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(Continued from Issue #5)
Whether or not there was any law punishing labour
on Sunday between the Acts of 1705 and 1794, other than those of 1705
and ‘49, ‘50, we have no means at present to ascertain. We rather think
that there was none. But it matters not; as doubtless if violations of
the sanctity of the Sunday had occurred, the judges would have found the
old laws sufficient for their purpose to punish the offenders with fine
and imprisonment to the extent required. In ‘94, however, and so soon
after the adoption of the Constitution as a period less than four years,
the former acts were condensed as clauses in “An Act for the prevention
of vice and immorality, and of unlawful gaming, and to restrain
disorderly sport and dissipation.” It was not, as in 1705, that an open
attempt was made to fasten Sunday-keeping, as such, on the people; but
under cover of preventing vice and immorality. We are not enough
acquainted with legal lore to understand the value of bringing several
diverging laws into one statute, and passing on acts dissimilar in
themselves by clauses of one act, instead of various separate acts.
Still in the present instance it was a cunning and no doubt premeditated
thing to stamp labouring on Sunday with the name of an act of vice and
immorality, since the concocters of this scheme of tyranny must have
felt that on religious grounds they could not expect to obtain
legislative, or at least judicial sanction for their violation of the
plain and evident meaning of the Constitution of the commonwealth. But
before we discuss the matter farther, let us recite the law:—
“Whereas the Act of Assembly entitled ‘An Act for
the prevention of vice and immorality, and of unlawful gaming, and to
restrain dis<<266>>orderly sports and dissipation,’ passed the twenty-fifth of
September, one thousand seven hundred and eighty-six, will soon expire
by its limitation, and as it is proper and requisite to continue or
supply the same with certain additional alterations and amendments, the
better to secure the execution thereof: Therefore “Sect. 1.—Be it enacted by the Senate and
House of Representatives of the Commonwealth of Pennsylvania, in General
Assembly met, and it is hereby enacted by the authority of the same,
That from and after the first day of August next, if any person shall do
or perform any worldly employment or business whatsoever on the Lord’s
day, commonly called Sunday, works of necessity and charity only
excepted, or shall use or practise any unlawful game, hunting, shooting,
sport or diversion whatsoever, on the same day, and be convicted
thereof, every such person so offending shall for every such offence
forfeit and pay four dollars, to be levied by distress; or in case he or
she shall refuse or neglect to pay the said sum, or goods and chattels
cannot be found whereof to levy the same by distress, he or she shall
suffer imprisonment in the house of correction of the proper county:
Provided always, That nothing herein contained shall be construed to
prohibit the dressing of victuals in private families, bake-houses,
lodging-houses, inns, and other houses of entertainment, for the use of
sojourners, travellers, or strangers, or to hinder watermen from landing
their passengers, or ferrymen from carrying over water travellers or
persons removing with their families on the Lord’s day, commonly called
Sunday, nor the delivery of milk or the necessaries of life before nine
of the clock of the forenoon, nor after five of the clock in the
afternoon of the same day.”
The second section defines and punishes profane
swearing. The third relates to drunkenness. The fourth then enacts:
“That the Justices of the Supreme Court severally
throughout this State, every President of the Courts of Common Pleas
within this district, every Associate Judge of the Courts of Common
Pleas, and every Justice of the Peace within his county, the Mayor and
Aldermen of the City of Philadelphia, and each of them, within the limit
of said city, and each Burgess of a town corporate within his borough,
are hereby empowered, authorized and required to proceed against and
punish all persons offending against this act, and every person who
shall profane the Lord’s day, or who shall profanely curse or swear, or
who shall intoxicate him or herself, as mentioned in the next preceding
section of this act; and for that purpose each of the said justices or
<<267>>magistrates severally may and shall convict such offenders, upon his own
view or hearing, or shall issue, if need be, a warrant, summons, or
capias, (according to the circumstances of the case,) to bring the
body of the person accused as aforesaid before him; and the same
justices and magistrates respectively shall, in a summary way, inquire
into the truth of the accusation, and upon the testimony of one or more
credible witnesses, or the confession of the party, shall convict the
person who shall be guilty as aforesaid, and thereupon shall proceed to
pronounce the forfeiture incurred by the person so convicted, as
hereinbefore directed; and if the person so convicted refuse or neglect
to satisfy such forfeiture immediately, with costs, or produce goods and
chattels whereon to levy the said forfeiture, together with costs, then
the said justices or rnagistrates shall commit the offender without bail
or main. prise to the house of correction of the county wherein the
offence shall be committed, during such time as hereinbefore directed,*
there to be fed upon bread and water only, and to be kept at hard
labour; and if such commitment shall be in any county wherein no
distinct house of correction hath been erected, then the offender shall
be committed to the common gaol of the said county, to be therein fed
and kept at hard labour as aforesaid.” [We omit the form of commitment.]
