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Sunday Laws in South Carolina


In the concluding number of our last volume, we laid before our readers the enlightened opinion of Judge Rice, the Recorder of Charleston, declaring the operation of the ordinance of that city punishing Israelites for selling on Sunday, unconstitutional; and hence discharged Mr. Sol. A. Benjamin, who had been indicted for that offence, from all liability. The City appealed from this decision, and the matter came up for discussion at the late session, at Charleston, of the Court of Errors of the State, consisting of all the Law Judges and the Chancellors; and we are indebted to some friends for the arguments of counsel and the opinion of the Court; the last which we deem it our duty to publish at length, from the great importance of the question. We are unable, this month, to comment on the arguments and opinions, though they are so open to criticism, and our readers will see with regret that there is not always the greatest amount of wisdom in the multitude of councillors. But, for the present, they will form their own judgment; but we promise them that we shall not let the subject drop, and that we mean to speak out boldly when we revert to it.

<<594>>Judge O’Neal’s Opinion

In the case of the City Council of Charleston v. S. A. Benjamin

In this case, a deep respect for the ancient people of whom the defendant is one, and a full concurrence in the merited eulogium bestowed on them, in, in the course of the argument, for their consistency, honesty, industry, and thrift, induced a fuller consideration than the intrinsic difficulties of the case demanded.

I admire the devotion with which the remnant of Israel, scattered among us, and all the other civilized nations of the earth, have cherished and kept their Sabbath, the seventh day of the week! Well has one of their own gifted and liberal writers said of it, using the words of inspiration, “it was given” “for all generations” “for a perpetual covenant—as a sign between the Lord and the children of Israel for ever.” Exod. 31:16—“and to be wholly independent of times and places.”—Mendelssohn’s Jerusalem, 203. No doubt it is, as he affirms, binding upon those believe in the law alone: while Christians are not called upon, as he freely admits, to its observance.—Mendelssohn’s  Jerusalem, 209. The Lord’s  day, the day of the resurrection, is to us, who are called Christians, the day of rest after the finishing a new creation. It is the day of the first visible triumph over death, hell, and the grave! It was the birthday of the believer in Christ, to whom and through whom, it opened up the way, which by repentance and faith leads unto everlasting life and eternal happiness! On that day we rest and to us, it is the Sabbath of the Lord. Its decent observance in a Christian community, is that which ought to be expected.

It is not perhaps necessary to the purpose of this case, to rule and hold that the Christian religion is part of the Common Law of South Carolina. Still it may be useful to show that it lies at the foundation of even the article of the constitution under consideration,  and that upon it rest many of the principles and usages constantly acknowledged  and enforced in the courts of justice!

The 1st section of the 8th article of the constitution of this state declares, that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference shall for ever hereafter be allowed within this State, to all mankind, provided that the 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.”

What gave to us this noble safeguard of religious toleration, which made the worship of our common Father as free and easy as the air we breathe, and His temple as wide, capacious and lofty, as the sky He has spread above our heads? It was not that spirit of infidelity which defied reason, denied God, and was stained with more blood than ever flowed upon the altars of Aztec idols! It was Christianity, robed in light, and descending as the dove upon our ancestors, which gave us this provision! It was that same spirit which, when the war of the Revolution was about to commence, sanctified a fast and prostrated a nation before the Lord of Hosts to ask His blessing and assistance! It was that same glorious spirit of mercy and love which proclaimed the birth of the Saviour, and as its consequence “peace, good will towards men!” It was that same Christianity which sought its promulgators among the humblest of the Jews, and taught them, “love your enemies, bless them that curse you, do good to them which hate you, and pray for them which despitefully use you and persecute you!” But this toleration thus granted is a religious toleration, it is the free exercise and enjoyment of religious profession and worship, with two provisions, one of which, that which guards against acts of licentiousness, testifies to the Christian construction <<595>>which this section should receive! What are “acts of licentiousness,” within the meaning of this section? Must they not be such public acts as are calculated to shock the moral sense of the community where they take place? The orgies of Bacchus, among the ancients, were not offensive! At a later day, the Carnivals of Venice went off without note or observation. Such could not be allowed now! Why? Public opinion based on Christian morality would not suffer it!—Here, in this city, an open playhouse or circus, on Sunday, could not exist for a day! Why? Your streets, on Sunday, answer the question! Your people love “the house of God” more than “the tents of wickedness!”

