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Carolina, and cannot but express our surprise at Mr. Adams' assertion, that the Constitution of 1790 itself, decides that the Constitution of 1778 is still of force, except so far as it has been altered or amended. There is not a word in the present Constitution to support the assertion. The Constitution of 1790, wholly superseded that of 1778. But Mr. Adams refers for support to the 2d Section, 8th Article Constitution of South Carolina. This relates solely to the rights preserved to corporate bodies and societies. No constitutional lawyer of any reputation can be found bold enough-we had almost used a harsher term—to say, “ that the Constitution of 1790 leaves Christianity, i. e. Christianity without distinction of sects-precisely as it found it established by the Constitution of 1778." "The Constitution abolishes all distinction of religious denominations. The follower of Moses is seated in our legislative hall by the follower of Jesus. The object of each is alike his country's honour, and his country's good.
We cannot argue the seal off the bond: we cannot argue the words out of the Constitution. The language is too clear to be misunderstood. Let us read the 8th article, to the 2d section of which Mr. Adams refers:
“ ARTICLE VIII.
Section 1. The free exercise and enjoyment of religious profession and worship, WITHOUT DISCRIMINATION OR PREFERENCE, shall for ever hereafter, be allowed within this State to all mankind, &c.
SECTION 2. The rights, privileges, immunities, and estates of both civil and religious socities, and of corporate bodies, shall remain as if the Constitution of this State had not been altered or amended.”
The meaning of this is palpable. The civil and religious societies, which have under the old Constitution acquired property and rights, shall not be deprived of their estates and privileges. But henceforth the free exercise of religious worship and profession, without discrimination or preference, shall for ever be allowed within this state to all mankind. Yet Mr. Adams contends that Christianity-without distinction of sects-is the established religion of the state! “It is too manifest," says he, “to require argument, that the Constitution of 1790 leaves Christianity—that is, Christianity without distinction of sects-precisely as it found it established by the Constitution of 1778.” So that, according to him, “the free exercise of religious profession and worship,” means only " the profession of Christianity!” And the establishment, the legal and constitutional establishment of Christianity, makes no discrimination or preference between the Jew and the Christian. The framers of the Constitution built no temple for intolerance. The cornerstone of their structure was liberty-liberty in its broadest and most general sense—liberty of speech, liberty of the press, liberty of conscience--the right to worship God in any way man thinks fit.
But Mr. Adams says:“ It has hitherto been supposed, that our judges, our legislators, and our statesmen, ought to be influenced by the spirit, and bound by the sanctions of Christianity, both in their public and private conduct; but no censure can be rightfully attached to them for refusing to comply, if nothing of this kind is required by the commissions under which they act, and from which their authority is derived.”—Page 16.
How is this? Jews hold offices of honour and trust under the general government: many hold commissions in the militia of the several states; many in the army and navy of the United States: Jews have been sent abroad as consuls: Jews are to be found in the legislative halls of South Carolina, New York, &c. Are they bound by the sactions of Christianity, in their public and private conduct? Do the commissions under which they act, require any thing of this kind? Will they not consider this constitutional doctrine of Mr. Adams somewhat strange? We have dwelt too long on this point. Proceed we to another.
Mr. Adams says: 16 The statute of December 12th, 1712, in adopting the Common Law of England as the Law of South Carolina, (Grimke's Laws of South Carolina, p. 99,) made Christianity a part of our fundamental law, it being a well established principle that Christianity is a part of the Common Law of England."*
We would remark now, in the first place, that in adopting the common law of England, South Carolina did not adopt it unreservedly. She only adopted such portions of it as were consistent with her Constitution and laws. She did not, and she could not deprive herself of the power of altering that common law, when applied to herself. If Christianity, then, were a part of the common law, she certainly had a right to abolish it if she thought proper. This right she exercised in framing her Constitution in 1790.
This is a complete reply to the argument, that the statute of 1712 incorporated Christianity with the laws of South Carolina, even if we admit his dictum—that it is a well settled “principle, that Christianity is a part of the common law of England.”
But we deny that Christianity ever was a part of the common law of England. We do not know how we can better express our opinion on this subject, than by copying the following extract of a letter from Mr. Jefferson to Major Cartwright, dated Monticello, June 5, 1824.
