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בס"ד

Vol. VII, No. 3
Sivan 5609, June 1849

Sabbath Laws in Pennsylvania

 

The attempt having failed in the last session of the Pennsylvania Legislature to repeal the penal clause affecting those who conscientiously observe the seventh and work on the first day of the week, it is evidently proper to diffuse everything having reference to this important subject, which may ultimately tend to produce a repeal of that obnoxious law. We have spoken at length in our last volume on the matter, and discussed it to the best of our abilities, and we are led to believe, with some approbation of our readers. We therefore, in order to enable them to urge the subject farther, by reasoning from another and disinterested quarter, lay before them the able article which appeared in the Democratic Review for November, and which was written by a young Christian lawyer, Wm. B. Taylor, Esq. We bespeak for this champion of religious liberty the kind consideration of our friends, and they can, according to our opinion, not advance the cause of equal rights better than by inducing their Christian neighbours to peruse what has been said in favour of the repeal of the law in, question by one of themselves.

Though the question does apparently bear only on Pennsylvania, still is there enough of interest in it to answer for all latitudes; and then it is well to watch that no encroachments on equal rights are made in other places, since it is too true that there is, always a ten­dency on the part of some to have more freedom than others, or what is the same, they endeavour to force their own views of right upon those who have an equal share of personal liberty; or in case they refuse to render them suspected by the majority.

Against such cabals we must guard, and we can devote the pages of the Occident to no better use than to make it instrumental in preserving what has been so dearly won, and which is so very precious to every enlightened freeman. It is, however, no idle alarm which we are sounding when saying that personal and religious liberty are even now in danger from the machina­tions of bigots; for there is an attempt made to monopolise the influence of the press, and to give it a one-sided turn. We, there­fore, must use our best energies to scatter all such information as will counteract such unholy designs.-Ed. Oc.

<<151>>
(From the Democratic Review.)

SABBATH LAWS IN PENNSYLVANIA*

BY W. B. TAYLOR.

* Decision of the Sup: Court of Penn’a in the case of Specht vs. the Commonwealth, 1848. Opinions by Judges Bell and Coulter.

“All men have a natural and indefeasible right to worship Almighty God, according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes of worship.”—CONSTITUTION OF PENNSYLVANIA.—Art. IX., Sect. 3.

Although it is necessary to the stability of our republic, that the laws of the states, as exhibiting the deliberately expressed will of the majority, should be unhesitatingly obeyed, and the constructions of the authoritative expounders of those laws implicitly received by all, as the rule of public conduct, it is still equally essential to the vitality of the republic, that the deliberations, acts, and decisions of every govern­mental functionary should be freely criticised by the humblest of its citizens. A few remarks, accordingly, in examination of a judicial opinion recently given in Pennsylvania, may not be out of place, and indeed seemed rather called for, as well from the importance of the principles involved, as from the discrepancy of judgment expressed from the bench, in regard to their extent and application.

The legislature of Pennsylvania enacted by act of 22d of April, 1794 (Sec. I), that “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.” In 1817, a question arose on the constitutionality of the law, in the case of the Commonwealth vs. Wolff (3 S. & R. 48.) The defendant, Abraham Wolff, was a Jew; by occupation a pencil-­maker. He was charged on oath of James Pusey, before a magistrate, with having followed his worldly employment on Sunday. He admitted the fact and was fined. The case was removed by writ of certiorari to the Supreme Court of the state, where Judge Yeates decided the act of 1794 to be constitutional, and affirmed the conviction—Judge Gibson concurring.

This of course fully established the law; and the question of constitutionality could no longer be considered practically an open one. Still private doubts had frequently been expressed as to the propriety of the judgment; and many had supposed, that if the point could again be raised before the court, and a fuller argument presented, the <<152>> former decision might be reversed. And now, after a lapse of thirty years, such a case does arise, and is admitted to a hearing before the court,—a case, too, involving not a Jew but a Christian.

The facts appear to be, that one Specht, a farmer residing in Franklin county, in the south central part of the state, and a member of the very respectable sect of “Seventh-day Baptists,” was indicted for following the ordinary labours of his farm on Sunday, and was fined by the local court. Specht appealed, on the old ground of the unconstitutionality of the law under which he was convicted, to the Supreme Court, where the proceedings of the lower court were affirmed, and the constitutionality of the statute re-asserted; and it is upon this decision, and the reason assigned for it, that we propose briefly commenting.

