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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,
- That all men are born equally free and independent, and have
certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of
<<223>>acquiring, possessing, and protecting property and
reputation, and of pursuing their own happiness.
- That all power is inherent in the people; and all free
governments are founded on their authority, and instituted for their
peace, safety, and happiness. For the advancement of those ends,
they have at all times, an unalienable and indefeasible right to
alter, reform, or abolish their government, in such manner as they
may think proper.
- That all men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own consciences;
that no man can, of right, be compelled to attend, erect, or support
any place of worship, or to maintain any ministry, against his
consent; and that no human authority can, in any case whatever,
control or interfere with the rights of conscience; and that no
preference shall be given by law, to any religious establishments or
modes of worship.
- That no person who acknowledges the being of a God, and of a
future state of rewards and punishments, shall on account of his
religious sentiments be disqualified to hold any office or place of
trust or profit under this commonwealth.”
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.*
(To be continued.)
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