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.20Daggett also rejected the appellant s claim that the exclusion of a Univer-salist witness violated the guarantees of religious freedom and nonpreferencecontained in the state s new Declaration of Rights.Those provisions had notaffected the common-law rule for witnesses, Daggett insisted. How does hisexclusion affect his belief, profession or mode of worship? Rather, the witnesshad merely been denied the privilege of testifying in a court of law.But Daggettalso argued that the oath requirement did not violate the constitution because Christianity is a part of the common law of the land.Our ancestors broughtit with them to this state, and there is no statute abrogating it. Although heacknowledged that the constitution no longer prescribed any rules of faith norfunded worship, it still recognized  the great doctrines of Christianity and pre-served  them from open assaults of their enemies. Pointing to statutes pun-ishing blasphemy, profane swearing, and Sabbath violations, Daggett declared, These provisions do not look like [the] annulling [of] Christianity. 21 One jus-tice dissented from Daggett s opinion on the ground that the witness ruleshould be more liberally construed.While not refuting Daggett s Christian-nation rhetoric, Justice John T.Peters speculated whether a strict rule wasrepugnant to the constitution:  If the legislature cannot disfranchize a citizen,on account of his religious sentiments, a fortiori a court of justice cannot dothe same.22These early cases reaffirmed the close connection between the oath require-ment and the maxim and the interrelationship of both with republican govern-ment.The religious oath not only guaranteed the trustworthiness of oraltestimony and the efficiency of court proceedings; with its appeal to God, theoath legitimized the court system, sanctified the legal process, and reaffirmedthe underlying religious basis for the law.As Presbyterian minister D.X.JunkinL EGAL C HRISTIANITY A PPLIED 181wrote in an 1845 defense of the traditional rule, The Oath: A Divine Ordinance,the oath was  an ordinance from God, without which  truth, justice, order,peace, [and] prosperity would all perish.Because America was a  Protestantnation, Junkin insisted, it was only  just that the laws of a country should beadapted to the [ faith of the] majority. For Junkin, the oath was a symbol of theproper relationship between Christianity and government. The social consti-tution is a divine ordinance, Junkin declared. [T]he principles of sound Chris-tian morals are the only true principles of freedom.A government attemptedunder a republican form, in the absence of sound moral principles and of moralsanctions could not secure the ends of government. 23 But Junkin was notinterested solely in preserving the sanctity of the oath and the legitimacy of thelegal system.He was also responding to the ongoing criticism of the evangeli-cal phalanx s efforts to Christianize America through reform societies, moralsuasion, and legal enforcement:The strong and just repugnance, which our people cherish, againstany union of church and state, has in some instances degeneratedinto a morbid jealousy, and has denied to the church the exercise offunctions that rightly belong to her.The popular sentiment discour-ages any mingling of religion and politics, and hence had arisen aprejudice against the discussion, in the pulpit, even of religioustopics, if they relate to civil duties and the welfare of humangovernment.24Contesting the Jeffersonian view of separation, Junkin argued that critics hadforgotten  that the church and state, like sister planets, revolve, each in herappropriate sphere, around the same glorious sun of divine truth, that theirlight and authority are derived from a common source. This shared source ofauthority meant that religion and government could never be fully separatednor relinquish their obligations to support and promote each other.That Junkinfelt compelled to write his defense meant that his vision of church and statewas still under attack, a fact he readily acknowledged.For Junkin and othersupporters of the traditional rule, the oath requirement stood as a barrier tofurther disestablishment.25Judges generally upheld the religious prerequisite for oath taking through-out the antebellum period, with a slight modification coming later through alessening of the requirement that declarants assert a belief in future accounta-bility.Beginning in the 1820s, courts began to revise the rule to allow declar-ants to be sworn if they could assert belief in God and in punishment in thisworld or the next for lying.26 For the time being, however, this minor adjust-ment did little to change the religious presumptions underlying the law.Most182 L EGAL DISESTABLISHMENTjurists during the first half of the nineteenth century would have agreed withJustice Story that  [t]he administration of an oath supposes, that a moral andreligious accountability is felt to a Supreme Being, and is the sanction whichthe law requires upon the conscience of a person, before it admits him to tes-tify. Even absent such explicit connections, the religious oath requirementreinforced the law s fundamental reliance upon Christianity and indicated toall observers the interrelationship of the two institutions.27Sunday LawsA final area of the law where the maxim was applied in a significant mannerwas Sabbath enforcement.Sunday or Sabbath laws, sometimes called  bluelaws from the original color of the paper on which they were printed, stand assome of the oldest, most widespread, and most enduring examples of the legalrecognition and enforcement of a religious tenet.Probably more than any otherform of religious legislation, Sabbath laws have reflected the close relationshipbetween American culture and its Christian heritage.Sabbath laws were among the first regulations enforced in the BritishAmerican colonies and were unmistakable in their religious purpose.NewHaven s 1656 blue law prohibited the profaning of the  Lord s Day  by sinfulservile work, or by unlawful sport, recreation, or otherwise, whether wilfully orin a careless neglect. Violators could be punished by fine, by imprisonment, orcorporally  according to the nature, and measure of the sinn, and the offense,and could suffer death for serious breaches.The Puritan colonies of Connecti-cut, Plymouth, Massachusetts Bay, and New Hampshire all enacted similarmeasures.Lest there was any misunderstanding as to the religious purpose ofsuch laws, early statutes like Plymouth s 1671 act provided that Sabbath breacheswere  Presumptuously and with high hand committed, against the knownCommand and Authority of the blessed God. 28Colonies outside of Puritan New England also enacted laws prohibitinglabor, travel, and amusements on Sundays.The most influential Sunday law inthe American colonies came not from the Puritans but from the pseudo-Cath-olic king Charles II [ Pobierz całość w formacie PDF ]