Perhaps the most singular feature in the decision, (which was given by two of the judges,) is the fact, that while the opinions of both agree in their result, they are based on diametrically opposite grounds. Judge Bell pronouncing the act of 1794 constitutional, because it is purely a civil and not a Christian establishment; and Judge Coulter equally positively declaring the law constitutional, because it is a Christian establishment. Thus one of the judgments must necessarily be erroneous; and both must be partially wrong, unless one is totally so.

Judge Bell. Judge Coulter.
“It is still essentially but a civil regulation, made for the government of man as a member of society; and obedience to it may properly be enforced by penal sanctions....It cannot be said a primary object of the act was authoritatively to assert the supremacy of Sunday as of divine appointment....in this aspect of the statute, there is therefore nothing in derogation of the constitutional inhibition. “I wish it to be distinctly understood, that I believe the laws constitutional, because they guard the Christian Sabbath from profanation, and in the language of the act of 1794, prohibit work or worldly employment on the Lord’s Day. We are a Christian people and state....I do not recognise the right of legislation to make a day of secular cessation from labour, independent of the Christian Sabbath.”

In logical phraseology, Judge B. may be described as denying the minor, and Judge C. as denying the major premise of the complainant’s argument; and it is remarkable, that in so doing, each admits the other premise; so that eodem judicio, both propositions of the opposing argument may be considered as made out, and the ground of the plaintiff in error completely established. The syllogism would stand thus:

  1. All laws giving preference to any religious establishment are unconstitutional. (Admitted by Bell.)
  2. The act of 1794 gives a preference to a religious establishment. (Admitted by Coulter.)
  3. Therefore, the act of 1794 is unconstitutional. (Q.E.D.)

Let us see how far either of these propositions is overthrown by the reasonings of the two judges. To make them in their proper order, we shall first present the essential passages of Judge Bell’s argument:

“The constitution of this state secures freedom of conscience and equality <<153>>of religious right. No man living under the protection of our institutions can be coerced to profess any form of religious belief, or to practise any peculiar mode of worship in preference to another. In this respect, the Christian, the Jew, the Mahommedan and the Pagan are alike entitled to protection…. Does the act of Assembly impinge upon this natural right, or on the constitutional declaration which seeks to foster and protect it? It is insisted, this question must receive an affirmative response, because, as it is said, the statute treats the first day of the week as a holy and sacred day; and it is thus proved to be, not a mere civil regulation to give rest to man, but an attempt to exalt by law the religious belief of certain sects over that of others.

“Though it may have been a motive with the law-makers to prohibit the profanation of a day regarded by them as sacred, and certainly there are expressions used in the statute that justify this conclusion, it is not perceived how this fact can vitally affect the question at issue. All agree, that to the well being of society, periods of rest are absolutely necessary. To be productive of the required advantage, these periods must recur at stated intervals, so that the mass of which the community is composed, may enjoy a respite from labour at the same time. They may be established by common consent, or as is conceded, the legislative power of the state may, without impropriety interfere to fix the time of their stated return, and enforce obedience to the direction. When this happens, some one day must be selected; and it has been said that the round of the week presents none, which being preferred might not be regarded as forming some one of the numerous religious sects into which mankind are divided. In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labour, it is not surprising that that day should have received the legislative sanction; and as it is also devoted to religious observances, we are prepared to estimate the reason why the statute should speak of it as the Lord’s day, and denominate the infraction of its legalized rest a profanation. Yet this does not change the character of the enactment. It is still essentially but a civil regulation, made for the government of man as a member of society, and obedience to it may properly be enforced by penal sanctions. To say that one of the objects of the legislature was to assert the sanctity of the particular day selected, 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.

“The conclusions drawn from some of its language, are as inexpressive of its practical operation as of the principal intent of its maker. The phrase­ology used, may indicate a conviction of the holy character of the first day of the week; but as this simple expression of an abstract opinion, which all other men are at liberty to adopt or reject, carries with it no obligation beyond the influence attendant upon the expression itself, it cannot be said a primary object of the act was authoritatively to assert the supremacy of Sunday as of Divine appointment. Had such been the intent irrespective of its statutory character as a day of rest from secular employment, its framers would not have stopped short with a bare interdiction of labour and worldly amusements. Following the example offered by older states and communi­ties, they would have commanded the performance of religious rites, or at least, some express recognition of the day as the true Sabbath. Such a requisition, we agree with the plaintiff in error, would be a palpable interference with the rights of conscience. But nothing like this is exacted. On the contrary, every one is left at full liberty to shape his own convictions, and practically to assert them to the extent of a free exercise of his religious views. In this, as in other respects, the conscience of each is left uncontrolled by legal coercion to pursue its own inquiries, and to adopt its own conclusions. In this aspect of <<154>>the statute, there is, therefore, nothing in derogation of the constitutional inhibition.

