People ex rel. Yale v. Eckler (1880) 19 Hun, 609; Mackellar v. Rogers (1888) 109 N. Y. 468, 17 N. E. 350.

83. [Religious. toleration]—The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

[Const. 1777, art. 38; 1821, art. 7, § 3; 1846, art. 1, § 3.]

The origin of this section will be found in the chapter on the first Constitution, in the first volume of this work, where, in notes to the original draft, the opinions and purposes of prominent delegates on the subject of religious toleration are disclosed by the amendments offered by them in framing the section. The reader will also find in the index other references to the subject of religious opinions, forms of worship, test oaths, and other aspects of the development of religious liberty during the colonial period. These citations show varying but gradually expanding ideas concerning religious toleration, culminating in the broad and comprehensive view expressed in the first Constitution. The object sought to be attained by the constitutional declaration is evinced by the preamble to the section in the first Constitution, which states that "we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind." The framers of the first Constitution, not content with the mere declara

tion of the principle of religious toleration, sought to guard it from infringement by the additional provision contained in § 35, that the continuance of the English common and statute law thereby declared should not include any statutes or parts of the common law “as may be construed to establish or maintain any particular denomination of Christians or their ministers." But even these provisions, intended to accomplish the separation of church and state, and insure absolute freedom from ecclesiastical influence, did not satisfy the founders of our government, for, by another section, which might be deemed a corollary to the other provisions, they excluded ministers of the Gospel and priests of every denomination from the right to hold office; stating, as a reason, that these persons, being dedicated "to the service of God and the cure of souls, ought not to be diverted from the great duties of their function;" and this exclusion was not abrogated until 1846. The section securing religious liberty, omitting the preamble, was continued in the Constitution of 1821, and also in the Constitution of 1846, with a clause added in the latter Constitution, relating to the competency of witnesses. The section was not changed by the Constitution of 1894.

The courts have had little occasion to consider this section, for its meaning is so plain and comprehensive, and public approval of its object is so general, that it needs. little judicial attention. The constitutional provision relating to religious toleration was considered by Chief Justice (afterwards Chancellor) Kent in People v. Ruggles (1811) 8 Johns. 290, 5 Am. Dec. 335, where blasphemy was declared to be an offense punishable at common law, and a conviction of the defendant on a charge of contumelious reproach and profane ridicule of Christ was sustained. In the course of his opinion the Chief Justice, after quoting from the English case of Rex v. Woolston,

2 Strange, 834, Fitzg. 64, the statement that "whatever strikes at the root of Christianity tends manifestly to the dissolution of civil government," says that "such offenses have always been considered independent of any religious establishment or the rights of the church. We stand equally in need now, as formerly, of all the moral discipline and of those principles of virtue which help to bind society together. The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice." Offenses like that charged in this case do not relate to any religious establishment or to any form of government, but are punishable "because they strike at the root of moral obligation, and weaken the security of the social ties." "The noble and magnanimous" constitutional declaration was not intended to withdraw "religion in general, and with it the best sanctions of moral and social obligation, from all consideration and notice of the law. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, are granted and secured; but to revile with malicious and blasphemous contempt the religion professed by almost the whole community is an abuse of that right."

Ten years afterwards, in the Convention of 1821, the subject of religious liberty was again fully considered, and the following section was once adopted: "The legislature shall not pass any laws by which any person shall be compelled to attend upon, or support, any place of public worship; or to maintain any ministry against his consent; or which shall, in any manner restrain the free exercise of religious profession and worship." Erastus Root proposed the following additional provision: "The judiciary shall not declare any particular religion to be the law of the land, nor exclude any witness on account of

his religious faith." Mr. Root denied that, under the Constitution, courts had power to declare blasphemy to be an indictable offense. He said it had been determined that Christianity was the law of the land, and that it had been borrowed from the common law of England. Chancellor Kent, who wrote the opinion in the Ruggles Case, replied to Mr. Root, saying that he had not stated that decision correctly. "The court had never declared or adjudged that Christianity was a religion established by law. They had only decided that to revile the author of Christianity in a blasphemous manner, and with a malicious intent, was an offense against public morals, and indictable. The authors of our Constitution never meant to extirpate Christianity more than they meant to extirpate public decency. They meant to preserve, so far as it came within their cognizance, the morals of the country, which rested on Christianity as the foundation. The common law, as applied to correct such profanity, is the application of common reason and natural justice to the security of the peace and good order of society." Daniel D. Tompkins also opposed the Root amendment. The next day Mr. Root submitted his amendment in the following form: "It shall not be declared or adjudged that any particular religion is the law of the land;" and this was adopted by a vote of 62 to 26. Chancellor Kent voted for it, saying it could do no harm and might be a security. Mr. Root also offered an amendment that "no witness shall be questioned as to his religious faith." Colonel Young said that if this was intended to admit witnesses who did not believe in a Supreme Being, he was opposed to it. "The testimony of the atheist and infidel ought not to be placed upon an equality with others, as he could feel no responsibility." Chancellor Kent also opposed the amendment, saying that the oath of such a person, taken on a book in

which he did not believe, "was a mockery, and the evidence ought not to be admitted." Mr. Briggs said he regretted to see the narrow views entertained by the Chancellor and Colonel Young. He said it "was impossible to ascertain who were atheists and who not." Mr. Root objected to the rule which required a jury to be told that a man "is not to be believed because he does not think as they may believe in regard to future rewards and punishments." Mr. Root's amendment in relation to the competency of witnesses was rejected by a vote of 8 to 94 The Convention was evidently not satisfied with the result of its deliberations on religious liberty, for when, a few days afterwards, the subject was taken up again, General Tallmadge moved to strike out the provisions already adopted, and restore the section on religious toleration in the existing Constitution. Chief Justice Spencer, Henry Wheaton, Martin Van Buren, Rufus King, Chancellor Kent, Colonel Young, and others participated in this debate, and finally the Convention, by a vote of 74 to 41, concluded to continue the existing constitutional provision relating to religious toleration.

In a few early decisions the courts, following the common law, declared that persons who did not believe in a God and in future rewards and punishments were not competent witnesses. This subject was carefully considered by Chief Justice Spencer in Jackson ex dem. Tuttle v. Gridley (1820) 18 Johns. 98, who, after citing the fundamental principle that "religion is a subject on which every man has a right to think according to the dictates of his understanding," and that "it is a solemn concern between his conscience and his God, with which no human tribunal has a right to meddle," says that "no testimony is entitled to credit unless delivered under the solemnity of an oath which comes home to the conscience of the witness, and will create a tie arising from his be