“Provided always, That every such prosecution be commenced within
seventy-two hours after the offence shall be committed.”
The remaining clauses relate to gaming, duelling,
and the limitation of the number of taverns and public houses, and have
consequently no bearing upon the question before us. The permission, by
the by, to sell necessaries of life in Philadelphia City, Southwark and
the Northern Liberties, appears to have been subsequently repealed on
March 25th, 1805, so that this boon to the labourer to supply himself
with cheap and fresh food after receiving his pay has also been
abridged, no doubt under the pretence of restraining vice and
immorality. When we heard some time ago so much said about the Sunday
law, and up to the time that the Judges of the Supreme Court had given
their decision, we were under the impression that it was a separate act,
stating how Sunday was to be kept, what acts should be considered
unlawful, that notes of hand or other instruments of writing executed on
that day should be null and void; and, in short, we thought
<<268>>on that
point as many others think on subjects of which they have little or no
knowledge, and of course our whole conception of the question was
totally erroneous. It is not, as our readers will see, a specific law
enforcing and sanctioning a day of civil rest, but a clause in an act
restraining low vices and petty crimes which disgrace human nature; and
it is in connexion with these that the profanation of the Lord’s day,
so called, is punished as an analogous vice.
Judge Bell says that the law is merely a legal or
civil enforcement of a weekly day of rest, as it is absolutely
necessary, as all agree, to the well-being of society. But does he not
see that, with all his ingenuity to do away with the evident meaning of
the words “profane the Lord’s day,” the authors of the law, or at least
those who prompted them, actually did mean to enforce, and succeeded in
so enforcing their peculiar religious practices upon the community at
large, which otherwise would not adopt them? “It does not,” says he,
“in the slightest degree infringe upon the Sabbath of any sect, or
curtail their freedom of worship. It detracts not one hour from any
period of time they may feel bound to devote to this object, nor does it
add a moment beyond what they may choose to employ. Its sole mission is
to inculcate a temporary weekly cessation from labour, but it adds not
to this requirement any religious (?) obligation.” So says the Judge,
but so says not the law. It declares the labour performed on
Sunday to be a profanation of the Lord’s day. But how this phraseology
is anything else than a preference given to one religious opinion above
all others, which is prohibited by the Constitution of the commonwealth,
is difficult to understand. Let us see what is the definition of the
word profane, as found in Richardson’s Dictionary. “Profane,
adj. Profane, v. Profanely, Profaneness, Profaner,
Prophanate, v. Profanation. Fr. prophaner, profane;
It. profanare; profano; Sp. profaner, profano; Lat.
profanare, profanus. Pro and fanum, a temple, from the
Greek Ναος, by transposition ανος,
and by prefixing the digamma Γαυος. Those (says
Vossius) were called profane who were not initiated in the sacred rites,
but to whom it was allowed only to stand before the temple (pro fano),
not to enter it and take part in the solemnities. Varro gives a
different account, (lib. v. p. 65, Ed. Biponti.) The French usage
is, ‘Lay, temporal, worldly, wicked, unholy, ungodly,
<<269>>unhallowed,
violated; turned from a holy to a common, from a divine to a human,’
(Cotgrave.) And the English verb to profane, to use holy things with
unhallowed hands, to unholy purposes, to pollute, to violate.”