These hints are enough to show the spirit which breathes in the constitution! But the law which we are called upon to administer, will be found to come to us imbued and blessed with the same holy influences. Crimes are classed into Mala in se and Mala prohibita! What gives them that character? We cannot answer, as the Israelite would do, by pointing to Mount Sinai, and say the Lord God commanded us saying “thou shalt not kill,” “thou shalt not steal.” The authority of these divine precepts come to us through Christianity! We are “the wild olive tree graffed,” in place of the broken branches of the original tree, Israel! And hence the law delivered at Mount Sinai, may be by us appealed to, as pointing out that which is “evil in itself.”

Again, our law declares all contracts contra bonos mores as illegal and void. What constitutes the standard of good morals? Is it not Christianity? There certainly is none other! Say that cannot be appealed to, and I don’t know what would be good morals! The day of moral virtue in which we live, would in an instant, if that standard were abolished, lapse into the dark and murky night of Pagan immorality! In this State, the marriage tie is indissoluble! Whence do we take that maxim? It is from the teaching of the New Testament alone!

In the courts over which we preside, we daily acknowledge Christianity as the most solemn part of our administration. A Christian witness, having no religious scruples against placing his honour upon the books, is sworn upon the holy Evangelists, the books of the New Testament, which testily of our Saviour’s birth, life, death, and resurrection.—This is so common a matter, that it is little thought of as an evidence of the part which Christianity has in the common law.

All blasphemous publications carrying upon their face that irreverent rejection of God and His holy religion, which makes them dangerous to the community, have always been held to be libels, and punishable at common law.—Here they would also be plain acts of licentiousness, having no warrant of protection whatever in our constitution. This, however, never could extend to free and manly discussion on these holy subjects. For I agree with Mr. Jefferson, in his Notes on Virginia, 235, “Our rulers can have authority over such natural rights, only, as we have submitted to them. The rights of conscience we never submitted, we never could submit. We are answerable for them to our God!” But I should hesitate long in pushing the argument as far as he does, by saying, as he does, that in its exercise “it does me no injury, for my neighbour to say there are twenty Gods, or no God.” While the argument rests only in words, it would be so evanescent that it might be no injury! But when it comes to be put in print, to be read, like Paine’s Age of Reason, by the young and the unwary, where is the parent who would say “it does me no injury!” I agree fully to what is beautifully and appropriately said in Updegraph vs. The Commonwealth, 11 Sergt. and Maule, 394, “Christianity, general Christianity is and always has been a part of the common law:” “not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes and spiritual courts; but Christianity with liberty of conscience to all men!”

<<596>>But I have said all which need be said on this interesting subject! It was not necessary for the decision of this case; it has only been said to prevent silence from being interpreted into a want of confidence in the proposition, that Christianity may be justly appealed to as part of our common law!

The case before us presents the very simple question, Is a law punishing the sale of goods on the Lord’s day, Sunday, a violation of the 1st section of the 8th article of our Constitution, hereinbefore cited and set out? To satisfactorily answer this question, it will be perhaps well to ascertain what was the sense in which the framers of the Constrution used the words, “The free exercise and enjoyment of religious profession and worship, without discrimination or preference.” Reading over the words, one would say, the venerable men who framed that article meant to say, that a man might be of any order of religious worshippers or of none at all; that he might worship God or not, as he pleased; that his worship might  be in any form, at any time or place, or none at all; and that for these differences in faith or practice, no difference in civil condition should ever be made by law! It was an abolition of all disabilities—the Christian, Israelite, Mahometan, Pagan, and Infidel, all stand alike in the Government and people of South Carolina. To ascertain, however, more precisely the sense, we may appeal to various other sources. To the 1st article of the amendments of the Constitution of the United States we may very well refer to ascertain the then acknowledged sense: “Congress shall make no law respecting an establishment cf religion, or prohibiting the free exercise thereof.” This was the general law for all the Union, as standing under the legislation of Congress! There could be no union of Church and State, no religion established by law! Nor could there be any law prohibiting any man from worshipping God as he pleased!

