that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contribution to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though these indeed are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he, being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough, for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against PEACE and good order; and, finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interpretation disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

II. Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on ac

count of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall nowise diminish, enlarge, or affect their civil capacities.

III. And, though we well know that this assembly, elected by the people for the ordinary purposes of legislation only; have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operations, such act will be an infringement of natural rights.

12 Hening's Statutes at Large, pp. 84-86.

TEXT OF SO MUCH OF CHIEF JUSTICE WAITE'S OPINION IN REYNOLDS vs. UNITED STATES, 98 SUPREME COURT U. S. REPORTS, AS DISCUSSES ART. I. OF ADDITIONS AND AMENDMENTS TO THE CONSTITUTION, WHICH ARTICLE DECLARES THAT "CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF, OR ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS."

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of LatterDay Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church, "that it was the duty of male members of said church, circumstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circum

stances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriages; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church."

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he "was married as charged if he was married -in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be not guilty." This request was refused, and the court did charge that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right under an inspiration, if you please, that it was rightdeliberately married a second time, having a first wife living, the want of consciousness of evil intent― the want of understanding on his part that he was committing a crime - did not excuse him; but the law inexorably in such cases implies the criminal intent.”

Upon this charge, and refusal to charge, the question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as Congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition.

We

The word "religion" is not defined in the Constitution. must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the

times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed?

Before the adoption of the Constitution attempts were made in some of the Colonies and States to legislate, not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed against their will for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784 the house of delegates of that State, having under consideration "a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill be published and distributed, and that the people be requested "to signify their opinion respecting "the adoption of such a bill at the next session of assembly."

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. (Semple's Virginia Baptists, Appendix.) At the next session the proposed bill was not only defeated, but another "for establishing religious freedom," draughted by Mr. Jefferson (1 Jeff. Works, 45; 2 Howison's Hist. of Va., 298), passed. In the preamble of this act (12 Hening's Stat., 84) religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared that it is time enough, for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the Church and what to the State.

In a little more than a year after the passage of this statute,

the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being absent as minister to France. As soon as he saw the draught of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations (1 Jeff. Works, 79). Five of the States, while adopting the Constitution, proposed amendments. Three, New Hampshire, New York, and Virginia, included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the Convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly at the first session of the first Congress the amendment now under consideration was proposed, with others, by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 Jeff. Works, 113), took occasion to say, "Believing with you, that religion is a matter which lies solely between a man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.