It is evident from this that both from its origin
and uniform use, the word “profane” only refers to holy things employed
in an unholy manner. If, therefore, nothing sacred is attached to an
idea, there cannot be conceived any profanation as connected with it.
But how does the law of 1794 look upon Sunday? As a civil day of rest?
Then it cannot be profaned by any labour performed thereon. The fourth
of July is a national holiday; but let any man plough his field, or row
his boat, or make a table on that day, and we have yet to learn that he
would or could be accused of profaning the fourth of July. The thing is
too absurd to require argument; and still the day is recognised as a
festival by the suspension of Congressional sessions, the adjournment of
courts, the closing of the banks and other public offices, and not
rarely with assembling in churches for worship and thanksgiving. No
legislator has yet thought of punishing its violation with fine and
imprisonment, or rendering those infamous who prefer labour to pleasure
on the national holiday—and why? Because it has nothing sacred in its
conception or manner of observance above any other day in the week, it
having no sanction of religion, to which alone the idea of holiness
can properly apply.
But in respect to Sunday, labour on it is called
profaning it; consequently the authors of the law did mean to attach
to it a religious sanction; they declared it holy by a civil enactment,
and called all those acting in contravention, guilty of vice or
immorality, for it is included among other acts so designated by
universal assent, and which, in their tendency, tend to degrade and
vitiate mankind. But is labour on any day in the year such a vicious or
immoral thing in itself as the law of ‘94 stamps it to be? However
useful it may be to rest one day out of seven, it only becomes a sacred
duty if viewed by the light of religion: reason itself would
think the more time we spend in labour the more we should increase our
comforts, as it is with daily toil, that the longer we are engaged in
it, the greater will be the amount of production. It is folly to assert
that we can produce as much in five as in ten hours; consequently, to
judge from <<270>>analogy, we can produce more in seven than in six days. This
is not arguing against the Sabbatic institution of the Jew, but against
the idea, that from common reasoning it is universally admitted as
necessary to the well-being of society. This it is not; for society
could exist without a Sabbath, however conducive it may be, and is to
the moral welfare of those who labour for their support. No one,
certainly no Jew, will object to the universal admission of the
excellent effect of a Sabbath; for it was his religion which first
taught mankind to labour six days and devote the seventh as one of rest,
in honour of the Lord God. This, however, does not admit that a civil
lawmaker has thereby a right to set apart one day out of seven and to
declare that this shall be holy, and all who do work therein shall be
guilty of an act of profanation, be declared vicious, and immoral, and
be punished with a considerable fine, as much as a man can earn in three
or four days of constant labour, or be imprisoned as a common felon an
entire week, and be fed on bread and water, and held to toil for the use
of the public during all this time. It is easy for a rich lawmaker to
sit down and write four dollars fine, six days’ imprisonment; but let
the doom reach the poor labourer, and it will be found that it is indeed
a hard one, considered both with respect to his means and the abridgment
of his personal freedom. How absurd then is it for Judge Bell to say
that “it adds not to this requirement any religious obligation;” it does
on the contrary add the greatest requirements known to the human mind:
it first calls it holy, and then renders its non-observance infamous n
the public opinion of the people, by classing the profaners
thereof with common swearers, drunkards, gamblers, cock-fighters, and
the like. Is it not doing by implication what it would have been
impossible to do directly?
The Judge among other things says: “To say that one
of the objects of the Legislature was to assert the sanctity of the
particular day selected (i. e. for the civil regulation made for the
government of man, as a member of society, obedience to which may be
properly enforced by penal sanctions), is, to say nothing in proof of
the unconstitutionality of the act, unless in this the religious
conscience of others has been offended and their rights invaded.” This
certainly is a singular view of constitutional rights which are based on
an equality of all the members of the
<<271>>community. This community is
composed of men of various religious opinions; some think the seventh
day sacred, some the first, and some think all days alike. Again, with
respect to the works permitted on the Sabbath, there is a wide
difference between Jews and Christian seven day keepers, and between the
Roman Catholics and the Protestant sects; for whilst the Jews disallow
all labour on their Sabbath, the Christians, even the Sabbatarians, do
many acts which we declare a violation of the rest; whilst the Catholics
absolutely profane the Sunday, if the Protestants are to be the judges.
