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בס"ד

Political Inequality.

(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.”

 

 

* That is twelve hours for profane swearing, and twenty-four hours for every ease of drunkenness, the fine in each case being sixty-seven cents.

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.