|Vol. VI, No. 5
Ab 5608, August 1848
Religious and political equality have been the day-dreams of the philanthropist for many centuries; and it was ardently hoped that this country was the place where man could meet man upon a uniform level, without one having a privilege which is denied to the other, and without his having to yield to the arbitrary will of others any prerogative which in not requisite for the moral and bodily protection of his fellow-countrymen. But, alas! the dream was but a dream, and though no one will say, that there are many disqualifications, no one on the other hand can deny that there are some; and if the views of several judges, which have lately been promulgated, are to prevail, there is no telling where the thing may end. We will not make a long preface, nor exhaust our strength in idle declamation; but come to the subject which we have to discuss, at once. By a decision of the Supreme Court of Pennsylvania, in the case of Specht vs. the Commonwealth, which we give in our present number, it will be seen that the learned judges have given it as their judgment, in the one opinion, that the Sunday is a political institution, legally enacted by the legislature as any other law, and this without reference to religion; and in the second, “that the Pennsylvanians are a Christian people and state, and that over all the length and breadth of this great nation, the Christian Sabbath is recognised and guarded by the law as a day of sacred rest. Our national Congress recognses it. All the State Legislatures recognise it. Every convention of the people for the establishment of State or United States constitutions, recognised and regarded it as a day of sacred rest. All our courts, national or state, so regard it. Willam <<218>>Penn, in the form of government and laws which he brought over to regulate the people of the new colony, so regarded it, and enacted that as such it should be observed, as a day for worshipping the Almighty, in imitation of the primitive disciples.”
The varying opinions of the court, consisting of five judges, C. J. Gibson, and Justices Bell, Rodgers, Coulter, and Burnside, were delivered, the first by Judge Bell, the latter by Judge Coulter, and we are not informed whether any one of the others dissented from the judgment, or whether it was the unanimous opinion of the court that it is truly constitutional to prohibit labour on Sunday under fine and imprisonment in Pennsylvania. Last year it was supposed, that in the absence of Judge Rodgers, who was then in Europe, the court stood equally divided, inferring that Judges Gibson and Bell entertained the negative, and Burnside and Coulter the affirmative. Whether this supposition was correct, and whether Messrs. Gibson and Rodgers have changed their opinion, as also whether Judge Bell has received any new light during the last twelve months, we have no means of ascertaining; but we will take it for granted, that the whole bench was unanimous, and has affirmed that every inhabitant of Pennsylvania shall observe the Lord’s day, commonly called Sunday, by abstaining from all worldly employment or business, works of necessity and charity only excepted; and consequently we have to expect, that in the enforcement of this legalized Sunday keeping, all violators thereof will be fined for every such offence four dollars, or if no goods, in case of refusal to pay, can be found, then they shall be imprisoned six days in the house of correction of the proper county.
It will be observed, that in this manner, it is not Christian baptism or church-going which has been stamped with the seal of public protection, but an equally great thing, the observance of a day of rest, under the term of the Lords’ day, a term unknown to ordinary moral ideas, but solely derived from an arbitrary assumption of the Catholic Church and its successors, and that the executors of the laws of the commonwealth are armed with ample power to confiscate the whole property of a man, if the fines he has incurred amount to that much, or consign him for an indefinite period, if his offences in this respect are numerous, however small, amidst felons and ordinary malefactors. It is declared to be the law of the land by the highest authority known <<219>>in the state, and we are bound to submit to the decision; but it is surely permitted to us to examine into the soundness of the argument which the judges rely upon to establish their singular judgment.
Our readers know well enough that we make no pretensions, not having any, to a knowledge of the secular law. But it is fortunate that common sense can understand the question; and by that will we seek to explain our views, in which labour we are aided by having been furnished, by a legal gentleman, with the laws of Pennsylvania, which contain the ordinances relating to the Sunday. The first to which Judge Coulter refers is the Act of the Colonial Legislature of 1705, and is contained in “the Charters and Acts of Assembly of the Province of Pennsylvania,” vol. 1, p. 19, in the following words:
“An ACT to restrain People from Labour on the First Day of the Week.
“To the End that all People within this Province may with the greater Freedom devote themselves to religious and pious Exercises, BE IT ENACTED by JOHN EVANS, Esq., by the Queen’s Royal Approbation, Lieutenant Governor under WILLIAM PENN, Esq., absolute Proprietary and Governor in Chief of the Province of Pennsylvania and Territories, by and with the Advice and Consent of the Freemen of the said Province, in General Assembly met, and by the authority of the same, That according to the Example of the primitive Christians, and for the Ease of the Creation, every First Day of the Week, commonly called Sunday, all People shall abstain from Toil and Labour, that whether Masters, Parents, Children, Servants; or others, they may the better dispose themselves to read and hear the Holy Scriptures of Truth at Home, and frequent such Meetings of religious Worship abroad as may best suit their respective Persuasions. And that no Tradesman, Artificer, Workman, Labourer, or other Person whatsoever, shall do or exercise any worldly Business or Work of their ordinary Callings, on the First Day or any Part thereof (Works of Necessity or Charity only excepted) upon pain that every Person so offending, shall, for every Offence, forfeit the sum of Twenty Shillings, to the use of the Poor of the Place where the Offence was committed; being thereof convicted before any Justice, either upon his View, Confession of the Party, or Proof of one or more Witnesses. And the said Justice shall give a Warrant under his Hand and Seal, to the next Constable where such <<220>>Offence shall be committed, to levy the said Forfeiture or Penalty by Distress and Sale of the Offender’s Goods and Chattels, rendering to the said Offender the Overplus of the money raised thereby.”
