DECEMBER 1853

[CHRISTIANITY NOT PART OF COMMON LAW IN OHIO]
SUPREME COURT OF OHIO

DECEMBER TERM, 1853

Hiram Bloom v. Cornelius Richards

THURMAN, justice . . . . The English common law, so far as it is
reasonable in itself, suitable to the condition and business of our
people, and consistent with the letter and spirit of our Federal and
State Constitutions and statutes, has been and is followed by our
courts, and may be said to constitute a part of the common law of
Ohio. But wherever it has been found wanting in either of these
requisites, our courts have not hesitated to modify it to suit our
circumstances, or, if necessary, to wholly depart from it. Lessee of
Lindsley v. Coates.(1) 1 Ohio, 243; Ohio Code, 116.

Christianity, then, being a part of the common law of England , there
was some, though insufficient, foundation for the saying of Chief
Justice Best, above quoted.(2) But the Constitution of Ohio having
declared "that all men have a natural and indefeasible right to
worship Almighty God according to the dictates of conscience; that no
human authority can, in any case whatever, control or interfere with
the rights of conscience; that no An-shall be compelled to attend,
erect, or support any place of worship, or to maintain any ministry,
against his consent; and that no preference shall ever be given, by
law, to any religious society or mode of worship, and no religious
test shall be required as a qualification to any office of trust or
profit," it follows that neither Christianity, nor any other system of
religion, is a part of the law of this State. We sometimes hear it
said that all religions are tolerated in Ohio; but the expression is
not strictly accurate.(3) Much less accurate is it to say that one
religion is a part of our law and all others only tolerated. It is not
mere toleration that every individual has here in his belief or
disbelief. He reposes not upon the leniency of the government, or the
liberality of any class or sect of men, but upon his natural,
indefeasible rights of conscience, which, in the language of the
Constitution, are beyond the control or interference of any human
authority. We have no union of church. and state, nor has our
government ever been vested with authority to enforce any religious
observance, simply because it is religious.

Of course, it is no objection, but on the contrary, is a high
recommendation, to a legislative enactment, based upon justice or
public policy, that it is found to coincide with the precepts of a
pure religion; but the fact is nevertheless true, that the power to
make the law rests in the legislative control over things temporal,
and not over things spiritual. Thus the statute upon which the
defendant relies, prohibiting common labor on the Sabbath, could not
stand for a moment as a law of this State, if its sole foundation was
the Christian duty of keeping that day holy, and its sole motive to
enforce the observance of that duty. For no power over things merely
spiritual has ever been delegated to the government; while any
preference of one religion over another, as the statute would give
upon the above hypothesis, is directly prohibited by the Constitution.
"But to allow men to make bargains on the Sabbath is to let them
desecrate that holy day, and it should not be granted that the
legislature would suffer that." This is the language of the modern
English cases, and perhaps it is consistently used in a country where
Christianity is a part of the law, and in which there is an
established church, and an omnipotent Parliament. But the General
Assembly of Ohio is not, as we have shown, a guardian of the sanctity
of any day. If it may protect the first day of the week from
desecration because it is the Christian Sabbath, it may, in like
manner, protect the sixth day because it is the holy day of the
Mahometan, and the seventh day because it is the Sabbath of the Jew
and the Seventh Day Baptist. Nay, more, it may protect the various
festival days which, by some of the churches, are considered scarcely
less sacred than the Sabbath day.

(1) In this decision, the court said: "It has been repeatedly
determined by the courts of this State that they will adopt the
principles of the common law as the rules of decision, so far only as
those principles are adapted to our circumstances, state of society,
and form of government."

(2) In Hiram Bloonz 7~. Cornelius Richards (XC p. 565), Judge
Thurman declared: "I am aware that in Smith v. Sparrow, 12 English
Common Law Reports, 254, Chief Justice Best said `that he should have
considered that if two parties act so indecently as to carry on their
business on a Sunday, if there had been no statute on the subject, neither
could recover.' But this was a mere dictum, the unsoundness of which
is rendered apparent by a multitude of authorities. The Chief Justice
cited no case in its support, and I have been unable to discover a
single one sufficient to uphold it. Very rarely has it been pretended, even
in
argument, that a contract, entered into on a Sunday, is, for that
reason, void at the common law; and those who have so pretended,
placed their chief, if not sole, reliance upon the saying of Lord
Coke, that `the Christian religion is part of the common law;' and upon
what
appears in 2 Coke's Institutes, 220, where, after citing a Saxon law
of King Ethelstan, in these words, `Die autem daminico nemo mercaturam
fnc,ito; id quod si quis egeril, et ipsa merce, et trigintu prcterea
solidis mulctator,' he adds: `Here note by the way, that no
merchandizing should be on the Lord's day.' But, after considering
these very observations, Lord Mansfield, in Drury v. Defontaine, 1
Tauton's Reports, 135, said that "it does not appear that the common
law ever considered those contracts as void which were made on
Sunday.' And, accordingly, he gave a judgment for the price of a horse
sold on that day. That he was right, is apparent from numerous cases,
among which are Comyns U. Boyer, Coke's Reports (Elizabeth), 485; Rex
v. Brotherton, 1 [2]
Strange's Reports, 702; the King v. Whitnash, 7 Barnewall and
Cresswell's Reports, 596; same case, 14 English Common Law Reports,
100; and Bloxsome 11. Williams, 3 Barnewall and Cresswell's Reports,
232; same case, 10 English Common Law Reports, 60. Indeed, so uniform
are the authorities, that Redfield, Justice, in Adams v. Gay, 19
Vermont, 365, said, in effect, that no case could be found holding a
contract to be void at common law because executed on a
Sunday. This remark, if not literally true, is so nearly so that
perhaps the only case that seems opposed to it is Morgan 71. Richards,
decided in one of the inferior courts of Pennsylvania." Bloom u.
Richards, 2 Ohio State, 389. [This particular footnote is found in the
4th edition of American State papers only, p 699]

(3) On this point a Senate Committee report says: "What other nations
call religious toleration, we call religious rights. They are not
exercised by virtue of governmental indulgence, but as rights, of
which government cannot deprive any portion of citizens, however
small. Despotic power may invade those rights, but justice still
confirms them." [U.S. Senate Report on Sunday Mails, Communicated to
the U.S. Senate, January 19, 1829]
(SOURCE OF INFORMATION: Excerpt from Hiram Bloom v. Cornelius
Richards, Supreme Court of Ohio, December Term, 1853. American State
Papers on Freedom in Religion. 3rd Revised Edition. Published in 1943
for The Religious Liberty Association, Washington, D.C. by the Review
and Herald. First Edition Compiled by William Addison Blakely, of the
Chicago Bar. (1890) under the Title American State Papers Bearing on
Sunday Legislation. pp 296-298)