AN STATE PA BEARING ON .IGIOUS LEGISLATION YALE UNIVERSITY LIBRARY Gift of Edith and Maude Wetmore in memory of their father George Peabody Wetmore b.a. 1867 AMERICAN STATE PAPERS LEGISLATIVE ¦ EXECUTIVE • JUDICIAL AMERICAN STATE PAPERS BEARING on SUNDAY LEGISLATION Compiled and annotated by WILLIAM ADDISON BLAKELY Counselor at Law THE NATIONAL RELIGIOUS LIBERTY ASSOCIATION 43 Bond St., New York City ; 28 College Place, Chicago, III.; 251 W. Main St, Battle Creek, Mich.; 219 5th St., S. E., Washington, D. C; 18 Post St., San Francisco, Cal. MDCCCXCI Copyright, 1890, by WILLIAM ADDISON BLAKELY. all rights reserved. MreSO EDITOR'S PREFACE. POLITICAL history is a most interesting study; Political his tory an inter- and of all the political history of the world, no other esting study- has been so full of interest, so pregnant with matter for thought, as that of America for the last two cent uries. The irrepressible spirit of liberty in the early Americans and the philosophical ideas on govern ment characteristic of the times, united to bring forth inception of American a government more grand, more in accordance with !nst,tutl0ns- human rights, more in harmony with the principles of Christ, than any the world had ever seen. There is, however, a reaction taking place. And Reiigio- 01 political ideas the revival of the religio-political ideas of medieval emg revived- times, the practical operation of which, as declared by the United States Senate, "has been the desolating scourge of the fairest portions of the Old World," calls for the republication of American state papers which Repubii- x x l cation of have marked the successive steps in our political history. The influence of Roger Williams,1 of Washington, induenceof characteristic of Jefferson, of Madison, and of their fellow-states- Americans. 1 From the publications of the Narragansett Historical Society, I take the following : " Roger Williams, says Professor Gervinus, in his recent 'Introduc- Roger A\T| 1 limns tion to the History of the Nineteenth Century ' (Translated from the German. H. G. Bohn, London, 1853, page 65), founded, in 1636, a small new society in Rhode Island, upon the principles of entire liberty of conscience, and the uncontrolled power of the majority in secular Americanstate papers demanded. AMERICAN STATE PAPERS. Influenced characteristicAmericans. "Statue of Liberty " a fit-. ting tribute to America. American institutions. America the first to free herself from superstition. men, has been felt throughout the world. The free institutions established by them have made the name " America" a synonym of liberty. The famous Bar- tholdi " Statue of Liberty," presented to America by France, is a fitting tribute to the Utopia of nations. The world has marked with astonishment the un precedented advancement of American institutions, founded, as they are, upon theories more in ac cordance with the principles of absolute civil and religious liberty — theories which, previous to the establishment of American institutions, had existed only in the schools of philosophy — theories evi dently deducible from the principles of abstract justice and incontrovertible logic, but which had never had practical application. A new nation, proud of Anglican liberty, — proud of our English political philosophers and statesmen of the past few centuries, who have so manfully asserted human rights, — proud of insuring to the minority their rights, was the first to free itself from the superstitious ideas which had made govern ments restrict or entirely destroy the rights which Theories of the schools of philosophy. A vain prophecy. Influence of Rhode Island's free institutions. concerns. . . . The theories of freedom in church and state taught in the schools of philosophy in Europe, were here brought into practice in the government of a small community. It was prophesied that the democratic attempts to obtain universal suffrage, a general elective franchise, annual parliaments, entire religious freedom, and the Milton- ian right of schism, would be of short duration. But these institutions have not only maintained themselves here, but have spread over the whole Union. They have superseded the aristocratic commencements of Carolina and New York, the high-church party in Virginia, the theoc racy in Massachusetts, and the monarchy throughout America ; they have given laws to one quarter of the globe ; and, dreaded for their moral influence, they stand in the background of every democratic struggle in Europe." EDITOR'S PREFACE. they were instituted to protect.1 In striking contrast Contrast of governments. with the older governments, America has stood be fore an astonished world as a refuge for the perse cuted, a home for the oppressed, the land of the free. Shall these institutions which have thus benefited humanity be supplanted in this enlightened age by the church and state dogmas of past centuries ? It is true that some of the States have never given up the idea that religion and the state must have some connection.3 But, in contrast with this, our Shall Ameri can institutions be maintained? Some States still retain un- Americanideas. 