(Exceptions are made in favour of preparing food in families, cookshops, and eating-houses; watermen landing their passengers, butchers killing and selling their meat, and fishermen selling fish on Sunday morning in June, July and August; and of milk sellers crying their commodity before nine in the morning and five in the afternoon; and the Act then continues:)
“PROVIDED ALSO, That no Person shall be impeached, presented or molested for any Offence before mentioned in this Act, unless he or they be prosecuted for the same within ten days after the Offence committed.”
(The remainder of the Bill prohibits the serving or execution of any legal writ, except in cases of Treason, Felony or Breach of the Peace, and renders all such serving of writs void, and holds the parties serving it liable to damages to the party aggrieved, as though they had done it without warrant of law.—It next prohibits tippling in taverns on the first day, and prescribes punishment to the tipplers and the keepers of public houses who permit the offences on their premises; and the act finally provides that all keepers of public houses may provide victuals and drink in moderation, and for refreshment to any travellers, inmates, or lodgers, on the first day of the week; the magistrate before whom complaint is made, to be the judge of the necessity of the occasion for refreshment, as also the moderation.)—
Such is the Act of 1705, or the fourth of Queen Anne, which is the foundation of all observance of the first day of the week by law in Pennsylvania; we do not say that it was not observed before; since this would not be true; but it is the first law as far as known to us, to which appeal can be made to punish the infraction of the day under the laws of Pennsylvania.—The second Act, contained in the same collection, Vol. II. p. 31, relating to Sunday, is a portion of one “for amending the laws of this Province against killing Deer out of Season,” passed January 27th, 1749-50, (13 George II.) “AND BE IT FURTHER ENACTED by the Authority aforesaid, That if any Person or Persons shall hunt or kill any Kind of Game on the Sabbath-day, <<221>>and shall be convicted thereof in Manner last aforesaid, every such Offender shall forfeit the Sum of Forty Shillings for every such Offence.”
Our readers will easily distinguish the difference in the wording of the two acts passed after an interval of forty-four years from each other; the first styling the statuary rest “The First Day of the Week, commonly called Sunday;” the other calling it at once “the Sabbath-Day;” thus fixing by law what Day is the Sabbath, in contradistinction to all the other six days of the week. It must not be forgotten that though there was days of worship permitted under the colonial laws, it was not such a one as we would term liberty at the present day, if the subjoined Act of 4 Queen Anne, which appears not to have been repealed as late as 1762, when the above mentioned collection of laws, &c., was printed, is taken as an evidence.
“ALMIGHTY GOD being the only LORD of Conscience, Author of all Divine Knowledge, Faith and Worship, who can only enlighten the Mind and convince the Understanding of People, and in due Reverence to his Sovereignty over the Souls of Mankind, and the better to unite the Queen’s Christian Subjects in Interest arid Affection, be it hereby enacted,” &c. “That no Person now or at any Time hereafter, dwelling or residing within this Province, who shall profess Faith in God the Father, and in Jesus Christ His only Son, and in the Holy Spirit, one God blessed for evermore, and shall acknowledge the Holy Scriptures of the Old and New Testament to be given by divine Inspiration, and when lawfully required, shall profess and declare that they will live peaceably under the civil Government, shall not in any case be molested or prejudiced for his or her conscientious Persuasion, nor shall he or she be at any time compelled to frequent or maintain any religious Worship-Place or Ministry whatsoever, contrary to his or her Mind, but shall freely and fully enjoy his or her Christian Liberty in all Respects, without Molestation or Interruption.”
It needs not our interpretation to tell our readers that under such an act no Jew had any authority to worship according to his conscientious conviction, as he had no Christian Liberty to uphold him. How this fact, proven by the records, tallies with the boasted perfect equality and universal standard of toleration said to have been established by William Penn in his State, we do not <<222>>well understand, and we must say, that we were greatly surprised, and a little mortified likewise, to find that we had been deceived, by the bold assertions so often put forth, that the laws of the Province had uniformly favoured religious freedom; and we are utterly unable to reconcile the above act passed in Mr. Penn’s lifetime with his declaration that “all persons living in this Province, who confess and acknowledge the One Almighty and Eternal God to be the Creator, Upholder and Ruler of the world, and that hold themselves obliged in conscience to live peaceably and justly in civil society, shall in nowise be molested or prejudiced for their religious persuasion or practice, in matters of faith and worship; nor shall they be compelled at any time to frequent or maintain any religious worship-place or ministry whatsoever.”
