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Argument of Thaddeus Stevens, Esq.
Question. Is the 1st section of the Act of the 22nd April, 1794, Unconstitutional?
Argument of Mr. Stevens.
May it please the Court: This record raises the question of the constitutionality of the Act of 22nd April, 1794. The first Section of the Act provides 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, etc., 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 said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days imprisonment in the house of correction of the proper county.”
At common law it was no offence to transact innocent business on Sunday. It is made criminal by Act of Assembly alone. That act of Assembly, we contend, violates the 3rd Section of the 9th Article of the Constitution of Pennsylvania, which is as follows:
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; 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 be given by law to any religious establishment or modes of worship.”
We are aware that more than thirty years ago this question was decided against us by the Supreme Court of this State, by two Judges, one of whom was just closing a long life of usefulness, and was then of great age. The other was just entering upon his judicial career. But questions of much less importance to the happiness of society, and the unalienable rights of man, have been, not infrequently, reconsidered by this Court. An important principle of the law of evidence, which had stood the test of more than forty years, and of repeated deliberate decisions of this Court, was lately reversed and totally changed in Post vs. Avery, and subsequent cases, because it was believed to work injustice in questions of property. The Legislature, as in this case, had refused to alter the law as established in Steele vs. The Phoenix Insurance Company; and the Court, in the exercise of an undoubted right, corrected it themselves. We are, therefore, bold to ask them to re-judge and correct the judgment of the Supreme Court in a question which deeply effects and grieves the consciences of inoffensive and pious men, eminent in honesty, peacefulness and orderly conduct.
Does this act of Assembly “control or interfere with the rights of conscience?” It evidently treats the first day of the week as a holy, a scared day; and it prohibits labor on that day, not for the purpose of giving rest to man, as a mere civil regulation, but because it profanes the Lord’s day. The 4th Section of the Act provides 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, et cetera, are 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 – and for that purpose, the said Magistrates may and shall commit such offenders on his own view – and in a summary way inquire into the truth of the accusation on the testimony of witnesses – and if the person so committed neglect or refuse to satisfy such forfeiture immediately with costs, or produce goods or chattels thereon to levy such forfeiture with costs, then the said justices or magistrates shall commit the offender without bail or mainprize to the house of correction of the county wherein the offense shall be committed, during such time as herein before directed, there to be fed on bread and water only, and to be kept at hard labor.”
We have other holidays. We have political Sabbaths, such as the 4th of July, and 22nd of February. We reverence them as days of great political events. But we do not enforce their observance by legislation. But the act in question compels all to observe Sunday as a sacred day. To oblige men to refrain from labor out of regard to its holiness, is to “control” their religious observance, as much as if they were ordered to kneel before the altar, or the images of the Saints. And to all those who conscientiously believe that it is not a holy day – that it is not the true Sabbath of the Lord, it is an “interference” with, and a constraint on their rights of conscience. It is no answer to say that the day of rest should be uniform among all. If it were a mere civil regulation, there might be some reason to it; but then it would be a day of recreation – of relaxation; and most probably those days would not come so frequently. The French, when they discarded its religious character, when they worshipped the Goddess of Reason, and provided only for the rest of the people, fixed the tenth day. But I suppose it requires no other argument than reading the several acts upon this subject, to prove our legislation looks to enforcing the religious observance of the day. If the legislature can direct that religious observance, then there is no limit to their power over religious subjects. If they can direct the people to stay at home quietly, they can direct them to go to church, and if they can direct them to attend church, they can indicate the church to be attended. In short, if they have any power over religious subjects, they have all power. Such power would be a perfect union of Church and State so much abhorred by the people of this Republic. It would inevitably lead to religious persecutions, and finally to civil and religious tyranny.
The doctrine that the “Christian religion is part of the common law” is, I suppose, the foundation and justification of this act. That doctrine was promulgated in the worst times, and by the worst men of a government that avowedly united Church and State; in times when men were sent to the block or the stake on any frivolous charge of heresy. To deny transubstantiation or the supremacy of the Pope, was a capital offense under another. Men were punished as blasphemers for denying the divinity of our Savior, because the “Christian religion was a part of the common law.” Men were executed in great numbers by the civil power for denying the real presence, because that was a part of the Christian religion – and the Christian religion was a part of the municipal law. When the Protestants gained the ascendency to believe in the real presence was contrary to the Christian religion, and therefore a violation of the law, and punished by the secular arm. For it is truly observed: “That no set of men were ever found willing to suffer martyrdom themselves for conscience’s sake, who would not inflict it upon others the moment they obtained power.”
As late as the nineteenth century, this pernicious doctrine led Lord Eldon to decide that Unitarians may be punished as blasphemers at common law, and not treated as Christians, notwithstanding the repeal of the Statute of 9 and 10 William the III – (3 Marivale, 353 Atty. Genl. Vs. Pearson)
How dangerous, therefore, is the apparently pious doctrine that the “Christian religion is part of the common law!” If it be true, all who are disbelieve that religion are habitual breakers of law. The Jew, the Hindoo, the Pagan, are perpetual malefactors. They, of course, are beyond the protection of the law, or continually subject to punishment for conscience’s sake. These consequences of the doctrine were very satisfactory to the English Government, in its origin. They enabled the tyrants of the 15th and 16th centuries to find a convenient excuse for sending to the block any one who became obnoxious to them. If such tyrant were a Roman Catholic, the heresy of the reformation was sufficient. If he was a Protestant, adhering to the Church of Rome was equally so. This lauded principle found ready advocates in such bloody tools of tyrants as Jeffries, Audley, and Rich.
