Article August 1, 1914 Issue

Christian Science from the Legal Standpoint

JUDGE CLIFFORD P. SMITH

In order to approach the subject of Christian Science and legislation intelligently, it is necessary to remember that the American people are a religious people, and that the prevailing religion in the United States is Christian. It is also necessary to know that these historical facts are judicially known and acted on by the courts, and they are presumed to be, and should be, recognized and given effect by the legislatures, and thus enter into and give character to our laws. In short, the Christian religion is, in a sense, a part of our common law, and it should pervade our statute laws. (Cooley, Constitutional Limitations (7th ed.), pp. 696, 670; Bishop, New Criminal Law, Vol. 1, Sects. 495-497; Tiedeman, State and Federal Control of Persons and Property, Sects. 63, 65.) "While the state is no longer empowered to compel people by prohibition and punishment to be religious, it should recognize that in the performance of its function of preserving the peace and security of society, it owes to religion, and to the institutions of religion, an obligation of which it should ever be mindful and considerate." (James H. Webb, Two Centuries' Growth of American Law, p. 336.) For, as Mr. Bishop observes, "upon religion, morals, and education, society and the state itself rest." (New Criminal Law, Vol. 1, Sect. 495.)

Just how much these considerations are heeded in the legislatures cannot be determined; for a legislature is not required, like an appellate court, to record the reasons for its acts. Many cases could be cited in which the courts have recognized these facts and given practical effect to them. One of the leading cases will suffice by way of illustration. In Holy Trinity Church v. United States (143 U. S. 457), the court, construing a statute prohibiting the importation of aliens under contract to perform labor, said:-

"But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour there is a single voice making this affirmation.

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