stand or fall. Nor do we regard religious belief as within the cognizance of political power. Security in opinion, and freedom of worship to all mankind, are among the first rights declared and protected by the consti tutions of our several States. And this we must regard as our American system, where in the favor extended by the policy of Erglish statutes to an established church and an approved creed has been superseded by re ligious liberty and the equality of faiths. The conclusion of the matter must then be this — the maxim that Christianity is a part of the common law in the sense attributed to the words by their learned author is a recogni tion of the alliance between church and state in England, a relic of the days when the clergy ruled the bench and swayed the minds of the judges under a sacerdotal domination that was never questioned, when the gown was an accomplice in the frauds of the stole, and the priesthood held society in bondage and intellect in subjection.1 But if the maxim of Lord Chief Justice Hale was in its broadest sense untrue and misleading, if there has never been inherent in our courts of common law any jurisdiction to enforce the observance of the outward forms of this religion, or conformity with its doctrines and precepts, it is yet true that we are a Christian people, that Christianity is closely interwoven with the texture of our society and intimately connected with all our social habits, customs and manners of life. Our ideas of public order, decorum and de cency are based upon it. Many of the best features of the common law, particularly those which regard the family and social re lations, which compel the parent to support the child, the husband to maintain the wife, which make the marriage tie permanent and forbid polygamy, which enforce respect to ' Reports of Cases etc., supra; Hale N. H., 1 (209).
Everett, 53
the dead and protect the sanctity of the grave, which encourage gifts to charity and favor that which promotes the interests of the Christian faith, if not derived from Chris tianity directly, have at least been improved and strengthened by the prevailing religion and the teachings of its sacred Book.2 We may therefore expect to find that the criminal law, shaped by our ideas of public decorum, and designed to protect the sensibilities, feelings and opinions of the people from such malicious outrages as might tend to dis turb the public peace or order, animadvert upon many acts which tend to shock the moral sense or offend the propriety of a community of Christians whose sense of pub lic decorum has been shaped by the influence of certain evangelical creeds and by the pre cept and example of the gentle Nazarene. Thus it is at common law an indictable offence maliciously to disturb a grave, be cause it is an outrage upon prevailing ideas of decency, and an act calculated to provoke a breach of the peace. That this offence is a crime, may very probably be in large measure due to the fact that the doctrine of corporeal resurrection is a part of the popular religion. But certainly no one would think of claiming that this doctrine is therefore established or approved by law, or is any more lawful than any other opinion touching the future life. It cannot be argued that a particular system of theology is in any proper sense either established or recognized as the law of the land, by a mere effort to preserve peace and order through police regulations adapted to the actual condition of a people by whom that theology is in fact accepted and its precepts observed.3 If, therefore, the prevalence of the Chris tian religion, the existence in the community 2 Williams v. Williams. 8 N. Y., 324; Cooley's Con stitutional Limitations, p. 472. 3 Hale v. Everett, 53 N. H., 1 (203).
