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Sunday Laws in South Carolina

Review of Judge O’Neal’s Opinion.

Every lover of religious toleration, nay, of true religion, as contradistinguished from fanatical bigotry, must mourn over the promulgation of such sentiments as are found in the opinion of Judge O’Neal, in the case of the City Council vs. Benjamin, and published in The Occident of March last. If, like Judge Wardlaw, he had confined his opinion to the naked legal question in the case, though we might have regretted the decision, we could take no exception to the grounds on which it was based, nor to the politico-religious sentiments expressed.

Judge O’Neal is unquestionably a fanatic, in the widest extent of the term, and I regret that the Court had not assigned to some other member the writing of its opinion. I believe him honest, but his ultraism evidently renders him an unsafe judge on all questions bearing directly or indirectly upon his own bigoted notions.

I deny that Christianity is a part of the Common Law as adopted by South Carolina, and I am sustained by reason, and by adjudicated cases, in South Carolina and elsewhere. The Common Law “is of force only so far as it is consistent with our Constitution, customs, and laws.”—State vs. Allen, 1 McCord’s So. Ca. Rep., 525-531. The same doctrine is laid down by the Supreme Court of the United States in the case of Girard’s Will, 2 Howard’s Supreme Court, Rep. 127-198. Christianity then is only so far a part of the common law of this country, as it is modified by our free constitutions. The constitution of the State of South Carolina fixed this matter; and let us appeal to it. The 1st See. 8th Art. declares, “that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever hereafter be allowed in this State to all mankind, provided that liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace, or safety of this State.” This is the supreme law of Carolina, and controls the common law of England; and I ask any unprejudiced man to say whether a law which creates a “discrimination or preference” in favour of any religious sect, by forcing an observance of its day of rest, is not in contravention of the <<37>>above article of the Constitution? If a Jew can be compelled to close his store on Sunday, because it shocks “the moral sense of the community,” why may he not be compelled, by a parity of reasoning, to attend some place of Christian worship, on that day? Why may he not be compelled to support a Christian ministry? The Jew may in vain hold up the constitution of the country; Judge O’Neal, will reply, that means “religious toleration”—you may worship God as you please—you may offer up your “evening sacrifice, and morning worship,” but there is a “Christian construction” to this section of the constitution, which guards us against “acts of licentiousness.” It shocks my “moral sense” to see you, (though you do so noiselessly,) pursuing your daily avocations on Sundays. It is revolting to “Christian morality” to see you strolling about  the streets in your every-day working dress. “By the security and protection given to you by our laws you make great gain;” therefore it is but common justice that you should  support that Christianity to which you are indebted for your toleration. This is not stretching the argument of Judge O’Neal one tittle too far. He expressly places his decision on the ground that Christianity is a part of the common law of Carolina, and that the opening of a store on Sunday is an “act of licentiousness,” because it shocks the “moral sense” of Christians. The true construction then is, that there should be no “discrimination,” no “preference.” If I am compelled to close my store on Sunday for the reasons given, may I not also be bound to close my lips upon any of the dogmas of Christianity? If the opening of my store on Sunday is such an “act of licentiousness” as shocks the “moral sense” of Christians, I put it to Judge O’Neal, and ask him whether I would not much more shock that “moral sense,” if I were to denounce the trinity, and the atonement, as blasphemous, and immoral? If such be the law, how do the Jews in this country stand? The country may be flooded with denunciations against the Jewish  religion, and no principle of the law will be found to check the torrent of abuse, of slander, and of falsehood; whilst ample protection may be given to Christianity from any attack that would “shock the moral sense” of Christians. Is this no “discrimination,” no “preference?” Under this rule of law, I suppose Judge O’Neal would, if on the Chancery Bench, grant an injunction to restrain the publication of the “Occident,” on the ground that it was anti-Christian, and therefore contra bonos mores, and in violation of the law of the land.

But let us examine what are “acts of licentiousness” in the obvious meaning of the Constitution of South Carolina, and of the spirit of our <<38>>institutions. Judge O’Neal has furnished us with his definition of these words, and let us test its truth. He deems the opening of a shop, a play-house, or circus, on Sunday, “acts of licentiousness.” I will not pause to show this priestly judge that his strict observance of Sunday was unknown to the early Christians, nor that his quotation of Christ’s words “the Sabbath was made for man, not man for the Sabbath,” was illy made in a decision going to compel a strict observance of Sunday; for by reference to his New Testament, he will find that those words were used to justify Sabbath-breaking. But let us proceed. Is his definition supported by the doctrine, and the practice, of the Christian world? Clearly not! The Catholics, constituting a majority of the Christian world, would deny a part of the definition; the Seventh Day Baptists would repudiate the whole; Sunday is no holy day, no day of rest to them. Again, when is Sunday to begin, and when to end? Here the Judge would find himself in opposition to a large body of Christians, whose day of rest ends with the setting sun of Sunday. Thus would the standard of “acts of licentiousness,” of “Christian morality,” be fixed, not “according to the measure of his Honour’s foot,” but by the people among whom he might be at the time of his decision. Now, I contend that, no such rule can be a good one. “Acts of licentiousness” then, can only mean such acts as violate those eternal and immutable principles of morality, which have been revealed to mankind by God, through His inspired prophets,—or such as would shock the sense of propriety of all civilized men. The common sense construction of the words, and cotemporaneous exposition sustain my interpretation. The quotations made by Judge O’Neal from contemporary writers, support this view of the question. My religion “must not disturb the peace, the happiness, or the safety of society.” If, then, Judge O’Neal is right, that the 1st see. 8th article, of the South Carolina Constitution only means “the free exercise and enjoyment of religious profession, and worship,” what becomes of Carolina’s boasted freedom  The Jew, in this sense, has religious toleration in many other countries, where he has not one privilege of a freeman. But this clause of the Constitution has a broader, a more liberal and enlightened meaning; it includes religious toleration, and excludes “discrimination” and “ preference.”