What else was it but the doctrine “that the Christian religion was a part of the law,” and to be enforced by the civil arm, that gave the Holy Inquisition such horrid force, and placed civil and religious liberty, and the lives of nations of men, at the mercy of the bloodiest power that ever inflicted misery upon the human race, in the name of Demons or of Gods!
This convenient doctrine enabled Henry the 8th to dispose of all whom he chose to call his enemies, whether they were learned and conscientious gentlemen, like Sir Thomas More; or were wives, of whose beauty he was weary. His successor, after all the Jews of the Kingdom of all their wealth, either sent them to death or banished them from the Empire. And he was right, if this principle be right, for they were always violating the law, and of course deserved punishment.
If this doctrine be the rule of action, where do you find its interpretation? Where are to be found adjudged decisions of what this law teaches, so that the people may escape the perils of its violation? Are they to be seen in the doings of the council of Nice or the Diet of Augsburg? Are they in the Bulls of Hildebrand or the writings of Luther? In the rigid doctrines of Calvin, or the more liberal opinions of Wesley? Does this part of the “common law” (adopted in Pennsylvania,) command us to bow down before the image of the Virgin and the Saints; or discarding all visible symbols, to worship the Unseen God? This doctrine must drive us for refuge to the infallible Church of Rome, where the decrees of the Pope are the unerring rule of this part of the “common law.”
Those who have a sincere regard for the Christian religion can fear no greater evil to it than to have it mingled with affairs of State. Those who love civil liberty must shudder at the idea that this doctrine is ever to prevail in this Republic. Its practical results may be found in the fires of Smithfield; in the dungeons of the Inquisition; in the desolation of Italy, and the moral and political degradation of Spain. It is true, there was a time when this dangerous doctrine had a practical existence in some of the American colonies. The Pilgrims, who had been driven by it from their native homes, and tool shelter in the forests of New England, brought with them the very spirit which possessed the tyrants who expelled them. Some of their first acts of Legislation regulated the religion of the people. Frequent, cruel, and disgraceful punishments were inflicted for thoughts and opinions, which concerned only the creature and his Creator. Quakers were executed because they did not worship God as the Pilgrim Fathers did. Witchcraft was a capital crime. In short, all oppression of conscience has arisen from this fatal doctrine.
But when the great men of the Revolution set about establishing a government, which should secure the liberties of the people, they took especial care that the civil administration should be separated from the affairs of Church. They left questions of mere sin to be settled between God and His creatures. They left every man to judge of the requirements of Heaven as his own conscience might dictate. And to Heaven alone they left the judgment and the sanction.
The Constitution of almost every State in Union contains a section securing liberty of conscience.
The Constitution of the United States, as originally adopted, had no such provision.
But the first Congress that met under it, added the
This article is not as comprehensive as the one in the Constitution of Pennsylvania.
It has already received a construction by both the Senate and House of Representatives of the United States, which has a strong bearing on the present question.
In the sessions of 1829 and 1830 a large number of moral and
religious persons sent memorials to Congress, setting forth:
Two committees of the House and one of the Senate were charged with these memorials, and made reports which were adopted by the respective bodies. The one made by the committee, of which R. M. Johnson was chairman, became particularly celebrated and has done more to establish a permanent reputation for the chairman, than all his warlike deeds, however gallant. These reports maintain, that to compel men to refrain from work on the first day of the week because it is set apart as holy, would be a violation of the Constitution: (Vide Report of 4 and 5 March, 1830, House.) To declare any day to be the true Sabbath, and more holy than another, would infringe upon the religious belief, and grieve the consciences of some portion of our citizens. It would bring us back to that fatal evil of all other governments, the union of Church and State. For all governments but ours, whether Pagan, Mahomedan, or Christian, have directed religious worship by human laws. Hence, all the bloody persecutions that the world has seen. It is a melancholy truth, that those who believe in one God, have been more intolerant than Pagans. Polytheism, however erroneous, by allowing the worship of numerous Gods, became indulgent to the introduction of new ones. But the Mohomedans, Jews, and above all, I am compelled to say, the Christians have been guilty of the cruelest persecutions that ever afflicted the human race. True, the Romans, instigated by the Jews, put to death many of the early Christians. But where do we find anything to compare with the religious murders of England, Germany, and France – with the tragedy of the Cecilian Vespers? More blood has been shed by the familiars of the Holy Inquisition, than was ever offered a sacrifice to their hideous deities on Pagan altars. Nor can this spirit of holy ferocity be ever restrained so long as the civil power is lent to support religious belief.
Seeing this, the fathers of the Revolution took care that our government should be wholly disconnected with all religions. Instead of that being a defect, connecting them together in any way, would greatly injure both.
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