1 Bancroft very justly says : "Vindicating the right of individuality even in religion, and in religion above all, the new nation dared to set the example of accepting in its relations to God the principle first divinely ordained in Judea. It left the management of temporal things to the temporal power; but the American Constitution, in harmony with the people of the several States, withheld from the federal government the power to invade the home of reason, the citadel of conscience, the sanctuary of the soul ; and, not from indifference, but that the infinite spirit of eternal truth might move in its freedom and purity and power." "History of the Formation of the Constitution," book v, chapter I. 2 In Pennsylvania, North Carolina, South Carolina, Mississippi, Tennessee, and Maryland, atheists and such as deny a "future state of reward and punishments," are excluded from public offices, and blas phemy is subject to punishment. See the constitutional provisions of these States in Judge Cooley's " Constitutional Limitations," fifth edi tion, page 197, note. South Carolina also orders all persons " to apply themselves to the observation [of Sunday], by exercising themselves thereon in the duties of piety and true religion, publicly and privately, and having no reasonable or lawful excuse, on every Lord's day to re sort to some meeting or assembly tolerated and allowed by the laws of the State." " Sunday Laws " (page 31), a paper read before the Ameri can Bar Association, 1880, by Henry E. Young, of the Charleston Bar; reprinted from the proceedings of the third annual meeting of the American Bar Association. In reference to Vermont (page 18), he says : ' ' Vermont ordains positively that Sunday shall be kept as a Sabbath, holy-day, or day of rest from all secular labor, recreation, and employ ment, from twelve o'clock on Saturday night to sunset on Sunday. The penalty for violation is two dollars. Under a like penalty, and within a like time, no one can be present at any public assembly, except such as shall be held for the purpose of social and religious worship and Right of individuality. Divine asser tion of liberty. Motive underlyingour political system. Relics of church and state. Compulsory Sabbath ob servance. Compulsory attendance at church. Sunday observancein Vermont. AMERICAN STATE PAPERS. American government not founded on religion. All Chris tians to ob serve Sunday. Our early colonial documents. American institutionsincompatible with persecu tion. American principles. Statement of a principle. national government declares that "the United States of America is not, in any sense, founded on moral instruction ; nor except from motives of humanity or charity, or for moral or religious edification, visit from house to house ; nor travel from midnight of Saturday to midnight of Sunday ; nor hold or attend any ball or dance, use any game, sport, or play, or resort to any house , of entertainment for amusement or recreation. This State has the con stitutional provision incorporated in the article on religious freedom, that every denomination of Christians should observe the Sabbath, or Lord's day, and keep up such sort of religious worship as to it seems agreeable to the ' revealed will of God.' " The early colonial laws and documents, especially, contain numer ous provisions against heretics, infidels, and dissenting sects. They also abound in recognitions of God and the Bible, and provide for the punishment of persons daring to speak or act contrary to the prevalent ideas on the subject of religion. The writer has just received a book with numerous quotations from some of these laws and documents, as declarative of " American " principles. One might as well point to the " Star Chamber " as an institution of Anglican liberty ; or to the scores of early laws which were the result of the superstitious ideas brought with them from the Old World as characteristic of the advancing spirit of liberty. Nothing is more evident than that the American spirit of liberty — the equal rights characteristic of our institutions — is abso lutely incompatible with the forfeiture of property because one person refuses to go to church, or to observe a day which certain other per sons consider as sacred ; and that our institutions are absolutely incom patible with the hanging of Quakers, the lashing of women with bared backs through the streets in midwinter, or with the banishment of such persons as Roger Williams — and all on account of