conscience,
when employed in imposing religious taxes and burdens upon a dissenting minority, is not exercising
its own rights of conscience, but trampling upon the
rights of others. This would be readily seen by
Christians if the majority conscience were Pagan
and should compel Christian consciences to support Paganism. Is it any less a wrong to compel
Pagan consciences or any dissenting conscience to
support Christianity? The rights of conscience are
individual and personal, and are not to be settled by
the arithmetic of putting many consciences on the
one side, against a few on the other. The conscience of a single man, peaceably exercised, is for him
I7 I
I
I 
Religion and the Stale.
good against he right of the whole race to invade
it by any compulsory process, when religion is the
matter to which it refers. There ought to be room
in this world for all the consciences in it, without
any encroachment upon the rights of each other;
and there would be if all men, in their relations to
each other, would be content to exercise their own
rights of conscience in a reasonable manner. This
would leave every man to determine the religious
question for himself, and, as the necessary consequence, relieve every man from all impositions, burdens, taxes, or disabilities arising from the determination of the question by others. Though the rule
is a simple one, it is, nevertheless, one of the most
difficult things for bigotry to learn. The only way
to learn it effectually is not to be a bigot.
It is quite true that there are some inconveniences in the doctrine of private judgment on religious subjects. Yet, notwithstanding these inconveniences, it is much better than the doctrine of
State judgment, whether in the form of the governor's
conscience or that of the majority. If we have the
liability of aberration and diversity in the one case,
we have the more formidable liability of oppression
and injustice in the other. This liability of diversity is nqt, after all, a very frightful thing, since it
implies individual activity. There is much truth,
not always seen, in the following observation of
Isaac Taylor, contained in his "Essays on Ultimate
Civilization: " "Religious  differences-well defin
I 72
Mk 
The Majority Conscience.
ed, firmly maintained, and fully developed, and in
such a condition that they are not mere elements,
but are energies within the social mass-when duly
attempered, stand, if notforemost, quite prominent
among the forces that are carrying us forward toward a higher civilization." The truth is, religion
is just one of those things that can never be wisely
run in the rut of the governor's conscience or in that
of the conscience of the majority, even for the
sake of unity in the faith. By so doing we always
purchase the unity at too high a price. The failure
to perceive this fact is one of the fundamental errors of the Papacy, and of some Protestants who
are half Papists without knowing it.
God has established no visible authority among
men, either in any single man or any number of
men, whose decisions in matters of religious faith
are a final law to every individual. Pretenses of
this character, whether ecclesiastical or civil, while
unproved assumptions, generally furnish the premises on which oppression, in some form, bases its
conclusion and, in view of which, justifies its work.
Whether the pretender appears. as the governor's
conscience or as the majority conscience makes no
difference with the fact. Arm either of these consciences with the civil power, and then it has a
power to which it almost never fails to add the fact
of oppression.
I73 
.Religion and the Slate.
THE SPECIAL ARGUMENT.
XVI.
THE DIVINE RIGHT OF CIVIL GOVERNMENT.
If by the divine right of civil government be
simply meant that men naturally exist as political
communities, that some form of government is
the necessary adjunct of this fact, and that God
has established and maintains a constitution of
things leading to these results, then it may readily
be conceded that civil government exists and operates by a divine right. Earthquakes and volcanoes also exist by the same right. All the relations
of means and ends and all natural laws rest on the
same basis. God's providence embraces the whole
scheme of things; and in the scheme political society and civil government have their place by divine appointment, just as everything else has its
place.
Those who affirm the so-called divine right of
civil government would not accept this as an adequate statement of their doctrine. They hold that
such government is not simply a natural and providential appointment or order of things; but also
a divine institution, in the sense of having God's
authoritative seal affixed to it. His moral government operates, in part, at least, through the civil
government which he has instituted and specially
chartered by vesting it with his own authority. The
civil ruler is officially the minister of the divine
174 
Divine Right of Civil Government. 175
will. God's authority stands behind his authority
as its sanction and source. He is to be obeyed as
the vicegerent of Heaven, and to resist him is to
resist God. His right is an official divine right.
He governs in the name and by the authority of
God.
The Old Testament account of the origin and
organization of the ancient Jewish nation very
clearly presents such a fact. The governmental
system of that people was a theocracy, established
directly by God himself, attended by miracles as
signs and seals thereof, and bearing upon its face
the broad inscription "Thus saith the Lord." Its
laws were divine. God was both the object of worship' and the civil sovereign. Moses held the twofold relation of being his representative and the
leader of the people. God appointed him to this
position and supernaturally qualified him for its
duties. Joshua succeeded him, and others succeeded him. The Church and the State were the
same thing. The underlying theory of the whole
system was that God himself was at the head of
it, and that men were merely his agents.
Have we the parallel of this fact anywhere else
in the history of the world? Is the fact, so far as
the question of divine right is concerned, substantially a type of all governments? No one, surely,
is bound to accept such a proposition until it is
proved. The proper proof thereof would be his
torical. 
-Religion and the Slate.
Take, then, as a specimen illustration, the government of Great Britain, and subject it to the historic test. Starting with the native Britons, trace
it through the Romans, then through the Saxons,
then through the Normans, and then onward
through a long succession of political changes,
until we at last come to Victoria and the two
Houses of Parliament, as forming the existing British Government, on the basis of institutions which
have been the growth of more than two thousand
years. Study this whole history from its earliest
point to the present hour, and where will one find
a leaf or even the fragment of a leaf showing that
God has interposed in any special way, made any
revelation of his will, wrought any miracle to prove
such a revelation, appointed or inspired any ruler,
or done any other thing different from the usual
providence of cause and effect by which he rules
in all the affairs of earth? There is not a solitary
page of credible history that establishes any such
fact. If, then, Victoria rules by a divine right,
other than the right derived from the acquiescence
and consent of the people of Great Britain, let her
show her title-deed, with God's signature affixed
to it. If it be said that she has inherited the
throne from a royal ancestry, then let us have the
king or queen who originally received the right
from God, and also the "Thus saith the Lord" for
its transmission in the line of family descent until
it has finally lodged in Victoria, and is waiting
I76 
Divine Right of Civil Governmenl.  1 77
to lodge in the Prince of Wales. The plain fact of
history is that her right is simply that of birth,
taken in connection with the established institutions of Great Britain; and there is not a king
or queen on the face of the earth who can present any better title.
It happens to be a fact that all such titles are
not distinguished by any divine prerogative, divine
interposition, or divine inspiration, that makes them
essentially different from the commission of a bank
president or the head of a manufacturing company.
Victoria has no higher or better warrant from
Heaven to perform the duties of a queen than has
a common laborer to do an honest day's work for
his employer. Her providential position brings
with it peculiar duties; and this is true of every
man's position. She is simply what she is in the
course of a natural providence; and of whom is not
this equally true? The hand of God is no more really involved in the formation, constitution, growth,
and government of empires than in the formation
and growth of coral reefs.  Both are the products
of natural forces, existing and acting under Divine
Providence, and giving in the one case the history
and phenomena of empires and in the other those
of coral reefs.  The most critical study of a State,
no matter what may be its form of government,
merely supplies facts that run in the channel of
natural events.  And the same is true of "a swarm
of bees or a family of beavers."
12 
Religion and lze State.
Macaulay, in his review of Gladstone's work on
Church and State, has a suggestive passage upon
the mainzer in which civil governments have usually become invested with their authority. We
reproduce a part of it, as follows:
"A nation of barbarians pours down on a rich
and unwarlike empire, enslaves the people, portions
out the land, and blends the institutions which it
finds in the cities with those which it has brought
from the woods. A handful of daring adventurers
from a civilized nation wander to some savage
country and reduce the aboriginal race to bondage.
A successful general turns his arms against the
State which he serves. A society made brutal by
oppression rises madly on its masters, and sweeps
away all old laws and usages; and when its first
paroxysm of rage is over, sinks down passively under any form of polity which may spring out of the
chaos. A chief of a party, as at Florence, becomes
imperceptibly a sovereign and the founder of a
dynasty. A captain of mercenaries, as at Milan,
seizes on a city and by the sword makes himself its
ruler. An elective senate, as at Venice, usurps
permanent and hereditary power. It is in events
such as these that governments have generally
originated."
This presents a true picture of the governmental
divine right as usually seen in the history of the
world. The right, in respect to the process of its
creation and establishment, has generally been the
I78 
Divine ]Tight of Civil Government. I 79
divine right of the sword, of military conquest, of
the strongest battalions, of brains circumventing
ignorance and weakness, of cunning, intrigue, artifice, pillage, and outrage. The events in which
the right has been cradled and out of which it has
sprung are the products of hSuman forces, and these
forces for the most part stamped with the indelible marks of iniquity and crime. These events
exist in the scheme of Divine Providence; just as
sin exists in that scheme, but without the sanction,
authorization, or moral approval of God. He may,
indeed, cause the wrath of man to praise him, or
use one set of tyrants to punish another, or providentially overturn one despotism through the
agency and ambition of another; but this does not
make him the author of the wrath, or the approver
of the tyranny or any of its enormities. It is the
prerogative of God to bring good out of evil and
accomplish his own purposes through even the
wickedness of men. The murderers of Jesus fulfilled the divine counsel; yet it was not the less
true that they slew him with wicked hands. So
human governments may fulfil the divine counsel,
and yet not be of God in any other sense than that
of being the creations and institutions of men under
his ordinary providence.
A very serious difficulty in investing the civil
ruler with divine authority is supplied by the fact
that the ruler himself is neither inspired nor infallible and is often a moral monster. The office, with 
Religion and the State.
out the ruler filling it and exercising its powers,
is a meaningless abstraction; and when we put the
ruler there we see at once that, whatever he ought
to be, he is not, as a matter of fact, always the
minister of the divine will. The rulers of this
world have been largely the oppressors of the race;
and their governments, though better than anarchy,
have in multitudes of instances been stupendous
machines for the perpetration of cruelty and wrong.
Are the wrongs of civil government committed by
God's authority, and is it exercising that authority
when committing these wrongs? To assert this
would be to impeach his character and blaspheme
his holy name. To say that governments, established
by iniquity and perpetuating the iniquity in which
they originated, are the executives and representatives of the divine will in any other sense than that
of existing in the providence of God, and that
resistance to them is a virtual resistance against
God, is to place his authoritative sanction upon
the most horrible abominations found on the page
of history. The divine right of civil rulers would
be  a mere assumption without proof even if all
rulers had been wise anid pure; but when we put
the Alexanders, the Neroes, the Caligulas, and all
the bloody tyrants of history into the catalogue of
civil rulers, then the doctrine is rendered impossible by the attributes and moral character of God.
If it be said that it is only when civil government
does right that it acts by and represents the
I 80 
Divine Righlt of Civil Government.  181
authority of God, then it has no more divine authority than a railway company has when doing right.
All moral beings, whether kings on thrones or
peasants in cottages, have a divine warrant for doing
right, in the sense of being obligated thereto by the
law of God. This warrant includes the civil ruler;
but it has no special application that distinguishes
him from other men. Justice rendered by the private citizen is as really divine as justice rendered by
the magistrate.
But did not Paul, in his Epistle to the Romans,
tell the Christians at Rome to be "subject unto the
higher powers?"  Did he not say that "there is no
power but of God," and that "the powers that be
are ordained of God?" Did he not say that whoever "resisteth the power resisteth the ordinance of
God?"  Did he not speak of the civil ruler as "the
minister of God" for good? Did he not call him
the "revenger of God to execute wrath upon him
that doeth evil?"   Did he not exhort the Roman
Christians to "be subject not only for wrath, but
also for conscience' sake?" This is all true; and
there is no difficulty in the language, regarded as
addressed to Christians subject to the authority of
a cruel Pagan Emperor, and designed to inculcate
upon them the general necessity and duty of obedience to his laws. Like many other passages in
the Bible, it recognizes the relation of ruler and
subject as an existing fact, and directs the latter to
respect the authority of the former; and so far lays 
Relizgion and the State.
down a general principle of conduct applicable in
all ages and under all governments. Such was the
manifest intention of the apostle.
If, however, we press the language, and especially
particular phrases, beyond this construction, and
make "the higher powers" that then existed at
Rome "the ordinance of God" for the exercise and
administration of his own authority, and further
make Nero "the minister of God " for good and the
divinely-commissioned avenger of evil, and then take
the whole as a specimen case for all human governments, we shall have for the result self-contradiction
in the Bible and the contradiction of the Bible by
the most obvious facts. The example of Peter and
John in preaching the Gospel when forbidden to
do so by the Jewish authority, and of Daniel in
disobeying the edict of a king, refutes such an interpretation of Paul's words. The character and
conduct of Nero show that he was not the minister
of God, but a fiend of cruelty. Other rulers have
displayed a similar character. To quote theapostle
as affirming the divine authority of every existing
civil magistracy and laying down the universal obligation of obedience thereto as a duty which must
always be performed is to make him teach what is
not and cannot be true. It would place men so
under the authority of the civil ruler that, no matter who he is, or how he has acquired his power, or
how he uses it, they would have no alternative but
to submit and obey. All resistance under any cir
I82 
Divine Righz  of Civil Government.  183
cumstances wouldbe unlawful. The right of revo.
lution could never exist, since it would never be consistent with the divine right of "the powers that be."
The only admissible construction of Paul's language is that which makes all governments "the
ordinance of God" in the general providential sense,
and that, too, simply because they exist, and for no
other reason and in no other sense. Whether they
are rightful and whether the people by virtue of
their inherent sovereignty may displace them even
by force are questions of natural reason, which the
Bible does not undertake to decide. Human forces,
under the general providence of God, without miracles, without inspiration, and without any divine
selection of the form of government or of-the ruler
are left to settle the question as to what governments
men shall live under and as to what persons shall
conduct them.   The  result  is the  providential
"ordinance of God," whether it be the government
of a Nero, or that of Great Britain, or that of the
United States.
Our revolutionary Fathers, in working out this
providential problem, assumed that the right of
government was a right inherent in themn as a civil
community, and not in the king of England; and
hence, they assumed that it was their right not
only to determine the form and objects of the gov ernment under which they should live, but also to
appoint their own rulers. Their theory was that
government in its principles and the ruler in his 
Religion and the State.
official powers are of God providentially when they
are practically of the people. We can think of no
better or more equitable way to secure "the ordinance of God" than to have the people establish it
for themselves and invest it with their own authority. This is good theology and good democracy at
the same time.
Moreover, all the considerations for obedience to
the civil magistrate, founded  on conscience  and
penalty, apply quite as forcibly when he is the
choice of the people, derives his powers from the
people, and acts in virtue of their delegated authority as they do when a Nero is the magistrate. In
neither case does he possess any divine prerogative
which is not common to all men in the relations in
which they exist and act. He is simply a magistrate, and, as such, the creature of natural causes
operating under the providential superintendence
of God. Being such, he has certain powers to
exercise and certain duties to perform.   Precisely
the same principles apply to a bank clerk, or the
manager of an insurance company, and indeed, to
all men. Any theory which makes the civil ruler
specially the elect of God and the legate of the skies
is a mere pretense, unsustained by history, with the
single exception of the Jewish theocracy.
The doctrine of democracy is that the ruler represents the sovereignty of the people. The doctrine
of theocracy is that he represents the sovereignty
of God.   The former, and not  the latter, is the
I 84 
Diviine Right of Civil Government. i 85
doctrine upon which the civil and political institutions of this country are founded. Every officer of
law is the creature of the popular will; and government, in its form and in the persons who administer
it, depends at last upon a prevalent public opinion
expressed according to certain prescribed methods.
The body politic rules itself by subjectingitself to the
regulation of law and employing governmental agents
for the expression of its will. Such is the theory
of American democracy, and it necessarily excludes
the theory of any right in the ruler other than
that which the people bestow. He is a citizen,
exercising their authority while in office by their
will, and no longer. 
This great principle of popular sovereignty, while
true of - the National Government, is also expressly
affirmed by most of the State constitutions in
respect to the governments organized under them.
Thus the constitutions of Alabama (I. 3); of Arkansas (I. I); of California (I. 2); of Connecticut (I. 2);
of Florida (Declaration of Rights, I); of Iowa
(I. 2); of Kansas (Bill of Rights, 2); of Kentucky
XIII. 4); of Nevada (I. 2); of New Jersey (I. 2),
and of Ohio (I. 2), expressly declare that "all political power is inherent in the people." The constitutions of Missouri (I. 4); of North Carolina (I. 2), and of
South Carolina (I. 3.), state the same doctrine by
declaring that "all political power is vested in and
derived from the people."   The constitution of
Vermont (I. 6), says: "That all power being originally inherent in and consequently derived from the 
Religion and the State.
people, therefore, all officers of government, whether
legislative or executive, are their trustees and servants, and at all times in a legal way accountable to
them."   The constitution of Massachusetts (I. 5)
declares that "all power residing originally with the
people, and being derived from them, the several
magistrates and officers of government vested with
authority, whether legislative, executive or judicial,
are the substitutes and agents, and are at all times
accountable to them."
There are examples of the doctrine as to the
rights of the officers of government that pervades
all the State constitutions. Like the Constitution of
the United States, they utterly ignore and virtually
exclude the whole theory of any special divine right
as being vested in the civil ruler. His authority is
entirely representative, and the people, and the
people only, form the party represented. He is not
the vicegerent of God, and acts under no commission or inspiration from Heaven; but is simply the
trustee or agent of the people for the purposes specified in the trust. The people have a right to govern
themselves according to the rules of law, and, in
order to the convenient and practical exercise of this
right, they delegate a portion of their own powers to
the officers of law, not only choosing these officers,
either directly or indirectly, but also prescribing
their duties. Such is the American theory of civil
government.   It is a theory which has the whole
power of the people behind it, and would be defended at any sacrifice.
I86 
Christianity and the Common Law. i87
XVII.
CHRISTIANITY AND THE COMMON LAW.
The first judicial declaration that " Christianity
is parcel of the laws of England" was made by Sir
Matthew Hale. Lord Mansfield subsequently modified the statement by saying that "the essential
principles of revealed religion are part of the common law." Lord Campbell, in his " Lives of
Chief-Justices," explains the language as simply
meaning that the law will not permit the essential
principles of revealed religion to be ridiculed and
reviled.  The English Commissioners on Criminal
Law, in their sixth report (I 84 I) express the opinion
that the maxim does not "supply any reason in favor
of the rule that arguments may not be used against "
Christianity, "provided it be not done in such
a manner as to endanger the public peace by exciting
forcible resistance."   Archbishop Whately, in his
preface to his " Elements of Rhetoric," says that
he had "never met with any one who could
explain" to him the meaning of the maxim; yet he
did not understand it as implying "the illegality of
arguing" against the established religion of England.   Thomas Jefferson, in an Appendix to his
"Reports of Virginia Cases" says that the declaration of Sir Matthew Hale was not at the time of its 
Religion and the Slate.
utterance sustained by any authority, and that,
though frequently repeated by English judges,
it never had any legislative authorization. He speaks
of it as resting upon the "usurpation of the judges
alone, without a particle of legislative will having
ever been called on or exercised towards its introduction or confirmation."  He characterized it as "the
most remarkable instance of judicial legislation that
has ever occurred in English jurisprudence, or
perhaps, in any other."
Is Christianity a part of the comnmon law of this
country, and, if so, in what sense and to what
extent?  There is no pertinency in this question,
considered in application to the General Government, since there is no common law of the Union.
The Supreme Court of the United States, in the
case of Wheaton vs. Peters (8 Peters, p. 59I), said:
"There is no principle which pervades the Union
and has the authority of law that is not embodied in
the Constitution or laws of the Union.   The com
mon law could be made a part of our Federal system
only by legislative adoption." So, also, in the case
of The State of Pennsylvania vs. The Wheeling
Bridge Company (I3 Howard, p. 5 I8), the same
Court said: "The Federal courts have no jurisdiction of common law offenses, and there is no abstract
pervading principle of the common law under which
we can take jurisdiction." It, hence, follows that the
question proposed has no reference to the United
States. The law of the Union is contained in the
I88 
Christianity and the Common Law. i 89
Constitution, and in the statutes of Congress enacted in pursuance thereof.
If, then, Christianity be a part of our common
law, it must be so exclusively in relation to the State
governments. How far and in what sense is this a
fact, if it be a fact at all? In answer to this question, we submit the following exhibit of authorities
referring to it:
Mr. Sedgwick, in his treatise on the "Construction of Statutory and Constitutional Law" (p. I4),
says:
It is often said that Christianity is part and parcel of the common law. But this is true only in a
modified sense. Blasphemy is an indictable offense
at common law; but no person is liable to be
punished by the civil power who refuses to embrace
-the doctrines or follow the precepts of Christianity.
Our constitutions extend the same protection to
every form of religion and give no preference to any."
Judge Cooley, in his "Constitutional  Limitations" (p. 472), observes:
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.... But the law
does not attempt to enforce the precepts of Christianity on the ground of their sacred character or
divine origin.   Some of these precepts are universally recognized as being incapable of enforcement
by human laws, notwithstanding they are of continual and universal obligation. Christianity, there 
Religion and the State.
fore, is not a part of the law of the land, in the sense
that would entitle courts to take notice of and base
their judgments upon it, except so far as they
should find that its precepts had been incorporated
in and thus become a component part of the law."
In the same treatise Judge Cooley remarks: "It
is not toleration which is established in our system;
but religious equality." The doctrine of this eminent
jurist is that the principles of Christianity are not
ipsofacto, in virtue of their divine origin or sanction,
any part of the law of the land, and not so at all,
except as they may have been legally incorporated
therein; and that they cannot be thus incorporated
in any sense that would be inconsistent with the
fundamental principle of " religious equality."'
Mr. Francis Wharton, in his work on "American
Criminal Law" (vol. 3, p. I88), refers to cases in
which the courts have spoken of Christianity as
part of the common law, and then adds the following
comment:
"But when  these cases are analyzed it will
be found that, though in most of them the courts
throw out the declaration that Christianity is part
of the common law, yet they all of them rest on
grounds independent of this general position; for
it is a common nuisance, and punishable as such by
indictment at common law, to disturb the religious
worship of others or flagrantly or indecently insult
their religious belief, no matter what be their creed.
Thus it would be held indictable to wantonly dis
I9o 
Christianity and the Common Law. I9I
turb a congregation of Mormons or Jews, or even of
Mohammedans, when peaceably engaged in their religious rites....    Infidel and skeptical opinions are only indictable when publicly and grossly
expressed in such a way as to become a common
nuisance, or to provoke a breach of tle peace.   We
may, therefore, conclude that, while the spiritual
element of Christianity is protected by the common
law, the former does not so enter into the latter as
to place matters of religious faith within the jurisdiction of the civil authority, either for vindication
or enforcement."
Justice Story, in delivering the opinion of the
Supreme Court of the United States in the case of
Vidal vs. Girard's Executors (2 Howard, p. 127),
referred to Christianity as being " a part of the common law of Pennsylvania," and then immediately
added: "But this proposition is to be received with
its appropriate qualifications and in connection with
the bill of rights found in its constitution of government."   After quoting the section of the constitution relating to the rights of conscience, he proceeded to say:
"Language more comprehensive for the complete protection of every variety of religious opinion
could scarcely be used; and it must have been intended to extend equally to all sects, whether they
believed in Christianity or not and whether they
were Jews or infidels. So that we are compelled
to admit that, although Christianity be a part of the 
Religion and the Stale.
common law of the State, yet it is so in this qual ified sense, that its divine origin and truth are ad mitted, and, therefore, it is not to be maliciously
and openly reviled and blasphemed against, to the
annoyance of believers or the injury of the public.
Such was the doctrine of the Supreme Court of
Pennsylvania in Updegraph vs. The Commonwealth."
In the case here referred to by Justice Story,
and found in II Sergeant and Rawle's Reports, p.
394, the Supreme Court of Pennsylvania held the
following language:
" Christianity, general Christianity, is and always
has been a part of the common law of Pennsylvania;... but with liberty of conscience....
No preference is given by law to any particular religious profession. Protection is given to all
by our laws.... It is only the malicious reviler
of Christianity that is punished.... It is
open, public vilification of the religion of the country that is punished,... to preserve the peace
of the country by an outward respect to the religion of the country.... If, from a regard to the
decency and good order of society, profane swearing,
breach of the Sabbath, and blasphemy are punishable by civil magistrates, these are not punished as
sins or offenses against God, but crimes injurious
to an,d having a malignant influence on society."
Chief-justice Kent, in delivering the opinion of
the Supreme Court of the State of New York in
192 
Christia-ily anid the Common Law. I 93
the case of The People vs. Ruggles (8 Johnson's
Reports, p. 290), said:
"The authorities show that blasphemy against
God and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures (which are
equally treated as blasphemy) are punishable at
common law, whether by words or writings. The
consequences may be less extensively pernicious in
the one case than in the other; but in both instances the reviling is still an offense because it tends
to corrupt ithe mnorals of the people and to destroy
good order. Such offenses... are treated
as affecting the essential interests of civil society.
..  The  free, equal, and undisturbed enjoyment of religious opinion, whatever that may be,
and free- and decent discussions on any religious
subject are granted and secured; but to revile
with malicious and blasphemozts contempt the religion professed by almost the whole community is an
abuse of that right.... Wicked and malicious words, writings, and actions, which go to vilify
those Gospels, continue, as at common law, to be
an offense against thepublicpeace and safety."
The Massachusetts case of the Commonwealth
vs. Kneeland (20 Pickering, p. 2-06) was not a case
at common law, but under a statute which provided
that "if any person shall wilfully blaspheme the
holy name of God by denying, cursing, or contumeliously reproaching God, his creation, government,
or final jjudging of the world; or by cursing or re
13 
Religio;z and the Stale.
proaching Jesus Christ or the Holy Ghost; or by
cursing or contumeliously reproaching the Holy
Word of God," he shall be punished in the manner
prescribed.   The  question before the Supreme
Court was whether the language charged in the indictment-and which the jury in the court below
found Kneeland to have published-was blasphemy
within the meaning of the above statute, and, if so,
then whether the statute itself was consistent with
the constitution of Massachusetts.  This question
in both of its branches was answered affirmatively
by Chief-Justice Shaw, who delivered the opinion
of the majority of the Court.  The statute, he said,
was not "intended to prevent or restrain the formation of any opinions or the profession of any religious sentiments whatever; but to restrain and
punish acts which have a tendency to disturb the
public peace."
Judge Morton in a dissenting opinion, said:
"It [the statute] was not intended  to punish a
denial of the existence of God; but only such a
denial when made in a mancner calculated to give
just offense to others aid with a bad intent."  He
also said: "When he [the citizen] engages in the
discussion of any subject in the honest pursuit of
truth, or endeavors to propagate any opinions which
he sincerely entertains, he is covered by the aegis
of the constitution; but when he wantonly and
maliciously assails tlic rio/-ts aldp i'vileees of others
or disturbs thepublicpeacc he is the proper subject
I94 
Christiaizity anid tle Common Law.  195
of punishment." He held that the instruction to the
jury in this case was incorrect, and, hence, that the
defendant was entitledl to a new trial.
Justice Clayton, of the Supreme Court of Delaware, in the case of The State vs. Chandler (2
Harrincgton's Reports, p. 553), gives an elaborate
opinion as to the question how far and in what
sense Christianity is to be deemed a part of the
law of the land. We quote as follows from this deliverance:
"The common law was, as Lord Coke expressed
it,... the preserver of the common peace of
the land; and, therefore, we find it punished outrages on, or breaches of the peace of society, and
also acts whose tendency was to disturb that peace.
... But, even in England, Christianity was
never considered a part of the common law, so far
as that for a violation of its injunctions, indepenAent of the established laws of man, and without the
sanction of any positive act of Parliament made to
enforce these injunctions, any man could be drawn
to answer in a common law  court....  It
[the common law] adapted itself to the religion of
the country just so far as was necessary for the
peace and safety of civil institutions; but it took
cognizance of offenses against God only where, by
their inevitable effects, they became offenses
against man and his temporal security.... If
in Delaware the people should adopt the Jewish or
Mohammedan religion, as they have an unquestion 
]Religion- and the Stale.
able right to do, if they prefer it, this Court is
bound to take notice of it as their religion and respect it accordingly.... It [the common law]
sustained indictments for wzantonily and maliciously
blaspheming God or the Founder of the Christian
religion, because such blasphemy tended to subvert the peace and good order, which it was bound
to protect. But it sustained no indictment for a
mere sin against God as a common law offense
where these objects of its care were not affected.
.  The common law only punished it [blasphemy] when it tended to create a riot or breath
the peace in some other way, or subvert the very
foundation on which civil society rested....
It will be seen that, in our judgment, by the constitution and laws of Delaware the Christian religion is a part of those laws so far that blasphemy
against it is punishable while the peopleprefer it as
their religion, and no louiger."
The doctrine of Justice Clayton is that, Christianity being the religion which the great mass of
the people of Delaware prefer, the courts of that
State are bound to treat as an offense against civil
society an act of blasphemy against that religion
which outrages the sense of decency and is calculated to provoke a breach of the public peace and
order. The same doctrine would equally apply, as
he distinctly says, if Judaism or Mohammedanism
were the religion professed by the people. It is
only when acts which are offenses against God
I96 
Christiaitiy aid Ilie Commoln Law.  197
have the character of offenses against the peace
and good order of society that they are punishable
at common law, and even then they are not punishable as religious offenses, but solely as crimes
against society.
The Supreme Court of Ohio, in the case of Bloom
vs. Richards (2 Ohio State Reports, p. 387), said:
"Neither Christianity nor any other system of
religion is a part of the law of this State. We sometimes hear it stated that all religions are tolerated
in Ohio; but the expression is not strictly accurate. Much less accurate is it to say that one religion is a part of our law, and all others only tolerated.... We have no union of Church and
State, nor has our government ever been vested
with authority to enforce any religious observance
simply because it is religious.... Thus the
statute upon which the defendant relies, prohibiting labor on the Sabbath, could not stand for a moment as a law of this State if its sole foundation
was the Christian duty of keeping that day holy
and its sole motive to enforce the observance of
that duty..... We are, -then, to regard the
statute under consideration as a mere municipal
or police regulation, whose validity is neither
strengthened nor weakened by the fact that the
day of rest which it enjoins is the Sabbath day."
Two years afterward, the same Court, in the
case of McGatrick vs. Wason (4 Ohio State Reports, p. 571), spoke as follows: 
Religion and the State.