These plainly pointed to the evils from which we had escaped, in our separation from England! The Church of England, as an established State religion, had been felt as a great grievance, in at least one of the States of the Union. Against it had been poured the mighty torrent of Henry’s resistless eloquence, when “he pleaded against the Parsons’ cause.” All had felt the pains and penalties imposed by English enactments on all who sought to worship as conscience, not law, dictated. These evils were for ever removed by the amendments above referred to. In the same sense our Constitution was adopted. This may be further illustrated by reading the draught of the Virginia Bill of Rights in 1776. The 16th article of the first draught, by Gov. Mason, will be found in Niles’ collection, called the Principles and Acts of the Revolution, 124. It declares that “religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and that, therefore, all men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience, unpunished and unrestrained by the magistrate: unless under colour of religion, any man disturbed the peace, the happiness, or the safety of society. And that it is the mutual duty of all to practise Christian forbearance, love and charity towards each other.” The provision is very much like that in our own Constitution; and its closing declaration of duty shows how much these constitutional principles of toleration rested on Christianity. The general definition of toleration embraced in it, is but an amplification of the words of our Constitution, which were very probably condensed from it!

Again, Wm. Livingston, Governor of New Jersey, in 1778, (see Niles’ Acts and Principles of the Revolution, 306,) gives a definition of religion: “By religion, I mean,” he says, “an habitual reverence for, and devotedness to the Deity, with stick external homage, public or private, as the worshipper believes most acceptable to Him.” “According to this,” he says, “it is impossible for human laws to regulate religion without destroying it.” It was to secure this privilege of worship, as he has beautifully <<597>>described it, and this alone, that our constitutional provision was adopted. The sense in which the fathers of liberty used the words, “the free exercise and enjoyment of religious profession and worship without discrimination or preference,” has, I think, been sufficiently shown. What abridgment of religious profession and worship is to be found in a law forbidding a shop to be kept open, or goods to be sold on Sunday? I confess, I can see none. If there were any, I presume it will be readily admitted it hardly would have escaped the experienced eye of Dr. Cooper. Yet in his notes to 2d Stat. 707, speaking of this very article of the Constitution, he says; “This does not interfere with the right of the Legislature to incorporate religious societies for civil purposes. Nor with the right  of appointing a Sabbath, or day of rest from labour, as a municipal institution conducive to civil expedience!” The legislation, objected to on this occasion, is no more than what he allows to be proper and legitimate. It is simply an ordinance for the better observance of the Lord’s Day as a day of rest; it simply requires a cessation of public employment in the way of trade or business.

But it is said this violated the free exercise and enjoyment of the religious profession and worship of the Israelite. Why? It does not require him to desecrate his oven Sabbath  It does not say, you must worship God on the Christian Sabbath! On the contrary it leaves him free on all these matters! His evening sacrifice and morning worship, constituting the seventh day, he publicly and freely offers up, and there is none to make him afraid. His Sundays are spent as he pleases, so far as religion is concerned. No one dare say to him, in the circle of his own fireside, what doest thou? No one, as he walks the street, would dare say to him, turn in hither and worship as we do!

It is, however, fancied, that in some way this law is in derogation of the Hebrew’s religion: inasmuch, as by his faith and this statute, he is compelled to keep two Sabbaths. There is the mistake! He has his own free and undiminished! Sunday is, to us, our day of rest! We say to him, simply, respect us, by ceasing on this day from the pursuit of that trade and business in which you, by the security and protection given to you by our laws, make great gain! This is a mere police, or municipal regulation! If the Israelite were allowed to make the objection, that he could not be constitutionally restrained from pursuing a public business on Sunday, the Infidels would say, as Duke said, all days are alike to me, and therefore, I will at all times pursue my business. Such an assumption is so preposterous, that no one would tolerate it! Yet, in the case of the Town Council vs. C. O. Duke and Alexander Marks, the Infidel and the Israelite placed themselves on the same platform,  the 1 § of 8 article of the Constitution. It is true, the alliance was altogether unnatural. Still, both together invoked the decision of that good man and good judge, the late J. Martin, on the very question now before us, and he, with his accustomed clearness and power, decided that the Constitution did not prevent the passage of an ordinance to prevent shopkeepers from keeping their shops open on the Sabbath day; and from that decision the parties dared not further pursue their complaint by appeal. It was feared that, like its noble gifted author, it was no more; but I rejoice to find it has been preserved; and I hope with this opinion, and as one of its main pillars of support, it will be given to the world!