But I object to the whole tone of the decision, and the spirit in which it was written. The Judge, throughout, treats the Jews as though they were not his equals—his fellow-citizens.—He seems to regard them as inferiors, to whom Christian charity has granted the boon of toleration. He says, in so many words, “We say to him (the Jew), simply, re<<39>>spect us by ceasing on this day from the pursuit of that trade and business, in which you, by the security given to you, by our laws, make great gain.” I protest against these terms, “you,” “us,” “our laws.” Such language is unworthy of an American Judge, and in direct opposition to the spirit of our institutions. The Jew receives religious toleration in this country, not as a boon, but as a right. He stands upon the same platform as his Christian fellow-citizens, and breathes with him, the pure air of American freedom, untainted by bigotry, tyranny, or intolerance.

But I have other objections to this opinion, and its dicta. He says, “What constitutes the standard of good morals? Is it not Christianity? There certainly is none other.” This is rank blasphemy against the God of Heaven. God gave the Jew a religion, to fit him for time, to prepare him for eternity. He taught him, by His inspired prophets, his duty to his Maker and to his fellow-mortal. “Thou shalt love the Lord thy God with all thy heart, with all thy soul, and with all thy might; and thou shalt love the stranger, and thy neighbour as thyself.”—Lev. 19:18-34. He has taught us to “do justly, to love mercy, and to walk humbly with our God.” He gave us, amidst the thunders of Sinai, written with his own hand, those eternal “Commandments” before which all civilized nations bow down, and upon which every civilized code of laws is based. We have all this, and yet the Jew has no “standard of good morals!” I call upon Judge O’Neal to point out one moral precept in the Christian’s New Testament, which is not found in the Bible of the Jew. Take from the Christian our moral law, our standard of morals, and he will, indeed, be enveloped in thick darkness. The zeal of this modern Apostle has led him astray, and I trust that his sense of propriety will induce him to make a public profession of his error. In conclusion, I may say, with perfect truth, that but for the obnoxious grounds on which the decision is based, and the blasphemous libel upon my religion, I should have remained silent.


Note by the Editor.—It will be recollected that in reviewing Dr. Plumer’s pamphlet, which, by the by, we have only laid aside, not done with, in The Occident for January, we invoked the aid of our legal friends to help us in resisting the retrograde movement lately attempted in various parts of the United States. We then stated, almost foreseeing the case of Mr. Benjamin, that the courts could not be depended upon for a certainty to decide in favour of what is right; but <<40>>they would, in all probability, be biased by their own or the public opinion on religion. We deeply lament that our prognostications were so completely verified by the event; at the same time, it is a gratifying circumstance, that the subject has awakened one of the gentlemen whom we appealed to to discuss the matter with better knowledge of its details, than is in our possession. It will be seen that he entirely coincides with our views of the fallacy, “that Christianity is by the common law the law of this land, and that hence all decisions of courts and juries, based upon such an assumption, must ultimately be reversed by the Supreme Court of the United States, or by the sure action of public opinion. In the mean time we can wait, and watch well the progress of events, not doubting that the right will triumph at last. It is to be regretted that, for the present, Judge O’Neal’s decision must stand as the supreme law of South Carolina, supported, as he was, by all the Judges who heard the case, and there being no higher state court to appeal to. But a similar case will come up in the Supreme Court of Pennsylvania, in a few months, in the case of several Seventh-day Baptists of Franklin County, who are under indictment for labouring on the first day of the week. Should they gain the case in the state court, it will exercise a strong moral influence all over the Union, connected, as it is, with the decision of the Supreme Court of Ohio, in the case of Mr. Rice, of which we gave the particulars last year. But, in case the Baptists fail here, there will be a common cause made of the matter by the whole body of that denomination, who intend testing the question before the chief tribunal of the land, the Supreme Court of the United States; so that, in any aspect of the case, it is not likely that the decision of the South Carolina Court will be able to sustain itself.

As regards the above communication of “An Hebrew,” we are greatly indebted to him for the timely aid he has lent us, and we shall take care that Judge O’Neal shall be served with a copy for his perusal, hoping that his sense of honour will induce him to make due reparation in our pages for the injury he has inflicted on the Israelites, not so much by his decisions as the idea he holds out that we are here merely tolerated by Christians, and consequently not entitled to equal protection as a matter of right. We were struck by the same view which our correspondent maintains, that if the Judge be right, the publication of The Occident would be punishable as blasphemy by the tribunals of South Carolina, an absurdity which would demolish the liberty of the press, and establish an intolerable inquisitorial tyranny. We only regret that “An Hebrew” has made his article so short; but we hope <<41>>that he will, at his leisure, extend his remarks, so as to review the opinion in question, in detail; it was our intention to do so, but we greatly prefer that those who understand the law of the land should render this service to the cause of Judaism and civil liberty all over the world.