What is or is not a crime depends on the current religious belief of a nation. Crime in one State may not be crime in another. But it is claimed that the Christian religion, being paramount in point of the number of its devotees, is the standard in the United States. Upon this premise the law has spoken. " Crime is not the less odious," says Mr. Justice Field, "because sanctioned by what any particular sect may designate as religion." But the most valid reason that can be advanced in support of this proposi tion is the source of our American jurispru dence. The common law, its most copious fount, had ever recognized the Christian re ligion in its administration. And public policy, which is, after all, the criterion of crimes, depends on the state of morals which the dominant religious belief dic tates. But in this connection a curious anomaly is presented. Secular employments are for bidden on Sunday throughout the entire country. The common law, salutary and just for the most part, did not interdict Sab bath-breaking. The constitutionality of Sun day laws has been upheld generally, but the reasons of the judges for their decisions are not only contradictory but at utter vari ance with all true doctrines of constitutional
law. The subject is not free from difficulty. A government is bound to recognize certain acts as criminal even though they are clothed in a religious garment. It was earnestly con tended by counsel in the case of Davis v. Beason, 133 U. S. 345, that any tenets how ever destructive of society could be followed by those advocating and practising them. "But nothing is further from the truth," says Mr. Justice Field. It is also observed that while a law may not interfere with "belief," it may oppose a pernicious "practice." How subtle! Religion says what is or is not a crime. We punish crime, but we do not in terfere with religion. In this the courts are unanimous. But are not the two incon sistent? In conclusion, it may be noted that in matters of religion unanimity is difficult of attainment, for different sects give birth to different views. But the much-vaunted dic tum that liberality alone is at the foundation of the two provisions of the Constitution under consideration must be exploded. The one was born of disagreement, the other of fear, — neither of a very noble mother. To the credit of the country it may be said that they are never violated, and the resultant era of toleration has played no small part in the prosperity which we have enjoyed.
