that the inference is directly contradicted by the various provisions already cited from the constitutions themselves?

These remarks will apply with equal, perhaps greater force, to the dates of some constitutions-" Done, &c., &c., in the year of our Lord." Besides, it has become a sort of fashion in dating papers to say, "in the year of our Lord." C'est une façon de parler-a mere mode of speech. This perhaps may be traced to the fact, that we are Christians. It does not show that Christianity is the foundation of our civil, legal, and political institutions. On the contrary, assuming with our author that the date of the Constitution of the United States-" in the year of our Lord"-refers back to the words, "We the people of the United States," it would only amount to this, that the people of the United States, although professing themselves Christians, were so thoroughly convinced of the impropriety of any and every connexion between church and state, that they laid it down as a fundamental law, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

We will now examine more particularly the Constitution and laws of South Carolina, so far as this subject is concerned. Mr. Adams refers to the Carolina charters of 1662–1663, and of 1665. But these have nothing to do-as we have already seen-with the relation of Christianity to civil government under the present Constitution. We therefore dismiss them. In like manner we would dismiss the Constitution of South Carolina, 1778; but Mr. Adams contends, that the Constitution of 1790, which is at present the fundamental law of the state, is no more than an alteration or amendment of the Constitution of 1778. Let him speak for himself:

"This Constitution itself decides, that it is no more than an alteration or amendment of the preceding Constitution of the State. (See Constitution of South Carolina of 1790, Art. 8. Sect. 2.) The Constitution of 1778, then, is still in force, except so far as it has "been altered or amended" by the Constitution of 1790; and the 38th Section of the former is still in force, except so far as it has "been altered or amended" by Article 8th of the latter. Note E, p. 37.

What is the 38th section, alluded to by our author?

It declares the Christian Protestant religion the established religion of the state. It then provides that Protestant societies may be incorporated, provided fifteen members subscribe the following articles and not otherwise:

1. That there is one God, and a future state of rewards and punishments.

2. That God is publicly to be worshipped.

3. That the Christian religion is true.

4. That the Old and New Testaments are of Divine inspiration, and the rule of faith and practice.

5. That every witness, when called on, shall speak truth, &c. We have studied with some attention the Constitutions of South

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 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.

"the

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:

"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. 607The 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 Trials, 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.
43

VOL. XVII.--No. 34.