* " Sec. 11, Sergeant & Rawle, pp. 400, 401, where the Supreme Court of Pennsylvania says, that · from the time of Bracton, Christianity has been received as part of the Common Law of England.' To this effect, the opinions of Lord Chief Justice Hale, (the great and good Lord Hale) Lord Chief Justice Raymond, and Lord Mansfield, are quoted. The Court refer to the King vs. Taylor, 1 Vent. 293, 3 Keb. 607– The King vs. Woolston, 28 tra. 834. Fitz. 64. Raym. 162. Fitz. 66.—Evens vs. Chamberlain of London. Furneaux's Letters to Sir W. Blackstone. Appx. to Black. Com. and 2 Burns' Eccles. Law, p. 95—also, 8 Johnson, 292, where the Supreme Court of New York quote the same authorities, and add Emlyn's Preface to the State Trials, p. 8. Whitlock's Speech, 2 State T'rials, 273. Tremaine's Pleas of the Crown, 226. S.C. The King vs. Williams, tried before Lord Kenyon in 1797."
'I was glad to find in your book a formal contradiction at length of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated declarations that Christianity is a part of the common law. The proof of the contrary which you have adduced is incontrovertible, to wit, that the common law existed while the Anglo-Saxons were yet Pagans ; at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had existed. But it may amuse you to show, when and by what means they stole this law upon us.
"In a case . quare impedit,' in the Year Book, 34. H. 6. fo. 38 (1453), a question was made, how far the ecclesiastical law was to be respected in a common law court? And Prisot, C. 5., gives his opinion in these words: 'A tielx Leis que ils de Saint Eglise ont en ancien scripture, covient a nous a doner credence; car ceo common Ley, surquel touts mans leis sont fondes. Et auxy Sir, nous sumus obliges de conustre nostre ley. Et, Sir, si poit apperer a nous que l'evesque ad fait comme un ordinary fera en tiel cas, a dong nous devons ces adjuger bon, ou autrement nemy,' &c. See S. C, Fitzh. Abr. qu: im. 89. Bro: Abr. qu: imp. 12. FINCH, in his first book, c. 3. is the first afterwards who quotes this case, and misstates it thus:-To such laws of the church as have warrant in holy scripture, our law giveth credence,' and cites Prisot, mistranslating ancien scripture' into "holy scripture;' whereas Prisot palpably says, 'to such laws as those of holy church have in ancient writing, it is proper for us to give credence;' to wit, to their ancient written laws. This was in 1613, a century and a half after the dictum of PRISOT. WINGATE, in 1658, erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot. (Wingatis max. 3.) And SHEPPARD, tit. religion in 1675, copies the same mistranslation, quoting the Y. B., Finch and Wingate. Hale expresses it in these words; 'Christianity is parcel of the laws of England. 1. Ventr. 293: 3. Keb. 607; but quotes no authority.
By these echoings and re-echoings, from one to another, it had become so established in 1728, that in the case of the King vs. Woolston, 2 Str. 834, the court would not suffer it to be debated, whether to write against Christianity was punishable in the temporal courts at common law! Wood, therefore, 409, ventures still to vary the phrase, and says, that all blasphemy and profaneness are offences by the common law,' and cites 2. Str.
“ Then BLACKSTONE, in 1763, N. 59, repeats the words of Hale, that Christianity is part of the common law of England, citing Ventris and Strange; and finally, LORD MANSFIELD, with a little qualification, in Evans' case, in 1767, says, 'that the essential principles of revealed religion are parts of the common law,' thus engulphing bible, testament, and all, into the common law, without citing any authority.
“And thus far we find this chain of authorities hanging, link by link, one upon another, and all ultimately upon one and the same hook, and that a mistranslation of the words ancien scripture,' used by Prisot. Finch quotes Prisot; WINGATE does the same: SHEPPARD quotes Prisot, FINCH, and WINGATE: Hale cites nobody; the court in Woolston's case cites HalE; Wood cites Woolston's case; BLACKSTONE quotes Woolston's case and HALE; and LORD MANSFIELD, like Hale, ventures it on his own authority.
“ Here I might defy the best read lawyer to produce another scrip of authority for this judicial forgery; and I might go on further to show how some of the Anglo-Saxon clergy interpolated into the text of Alfred's laws, the 20th, 21st, 22d, and 23d chapters of Exodus, and the 15th of the Acts of the Apostles, from the 23d to the 29th verse But this would lead my pen and your patience too far. What a conspiracy this between church and state!!!"
We might safely rest here; but the question before us is too important to suffer us to pass by other authorities.
Richard Carlisle published " Paine's Age of Reason.” In 1818, he was prosecuted for blasphemy and convicted, and sentenced on the 19th November, 1819, to three years' imprisonment, and to fines of £1500. He was, under various indictments and convictions, confined six years.