"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
I98 
Chrisliaizily and /he Commoi. Law.     i 99
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. I180-I84), 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 reli 
Religioit anid the Stale.
gious observances or duties are to be penally enforced; or that any legal discrimination in favor
of Chris')ianity 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 "common
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
200 
Christianity and the Cormmon Law.  201I
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. 
Religion and /the State.
Christianity, as a legalized system, is unknown
to our laws. As a piotected 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.
XVIII.
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
202 
Tie Nalioizal Consliltmion.
of its authority as the fundamental law. "The
people of the United States" ordained and established it in the first instance, and provided by the
peaceful process of amendment for any changes
therein which they might see fit to make. The
sovereign authority of this people, taken collectively, and not as separate individuals, is hence,
the sole foundation of all the powers conferred and
all the restraints imposed by the Constitution.
Their authority is the only authority upon which it
rests. It contains not the slightest intimation of
any theocratic element as lying at its basis, or of
any divine right relating to the powers which it bestows. It is a human constitution, originated and
adopted by men, and built upon the self-assumed
and self-asserted sovereignty of "the people of the
United States."
So, also, the agency, provided for carrying into
effect the purposes of this Constitution, is simply
a government of appointees, directly chosen by the
people or selected by those thus chosen. It is a
purely representative agency. No one holds or
can hold any office under the Constitution except
as he derives the right from the action of the people, either directly electing him or indirectly appointing him to the office. The ruler, whether
legislative, executive, or judicial, is, hence, the servant of the people, entirely dependent upon them
for his power to rule and responsible to them for
the manner in which he exercises this power. The
203 
-Religion and the Siale.
people, taken in their collective and corporate character, are the only sovereign known to the Constitution.
The objects to be attained by the adoption of
the Constitution, as comprehensively summarized
iu its preamble, were "to form a more  perfect
union, establish justice, insure domestic tranquillity,
provide for the common defense, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity." The legal machinery
provided for in the three co-ordinate departments
of the General Government is adjusted to the accomplishment of these ends and these only. It
looks no further. The avowed purpose of the Constitution, is, hence, wholly secular, since it relates
exclusively to the temporal interests of the body
politic known as "the people of the United States."
The purposes of a bank corporation or a railway
company are not more strictly temporal and secular
than those set forth in the preamble of the Constitution, and to secure which a governmental agency
is chartered, with powers appropriate to the end.
The Constitution thus appears as "the supreme
law of the land," enacted by the sovereign authority of "the people of the United States," containing provisions for the organization and continuance
of a government, vesting in that government certain powers, and by the nature of the powers bestowed and also the recitals of the preamble limiting itself exclusively to the attainment of purely
204 
The A}alioial Coizsli/luioi.,
temporal ends. The conclusion to be drawn from
these facts is that those who framed and those who
adopted the Constitution meant to exclude religion
wholly from its scope, and thus make the instrument entirely secular and political in its objects.
Whatever may have been their belief or practice as
religionists, they did not think it necessary or wise
to incorporate their religion or any of its doctrines
into the "supreme law of the land."
The only provisions in which any reference is
made to religion in the Constitution, as originally
adopted, are those that relate to the oath of office
prescribed to be taken by the President, by Senators and Representatives in Congress, and by officers of the United States and of the several States.
In respect to the President, it is required that before entering upon the execution of his office he
shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United
States, and will to the best of my ability preserve,
protect, and defend the Constitution of the United
States."
The last clause of the sixth article reads as fol
lows:
"The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both
of the United States and of the several States,
shall be bound by oath or affirmation to support
205 
Religion and the Slale.
this Constitution; but no religious test shall ever
be required as a qualification to any office or public
trust under the United States."
The promissory oath for which provision is here
made is a solemn appeal to the Supreme Being in
respect to the sincerity of the party taking the oath,
and a virtual imprecation of the divine curse if he
speaks falsely. Recognizing the fact that men so
regard it, as well as the general practice of governments in regard to oaths, the Constitution provides
for an official oath. It does not require that this
oath shall be a Christian oath, or that in its administration any use shall be made of the Sacred Scriptures. It does not absolutely require any oath at
all, since the person to be inducted into office may
simply affirm that he will support the Constitution.
A solemn affirmation to this effect is, at his option,
the constitutional equivalent of an oath. The first
section of the Revised Statutes of the United
States provides that "the requirement of an oath
shall be deemed complied with by making affirma
tion in judicial form."   An  affirmation is distinguished from an oath in containing no appeal to
God, or any sanctions growing out of his existence
and attributes.   In administering an affirmation
the officer simply says to the party making it:
"You do solemnly, sincerely, and truly declare and
affirm that," etc. Whether, then, a person, in entering upon the duties of any office to which he
may have been elected or appointed, shall make an
206 
The National Constitution.
appeal to God in the form of an oath, or affirm
without such an appeal, is a question which the
Constitution leaves him to decide for himself. It
does not force an oath upon him as a condition of
receiving office, and performing its duties. If he
were an atheist, he is competent to affirm, and, hence,
he would not, by his faith or want of faith, be excluded from any office on account of a constitutional requirement.
Moreover, to guard against the possibility of any
exclusion from office on religious grounds, whether
in an oath or an affirmation, the Constitution immediately adds these very significant words:  "But
no religious test shall ever be required as a qualification to any office or public trust under the United
States."- Religious tests, in respect to matters of
faith, or modes of worship, or both, or in respect to
adherence to some specific sect of religionists, form
one of the means by which tyrannical governments have proscribed and excluded certain classes
of persons, otherwise qualified, from holding office
and enjoying the emoluments thereof. This had
been done in England by what were called test-acts;
and as learned a jurist as Blackstone defends such
acts. The framers of the Constitution designed
to cut up the whole principle, root and branch, so
far as the General Government is concerned; and,
hence, they provided that "no religious test "-that
is to say, no test of any kind founded upon religion,
or having reference thereto-" shall ever be re
207 
]Religioi  and the State.
quired as a qualification to any office or public trust
under the United States." Congress is thus deprived of all power to pass any religious test-act in
respect to qualifications for office.  The design, as
stated by Justice Story in his " Commentaries on
the Constitution," was "to cut off forever every
pretense of any alliance between Church and State
in the National Government."
The exclusion of all religious tests was urged as
an objection to the Constitution in the convention
of Massachusetts called to act upon the question of
its adoption. It was said that the effect would be
to permit irreligious men and even Infidels to hold
office, and that this might work serious harm to the
public welfare. The Rev. Mr. Shute, who was a
member of the Convention, forcibly said, in reply to
this objection: "In this great and extensive empire there is, and will be, a great variety of sentiments in religion among its inhabitants. Upon the
plan of a religious test the question, I think, must
be: Who shall be excluded from national trusts?
Whatever answer bigotry may suggest, the dictates
of candor and equity, I conceive, will be: No'ne!"
("Elliot's Debates," vol. IV. pp. IiS, II9.)  The
Rev. Mr. Payson, another member of the Convention, said: "Had there been a religious test as a
qualification for office, it would, in my opinion, have
been a great blemish upon the instrument." (p.
I20). The Rev. Mr. Backus also said: "The imposing of religious tests hath been the greatest engine of tyranny in the world." (p. I48).
208 
Tie lalioizal Coinslitution.
In the plan of a Constitution submitted to the
Federal Convention by Mr. Charles Pinckney, on
the 29th of May, 1787, it was provided that "the
United States shall pass no law on the subject of
religion." ("Madison Papers," vol. II. p. 74I). This
provision not having been included in the Constitution as finally adopted, the omission was soon after
supplied by the First Amendment, in which it is expressly declared that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof." There was nothing
in the Constitution to imply that, in the absence of
this prohibition, Congress would have power to pass
such a law; yet it was thought expedient to deny
the power in express language, and thus put the
matter beyond doubt or controversy. The denial
is made in the broadest terms.  Not only is Congress forbidden to establish any system of religion,
or do anything involving this legal result; but it is
also forbidden to prohibit, or in any way interfere
with, the free exercise of religion by the people.
"It was," as remarked by Justice Story, "deemed
advisable to exclude from the National Government
all power upon the subject;" and, as the result
both sought and attained, "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."  As citizens of the
United States, they stand upon the same level and
I4
209 
Religion and Ithe Slate.
enjoy precisely the same rights. The whole subject of religion is totally withdrawn from the
jurisdiction of the General Government, not only
by not being included in its powers, but by being
expressly excluded therefrom.
So far, then, as the National Government is
concerned, "the people of the United States,"
considered as a body politic, have no religion to
teach, no doctrine of God to promulgate, and no
form of worship to sustain or enforce. Their Constitution is purely secular in its objects, and its
authority entirely human, without any pretense of
any divine right. It is an organic expression of
the theory set forth in the Declaration of Independence, that governments are instituted among
men to secure the rights of men, and that they
derive their just powers from the consent of the
governed.   Those who framed the Constitution
designed to make it exclusively a political instrument, and nothing else. It was not by accident,
but by intention, that they omitted to embody any
religious doctrine in it, that they prohibited  all
religious tests, and that the First Congress proposed,
and the people ratified, an amendment that expressly denies any power to Congress on this one subject.
Very soon after the adoption of the Constitution and the ratification of this amendmentnamely, on the 4th of November, I796-a treaty
was concluded with Tripoli, in the eleventh article
of which occurs the following declaration:
2IO 
Thie -Vational Constitution.
"As the Government of the United States is
not in any sense founded on /Se Czristian religion;
as it has in itself no character of enmity against
the laws, religion or tranquillity of Mussulmans
and as the said States never have entered into any
war or act of hostility against any Mohammedan
nation, it is declared by the parties that no pretext
arising from religious opinions, shall ever produce
an interruption of the harmony existing between
the two countries."
This disclaimer by Washington in negotiating,
and by the Senate in confirming, the treaty with
Tripoli, was not designed to disparage the Christian
religion or indicate any hostility thereto; but to
set forth the fact, so apparent in the Constitution
itself, that the Government of the United States
was not founded upon that religion, and, hence,
did not embody or assert any of its doctrinesand, hence, again, that, as a government, it had
and could have no hostility to a "Mohammedan
nation" on account of its religion. The language
of this article in the treaty was used for a purpose,
and that purpose was in exact. correspondence with
the fact as contained in the Constitution itself.
Christianity, though the prevalent religion of the
people when the Constitution was adopted, is unknown to it. The Constitution says that it shall
be unknown  as having any place in the organic
law of the United  States, or in the legislative
powers of Congress.
2I I 
Religion and the State.
Those who, in the discussion of the School
question, speak of Christianity as being a part of
the common law of the land are entirely mistaken,
so far as the statement refers to the Government
of the United States. The only common law of
the United States is that which is found in the
Constitution, and in laws enacted and treaties
made in pursuance thereof; and it so happens that
neither Christianity, nor any other system of religion, is any part of this law, or can be, so long as
the Constitution itself shall remain unchanged.
Congress cannot establish Christianity, and the
Constitution has not done so, and, hence, it is no
part of the law of the land, either statute or common, except as it mnay have been made such by the
action of the respective States; and how far this is
a fact, if so at all, is not the matter of our present
inquiry. \Ve are now dealing simply with the
Government of the United States, and with "the
people of the United States," considered in their
federal and national character as a political corporation. As such they have no religion, either
Christian or Pagan, Catholic or Protestant.   Their
Government is not a Ciristian government in the
sense of giving any legal preference to, or sanction
of, Christianity, or resting its authority upon any
of its doctrines. It is simply a political organization, for secular and temporal ends, based upon the
principle of popular representation, and upon
nothing else, and formally and intentionally excluding religion from its scope.
2 1 2 
Religious AmendmeiIf.
It is on this ground that a portion of the people
desire to have the Constitution so amended that
the government under it will become a Christian
government. The character of the amendment
which has been suggested for this purpose, will be
considered in the next article.
XIX.
RELIGIOUS AMENDMENT OF THE CONSTITUTION.
It is the opinion of a portion of the American
people that our National Constitution ought to be
so amended as to establish "a Christian government." The amendment proposed for this purpose,
if adopted, would make the preamble read as follows:
-  "We, the people of the United States, ackizowledgin6i, Alinighty God as the source of all authAority
and power in civil governeient, the Lord yesus
Christ  as the ruler among the nations, and his
revealed will as of supremne aut/Ahority, in order to
constitute a Christian goveriiinent, to form a more
perfect union, establish justice, insure domestic
tranquillity, provide for the common defense, promote the general welfare, and secure the blessings
of liberty to ourselves and our posterity, do ordain
and establish the following Constitution for the
United States of America."
The words in italics are the ones which the advocates of a religious amendment to the Constitu
2 I 3 
Rell"(ioil ald Il,e S/lcle.
tion desire to insert in its preamble.  The object is
to make the government " a Christian government,"
and the method of doing it is to assert these three
propositions: I. That God is the source of all
authority arid power in civil government. 2. That
the Lord Jesus Christ is the ruler among the nations.
3. That his revealed will is of supreme authority.
It is undoubtedly true that neither the Constitution nor the Government is now Christian in the
sense contemplated by this amendment.   It is,
however, true that the Constitution establishes "a
Christian government" in the sense of providing
for those great moral ends that refer to the present
welfare and happiness of society. Unity among
the people, justice, tranquillity, the common defense,
the general welfare, and the blessings of liberty
are enumerated as ends to be attained.  These,
surely, are not anti-Christian ends; and it is nat
straining the import of the term to say that they
are Christian, considered with reference to that
department of Christianity which relates to the
interests and duties of time.  In this sense the
Constitution already provides for "a Christian government."
Let us then see in what further sense the Constitution would establish "a Christian government"
if the preamble were amended in the manner proposed.   What would be the legal effect?  In answering this question, it is important to remember
that the preamble to the Constitution is simply an
214 
Religzios Amendnenl.2
eciaczii6g clause, analogous to the title of a legislative act; and that in itself considered, it makes no
grants of power, imposes no restraints, and contains no provision for the organization and administration of a government.   Except in connection
with what follows in the several articles of the Constitution, it is as meaningless and powerless as would
be a legislative act if the whole of it consisted in its
title. The preamble, for example, declares the
establishment of justice to be one of the ends sought,
yet this mere statement would be utterly inoperative if the Constitution, in the legislative, executive,
and judicial grants of power - to the General
Government, contained no provisions for the attainment of the end. The same would be true of all
the other objects specified in the preamble, if
divorced from those provisions which are designed
and adapted to secure them. Justice Story, in his
"Commentaries on the Constitution" (section 462),
says:
"And here we must guard ourselves against an
error which is too often allowed to creep into discussions upon this subject. The preamble never can
be resorted to to enlarge the power confided to the
General Government or any of its departments. It
cannot confer any power per se, it can never
amount by implication to an enlargement of any
power expressly given.  It can never be the legitimate source of any implied power when otherwise
withdrawn from the Constitution."
215 
Religion and  Mie S/ale.
It, hence, follows that, if the preamble were
amended as proposed, not the slightest practical
change would be made in the Constitution itself or
in the character of the Government. The added
words would be in the preamble; but the Government would be no more " Christian" than it is without them. It would still be true that " no religious
test shall ever be required as a qualification to any
office or public trust under the United States;"
that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof;" and that " the powers not delegated to the United States by the Constitution nor
prohibited by it to the States are reserved to the
States respectively or to the people." These provisions would remain in the body of the Constitution; and unless we adopt the false doctrine that the
preamble is itself a grant of powers to the General
Government the words proposed to be added to it
would be legally a dead letter. The Constitution
is not constructed to give any effect to such words
or the ideas which they convey.  There is nothing
in it corresponding to them or that furnishes any
method or legal machinery fortheir application. In
this sense they would be perfectly useless.
The proper mode of making the Government "a
Christian government" according to the model
proposed is to adopt an amendment that would
substantially read as follows:
SECTION I. It is hereby declared that God  is
2 I 6 
Religious A meidmenl.
the source of all authority and power in civil government, that the Lord Jesus Christ is the ruler
among the nations, and that his revealed will is of
supreme authority.
SECTION 2. Congress shall have power, by appropriate legislation, to enforce the provisions of
this article.
This, which might be called the Sixteenth
Amendment, would certainly gain the end proposed
on the basis of the three religious doctrines affirmed.
But, in securing the end, it would fundamentally
change the whole theory of the Constitution in regard to religion and, in the powers of Congress,
establish a complete  religious despotism.   The
doctrines, being thus constitutionally affirmed and
thus accompanied with an enforcing power in Congress, would "constitute a Christian government"
in a sense that might well fill the country with alarm.
If, however, these doctrines were simply in the preamble, dissevered from any enforcing power, they
would have no more legal significance than if they
were found in a treatise on theology.
Moreover, if these propositions were added to
the preamble, and all the other parts of the Constitution were left uchanged, there would be no
authoritative method of determining their meaning,
or in what sense they would make the Government
" a Christian government."  Congress could not
legislatively express any opinion on the subject,
since it would have no power of legislation in ref
217 
Religioi~ and the Stale.
erence to it. The Supreme Court of the United
States could not judicially expound or apply the
propositions, since no case under them could arise
over which it would have jurisdiction. Ecclesiastical courts could not determine their meaning, since
they are not the authorized interpreters of the Constitution. Their meaning would be purely a matter of priva(te interpretation, and no such interpretation would  have any  authority.    The  words
would be in the preamble; but, as a national confession of faith, they would be accompanied by no
legislative or judicial commentary on their import.
Whether God is the source of all authority and
power in civil government, merely in the general
sense of creation and providence, or in the special
sense of investing such government with a portion
of his own authority whether the I,Lord Jesus Christ
is the ruler among the nations in any other sense
than that in which he is the ruler over the fowls of
the air and the beasts of the field; where his revealed will is to be found, and for what purposes, and
in what relations it is to be applied-these and the
like questions would be' open to all sorts of answers
according to the varying notions of different persons,
with no tribunal and no authority anywhere to give
the true answer. The words themselves are sufficiently elastic to be capable of different interpretatios; and hence, in the absence of an authentic
expounder, there would be no means of deciding in
what sense the people use them in the preamble.
2 I 8 
Religioius A4meidmei zt.
Nor do we see any reason why, if the door is to
be opened sufficiently wide to admit these three
religious dogmas, it may not be opened wide enough
to admit forty-indeed to permit the ingress of all
the cardinal doctrines of Christianity.   Why not
also declare that Christ died for our sins, according
to the Scriptures; that he rose again on the third
day; that he ascended into heaven; and that he
will come again to raise the dead and judge the
world? These and the like are certainly Christian
truths; and the theory which demands the utterance
of three such truths may just as well be extended
to the whole system. It imposes upon itself no
limitation. Indeed, it would be a question of interpretation, without anybody authorized to answer it,
whether the phrase "His revealed will" would not
by implication embrace the whole circle of Christian
doctrine and precept as given in the Bible. Words,
when used in constitutions, are generally interpreted
to include every thing to which, being taken in
their natural sense, they are applicable; and under
this rule the phrase referred to would have a very
broad import.
What practical service would the insertion of
these words in the preamble, with no power in the
Government either to explain them or put them
into legal execution, render to either God or man?
A Church creed is operative for its appropriate purposes, because behind the creed we have a Church
organization to work it; but such a creed, either
2I9 
Religioz and tze Stale.
in whole or in part, in the constitution of a government, without the power to work it, would be of no
productive value. It might gratify the wishes of a
certain class of the people, while it would be contrary to the convictions and wishes of  a much
larger class; but it would not make one Christian
more or one sinner less. It would not increase the
religious zeal of the people or add to the general
influence of Christianity upon the popular mind. It
would not make the careless thoughtful, or convert
Atheists and Deists to the faith. It would not
build a church or raise a dollar for religious purposes.
It would not control the legislation of the Government or furnish any guaranty that the legislation
wouldbe justand right. Itwould not add tothe sense
of God in the councils of the nation or in individual
hearts.   It would not purify political parties or
make office-holders more circumspect.
We are at an utter loss to see how the simple
creed contained in the words proposed-unaccompanied by any enforcing power, as it would be if
found merely in the preamble, and as it must be, or
be the basis of a most dangerous religious despotism-would secure any desirable result that would
not just as well and just as certainly be secured
without it. There is not a solitary thing which the
creed in this form of utterance would or could do to
make the Government "a Christian government"
in any sense not now real, or to make the people
any more Christian than they now are. Some might
220 
Religzious Amendcment.
think it a religious ornament to the Constitution;
yet a much greater number would regard the
ornament as not being in its proper place.
The one great objection to the amendment,
though as we have shown, it would be legally meaningless and powerless, consists in thepiriiciiple which
underlies it and which those who framed the Constitution meant utterly to exclude. The American
people, so far as they are religious at all, are Christian, by a very large preponderance, and in this
sense they may be justly spoken of as being a
Christian people; and yet nothing is more conspicuous in their political and civil institutions than their
general refusal to incorporateproforina their Christianity into the language of their constitutions or
laws. The great idea which they have sought to
realize is that of the most perfect religious liberty and
equality among all the citizens of one common gov.
ernment; and, in order the more effectually to gain
this end, they have denied to civil governmen' any
jurisdiction in matters of religious faith and practice
beyond that of extending an impartial protection
to all the people.   Adopting this principle, they
have,with scrupulous care, limited their constitutions
and legal systems to the attainment of purely temporal ends, and, hence, omitted to place in them any
affirmations or denials of religious dogmas.
There can be no doubt that the amendment proposed, though confined to the preamble of the Constitation and really granting no power to the General
221 
Religion and tle Slale.
Government, would nevertheless, be a departure
from this principle. By it, the people of the United
States, not as individuals, but in their political and
corporate capacity, would place a confession of religious faith in their National Constitution. This
would be a step in the wrong direction, provided
the doctrine of absolute religious equality is to be
maintained. The next step would be to clothe the
Government with power in respect to this confession; and this would at once erect a religious despotism. The safe course for the people is not to take
the first step; and if they do not propose to take
the second step there is no occasion for taking the
first. When they are prepared to make Christianity
a legalizecd system, then, and not till then, will it be
seasonable to stamp its doctrines with a constitutional affirmation.
Looking, finally, at the process by which the
proposed amendment must be adopted, if at all, we
cannot resist the conviction that its advocates are
engaged in the most hopeless of all undertakings.
In order to succeed, they must persuade two-thirds
of both Houses of Congress to propose the amendment, or two-thirds of the legislatures of the several
States to ask Congress to call a convention to propose it.  And when they have gained this end, they
must persuade three-fourtis of the legislatures of
all the States or conventions in t/ree-fourtis of the
States to ratify the proposition. This is the constitutional method of changing the fundamental law
222 
Religious Liberty.
of the land. Does any man in his senses suppose
that the amendment in question can be carried
through this process? Nothing short of a largely
predominant public sentiment could secure the result. No such sentiment now exists, and there is
not the remotest probability of creating it by any
amount of discussion. The tendency of discussion
would be in the opposite direction. A political
party organized on the basis of such an amendment would not live long enough to be entitled to
a name, and any existing party adopting it as an
article of its political creed would becrushed by its
weight.  The advocates of the amendment may as
well save their time and money and apply both to
the attainment of more practical objects.
XX.
THE GUARANTY OF RELIGIOUS LIBERTY.
The Constitution of the United States declares
that "no religious test shall ever be required as a
qualification to any office or public trust under the
United States," and that "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof." These provisions guarantee religious liberty against encroachments by the General Government; yet neither of
them imposes any limitation upon the powers of
the States.
So, also, the Constitution declares that "the
United States shall guarantee to each State in this
223 
Religion and the Stale.
Union a republican form of government," and that
"the citizens of each State shall be entitled to all
the privileges and immunities of citizens in the
several States." These clauses have no relation to
the question of religious liberty as it may be affected by State constitutions and State laws.  A
State might be republican in the form of its government and yet practice religious oppression upon
a portion of its citizens. The rule adopted by the
Supreme Court of the United States in interpreting the provision  that relates to "the privileges
and immunities of citizens in the several States"
makes it inapplicable to the religious liberty or any
other right of  the citizen as determined by the
State of which he is a resident. The Court, in the
cases of Paul vs. Virginia (8 Wallace, p. I68), and
of the New Orleans Slaughter-house (I6 Wallace,
p. 36), laid down the principle that this provision
does not "control the power of the State governments over the rights of its own citizens."
There is nothing in the last three amendments
to the Constitution that reaches the question of religion, and nothing anywhere else in this instrument that places the States under the slightest restraint with reference to this subject; and, hence,
it is true, as remarked by Justice Story, in his
Commentaries on the Constitution (section I879),
that "the whole power over the subject of religion
is left exclusively to the State governments, to be
acted upon according to their sense of justice and
the State constitutions."
224 
Religious Liberly.
The States, moreover, by the express language
of the Tenth Amendment, retain all "the powers
not delegated to the United States by the Constitution, nor prohibited by it to the States." These
are called "reserved" State powers; and among
them is that of dealing with religion and the religious rights and liberties of the people in such
manner as each State shall think most expedient.
State power in this respect is plenary and complete, subject to no limitation by the National
Constitution.
It is well known, as a matter of history, that
long after the Constitution went into operation
the power of taxation for the support of religion in
the Protestant form was actually exercised in some
of the -States. That power still exists, and might
be exercised by any State to any extent, and in
favor of Christianity or any other religious system.
New Hampshire, Pennsylvania, North Carolina,
South Carolina, Mississippi and Tennessee have today religious tests in their respective constitutions
with reference to the qualifications for holding
office. Maryland has such a test in her constitution
in respect to the qualifications of witnesses and jurors. Delaware, Kentucky, Maryland and Tennessee
exclude clergymen from civil office, on account of
their ecclesiastical functions.   These examples,
though exceptional to the general character of the
State constitutions, are a practical commentary upon
the statement of Justice Story that "the whole power
225
.
I5 
Rel2,ZiioiT and cle Slale.
over the subject of religion is left exclusively" with
the respective States. They may, if they choose,
establish religion, support it by taxation, and enforce
it by test-acts or by pains and penalties.
The States cannot coin money, or emit bills of
credit, or make anything but gold and silver coin a
tender in payment of debts, or pass a bill of
attainder or an ex-postfaeto law or any law impairing the obligation of contracts, or grant any title of
nobility, or exercise any of the powers exclusively
delegated to the United States. These and other
abridgments of State power were made to secure
the harmony and good of the whole as one people.
If the sacred rights of religious liberty were included, and the States dispossessed of all power to interfere with these rights, this would be simply according to the analogy of the Constitution. These rights
are not inferior to those which arise from contracts,
or those which may be affected by ex-post facto
laws, or those which relate to property. Religious liberty is very intimately allied with free
government. Our general theory is that the citizen, subject to the limitation of decency and good
order, should be absolutely free as to his religion,
and that on this account no legal preferences should
be granted to him and no discriminations made
against him. This doctrine surely needs no defense
in this country. Why, then, should it not be incorporated into the fundamental law of the land in
stuch a form as to be restrictive not only upon the
226
0 
Relz',iols Lib crly.
powers of the General Government, but equally so
upon those of all the States? Why should not so vital an interest as that of religious liberty be committed to the custody of the whole people in their
collective character, and be thus guarded in the best
possible manner against the "accidents of ignorance," the passions of zealots, and, indeed, all causes
of peril? It seems to us that the proper place for
the assertion and guaranty of the principle is in
our national Magna Charta. The principle is quite
as important as the obligation of contracts or the
protection of the citizen against ex-postffacto laws.
We see no reason why Congress should by the
Constitution be placed under restraint as to religious
tests, as to the establishment of religion, and as to
the free exercise thereof, that is not equally good to
shlow that the States should in the same constitution be placed under a similar restraint. If the
whole people, as represented in Congress, cannot be
safely trusted on this question without a Constitutional restraint, can the people in parts and as organized into separate communities be trusted with
any more safety? The whole body politic composing the nation with its diversity of sentiments, its
broader comprehension of interests, and more extended view of what is best for the whole-is less
likely to err than any local sections of the whole.
If a religious test would be objectionable in the
General Government, it is equally so in a State Government; and if on this subject the former cannot
227 
Relz''ioit and Ihe Stale.
ithout restraint, then  the latter ought
sted without the same restraint.  It is
to deny the power of a religious test to
leave it to the discretion of the other.
ugh to say that "Congress  shall make
cting an establishment of religion, or
the  free exercise thereof,"  and  then
ates to make as many such laws as they
this great subject we should be absoople in our policy and assert this policy
nic law.   No  State  should deem it a
be deprived of the power to impose a
rt, or to establish a religion, or to proe exercise thereof, an) more  than it is
ed of the power to impair the obligaracts, or to do various other things fore States by the Constitution.   All pere not short-sighted bigots must see that
have a common interest in extending to
liberty of all the highest possible security.
nulation of this country, religiously conconsidered in reference to the question
nativity, is exceedingly mixed  in its
elements, and such it will remain for
to come.  It contains a large amount of
persons.   Roman  Catholicism, repregnorance, the poverty, the bigotry, and
of Catholic countries, and owing spirite to a foreign hierarchy, has become
rong ecclesiastical, but also a strong
228
Ioreign-born
/senting the i
superstition (
ual allegiance
not only a st 
Reli- iots LiberIl).
political power on this soil. Some of our large
cities, looked at with reference to the voting power
that controls their local administration, are already
foreign, if not Catholic cities. The population of
the Southern States is made up of two races that
cannot readily, if at all, be fused into each other.
European immigration pours in upon us on the Atlantic seaboard, and the prospect is that in the future we shall receive a very considerable Asiatic
immigration on our Pacific coast. We are but a
young nation, and have hardly yet, as a whole, acquired a distinctively national character. It is by no
means certain that we have finished our growth in
the acquisition of territory. There is nothing improbable in the supposition that we may add Mexico, the States of Central America, and a part if
not all of the adjacent islands to the territory of
the United States.
No one looking at the spectacle of our national
life as it now presents itself to the eye, is to-day
wise enough even to conjecture the possibilities
and contingencies that lie in the bosom of the unrevealed future. What is before us we do not know.
Let us, then, as germane to the purpose of this article, indulge in one or two suppositions that may
become realities.
Suppose that in a given State there should arise
an intense and bitter politico-ecclesiastical struggle
between Catholics and Protestants, and that the
former should constitute the majority of the peo
229 
Religio~i aigd /he S/ate.
pie. This would only be what has often happened
in other countries and what may happen here.
