NEW YORK
36
NEW YORK
and broadness arc priooloss treasures of the citizens of
New York. The wisdom of the Constitution is shown
particukirlv in tlie provision creating the bodv of the
law for the State. Itenacted that the law of tl'u- State
should be constituted of the Common Law of iMighmd
and of the Act s of t he Legislature of the Colony of New
York, as together forming the law of the colony on 19
April, 1775 (the day of the battle of Concord and Lex-
ington). It was expressly declared, however, "that
all such parts of the said Common Law and all such of
the said Statutes and Acts aforesaid or parts thereof
as may be construed to establish or maintain any par-
ticular denomination of Christians or their ministers,
are repugnant to this constitution and hereby are ab-
rogated and rejected."
To New York belongs the honour of having been the first of all English-speaking states from the time of the Protestant Reformation, to protect by its courts and laws, the secrecy and sanctity of auricular confes- sion. In June, 1S13, it was judicially determined that auricular confession as a jjart of church discipline pro- tects the priest from being compelled in a court of law to testify to statements made to him therein. The decision was made by De Witt Clinton, presiding in the Mayor's Court of New Y'ork City on the trial of one Phillips for theft, and the priest, whose protest was there considered, was the revered Father Anthony Kohlmann mentioned above. The decision is more remarkable because it w;is contrary to the principles of the English cases, and the opposite view had the support of respectable authorities.
Although no form of religion is considered by the State of New Y'ork as having rights superior to any other, yet the fact of the existence of the Chris- tian religion as the predominating faith of the peo- ple has been uniformly recognized by the courts, constitutional conventions, and legislatures. As early as ISll, Chancellor Kent, writing the opinion of the Court in the case of People vs. Ruggles (8 Johnson 294), made the celebrated dictum: "We are a Christian people and the morality of the country is deeply ingrafted upon Christianity." This famous case arose on the conviction of the defendant for blas- phemy in maliciously reviling Jesus Christ in a public place. In the absence of a specific statute the question was presented whether such an act was in New York a crime at common law. The Court held that it was, because to vilify the Author of Christianity under the circumstances presented was a gross violation of de- cency and good order, and blasphemy was an abuse of the right of religious liberty. The court further held that, though the Constitution discarded religious establishments, it did not forbid judicial cognizance of those offences against religion and morality which have no reference to any such establishment or to any particular form of government, but are punishable be- cause they strike at the root of moral obligation and weaken social ties; that the Constitution never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation, from all consideration and notice of the law; and that the framers intended only to banish test oaths, disabilities and the burdens, and sometimes the oppressions, of Church establishments, and to secure the people of the State freedom from coercion and an equality of right on the subject of religion.
This decision of the Supreme Court that, although Christianity is not the religion of the State, considered asapolitical corporation, it is nevertheless closely inter- woven into the texture of society and is intimately con- nected with all the .social haliits, customs, and modes of life of the people, gave offence in cert.ain quarters. In view of this Ruggles case, an amendment was i)ro- posed in the Constitutional Convention of 1821 to the effect that the judiciary should not declare any partic- ular religion to be the law of the land. It was rejected after a full debate in which its opponents, whOe differing
in details, agreed "that the Christian religion was en-
grafted upon the law and entitled to protection as the
bivsis of morals and the strengi h of (lovernment." In
1861 a similar question was presented for decision in
the well-known case of Lindcnmuller vs. People (33
Harbour Rejiorts .")4S). The plaintiff sought from the
court an injunction to restrain Ihc police of New Y'ork
City from interfering with theatrical performances on
Sunday. The opinion of the Supreme Court wiis
written by Justice William F. Allen, a most distin-
guished jurist, and was afterwards (1877) adojjtcd by
the Court of Appeals as the decision of the highest
court. It contains an admirable and exhaustive study
of the Sunday laws. It takes the claim of the plain-
tiff, stated broadly, to be that "the Bible, and religion
with all its ordinances, including the Sabbath, are as
effectually abolished by the Constitution as they were
in France during the Revolution, and so effectually
abolished that duties may not be enforced as duties to
the J^tate because they have been heretofore asso-
ciated with acts of religious worship or connected with
religious duties." It then proceeds: "It would be
strange that a people. Christian in doctrine and wor-
ship, many of whom or whose forefathers had sought
these shores for the privilege of worshipping God in
simplicity and purity of faith, and who regarded re-
ligion as the basis of their civil liberty and the founda-
tion of their rights, should, in their zeal to secure to all
the freedom of conscience which they valued so highly,
solemnly repudiate and put beyond the pale of the law
the religion which was as dear to them as life and de-
throne the God, who, they openly and avowedly pro-
fess to beUeve, had been their protector and guide as a
people." The Court announced the broad decision
that every act done, maliciously tending to bring re-
ligion into contempt, may be punished at common
law, and the Christian Sabbath, as one of the institu-
tions of religion, may be protected from desecration
by such laws as the Legislature in their wisdom may
deem necessary to secure to the community the privi-
lege of an undisturbed worship, and to the day itself
that outward respect and observance which may be
deemed essential to the peace and good order of so-
ciety, and to preserve religion and its ordinances from
open revihng and contempt. I( further held that this
must be considered, not as a duty to God, but as a
duty to society and to the State. This decision firmly
established the proposition that, as a civil and politi-
cal institution, the establishment and regulation of a
Sabbath are within the just powers of civil govern-
ment. It remains the law of the State confirmed by
many decisions up to this time.
Many interesting questions have arisen from time to time in the courts as to how far the English doc- trines as to "superstitious uses", mortmain, and charities, especially in relation to the ownership of lands by religious corporations and charitable corpo- rations and as to their capacity to take charitable be- quests and devises, remained the law of tin ■ State imder the Constitution. As to superstitious uses, it has been expressly held that that English post-Reformation doctrine has no place in this State; that those profess- ing the Roman Catholic Faith are entitled in law to the same respect and protection in their religious ob- servances as those of any other denomination, and that these observances cannot be condenmed as super- stitious by any court as matter by law. The right to make provision for Ma.s.ses for the dead by contracts made inter vivos was expressly proclaimed by the Court of Appeals. Direct beciuests for Masses are in law "charities" and to be considered as such. As to these charities generally, the Court of Appeals in 1888 settled finally after much discussion that the Engli.sh ddctrini' of trusts for charitable uses, with all its retinemeuts, was not the law in New York; that the settled policy of the States was clear, and consisted in the creation of a system of jjublic charities to be ad-