“Nor can it be objected against the statute that it gives a preference to any religious establishment or mode or worship. It leaves all free alike in the exercise of their distinctive religious tenets, saying to none, what doest thou? As I have said, the selection of a day of rest is but a question of expediency; and if from the choice falling on the first day of the week, the Jew and the seventh day Christian suffer the inconvenience of two successive days of withdrawal from worldly affairs, it is an incidental worldly disadvantage, temporarily injurious it may be to them, but conferring no superior religious position upon those who worship upon the first day of the week. The law intends no preference. The command to abstain from labour is addressed to every citizen irrespective of his religions belief; and if an inconvenience result to some, it is a consequence of the generality of the provision. But this affords no argument against the constitutionality of the law, however strong the argument might be felt when addressed to the legislature, as a reason for a modification of the statute.”

It is certainly a somewhat new position to assume, when attempting to discover the purpose and tendency of a statute (for these alone can determine the question of its constitutionality); that the phraseology being “simple expression of an abstract opinion, which all other men are at liberty to adopt or reject,” the object of the act cannot be said to be to make an authoritative assertion. There is no principle of legal interpretation better established, and certainly none more conformable to the plainest dictates of common sense, than that the design of the law-maker shall construe and give direction to the law. “The conclusions drawn from its language” are not “inexpressive” either of its practical operation, or “of the principal intent of its maker.” And here it might be contended, that the simple expression “by law” of an abstract opinion (unenforced by penal sanctions), if it should give any “religious” preference, would obviously be in conflict with the prohibi­tion of the constitution. The actual admission, that all men were “at liberty to adopt or reject” it, could in no wise extenuate the violation of a principle.

What then, was the intention of the legislature in the present instance? “It may have been a motive with the law makers,” says Judge B., “to prohibit the profanation of a day regarded by them as sacred; and certainly there are expressions used in the statute, that justify this conclusion.” The day protected from desecration, is emphatically styled “the Lord’s day.” Truly does this phraseology, in the language of the judge, '”indicate a conviction of the holy character of the first day of the week.” It leaves no room to doubt its established sanctity in the view and intention of the law. Not only does it thus “assert the supremacy of Sunday as of divine appointment,” but it more fully exhibits its object by forbidding “any worldly employment” upon that day. What possible antithesis to this epithet can the law propose, but spiritual or religious? Is it not the very language of theology, ex­changing its surplice for the civic toga? It will not be pretended that the legislature of 1 794 intended to prohibit all employment. What exempted engagements then can the enactment, possibly permit, (or rather by necessary implication, enjoin,) but the preferred devotions of <<155>>Sunday Christians? Did the lawmakers suppose that worldly em­ployments were disadvantageous to the world, abstracted from all reli­gious considerations? that worldly business could be improper on purely worldly grounds? If, then, it was so manifestly the intent to uphold a religious creed, can we say that “this does not change the character of the enactment?” that “it is still essentially but a civil regulation?” Are we at liberty thus to disregard the whole acknowledged scope of its provisions, in investigating their tendency? It surely will not be maintained.

Judge B., after admitting that the “expressions used in the statute justify the conclusion” that the design of the law-makers was to protect from profanation the “day regarded by them as sacred,” very strangely denies that it was “a primary object of the act, authoritatively to assert the supremacy of Sunday as of divine appointment:” and he argues that “its framers would not have stopped short with a bare interdiction of labour,” but “would have commanded the performance of religious rites.” And how shall we know how far religious intolerance may deem it prudent to carry its restrictions, except from their actual exhi­bitions? The fact that a person has not travelled beyond a certain point, can surely never, prove that he has not travelled to that point. In the case before us, we have abundant evidence of the “primary object of the act,” in its very phraseology; and when we consider that, in addi­tion to this, it provides a penal compulsion to keep holy—by doing no work on—the appointed day, (the especial method, be it remembered, and the only method of “keeping holy,” laid down in the Scriptures,—see Exod. xx. 8 and 10; xxxi. 14;)—a penal compulsion extended to those who utterly deny the alleged sanctity of the day,—to Sabbatarian Christians, to Jews, and to Infidels,—what shall be said of the equality of the enactment? With what shade of plausibility shall it be asserted that “the law intends no preference?” And admitting this glaring preference; admitting “that one of the objects of the Legislature was to assert the sanctity of the particular day selected,” how can it be held, that this “is to say nothing in proof of the unconstitutionality of the act?” The opinion of the law-makers, that the Lord’s day ought to be guarded from the profanation of worldly labour, can no longer be called an abstraction. It is a most grievous fact. The pretended liberty of adopting or rejecting it, is perfectly nugatory; such liberty is indeed the most fictitious of “abstractions.”