Nay, the American Protestants would condemn unqualifiedly the European
continental nations as very irreligious when viewing the bad observance
of the Sunday everywhere abroad.
Now, in what manner is the Sunday to be observer
according to the act of 1794? According to the Presbyterian mode of
viewing it as a Christian Sabbath, in the manner the strict Protestants
profess it should be observed. So then Jews, Seventh Day Baptists,
Quakers, Catholics, Lutherans, and all other dissentients, are to be
told that their ideas go for nothing, but that they are required to
yield obedience to Puritanic notions, so far as Sunday is concerned,
under pain of being fined and imprisoned, and what is more, pointed out
to the community as persons guilty of vice and immorality, whereas their
religions do not so declare the act, their conscience is silent on the
subject, and they are forced to acquiesce in an enactment contrived to
bind them hand and foot to the opinions of an accidental majority who
differ from them in matters of conscience.
Is this not offending the religious conscience of
others? is this not invading their rights? cases which in Judge Bell’s
opinion, would render the act unconstitutional? We consider the right to
labour one of the inalienable rights of man; without it he cannot
succeed in the pursuit of happiness; without it he is a useless living
machine on earth. No human law can of right deprive him of his natural
privilege to work as long and often as he pleases. It is true that the
law may interfere in our exacting labour from those who work for us; it
may declare how many hours of the day shall constitute a day’s work for
servants and apprentices, those namely who are held to labour without
their consent being given for the time being; so also it may demand that
every such servant or apprentice shall have one day out of
<<272>>seven for his
recreation and rest; and as the majority of the community are
Christians of the kind who rest on the first day, there would perhaps be
but little objection to fixing this day, with exceptions to those who
rest on another day, let this day be which it may. But to prevent a free
man of mature years and reason to work less time than his strength
permits or his inclination induces him to do, is a stretch of authority
but little less than absolute tyranny. If he has religious convictions
which compel him to rest on the sixth, seventh, or any other day, and
you tell him: “You shall be absolutely idle on the first day of the week
also, because your neighbour has combined with all other inhabitants of
the town to get an act passed restraining you in your lawful
calling,”—is it not in fact giving his neighbours a sixth more time to
gain a livelihood than you permit him?
You may say, perhaps, that he need not keep his own
day; that he has no business to differ with the majority; that he must
not presume to judge for himself in his matters of conscience.—Is this
the argument? No doubt it is; but then you come to direct the
conscience—to teach which religion is correct in its dogmas and
practices—which is the church, in other words, which man ought to attach
himself to. And is this not to elevate one sect above the others?—to
give it an advantage which the Constitution does not allow it to have?
But suppose that his conscience does not require him to keep any Sabbath
at all; still the inquiry is, What harm does he inflict on a civil
community by his labouring? (Mind, Judge Bell excludes the religious
obligation, whereupon the religious community as such has no right to
complain)
We may all think him wicked for a neglect of
religion but in morals he is neither guilty of a vice nor an immorality.
Consequently the act in question is wrong in its title, as far as
relates to Sunday-keeping.—No one can assert in this connexion, with
any degree of reason, that the motive of the enactment is not a fit
object of inquiry. It may be so for the judges, who for once seem to
decide by the letter, not the spirit of the law; but to the persons who
are affected by it, it is of the highest importance to have the thing
set right, and to place themselves “erect” in public estimation. It is
as clear as daylight, that no Legislature acting under the Constitution
of Pennsylvania could have passed an act entitled “An act for the
enforcement of the Christian Sabbath,
<<273>>or the Lord’s day, commonly called
Sunday, and to punish all inhabitants of the commonwealth, without
regard to creed, for profaning the same, with fine and imprisonment.”