Is  there  anything  in the  Constitution of  the
United States to protect the religious rights of
Protestants in such an event? Nothing whatever.
The Catholics, being the majority, might alter the
constitution of the State, make Catholicism a State
religion, tax the people to support it, exclude all
but Catholics from office, and enforce the Catholic
faith by legal sanctions. The whole range of possibilities in reference to religious preferences, discriminations, and proscriptions would be entirely
open to their choice, without any limitation imposed
by the National Constitution or any corrective remedy in the powers of the General Government.
This is but a supposition: yet nothing is wanting
but voting power and the disposition, with suitable
attendant circumstances, to convert it into a reality
in any State of the Union, and it is by no means
insupposable that the requisite conditions might be
supplied in at least some of the States. The Constitution, as it is, would not meet such an order of
things with any remedial power.
We may also suppose' that Protestants, in such
a religious contest, would, by reason of their number, be the political victors. What, then, would
prevent them from making the State a Protestant
State and committing all its legal functions and
powers exclusively to Protestants, and even establishing a religious test in respect to the right cf
230 
Religious Liberty.
suffrage? Nothing but their own choice. The religious rights of Catholics, in every State of the
Union in which they are in the minority, are today completely at the disposal of a majority that is
non-Catholic; and if those rights are not invaded,
it is not for the want of power to do so. The constitution of New Hampshire now provides that no
one, unless he is of "the Protestant religion," shall
be eligible to the office of governor or to either
house of the State legislature. The principle of
this provision, so far as the National Constitution
is concerned, may be incorporated into every State
constitution and put into practice to any extent
One of the territories of the United States is
inhabited chiefly by a Mormon population, gathered from various countries. Let us suppose this
territory to be organized into a State and admitted
into the Union, and, consequently, clothed with the
autonomy and powers of every other State. Whatever its constitution might be at the time of admission, it would, like the constitutions of all the
other States, be subject to any change within the
limits of a republican form of government which
the majority might choose to make; and by such
a process Mormonism, being the religion of the
majority, might be made the religion of the State.
Nothing is needed to make this supposition real
but the admission of Utah into the Union. Congress would have no power in the terms of the ad
mission to establish a permanent guaranty against
23l 
Reli2gion an    d Thie Stale.
such a result. It can refuse to admit a State; but
it cannot govern an admitted State or dispossess
it of the powers common  to all the States.  If
Protestants, being the majority in any State, could
establish Protestantism as a State religion, then
Mormons, being the majority, could establish Mormonism as such a religion; and in neither case
would there be any remedy in the Federal Constitution. Once in the Union, every State is selfgoverning, except as limited by this Constitution;
and in respect to religion no State is thus limited
at all. State constitutions are purely the creatures
of State public sentiment and are what that sentiment makes them.
We give these suppositions-which in kind
might be indefinitely multiplied-simply as illustrations of what is possible under our present constitutional system.  It is possible that an Asiatic
and heathen population may acquire the control of
one or more of the Pacific States. It is possible
that Mexico and the States of Central America,
with their almost exclusively Catholic population,
may become members of the Union. We do not
now know where the doctrine of "manifest destiny"
in these and other respects will ultimately conduct
us as a people. We do not know what shape the
School question will finally take, or to what collisions
it may yet lead. What we do know is that our
National Constitution, except as against encroachments by the General Government, does not stand
232 
Religious Liberty.
guard over the religious liberties of the people. It
affords them no protection. The whole subject is
left exclusively with the States, and over their action
in regard to it the Constitution asserts no control.
Would it not, then, be wise so to amend the
Constitution that this great question of religious
liberty in all its phases and applications shall be
settled by the fundamental law of the land, and so
settled that the whole people as one political organism, shall be charged with the protection of such
liberty? Would it not be wise to make religious
liberty in every State a national idea? The obligation of contracts, the right of protection against
an ex-postfacto law and bills of attainder, the rights
of life, civil liberty, and property, as guarded
against any deprivation, except by due process of
law, the equal protection of the laws, the right of
the United States citizen to become  a citizen in
any State by residence therein and there to enjoy
all the privileges and immunities granted to its own
citizens, the right in every State to a republican
form of government, the rights of United States
citizenship in each State-these and the like are
already national ideas. The Constitution asserts
them and protects them.  Why not place religious
liberty in the same category? It is a right second
to no other in the whole circle. There is nothing in
it to make it a local idea or require that it should
be remitted to the exclusive jurisdiction of the
States.
233 
]Religioiz and the Stale.
The amendment to the Constitution proposed
by ex-Speaker Blaine looks in the right direction
and covers the ground in part. In I870, the Hon.
E. P. Hurlbut, formerly a judge of the Supreme
Court of the State of New York, published a pamphlet entitled "A Secular View of Religion in the
State," in which he suggested an amendment with
a view to the same general end. Combining the
propositions of both these gentlemen, with some
modifications and additions, we submit the following draft of an amendment that would meet the
whole case:
SECTION I. No State shall make any law respecting an establishment of religion, or prohibit the
free exercise thereof, or establish any religious test
as-a qualification to hold any office, or to discharge
any political or civil duty, or to exercise and enjoy
any political or civil right, privilege, or immunity
whatsoever.
SECTION 2. Neither the United States nor any
State, territory, municipality, or any civil division
of any State or territory, shall levy any tax or make
any gift, grant or appropriation for the support or
in aid of any church, religious sect, or denomination, or any school, seminary, or institution of learning in which the faith or doctrines of any religious
order or sect shall be taught or inculcated, or in
which religious rites or practices shall be observed,
or for the support or in aid of any religious charity
or purpose of any sect or denomination whatsoever.
234 
Relisziouis Liberly.
SECTION 3. Congress shall have power, by appropriate legislation, to enforce the provisions of this
article.
The phraseology of this amendment may, perhaps, be improved; yet the ideas, if incorporated
into the Constitution of the United States, would
put an end to the School question and all other
questions that contemplate any alliance, whether
direct or indirect, between civil government and religion. Religious liberty, untaxed, uncoerced, without any patronage from the State, but simply enjoyed and protected, without any discriminations
or preferences and without any encroachment by
governmental power, would have its basis in the
National Constitution, and would, hence, be the
universal inheritance of all the people, whether they
were Christians or Infidels, Catholics or Protestants,
Mormons or Jews.   The best ideas of the State
constitutions would be nationalized, and the defects
and inconsistencies which exist in some of them
would be removed. The future would be guaranteed by the consolidated strength of the whole people. Ecclesiasticism would have nothing to gain
by becoming a political power. Religious factions
could never bring civil government within the circle of their objects, and foreign hierarchies could
obtain no foothold on this soil. The divorce between Church and State would be absolute, universal, and radical. The axe would be laid at the root
of the tree. Such an amendment would guarantee
235 
Rei zion anid Axe State.
impartial and perfect religious liberty in all the
forms and applications of the idea. And in this
respect it would be simply a true and full expression of one of the essential principles of AMERICAN
DEMOCRACY.
XXI.
STATE CONSTITUTIONS.
The several States of the Union exist and operate under written constitutions, which, subject
only to the Constitution of the United States, form
their supreme  law.   All  of these constitutions,
while substantially similar in the powers of government and the manner of their distribution, contain
provisions relating to religion, designed, for the
most part, to protect the religious liberty of the
people against encroachments by governmental
agency.   Some of the provisions, however, found
in the constitutions of some of the States are exceptions to this statement and to the general character and scope of the constitutions of the American States. They appear as inconsistencies and
deformities, and also vestiges of ideas once entertained, but now generally obsolete.
The constitution of New Hampshire, (I., 6) furnishes one of these exceptions, in empowering "the
legislature to authorize from time to time the several
towns, parishes, bodies corporate, or religious so.
236 
State Constitutions.
cieties within this State to make adequate provisions, at their own expense, for the support of public
Protestan teachers of piety, religion, and morality;' and, also, in providing (II, I4, 29, 42) that
"every member of the House of Representatives
shall be of the Proctestant religion;" that
"no person shall be capable of being elected a senator who is not of the Protestaint religion;" and
that no person shall be eligible to the office of governor unless "he shall be of the Proctestanit religion."
The legislature is here authorized to grant to the
towns, parishes, bodies corporate, or religious societies within that State the compulsory power of
taxation for the support of Protestaint teachers of
religion.   The constitution also establishes a religious-test as a qualification for the office of representative, senator, and governor.
The constitution of Pennsylvania, (I., 4) declares
that "no person who acknowledges the being of a
God and a future state of rewards and punishments
shall, on account of his religious sentiments, be
disqualified to hold any office or place of trust or
profit under this commonwealth." This immunity
against disqualification does not, by its very terms,
apply to those who deny the existence of God, or
deny a future state, or deny the doctrine of rewards
and punishments in that state.   All such persons
it leaves exposed to the liability of a religious test
by the will of the legislature, and protects only
those who acknowledge the doctrines recited.
237 
Relifgioiz and IAhe State.
The constitution of North Carolina (VI., 5)
provides that "all persons who shall deny the being
of Almighty God" " shall be disqualified for office."
The constitutions of South Carolina (XIV., 6), of
Mississippi (XII., 3), and of Tennessee (IX., 2),
contain a similar provision, with the extension of
the exclusion in the last of these constitutions to
any person who denies a "future state of rewards
and  punishments."   The  constitution of  Maryland (Declaration of Rights, 36, 37) declares that
no person, "otherwise competent," shall "be deemed incompetent as a witness or juror on account of
his religious belief, provided he believes in the
existence of God, and that under his dispensation
such person will be held morally accountable for
his acts and  be rewarded  or punished therefor
either in this world or in the world to come," and
also declares that "no religious test ought ever to
be required as a qualification for any office of
profit or trust in this State, ot/erthan a declaration
of belief in the existence of God." These provisions are religious tests, and, as Judge Cooley, in
his" Constitutional Limitations" (p. 468) remarks,
"show some traces of the old notion that truth and
a sense of duty are inconsistent with skepticism in
religion." They exclude persons from office on
religious grounds. Maryland has quite an extended religious belief as a qualification to be a witness
or perform the duty of a juror.
So, also, some of the State constitutions ex
238 
State Constilulions.
dclude clergymen, priests, and teachers of any
religious sect from civil office. The constitution
of Delaware (VII., 8) provides that "no ordained
clergyman or ordained preacher of the Gospel of
any denomination shall be capable of holding any
office in the State, or of being a member of either
branch of the legislature while he continues in
the exercise of the pastoral or clerical functions."
The constitution of Kentucky (II., 27) declares
that "no person while he continues to exercise the
functions of a clergyman, priest, or teacher of any
religious persuasion, society, or sect... shall
be eligible to the general assembly." The constitution of Maryland (III., I I,) says that " no minister
or preacher of the Gospel, or of any religious creed
or  denomination... shall  be  eligible as
senator or delegate." The constitution of Tennessee (IX., I,) declares that "no minister of the
Gospel or priest of any denomination whatever,
shall be eligible to a seat in either house of the
legislature." These are examples of constitutional
exclusion of persons from the exercise of civil
functions on account of their. ecclesiastical character and office; and, so far, examples of proscription
on religious grounds. The reason of the exclusion
and the fact itself involve the practical results of a
religious test.
These  provisions  are the exceptions, rather
than the general rule, in the constitutions of the
American States. The great mass of these con
239 
Religion and  the Stlate.
stitutions exclude all religious tests as qualifications
to hold office, or to perform any civil duty or
exercise any political or civil right or privilege;
and also exclude the power to levy taxes for the
support of religion, and guarantee to each person
the full enjoyment of the rights of a religious conscience within the limits of decency and public
order.  It would  be tedious to go  through  the
whole list of provisions that secure these results,
and, hence, a few examples must suffice.
The constitution of Illinois (II., 3,) declares
that "the free exercise and enjoyment of religious
profession and worship, without discrimination,
shall forever be guaranteed, and no person shall be
denied any civil or political right, privilege, or
capacity on account of his religious opinions," and
that "no person  shall be required to attend or
support any ministry or place of worship against
his consent, nor shall any preference be given by
law to any religious denomination or mode of
worship."   The  constitution  of Iowa  (I., 3, 4)
declares that "the general assembly shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay
tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any
minister or ministry. No religious test shall be required as a qualification for any office or public
trust, and no person shall be deprived of any of his
240 
S/ate Constilutions.
rights, privileges, or capacities, or disqualified from
the performance of any of his public or private duties, or rendered incompetent to give evidence in
any court of law or equity, in consequence of his
opinion on the subject of religion." The constitution of Michigan (IV., 39, 4I) declares that "the
legislature shall pass no law to prevent any person
from worshipping Almighty God according to the
dictates of his own conscience, or to compel any
person to attend, erect, or support any place of
religious worship, or to pay tithes, taxes, or other
rates for the support.of any minister of the Gospel
or teacher of religion. The legislature shall not
diminish or enlarge the civil or political privileges
and capacities of any person on account of his opinion or belief concerning matters of religion." The
constitution of New Jersey (I., 4) provides that" no
religious test shall be required as a qualification for
any office or public trust, and no person shall be
denied the enjoyment of any civil right merely on
account of his religious principles." The constitution of Oregon (I., 3, 4, 6) says: "No law shall, in
any case whatever control the free exercise and enjoyment of religious opinions or interfere with the
rights of conscience. No religious test shall be required as a qualification for any office of trust or
profit. No person shall be rendered incompetent
as a witness or juror in consequence of his opinions
on matters of religion, nor be questioned in any
court of justice touching his religious belief to affect the weight of his testimony."
i6
24I 
Religion ancd Ize Sate.
Similar provisions, more or less full, are found
in the constitutions of most of the other States, and
in all the States there are constitutional restrictions
designed to protect the right of a religious conscience against encroachment by legislative power.
Some persons are conscientiously averse to
bearing arms; and in many of the States we find
constitutional provisions granting them an exemption from this service. Thus the constitution of
Indiana (XII., 6) says:" No person conscientiously
opposed to bearing arms shall be compelled to do
militia duty; but such person. shall pay an equivalent for exemption, the amount to be prescribed by
law." The constitution of Alabama (X., I) says:
".All citizens of any denomination whatever who,
from scruples of conscience, may be averse to bearing arms shall be exempt therefrom, upon such conditions as may be prescribed by law." Provisions
of the same general character occur in the constitutions of many of the other States.
So also some persons are conscientiously opposed to taking a legal oath, and, hence, provision
is made that they may simply affirm, as the equivalent of an oath. On this point the constitution
of Missouri (II., I2) says: " If any person shall declare that he has conscientious scruples against
taking an oath or swearing in any form, the said
oath may be changed into a solemn affirmation and
be made by him in that form." The constitution
of Indiana (I., 8) says:" The mode of administering
242 
S/ale Constilutions.
an oath or affirmation shall be such as shall be
most consistent with, and binding upon, the conscience of the person to whom such oath or affirmation may be administered." Like provisions
are found in the constitutions or statutes of other
States.
Some of the State constitutions expressly prohibit the appropriation of any public funds or property for religious or sectarian uses. Thus the constitution of Illinois (VIII., 3) says: "Neither the
general assembly, nor any county, city, town, township, school district, or other public corporation,
shall ever make any appropriation or pay from any
public fund whatever, anything in aid of any church
or sectarian purpose, or to help support or sustain
any school, academy, seminary, college, university,
or other literary or scientific institution controlled
by any church or sectarian denomination whatever; nor shall any grant or donation of land, money,
or other personal property ever be made by the
State or any such public corporation to any church
or for any sectarian purpose." The constitution
of Missouri (IX., io) contains a similar provision.
The constitution of Indiana (I., 6) declares that "no
money shall be drawn from the treasury for the
benefit of any religious or theological institution."
The constitution of Oregon (I., 5) provides that "no
money shall be drawn from the treasury for the
benefit of any religious or theological institution,
nor shall any money be appropriated for the pay
243 
Religion an(d the State.
ment of any religious service in either house of the
legislative assembly." The constitution of Michigan (IV., 40) declares that "no money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or
religious seminary, nor shall property belonging to
the State be appropriated for any such purposes."
The constitution of Minnesota (I., I6) and that of
Wisconsin. (I., I8) contain a similar provision.
Looking, then, at these various constitutional
provisions as a whole, and as indicating the general
policy of the American States in regard to religion,
Judge Cooley, in his "Constitutional Limitations"
(chapter xiii.), says that "those things which are
not lawful under any of the American constitutions
may be stated thus"
I. "Any law respecting an establishment of
religion." 2. "Compulsory support, by taxation
or otherwise, of religion." 3. "Compulsory attendance upon religious worship." 4. "Restraints upon
the free exercise of religion according to the dictates of the conscience."  5. "Restraints upon the
expression of religious. belief."
"These," he adds, "are the prohibitions which
in some form of words are to be found in the American constitutions and which secure freedom of
conscience and of religious worship. No man in
religious matters is to be subjected to the censorship of the State; and the State is not to inquire
into or take notice of religious belief, when the
244 
Slate Constitutions.
citizen performs his duty to the State and to his
fellows." Hie also says that "it is not toleration
which is established in our system, but religious
equality." The exceptions to this principle referred to and illustrated by citations in the commencement of this article he treats as exceptions not often
put into practice and by no means representing the
general character of our American State constitutions. They are, rather, the relics of ideas once
prevalent, but now for the most part discarded in
this country. They are, moreover, generally found
in the older constitutions, and not in those of more
recent date.  The American people have outgrown
the doctrine of religious tests and that of taxation
for religious purposes. The tendency of public
thought-has been toward a complete severance of
Church and State.
Mr. John Norton Pomeroy, in his "Introduction
to Municipal Law" (p. 292), states as follows, the
general theory in regard to religion on which our
national and State constitutions are built:
"The theory of our national and State constitutions is that the State, as an organic body, has
nothing whatever to do with religion, except to
protect the individuals in whatever belief and worship they may adopt; that religion is entirely a
matter between each man and his God; that the
State, as separated from the individuals who compose it, has no existence except in a figure; and
that to predicate religious responsibilities of this
245 
?Religion and the S/ale.
abstraction is an absurdity. Whatever, then, the
State does, whatever laws it makes touching religious subjects, are done and made not because the
State is responsible, but simply that the people
may be secure in the enjoyment of their own religious preferences. Public labor is forbidden by
law on Sunday, not because the State, as such,
respects the sacredness of the day or attempts to
enforce its observance; but because a large portion
of its worthy citizens do regard the day as sacred
and employ it for public and private worship, and
have a right to be protected in the quiet use of the
time for these purposes.  So far as the State is
concerned, the laws forbidding public labor on
Sunday stand on exactly the same footing as those
forbidding disorderly houses, public intemperance,
and all other acts which disturb the peace. The
same may be said of laws against profane swearing."
Reasoning from these principles, Mr. Pomeroy
says: "Indeed, although the people composing
our body politic are doubtless as much impressed
with Christian ideas as those of any other nation,
our governments, both State and National, by ignoring the whole subject, can hardly be called Christian." This is undoubtedly the truth. Neither
Christianity nor any other religious system forms
any part of the Constitution of the United States.
The same is true of the State constitutions, as a
general fact. The exceptions are such as were specified in the first part of this article; and even
246 
Rights of Conscience.
these exceptions are limited to a few particulars
and in practice are mostly obsolete.
The all-pervading principle, then, of our American constitutions is that the State, as such, has
nothing to do with religion, beyond affording to
the people protection in the enjoyment of their
religious rights, and that, too, with no discrimination among them. It is difficult to see how a State
established upon this principle, and for reasons of
State policy conducting a school system at the public expense, can make that system the instrument
of religious instruction or worship in any form. It
manifestly cannot do so without contradicting the
fundamental law of its own organic life.
XXII.
CONSTITUTIONAL RIGHTS OF CONSCIENCE.
The following citations present the several
clauses of the American State constitutions, which
in express words refer to the rights of conscience
and guarantee their peaceable exercise and enjoyment
ALABAMA  (I., 4): "No  person  shall be deprived of the right to worship God according to
the dictates of his conscience."
CALIFORNIA (I., 4): "The free exercise and
enjoyment of religious profession and worship,
without discrimination or preference, shall forever
be allowed in this State;... but the liberty
247 
Religion and the State.
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
the State."
CONNECTICUT (VII., 1): "It being the duty of
all men to worship the Supreme Being, the great
Creator and Preserver of the Universe, and their
right to render that worship in the mode most
consistent with the dictates of their conscience, no
person shall by law be compelled to join or support,
or be classed with, or associated to, any congregation, church, or religious association."
DELAWARE (Preamble): "Through divine goodness all men have, by nature, the rights of worship-.
ping and serving their Creator according to the
dictates of their consciences. No power shall or
ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any
manner control the rights of conscience in the free
exercise of religious worship" (I., I).
FLORIDA (I., 5): "The free exercise and enjoyment of all religious profession and worship shall
forever be allowed in this State;...  but the
liberty of conscience hereby secured, shall not be
so construed as to justify licentiousness or practices subversive of the peace and safety of the'
State."
GEORGIA (I., 6): "Perfect freedom of religious
sentiment shall be and the same is hereby secured,
and no inhabitant of this State shall ever be molest 
Rights of Conscieizce.
ed in person or property, or prohibited from holding
any public office of trust on account of his religious
opinion; 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 the people."
ILLINOIS (II., 3): " The free exercise and enjoyment of religious profession and worship, without
discrimination, shall forever be guaranteed;. 
but the liberty of conscience hereby secured shall
not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify
practices inconsistent with the peace or safety of
the State."
INDIANA (II., 2, 3): "All men shall be secured
in the natural right to worship  Almighty  God
according to the dictates of their own consciences.
No law shall in any case whatever control the free
exercise and enjoyment of religious opinions, or
interfere with the rights of conscience."
IOWA (I., 3): "The General Assembly shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
KANSAS  (Bill of Rights,  7): "The  right to
worship God according to the dictates of conscience
shall never be infringed;... nor shall any
control of or interference with the rights of conscience be permitted."
KENTUCKY (XIII., 5): "All men have a natural
and indefeasible right to worship Almighty God
249 
Religion and the Slale.
according to the dictates of their own consciences.
...  No  human  authority ought in any case
whatever to control or interfere with the rights of
conscience."
LOUISIANA  (I., I2): "Every  person has the
natural right to worship God according to the
dictates of his conscience."
MAINE  (I, 3): "All men have a natural and
unalienable right to worship Almighty God according to the dictates of their own consciences; and
no person shall be hurt, molested, or restrained in
his person, liberty or estate, for worshipping God in
the manner and season most agreeable to the dictates of his own conscience, nor for his religious
professions or sentiments, provided he does not
disturb the public peace nor obstruct others in
their religious worship."
MARYLAND (Declaration of Rights, 36): "That,
as it is the duty of every man to worship God in
such manner as he thinks most acceptable to him,
all persons are equally entitled to protection in
their religious liberty; wherefore, no person ought
by any law to be molested in his person or estate
on account of his religious persuasion or profession,
or for his religious practice, unless, under the color
of religion, he shall disturb the good order, peace,
or safety of the State, or shall infringe the laws of
morality, or injure others in their natural, civil, or
religious rights."
MASSACHUSETTS (I., 2): "It is the right as well
250 
Rights of Conscience.
as the duty of all men in society, publicly and at
stated seasons, to worship the Supreme Being, the
great Creator and Preserver of the Universe.
And no subject shall be hurt, molested, or restrained in his person, liberty, or estate for worshipping
God in the manner and season most agreeable to
the dictates of his own conscience, or for his profession or sentiments, provided he doth not disturb
the public peace or obstruct others in their religious
worship."
MICHIGAN (IV., 39): "The legislature shall
pass no law to prevent any person from worshipping
Almighty God according to the dictates of his
own conscience."
MINNESOTA (I., I6): "The right of every man
to worship God according to the dictates of his
own conscience shall never be infringed,.
nor shall any control of, or interference with, the
rights of conscience be permitted;... 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 the State."
MISSOURI (I., 9): "All mien have a natural and
indefeasible right to worship Almighty God according to the dictates of their own consciences..
No human authority can control or interfere with
the rights of conscience.... But the liberty
of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, nor to
251 
Religio z and I/ie Slate.
justify practices inconsistent with the good order,
peace, or safety of the State, or with the rights of
others."
NEBRASKA (I., I6): "All men  have  a natural
and indefeasible right to worship Almighty God
according to the dictates of their own conscience;
~.. nor shall any interference with the rights
of conscience be permitted."
NEVADA (I., 4): "The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed
in this State;...  but  the  liberty hereby
secured shall not be so construed as to excuse
acts of licentiousness, or justify practices inconsistent with the peace and safety of the State."
NEW  HAMPSHIRE  (I., 4, 5): "Among the natural rights some are in their very nature unalienable, because no equivalent can be given or received
for them. Of this kind are the rights of conscience.
Every individual has a natural and unalienable
right to worship God according to the dictates of
his own conscience and reason; and no subject shall
be hurt, molested, or restrained in his person,
liberty, or estate for worshipping God in the manner
and season most agreeable to the dictates of his
own conscience, or of his religious profession,
sentiments, or persuasion, provided he doth not
disturb the public peace, or disturb others in their
religious worship."
NEW JERSEY (I., 3): " No person shall be de.
252 
Rights of Conscience.
prived of the inestimable privilege of worshipping
Almighty God in a manner agreeable to the dictates of his own conscience."
NEW YORK (I., 3): "The free exercise and
enjoyment of religious profession and worship,
without discrimination or- preference, shall forever
be allowed in this State to all mankind;..
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."
NORTH CAROLINA (I., 26): "All men  have a
natural and unalienable right to worship Almighty
God according to the dictates of their own consciences, and no human authority should in any
case whatever control or interfere with the right
of conscience."
OHIO (I., 7): "All men have a natural and indefeasible right to worship Almighty God according
to the dictates of their own conscience;...
nor shall any interference with the rights of conscience be permitted."
OREGON (I., 2, 3): "All men shall be secured
in their natural right to worship Almighty God
according to the dictates of their own consciences.
No law shall in any case whatever control the free
exercise and enjoyment of religious opinions, or
interfere with the rights of conscience."
PENNSYLVANIA (I., 3): "All men have a natural
and indefeasible right to worship Almighty God
253 
Reh gioin anid  hie State.
according to the dictates of their own consciences.
...  No human  authority can in any case
whatever control or interfere with the rights of
conscience."
RHODE ISLAND (I., 3): "Every man shall be
free to worship God according to the dictates of
his own conscience and to profess and by argument
to maintain his opinion in matters of religion."
SOUTH CAROLINA (I., 9): "No  person shall be
deprived of the right to worship God according to
the dictates of his own conscience, provided that
the liberty of conscience hereby declared shall not
justify practices inconsistent with the peace and
moral safety of society."
TENNESSEE (I., 3): "All men  have a natural
and indefeasible right to worship Almighty God
according to the dictates of their own consciences.
... No human authority can in any case whatever control or interfere with the rights of conscience."
TEXAS (I., 4): "All men have a natural and
indefeasible right to worship God according to the
dictates of their own consciences....  No human authority ought in any case whatever to control
or interfere with the rights of conscience in matters
of religion."
VERMONT (1., 3): "All men have a natural and
inalienable right to worship Almighty God according to the dictates of their own consciences and
understandings, as in their opinion shall be regu.
254 
Rizghs of Conscience.
lated by the Word of God.... No authority
can or ought to be vested in or assumed by any
power that shall in any case interfere with or in
any manner control the rights of conscience in the
free exercise of religious worship."
VIRGINIA (I., I8): "All men are equally entitled
to the free exercise of religion according to the dictates of conscience."
WEST VIRGINIA (III., I 5): "Nor shall any man
be enforced, restrained, molested, or burdened in
his body or goods, or otherwise suffer, on account
of his religious opinions or belief; but all men
shall be free to profess and by argument to maintain their opinions in matters of religion."
WISCONSIN (I., I8): "The right of every man
to worship God according to the dictates of his
own conscience shall never be infringed....
Nor shall any control of, or interference with, the
rights of conscience be permitted."
Here are thirty-five State constitutions that in express language, somewhat various in the words used,
yet essentially identical in substance, formulate a
definite doctrine in regard to the rights of conscience and give to it the'authority of constitutional law. The same doctrine is implied, but not
so fully expressed, in the constitutions of Arkansas
and Mississippi; and, hence, they are not quoted
in the above list.   What then is this doctrine?
We answer as follows:
I. These provisions assume the existence of
255 
R?eligion and the State.
conscience as an attribute of human nature. They
also assume the doctrine of a God as existing in
the faith of men, and the fact of worship or reli gious service rendered to God as a prevalent practice
among the people. These facts are not created by
being thus assumed and implied. They are simply
recognized as existing antecedently to, and independently of, all constitutions; and what and all that
is sought to be accomplished by the above provisions is to establish certain guaranties in respect to
the rights of conscience.
2. These rights are simply those that relate to
religion, to the faith involved, to the various modes
of expressing that faith, and the duties by which
men may deem themselves bound to God.  They
are purely and exclusively religious rights. They
are not the rights which law creates, or which grow
out of the relations that men hold to each other as
members of the State. They spring from the relations which men hold to God, as the creatures of his
power and the subjects of his moral government.
Outside of this sphere of rights, the provisions have
no application.
3. These rights are referred to as existing by nature-as being natural, indefeasible, and inalienable
-and as being universal, or equally common to all
men. These four conceptions are, in our State constitutions-in some by express words, and in others
by implication-associated with the rights of conscience.
256 
RI' Is of Coosscience.
4. The phrase, "dictates of conscience,"-a
phrase implying command, precept, or an authoritative rule of action-is the common form in which
these constitutions express the voice or requirement  of  conscience.    They  mean  thereby the
affirmation and sense of obligation, as existing in
the individual soul, and in respect to that soul prescribing a law which cannot be disregarded without
self-condemnation. This deeply-rooted and universal fact of our nature is designated by the phrase
"dictates of conscience."
5. These rights and these dictates of conscience
in respect to religion are constitutionally withdrawn
from  the jurisdiction of civil government.   The
form of the withdrawal varies somewhat in different
constitutions, yet the thing aimed at is the same in
all. The reader, by simply casting his eye over the
provisions previously quoted, will readily see the
different modes of expression by which the State
constitutions exempt the rights of a religious conscience from regulation, control, interference, restraint, or constraint by civil government. Their
design is to secure religious freedom, by imposing
limitations upon the civil power.   On  this vital
question they all hold and all assert one doctrine.