But if such be the avowed and unmistakable purpose of this ordi­nance, let us look at its practical tendency towards those whose religion enjoins a different Sabbath from the one it favours. Those supported by their own exertions (the presumed condition of all) are by this act deprived of a sixth of their secular time—their literal wealth;—either because they do not observe the right day, or because they will observe the wrong one.  Practically, the law says to the Sabbatarian, (whether Christian or Jew)—“Lay aside your foolish prejudices, and no longer adhere so strictly to the particular day required by the letter of the fourth commandment, else shall you lose one sixth of your income.”

Such is the oppressive alternative presented by a government guaran<<156>>teeing equality of religious privilege, and repudiating all authority to “control or interfere with the rights of conscience.”* And what says Judge B. in justification or extenuation of this heavy loss imposed by law upon Sabbatarians? " It is an incidental worldly disadvantage—temporarily injurious it may be to them, but conferring no superior re­ligious position upon those who worship upon the first day of the week. The law intends no preference.” It is so anxious for the spiritual wel­fare of its subjects, that in comparison, any worldly loss is entirely overlooked, as a merely temporary and incidental injury, too unimportant for its notice! Is it not a mockery, when the Jew is legally robbed of a large portion of his secular time, while those of a more favoured persuasion are secured in the enjoyment of the whole of theirs,—to tell him that there is no preference shown?—that the law is only temporarily injurious to him! “The command,” continues Judge B., “to abstain from labour, is addressed to every citizen, irrespective of his religious belief; and if an inconvenience results to some, it is a consequence of the generality of the provision.” This is surely a strange consideration from whence to infer the impartiality of the statute. As though the universality of a requirement could exempt it from the charge of favoritism? If the case were reversed, and it were enacted that all men should “keep holy the seventh day,” how would this reasoning sound to show that no preference was given by the statute?

* In this respect, Pennsylvania is much less liberal than either of the large states adjoining her. Sabbatarians are not compelled to observe the first day, in either Ohio or New York.

This argumentum ad hominem is perhaps, after all, the most convincing one: and since it is a trite saying, that example is ever more efficient than precept, let us further elucidate the position for which we are contending, by presenting a case as analogous to this of Sabbath legislation as any we can well get. Let us suppose, then, that under the provisions of a constitution precisely similar to that of Pennsylvania, a Catholic majority in the Legislature of Maryland, should enact that “To guard the precepts of the Holy Church from infringement, if any person shall eat or swallow” (the act would hardly be legal without a little tautology,) “any flesh or meat whatsoever, on the sixth day of the week, commonly called Friday, and be convicted thereof, every such person so offending, shall for every such offence forfeit and pay four dollars.” Can any one doubt that this would be “giving by law” an unconstitutional preference to a religious establishment? Would Judge B. himself hesitate so to decide? And yet to preserve consistency with his Sabbath opinion, he would be required to pronounce a judgment something like the following:

“Though it may have been a motive with the law-makers, to enjoin a religious observance, and expressions used in the statute justify this conclusion, it is not perceived how this fact can vitally affect the ques­tion at issue. In a Christian community, where a very large majority of the people observe Friday as a fast day, it is not surprising that that observance should have received the legislative sanction, nor that the statute should recognise the “Holy Church.” Yet this does not change <<157>>the character of the enactment. It is still essentially but a civil regu­lation. The conclusions drawn from its language are inexpressive. The phraseology used may indicate a conviction of the holiness and authority of the Catholic Church, but as this is a simple expression of an abstract opinion which all other men are at liberty to adopt or reject, it cannot be said a primary object of the act was authoritatively to assert the Catholic supremacy. Had such been the intent, its framers would not have stopped short with a bare interdiction of flesh meat. Follow­ing the example offered by European states, they would have com­manded the performance of religious rites. If Protestants complain of inconvenience, it is an incidental disadvantage—temporarily injurious; but the law intends no preference. The command to abstain from meat, is addressed to every citizen, irrespective of his religious belief; any inconvenience to some, is but a consequence of its generality. This affords no argument against the constitutionality of the law.”

