lief that false swearing would expose him to punishment in the life to come. On this great principle rest all our institutions and especially the distribution of justice between man and man." In this case a witness was excluded who was shown to have declared his "disbelief in a God and a future state of rewards and punishments," and the rule was laid down that the witness himself could not be heard, under oath, to deny such proof of incompetency. A person incompetent to take an oath as a witness could not be permitted to take an oath for the purpose of showing his competency.

The subject was again considered in Butts v. Swartwood (1823) 2 Cow. 431, where Judge Sutherland said that the "proper test of a witness's competency on the ground of his religious principles is whether he believes in the existence of a God who will punish him if he swears falsely." A person who professed belief in the doctrine of universal salvation was admitted as a competent witness.

In People v. Matteson (1823) 2 Cow. 433, note, Walworth, Circuit Judge, questioned the accuracy of the ruling by Chief Justice Spencer that the test of the witness's competency should be his belief in future punishments, and expressed the opinion that a witness was competent if he believed that God would punish the wicked in this life, without believing in future punishments.

The Revised Statutes of 1830 (2 Rev. Stat. 408) contain the following provisions relating to the competency of witnesses: Section 87, "every person believing in the existence of a Supreme Being who will punish false swearing shall be admitted to be sworn if otherwise competent;" and § 88, "no person shall be required to declare his belief in the existence of a Supreme Being, or that He will punish false swearing, or his belief or disbelief of any other matter as a requisite to his admission

to be sworn or to testify in any case. But the belief or unbelief of every person offered as a witness may be proved by other and competent testimony." These provisions stated in statutory form the rules relating to the competency of witnesses laid down in the foregoing decisions. The revisers in their notes refer to these decisions as the basis of the sections, and say that § 87 is the "best adapted to the existing state of society," and that it embraces "the case, not only of many denominations of Christians, but all believers in other religious tenets, and (of Pagans who must frequently be called on to testify."

In People v. M'Garren (1837) 17 Wend. 460, it was said that a witness might have been rejected as incompetent if the objection had been taken before he was sworn, but evidence afterwards offered in relation to his religious belief was held proper for the purpose of impeaching his credibility.

The Convention of 1846 found the state of the law on this subject-statutory and judicial-as expressed in the foregoing decisions and statutes, applied with more or less flexibility and with some fluctuation by the judges in disposing of specific questions relating to the competency of witnesses. In that Convention Mr. Taggart offered an amendment to the section on religious toleration, providing that "no person shall be deprived of any right or provision, or rendered incompetent as a witness, on account of his religious belief or unbelief." He said "his main object was to abolish the law which declared persons holding certain opinions incompetent as witnesses. He desired to see such objections apply to the credibility, not the competency, of the witness." Mr. Simmons opposed the amendment, remarking that a "more dangerous idea could not be spread through the state, than that a witness was to be tolerated who was a disbeliever in the existence of a Supreme Being, and and

in his moral government to punish false swearing. It was unsafe to have the rights of persons, their liberty, and their property depend on the testimony of an individual who avowed himself to have no faith or belief in a supreme moral governor of the universe. All intelligent and civilized nations had adopted this rule." Several delegates spoke on the amendment, and after considerable debate it was adopted by a vote of 63 to 46, and finally stated in the form in which it appears in § 3.

The subject of competency of witnesses was again considered by the supreme court in Stanbro v. Hopkins (1858) 28 Barb. 265, where it was held that, although under the Constitution a witness was not incompetent on account of his religious belief, he might be cross-examined on this subject for the purpose of affecting his credibility.

I have already quoted from the opinion of Chief Justice Kent in People v. Ruggles (1811) 8 Johns. 290, 5 Am. Dec. 335, in which blasphemy was held to be indictable, and from the discussion to which that decision gave rise in the constitutional Convention of 1821. The subject of religious observance was presented from another point of view by the act of 1860, chap. 501, "to preserve the public peace and order on the first day of the week, commonly called Sunday," applicable only to the city of New York. The validity of this act was considered and sustained by the New York superior court in People v. Hoy (1860) 20 How. Pr. 76, where Justice Hoffman reviews. colonial and state legislation in relation to Sabbath observance, and says that the restrictions rest "upon the principle of the preservation of good order, and the public morality and peace." This statute was again considered in Lindenmuller v. People (1861) 33 Barb. 548, and was sustained as a valid exercise of legislative power under the Constitution. The defendant was indicted for

giving theatrical exhibitions on Sunday, in violation of the statute. He asked an acquittal on the ground that the act was unconstitutional. Some observations made by Justice Allen in this case may profitably be quoted here, not only on account of their intrinsic importance, but also because they were substantially approved sixteen years afterwards by the court of appeals. Justice Allen says that Christianity is the common law of the state; at least, in a qualified sense, "not to the extent that would authorize a compulsory conformity in faith and practice to the creed and formula of worship of any sect or denomination, or even in those matters of doctrine and worship common to all denominations styling themselves Christian, but to the extent that entitles the Christian religion and its ordinances to respect and protection as the acknowledged religion of the people.

. Individual consciences may not be enforced, but men of every opinion and creed may be restrained from acts which interfere with Christian worship, and which tend to revile religion and bring it into contempt." The right of religious belief does not excuse acts which interfere "with the religious worship and rights of conscience of those who represent the religion of the country as established, not by law, but by the consent and usage of the community, and existing before the organization of the government," and "their acts may be restrained by legislation, even if not indictable at common law.

Christianity is not the legal religion of the state, as established by law. If it were, it would be a civil or political institution, which it is not;" but it is, nevertheless, "the religion of the people. This fact is everywhere prominent in all our civil and political history. Compul

sory worship of God in any form is prohibited, and every man's opinion on matters of religion, as in other matters, is beyond the reach of law.

Every act

done maliciously, tending to bring religion into contempt, may be punished at common law, and the Christian Sabbath, as one of the institutions of that religion, may be protected from desecration by such laws as the legislature, in their wisdom, may deem necessary to secure to the community the privilege of undisturbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society, and to preserve religion and its ordinances from open reviling and contempt; and this not as a duty to God, but as a duty to society and to the state. With us the Sabbath as a civil institution is older than the government," and it is subject to governmental regulation. "In this state the Sabbath exists as a day of rest by the common law, and without the necessity of legislative action to establish it; and all that the legislature attempt to do in the 'Sabbath laws' is to regulate its observance. The Christian Sabbath is, then, one of the civil institutions of the state, and to which the business and duties of life are, by the common law, made to conform and adapt themselves. Offenses against it are not punishable as sins against God, but as injurious to and having a malignant influence on society." The statute is clearly within the Constitution, which declares "that the liberty of conscience secured by it shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. The legislature have declared that Sunday theatres are of this character, and come within the description of acts and practices which are not protected by the Constitution, and they are the sole judges. The act is clearly constitutional, as dealing with and having respect to the Sabbath as a civil and political institution, and not affecting to interfere with religious belief or worship, faith or practice."