6. The guaranty thus afforded, makes no distinction between different kinds of consciences.
The conscience of a Protestant, and that of a
Catholic, stand on the same footing. Neither, for
the purposes of the guaranty, is any better than the
I 7
257 
Religion and the State.
consciences of a Jew, a Deist, a Rationalist, a Swe.
denborgian, a Mormon, a Hindu, or a Chinaman.
The guaranty does not inquire into the correctness
of these several consciences, or pronounce any judgment upon them. It leaves each one to judge for
himself as to what his religion shall be, and then
declares that he shall not only not be interfered
with, but that he shall be protected in the peaceable exercise of that judgment. It is not religious
liberty for Christians, or for Protestants merely,
but religious liberty for all the people, that the
State constitutions undertake to secure.
7. The limitation upon  this liberty, expressed
in some of these constitutions and implied in others,
is that it must be so exercised as to be consistent
with the rights of society. The theory of the limitation is, that there can be no right of a religious
conscience to commit trespasses against the peace,
good order, and safety of the social system. Thus
the constitution of Missouri declares that "the liberty of conscience hereby secured shall not be so
construed as to excuse acts of licentiousness, nor
to justify practices inconsistent with the good order,
peace, or safety of society, or with the rights of
others." Such a limitation, whether expressed or
not, necessarily exists.   Society has the right to
protect itself and to protect all its members by just
and wholesome laws; and this right it cannot surrender to any abuse or misuse of the rights of conscience. The fact that polygamy is made a part of
258 
Rights of Conscience.
one's religion will not, if he practises it, exempt him
from punishment in a community that treats the
practice as a criminal offense. It is the right and
the duty of civil society to judge for itself as to
what is demanded by good morals and the general
interests of the public; and there can be no right
in the individual conscience to subvert and contravene this judgment.
These seven particulars are submitted as a generalized statement of the doctrine in respect to the
rights of conscience, as found in the constitutions
of thirty-five States of this Union and as implied in
those of the other two States. Though independent of each other and in their sphere of legal action independent of the General Government, these
States exhibit a remarkable unity of opinion and
purpose when dealing with religion considered in
relation to the individual conscience. This fact
very strikingly appears when we compare their respective constitutions with reference to this subject.
How, then, does such a constitutional system
harmonize with the theory of those who demand
that our public schools shall be made the instrumentality of religious propagandism? In respect
to private schools there is no such question to ask,
since the State has no control over them and taxes
nobody for their support. But when the State interposes by its authority, establishes an educational system, and makes religion a part of it by its au
259 
Religion and the Stale.
thority, and taxes the people for its support by the
same authority, then it coerces the taxpayer to contribute his money for the maintenance and propagation of that religion.   Suppose that his conscience regards the religion as a gross heresy and forbids him to do anything for its support.   This will
be true of the Catholic if the religion is Protestant,
and true of the Protestant if the religion is Catholic, and true of the Jew if the religion is either Protestant or Catholic. Is it, then, consistent with the
constitutional doctrine of the American States as
to the rights of conscience to force the taxpayer to
pay his money for the propagation of a religious
system which his conscience condemns and which,
as he believes, the God of that conscience condemns? The Protestant would instantly answer in
the negative if the religion to be thus taught and
made a compulsory charge upon him were Roman
Catholicism, or Mohammedanism, or any form of
idolatry. He would protest against it as an infringement upon his rights of conscience and as
inconsistent with the spirit, if not the letter, of
those provisions in our State constitutions which
protect these rights.
The same protest and the same argument, coming from a Catholic, a Jew, or a Deist, are just as
good as when coming from a Protestant. It matters not who makes the protest or who uses the argument. The principle is the same in all cases.
The rights of conscience in respect to religion are,
260 
Righ/s of Conscience.
in this country, constitutional rights, and that, too,
without any discrimination or distinction among
different consciences. The necessary inference is
that no State should, and that no State consistently
can, compel anybody to contribute a penny for the
support or propagation of any form of religion.
Public schools, established by State authority and
supported at the public expense, ought to be so
regulated as to avoid this result; and the only regulation which secures the end-is the exclusion of
religion from their educational programme. This
and this only makes the schools consistent with
the rights of conscience as laid down in the fundamental law of the States.
Those who have any controversy with the inference have the same controversy with this law.
That man certainly is not free in the exercise of his
religion who is by lawforced to support a religion,
and especially so if he condemns and rejects the
religion he is thus compelled to support.   The
compulsion, whether it relates to the public school
or church worship, is an abominable tyranny. It
flies directly in the face of the very first principles of our constitutional system of State Governments.
26I 
Religion and the State.
XXIII.
TAXATION AND RELIGIOUS CORPORATIONS.
Seventeen of the State constitutions-namely,
those of California, Connecticut, Delaware, Georgia, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, New Hampshire, New Jersey, New York, Rhode Island, and
Vermont-contain no express provisions relating
to the taxation of religious corporations. The whole
question is, therefore, by implication, left to the
discretion of the legislatures of these States.
The constitutions of Florida (XII., I), Illinois
(IX., 3), Indiana (X., I), Louisiana (VI., I I8), Nevada (X., I), North Carolina (V., 6), Ohio (XII., 2),
Oregon (IX., I), Pennsylvania (IX., I), South Carolina (IX., I), Tennessee (II., 28), Texas (XII., I9),
Virginia (X., 3), West Virginia (X., I), and Wisconsin (VIII., I)-fifteen States in all-expressly
remit the question of taxation in respect to these
corporations to legislative determination.
The constitution of Minnesota (IX., 3), declares
that "all churches, church property used for reliious purposes, and houses of worship... shall
262 
Taxation and Religious Corporations. 263
by general laws, be exempt from taxation." That
of Arkansas (X., 2) provides that "houses used exclusively for public worship... shall never be
taxed. That of Kansas (XI., I) also provides that
"all property used exclusively for" religious purposes "shall be exempted from taxation."   The
legislatures of these States have no power to impose any tax upon property owned and used for
public worship.
The constitution of Alabama (XIII., 4) declares
that "the property of corporations now existing or
hereafter created shall forever be subject to taxation the same as property of individuals, except corporations for educational and charitable purposes.
Unless religious corporations are included under
the title of " corporations for educational and charitable purposes "-a construction that-would not be
according to the general usage of State constitutions
-it then follows that such corporations cannot be
exempted in Alabama from taxation on the property
owned  by them.   The constitution  of Missouri
XI., I6) provides that "no property, real or personal, shall be exempt from taxation, except such
as may be used exclusively for public schools, and
such as may belong to the United States, to this
State, to counties, or to municipal corporations in
this State." The property of religious corporations
is not included in these exceptions, and hence, the
legislature has no power to exempt it from taxation.
Thus we have thirty-two States in which the 
Reigion and the Slale.
question of taxing religious societies is left to the
legislative will, three States in which the power of
taxing these societies is denied to their respective
legislatures, and two States whose constitutions in
effect deny the power of exempting church property
from taxation. The general fact in this country is
that all property which is directly used for religious
worship is thus exempted. No discrimination is
made beween the different Christian sects or between Christian and other religious corporations.
A society of Jews, or of Mormons, or of Swedenborgians, or of Mohammedans, or of Pagans, if owning property directly used for religious purposes,
would enjoy the benefit of the exemption. The
Revised Statutes of New York State provide that
" every building for public worship" shall be exempt
from taxation. This applies to a Jewish synagogue
as really as to a building owned and used for public
worship by a Christian society. Neither the character of the worship nor the tenets and doctrines
involved therein, furnish any rule of exemption.
"Houses of worship," "buildings for public worship," "property exclusively used for religious purposes," "churches  and church property used for
religious purposes,"-such are the constitutional
or statutory designations of the property to be
exempted.   It is not the intention  of  law  to
confine the exemption to buildings or houses for
Christian worship. Such a limitation would make a
discrimination between religious sects; and this
264 
Taxatios and Religious Corporations. 265
would be inconsistent with a fundamental principle
of our political system.
According to the census of I870, the amount of
property belonging to the different religious denominations in the United States was then $354,483,58I, against $171,397,932 in I86o and$87,328,Soi in I85o-showing that, for an average, it had
doubled in each of the last two decades. The following table gives the result at this rate of increase
in sixty years from I870.
Years.                                                       A4 mount.
1870.. - -..................................- - - - - - -...............$354,483,58I
I88o..................................................... 708,967, 62
890.................................................... 1,47,934,324
1900....................................................2,835,868,648
x9o.................................................... 5,67,737,296
1920...................................................,343474,592
930..................................................22,686,949, 84
Thus the aggregate of property, mainly belonging to Christian sects, would in sixty years, at this
rate of increase, reach the stupendous sum of nearly
twenty-three billions of dollars. The same rate may
not be continued; yet no one doubts whether there
will be an immense increase of property vested in
structures and their appurtenances used for religious
worship. This will by no means be an evil, if considered in a moral and religious aspect, but rather a
great blessing to the country; yet it does raise the
question whether the exemption of Church property from taxation is not an evil that ought to be
corrected. In regard to this question we submit
the following observations
4'...'".."
1..  } 4,:::,.:: 
Religion and the S/ate.
I. The general theory of all just taxation is mhat
of reciprocal service.  Judge Cooley, in his "Law
of Taxation" (p. I4), says:" The protection of the
government being the consideration for which taxes
are demanded, all parties who receive or are entitled
to that protection may be called upon to render the
equivalent." The constitution of Massachusetts (I.
io) says: "Each individual  of the society has a
right to be protected by it in the enjoyment of his
life, liberty, and property, according to standing
laws.   He is obliged, consequently, to contribute
his share to the expense of the protection." This
theory applies to corporations, as well as to individuals. Both alike need and receive the protection
of government; and, hence, both come within the
proper scope of the taxing power.
2. It is an acknowledged principle that taxation should, as nearly as practicable, be so distributed that all parties will contribute their appropriate
share toward the expenses of government. If any
are exempted from this burden, a good and sufficient
reason must be shown therefor. No argument is
needed to prove so plain a principle of equity.
3. Both the theory of taxation and the rule of
distribution apply to religious corporations as really
as to other corporations or to individuals, unless
there be some special reason for making them an
exception. That reason, if any such reason exists,
cannot consist in the fact that these corporations
are religious in their ends and objects. To make
266
.     I.   i  -1,.,, 
Taxation and R?eligious Corporatio s. 26 7
this a reason for special privileges or immunities
would be a glaring self-contradiction in an American
State. It would theoretically, as well as practically
adopt the principle of Church and State. Some
other and different, as well as better reason must
be assigned for exempting Church property from
taxation. Dr. Wayland, in his "Political Economy"
(Book  IV., chapter  3, section 2), observes   "All
that religious societies have a right to ask of the
civil government is the same privileges for transacting their own affairs which societies of every
other sort possess. This they have a right to demand; not because they are religious societies, but
because religion is an innocent mode of pursuing
happiness."
4. The direct effect of exemption is to lessen
the basis of taxation to the full extent of the property exempted: and this necessitates an increase of
rate on all tax-paying property. The exemption is,
hence, an indirect appropriation to religious corporations, and a virtual subsidy for their support, at
the expense of the general public. What is thus
granted to them by not being'collected from them
is a gift for which the State reimburses itself by
charging the amount to non-exempted property, in
the form of an increased tax. It is as really a gift
as would be the same amount if directly appropriated from the public treasury. What is taken off
from Church property is transferred to other property not by the voluntary action of the tax-payer, but 
Re2i~gioi and the State.
by the compulsion of law. In this way the State
avoids a deficiencyin its revenues, that would otherwise occur as the consequence of exemption.
Every person who pays a dollar of taxes pays
a certain proportion toward the fund that must
be raised to make the State good for the loss of revenue occasioned by the exemption of Church property.
5. The argument most frequently used in defending this exemption is based on the temporal benefits
accruing to the State from Church property-such
as improving the morals and elevating the character
of the people and also enhancing the value of other
property.   These benefits are presented as the
equivalent of the special privilege granted by the
State. The fatal objection to this reasoning is
that it proves too much.   Nearly all kinds of
private property, and especially some kinds, render
an  important  public service.   This  is true of
private school structures, true even of a picture
gallery, true of property used for innocent public
amusement, true of the property of bank corporations, railway companies, insurance companies, etc.; and yet such property cannot be exempted
from taxation without starving the treasury of the
State.  Why, then, should Church property enjoy
this favor on the ground of benefits rendered, and
other property that can assign the same reason for
the favor, in kind, if not in degree, be excluded
therefrom?  The moment we generalize the doc
268 
Taxatioii anld Reli&'ious CorporationsS. 269
trine of uses and benefits as furnishing a reason for
tax-exemption in behalf of religious corporations it
refutes itself by proving more than the State can
admit.
So, also, if the doctrine be good to show the
propriety of tax-exemption, why is it not just as good
to show that the State should directly, by formal
appropriations of public money, contribute to the
support of religious societies? The latter would be
only a direct mode of doing what is indirectly yet
really done by the former. The argument is just as
strong for the one as it is for the other; and, hence,
in this sense it proves too much. Church corporations do not need the exemption in order to exist,
and thus afford the benefits, any more than they
need direct positive support in order to exist. They
could and would exist without either mode of help
by the State.
6. Church property, it is said, ordinarily yields
no private income to the corporators, and for this
reason should be exempted from taxation. However
plausible such an argument might be under a system of taxation based on income, it manifestly has
no application to one based on the valuation of
property, with a percentage of taxation on the same.
The latter, and not the former, is the system on
which the States rely almost exclusively for their
revenue.   The question of income does not and
cannot enter into such a mode of taxation except
as it may be incidentally involved in that of valua 
Religion and the State.
tion; and even in this collater-1 way it is not a
ground of exemption but merely a guide in fixing
the valuation.  Large amounts of property from
which no income is derived-as wild lands, houses,
or stores not used or rented, goods unsold or on
which there is a depreciation below their cost, and
the like,-are, nevertheless, compelled to pay taxes.
The fact of private ownership and that of an estimated value are deemed sufficient.   The State,
adopting valuation as on the whole the best theory
of taxation, does not and cannot regulate its action
by the rule of income. The property is protected
by the State, whether it yields any income or not,
and it has value to its owners. Why, then, should
Church property be released from all tax burdens
under the system of valuation because it yields no
income to the corporators, even if the fact be granted?  No reason can be assigned on this ground
that would not equally apply to many other kinds
of property; and, if it were thus applied, a still
higher rate of taxation would be needed, and, as the
consequence, still heavier burdens would fall upon
those who pay taxes, or the revenue of the State
would be insufficient for its expenses.
7. It is further said that the taxation of Church
property would to the corporators be double taxation,
and that for this reason it ought to be exempted.
This is manifestly a mistake as to the meaning of
a word. Double taxation is the taxation of the
same property twice under one general assessment.
270 
Taxation and Religious Corpo;-ations. 271
Church property owned by corporators jointly and
their individual property certainly are not the same.
If the former were taxed, the corporators, considered as individuals, would not be taxed to pay this
tax, since what they paid toward the Church tax
would not be compulsory, but purely a matter of
their own choice. The direct effect of the tax
would be simply to increase the annual expenses of
the corporation, by adding thereto this item; and
the same result would ensue from raising the salary
of the minister, or employing a paid choir, or contracting a loan on which interest must be paid. The
tax would simply be one of the standard expenses
of the corporation, and the corporators themselves
would no more be taxed doubly than any other class
of corporators who pay taxes on their individual
property and jointly pay taxes on their corporate
property.
8. But we are told that Church property is in an
important sense pubic property, and that on this
account it ought not to be taxed. Here is a mistake
as to a fact. Such property in this country is not
public property, except by the false use of a term.
The public does not own it or control its uses. The
public cannot use it except by the permission and
at the option of the corporators.  The fact that
benefits to the public arise from its use does not
give it the character of public property, since the
same is true of the property of the merchant, the
banker, and, indeed, of nearly all private property. 
Re2liion an  s 4he State.
Public benefits are traceable to a great variety of
private sources, and the use of Church property is
only one of them.
9. It is also urged that taxation of Church prop.
erty would be an oppressive birdez to religious
corporations. It would, undoubtedly, add a new
item to their annual expenses; and this is equally
true in respect to all who pay taxes, whether individuals or corporations.  All taxation is a burden; 
yet it is the equivalent which government asks for
the protection it affords. Moreover, the burden in
the case of Churches, as in all other cases, would,
under the rule of valuation and percentage, be simply
in proportion to the amount of property owned;
and this would certainly be a fair index to the
ability of the corporators. The rule grades the
burden to the resources of the taxpayer, and we see
no reason why this rule would not be just as equitable when applied to Church property as it is when
applied to any other species of property. There
are hundreds and thousands of persons who find it
difficult to pay their annual taxes; and yet the
State cannot excuse them for this reason.  Why
should it on this ground excuse Churches from all
participation in tax burdens, and throw the whole
weight of these burdens upon property not thus
exempted and excused? Why should it make Church
property a virtual pensioner upon the public bounty
and levy a contribution upon all other property to
pay the pension? We can see no reason for so doing
272 
Taxation anid Reig,oious Cor.Porations 273
in the fact that taxation is a burden. The fact is
granted, and this is an important reason showing
that the burden should, as nearly as possible, be
distributed according to the rule of equity.
I o0. The courts have usually held that the
exemption of Church property does not apply to
spcial assessments for local improvements, as the
paving or repairing of the street on which it stands
and the like. The theory is that the property, though
owned by a religious corporation derives a special
benefit from such improvements, and, hence, that,
like all other property enjoying the same benefit, it
should be taxed to pay for it. If this be a sound
theory, as we concede it to be, then why is not
ordinary taxation of Church property, in common
with all other property, on the ground of gezeraz
benefits accruing from the protection afforded by
government, an equally sound theory? If the State
may and should tax Church property for local benefits, then why not also for general benefits? The latter are certainly more important than the former.
II. The law in this country usually limits the
property which a religious corporation may acquire
and hold by fixing a maximum amount or a maximum annual value or income which must not be
exceeded.  One of the objects is to prevent large
accumulations of such property in the possession of
Churches. The limitation is designed to modify in
the way of restraint the effect of tax-exemption.
The practical difficulty, however, is that the tax
i8 
Relgion and the S/ate.
exemption works in all cases, and the limitation
hardly in any case. The tendency of exemption,
especially in cities, is to foster and encourage an
extravagant and useless expenditure of the wealth
of society in Church structures, without any real
benefit to the community, and with a positive damage, by releasing large amounts of this wealth from
any contribution toward the expenses of government. So far as taxation is concerned, property
thus invested is virtually annihilated. The law of
limitation does not remedy or lessen this evil,
because it is not practically regarded or practically
enforced. Taxation of Church property would be
a perfect remedy in respect to the general public.
It would, at the same time, teach religious corporations the expediency of more economy in their
arrangements and facilities for public worship, and
in this respect it would do them no harm.
The conclusion to be derived from these views
is that, although exemption of Church property from
taxation is the general practice of the country, the
argument on the merits of the question is, nevertheless, adverse to the practice. We can see no
sufficient reason for exemption in any case in which
a direct appropriation of the public money would be
improper. The two are simply different ways o
doing precisely the same thing in practical effect.
If the American people would not consent to be
directly taxed to extend bounties and subsidies to
religious societies, as they certainly would not, then
274 
Taxalioz ani RelSgioous Corboraiots. 275
they should not consent to an indirect appropriation
in aid of these societies, through the process of taxexemption. The argument which is good to prove
the former proposition is just as good to prove the
latter. The two piopositions are essentially identical in their substance.
Religious societies, considered as civil corporations existing for lawful purposes, are entitled to the
common privileges and immunities of such corporations under the authority and protection of law;
and this is the sum of their just claim at the hands
of government. Any legal discrimination against
them would be unjust. Any such descrimination
in their favor at the expense of the general public
is equally unjust. Tax-exemption is such a discrimination, and is, moreover, a relic of the principle
of Church and State, inherited from the past and not
yet eliminated from our political system. The religious reason for such exemption would not stand
the test of our institutions for a moment, and the
economical and governmental reason is clearly
against it. Every argument that can be urged in
its favor either proves too much or is false in one
of its premises.   Were  the American people to
require religious corporations to contribute by taxation their proper share toward the expenses of
government, they would not only apply to them a
just theory of taxation, but would also act in perfect
consistency with their own principles as a political
organization. 
Relizgion ad thize State.
XXIV.
SABBATH LEGISLATION.
Sunday, or "the first day of the week," is by
Christians observed as a Sabbath in the twofold
sense of being a day of rest from ordinary secular
labor and also a period specially devoted to religious worship. The point we propose to consider is
not whether this observance is obligatory under
the law of God; but what is the authority, if any,
of the Christian Sabbath in this country as derived
from civil government.
The only clause in the Constitution of the
United States that can have any possible relation
to this inquiry reads as follows: "If any bill shall
not be returned by the President within ten days
(Sundays excepted) after it shall have been presented
to him, the same shall be a law in like manner as if
he had signed it," etc.. This simply recognizes
Sunday as one of the days of the week: and, assuming that the President would not devote it to
public business, it provides that, in counting the
"ten days" referred to, Sundays shall not be included. Here, clearly, is no law in respect to Sunday,
except for the single purpose nanmed.
The Revised Statutes of the United States con
276 
Sabbaf,i Legislaliozn.
tain four references to Sunday: In the first (section
I324), providing that cadets shall not be required
to pursue their studies on Sunday; in the second
(section 1526), making the same provision in regard
to students at the Naval Academy; in the third
(section 5oi3), declaring that in computing time in
certain bankruptcy proceedings Sunday shall not
be counted, but, like the Fourth of July or Christmas Day, shall be excluded from the computation;
in the fourth (section 125), providing that army
chaplains shall, when it is practicable, hold appropriate religious services at least once each Sunday.
The first three references relate to Sunday simply
as a day of rest and have nothing to do with its
religious uses. The fourth reference names it as
the day when army chaplains shall hold religious
services, because this is the common day of rest and
the day usually observed for this purpose by the
people, and not because Congress intended to establish any Sabbath law even for the army.
It is the practice of Congress and of the Federal
courts to suspend legislative and judicial business
on Sunday; yet the practice is one of usage and
not of legal requirement. The same practice extends
through the whole circle of government operations,
with the exception of the mail. This exception was
some years since the subject of very extensive dis.
cussion among the people. Numerous petitions
were addressed to Congress asking for a discontinuance of the mail on the Christian Sabbath. The
277 
Re Zgios;   and tile S/(zl.
petitions were referred to a special committee, who
reported adversely to the prayer of the petitioners.   Congress, in adopting the report, declined,
in respect to the transportation of the mail, to
make any distinction between Sunday and the other
days of the week. The Christian Sabbath is not
an institution of the Government of the United
States and is nowhere invested with the sanction of
its authority.
In the constitutions of the several States the
Sabbath is wholly unmentioned, with the exception
of that of Vermont.  Part I., in article 3 of that
constitution, after providing for the protection of
the rights of a religious conscience, adds: "Never
theless, every sect or denomination of Christians
ought to observe the Sabbath or Lord's Day, and
keep up some sort of religious worship, which to
them shall seem most agreeable to the revealed will
of God." This language relates simply to Christian
sects, and, even in reference to them, it is merely
the statement of a moral obligation. No one, we
presume, would claim that the legislature of
Vermont could make it the basis of a statute requiring Christians religiously to observe the Lord's
Day. Such a construction would be inconsistent
with other parts of the same section. The constitutions of all the States leave the question of religious worship, as to time and mode, to be settled by
the individual conscience, subject only to the limitation imposed by the demands of public order.
278 
Sabbath Legisla/ion.
As an example of legislative action in regard
to the Sabbath, we refer the reader to Part I., chapter 20, title 8, and article 8 of the Revised Statutes
of the State of New York, in which he will find a
series of provisions forbidding the following things
to be done on "the first day of the week, called
Sunday:"   I. The serving of any "writ, process,
warrant, order, judgment, decree, or other proceeding of any court or officer of justice," with certain
exceptions specified.  2. A  variety of sports, as
"shooting, hunting, fishing, sporting, playing, horse
racing, gaming, frequenting of tippling houses, or
any unlawful exercises or pastimes," 3. All travelling " unless in cases of charity or necessity" or for
other excepted purposes named in the statute. 4.
All "servile laboring or working, excepting works
of necessity or charity, unless done by some person
who uniformly keeps the last day of the week, called
Saturday, as holy time, and does not labor or work
on that day, and whose labor shall not disturb other
persons in their observance of the first day of the
week as holy time." 5. Public traffic in "any wares,
merchandise, fruit, herbs, goods, or chattels," with
the exception of "meats, milk, and fish, which may
be sold at any time before nine of the clock in the
morning." 6. The sale of "ale, porter, strong or
spirituous liquors" by inn or tavern-keepers, "excepting to lodgers in such inns or taverns, or to
persons actually travelling on that day in cases
allowed by law." The title which contains these
279 
.Relifgioi aiid The Slale.
provisions relates to "the prevention and punishment of immorality and disorderly practices "; and
under it we. have a series of articles referring to
"jugglers and the exhibition of shows, etc," " disorderly practices on public occasions and holidays,"
"betting and gaming," "raffling and lotteries," "the
racing of animals," "profane cursing and swearing,"
"the disturbance of religious meetings," and "the
observance of Sunday."
Part III. in chapter 3, title I, and section 7 of
the same Statutes provides that "no court shall be
opened or transact any business on Sunday, unless
it be for the purpose of receiving a verdict or discharging a jury."
These provisions furnish an illustration of the
general scope and character of what are called "Sabbath laws." Such laws, as to their minor details,
differ somewhat in the different States; yet, like the
constitutions of the several States, they are in all
the States substantially identical in their fundamental principle. What is that principle? In order to
answer this question on the basis of judicial authority, we submit, as fQllows, a series of deliverances by State courts in cases referring to the Christian Sabbath:
In the case of Lindenmuller vs. The People (33
Barbour, p. 548), the Supreme Court of the State
of New York, in expounding the Act of April 1 7th,
I86o, forbidding theatrical and dramatic performances on the Christian Sabbath, after saying that,
280 
Sabbath Legislalion,
"as a civil and political institution, the establishment and regulation of a Sabbath is within the just
powers of the civil government," held the following
language:
"The act complained of here compels no religious observance, and offenses against it are punishable not assins against God, but as injurious to and
having a malignant influence on society. It rests
upon the same foundation as a multitude of other
laws upon our statute book-such as those against
gambling, lotteries, keeping disorderly houses, polygamy, horse-racing, profane cursing and swearing,
disturbance of religious meetings, selling of intoxicating liquors on election days within a given distance of the polls, etc."
In- the case of the State vs. Ambs (20 Missouri
Reports, p. 214) the Supreme Court of Missouri
said:
"The Sunday law was not intended to compel
people to go to church or to perform any religious
act;... but was designed to coerce a cessation from labor, that those who conscientiously
believed that the day was set apart for the worship
of God might not be disturbed in the performance
of their religious duties.... Because divines
may teach their Churches that the reverential observance of the Lord's Day is an act of religious
worship, it by no means follows that the prohibition
of worldly labor on that day was designed by
the gerneral assembly as an act of religion."
28i 
Religioi~ and the State.
The case of Specht vs. The Commonwealth (8
Pennsylvania Reports, p. 3 I 2) was that of a Seventhday Baptist who had violated the law of Pennsylvania by working on Sunday. In regard to the statute
the Supreme Court spoke as follows:
"All agree that to the well-being of society
periods of rest are absolutely necessary. To be
productive of the required advantage, these periods
must recur at stated intervals, so that the mass of
which the community is composed may enjoy a respite from labor at the same time. They may be
established by common consent, or, as is conceded,
the legislative power of the State may without impropriety interfere to fix the time of their stated
return and enforce obedience to the direction.
*. In a Christian community, where avery large
majority of the people celebrate the first day of the
week as their chosen period of rest from labor, it
is not surprising that that day should have received
the legislative sanction; and, as it is also devoted
to religious observances, we are prepared to estimate the reason why the statute should speak of it
as the Lord's Day and denominate the infraction
of its legalized rest a profanation. Yet this does
not change the character of the enactment. It is
still, essentially, but a civil regulation, for the government of man as a member of society."
In the case of The City Council of Charleston
vs. Benjamin (2 Strobh., p. 508) the defendant was
282 
Sa6bbazs Legislalioiz.
indicted for selling goods on Sunday, contrary to
the ordinance of the Council. The case coming
before the Court of Appeals of South Carolina, the
Court, holding the ordinance to be constitutional,
spoke as follows:
"If the legislature or the Citv of Charleston
were to declare that shops within that State or city
should be closed and that no one should sell any
goods, wares, or merchandise on the 4th of July or
8th of January in each year, would any one believe
such a law was unconstitutional? It would not be
pretended that religion had anything to do with that
day. What has religion to do with a similar regulation on Sunday? It is, in a political and social
point of view, a mere day of rest. Its observance
as such is a mere question of expediency."
The case of Frolickstein vs. The Mayor of
Mobile (40 Alabama Reports, p. 725) was that of a
Jew who was fined for selling goods on the Christian Sabbath. In regard to it the Supreme Court
of Alabama said:
"The legally-constrained abstinence from certain worldly employments on the first day of the
week cannot be justified on the ground that such
abstinence is enjoined by the Christian religion.
. The legislation on the subject of abstaining
from worldly employments on the first day of the
week must be referred to the police power of the
State. It has its sanction in the teaching of experience that the general welfare and good of society
283 
Re{(~ion and The Slale.
require a suspension of labor and business one day
in seven and that the day should be of uniform observance.  The exercise of the power to enforce
this theory of the public good would not infringe
the constitution, whether the day designated should
be the Christian or Jewish Sabbath."
In the case of Bloom vs. Richards (2 Ohio State
Reports, p. 387) the Supreme Court of Ohio said:   "Thus the statute upon which the defendant
relies, prohibiting labor on the Sabbath, could not
stand for a moment as the law of this State if its
sole foundation was the Christian duty of keeping
that day holy and its sole motive to enforce the observance of that duty... We  are, then to regard the statute under consideration as a mere
nuizicipal or police regulation, whose validity is
neither strengthened nor weakened by the fact that
the day of rest it enjoins is the Sabbath Day...
It was within the constitutional competency of the
general assembly to require the cessation of labor
and to name the day of rest. It did so by the act
referred to, and, in accordance with the feelings of
a majority of the people, the Christian Sabbath
was very properly selected. But, regarded merely
as an exertion of legislative authority, the act would
have had neither more nor less validity had any
other day been adopted."