Does this do injustice to the positions laid down by the learned judge? We believe not: we believe this hypothetical case to be fairly parallel to the one before us. If it be said that the appointment of a fast-day would manifestly be a religious legislation, equally clear is it, as it seems to us, that a prohibition of “worldliness” of employment, can by no possibility escape the same imputation. This statutory establishment of “the Lord’s day” observance is designed, it is enforced, it is univer­sally received, as a religious one. It cannot under any pretence be considered a purely civil regulation. If there is any difference between the enactment of a compulsory fast-day, and of a compulsory rest-day from worldliness, it is that the latter is vastly more oppressive and un­just than the former would be. How is it then that there should be such a wide difference in the general appreciation of these two cases? Repub­licanism blushes to answer,—simply because “a very large majority of the people celebrate the first day of the week as their chosen period of rest,” and if the observers of a Friday fast were equally powerful, it would “not be surprising that that day should receive the legislative sanction.”

As illustrating the spirit of the law in this state, it may not be irre­levant here to notice, that while it is so zealous to guard from desecra­tion the day which orthodox Christians esteem holy, it denies all pro­tection to the Jew in his observance of the Bible Sabbath. In the case of the executors of Simon vs. Gratz and others, (2 Pa. R. 416,) a con­tinuance was asked for by the plaintiffs, who were Jews, over their Sabbath; which postponement the court refused to grant. Chief Justice Gibson remarked: “It never has been held, except in a single instance, that the course of justice may be obstructed by any scruple or obligation whatever.” A happy exemplification of the tenderness with which the state protects “equality of religious right!” “It has never been held—except in a single instance!” The conscience of the Sunday Christian is undoubtedly to be fortified by every legal enginery, but that of a Jew cannot be permitted  “to obstruct the course of justice.” Judge Bell thinks that since a “large majority of the people celebrate the first day of the week as their chosen period of rest from labour, it <<158>> is not surprising that that day should have received the legislative sanction.” It certainly is not good law that a majority, because “very large,” can of right do what the established constitution of their government expressly prohibits them from doing. One great pride and glory in this fundamental contract of the people is, that it was designed to secure the “natural and indefeasible rights” of the minority, however small, from the violations and encroachments of the majority; and to deny that the sacredness of conscience shall be measured by its popularity.

Let us glance at one more illustration of the law’s rigid impartiality in upholding the rights of conscience. In the case of Stansbury vs. Marks, (2 Dall. R. 213,) the defendant offered Jonas Phillips, a Jew, as a witness in a trial occurring on Saturday. The witness refused to be sworn on that day, alleging that he dares not violate his Sabbath. He was fined, by the court, ten pounds. Thus it is now the well-settled law of Pennsylvania, that a Sabbatarian shall be punished for violating a Sabbath which he utterly repudiates, and he shall be punished for refusing to violate a Sabbath which too him is sacred. And all this by judicial decisions under a constitution which ordains that “no preference shall be given by law to any religious establishments or modes of worship.”

Leaving however, these melancholy evidences that the law is not always “summa ratio,” let us return to the point more particularly under consideration. Without enlarging further on the argument of Judge Bell, enough we think has been said fully to establish, with every unprejudiced mind, the proposition that the act of 1794 gives to the first day Sabbath a legal preference over any other similar religious establishment. In support of it, we have at least high judicial authority, since Judge Coulter has given it his full and unhesitating assent. To his opinion let us now give a slight attention:

“I concur cordially in the judgment of the court, that the Act of Assembly of 1705, and the Act of 22d April, 1794, are constitutional. The question has been so often decided by every court in the commonwealth, and so re­peatedly by this court, that 1 feel astonished at its being now entertained as a debatable or open question… I wish it to be distinctly understood, that I believe the laws constitutional, because they guard the Christian Sabbath from profanation, and in the language of the act of 1794, prohibit work or worldly employment on the Lord’s day.

“We are a Christian people and state; we are part and parcel of a great Christian nation. All over 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 recognise 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. William, 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 Pilgrims in the May-flower, after being long tempest-tost, when they reached the shores of this continent, declined to land on the Sabbath day. It comes to us as a holy day, from the very dawn of our existence as a people, <<159>>and was so regarded by the people from whom we sprung, since the days of King Athelstan. It is one of the primitive institutions of Christianity, one on the existence of which its continuance depends. General Christianity enters into the very frame of our social existence; it is part of the common law of the state. Law and order springing from the same source—the bosom of the Almighty—lean upon it for support. Our memories of the past, our hopes of the future, are dependent upon it. Why then should the Supreme Court not regard it, as our forefathers regarded it, and as the statute declares it to be—the Lord’s day?

“In many other statutes it is so denominated, and in my humble judgment ought to be so regarded by this court, according to precedent, and for the establishment of conservative authority. I do not recognise the right of legislation to make a day of secular cessation from labour, independent of the Christian Sabbath. It never was attempted in any Christian country, except in France, when it formally abolished Christianity, and set up the Goddess of Reason, and established the tenth day as a day of rest. But the Goddess, the tenth day, and the government, have perished, or faded into the calmer lights of the mild philosophy of the Encyclopedists. Like water that flows, and the air we breathe, the Sabbath of rest, when the bondman and the free, the master and the apprentice, and all men, meet in equality at the Christian altar—comes to us secured by the very organization of society, and the formation of the social compact. And it is therefore protected and guarded by our laws.”