If it were true that the commandment to keep the Sabbath day holy, also required the Israelite to work six days, as closely and faithfully as he is to observe the seventh day, as a day of rest, then indeed there might be a ground to say, that the ordinance which requires him to desist, during Sunday, from a public business. the sale of goods, was unconstitutional. Let us read the commandment beginning Exodus 20:8:—“Remember the Sabbath day to keep it holy. Six days shaft thou labour and do all thy work; but the seventh day is the Sabbath of the Lord thy God, in it thou shalt not do any work, thou, <<598>>nor thy son, nor thy daughter, thy man-servant nor thy maid-servant, nor thy cattle, nor the stranger that is within thy gates. For in six days the Lord made heaven and earth, the sea and all that in them is and rested the seventh day; whereupon the Lord blessed the seventh day and hallowed it.” In Deuteronomy, chapter 5 beginning at the 12th verse, we have the same commandment again set before Israel. “Keep the Sabbath day to sanctify it, as the Lord thy God hath commanded thee. Six days thou shalt labour, and do all thy work: but the seventh day is the Sabbath of the Lord thy God: in it thou shalt not do any work, thou nor thy son, nor thy daughter, nor thy man-servant, nor thy maid servant, nor thine ox, nor thine ass, nor any of thy cattle, nor the stranger that is within thy gates, that thy man-servant and thy maid-servant may rest as well as thou. And remember that thou wast a servant in the land of Egypt, and the Lord thy God brought thee out hence through a mighty hand and by a stretched out arm: therefore the Lord thy God commanded thee to keep the Sabbath day.” Leviticus 23 and 3. contains, as I consider, the commentary of the inspired Lawgiver on, and the explanation of this command. “Six days shall work be done; but the seventh day is the Sabbath of rest, and holy convocation: ye shall do no work therein: it is the Sabbath of the Lord in all your dwellings.” The meaning of the commandment is so plain, that I almost fear to add any explanation of my own. In six days the Israelite is to do the work he may have to do: on the seventh he must not work: it is his day of rest! No one ever supposed it could go further. I fancy few among Israel worked every day in the six. If such had been the commandment, it would have been hard again. But it was intended to set apart a day of rest, and not to give a command to labour. The Saviour  said, “the Sabbath was made for man and not man for the Sabbath.”

So it remains, and so it is intended ever to remain, one day out ofseven, as a day of rest: and as such it is essential to every one who  labours, be it man or beast, and hence its institution and observance. There is therefore no violation of the Hebrew’s religion, in requiring him to cease from labour on another day than his Sabbath, if he be left free to observe the latter according to his religion. It is the seventh day, which is to him a holy day, made so by his religion, and to be observed at his peril. All other days are to him indifferent. Hence he can find no abridgment of his religion in being compelled to abstain from public trade, employment, or business,  on one of them. If the Legislature, or the City of Charleston were to declare that all shops within the State or City should be closed, and that no one should sell or offer to sell any goods, wares, or merchandise, on the 4th of July or 8th of January in each year, would any one believe such a law was unconstitutional. It could not be pretended religion had anything to do with that! What has religion to do with a similar regulation for Sunday. It is in a political and social point of view a mere day of rest. Its observance as such, is a mere question of expediency. But, says the argument, on the other side, we would not object to it, if it did not give a Christian a preference over an Israelite. Where is such a provision? There is none such in the law. It is general, operating upon all. The Constitution, in the respect under consideration, considers all the people of South Carolina on whom the Government is to operate as citizens merely. It does not divide them into Christians and Hebrews, or any other classification. If the law be according to that, there is no objection. It is true, the Israelite must cease from business on Sunday; so do all others. His religion makes him also observe Saturday! That is not the effect of our law. It is the result of his religion; and to enjoy its cherished benefits, living in a community who have appointed a different day of rest, he must <<599>>give to its law obedience, so far as it demands cessation from public employment.

The motion to reverse the decision below is granted.

We concur.

J. S. Richardson,
Josiah J. Evans,
Edward Frost,
J. Johnston,
Benj. F. Dunkin,
James J. Caldwell,
Geo. W. Dargan

The City Council v. Benjamin

Wardlaw, J.—I agree to the result. The defendant has submitted no question but the abstract one concerning the constitutionality of the ordinances. Without looking to the religious obligation of a Sabbath, or even to the reasons, moral and political, which sustain the propriety of having certain portions of time set apart as seasons of common rest, I think that established usage, of itself, may well justify a distinction between Sunday and other days. Sunday is a holiday, kept by the great mass of our people: such a public profanation of it as might reasonably be supposed to interfere with the good even of the community, may be constitutionally prohibited. A city ordinance for this purpose is a mere public regulation, standing upon the same footing as an ordinance to prevent the opening of shops after a certain hour at night.

Withers, J. did not hear this case.