Can it be possible that Mr. Penn discovered between 1681 and 1705 that he had gone too far in his liberality? that by any possibility a stray Jew or so had claimed perfect equality, which the clergy and others interested in the maintenance of sectarian religion, had found it inconvenient to permit to exist? We neither affirm nor deny, but leave it to those of our readers who are far more familiar with the subject than we can pretend to be, to set us right if we are wrong, and we would be obliged to those deeply versed in the original history of Pennsylvania, to let us know how far the concessions of Mr. Penn really went in the establishment of that universal freedom which to have spread is the boast of his life among his followers. No question, however, can be, that when the colony of Penn ceased to be governed under the royal charter, by the Declaration of Independence, the people meant really and truly to abolish all legal disqualifications on the score of religion, and to do away by a solemn act, the constitution and the declaration of rights, all distinction between man and man, and to protect all persuasions alike under the shield of religious and political Liberty and Equality.
The constitution of Pennsylvania, adopted on the 2d day of September, 1790, contains as its ninth Article in part as follows: “That the general, great and essential principles of liberty, and of free government may be recognised and unalterably established, WE DECLARE,
After enumerating the other privileges of freemen, the article, winds up as follows: “To guard against transgressing of the high powers which we have delegated, WE DECLARE, That every thing in this Article is excepted out of the general power of government, and shall for ever remain inviolate.”
If these declarations mean anything at all, they surely say this and nothing else, that no preference shall be given to any class of citizens of the commonwealth over the others, because of their respective religious professions, nor shall the religion of any particular portion have any greater protection by the laws than that of any other. Let it be considered that they were given after the flush of victory in a long and dubious war, which probed the temper of the inhabitants, which proved the ardour of many for liberty, but also that many of the wealthy citizens and the endowed clergy were steadfast adherents to the King of Great Britain, since they followed the English army into exile sooner than remain in the newly-born republic. Nay more had been established during the war of Independence, namely, that men, natives of all civilized countries, men of all creeds, not omitting ours, had taken up arms in the cause of Independence, and fought <<224>>under the victorious banners of Washington and Greene; and the blood of many* of our people, few as we were then in the country, flowed on the battle-field; and hence all had purchased the right of being equal and free, since they had uniformly contributed their all in the service of their country.
When, therefore, the delegates from the various States assembled in Congress to make a constitution for the Union, religious equality was at once established as the fundamental law of the land, and Congress was prohibited from creating any test as regards religion, to qualify any one for any office within the gift of the President or the people of the United States as such; and Pennsylvania, in establishing the Constitution of 1790, only followed out the beautiful example and the spirit already breathed abroad by the champions of liberty, such as Washington, Jefferson, Patrick Henry, Madison, Franklin, and others, and thus was decreed, that all professions of religion, whether those of many or of few, should be put on a perfect equal level, and no concession should be made to one which would have to be denied to the other. And if the minority then cannot claim any protection against the inroads of the majority, and we all know that the few have naturally to dread the many, it must follow that the vast masses of professing Christians have no right to claim an especial protection for the peculiar practices of their religion against those who dissent from them.
In the Constitution, both of Pennsylvania and the Union, as adopted, there is no mention of the word toleration; it was not said, that the majority, the Trinitarian Christians, will permit the minority, the Jews and Unitarians, to live in America, and to erect churches and Synagogues under certain restrictions and conditions; but it was said, “that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience,” &c. Does this say that Christianity is the law of the land? That its Sabbath, its Sunday, its first day of the week, its Lord’s day, are a part and parcel of the common law to over-ride the plainest dictates of the true and <<225>>fundamental law of the State and Union? It has been wittily said “that words were invented to hide our thoughts;” most men believe the contrary. But if the Constitution of Pennsylvania declares Sunday-keeping, trinitarian Christianity, to be the foundation of the social compact, then for one we do not profess to know the meaning of words, and we shall then have to resort to the Supreme Court, not alone to expound to us what is the law of the land, but to teach us the meaning of ordinary words. For we hold it as self-evident, that no matter how learned a man may be, and we do not impugn the superior knowledge and learning of their honours who compose the highest court in this State, it is not requisite to resort to them or their tribunal to be told the definition of names—of natural objects, nor of the simple elements of arithmetic; and if an ox bean ox and not a mule, and if twice four be eight and not nine, there are, in the words of the Declaration of Right, no earthly supports for the opinion that Christianity is the law of the land. Is it the only religion which believes in the existence of a God and rewards and punishments? Was it the first which announced these pillars of society and built upon them a State governed by laws and laws only? Is it so harmonious in its views of the being of God, that it can claim any prerogative about its own tenets in opposition to the other followers of the Bible? Does the Constitution exclude Mahomedans from rights in the State? If so, we do not understand plain, simple words, and we yield to the superior wisdom which discovers a negative in an affirmative, and renders yes into no, or no into yes, not according to the sense of the writer, but according to the arbitrary will of the interpreter. And it is against this assumption that we, as a defender of Jewish ideas, which we deem compatible and identical with the laws of social order and happiness, most earnestly protest.*