With all respect for the learned judge, this dissertation is surely much more rhetorical than logical—much more appropriate to the pulpit than to the bench. It  is not easy to seize the precise chain of reasoning, whereby Judge Coulter defends the constitutionality of a law admitted by him to establish a religious precedence. “I believe the laws constitutional,” says he, “because they guard the Christian Sabbath.” This is at least not very cogent. The constitution of the state no­where enjoins that the laws shall guard the Christian Sabbath—how then can the fact of their doing so be a proof of conformity with that instrument? This declaration certainly exhibits great looseness and confusion of ideas in relation to the question at issue. If the law is constitutional at all, it most assuredly cannot be for the reason assigned. The Judge’s major is utterly unfounded.

We are told that the Pilgrims “declined to land on the Sabbath day.” And what authority can this present? Why are we not as well told that the Catholics under Lord Baltimore were much more liberal in their views? or that the Quakers under William Penn were much less rigid in their Sabbatism? The Puritans did not discover, neither did they settle this country: and if they had done both, it is not seen how this could affect our legislation, or help to interpret our constitution. It is to be hoped that we have made some advancement in republican institutions since the time when Sabbath-breaking was a capital crime, and it was held a civil offence for a mother to kiss her child. Why are we referred back to those times, in determining a simple question of constitutional law in the year of grace 1848?

The view taken by Judge C., so far as it can be collected from the opinion before us, appears to be, that although the act of 1794 was manifestly designed to give preference to a religious ordinance, it is not to be considered as coming within the intent of the constitutional prohi­bition, since Christianity “is part of the common law of the state.” If <<160>>such be the ground taken by Judge C., we must protest against it. We utterly reprobate the principle that the constitution can be modified by any human law whatever. It stands—as the express will of the sovereign people—above all laws, whether common or statute. It is law for the law-maker: it defines the appointed bounds by which his delegated powers are limited. It is that by which all other laws are measured and proportioned. It is a wretched fallacy, then, to say the constitution cannot mean thus, for the “common law” is otherwise. Rather, the common law cannot be, if it is otherwise than the apparent meaning of the constitution. Discarding, therefore, everything but this naked charter, we have only to consider what is the plain purport of the terms there used; and we have the language (too perspicuous for explanation,)—no political preferment shall be given “to any religious establishment.”

But granting for a moment that this provision might properly be relaxed in favour of the Christian religion, how far would this admission help the judge’s argument? How far would it establish the day he designates as “the Christian Sabbath?”* Judge C. has here totally neglected his minor premise. The sanctification of Sunday is not an essential of Christianity: it is only a part of the “mode of worship” of Lord’s day sectaries. Alas! we are here involved in the very whirlwind of theologic controversy. On the one side, “a very large majority” assure us that the fourth commandment is by all means to be strictly observed—excepting so far as relates to the “appointed day,” which they very confidently assume to have been changed by a subsequent amendment:—not indeed by any express statute,—not even by an indirect implication from any doctrinal precept of the New Testament,—but by an inference from certain historical passages therein contained, and by the slightly vague and disputed “authority of the Church.” Another class of believers warmly denounce this corruption of the Scripture regulations, and contend that no part of the enactment can be repealed, except by a legislation as authoritative, as public, as specific, and as unmistakable as was the enunciation of the original law itself; and that to except any part of the commandment, is to de­stroy the entirety of the decalogue, which was plainly designed as a complete and immutable code of universal duty. And as an hypothenuse in this recto-triangular warfare, the Anti-Sabbatarians arise, and declare that both are wrong; maintaining that the Sabbath was a purely Jewish ceremonial, commemorative of Israel’s release from Egypt, and typical of the Christian’s release from Sinai:—that the whole institution was abrogated by the new dispensation, as completely as circumcision; (Acts xv. 20, 1, and 28, 9;)—and that its observance is discouraged in Rom. xiv. 5,—condemned in Gal. iv. 10—and expressly forbidden in Col. ii. 16. How shall the state decide between these conflicting <<161>>claims, in attempting to establish Christianity? Shall the question be settled by a popular vote? Shall it be learnedly argued by attorney before the Supreme Court? or shall the penal law summarily dispose of it, without an argument and without a hearing? But first of all, where is the state’s authority for meddling with the question at all?