So also, in the case of McGatrick vs Wason (4
Ohio State Reports, p. 566) the same Court held as
follows:
284 
Sabbath Legislalio2z.
"The act 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....
Thus the day of rest prescribed is the Christian
Sabbath. Yet so completely 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."
The general conclusion deducible from these
judicial authorities in reference to the construction
of Sabbath legislation as well as from the character
of the legislation itself, is that laws interdicting 1-abor upon "the first day of the week," and
prohibiting other things inconsistent with the quiet
and order of the day, have nothing to do with the
Christian Sabbath as a religious institution. They
neither prescribe nor enforce any religious observance. They could not do this without conflict with
those provisions found in all our State constitutions
which guarantee religious freedom and equality to
the people. They do not put the stamp of the
state upon the Sabbath as a divine institution, or
upon that religious system which, by its moral
force, creates and perpetuates the Sabbath and of
which it is so  important an instrument.   The
Christian Sabbath is much older than the legislation that relates to it. Our forefathers brought it
285 
'ReSigioi~ and tze Slale.
with them when they came to this country, and by
common consent established it as a religious institution. They observed it.as such, and taught their
children to imitate their example. "The first day
of the week," hence, came to be regarded as a
sacred day, being set apart to special religious
services, and to this end involving cessation from
ordinary labor. If the country had been settled by
Jews or was now mainly populated by Jews, Saturday, and not Sunday, would be the day marked by
these characteristics. T'he great numerical preponderance of Christians in this country fixes the
day in the usage of the people, and constitutes the
reason why Sunday, rather than any other day, is
the day of established usage.
Sabbath legislation finds the usage in existence,
made up of the two elements of rest and religious
observances. Passing by the latter element altogether. in the sense 6f leaving it to be regulated
by the individual conscience, it places the seal of
its authority upon the rest element-not for religious reasons, not to favor any system of religion in
distinction from some other system, but for the
twofold purpose of securing a regularly recurring
period of rest and protecting those who religiously
observe the day from the annoyance and disturbance which might otherwise exist. This is the
whole theory of Sabbath legislation in this country,
as expounded by courts and as it appears in the
statutes themselves. The commands of the law on
the subject are negative, and not positive; prohi
286 
Sabba/hi Leo-islation.
bitions of certain things, and not requirements of
things to be done. One might keep the Sabbath
very perfectly in the legal sense, and yet be a gross
Sabbath-breaker in the religious sense. The law
seeks to secure the former and does not seek to
prevent the latter. It holds that a Sabbath of rest
and general quietude is, on the ground of public
policy, a good municipal regulation. This is just
what and all that it attempts to effect.
There can be no greater mistake in logic than
that which reasons from the rest element of the
legalized Sabbath to the religious element, over
which law exercises no jurisdiction and in respect
to which determines no questions. The two elements in legal contemplation are entirely distinct
and have no relation to each other except that of
coincidence as to the day.  With the creed of the
Christian as to the religious observance of the Sabbath the law has nothing to do, any more than it
would have if the period of rest were fixed on some
other day of the week.
Hence, if the Seventh-day Baptist or the Jew
complains of the law, because he keeps Saturday
as holy time and wishes to work on Sunday, the
answer is that the law cannot reasonably appoint
two days of rest in one week, and that it has selected and should select the day which corresponds
with the prevalent usage of the people. Let the
mass of the people become Seventh-.day Baptists
or Jews, and then it would be very proper for the
law to change its day of rest from Sunday to Satur
287 
Religion and Ihe S/ate.
day; and such would undoubtedly be the iresult. It
cannot wisely appoint two rest days in each week,
and it certainly cannot change the day to meet the
case of that small minority of the people who keep
a different day.
The Revised Statutes of New York State, however, provide that those who keep "the last day of
the week, called Saturday, as holy time, and do not
labor or work upon that day," shall be exempted
from the statute against labor on the first day of
the week, with the single qualification that their
labor shall not "disturb other persons in their observance of the first day of the week as holy time."
The law of the same State still further provides that
those who keep Saturday "as the Sabbath of rest
from labor" shall not on that day "be subject to
perform military duty or jury duty in a justice's
court," or on that day have any process from such
a court in a civil suit served upon them or made
returnable thereon. This would seem to be about
as far as the law can reasonably go in accommodating its general regulations to the peculiar circumstances of Jews or other persons who observe the
seventh day of the week as holy time. Such provisions show very clearly that it is not the religious
element of the Sabbath which the law undertakes
to decide or control, whether in respect to the
Christian or the Jew.
No inference, surely, can be drawn from Sabbath
legislation in respect to the question of Bible-reading or other religious exercises in our public schools.
288 
Sabbath Legislation.
If the legislation established the Sabbath as a sacred day and enforced its religious observance, and
especially if it made that observance Christian in
its form, then it might with some plausibility be
said that a State doing thus much could with equal
propriety engage in the work of religious propagandism in the public school.   Both  might be
wrong; yet one would be a precedent for the other.
Such, however, is not the state of the facts. There
is no religious element in the Sabbath legislation
of this country and no attempt to put any such
element there, as there could not be without contradicting the theory of our political system.
Those who appeal to this legislation as an argument to support the doctrine of religious instruction
and worship in the public schools, either do not
understand the character of the legislation as expounded by the courts, or are lacking in logical
candor. They might just as well appeal to police
regulations or those that relate to banking institutions as the means of sustaining their conclusion.
The fatal objection to their reasoning is that there
is no connection between the conclusion and the
premise.
I9
289 
Religion and Zhe Stale.
XXV.
THE CIVIL OATH.
Bouvier, in his "Law Dictionary," defines an
oath to be "an outward pledge given by the person
taking it that his attestation or promise is made under an immediate sense of his responsibility to God."
He quotes Starkie as declaring it to be "a solemn
invocation of the vengeance of the Deity upon the
witness if he do not declare the whole truth, so far
as he knows it."   Dr. Webster says that it is "a
solemn affirmation or declaration, made with an appeal to God for the truth of what is affirmed," and
then adds that "the appeal to God in an oath implies that the person imprecates his vengeance and
renounces his favor if the declaration is false; or,
if the declaration is a promise, the person invokes
the vengeance of God if he should fail to keep it."
John Milton, in his " Christian Doctrine," says:
"An oath is that whereby we call God to witness
the truth of what we say, with a curse upon ourselves, implied or expressed, should it prove false."
These definitions refer not to extra-legal or extrajudicial attestations, which involve no relation to
290 
T[ze Czvil Oathi.
law, but rather to the oath when administered by
some person legally authorized, and in proceedings
provided for by law. The latter only is the civil
oath.
The fact that the National Government and all
the State governments of this country make use of
this oath, and that they employ the Bible, either the
whole or a part of it, in administering an oath, is
sometimes referred to as showing that the Christian
religion, in at least a qualified sense, is a constituent element of our political system.   Those who
wish to incorporate Christianity into our public
schools find, or rather think they find a precedent
in the civil oath for their demand. If we have the
oath, then why not also have the Bible and religious
services in our public schools?   The purpose of
this article is to inquire whether the use of the
oath authorizes the inference sought to be drawn
from it. And, in order to determine this point, we
need to know what are the provisions of our constitutions and laws in respect to the civil oath.  Let
this, then, be our first inquiry.
The Constitution of the United States provides
that the President, before entering upon the duties
of his office, shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will
faithfully execute the office of President of the
United States, and will, to the best of my ability,
preserve, protect and defend the Constitution of the
United States." It also provides that Senators
29! 
Religion ancd the State.
and Representatives in Congress, the members of
the several State legislatures, and all the executive
and judicial officers of the United States, and of
the several States, shall be bound by oath or affirmation to support the Constitution. Congress has
enacted a series of laws respecting the oath, and the
occasions of its administration, the persons by
whom it shall be administered, and the penal sanctions by which it shall be enforced.   This whole
system of legislation provides for the alternative
stated in the Constitution. The party may, at his
own option, be sworn, or merely affirm, as its legal
equivalent.   The Revised Statutes of the United
States (Section I.) declare that the "requirement of
an oath shall be deemed complied with by making
'affirmation in due judicial form."   Simple affirmation may, therefore, in every case be substituted
for the oath.
Some of the State constitutions contain provisions relating to this subject. Thus the constitution cf Arkansas (I., 2I) declares that "the mode
of administering an oath or affirmation shall be
such as shall be most consistent with and binding
upon the conscience of the person to whom such
an oath or affirmation may be administered." The
constitution of Indiana (I., 8) and that of Oregon
(I., 7) contain a similar provision. The constitution of
Missouri (II., I2) provides that "if any person shall
declare that he has conscientious scruples against
taking an oath or swearing in any form, the said
292 
The Civil Oa.th.
oath may be changed into a solemn affirmation and
be made by him in that form." The constitutions
of Illinois (II., 3), of Nebraska (I., I6), and of Ohio
(I., 7) provide that the liberty of conscience which
they secure "shall not be construed to dispense
with oaths or affirmations." Such provisions, upon
their face, leave it optional with the individual whether he shall be sworn or merely affirm; and either
mode of attestation is the equivalent of the other.
So, also, as to the competency of persons to be
sworn or to affirm as witnesses, the constitutions of
Arkansas (I., 2I), of California (I., 4), of Florida
(Declaration of Rights, 5), of Indiana (I., 7), of Iowa
(I., 4), of Kansas (Bill of Rights, 7), of Michigan
(VI., 34), of Minnesota (I., 17), of Nebraska (I., I6),
of Nevada (I., 4), of New York (I., 3), of Ohio (I., 7),
of Oregon (I., 6), and of Wisconsin (I., i9) expressly
declare that no person shall, in consequence of his
opinions on matters of religion, be disqualified as a
witness in any court of law or equity. These constitutions formally exclude any religious test in
application to witnesses, whether they are to be
sworn or simply affirm. Their religious opinions
have nothing to do with their legal competency to
testify in a court of justice.
Turning then, to the question of State legislation, we refer to the Revised Statutes of New York
State (Part III., chapter 7, title 3, and article 9), as
an example of such legislation. We quote the following sections:
293 
Rel'eliion and the State.
"Section 82. The usual mode of administering
oaths now practised by the person who swears,
laying his hand upon and kissing the Gospels, shall
be observed in all cases in which an oath may be
administered according to law, except in the cases
hereinafter otherwise provided."
"Section 83. Every person who shall desire it
shall be permitted to swear in the following form:
' You do swear in the presence of the Ever-Living
God.' And while so swearing, such person may or
may not hold up his right hand, in his discretion."
"Section 84.  Every person who shall declare
that he has conscientious scruples against taking
any oath or swearing in any form shall be permitted to make his solemn declaration or affirmation
-in the following form:' You do solemnly, sincerely,
and truly declare and affirm.'"
"Section 86.  Every person believing in any
other than the Christian religion shall be sworn
according to the peculiar ceremonies of his religion,
if there be any such ceremonies, instead of any of
the modes herein before prescribed."
These references are sufficient to give us, at
least, a general idea of the oath as an institution of
law. In regard to them we submit the following
observations
I. The civil oath is not absolutely required in
any case, and is, hence, not made compulsory in
respect to anybody. Though commonly used, because not commonly objected to, it may, never
294 
The Civ?l Oath.
theless, be dispensed with, and a simple affirmation,
at the option of the individual, may be substituted
as its equivalent. The law assumes its right to
compel witnesses to testify, and to punish them if
they give false testimony; but it does not force
them to be sworn against their conscientious scruples or undertake to judge of the character of those
scruples. It is well known that Quakers have such
scruples; and, hence, they are permitted to affirm,
and their evidence is accepted as if it had been given
under oath. And as the law deals with the Quaker,
so it will with any citizen, if he desires it. Whether
he shall be sworn or not is a matter for himn to determine.
2. The civil affirmation is distinguished from
an oath- in containing no formal appeal to God and
no imprecation of his curse in the event of falsehood. The affirmant solemnly, sincerely, and truly
declares and affirms that he will speak the truth.
He enters into such a covenant with society; but
in doing so he makes no disclosure of his religious
faith or the want of such faith. His affirmation
may to him, in the forum of conscience, have all the
binding power of an oath, yet it is not such in form.
What it is in form is a pledge of his moral nature
to be truthful in respect to what he is about to say
A Deist or even an Atheist may make such a pledge
as really as a Christian.
3. The constitutions of the States above referred to, distinctly declare that the opinions of a wit
295 
Re2i9g-iion aicd the Slale.
ness on matters of religion shall not affect his
qualification to be sworn or to affirm, and thereafter
to testify in any court of law or equity. The constitution of Oregon, for example, says that "no
person shall be rendered incompetent as a witness
or juror in consequence of his opinions on matters
of religion, nor be questioned in any court of justice
touching his religious belief to affect the weight of
his testimony." So, also, that of New York says
that "no person shall be rendered incompetent to
be a witness on account of his opinions on matters
of religious belief." An Atheist could not take an
oath with any sincerity, and a Hindu could not
take a Christian oath; yet either of them could in
either of these States affirm and give legal evidence,
and neither could be excluded from testifying on
the ground of his opinions in respect to religion.
The same remark applies to most of the States in
the Union.
4. Those persons who do not believe in the
Christian religion, but do believe in some other
religion, may be sworn, if sworn at all, according to
their particular faith.   The law does not compel
them to take any oath; and, if they do take one, it
does not compel them to take a Christian oath.
The form or kind of oath which corresponds with
their religious faith is the one which  the law will
employ.   Thus, as Bouvier  remarks, "a Jew is
sworn on the Pentateuch, or Old Testament, with
his head covered; a Mohammedan, on the Koran;
296 
The Civil Oath.
a Gentoo, by touching with his hand the foot of a
Brahmin or priest of his religion; a Brahmin, by
touching the hand of another such priest; a Chinaman, by breaking a china saucer." The Bible, even
when an oath is administered, is not an indispensable instrument of the administration, and the faith
which it teaches is not an indispensable condition.
In the case of The People vs. Cook (8 New York
Reports, 4 Seld. p. 67), the Court of Appeals of the
State of New York held that an oath irregularly
administered by mistake, as by swearing one upon
"Watts's Psalms and Hymns," instead of the Gospels, if not objected to at the time by the party
taking it, is to be deemed a valid oath, rendering
him liable for perjury if testifying falsely. He is
presumed "to have assented to the particular form
adopted," whatever it may be.
5. The fact that neither the oath itself nor the
Christian form of taking it is made an absolute legal
requirement conclusively shows that the State, in
using the Christian oath, establishes no connection
between itself and the religious system incidentally
implied in the use.  The whole purpose of the State
is to increase the certainty that the person speaking will tell the truth.  It uses his faith for civic
ends, without passing any judgment upon it, and
certainly without proposing first to give him a faith
and then to swear him by it.  The oath, in the very
nature of things, if used at all, must accommodate
itself to the faith of the person sworn, since here
297 
.Religion and the Stale.
lies all its power.   The State, when it swears  a
Mohammedan upon the Koran, does not thereby
affirm  or legally adopt the Koran.    So, when it
swears a Jew in accordance with his own faith, it
does not adopt that faith. So, also, when it swears
a Christian upon the "Gospels," it does not say that
these " Gospels" are true. Its actwhile not touching the question that relates to the truth of any religious s3stem, refers exclusively to the assumed
faith of the party sworn. The State does not
coerce that faith or coerce the taking of an oath on
its basis, and it does consent, at the option of the
person to be affected, to accept a simple affirmation
as a substitute for an oath; and, even when the oath
is administered, it adapts the form to the faith of the
party taking it. These legal facts clearly prove
that the civil oath is not a State confession of faith
or a State incorporation of religion, whether Christian or otherwise, into its own organic structure.
When, therefore, the advocate of Bible reading
and religious exercises in the public schools appeals
to the civil oath as a precedent for what he demands
he certainly deceives himself with a totally fallacious
argument. He asks that Christianity, by the
authority of the State and at the public expense,
shall be included in the educational system of the
public school.   If a Protestant, then he  means
Protestant Christianity; and if a Catholic, then he
means Roman Catholicism.   In short, he means
the religion in which he believes. He means his
298 
]'fe Civil Oath.
religion, and he means that the State shall tax the
people to propagate it. This is the substance of
his demand.
One of the arguments used to sustain the demand
is the civil oath. The State administers such an
oath, and, hence, in the public school it may properly become a propagandist of Christianity. There
would be no force in this reasoning even if the State
confined the oath to the Christian form, since the
two cases would not be parallel.  When, however,
we  remember  that the State not only does not
require the oath at all, but also does not limit it to
the Christian form when it is administered, then the
logic appears so contemptible that it is really an
abuse of the word to call it logic.  Christianity in
the public school is aspecific thing, a definite system
of religious faith, introduced by State authority
and there maintained at the general expense,
and, hence, a legally preferred religion. The civil
oath is Christian, or Jewish, or Mohammedan,
or Mormon, or even Pagan, according to the faith
of the party who is to take it; and, moreover, the
law, by accepting an affirmation as its substitute,
does not absolutely require the oath in any form.
He who can see any analogy between these two
cases, especially such as makes the latter an argumentative precedent for the former, is certainly an
adept in detecting analogies.  One of the inciden.
tal charms of the argument, seemingly not discovered by him, we have in the fact that it is just as
299 
Religion and lthe State.
good to prove that Mormonism or Mohammedanism
should be taught in the public school. The State
will swear a Mormon according to the faith of a
Mormon. Why not, then, teach Mormonism in the
public school? So, also, it will swear a Mohammedan according to the faith of a Mohammedan.
Why not, then, teach Mohammedanism in the public school, and tax Christians to pay the expenses
thereof?   If the civil oath, administered in the
t
Christian form, is good to prove what a certain
class of Christians claim in respect to the public
school, then, when administered in other allowable
forms, it is just as good to prove very different
conclusions. Being so exceedingly flexible, it is a
very dangerous premise from which to reason.
As to the question whether the civil oath is morally lawful, and, if so, then whether it is expedient,
we intentionally omit to express any opinion, since
the answer has nothing to do with the matter under
consideration. We accept it as an institution of our
legal system. What we do not accept is the proposition that the oath involves a virtual commitment of the State to Christianity as a system of
religious belief. The utmost that the State does is
to, use the religious faith of the person sworn,
whether true or false, as the means of securing a
purely temporal end; and, that it may perpetrate
no injustice upon the citizen, it consents that he
may, at his own option, decline even this use, and
simply pledge himself by a solemn declaration of
3o0 
Nativbual and State Chaplains.
truthfulness, whether testifying as a witness or
being inducted into public office. This is the whole
case, and there surely is nothing in it even to suggest any legal connection between the State and
Christianity.
XXVI.
NATIONAL AND STATE CHAPLAINS.
National chaplains are of three classes-namely,
congressional, army, and navy chaplains. Of the first
class there are two chaplains, one for each house of
Congress, whose duty is simply that of opening its
sessions with prayer. These chaplains are placed
among " the officers and persons in the employ of the
Senate and House of Representatives," and each
receives a salary of nine hundred dollars a year.
(Revised Statutes of the United States, sections 52,
53.)   Their appointment is simply a matter of
usage with each house of Congress, and all that law
does is to provide a compensation for their services.
The selection is not, except by usage, limited to
Christian ecclesiastics, or even to ecclesiastics at
all. There is nothing to preclude the suspension of
the usage altogether.   No such custom is adopted
by the Federal courts. The practice pays a tribute
of honor to the prevalent religion of the country;
but it does not establish that religion, or invest it
with any legal attributes.  If such were the effect,
30i 
Religioit and the Stale.
it would be unconstitutional.   The cost is but trifling, and hence, no question has been raised as to
the power of Congress to appropriate money for
such a purpose, as would doubtless have been the
fact if the service involved any considerable expense. There is no reason, except that of usage,
why a legislative body should have a chaplain, any
more than a court of justice or a board of aldermen.
The President of the United States is authorized, with the advice and consent of the Senate, to
appoint thirty post chaplains, four regimental chaplains, and "a chaplain for each regiment of colored
troops," as a part of the regular Army of the United
States, having the rank of a captain of infantry
without command, and as to tenure of office, retirement, and pensions, standing "on the same footing
with other officers of the army" and each receiving
a salary of fifteen hundred dollars a year.   The
law provides that no person shall be appointed to
this service "until he shall furnish proof that he is
a regularly-ordained minister of some religious denomination, in good standing at the time of his
appointment, together with a recommendation for
such appointment from some authorized ecclesiastical body, or from not less than five accredited
ministers of said denomination." The duties of
post chaplains and chaplains of colored regiments
"include the instruction of the enlisted men in the
common English branches of education." All regimental and post chaplains are also required, "when it
302 
JValiozal and State Chaplains.    303
may be practicable,to hold appropriate religious services for the benefit of the commands, at least once
on each Sunday, and to perform appropriate religious burial services at the burial of officers and soldiers who mray die in such commands."  Proper
facilities for the performance of these duties must
be furnished by the commanders of regiments, hospitals and posts, and monthly reports must be
made by the chaplains to the adjutant-general of
the army. (Revised Statutes of the United States,
sections I094, I I2II I27 and 126I.)
The same Statutes authorize the appointment
of navy chaplains "for the public armed vessels of
the United States in actual service, not exceeding
twenty4-tour" in number, and "not less than twentyone nor more than thirty-five years of age at the
time of their appointment." Their rank is defined
and their annual compensation fixed according
as they are at sea, or on shore, or on leave, or
waiting orders. They are to make an annual report
to the Secretary of the Navy in regard to
"the official services performed by them." These
services aie referred to in the provision that "every
chaplain shall be permitted to conduct public worship according to the manner and forms of the
Church of which he may be a member." (Sections
1395-1398 and 1556.)
Such is the law of the United States in regard
to army and navy chaplains. The power of Con.
gress to make these provisiens is derived f-rom its 
.Religion and the State.
power "to raise and support armies" and "to pro
vide  and maintain a navy."   The law certainly
does not establish Christianity or place upon it the
seal of governmental authority. Such a construction would make it inconsistent with the express
prohibition which declares that "Congress shall
make no law respecting an establishment of religion."
It is true that the army chaplain must be "a
regularly-ordained minister of some religious denomination"; but this denomination is not necessarily Christian. There is no reason in the law
why a Jewish Rabbi might not be appointed; and
this would be eminently proper if the soldiers of a
regiment or at a post were Jews.   Nor is there
any requirement that the navy chaplain should be
an ecclesiastic at all; and whether, such or not,
he is at liberty to conduct public worship "according to the manner and forms of the Church of which
he may be a member." The religious services to be
held by the army chaplain are described as "appropriate; " and the day specially named therefor is
Sunday, not because Congress designed to establish
Sunday as a sacred day but because, in the practice
of the American people, it is the usual day of rest,
and in that of Christians the usual day for religious
services.
The obvious purpose of the entire arrangement
is to promote the good of the army and navy of
the United S'ates and supply certain religious fa
304 
Nalional anizd State Cla2plains.   305
cilities to those who are in the employment of the
Government, and who by the nature and circumstances of their service would otherwise be wholly
deprived of them. There is no need of such provisions for those who are engaged in the civil service of the country; and, hence, none are made.
The law does not establish a religion, even for the
army and navy, or compel its acceptance, or require any one to attend its services; and, moreover,
it carefully avoids any designation of these services as
distinctively Christian. If the chaplains are usually
Christian ministers, this may be sufficiently explained by the fact that Christianity is the prevalent type of
religion among the American people. Let any other
type be equally prevalent, and the Government
would- naturally recognize the fact in its chaplain
appointments, as it could without any essential
change in the law. Those who infer a quasi-connection between Church and State, as arising from
these chaplaincies of the United States, extend
their inference far beyond the premises and entirely
beyond the intention of the law. No court of justice would entertain the inference for a moment.
Turning, then, to the question of State chaplaincies, we select those of the State of New York as
an example. In respect to chaplains to open the
sessions of the legislature with prayer the law is
wholly silent.  As a matter of history, this service
was omitted altogether for several years prior to
I838; and at that time the clergy of Albany made
20 
Religion and lihe Stale.
an arrangement to render it without compensation,
which, we believe, has continued to be the practice
ever since. The practice implies the existence of
the religious system represented by these clergymen; but it does not bestow upon it any  legal
character, and would not, even if the clergymen
were formally appointed by each house of the legislature. The constitutions of Michigan (IV., 24) and
of Oregon (1., 5), while not forbidding the appointment of such chaplains, expressly provide that "no
money shall be appropriated for the payment of any
religious services in either house" of their respective legislatures.
The act of April 23d, I862, passed by the legislature of New York, entitled "An act to provide
for the enrollment of the militia," etc., declares
(section io6) that "to each regiment or battalion
there shall be appointed one chaplain, who shall be
a regular ordained minister of a Christian denomination." Here a Christian minister, in the character of a chaplain, is included in the organization of
the staff department; and this is all that the act
says about him.
The Revised Statutes of New York (Part IV.,
chapter 3, title 2, article I, and sections 40, 6o)
provide for the appointment of a chaplain for each
of the State prisons of the State and assign to him
the following duties: I. "To perform religious services in the prison, under such regulations as the
inspectors may prescribe, and to attend to the
3o6 
Nvalional and State Chaplains.
spiritual wants of the convicts." 2. "To  visit the
convicts in their cells, for the purpose of giving
them religious and moral instruction, and to devote
at least one hour in each week-day and the afternoon of each Sunday to such instruction." 3. "To
furnish, at the expense of the State, a Bible and
hymn-book to each convict." 4. "To take charge
of the library, and to take care that no improper
books are introduced into the cells of the convicts;
and, if any such books shall be found in the cells
or in possession of any convict, to take them away,
and return the same to the agent; and, for the
purpose of properly discharging these duties, to
visit weekly each cell in the prison." 5. "To visit
daily the sick in the hospital." 6. "To make an
annual report to the inspectors, up to the first of
December, relative to the religious and moral conduct of the prisoners during the year."
The same Statutes (Part IV., chapter 3, title I,
article I, and section 13) contain the following provision in respect to county prisons: "It shall be
the duty of the keeper of each county prison to provide a Bible for each room in the prison, to be kept
therein; a,d he shall, if practicable, cause divine
service to be performed for the benefit of the prisoners at least once each Sunday, provided there
shall be a room in the prison that can be safely
used for that purpose."
Taking, then, the State of New York as an example of legislation on the subject of chaplaincies,
3o7 
Relizgion and the Slale.
we have a statute providing that a chaplain shall be
attached to the staff department of each militia
regiment, and that he "shall be a regular ordained
minister of a Christian denomination." This undoubtedly implies the existence of such denominations in the State, having a recognized ministry,
from which militia chaplains are to be selected;
but it does not, in the remotest sense, incorporate
Christianity into the law of the State. This religion
being the prevalent religion of the people, and the
militia being a part of the people, militia chaplains,
if provided for at all, would naturally be selected
from the recognized ministers of that religion. The
selection incidentally recognizes this religion; but
it does not legalize it or invest a solitary one of its
precepts or doctrines with any civil authority.
The chaplaincies authorized in State prisons
have no relation to the people at large; but are
provided for criminials-a comparatively small class
of persons who, being deprived of their liberty,
cannot furnish themselves with the facilities thus
afforded. They relate exclusively to prison discipline and introduce religion as one of the elements
of moral influence. And because Christianity is
the religion generally accepted by the people of
the State it is naturally the system employed for
this purpose, just as Judaism or Mohammedanism
would be employed for the same purpose if either
had a like prevalence. Convicts should not by any
penal discipline be forced to accept these religious
308 
JVatlional and State Chaplains.
facilities. It is enough to supply them. In supplying them the State, while showing a merciful
regard to the isolated and dependent condition of
those whom it is compelled to punish, treats them
as an exceptional class to all the rest of the community. It gives them a Bible and a hymn-book,
which they may use or not as they please; and
also provides for them, in the person of the chaplain, the ministrations of that religion which is the
popular religion of the State.
Whether the arrangement adopted is the best
possible in the circumstances, and whether it would
not be better to leave the religious instruction of
prisoners exclusively to the voluntary efforts of
those who might choose to engage in it, subject to
such Tules as are necessary to maintain the order
and efficiency of prison discipline-these are questions with which this discussion is not concerned.
We are not inquiring as to the best mode of doing
the work; but simply considering the mode adopted
by the State, and that, too, with reference to the
point whether the mode makes Christianity a legalized system under the sanction of the State. The
mode certainly does not operate beyond the limits
of prison discipline; and this happens to apply to a
mere fragment of society. The general policy of
the State in regard to religion is not changed by its
special provision for this exceptional class. The
provision itself is exceptional to this policy; and
its only justification must be found in the particular
3o9 
Reli,ozion and Ale Stafe.
condition of the parties for whom it is intended.
That condition does not consist in their poverty,
their ignorance, or their depravity; but in the fact
that the State has taken the absolute control of
their personal liberty and shut them out from all
contact with human society, except such as it chooses to grant. They are absolutely helpless in its
hands and can make no provision for themselves.
For this reason the State supplies them with food
and clothing, to meet their animal wants; and for
the same reason it offers to them religious services
in the chaplain system.
It may be said that these services are provided
at the public expense, and that at last they are made
a charge upon the people, through taxation. This
is true, and so far as it is true it is the compulsory
support of religious instruction; and this, beyond
all question, is contrary to one of the standard
principles of our political system. The action of
the State being thus clearly exceptional to this
principle, the only possible solution of the problem
is wholly to abandon the chaplain policy in respect
to convicts, for the sake of the principle, or to
regard the peculiarities of the case as justifying the
non-application of the principle. One or the other
of these positions must be taken; and the latter is
the theory practically adopted by most, if not all, of
the States in the Union.
The constitution of Michigan (IV., 24) provides
that "the legislature may authorize the employment
3Io 
Nalioilzal and Stale Cala ins.
of a chaplain for the State prison; " and then immediately adds that "no money shall be appropriated
for the payment of any religious services in either
house of the legislature." Here we have a prohibition and a permission in direct juxtaposition and
seeming contrast-the one asserting in a specific
application the American principle that the public
money shall not be used to defray the expenses of
religious services, and the other providing for an
exception to this principle in the case of prison convicts. The reason for the exception must be sought
in the particular condition of those in whose
behalf it is made; and in this view of the case the
exception proves the rule. The State virtually
affirms the rule in limiting the exception to a single
and small class of persons. The limitation is an
indirect mode of such affirmation.
