It is interesting, however, to note that, in a somewhat analogous case, it has been repeatedly decided that consent once given is given finally. Where by statute a municipality is permitted, with the consent of a majority of its electors, to raise exceptional taxes or assume exceptional burdens, an election once held which results in a favorable vote is conclusive. If, however, the first election results in a majority against the proposal, and there is nothing in the law which negatives the right to vote again, the case stands as if no election had been had, and the sense of the people may be taken again and again, and a favorable vote at the last election is as effectual as if it had been obtained at first.1

1 Woods v. Lawrence County, 1 Black, 386; Woodward v. Supervisors, 2 Cent. Law Jour. 396; Society for Savings v. New London, 29 Conn. 174.

CHAPTER XIII.

CIVIL RIGHTS AND THEIR GUARANTIES.

SECTION I. RELIGIOUS LIBERTY.

The Constitution.

The Constitution as originally adopted declared that "no religious test shall ever be required as a qualification to any office or public trust under the United States." 1 By amendment it was further provided that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." 2 Both these provisions, it will be seen, are limitations upon the powers of Congress only. Neither the original Constitution nor any of the early amendments undertook to protect the religious liberty of the people of the States against the action of their respective state governments. The fourteenth amendment is perhaps broad enough to give some securities if they should be needful.

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Establishment of Religion. By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended that by the Constitution the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of Divine Providence in the working of government might seem to require it, and 1 Const., Art. VI. cl. 3. 2 Const., Amendment I.

1 Tuck. Bl. Com., App. 296; 2 Ibid., App., Note G.

where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects. The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly. The propriety of making provisions for the appointment of chaplains for the two houses of Congress, and for the army and navy, has been sometimes questioned; but the general sentiment of the country has approved it, and the States make corresponding provision for legislative bodies and state institutions. The federal legislation has never gone farther; it has never undertaken to prescribe a religious test for any purpose. Neither has it ever assumed the authority to prohibit the free exercise of religion anywhere.

State Guaranties. With the exception of the provisions above made, the preservation of religious liberty is left to the States, and these without exception have constitutional guaranties on the subject. In the main these are alike, and they may be summed up as follows:

1. They establish a system, not of toleration merely, but of religious equality. All religions are equally respected by the law; one is not to be favored at the expense of others, or to be discriminated against, nor is any distinction to be made between them, either in the laws, in positions under the law, or in the administration of the government.

2. They exempt all persons from compulsory support of religious worship, and from compulsory attendance upon the same.

3. They forbid restraints upon the free exercise of religion according to the dictates of conscience, or upon the free expression of religious opinions.

No man

These are adopted as fundamental principles. in religious matters is to be discriminated against by the law, or subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief or expression so long as the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.1

Blasphemy, &c.. But the courts of the Union and of the States, in administering the common law, find it necessary to take notice that the prevailing religion of the country is Christian,2 and that because of that fact certain conduct may constitute a breach of public decorum, and therefore be illegal, though it might not be where a different religion prevailed. The law of blasphemy depends largely for its definition and application upon the generally accepted religious belief of the people; and in the law of contracts many provisions might be found to be illegal in a Christian country which would be enforced where the Mohammedan or some other form of religion prevailed. Questions of public policy, as they arise in the common law, must always be largely dependent upon the prevailing system of public morals, and the public morals upon the prevailing religious belief. Legislation may also recognize the general religious sentiments of the people in the police regulations it establishes and in the statutory offences it defines. Thus, it may prohibit secular employments on the first day of the week, that day being observed as a day of rest and worship by religious people generally; * and it

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1 Cooley, Const. Lim., ch. 13.

2 Vidal v. Girard's Executors, 2 How. 127.

4

8 People v. Ruggles, 8 Johns. (N. Y.) 290; Commonwealth v. Kneeland, 20 Pick. (Mass.) 206; State v. Chandler, 2 Harr. (Del.) 553.

* Commonwealth v. Wolf, 3 S. & R. (Penn.) 48; Frolickstein v. Mobile, 40 Ala. 725.

may condemn and provide for the punishment of any conduct which is condemned by the common voice of Christian nations, though admitted elsewhere, such as cruel sacrifices, the practice of polygamy, &c.1 And it may require that all religious worship and observances shall be conducted in accordance with the ordinary rules of order, and punish whatever extravagances tend to a breach of the public peace. But even the law of blasphemy must be so administered as to preserve liberty of discussion and argument upon the most vital points.2

Exemptions. - Whether or not it be wise or politic to exempt the property used for religious purposes from taxation, as is commonly done, it cannot be said to be in a legal sense unconstitutional to do so. As has before been said, the selection of subjects for taxation is always a matter of policy, and the legislation will exempt from the burden such as a general regard to the interests of the political community may seem to render advisable. If it be unwise or unjust, legislation must correct the evil. But exemptions, to be valid, must be impartial as between sects.

SECTION II. SECURITY OF THE DWELLING, AND
PERSON AND PAPERS.

OF

Quartering Soldiers, &c. The third article of the amendments provides that "no soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war but in a manner to be prescribed by law." The evil at which this is aimed has been

1 Spear, Religion and the State, 315–318.

2 People v. Ruggles, 8 Johns. (N. Y.) 290, 293.

8 But such exemptions are mere favors; they are to be strictly construed. Matter of Mayor, &c. of New York, 11 Johns. (N. Y.) 77; Broadway Baptist Church v. McAtee, 8 Bush, (Ky.) 508. And they may be repealed. Christ Church v. Philadelphia, 24 How. 300.