On the 30th June, 1825, Mr. Brougham presented a petition to the House of Commons in his behalf. In the petition it is urged,
“That Lord Hale was the first who asserted Christianity to be part or parcel of the law of the land: that but a few years before this unfairaddition to the common law, Lord Chief Justice Çoke, always considered as good an authority as Sir Matthew Hale, distinctly laid it down as law in mentioning the case of Caudrey; so in causes ecclesiastical and spiritual, as blasphemy, apostacy from Christianity, heresies, schisms, &c., the conusance whereof belongeth not to the common law of England; the same are to be determined and decided by ecclesiastical judges, according to the king's ecclesiastical laws of this realm; and he gives as a reason, for as before it appeareth the deciding of matters, so many and of so great importance is not within the conusance of the common law.*
“That before the abolition of the star chamber, and the decay of the ecclesiastical courts, no cases of blasphemy towards the Christian religion were known to the common law courts.
“ That no statute can be found which has conferred authority on the common law courts, to take conusance of a charge of blasphemy toward the Christian religion, as assumed by Sir Matthew Hale.
" That it therefore clearly appears, that that and the subsequent conusance of such cases by the common law courts, have been an unjust usurpation of power, and an unlawful creation of law, contrary to the common and statute laws of this realm.
“That later in the middle of the 18th century, Lord Mansfield decided, that the common law did not take conusance of matters of opinion: whence it appears, by this and the authority of Lord Coke, the immediate predecessor of Sir Matthew Hale
, that the judges are not unanimous on the subject; and that Sir Matthew Hale evidently warped the common law to punish an individual who had not committed an infringement of that or any other law; and that such has been the conduct of the judges in the case of your petitioner and others.”
Mr. Brougham supported the petition in a very able and eloquent argument. None of the law officers of the crown attempted a reply. The fine was remitted by a warrant of the king, dated 12th November, 1825.
We will now refer to the argument of Carlisle, in 12 Repub. 652. It was to the following effect.
The common law has been loosely described as that to which the memory
of man runneth not to the contrary. But the time of legal memory has been more accurately defined, to be any time within the first year of Richard I.
Now the Christianity that existed before that time was that of the Roman Catholic church—and that Christianity the church of England pronounces « idolatrous and damnable.”
Parliament, in 1713, pronounced it blasphemy to impugn the doctrine of the Trinity; and in 1813, declared it lawful to impugn that doctrine.
What then is the Christianity which is part and parcel of the common law of England?
We would ask Mr. Adams what was the Christianity which South Carolina adopted, in adopting the common law of England, when the Protestant religion was the established religion of the
*5 Coke's Rep. IV. a. 33d year of Elizabeth. VOL. XVII.--N0. 34.
state? Was the Protestant religion ever a part of the common law? We have seen that it was not. But if ever, it was clearly repealed, when South Carolina in her Constitution declared, that the free exercise of religious profession and worship, without discrimination or preference, should for ever be allowed within her limits to all mankind. Mr. Adams refers to the speech of Whitelock, 2 State Trials, 275. The reference is unfortunate; in that very page we find the lord commissioner, Whitelock, mentioning a case where the bishop committed a man for heresy, " for denying that tithes were due to the parson.” Does Mr. Adams acknowledge this to be law?
The reference to Emlyn's preface to the State Trials is equally unfortunate. The preface contains some judicious remarks among them, the following concerning indictments for blasphemous libels: “It is customary to insert the words “falsò et malitiosé scripsit, &c.' and indeed they are the very gist of the indictment, and absolutely necessary to constitute the offence; for as no words can be blasphemy, (viz. a reproachful reflection on God or religion,) which are true—(for truth can be no reflection on the God of truth)—so no opinion, however erroneous, can merit that denomination, unless uttered with a malicious design of reviling God or religion. Yet how often have persons been found guilty on these indictments, without any proof of the falsehood of the positions, or of the malice of him who wrote them. Nay, sometimes there is a great deal of reason to think they were published from no other principle but a sincere love and regard for truth."
We come now to the decision in the case of the People vs. Ruggles, cited by Mr. Adams from 8th Johnson's Reports, 292. In that case, the Supreme Court of New York relied on the authorities already examined, and shown to be illegal. Their positions are utterly untenable. The decision was made in 1811; we have not the then Constitution of New York by us, but it is clear as the sun at mid-day, that the case is overruled by the 7th Art. 3d Sec. Constitution New York, adopted in 1821. The words of the section are: “ The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever be allowed in this state to all mankind.” We will not dwell longer on this point; but in taking our leave of it, we mus advise Mr. Adams, who seems fond of quoting decisions, when ever he again assumes
the part of a lawyer, to bear in mind what the books say, viz. “ The law and the opinion of the judge are not always convertible terms, or one and the same thing; since i sometimes may happen that the judge may mistake the law.”
It appears then that the assertion, that Christianity is a we established principle of the common law, is erroneous. It is judicial forgery, a usurpation of legislative powers by the cour a bench-made, judge-enacted law, unsupported by proper lega