The constitution of the same State (IV., 40) says
that "no money shall be appropriated or drawn from
the treasury for the benefit of any religious sect or
society, theological or religious seminary, nor shall
property belonging to the State be appropriated for
any such purposes; " and yet,. to qualify the application of the principle here asserted, it also says that
"the legislature may authorize the employment of a
chaplain for the State prison"-clearly implying
that this is regarded as an exception to its general
theory in regard to religion.   Whether such an exception should be made or not is not the matter of
the present inquiry.
31 I 
Relizgion and the Slate.
The result reached from this survey of chaplaincies, whether national or State, is that they involve
no legalization of Christianity and no purpose on
the part of the civil authority to patronize the system or make it a preferred religion.   They cannot,
therefore, be justly cited as a precedent to sustain
the theory of those who demand that the State
shall become a religious propagandist in its public
school system. There is no analogy between the
facts that respectively mark the two cases.
The chaplain service, so far as it involves religious ministrations at the public expense, is limited
to a very small class of persons, whose condition is
no example of the general condition of the community; and it is on this ground solely that the
service is admissible at all. The public school, on
the other hand, is intended for all the families of
the State, the rich and the poor alike. It is the
school of the wkole people, supported by all who
pay taxes and extending its educational advantages
to all. There is nothing in it, nothing in its purposes, and nothing in the condition of those whom
it seeks to educate that constitutes a reason why
the State should change or omit to apply its general policy in regard to religion. The State does
not take charge of the government or support of
children. It does not become a parent or assume the
religious obligations of the parental office.   The
children are left under the custody and control of
family government.
3 I 2 
CrimizalBlasphemy and Profanilty. 313
The manifest absence of any parallelism between
the public school and the public prison, or between
such a school and the army and the navy, shows at
a glance that we cannot properly reason from the
one to the other. Hence, chaplaincies in respect
to prisons and in respect to the army and navy,
defensible under our theory of the functions of government only on exceptional grounds and confined
to the merest fraction of society, furnish no precedent for the public school, since in respect to it these
grounds have no existence. If the two cases were
parallel in their facts, then the exception which the
State makes to the application of its general theory
in the one case might be cited to sustain a similar
exception in the other. No principle of common
sense is better settled among lawyers and judges
than that the citation of precedents not analogous
to the case in hand proves nothing; and this is precisely the difficulty with this chaplaincy argument
as applied to the public school.
XXVII.
CRIMINAL BLASPHEMY AND PROFANITY.
-  The fact that blasphemy and profanity are in this
country treated as penal offeases, is sometimes referred to as indicating that the law, in this instance, 
3Religion and the State.
allies itself with religion, and enforces the injunctions thereof by its own sanctions. These offenses
are forbidden by the Bible; and, moreover, they
seem, in distinction from murder and theft, to be
specially committed against religion.   It does not,
however, necessarily follow that they are punished
as religious offenses. Though they are such, it
may, nevertheless, be true that the view which the
law takes of them is simply that of crimes against
society, and that in this character, and this only, are
they punished. This being true, then the punishment involves no legal alliance of the State with
religion, and no purpose on religious grounds to give
effect to its rules. Is this true? The object of the
present article is to supply an answer to this question.
Dr. Theophilus Parsons, in his treatise on the
"Rights of a Citizen of the United States," gives a
"Glossary of Law Terms in common use," in which
he defines blasphemy to be "in law any false statement or language intended as a reviling of God" (p.
68I). Bouvier, in his "Law Dictionary," says that it
is" a false reflection uttered with a malicious design
of reviling God." He quotes Chief-Justice Shaw as
declaring that "it embraces the idea of detraction
when used toward the Supreme Being, as calumny
usually carries the same idea when applied to an
individual."
In Abbott's New York Digest, New Edition (vol.
2, p. 6II), blasphemy is defined as consisting "in
maliciously reviling God or religion," and reference
314 
CriminalBlasphemy andProfanity. 315
is made to the case of The People vs. Ruggles 8)
Johnson's Reports, p. 290), in which Chief-Justice
Kent thus defined the term, and held the offense to
be indictable and punishable under common law.
The same Digest (Vol. I, p.549) says:" Blasphemy
against God, and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures, are
offenses at common law, whether uttered by words
or writings." The wanton utterance of words in
which Christ was declared to be a bastard, "with a
wicked and malicious disposition, and not in a serious
discussion on any controverted point," is referred to
as being "a public offense by the law of the land."
The Supreme Court of Pennsylvania, in the case
of Updegraph vs. The Commonwealth (I I Sergeant
& Rawle's Reports, page 394), said that blasphemy
is the "open, public vilification of the religion of
the country." The Court declared it to be punishable on the ground of its being "injurious to and
having a malignant influence on society." It added
that the "malicious reviler" is the only person that
can be punished under the charge of blasphemy.
A very lucid statement in regard to blasphemy,
especially as to the grounds of its punishment, was
made by Justice Clayton, of the Supreme Court of
Delaware, in the case of The State vs. Chandler
(2 Harrington's Reports, p. 353).  The  learned
Justice said that the common law "sustained indictments for wantonly and maliciously blaspheming
God or the  Founder  of the Christian religion, 
Rezigion anId the State.
because such blasphemy tended to subvert the peace
and good order which it was bound to protect. But
it sustained no indictment for a mere sin against
God where these objects of its care were not affected." He added that the common law punished
blasphemy only "when it tended to create a riot,
or break the peace, or subvert the very foundation
on which civil society rested." He further said that
the common law " took cognizance of offenses
against God only where, by their inevitable effects,
they became offenses against man and his temporal
security."
Justice Strong, of the Supreme Court of the
United States, in his lectures on the "Relations of
Civil Law to Church Polity, Discipline and Property" (pp. 30, 3 I), observes:    "No State recognition of the Church, however,
or even of religious obligation, is to be inferred
from the fact that civil law punishes many offenses
which are condemned by the divine law, and which
the Church also condemns and punishes. Many
offenses against civil society are acts prohibited by
the Decalogue and by.all Churches. False swear ing, theft, adultery and murder are violations of
municipal law, and persons guilty of them are pun ished by the authority of the State, not because the
offenses are violations of the divine law, or the law
of the Church, but because they are infractions of
the rules which civil society has found it necessary
to establish for its own protection. In many of
3i6 
Crimzinal Blasfihemy and Profanity.  317
the States orderly observance of the Sabbath and
abstinence from unnecessary labor are enjoined by
statutes.   Penalties are also denounced against
profaneness and blasphemy. But it would be a
mistake to regard such enactments as Church recognitions. They may have been suggested by
respect for religion; but, as civil enactments, they
are justifiable only by their tendency to protect the
public peace, and preserve public decency, good
order, and good morals,-objects for which civil
society exists."
Judge Cooley, in his "Constitutional Limitations" (p. 47 I), observes:
"Some acts, would be offensive to public sentiment in a Christian community, and would tend to
public disorder, which, in a Mohammedan or Pagan
country, might be passed without notice, or be
regarded as meritorious. The criminal laws of
every country have reference in a great degree to
the prevailing public sentiment, and punish those
acts as crimes which disturb the peace and order
or tend to shock the moral sense of the community.
The moral sense is measurably 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 offenses, 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 corrupt the community." 
Religion and /the State.
The Judge subsequently adds (pp. 474, 475):   "But it does not follow, because blasphemy is
punishable as a crime, that therefore one is not at
liberty to dispute and argue against the truth of
the Christian religion, or of any accepted dogma.
* * * Blasphemy implies something more than
a denial of the truth of religion, even of the highest and most vital. A bad motive must exist:
there must be a wilful and malicious attempt to
lessen men's reverence for the Deity or for the
accepted religion. But outside of such wilful and
malicious attempt, there is a broad field for candid
investigation and discussion, which is as much open
to the Jew or the Mohammedan as to the professors
of the Christian faith.   *   *   *   *   It is to be
collected from the offensive levity, scurrilous and
opprobrious language, and other circumstances,
whether the act of the party was malicious. * *
* * The courts have always been careful, in administering the law, to say that they did not include in
blasphemy disputes between learned men upon particular controverted  points.   The  constitutional
provisions for the protection of religious liberty not
only include within their protecting power all sentiments and profess'Ions concerning and upon subjects of religion, but they guarantee to every one a
perfect right to form and promulgate such opinions
and doctrines upon religious matters, and in relation
to the existence, power, and providence of a Supreme
Being, as to him shall seem just. In doing this he
3I8 
Criminal Blasphemy ancd Profanity.  319
acts under an awful responsibility, but it is not to
any human tribunal."
Profane swearing in common conversation, by
an irreverent, vulgar and indecent use of any of the
recognized titles of the Supreme Being, is legally
deemed to be an inferior kind of blasphemy. Thus
Broom & Hadley, in their "Commentaries on the
Laws of England " (American Edition, vol. 2, p. 375),
speak of "profane and common swearing and cursing," as allied to blasphemy, "though inferior in
degree." They state the law of England as follows:
" Every laborer profanely cursing or swearing
shall forfeit one shilling; every other person under
the degree of a gentleman, two shillings; and every
gentleman or person of superior rank, five shillings,
to the poor of the parish; and on a second conviction, double, and for every subsequent offense,
treble the sum first forfeited, with all the charges
of conviction; and in default of payment may be
sent to the house of correction for ten days. Any
justice of the peace may convict upon his own
hearing, or the testimony of one witness; and any
constable or peace officer, upon his own hearing,
may secure any offender and carry him before a
justice, and there convict him."
Mr. Francis Wharton, in his "American Criminal
Law" (vol I, p. 9), classes profane swearing among
misdemeanors, and places it as such in the category of nuisances and scandals to the community, 
ReligzioOz aitd the Stale.
analogous in this respect to public drunkenness,
loud and obscene language so as to draw together a
crowd in a thoroughfare, notorious lewdness, open
cruelty or "any act which from its nature must
prejudicially affect the morals and health of the
community."
The provisions of law in regard to profanity are
generally referred to what is termed the police
power of the State. Of this power Judge Cooley, in
his "Constitutional Limitations" (p. 572), says that
it embraces "the system of internal regulation by
which it is sought not only to preserve the public
order and to prevent offenses against the State, but
also to establish for the intercourse of citizen with
citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict
of rights, and to insure to each the uninterrupted
enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others."
Chief-Justice Shaw, in the case of the Commonwealth vs. Alger (7 Cush., p. 84), defined the police
power of a State to be "the power vested in the legislature by the constitution to make, ordain and
establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties
or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of
the Commonwealth and of the subjects of the
same." Under this general power of so regulating
the conduct of individuals as to preserve the peace,
320 
'Criminal Blasphemy ancid Profanily.  321
good order, health and safety of society; are placed
the provisions of law in relation to profanity.
Thus the Revised Statutes of the State of New
York (Part I, chapter 20, title 8 and article 6,) class
the law against cursing and swearing under the internal police of the State, and under the specific
title that relates to "the prevention and punishment
of immorality and disorderly practices." The provisions of the law are as follows:  "Section 6I. Every person who shall profanely
curse or swear shall forfeit one dollar for every offense. If the offense be committed in the presence
and hearing of any justice of the peace, mayor,
recorder or alderman of any city, while holding a
court, a conviction of the offender shall be immediately made without any other proof whatever."
"Section 62. And if at any other time the offense
be committed in the presence and hearing of such
justice, mayor, recorder or alderman, under such
circumstances as in the opinion of the magistrate
amounts to a gross violation of the public decency,
such magistrate may, in his discretion, convict the
offender without other proof."
"Section 63. If the offender do not forthwith pay
the penalties incurred, with the costs, or give security for their payment within six days, he shall be
committed by warrant to the common jail of the
county for every offense, or for any number of offenses whereof he was convicted at one and the
same time, for not less than one day, nor more than
21 
Religion anid the State.
three days, there to be confined in a room separate
from all other prisoners.'
We present the above exhibit for the purpose of
showing the theory of law, whether statute or common, in treating blasphemy and profanity as penal
offenses.   The offenses are the same in kind, and
differ only in degree; and both are punishable on
precisely the same ground.   The courts have, in
several instances, decided that the constitutional
guaranty in favor of religious liberty is not violated
by making these acts penal offenses, whether under
the rules of common law or by specific statutes.
The theory of these decisions, expressed in some
and implied in others, is that the object of the punishment is not to prevent the free discussion of any
generally accepted religious doctrine, or to compel
its acceptance, or to interfere with the exercise of
religious liberty in the teaching of any doctrine, or
to enforce any duty on religious grounds, or penally to rebuke any offense because it is a sin against
God. No one of these purposes would be consistent with the constitutions of the American States.
Justice Clayton is very explicit in disclaiming the
idea that blasphemy is punishable as a sin against
God; and with this the language of Justice Strong,
as above quoted, fully accords.
It so happens, however, that while blasphemy
and profanity are violations of the law of God, and
in this sense sins, they are also grossly repugnant
to the average moral sense of society. They con
322 
Criminal Blaslhemy and Profanity.  323
stitute an indecent use of language, annoying to the
sensibilities of good citizens, and tending to corrupt the public morals; and because this is the
fact, law interposes its penal and preventive power,
on precisely the same theory that it punishes public
drunkenness, or abates a nuisance that is offensive
to our physical senses, or prejudicial to health. In
doing so it deals with the acts purely in their relation to man, and not at all in their relation to God.
There is no Church and State, and no legalization
of Christianity, or of any other religion, and no
alliance of the civil power with religion, involved in
the purposes of law with respect to blasphemy and
profanity.
It is quite true that the prevalence of Christianity, as- the religion generally accepted by the people,
is at the basis of that public sentiment which makes
blasphemy offensive, and that it fixes the type of
the blasphemy which is thus offensive. The same
result in kind would ensue if Judaism or Mohammedanism were the religion equally prevalent. The
fact of the legal blasphemy does not depend upon
the truth of the religion, but upon its general acceptance. And what and all that the law says is
that religion, being thus accepted, shall not be
maliciously and indecently reviled to the annoyance
of its receivers, and that its sacred titles shall not
be profanely used in the hearing of others. It
demands, as a matter of good manners and good
neighborhood, that this respect shall be paid to the 
Religion and lie SSale.
sensibilities of the great body of the people; and
in doing so it simply applies to this specific case a
principle upon which it acts in a great variety of
particulars. It will not allow one to appear in the
streets in the state of nudity, or publicly do anything which outrages the general sense of the community. The underlying principle in all these cases
is one of the most familiar principles of municipal
law.
It, hence, follows that any argument built upon
the law against blasphemy and profanity, if designed to show that the State may and should establish
a system of religious instruction or worship in its
public school, has no validity except by a mis-statement of the premise. The premise has no religious
character whatever.  It would be just as reasonable
to make the law against murder or theft a premise
for the same inference. God forbids both of these
crimes, and the law of man punishes both, not
because God forbids them, but because they are
offenses against those rights which it is the province and duty of civil society to protect.  So God
forbids blasphemy and profanity, and law in this
country punishes both, not because they are infractions of the divine law, but because they are offenses
against the decency and good order of society.
Whether the law punishes murder or blasphemy,
it deals with the offender as a member of the State
and under its authority, and not at all as a subject
of the divine moral government. With the offenses
324 
Proclamations.
as sins against God it has nothing to do. Hence,
any religious inference relating to the school question, or to any other question, based upon the action
of law with reference to blasphemy and profanity,
assigns to it a character which it does not possess,
and which, moreover, it carefully disclaims. The
inference, logically considered, has no basis whatever.
XXVIII.
THANKSGIVING AND FAST-DAY PROCLAMATIONS.
The custom of public annual thanksgiving has
long existed in this country.   It antedates the
Revolution. Its birth-place was in Massachusetts.
It is certainly an appropriate custom. All persons,
whether Christians or not, who have any realizing
sense of the existence, attributes, government, and
providential goodness of God, must heartily approve
of the practice.
Society is made up of individuals; and, when
the latter jointly share the bounties of Providence
they may well unite in a common service of gratitude to the Divine Source of these bounties.   In
order that they may thus unite in a concurrent
service, and as a community render thanks to God,
it is necessary that a specific time should be publicly designated for this purpose. This end is secured
by what are tertned Thanksgiving Proclamations.
325 
ReLiAioin aid Mle Slate.
George W7ashington, the first President of the
United States, acting in conformity with what he
knew to be the custom of the people, issued such
a proclamation in I795; and since that time, until
within a comparatively recent period, these proclamations have proceeded only from governors of
particular States or mayors of cities. The custom
has been thus perpetuated as one of the characteristics of the American people.
What are these proclamations? It is quite true
that by established usage they proceed from a civil
and not an ecclesiastical source; yet they are merely recommendations in which a day isdesignated for
thanksgiving, and the people advised by the President, or by the governor, or by the mayor, or by all
three, to observe the day in this manner. They
are not issued in the discharge of any official duty
known to the constitutions or laws of the land, and
are not enforced by any penalty. Whether the
people shall respect the recommendation or not is a
matter to be decided by each individual for himself,
subject to no other constraint than that which may
be imposed by his own sense of duty. He violates
nohuman law in disregarding -the proclamation, as
he obeys none in observing it. It does not touch a
solitary right which belongs to him as a citizen. It
creates no civil duty. It makes no discrimination
in respect to the religious beliefs or practices of the
people, and appoints no special form of religious
service. It does not pronounce any judgment as
326 
Proclamations.
to what is the true religion, or what is the proper
mode of rendering a tribute of thanksgiving to God.
All such questions it leaves to the people in the
fullest and freest exercise of their religious liberty.
Substantially the same remarks apply with equal
truth to the appointment of Fast-days, as periods
for public humiliation and confession, and the
invocation of the divine favor. Such appointments,
especially by the civil magistrate, are far less common than those that relate to thanksgiving: yet,
like the latter, they are nothing but advice, which
may be accepted or rejected according to the pleasure of the people.   They  are enforced by no
authority, and really have no official character whatever. Whether the public designation of a fastday, either by the civil authority or by an ecclesiastical body, establishes any religious obligation in
the court of conscience is a question for each conscience to settle. Be this as it may, the designation is nothing but human counsel, and, hence, has
not a single attribute which distinctively characterizes a legal statute.
Those who object to the appointment of thanksgiving and fast-days by the civil officer, because, as
they allege, such appointments are a species of quasireligious legislation, proceed upon a false assumption as to their nature. What they allege is not
true; and hence the objection  is not well taken.
They might with more plausibility say that it is in
bad taste for the officer of a government that exists
327 
Religion and /the S/ate.
simply for secular purposes, to designate, even by a
mere recommendation, any religious services for
the people or any time for such services. This is
the very utmost that the truth warrants; and
whether there is any force in this objection would
depend on the prevalent taste of the people. The
great body of the American people find no fault
with the practice and, hence, we conclude that it
is not offensive to them.   In respect to thanksgiving proclamations, they both accept and expect
it as a long established usage. They do not regard
it as involving any union between Church and State,
or any interference with their religious liberty.
Another class of persons, especially those who
advocate Bible reading and religious instruction in
our public schools, fancy that thanksgiving and fastday proclamations may be argumentatively used as
a precedent in support of their view. We remember an article published in 1870 by an eminent
clergyman of this country, who appealed to Washington's thanksgiving proclamation of I795 as furnishing a premise from which to infer that Christianity might and should be taught in our public
schools, organized and conducted by the State, and
supported by general taxation. This clergyman, in
his haste to proceed to his inference forgot to
notice the important fact that Washingtoni was the
President of the United States under a Constitution
which makes legalized Christianity an impossibility
in the government authorized by it; which bestows
328 
Proclamalions.
upon the President no religious power whatever;
which denies all such power to Congress; and
which, therefore, reduced the proclamation to the
mere category of simple advice, having no more
legal authority to control the action of the people
than it would have had if issued by the humblest
citizen in the land. Washington himself participated in the work of drafting this Constitution. He
signed it as the President of the Federal Convention, and recommended the people to ratify it. To
infer, as this eminent clergyman did, that the prerogatives of the President's office were attached to
the proclamation is to give it a character which it
did not possess, and to make Washington do what he
had not the remotest idea of doing, and what he
really-had no power to do.
This thanksgiving and fast-day argument in
regard to our public schools is so transparently
fallacious that it will hardly pass muster, even as a
plausible trick in logic. If great men did not sometimes use the argument, it would not be worth
while to refute it. The fatal objection to it is
the total want of any analogy between the two
cases.
The public school is an institution of law, established and managed by the authority of civil
government.   Its expenses are paid  out of the
money-chest of that government: and the funds
are collected from the people by compulsory taxation. To introduce religion into the school as one
329 
Rcligkioio and Ihe State.
of the branches of education is not only to determine
what religion shall be thus introduced, but also to
compel the people to pay for its propagation. It is
to this extent the coerced support of religion; and
than this nothing can be more foreign or antagonistical to the genius of our political institutions.
Tested by these institutions as a standard, it is a
gross heresy.
Is there anything analogous to this in a thanksgiving or a fast-day proclamation issued by the
President, the governor of a State, or the mayor
of a city?  Nothing,  absolutely whatever.   To
reason from the one to the other is to build an
argument upon a totally false analogy. One might
as well say that, because the President thanks God
before eating his meals, or attends public worship
on the Sabbath Day, the Bible ought to be read and
religious instruction given in the public school.
These acts, whether of the President or a governor,
like a religious proclamation, have no official character, and, hence, furnish no precedent from which to
reason in respect to a legal institution.
There can hardly be. a more striking instance
in which the premises utterly fail to contain the conclusion, or a more palpable confession of the extreme
paucity of arguments available for its support, than
that of resorting to thanksgiving and fast-day proclamations as the means of showing that Christianity
is a part of our legal system, and may, hence, be introduced into our public schools. The proper mode
330 
Proclamations.
of proof would be to appeal to the constitutions of the
country, or to the laws enacted in pursuance thereof.   Here, if anywhere, we are to ascertain what
is the legal position of Christianity in reference to
civil government. If it be a State religion in any
sense, or to any extent, here is the proper place to
find the evidence thereof.
A much more plausible argument might be based
on the tax-exemption of Church property: yet even
th s would be a failure, since the exemption is not
placed at all on religious grounds.
The legislature of the State of New York, by
the act of April 23d, I870, did indeed declare that
"any day appointed or recommended by the governor
of this State or the President of the United States,
as a day of fast or thanksgiving, shall, for all purposes whatsoever as regards the presenting for paym  nt or acceptance and of the protesting and giving notice of the dishonor of bills of exchange, bank
checks and promissory notes, made after the passage of this act, be treated and considered as is
the first day of the week commonly called Sunday."
This statute makes such a day a legal holiday
in respect to the business matters which it recites.
It treats the first day of January, the twenty-second
day of February, the twenty-fifth day of December,
and the fourth day of July in the same way. The
statute simply postpones to the next day payments
pledged to be made on any one of these days: and
33I 
Religzio  ancd Ithe Slale.
it does so on the general presumption that these
days will not by the mass of the people be treated
as ordinary business days. There is not the remotest reference to religion or to religious reasons in
the statute.  Its sole relation is to certain business
stipulations: and in this respect it treats the first
day of January, the fourth day of July, and a fast
or thanksgiving day on precisely the same principle.
We are almost inclined to ask the reader's pardon for detaining him so long with this thanksgiving and fast-day question.  It is, however, one of
the points that has appeared in the discussion about
the public schools; and this is our apology for
making any reference to it.
XXIX.
PREAMBLES TO STATE CONSTITUTIONS.
Reference is sometimes made to the recognitions and acknowledgments of God found in the
preambles to our State Constitutions, as evidence
that the State governments are invested with a religious character, and may, hence, very properly
employ the public school as an instrument of
Christian  instruction  and  worship.   That the
premise of this argument may have the benefit of a
332 
Preambles to State Conslilutions.   333
full statement, we submit, as follows, the preambles which contain these acknowledgments of
God:
ALABAMA.-" We, the people of the State of
Alabama, * * * * invoking the favor and
guidance of Almighty God, do ordain and establish
the following constitution."
ARKANSAS.-"We, the people of the State of
Arkansas, grateful to God for our civil and religious
liberty,  *  *  *  *  do ordain and establish this
constitution."
CALIFORNIA.-" We, the people of California,
grateful to Almighty God for our freedom, * *
do establish this constitution."
CONNECTICUT.-" The  people of Connecticut,
acknowledging with gratitude the good providence of God,    *  *  *  *   ordain and establish the following constitution."
FLORIDA.-" We, the people of the State of
Florida, grateful to Almighty God for our freedom,      *  *  *   do  establish  this  constitutioii."
GEORGIA.-" We, the people of Georgia, * *
* * acknowledging and invoking the guidance
of Almighty God, the author of all good governments, do ordain and establish this constitution."
ILLINOIS.-" We, the people of the State of
Illinois, grateful to Almighty God for the civil,
political and religious liberty which he hath so
long permitted us to enjoy, and looking to him for 
Religioni and the XS/ae.
a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, * * * * do ordain and establish this
constitution."
INDIANA.-" We, the people of the State of
Indiana, grateful to Almighty God for the free
exercise of the right to choose our own form of
government, do ordain this constitution."
IOWA.-" We, the people of the State of Iowa,
grateful to the Supreme Being for the blessings
hitherto enjoyed, and feeling our dependence on
him for a continuation of those blessings, do ordain
and establish a free and independent government."
KANSAS.-" We, the people of Kansas, grateful
to Almighty God for our civil and religious privileges,  *  *  *  *  do ordain and establish this
constitution."
MAINE.-" We, the people of Maine, * * *
* acknowledging with grateful hearts the goodness of the Sovereign Ruler of the universe,
* * * * and imploring his aid and direction, * * * * do ordain and establish the
following constitution."
MARYLAND.-" We, the people of the State of
Maryland, grateful to Almighty God for our civil
and religious liberty, * * * * declare."
MASSACHUSETTS.-" We, therefore, the people
of Massachusetts, acknowledging with grateful
hearts the goodness of the Great Legislator of the
universe,  *  *  *  *  and   devoutly  imploring
334 
Preambles lo Stale Constizuioizs. 335
his direction, * * * * ordain and establish
the following declaration of rights and frame of
government."
MINNESOTA.-" We, the people of the State of
Minnesota, grateful to God for our civil and religious liberty,  *   *     *    do ordain and establish this constitution."
MississiPPI.-" We, the people of the State of
Mississippi, grateful to Almighty God for the free
exercise of the right to choose our own form of
government, do ordain this constitution."
MISSOURI.-" We, the people of the State of
Missouri, grateful to Almighty God, the Sovereign
Ruler of nations,  *  *  *  *  and acknowledging our dependence upon  him,   *  *  *  *  ordain and establish this revised and amended constitution."
NEBRASKA.-" We, the people of Nebraska,
grateful to Almighty God for our freedom,           *
* * do establish this constitution."
NEVADA.-" We, the people of  the State of
Nevada, grateful to Almighty God for our freedom,
*  *  *  *  do establish this constitution."
NEW JERSEY.-" We, the  people of the State
of New Jersey, grateful to Almighty God for the
civil and religious liberty which he hath so long
permitted us to enjoy, and looking to him for a
blessing upon our endeavors to secure and transmit
the same unimpaired to succeeding generations, do
ordain and establish this constitution." 
Religion and h/e Slate.
NEW YORK.-" We, the people of the State
of New York, grateful to Almighty God for our
freedom, * * * * do establish this constitution."
NORTH CAROLINA.-" We, the people of the
State of North Carolina, grateful to Almighty God,
the Sovereign Ruler of nations, * * * * and
acknowledging our dependence upon him, * *
* * ordain and establish this constitution."
OHIO.-" We, the people of the State of Ohio,
grateful to Almighty God for our freedom, * *
* * do establish this constitution."
PENNSYLVANIA.-" We, the people of the Commonwealth of Pennsylvania, grateful to Almighty
God for the blessing of civil and religious liberty,
and humbly invoking his guidance, do ordain and
establish this constitution."
RHODE ISLAND.-" We, the people of Rhode
Island and Providence plantations, grateful to A1,mighty God, * * * * and looking to him for
ablessing upon our endeavors, * * * * do
ordain and establish this constitution of government."
SOUTH CAROLINA.-" We, the people of the
State of South Carolina, * * * * grateful to
Almighty God, * * * * and imploring the
direction of the great Legislator of the universe,
*  * -    *  establish  the following  *  *  *
* as the constitution of the Commonwealth of
South Carolina."
336 
Preamblies /0to S/ate Cozslilul/zios. 337
TEXAS.-" We, the people of Texas, acknowledging with gratitude the grace of God in permitting us to make choice of our own form cf government, do hereby ordain and establish this constitution."
VIRGINIA.-" We, the delegates of the good
people of Virginia, * * * * invoking the
favor and guidance of Almighty God, do propose
to the people the following constitution and form
of government for this Commonwealth."
WISCONSIN.-" We, the people of Wisconsin,
grateful to Almighty God fbr our freedom,* * *
do establish this constitution."
Here are twenty-eight constitutional preambles
which, taken in the aggregate, are referred to as
evidence that the State governments possess a religious character, and may, hence, evince the fact
in their public school system by Bible reading and
other religious exercises. The premise on which
this conclusion is based consists in the recognitions and acknowledgments of God as found in
these preambles. To this argument we submit the
following reply:   I. There are nine States of the Union to which
the argument has no application. Two of these
States-namely,  Vermont and West Virginiahave no preamble to their respective constitutions;
and seven of them,-namely, Delaware, Kentucky,
Louisiana, Michigan, New Hampshire, Oregon, and
Tennessee-make no reference to God in the pre.
22 
Religioi a;zd the State.
ambles to their constitutions. The argument cannot, of course, be used in these States to decide
the School question, or any other question involving the subject of religion.
2. The recognitions and acknowledgments of
God contained in the above twenty-eight preambles
are not distinctively and exclusively Christian. The
Christian, whether Protestant or Catholic, has no
monopoly in these acknowledgments.   They belong to the rational Theist who is not a Christian,
just as really as they do to the Theist who is a
Christian. The aspect of God which they present
is that which is furnished by the light of Nature,
and not that special aspect for which we are indebted to the supernatural light of Christianity.
No  reference is made to God as "the God  and
Father of our Lord Jesus Christ," or to the Word of
God, or to the person or offices of Christ, or to the
plan of salvation, or to the doctrine of a future
life, or to anything that is peculiar to Christianity.