Such a title of a bill would have alarmed universally even the friends
of the Sunday, as a direct attempt to have Christianity acknowledged the
State religion; whereas the Declaration of Rights directly
prohibits it. But what cannot be done openly may be done by stealth in
the moral code of some persons; and this, we doubt not, and shall
believe so unless the contrary be shown us, was the manner of proceeding
in concocting that bill of abomination under which Mr. Specht now stands
convicted by the chief tribunal of this State as one guilty of vice and
immorality.
Nevertheless, with all the cunning for which
priestcraft has ever been famous, the devisors of the bill overshot the
mark, and declared the day to be the “Lord’s day,” adding “commonly
called Sunday.” But would the term have been definite enough had the
explanation been left out? Suppose the naked phrase “Lord’s day” had
been employed, by what standard would a magistrate have defined the day,
and consequently the offence of its profanation? In civil language there
is no such a thing as “the Lord’s day;” all days are the Creator’s, the
Monday as well as the Wednesday. Hence religious phraseology has to be
called to aid to give an exposition of the act. Now the Jew could
honestly say the Lord’s day is the seventh in order as commonly
computed; it is the one set apart in Honour of the Most High by his own
ordaining in the Decalogue and through other precepts; and he will refer
you to the Bible for abundant proof that he has good reason on his side.
He might, therefore, armed with the bill of ‘91, call on the authorities
of the commonwealth to punish all Sunday-keepers for a violation of the
statute. But what would the Presbyterians, Methodists, and others say? “
The Jew is wrong; the seventh day is not meant by the lawmakers, since
they had in view the first day of the week, the day not commanded in the
Old Testament, we admit; which is not alluded to in the New Testament,
as we also admit; but which the church of Christ celebrates as the one
on which Christ, whom we call the Lord, rose from the dead; and on which
account, at some time or the other in the fourth century, a once heathen
emperor, (Constantine,) prohibited the observance of the Jewish Sabbath
<<274>>in favour of the first day.”
How would a judge decide in such a case? Would he
not have at once to declare that he is not appointed to settle
theological disputes?—that so far as the situation is concerned, the
Jews and Christians are at liberty to observe which day they please, and
that hence no punishment could be awarded by a civil tribunal for an
infraction of either day of rest, and that hence the law was
unconstitutional and inoperative? Now see how the difficulty has been
overcome:—the lawmakers do not refer the question to the judges to
decide whether the Jews or Christians shall have the sway, or neither,
as the case may be; but they define the words “Lord’s day” to mean “the
Sunday,” or in other words that the Christian Sabbath is to be the one
to be observed by all the land, under heavy penalties, even to the loss
of personal freedom: mind, not in compliment to outraged virtue, but in
honour of an observance of doubtful and obscure origin, neither required
by morals nor religion. Is this equality? Is not this legislating for
and on religion?
Of one thing we are positively sure, that had the
majority, or even a very large minority of the people of the State, been
open adversaries of the Sunday, Judge Ball would have been induced to
see the propriety of their views, and declared the law unconstitutional;
for his admissions are so ample, that reasoning from them would readily
have swayed the wavering balance in which his mind seems to have
fluctuated up and down before finally settling itself in the scale of
“Sunday,” freighted as it was with the prospect of a re-election at the
expiration of his present term, aided by the sweet voice of a howling
persuasion, which would have doomed him to a quiet life in the shades of
retirement could these who have the majority with them be heard at the
approaching end of his official term. No doubt he has gained something
with them: still they may yet denounce him for stripping their day of
its sacred character by defining it as a civil enactment, and “to
profane it” to mean not an absolute profanation of a holy thing, but
something else. But we have nothing to do with the judge or his official
life, nor his motives or private thoughts. It is our duty to watch that
no injustice be done to our religion and human liberty, without our
denouncing it; and we trust that we have proved the judge and his
judgment erroneous, though we have not yet exhausted the subject; and
<<275>>we
therefore unhesitatingly declare that, had there been a fair trial, the
judgment would have been against the constitutionality of the act of
1794.—We rest for the present. |