* It might not have been improper in the learned judge, while laying down ex cathedra the religious law, to give some authority for his “Christian Sabbath.” So far as the New Testament is concerned, there is but one Sabbath either spoken of, referred to, or in the most distant manner hinted at; and that is the Sabbath of the fourth commandment,—“The seventh day.”

Some remarks made by the editor of the “Christian Chronicle,” (a religious weekly newspaper of Philadelphia,) on this Sabbath decision, and on the positions assumed by Judge Coulter, seem to us so judicious, that we shall here transfer a portion of them:—

“We do not know what is generally meant when it is said that Christianity is part of the common law of the land. It is a very indefinite expression; which may mean much, or may mean little. It is a very convenient nose of wax, that may be shaped and twisted, and pointed at the will of any one who can lay his digits upon it. Does it mean that the state is thereby obligated to see that all men obey the laws which emanate from the founder of Christianity? If so they surely among these find baptism and the Lord’s Supper standing prominent. Shall the state compel to the observance of these? And shall it decide who are proper subjects, and what is the proper mode of baptism? Shall it settle the long-mooted communion question, and tell who shall and who shall not be admitted to the Lord’s table? If it is not allowed to inter­meddle with these things which are so prominent in the scheme of Christianity, where are the limits in which it shall be confined? Before we admit the truth of the proposition that Christianity is part and parcel of the common law, we should like to know what the proposition means. We can then receive it, if we see the evidence of its truth; or if we attack it, we can fight not as one that beateth the air.

“We cannot but be suspicious of every attempt on the part of the state to legislate on religious matters. We know that all ecclesiastical history bears testimony to the fact, that the civil power is a sad bungler when it attempts to settle theological questions….The question on which the Seventh Day Baptists differ from other denominations, is an open question. We regard them as occupying a Jewish stand-point, and contending for a Jewish law. But they regard the Sabbath law as part and parcel of Christianity. By what right shall the state step in to settle this mooted point? We doubt not that they can claim authority, to legislate on the subject of Christian ordinances, on precisely the same grounds.”

These sentiments breathe the very spirit of a liberal and enlightened Christianity; of a religion which seeks to bind its chains around willing hearts, and not around unwilling hands; of one so confident in the resources of its own divinity, that it dreads only the fictitious support of political patronage.

Although the doctrine laid down by Judge C., that “Christianity is part of the common law of the land,” is wholly unconnected with the question under discussion, since it is clear that working at any trade on Sunday was no offence at common law, (1 Strange, 702,) it has yet been so often asserted judicially, and extra-judicially, that it merits a sight examination. Considering that only so much of the common law, as well as the statute law of England, was extended to this country as was necessary to the exigencies of the colonies, (3 Bin. R. Jud.,) it might naturally be supposed, that in rejecting the oppressive political Christianity of the mother-country, tearing asunder the chains that had bound together in monstrous alliance the Church and State, and proudly stand<<162>>ing on the broad ground that an unfettered worship, according to the dictates of conscience, was the natural and indefeasible right of all—­that the young republic would sweep away every vestige of the ecclesiastical “common law,” as unsuited to its genius and its aspirations.

How could it effectually secure itself in its boasted religious freedom, or hope to continue the purity of its institutions, except by discarding every tenet of that spiritual despotism, which, through long centuries, had interwoven itself with the British code? Said Judge Brackenridge in 1813, “The Church establishment in England has become a part of the common law. But was the common law in this particular, or any part of it, carried with us in our emigration and planting a colony in Pennsylvania? Not a particle of it.” (5 Bin. R. 562.)

In 1824, Judge Duncan, however, held that “Christianity is, and always has been, a part of the common law of Pennsylvania.” (Updergraph vs. the Commonwealth. 11 S. & R. 400.) The worthy Judge was evidently considerably puzzled in attempting to attach a definite idea to his announcement, and adds in explanation, “not Christianity with an established Church, and tithes and spiritual courts, but Christianity with liberty of conscience to all men.”

An established religion, with universal liberty of conscience! Law, (an authoritative rule of action,) on a particular subject, with absolute personal immunity on the same subject! It must be confessed that the definition is not remarkable either for precision or perspicuity. Judge D. afterwards proceeds to explain that he does not refer to any Christianity in particular, but only in general. “By general Christianity is not intended the doctrine of worship of any particular church or sect.” Christianity as not embodied in any particular sect! We opine that such a Christianity would be rejected with wonderful unanimity by all sects, as a rank heresy. And shall that which all Christians look upon as heresy, be held to be the religious law of the land? Now if this “general Christianity” is truly the established law, since the constitution of the state—the supreme law—prohibits “any religious establishment,” it inevitably follows, that “general” Christianity is no religion at all! which brings us back to the conclusion aforesaid, entertained by all good Christians. Be the “common law” ever so sacred, not one particle of it can be enforced beyond what the sovereign constitution may tolerate. In other words, just so much of Christianity as is no religion, may be constitutionally established by law—not one whit more can be. If no political precedence can be given to any religious establishment, it needs no argument to prove that none can be given to any Christian establishment.