The creed which incidentally appears in these preambles is common to the Christian, the Jew, the
Mohammedan, a Socrates, a Cicero, a Plato, and,
indeed, all who believe in the doctrine of a personal
God, and that of his providence over the affairs of
men. The Christian can heartily accept the creed,
since there is nothing in it repugnant to his faith;
and so can Jews or Deists for the same reason,
though both of them reject the distinctive dJoctrines of Christianity. It seems to have been the
338 
Preambles to S/ale Cons/i/ufions.   339
purpose of the framers of these preambles to avoid
the use of all terms that would place upon them a
specifically and exclusively Christian stamp.
It is not, therefore, logically allowable for the
Christian-the Protestant, for example-to claim
that King James's version of the Sacred Scriptures shall be used in the public school as the means
of religious instruction ancd worship, and then rest
the claim upon these preambles. He may not say
to the Catholic: "My peculiar creed is here, and
yours is not; and, hence, Bogy Bible, and not yours,
must go into the public school." He may not say
to the Jew: "These preambles are my property,
and not yours; and, hence, Protestant Christianity,
and not Judaism, must be taught in the public
school." He may not say to the Deist: "My
creed in regard to God is contained in these acknowledgments and recognitions; and, hence, my
specific faith as a Christian is the form of religion
that should be installed in the public school." The
premise proves no such conclusions. The Catholic,
the Jew and the Deist have logically the same rights
in the premise that the Protestant has, and may,
hence, use it with the same propriety to show that
the State should establish and, at the general expense, support Catholic public schools, or Jewish
public schools, or Deistical public schools. The
argument is just as pertinent and as powerful when
employed by the Catholic, the Jew, or the Deist,
as it is when employed by the Protestant. 
Religion and the State.
The fact is, the religious matters about which
these parties differ are not in the preambles at all;
and, hence, there is no logical proprietorship specially vested in any of them. What and all that
we find is that which is their common religious
property, because it is their common faith. To
acknowledge God as revealed by the light of Nature is one thing: and to acknowledge him in those
special aspects which are peculiar to Christianity
is another and very different thing. The above
preambles contain the former acknowledgment, and
not the latter. They, hence, furnish no basis for
any inference in respect to the latter, and give the
Christian no logical advantage over the Jew or
the Deist.
3. A constitutional preamble, though a form of
expressing the enactment of a fundamental law by
the people, either with or without the reasons for
the enactment, is not upon its very face the law
itself. It describes the people of a given State as
ordaining and establishing "this constitution," or
"the following constitution." The thing ordained
and established as a fundamental law is not the
preamble, but the constitution itself. The reality
and validity of a constitution do not depend upon
the fact that it has a preamble, formally declaring
its enactment by the people, but upon the fact that
it was so enacted; and the evidence, both as to
what the constitution is, and as to the fact of its
adoption, is preserved in the archives of the State.
340 
Preambles to State Cons/ilutions.   34 
The constitutions of Vermont and West Virginia
have no preamble; yet this does not affect their validity. All the preambles might be stricken out, or
might have been omitted altogether, without involving the slightest change in the constitutions themselves. There is no objection to them; yet they
are not at all indispensable.
It is by reading "this constitution," or "the following constitution," referred to in the preamble,
and not by reading the preamble, that we ascertain
what is the organization of a State, what it is as a
body politic, upon what principles it is constructed,
what governmental agency is established, and with
what powers that agency is invested.  Legislative
bodies acting under it, and courts of justice in applying-its principles, derive their powers from the
constitution itself, and not from its preamble. The
latter, independently of the former, makes no grant
of substantive powers. Its contents are not laws
unless they are made such by the constitution enacted. It may contain reasons for the enactment
of a given constitution; yet these reasons are not
the thing enacted, and have no legal effect whatever unless the constitution gives them such effect.
No inference can, therefore, be drawn as to the
structure and purposes of the State governments,
from the mere fact that their preambles to the constitutions under which their governments are organized, recognize the existence of God, express gratitude for his favors, and invoke his guidance and 
Religion and the State.
direction. The mere fact itself simply proves the
religious sentiments of the people as expressed:
but it does not prove their purpose to ordain and
establish those sentiments as fundamental laws of
the body politic, to clothe them with constitutional
authority, or confer any power upon State legislatures to give them legal effect. Whether these
sentiments enter into the organic laws of the several
States expressing themin constitutional preambles,
is to be ascertained by studying these laws: and
this carries us beyond the preambles into the constitutions themselves.
4. Coming, then, to these constitutions, we
find, as a matter of fact, that all of them-some more
fully than others-so qualify and limit the powers
of the State governments in respect to religion as
to secure to the people the fullest exercise and enjoyment of religious liberty, and confine the action of
these governments to the attainment of merely
temporal and secular ends. This is one of the most
characteristic features of our American State constitutions, and that, too, whether their preambles
do or do not contain recognitions and acknowledgments of God. Having presented this point at
large in a previous stage of this discussion, we content ourselves here with a single illustration.
The constitution of Illinois in its preamble
says:- "We, the people of the State of Illinois,
grateful to Almighty God for the civil, political and
religious liberty which he hath so long permitted
342 
Preambles to S/ate COnstilulions. 343
us to enjoy, and looking to him for a blessing upon
our endeavors to secure and transmit the same unimpaired to succeeding generations, * * * * do
ordain and establish this constitution for the State
of Illinois." So reads the preamble, acknowledging God as existing, as being Almighty, as having
granted to the people civil, political and religious
liberty, and as having long permitted them to enjoy
it, and also adding to this acknowledgment the expression of gratitude and a prayer to God for his
blessing upon the endeavors of the people.
What, then, does the constitution itself say?
It says (ii., 3):-" The free exercise and enjoyment
of religious profession and worship, without discrimination, shall forever be guaranteed: and no person
shall be denied any civil or political right, privilege
or capacity, on account of his religious opinions.
* * * No person shall be required to attend or
support any ministry or place of worship against
his consent, nor shall any preference be given by
law to any religious denomination, or mode of worship." It still further says (viii., 3):-" Neither the
General Assembly nor any county, city, town, township, school district, or other public corporation shall
ever make any appropriation, or pay from any public fund whatever anything, in aid of any Church
or sectarian purpose, or to help support or sustain
any school, academy, seminary, college, university,
or other literary or scientific institution, controlled
by any Church or sectarian denomination: nor shall 
Religion and Ihe State.
any grant or donation of land, money, or other
personal property ever be made by the State or any
such public corporation to any Church or for any
sectarian purpose."
Here is a State, in the preamble to its constitution certainly not lacking in devout expressions
with reference to the Supreme Being, and y)et in
the constitution itself dispossessing its government
of all religious powers and making that government
exclusively secular in its purposes.  It cannot establish or regulate any form of worship. It can make
no discriminations on religious grounds. It cannot
deny to any one any civil or political right, privilege
or capacity on account of his religious opinions. It
cannot interfere with the religious Iiberty of any person.  It cannot compel any one to support any
form of religion, and cannot appropriate a dollar of
the public money for any such purpose. The denials of power made in this constitution leave to
the government of Illinois nothing but secular
power-power in relation to things temporal.  The
government of that State is not Christian in the
sense of giving any legal preference to Christianity,
or clothing it with any legal attributes, obligations
or sanctions, or in any way endowing it or its
institutions, or furnishing any support to these institutions, and cannot be Christian in any of these
senses so long as its present constitution remains.
It is not a religious government, but a republican
and exclusively secular government. It is made
such by the constitution of the State.
344 
Preambles to S/ate Consitutioizs. 345
The religious sentiments found in the preamble
do not in the slightest degree change this fact. They
are not there for any such purpose, and are not permitted to have any such effect. Practically, the government of Illinois is just what it would be, if the
preamble to its constitution had been like that to
the constitution of Michigan, which simply says:"The people of the State of Michigan do ordain
this constitution."
The same general principal of constitutional restriction is found in the other State constitutions,
whose preambles contain recognitions and acknowledgments of God. They all have the common
purpose of so restraining the powers of the State
governments as to leave the people free in the
matter of religion. Religious liberty for all men
and for all sects, with no endowment or support
of any form of religion, and with no encroachment
upon the rights of a religious conscience, is the allpervading doctrine of our American State constitutions, no matter what religious sentiments may be
expressed in their preambles. Christians have no
monopoly of this liberty, and no exclusive privileges
in respect to it. They are only a part of the people,
and stand on the same footing with Jews, Deists,
Rationalists, or any other class of citizens.
The conclusion that we derive from this survey
of the recognitions and acknowledgments of God in
the preambles to twenty-eight State constitutions, is
that the premise thus given supplies no proof that 
Religion and Iie Slale.
the State should, or consistently can, undertake the
work of a teacher or propagator of religion in its
public schools. The governments organized under
these constitutions are clearly scczlar in their objects
and purposes, as abundantly shown by the limitations imposed on their powers; and this is a sufficient reason why they should be secular in any
system of education which they authorize and sulpport by compulsory taxation.
To infer the opposite from the preambles is to
make these preambles contradict both the letter
and the spirit of the constitutions themselves, and
to give them a character which they do not possess.
Especially, to infer that the religious instruction to
be given in the public school should be distinctively
Christian, whether of the Protestant or the Catholic
type, is to assign to the preambles an import which
their language does not authorize.   They are not
Christian preambles any more than they are Jewish
or even Deistical preambles. They represent the
faith of a Jew, or that of a rational Theist who is
not a Christian, as really as they do the faith of a
Christian.  The latter, as against the former, has no
special title to them, and no right to use them for
purposes that are limited to his particular form of
religious faith.   Neither the Douay version nor
King James's version of the Sacred Scriptures appears in these preambles.   Nothing that is peculiar
to and distinctive of the Christian faith is in them.
346 
Thie Law of Religious Socielies.
xxx.
THE LAW OF RELIGIOUS SOCIETIES.
Christianity exists in this country, not as a philosophical system, known only to the few, but as a
popular religion, so general that it has no rival to
dispute its ascendency or divide its honors. Numerous societies in the form of local Churches have
been organized by its influence; and these societies
by union have given birth to sects or denominations.
The offerings of its receivers and adherents have
accumulated a vast capital in church structures,
theological seminaries, and other material appliances, which may be called the invested fund of
Christianity.   Nearly the sum total of the organized religion in the United States is to be found in
the sects that claim to be Christian. For the result we have a religious system intimately identified with Church organisms, living in them, operating through them, and supported by them. These
organisms are voluntary societies of men and women,
professing the saihe religion, frequently meeting
together, and subject to some kind of self-imposed
rules which constitute their ecclesiastical government. A number of them united under the same
polity, and holding the same doctrines, forms a sect
or denomination of such societies.
347 
Religioiz aizd tie S/ate.
These societies not only need protection against
molestation and disturbance; but, being the owners
of property gathered by their voluntary offerings,
and designed for Church purposes, they need to be
clothed with legal rights in respect to its possession
and use. In some way, either directly or indirectly,
law must come in contact with them, and they must
come in contact with law. So large asocial fact as
the organized religion of this country cannot exist
without some form of such contact.
What we mean by the Law of Religious Societies is simply the law of the several States relating
to them, and which, taken in the aggregate, may
very properly be styled American Ecclesiastical
Law. We mean also the law as it now is, and not
as it was during the colonial period of our history.
That there is such a law admits of no dispute. To
state it in detail would be the work of a volume, if
not many volumes.  We  have no  such purpose.
All that is proposed in this article is to give a few
leading hints to some of its most general features,
as the means of indicating the legal theory of the
country in dealing with the subject of religion. On
this point we submit the following statement:   I. The State tolerates religious societies, whether
Christian or otherwise, in the sense of not making
them unlawful, or doing anything to suppress them.
They are in this respect regarded as innocent organizations, as working no harm to the State, as
not being contrary to public policy, and as being
348 
The Law of Religious Societies.    349
an exercise of the right of voluntary association
with which the State ought not to interfere. It is
not necessary to spend words on this point, since
the fact is one of acknowledged and universal prevalence.
2. The State protects religious societies, when
met together and peaceably conducting themselves,
against disturbance and interference. It will not
interfere with them itself, or suffer others to do so.
This protection recognizes and defends the general
right of peaceable assemblage, and is simply a
branch of the protection which the State extends
to all persons when met together for lawful purposes, and conducting themselves lawfully. In most,
if not all of the States of the Union, there are
special statutes against disturbing religious meetings, defining the forms of the offense, designating
penalties therefor, and providing the appropriate
jurisdiction for their infliction.   These  statutes
apply to all religious societies, no matter what may
be the creed professed, or the polity adopted.
3. The State, for the purposes of its own jurisdiction and control, takes no cognizance of the
Church proper, as distinguished from the incorporated religious society.  It does not legislatively
enter the domain of its purely ecclesiastical life, or
attempt to regulate its affairs as such. Mr. Tyler,
in his "American Ecclesiastical Law" (p. I28),
observes:   "Religious societies usually maintain public 
Religioi ald tl,e Siate.
worship according to some specified denominational
usage; but the corporation and the Church, although
one may exist in the pale of the other, are in no
respect correlative.  The objects and interests of
the one are moral and spiritual; and the other deals
exclusively with things temporal and material. The
existence of the Church proper, as an organized
body, is not recognized by the municipal law.
(Petty vs. Tooker, 2I New York Reports, p. 267)."
The same author (pp. 54, 55) further remarks:   "Over the Church, as such, the legal and temporal tribunals do not in general profess to have
any jurisdiction whatever, except so far as is necessary to protect the civil rights of others and to
preserve the public peace. All questions relating
to- the faith and practice of the Church and its
members belong to the Church judicatories themselves."
Justice Strong, of the Supreme Court of the
United States, in his lectures on the "Relations
of Civil Law to Church Polity, &c." (p. 4I), speaks
of the Church "as an interior organization within
a  religious society," and then adds (p. 42):   "I think it may be safely asserted, as a general
proposition, that whenever questions of discipline,
of faith, of Church rule, of membership, or of office
have been decided by the Church in its own modes
of decision, civil law tribunals accept the decisions
as final and apply them as made."
It is quite true that a Church is almost always
350 
Tze Law of Religious Societies.
connected with a religious society, and that the two
may be largely composed of the same persons; yet
the Church itself, in distinction from the religious
society of which we shall speak in the sequel, is
unknown to the law for any purpose of supervision
or control. The law does not appoint its officers,
or prescribe any rules for their appointment, or
determine what shall be its government or system
of doctrine.
4. As a consequence, the State leaves the
Church itself to be an entirely self-perpetuating and
self-regulating organization within the limits of
decency and good order.   As to doctrines and
government, as to the admission or exclusion of
members, as to Church officers and their powers, as
to the modes of worship and transacting every kind
of spiritual business, as to the confederation of
Churches under one system of polity and faith, as
to all the religious matters and objects of the organization, the theory of American law is that the
State has nothing to do with the Church. The
Church can make no law for the State, and the
State in regard to these subjects makes no law for
the Church. As observed by Justice Strong (p. 37),
the State "leaves the internal management of a
Church exclusively to its own regulations."
This is but another mode of asserting the doctrine of a free Church in a free State. In the case
of Harmon vs. Desher (I Spear's Equity Reports,
South Carolina, p. 8o), the Court thus stated this
35I 
Religion and the S/ate.
doctrine:-" The structure of our government has,
for the preservation of civil liberty, rescued the
temporal institutions from religious interference
and, on the other hand, it has secured religious
liberty from the invasion of the civil authority."
5.-It follows, as a corollary, that the State in
its organic capacity has no legal opinion as to the
truth of the religion professed by the Church. All
creeds are in its view equally orthodox and equally
heretical, since it has nothing to do with them in
either aspect. If a Church chooses to adopt and
preach the Mormon faith, including its doctrine in
regard to marriage, the State will not concern itself
with the question. If any of the members actually
practise polygamy, then their external conduct, but
not their articles of faith, will bring them, as individuals and members of civil society, into conflict
with the law and render them liable to punishment
There is no penalty against their faith, or against
its peaceable propagation; but this immunity does
not release them from their obligations as citizens,
or exempt them from punishment if they violate the
law in regard to marriage.
The underlying assumption of American law in
respect to matters of religious faith is that free dis
cussion, and not any system of legal coercion or
repression, is the proper remedy for errors of faith,
and the only one consistent with an equal and impartial enjoyment of religious liberty.  It, hence,
leaves all Church organizations to make, to admin
352 
The Law of Religious Societies.
ister, and defend their own creeds in their own
way, alike unhindered and unhelped by the State.
The creeds may be a law to the Church, but they
are no law to the State. They are not co-ordinate
with the civil law, and the latter never undertakes
their defense.
6. The State, in order to meet certain necessities
of Church organisms, provides for the incorporation
and continuance of religious societies as bodies corporate; or, in the omission to do so, which is the
fact in some of the States, it provides for a system
of trusts, vested and perpetuated in natural persons.
No religious society is compelled to incorporate itself. All that the State does is simply to furnish
the opportunity. And, when such a society is incorporated, it is in legal contemplation simply a
civil corporation, as much so as a bank, an insurance company, or a railway company. It is in this
respect the creature of legislative authority, and
subject to that authority. The method of incorporation may be through a general law, or by. a special
charter; yet in either case the product is a civil
corporation, and nothing else. All its attributes
and powers are of this character.   The control of
the State over it respects it solely as such.
Generally a Church proper is enclosed within the
religious society, or rather exists coincidently with it:
yet this is not necessarily so, and all the members of
the religious society are not necessarily members
of the Church, and all the members of the latter are
23
353 
Religion anzd the State.
not necessarily members  of  the former.   The
Church may have one rule of membership, and the
religious society may be incorporated under another
and different rule. The intimate connection between the two organizations should not lead us to
confound them, or suppose them to be the same.
The Church proper, considered in its collective
character, has no corporate powers which are known
to the law. The religious society, when incorporated, has the general powers of a civil corporation,
and also the special powers which the State may see
fit to grant, as the means of attaining the special
ends of its existence; and in respect to the latter
powers it differs from a bank only as a bank differs
from a railway company. It is a civil corporation
to-do a certain kind of business, which every Church
needs to have done.
7. The State, in providing for the incorporation
of religious societies, or adopting a system of
trusts, adapts its regulations, to some extent, to the
peculiarities of different Church organizations.
This fact is conspicuously seen in the Act of April
5th, I813, passed by the legislature of New York
for the incorporation of religious societies, and the
subsequent acts amendatory thereof.   There are
specialties connected with the incorporation of
Episcopal Churches, Reformed Churches, Reformed
Presbyterian Churches, and Roman Catholic Churches, which are intended to be suited to their respective organizations.  The Quakers and the Shakers,
354 
7fhe Law  of Re,igoious Societies.    355
having no incorporated religious societies, are provided for in the laws of New York through a
system of trusts vested in natural persons, and designed to serve the ends sought to be secured by
incorporation. Where there are no special features
of Church organization, making a special method
necessary, the law has a general method of incorporation by the election of trustees in conformity
with prescribed rules.
Thus the laws of New York suit themselves to
the wants of particular Church organizations, and
seek, without discrimination for or against any, to
secure to all at their option the civil benefits of incorporation, or, in its absence, those of a system of
trusts. Similar arrangements are found in other
States. The incorporation of religious societies or
a trust system for their benefit is, with some diversities of detail, among the standard legal usages of
the American States.
8. What are called the temporalities of the
Church, in distinction from things moral and spiritual that pertain to its doctrine and government,
are by authority of the State assigned to the
incorporated religious society, subject to regulations prescribed by law. The ownership of Church
property and the power to make legal contracts
are vested in this society. It is known to law as a
civil corporation and can act in this capacity. It
has a corporate title and seal. It can sue and be
sued. It exists by perpetual succession. It acts 
Religion and the State.
through a board of agents created by its own choice
in conformity with law. There are differences in
the laws of the different States with respect to religious corporations; yet the one feature common
to them all is that of making legal provision for
the orderly and proper exercise of those civil
powers that stand connected with the acquisition,
possession, use, and disposal of Church property.
Property is the one temporality of the Church
which forms the subject-matter of nearly all the
legislation and all the judicial decisions that have
any reference to the Church. Take out this one
element and the rights in various ways allied therewith; and there would hardly be a question in relation to the Church, other than that of protection,
which civil tribunals would have occasion to consider.   Justice Strong  says (p. 40):-" Almost
all, if not all the questions mooted in the civil
courts of this country relating to Church polity, discipline, officers or members, have arisen incidentally in controversies respecting Church property."
This is the one point in respect to which the
powers of the State comne in contact with the
Church; and but for it the State, under our system of government, would have nothing to do with
Churches beyond affording them protection against
any improper disturbance. There must be some
law in regard to Church property, and the State
is the only party that can either make or administer it.
356 
7The Law of Religious Societies.    357
9. It is a general principle of law, subject to
various qualifications in the different States, that
the legal doctrine of trusts and charitable uses applies to the tenure of Church property, and that
such property cannot be diverted from the use originally intended and devoted to other purposes.
Justice Strong remarks (p. 77):-" The law of
trusts and the law of charities, closely connected
as they are, constitute the protection of our
Churches, so far as they hold and enjoy property."
He observes again (pp. 86, 95):-" Church property is regarded by law as devoted to charitable
uses." "In this country gifts and settlements for
religious uses have always been considered as
charities." So, also, Mr. Tyler, in his "American
Ecclesiastical Law" (p. 97), after saying that the
trustees of a religious society simply have the custody and control of its property, but are in no
sense the owners thereof, adds:   "But should the trustees of a religious society
attempt to divert the funds and property of the society from the purposes for which they were contributed by the original donors, a court of equity
would intervene to prevent it. For instance, where
property is conveyed to a religious corporation or a
religious society which afterwards becomes incorporated, to promote the teaching of particular religious doctrines, and the funds are attempted to
be diverted to the support of different doctrines, it
is the duty of a court of equity, under its general 
Religioi a  d the State.
jurisdiction over trusts, to interpose for the purpose of carrying the trust into execution according
to the intention of the donors. (Miller vs. Gable,
2 Denio, p. 492.)"
This principle of trusts and charitable uses in
respect to Church property, taken in connection
with the powers possessed by courts of equity, constitutes the guaranty furnished by law against the
misapplication and misuse of such property. The
law assumes that the original donors had a right to
fix and qualify the use; and when they have done
so, either expressly or by legal implication, the
property is assumed to have been received and to
be held as a trust, subject to whatever conditions
may be involved therein, provided they are legal.
Th'ere is no dispute among judges as to this principle.  When they have differed it has been with
reference to its application in specific cases. The
principle, though by no means invented for the
benefit of Churches, is, nevertheless, one of immense importance in relation to the tenure and use
of property acquired for church purposes.
IO. Civil tribunals, for the purpose of applying
this principle, or for that of determining the legal
rights of litigant parties in cases properly before
them, sometimes have occasion to inquire into the
proceedings of the Church itself, and to judge
whether they are in conformity with its own law.
They do so not to review the proceedings, or to reverse them, or to change their ecclesiastical effect,
358 
Thce Law of Relig,zous Societies.
but simply as incidental to a decision upon the legal rights of the parties in controversy. A question of faith or one of Church order may be thus
collaterally involved.   Cases  come  before  the
courts affecting vested rights which can be disposed of in no other way.
A conspicuous example of this character is furnished by  the suit in regard to the Methodist
Book Concern, decided by the Supreme Court of
the United States, at the December term in I853.
The Methodist Church of this country, prior to its
division, had accumulated a large invested fund, entitled the Book Concern, which had been gathered
by the voluntary contributions of its traveling
preachers, and which, as a charity fund for the relief of these preachers and their families, was
placed under the custody and superintendence of
the General Conference. In I844 this Conference
adopted a plan for the division of the Church into
two distinct ecclesiastical organizations, and for a
division of this fund, in the event that the annual
conferences at the South should approve the plan
and organize themselves accordingly. These Conferences did so the next year, and, having organized themselves under the title of the Methodist
Episcopal Church South, they claimed their proportion of the Book Concern.
In the case of Smith vs. Swormstedt (I6 Howard, p. 288), the question came before the Supreme
Court of the United States, whether the Methodist
359 
Religion and ite Slate.
Church South was legally entitled to any portion
of this fund. This question the Court answered in
the affirmative; and in giving the answer it was
compelled to decide whether the General Conference, the highest authority in the Church, had the
power to provide for the division of the Church
that took place, and also whether the annual conferences at the South had acted in accordance with
the provision. Both of these questions were answered affirmatively. Justice Nelson, in delivering the opinion of the Court, held the following
language:   "The division of the Methodist Episcopal
Church having thus taken place in pursuance of
the proper authority, it carried with it, as a matter
of law, a division of the common property belonging
to the ecclesiastical organization, and especially the
property of this Book Concern. It would be strange
if it could be otherwise as it respects the Book
Concern; inasmuch as the division of the association was effected under the authority of a body of
preachers who were themselves the proprietors and
founders of the fund.".
The sole ground upon which the Court made
any decision about the authority of the General
Conference was to settle the legal rights of the
parties in litigation; and this is the ground, and the
only ground, upon which civil courts can raise inquiries within the limits of the Church proper, as
distinguished from the incorporated religious soci
36o
I 
The LCaw of Religious Societies.    361
ety.   Whether  the  inquiry respects  matters  of
faith, or those of Church order, it is not in review
or correction of either, but simply for the purpose
of deciding questions that relate to vested civil
rights.
These general statements in regard to American Ecclesiastical Law, though but a meager sketch,
must suffice to indicate its policy with reference to
religious societies. It is not a policy of unfriendliness towards them, or of any discrimination among
them, or of any interference with the internal and
spiritual affairs of the Church proper, or of any
union between Church and State. It is a policy
which, in addition to complete toleration of all religious societies, and their protection against molestation and disturbance, touches them mainly, if
not exclusively, in respect to the rights of property.
The plan of incorporating religious societies, and
thus clothing them with the rights, powers, and liabilities of bodies-corporate, is the simplest way of
settling the problem of their temporalities, and enabling the State to deal with those questions that
relate to these temporalities.
The fact, moreover, that the State confines its
jurisdiction to this sphere, and that it studiously
avoids any interferenee with the spiritual part of
Church life, by not administering its functions, or
appointing its officers, or making any provision
therefor, shows the general position which it means
to take in regard to religion. The position, in the 
Religioz anid Ilthe Slale.
extent of it, is peculiar to this country, and differs
widely from that of the colonial period. Its exact
parallel is not to be found anywhere else. It is
based upon the theory that the proper functions of
civil government do not extend to the administration, regulation, or propagation of religion, or the
control of any of its spiritual agencies. Mr. Hoffman, in his " Ecclesiastical Law in the State of New
York"  (p. 274), remarks:  "In no part of the
world is the great principle of the exclusive rule of
the Church in matters ecclesiastical, and of the
State in matters civil, more generally recognized
than in the United States."'
Very plainly, a school system governed by the
State, and supported by compulsory taxation, yet
ii which religious instruction or worship is made
an element thereof, is not in harmony with the policy and character of American Ecclesiastical Law.
It violates the spirit of that law. It undertakes to
do in the public school what the State utterly declines in the Church, and thus makes the State inconsistent with itself.  It carries the agency of the
State beyond the sphere of things temporal into
that of things spiritual. It is both an abandonment
and a contradiction of the general principles upon
which the State elsewhere acts.
362 
Fragmenlary Thoughts.
XXXI.
FRAGMENTARY THOUGHTS.
There are several fragmentary thoughts float.
ing around the School question, whose dignity
would not be very seriously compromised if they
were designated as the odds and ends of the discussion. They do execution with some minds;
and, hence, they are more or less used. The purpose of this article is to state some of these
thoughts, and estimate their logical worth.
I. "The legislation of the Bible, and that'of
our civil and criminal code, are in many respects
analogous, and, hence, the former is a part of the
latter." It is true that many of the requirements
and prohibitions of the Bible coincide, as to their
subject-matter, with similar requirements and prohibitions in our legal system. Both alike forbid
murder, theft, perjury, adultery, polygamy, and various other offenses; and both recognize and make
prominent the marriage tie, and prescribe like rules
as to the rights and duties of parents and children.
The two systems of legislation contain much that
is common to both. A similar fact appears in the
laws of Great Britain when compared with those of
this country, and, indeed, in the laws of all civilized
nations when  compared  with each other.   The
363 
Relig?ion and the State.
matters dealt with are similar, and, hence, it is not
surprising that the legislation should be largely
similar.
What is surprising is the inference, sought by
some to be drawn from this fact. It does not follow, because two legislative systems are similar,
that  either is a part of the other.   The vital
element in every law is its authority, since without
this there is no law; and it so happens that neither
the laws of Great Britain, nor those of the Bible,
considered as a civil code, have any authority in
this country.   The  former have no jurisdiction
within the limits of the United States, and the
latter have no jurisdiction except with the individual conscience; and with this the State does not
concern itself. The Bible is not the constitution
or the statute-book of any State in this Union; and
the fact that a given act is forbidden by it, is not
recognized as a reason why it should be punished.
No State undertakes to execute the laws of the
Bible, or any laws but its own. Nothing is a part
of its laws, or can be, except as made such by the
State itself, in the exercise of its own sovereign
power.
It is, of course, no objection to a human law
that it agrees with the Divine law, but rather the
highest possible recommendation; yet this does
not confound the two systems, or make one a part
of the other, or transfer their respective jurisdictions to each other. An act is not an offense
364 
Fragmenlary Thoughis.
against God because it is forbidden by human law,
or an offense against human law because it is forbidden by the Divine law. If it is forbidden by
both, then it has the double character of being a
sin and a crime at the same time-an offense
against two distinct systems of authority. With
it as a sin against God, civil society has nothing to
do; since its cognizance applies to it solely as a
crime against man.
2. "The civil institutions of this country are
founded upon the Bible." This is true in the
sense that the influence of the Bible, in educating
the people, and in elevating and purifying their
character, has contributed largely to the formation
of these institutions. But the proposition is not
true-in the sense that our legal system rests upon
the authority of the Bible, or that it has borrowed
any part of its authority therefrom.  The Constitution of the United States, and that of every State
in the Union, emphatically contradict the proposition if taken in this sense. Our civil institutions
have but one basis of authority; and this is the
authority of the people themselves.