So much, then, for this vaunted dictum theoretically. Nor has it any greater value practically. Nothing of “general Christianity,” as vaguely described by Judge Duncan, has been, or can be, enforced by legal authority. Neglecting the Sabbath law, which is here assumed to be clearly unconstitutional, (and which forms no part of “general” Christianity—since it is only a “doctrine of worship of particular sects,” and it is violently, opposed by other sects,) there is not one distinctive feature of the popular religion permitted to intrude itself into our institutions. Let us hear Chief Justice Gibson in 1829:

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“Christianity,” says he, in Harvey vs. Boies, “has been indefinitely said to be a part of the law of the land. The law undoubtedly avails itself of the obligations of Christianity, as instruments to accomplish the purposes of justice. But judicial oaths are not founded exclusively on the belief of Christian revelation—a Jew or a Gentoo being allowed to swear in the form prescribed by his faith.* Christianity is indeed recognised as the predominant religion of the country, and for that reason are not only its institutions, but the feelings of its professors guarded against insult from reviling or scoffing at its doctrines: so far it is the subject of special favour. But farther the law does not protect it. Happily, it neither needs nor endures the patronage of temporal authority.” (1 Pa. R. 13.)

* The Deist who may “conscientiously refuse to take an oath,” cannot be re­quired to swear at all. It is certainly somewhat strange that any one could ever have pretended that judicial oaths were founded on the New Testament Revelation, when a large number of Christians reprobate all oaths as expressly forbidden by it! How far judicial oaths are supported by primitive Christianity, may be seen in Mat. v. 33, 34; and in James, v. 12:—passages whose comprehensive and unqualified language, not all the ingenuity of juratory commentators has ever been able to ex­tenuate or explain away.

The assumption that Christianity forms part of our political law—this “form of sound words” without meaning, so common in judicial sermons—appears to be founded on the vague idea that a  state, like an individual, if without any religion, is but a mighty Infidel. “We are a Christian people—and state,” says Judge C., as though, by some kind of implication, the former involved the latter. The notion is most mis­taken. The righteousness of the citizen can no more be imputed to his government, than can his stature or complexion. A political “state” is but a mutually defensive league. It is simply an associative machinery for the repression of violence and the protection of its constituents. “To secure their rights, governments are instituted among men.” Being then so clearly the creature of worldly relations and of worldly necessities, with the sanctions of another life the state has, and legitimately can have, no concern. These are as utterly foreign to the true purposes of its establishment as would be a vindication of the systems of Copernicus and Newton. Like every other organism, it will then most perfectly fulfill its functions, when most strictly circumscribed within its appropriate range of operation. It is from inattention to this fundamental—vital element of republicanism, that the awakening world has so long suffered all the unnumbered miseries of oppression and misrule. Such is the impressive lesson read to us by universal history.

“A Christian state!” Why it has only a corporate existence. It has neither a soul to be saved, nor even a body to be baptized. It can neither join the “communion-table” of the pious below, nor the chorus of departed saints above. A Christian state! How perfectly incongruous the conception. As well a Christian engine, or a Christian clock!

Here, then, we may safely leave the subject. If we have been successful in making apparent, that a law giving preference to any Chris­tian or other religious establishment, is in direct derogation of the lan­guage and the genius of the state constitution, since the act of 1794 has already been fully proved to do so, the conclusion is forced upon us be­<<164>>yond all possibility of confutation or escape, that it is unconstitutional.

The very decisions indeed, which have been under consideration, fully corroborate this position. Says Judge Coulter, “I do not recognize the right of legislation to make a day of secular  cessation from labour—independent of the Christian Sabbath.” Says Judge Bell, “Such a requisition, [that of a ‘recognition of the day as the true Sabbath,’] we agree with the plaintiff in error, would be a palpable interference with the rights of conscience.” The former denies the right of Sabbath legislation except in recognition of the Christian Sabbath, and the latter considers it a palpable wrong to require its recognition. Thus is it settled by the highest judicial authority in the state, that whether the Sunday act of Pennsylvania is regarded as a civil, or as a religious establishment, it is, in either case, equally a flagrant violation of political right.