Millions of the people in this country believe
and respect the Bible, and worship the God therein
revealed; but they have not built their governments upon its authority and do not propose to do
so.  Made the wiser and the better by their knowledge of its contents, they have been taught the
great wisdom of establishing civil government on
365 
RellZc~/i    aic d /le S/ate.
the foundation of hzumau authority, and confining
its functions to the attainment of purely temporal
ends; thus leaving questions pertaining to religion
to be adjudicated in the court of the individual
conscience, and not by civil tribunals. Had they
built their governmental system upon the Bible,
the Bible would have been its fundamental law,
and the system itself would have been the legal
instrumentality for its execution. Who needs to
be told that this would be religious despotism?
There was much in the colonial legislation of this
country that partook of this character; but, ever
since the Revolution, it has been a paramount object with the American people to avoid this result,
and, indeed, to render it constitutionally impossible.
3. "The State has no right to deny the Word
of God to the children in the public schools."   Of
course, the State has no such right in respect to
children or adults, in the public school, or anywhere else. This, however, is not the question.
The real question is this: Is it the duty of the
State to supply the Word of God, or to preach that
Word to anybody or anywhere? Is it the duty of
the State to print Bibles, or to distribute Bibles
among the people, or to appoint and support Bible
readers for popular instruction? If it is not, as
our whole American system affirms, then surely
the State does not deny the Word  of God to anybody by not undertaking this work, or interfere
with any man's right, or any child's right, in respect
366 
Frarneinitary Thzotghts.
to the possession or use of this Word. The Bible
is free, and the people are free to use it; and what
the State does, by not using it in the public schools,
is simply to decline any service in respect to the
Bible. It lets the subject alone; and to call this a
denial of the Word of God to anybody is a gross
misuse of language.
4. "The object of using the Bible in the public
school is not to teach its religious dogmas, but its
morals." A serious difficulty with this idea confronts us in the fact that the dogmas and the
morals go together as parts of one and the same
system.  Both imply inspiration, and, hence, both
alike claim to rest upon the authority of God. The
Bible is a book of Divine morals, as well as of
Divine doctrines; and when these morals are
taught as the morals of the Bible, whether in the
public school or in the Christian pulpit, a very
practical and important part of Bible religion is
taught. We concede their great value, as we do
that of the doctrines, and would just as soon use
the Bible in the public school to teach the one, as
we would to teach the other.  They are so inseparable that neither is properly taught without the
other.   To  teach the precepts of Christ, while
ignoring the doctrine of his person as the Son of
God and the Saviour of the world, would not half
teach those precepts. The same would be true of
an attempt to teach the precepts of the Apostles,
while disregarding their commission as inspired
367 
PeIz'C ioiz a(i /  zce S?ale.
men, speaking and writing in the name and by the
authority of God. The source of these'precepts
constitutes a most vital part of their power. They
are precepts in virtue of this fact, and not merely
ideas or maxims.  "Thus saith the Lord"  stands
behind the whole of them.
The real trouble in using the Bible to teach
either its doctrines or its morals in the public school,
is precisely what it would be in using the Westminster Catechism for the same purpose. The
laws of this country do not establish the Divine
authority of either.  Neither has any authority
before the law. And if the morals of the Bible are
to be taught in the public school by using it for this
purpose, and taught as Diville morals, as they should
be, if taught at all, then the State will be engaged in
the business of religious propagandism, at the public
expense; and that too, as really as if Dwight's system of theology were thus taught, or if the State
did the same thing in the Christian pulpit on the
Sabbath Day.
We do not escape this result by talking about
the morals of the Bible in distinction from its
doctrines. It is the Divine book in the faith of the
Christian; and those who insists upon its use in
the public school expect and mean that it shall go
there in this character. The Bible cannot go anywhere in its true character, without bearing upon its
face the stamp of being a 1elioiozs book; and it cannot be used accordin- to its own desicgn without
368 
Fragmentary Though/s.
being used to teach religion, and that, too, whether
the use respects its doctrines or its morals. Those
who would use it in the public school for its morals,
but not for its doctrines, not only seek to divorce
what is inseparably united, but are inconsistent
with themselves.
5. " But did not our Puritan fathers make the
Bible a part of their school system?"-Yes: they
did as a general fact, and they added the Westminster Catechism to it.  They did not stop here,
since they made Puritan Christianity a part of their
civil system, and taxed the people for its support.
They did not stop even here, since in some instances
they actually became persecutors. The old fashioned New England Puritan public school, sometimes referred to as if it were a good precedent for
this age, belonged to a dispensation that hung
witches, whipped Quakers from town to town, and
made Roger Williams an exile from his home. It
suited an age in which the doctrine of religious
liberty for all the people was not understood, and
certainly not practiced. New England now, by her
State Constitutions, repudiates many things which
she then did.
We do not mean to disparage the Puritan
Fathers. They were stern, stanch, and in the main
good men.  But to glorify their mistakes, or seek
to make these mistakes precedents for this age, or
for any age, is a species of veneration for antiquity
from which we beg to be excused. The New England
24
369 
Reli~-ion ancd Ile Slate.
public school, during the colonial period, and even
for some time after the Revolution, was as distinct
an example of a legally preferred religion as was
ever witnessed on the face of the earth. We admit
the facts of history on this subject, but we wholly
deny their authority as a precedent.
6.-" Is not this a Christian country? "-Yes: it
is, if you mean that Christianity is the religion which
has the greatest prevalence among the people, and
exerts far the greatest influence upon their thoughts,
habits and usages, and in this way reaches and
affects the policy of the State in its legal operations.
No: it is not, if you mean that the State has
adopted Christianity, or clothed it with any civil
power, or given it legal preference over any other
religion.   Christianity, as a system  of religion
revealed in the Bible, has no more authority over
the body politic in its organic character, or through
the body politic over the people, than the poetry of
Virgil or Homer, or the sacred books of the heathen.
The State does not know it as a law for any body.
It is known as such only by individuals; and the
State very wisely leaves-them to judge of its claims
upon their own responsibility. Any inference in
respect to the public school that rests upon the
assumption that Christianity is, ipso facto, a part of
our legal system, and that in this sense this is a
Christian country, rests upon a false premise.
7. "But is  not this a Protestant country?"
Yes; it is, if you mean  that Christians form the
370 
Fra~gmentary Thoughts.
majority of religionists, and that Protestants form
the majority of Christians. No; it is not, if you
mean that the State has set its seal to Protestantism in distinction from Catholicism, or any other
type or form of religion, or that the government of
the country is Protestant. If we except the Protestant office-holding test of New Hampshire, no such
governmental fact exists in the United States. The
people, as citizens, stand on an equal footing, no
matter what maybe their religion. It is one of
the glories of our political system that this is not a
Protestant country in any sense that legally discriminates between citizens on religious grounds.
The world has had quite enough of that kind of
Protestantism.
8. "These Catholics who are making so much
disturbance about the public schools, being largely
of foreign birth, are mere interlopers." This is
simply an appeal to anti-Catholic prejudice, as antiAmerican as it is bigoted and ignorant. It may be
well to remember that our Protestant ancestors
were all of them a set of interlopers. The Puritans
were interlopers.  The whole people of the United
States, with the exception of the Indians, are either
interlopers or the descendants of interlopers. A
great and powerful nation started with interloping.
and interloping has been one of the elements of its
rapid increase.
It is a fundamental article of our-political faith
that this country, on all its sides, should be open to
371 
Religion and,lie Stale.
the ingress of peaceable interlopers, whether black
or white, in whatever clime born, and bringing with
them whatever religion; that all these interlopers
may, by naturalization, become citizens of the
United States; that, being such, they are citizens
of the State in which they reside; and that, possessing this double citizenship, they are entitled to
all its privileges and immunities as perfectly as if
they had been native-born for a dozen generations.
Our political system, with the single exception of
eligibility to the Presidency of the United States,
makes no distinction between a naturalized and a
native-born citizen.
The Fourteenth Amendment to the Constitution
expressly says that "all persons born or natural
ized in the United States, and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside." Their rights
as citizens, whether such by birth or by naturalization, do not depend upon their religion, whether
Protestant or Catholic. The Catholic has just as
many rights as the Protestant, and no more; and
the Protestant has just as many rights as the Catholic, and no more. No class has any monopoly of
these rights, whether home or foreign-born, whether of this or that religious faith. That is not a
true American head or heart that fails to recognize
and cordially accept this principle. Our constitutions and laws do not abridge the religious liberty
of  anybody, and  have  no  prejudices or  spleen
372 
Fragmentary Thoughts.
against the religion of anybody, and no partiality
for the religion of anybody. They would not utter
a word of complaint if the Pope and his whole college of cardinals were to come to these shores, and
here do their utmost to propagate Roman Catholicism by methods that lie within the limits of the
law. His Holiness is at perfect liberty to make
the experiment whenever it may suit his pleasure.
If he can outwork Protestants in propagating
religion, then so be it.
9. "But men have no business to be superstitious Catholics, and especially to be Infidels, Rationalists, and Free Thinkers; and if they will be such,
then let them take the back seat in the synagogue
of citizenship." So you say; but, unfortunately for
the saying, the American people, expressing their
judgment through legal methods, do not agree with
you. Their theory is, that whether a man shall be
a Catholic, or a Protestant, or an Infidel, is, as between him and civil society, his own business, and
the business of nobody else.  If he chooses to be 
fool, in the religious sense, then civil society will
let him be a fool; and, so long as he does not violate the laws, afford him the same protection that it
would if he were religiously wise. All questions
between him and God it leaves for him to settle.
Io. "Would you really expel the Bible from the
public school, and thus perpetrate an outrage upon
the sacred book?" There is a kind of argument
which logicians call argzmncn/?1tn ad 7-everentiam, or
373 
Religioii a;i d a Ihe Slate.
an appeal to the feeling of reverence as the means
of carrying a point with any one who has the feeling. This is precisely the import of the above
question.
We answer the question candidly by saying
that, with a profound respect for the Bible, and a
firm belief in its Divine authority, there are, nevertheless, a great many uses to which we would not
apply the book. We would not consult it in solving a qu,estion of constitutional law, or in settling
a problem in mathematics, or in determining the
character and cure of diseases, or in deciding which
is the best currency system, or in trying to find out
how one can raise the largest crop from an acre of
land, or in laying a plan for building a cotton factory.  A man would be simply stupid who should
seek these kinds of information in the Sacred
Scriptures. They are not a cyclopedia of universal knowledge; and it is no disrespect to them not
to use them where they should not be used. We
object to their use in the public school, not for the
want of faith in their doctrines, or for the want of
reverence for their sacred character, but because
the school in question is a civil institution of the
State, supported at the general expense by compulsory taxation, and because the propagation of religion is not a proper function of the State.
For this reason we would not use the Bible in
the public school, and wherever it is thus used we
would discontinue that use, not simply because the
374 
Fra~gmentary Tzoughts.
Catholic demands the discontinuance, but because
it is not the business of the State to teach religion
in any form, and because an American State cannot do so without contradicting one of the first
principles of our system of government.   This
clamor about the irreverence of not thus using the
Bible is but a weak and foolish bluster of words
that with no sensible man will take the place of
argument. The question is not at all one of reverence for the Bible, and not whether it be true,
but whether an American State, in consistency with
its own organic life and the principles that ought to
rule in the construction of every civil government,
can, at the public expense, embark in the work of
religious instruction and worship.   This is the
question, and in respect to it our answer is an unqualified negative. Any appeal here to mere sentimeiit, as the means of supplying the lack of brains,
or to substitute sentiment for brains, poorly befits
the question, furnishes no rule for deciding it, and
is not worthy of any one who means fairly and
squarely to meet the issue. It may be a mere trick
played upon human weakness.
Such are some examples of thoughts that here
and there shoot themselves into the discussion oi
the School question, and which we have called fragmentary thoughts for the want of a better title.
Their most conspicuous feature consists in the
fact that they either wholly ignore the character of
our governmental system, or assign to it a false char
375
I 
Religiofl anid the State.
acter. They spring either from religious zeal not
well directed, or from bigotry which in its very
nature is almost sure to be wrongly directed. They
are anything but safe guides in ascertaining the
true solution of the School question.
CHAPTER XXXII.
THE CONCLUSION.
The present article completes the somewhat
extended series which has appeared in the "INDEPENDENT " with reference to the question of religious instruction and worship in the public schools
of this country.  The  three central topics of the
series are these:-I. A statement of the question
to be considered. 2. A general view of civil government in application to the question. 3. The
principles of our American system of government
in relation to the subject, of religion. To the first
of these topics the first seven articles were specially
devoted, bearing the following titles:-I. The New
Political Programme. 2. The Roman Catholics.
3. The Protestants. 4. The School Problem. 5.
Secular Education. 6. Religious Teaching by the
State. 7. The Bible in the Public Schools.
The subject, as thus explained, raised the ques
376 
The Conclusion.
tion whether it comes within the province of civil
government to undertake the work of administering, regulating, supporting, propagating, or teaching religion, or attempting to perform any function
in regard to it beyond that of simply protecting the
people in the peaceable and orderly exercise of their
religious liberty, and especially whether such a
work would be in harmony with the political and
civil institutions of this country.   The first or
generic aspect of this two-fold question was considered in the next eight articles, whose titles are
as follows:-I. The Unchristian Method.  2. Governmental  Jurisdiction.   3. State Theology.   4.
Civil Government. 5. The Political Value of Religion. 6. State Personality. 7. State Conscience
toward God. 8. The Majority Conscience.
Each of the above articles was framed in view
of the fact that the direct and immediate issue before the American people is not the general question of Church and State, but the specific question
of Bible reading and religious instruction and worship in our public schools. This question is merely
a branch of the larger one'that relates to the attitude which civil government should assume and
maintain with reference to religion. All the general
principles that are applicable to the latter are
equally so to the former.
The conclusion reached from the survey of the
more extended field is that civil government, as
such, should have nothing to do with the work of
377 
Religion  and the S/ate.
administering, sustaining, or teaching religion, and
that on this subject its only legitimate function
consists in affording an impartial protection to all
the people in the exercise of their religious liberty,
while so limiting this exercise as to make it compatible with the peace and good order of civil
society. It has taken the world a long time to discover and embody this elementary truth; and even
now the discovery and embodiment are limited to
a small portion of the race. It is practically an unknown truth to the greater part of mankind.
The acceptance of this general doctrine in regard to the province of civil government settles the
School question and all other questions that come
within the range of its application. The public
school, as an institution of the State, exists and is
regulated by its authority, and is, moreover, supported by compulsory taxation. To prescribe for it
a religious system to be taught therein, or forms of
worship to be there observed, is to determine by the
authority of the State what the system or forms of
worship shall be, and then to compel the people to
pay the expenses thereof- Such a coerced support
of religion is equivalent to a State religion in the
public school, and that, too, whether the religion
and the worship accord with the views and wishes
of the majority or not.
All this and much more would be very proper,
provided the administration or teaching of religion
comes within the rightful province of civil govern
378 
The Conclusion.
ment. But, if this province be simply that of im
partial protection, and not at all that of administration or teaching, then besides being highly improper,
it is a trespass upon the rights and religious liberty
of the people. It is such because it compels them
by law to do what should be left to their own discretion.  It is especially such in a country where
there is great diversity in the religious faith of the
people. A school system in which a specific form
of religion shall be taught or practiced at the public expense, is among such a people unjust to all
who dissent from that religion, but are, nevertheless,
compelled to contribute to its support. It puts civil
government in a false attitude. It invests it with
a function that does not belong to it. On this gen
eric ground we believe it both impolitic and wrong
to employ our public school system as the means
of propagating any form of religion.
This conclusion we have endeavored to confirm
by the study of the constitutional and legal system
of this country. The articles relating to this branch
of the argument are sixteen in number, and
bear the following titles-:.I The Divine Right of
Civil Government. 2. Christianity and the Common
Law. 3. The National Constitution. 4. Religious
Amendment of the Constitution. 5. The Guaranty of Religious Liberty.   6. State Constitutions.
7. Constitutional Rights of Conscience. 8. Taxation of Religious Corporations. 9. Sabbath Legislation. Io. The Civil Oath. I I. National and
379
i 
Religion and the State.
State Chaplains. I2. Criminal Blasphemy and Profanity. I3. Thanksgiving and Fast-day Proclamations.  I4. Preambles to State Constitutions.   I5.
The Law of Religious Societies. I6. Fragmentary
Thoughts.
The one inference sought to be derived from
this part of the discussion is that we have in this
country a system of secular governments, established by the authority of the people for secular and
not for religious purposes, which, when coming in
contact with religion, are planned to afford protection to the people in the peaceable exercise and
enjoyment of their religion, but not to regulate,
support, or teach that religion, or to make any discriminations on religious grounds. The Constitution of the United States, so far as applicable to
the subject at all, is constructed on this general
principle; and the same is for the most part true
of the constitutions of the several States.
Any divergence from this great principle, as is
the fact in some of the State constitutions, is
merely exceptional to the general spirit and purpose
of our governmental system. A religious test as
a qualification to hold office, or to perform any political or civil duty, or to enjoy any political or
civil right, is such an exception. In two of the
States the power of taxation for the support of
religion  is granted  by their constitutions;  yet
this, too, is an exception. So, also, in most of the
States religious corporations are exempted from
380 
The Conclusion.
taxation; yet this, while an inconsistency surviving
by the force of habit and usage after the theory which
gave it birth is dead, is not based on religious
grounds. Notwithstanding the exceptions that mar
the absolute unity and harmony of the system, considered in relation to religion, it is, nevertheless,
true that the system, taken as a whole, disclaims
all jurisdiction over religion, all right to discriminate among the people for religious reasons, and all
right to impose any tax burdens for the support or
propagation of religion. We express this general
fact by the oft-repeated declaration that in this
country we have no union between Church and
State. One need but to study its fundamental laws
to see this truth.
This constitutional principle is the result of
slow but steady growth. Congregational Puritanism,
was once a State religion in nearly the whole of New
England, as was Episcopacy a State religion in Virginia.  The original settlers of this country did not
in the outset understand or practice the principles
of impartial religious liberty. They did not understand the proper limitations of civil government;
and, hence, they were often oppressors, and sometimes persecutors on religious grounds. It has taken
the lapse of time, the struggle of conflicting thought,
the progress of ideas, and the intermixture of diverse
religious sects in the bonds of a common citizenship, to correct the early mistakes of the fathers
and their descendants, and bring us to the point
IL
i
I
38i 
ReZliion and /he State.
where it can be truly said that we have established
an American doctrine on the subject of religion,
considered with reference to the State. And if
there be, as there are, some things still remaining
that need to be eliminated in order fully to carry out
this doctrine, then judging from the past, we may
anticipate that the work will go steadily forward
until the last fragment of anything that partakes of
the nature of State religion shall wholly disappear
from our political and civil institutions. The tendency of public thought is in this direction, and has
been for more than a century. The earlier State
constitutions have from time to time been changed
in obedience to this tendency, and those of more
recent date need no change on the subject of re
ligion.
The premise derived from the functions of civil
government, especially as constitutionally defined
and qualified by the American people, supplies the
proper solution of the School question. That solution is clearly the one which grows out of and
accords with the fundamental principles of our national and State organization. We can accept no
other, and put no other into practice, without contradicting these principles.   The Puritan public
school, with the religious catechism and the Bible
in it-which was once the public school of New
England as New England then was-does not
conform to the standard furnished by the American
doctrine of civil government. It gave preference
382 
The Conclusion.
to a religious sect, and at the public expense incul     cated the special ideas of that sect; and this is
plainly contrary to the doctrine.
The same objection applies with equal force to
the Protestant public school, in which King James's
version  of the  Sacred Scriptures  and  religious
/    exercises, Protestant in their type and tendency, are
incorporated  into its educational  system.   The
Catholic, the Jew, the Infidel, and, indeed, all who
dissent from Protestantism, being citizens in com     mon with Protestants and having precisely the
same rights, complain of the injustice done to them
in taxing them for the support of such a school.
Their complaint is a valid one. We do not see how
it is possible to answer it without ignoring the
cardinal principles upon which our national and
State life is founded. The same method of reason     ing is equally applicable to a Catholic public school,
a Jewish public school, or any public school which
is made the organ of religious instruction or worship
in any form.
The fatal difficulty with all such schools con     sists in the fact that, while they assign to civil
government functions that do not belong to it, they
come into direct collision with the American doc     trine as to the nature and scope of its functions.
They make the State a religious teacher at the pub     lic expense, and this is just what it cannot be in
consistency with its own doctrine. Shall, then, the
doctrine, when applied to popular education, be
l
383
i 
Religion and the Slale.
abandoned as false, or shall our public school system be adjusted to it? Shall all religious and all
anti-religious sects be placed on a common ground
in the full and impartial enjoyment of their citizenrights, with no discrimination against or in favor of
any class? Shall the public school be the commonol
school of the people, of all the people, and for all
the people, and in this respect be like the government that authorizes it, and taxes the people for its
support? Shall it, by a wise and just omission, remit the subject of religion in all the forms of the
idea, and in all the processes of its propagation, to
other agencies, neither controlled nor supported by
the State, but left entirely free at their own charges
to consult their own pleasure?
- The design of this entire series of articles has
been to supply the true answer to these questions.
That answer is this:-THE PUBLIC SCHOOL, LIKE
THE STATE, UNDER WHOSE AUTHORITY IT EXISTS,
AND  BY WHOSE TAXING POWER  IT IS SUPPORTED,
SHOULD BE SIMPLY A CIVIL INSTITUTION, ABSOLUTELIY SECULAR AND NOT AT ALL RELIGIOUS IN
ITS PURPOSES, AND ALL PRACTICAL QUESTIONS
INVOLVING THIS PRINCIPLE SHOULD BE SETTLED
IN ACCORDANCE THEREWITH.
We submit this answer, without qualification
or reservation, as the logical result of the argument.  We  are quite aware that it excludes the
Bible from the public school, just as it excludes
the Westminster  Catcchism, the Koran, or any of
384 
The Conclusiotn.
f
the sacred books of heathenism. It pronounces
no judgment against the Bible, and none for it; it
simply omits to use it, and declines to inculcate
the religion which it teaches. This declinature,
while expressing no hostility to the Bible, is founded on the fact that an American State cannot, in
consistency with the principles of its own organization, and impartial justice towards all the people,
undertake the work of religious teaching or worship in any form of the idea. A State differently
organized, might do so in consistency with its own
principles, but an American State cannot.
If there be any fault with the result to which
we have come, then the fault really lies with the
structure'of our governmental system.  The way
to correct the fault is to take the back track, to
reproduce and re-establish the theory that was
imported from the Mother Country and generally
prevailed before the Revolution, and thus radically
change our present doctrine of government. This
mnight be done if the people should so ordain; and
if it were done, then the Bible and the Catechism
would be in order for the public school. Puritanism would be in order for New England, and
Episcopacy for Virginia.   The  appointment of
ministers by the civil authority and the taxation of
the people for the support of religion, would be in
order.   Even  persecution on religious  grounds
would not be out of order.
If, however, the people are not prepared to
25
i
385
4b
I
-i
i 
]ee/ igiozI  andI //e S/ale.
abandon the doctrine in regard to religion which
the last century of their history has slowly and
steadily incorporated into their political system, and
if, moreover, they thoroughly believe in it as the
true doctrine for every government, then let them
have the consistency and the courage to apply it to
the public school.  Let the citizen rather than the
sectarian, the democrat in the true sense rather
than the bigot and the zealot, decide the School
question; and there will soon be no such question
to decide.   The  religious controversy about the
public school will come to an end. It ought not
to exist at all, and would not exist if the people
would here apply the principles which they have
placed in the fundamental laws of the land.  The
mere zealots on this subject can never agree because their preferences are incompatible. There
is, however, no good reason why American citizens,
if willing to meet each other on the basis of theii
common citizenship, should not come to a perfect
agreement in regard to this much-disputed question. 
Protestants who, as'Protestants, fight Catholics
and seek to resist their demands in respect to
the public school, are handling very dangerous
weapons, though many of them do not seem to
know it.  They conduct the war upon a principle
which may at any time be turned against themselves.
The true ground, whether for attack or defense, is
the one that places the Protestant and the Catholic
386 
fThe Cociclzlsioiz.
I
on an equal footing; and the moment the former
takes this position, the whole power of our system
of government at once comes to his support. The
position is impregnable; and taking it, the Protestant is sure of a victory, not as a Protestant, but
as a citizen. He concedes to the Catholic all his
rights and simply claims his own. He demands for
himself no more than he is willing to grant to
others. This position is a strong one, because it is
justand because it exactly accords with the letter
and spirit of our civil constitutions.
&
I387
I
i
I
I
IL  
A
INDEX.
i
ABANDONMENT of State education, 44.
Amendment of the Constitution: Ex-Speaker Blaine's, I5; Judge
Hlurlbut's, I6.
Army chaplains,   302.
Associations, not religious, I46-I48.
Bible: reading of without note or comment, 42, 85; versions of,
77, 78; a religious book, 78; what Bible to be used, 79-8I;
as a reading classic, 82; selections from, questions, 83, 84; the
result, 86; analogy of to law, 373-375; its expulsion from
public schools, 373-375; a sectarian book, 42.
Blasphemy: criminal, legally defined, 314; on what ground pun    ishable, 315-318, 322, 323.
Butler, Bishop, his remark about education, 55.
Central topics of discussion, 376.
Chaplaincies, theory of, 3o7-3ri; no precedent for Bible reading
in public schools, 312, 313.
Christ, his plan, 9I, 92.
Christian country, sense of, 370.
Christianity and the common law:' Lord Mansfield on, I87; the
English commissioners on, r87; Thomas Jefferson on, I87,
I88S; text writers on, I89-i91; decisions of American courts,
191-I99.
Church and State, forms of, IIi.
Church proper: left free, 35I; its temporalities, 355, 356.
Church property: tax exemption of, 262-265; its amount,  265;
rate of increase, 265; argument against exemption, 266-274
trusts and charitable uses, 357.
Citizens, equal rights of, 35I.
I.
i
y
I 
Index.
Civil government: necessity of, 120, 12I; temporal in scope, 12I;
not omniscient or omnipotent,  I24; authoritative, I25; re    ligion not its end, I26; divine'right of, I74; the result of
human forces, I76-I78.
Civil institutions and the Bible, 365.
Civil oath: defined, 290; the requirement of, 291; provisions in
regard to, 292, 293; the law of New York, 294; its govern    mental use, 294-298; false inference from, 298-300.
Civil tribunals and the Church, 358.
Conclusion, the, 376.
Congressional chaplains, 30I.
Conscience: meaning of, I55; its facts personal, I56; of the pri    vate citizen, I57; of legal officers, I58.
Conscience plea, 95-97.
Constitution of the United States, no religion in it, I53.
Constitutional rights of conscience: in State constitutions, 247    255; the doctrine analyzed, 255-259.
Demand of some Protestants, 39.
Dissenters, toleration of, 70.
Distribution of school funds, 45.
Doctrine proved, 384.
Education: by the State, 36; secular, 55; quantity of, 57; moral,
58; not complete, 6I; secular education not anti-religious, 64.
Federal laws in regard to Sunday, 277.
Fragmentary thoughts, 363.
General argument, its topics, 376.
Godless schools, 63.
Golden rule, 94.
Governmental jurisdiction: definition of, 99; general practice,
Ioo; religion beyond it, IO-IO3.
Grant, President, his recommendations, I9, 20; comment on,
20-22.
Guaranty of religious liberty: none as against State power, 223    225; reasons for it, 226-233; form of an amendment for, 234,
235.
390 
Index.
Interlopers, who they are, 371.
Law of religious societies, 347; meaning of, 348; general princi    ples of, 348-360; the policy of, 36I, 362.
Limitation of the majority, I69.
Macaulay on civil government, I78.
Madison's view, I30.
Maine, Supreme Court of, its language, 54.
Majority conscience, 164; logical examples of, I67, i68.
Majority rule, I94.
Mann, Horace, his view, I09.
Miller, Rev. John, his view, 36
Morality in the large sense, 60.
Morality of the Bible without its doctrines, 367.
National and State chaplains, 301.
National Constitution: principles of, 202-205; oaths provided for,
205-207; religious tests excluded, 207, 209.
Naturalized citizens, 37I.
Navy chaplains, 303.
-Neutrality of the State, 52.
New political programme, I5.
New York, its Sunday law, 279, 280.
Parties, Republican and Democratic, 23.
People, their authority, I83-I 85.
Police power of the State, 320.
Political value of religion: Judge Ijagans and Dr. Seelye on, I32    I34; their theory contrary to that of Christ, I35, I40; it de    stroys itself, 135; perils of, I37; the voice of history, I38.
"Powers that be," Paul's language explained, iSi, [82.
Preambles to State constitutions: God acknowledged, 333-337;
comment on, 337-345; conclusion from, 345, 346.
Preston, Rev. Thomas S., his view, 33.
Prison chaplains, 306.
Profane swearing: the law of England, 3I9; the law of New York,
32t.
Ii
I,
39I
I
II 
Ilndex.
Protestants: sects of and their character, 34; united against Catho    lics, 35; three classes of, 36; what some of them demand, 50.
Protestant country, 370.
Public school: function of, 56; an instrument of the State, 6I; a
civil institution, 77.
Puritan Fathers, 369.
Religion, voluntary, I04.
Religious amendment of the Constitution: form of, 213; of no
legal effect, 214-216; would have no authoritative expounder,
217, 218; would be of no service, 219; the process of, 222.
Religious liberty: limits of, ro5; its protection by the State, io6.
Religious mneurn and luum,l 42.
Religious societies, civil corporations, 353.
Religious teaching by the State, 66; conditions of, 68-70; princi    ple involved, 73; consequence.of, 75.
Rights in the public school, 43.
Roman  Catholics, 24; their theory of education, 25, 26; reason
and necessity of, 27, 28; answer to, 30, 3I; what they want, 32.
Rulers not inspired or infallible,  79.
Sabbath legislation, 276; judicial decisions in regard to, 280-285;
theory of, 285-287.
School districts, 48, 49.
School problem, 44.
School virtues, useful, 58.
Secularists as to the public schools, 38.
Seventh Day Baptists, 287.
Special argument, 379.
State conscience toward God, I54-I64.
State constitutions: their purpose as to religion, 236   exceptional
clauses, 236-239; their protective provisions, 24o-244; Judge
Cooley's summary, 244; Pomeroy's statement, 245, 246.
State, definition of, I43, 144.
State personality, I42; a fiction, 144-I46.
State  theology: meaning  of, IIO; sequel of,  iii; its specific
character, III; dissenters from, II3; persecuting, I4; not
useful,  1I 5.
292 
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