exercising their God- given rights in matters of conscience. American principles are the prin ciples that frowned down that religious craze that had held the world captive so many years. American principles are the principles that have made the few remaining laws against infidelity, blasphemy, Sab bath-breaking, etc., a dead letter on the statute books of most of our States. American principles are the principles that say to the infidel, You have as much right to your opinion as the believer has to his ; that say to the blasphemer, You have as much right to speak against the Christian religion in which you do not believe as the Christian has to speak against a religion in which he does not believe ; that say to the Sabbatarian, You have as much right to work on Sunday as the Sunday- keeper has to work on Saturday ; or as Herbert Spencer says, every man has the right to "the fullest liberty to exercise his faculties com patible with the exercise of like liberty by every other man-" a more exact and philosophical statement of the self-evident truth in the Declaration of Independence, that "All men are created equal." EDITOR'S PREFACE. the Christian religion."1 The American government Foundation of American is founded upon human rights, upon the rights given s°vemment to every man by his Creator, upon the inalienable rights of life, liberty, and the free exercise of one's faculties. Pagan and Mahometan, Gnostic and Ag- ah equally entitled to the nostic, Jew and Gentile, Catholic and Protestant, are «e.rei?e°' ' their rights. all entitled to the unrestricted exercise of their equal rights, and to an impartial protection by the govern ment in such exercise. These are the principles characteristic of American institutions ; these were the principles of the founders of our government ; these are the principles of Anglican liberty, and the ideals. of Anglican philosophy.2 1 Treaty with Tripoli, 1796, article 11, post page 54. The celebrated report of the United States Senate of 1829, asserted the same principle in the following language : "It is not the legitimate province of the legislature to determine what religion is true, or what false. Our government is a civil and not a religious institution. Our Constitution recognizes in every person the right to choose his own religion, and to enjoy it freely, without molesta tion. Whatever may be the religious sentiments of citizens, and how ever variant, they are alike entitled to protection from the government, so long as they do not invade the rights of others." See post page 93. The report of the House of Representatives of 1830, declared also : "The Constitution regards the conscience of the Jew as sacred as that of the Christian, and gives no more authority to adopt a measure affecting the conscience of a single individual than of a whole commu nity." See post page no. 2 Burke, in his famous speech on "Conciliation with America," at tributed the American spirit to the fact that the colonists were of English descent, and " therefore not only devoted to liberty, but to liberty ac cording to English ideas, and on English principles." Francis Lieber, in his work "On Civil Liberty and Self-Govern ment" (London, 1853), page 214, says: "American liberty belongs to the great division of Anglican liberty [contradistinguished from Gallican liberty] . It is founded upon the checks, guarantees, and self-government of the Anglican tribe. The trial by jury, the representative government, the common law, self-taxation, the supremacy of the law, publicity, the submission of the army to the legislature, and whatever else has been enumerated, form part and parcel of our liberty. There are, how- Province of government. Rights of individuals. Jews have same rights as Christians. American liberty a divis ion of Anglican liberty. Anglican institutions. 10 AMERICAN STATE PAPERS. " Liberty enlightening the world." Effect of a retrogradation. Object of this work. Distinctive American institutions. American institutions the logical outgrowth of Anglicanphilosophy, Plan of this work. Revival of intolerant laws. Position of national government. Position of State governments. As an outgrowth of these principles, we have in America " Liberty enlightening the world." But this liberty will exist only in name if we enact and en force laws that are contrary to our constitutional rights, and unworthy a free and enlightened people. It is to set forth the true American idea — abso lute separation of religion from the state — absolute freedom for all in religious opinions and worship — that these papers are collected and republished.1 WILLIAM ADDISON BLAKELY. University of Michigan, Ann Arbor, January l, 1891. ever, features and guarantees which are peculiar to ourselves, and which, therefore, we may say constitute- American liberty. They may be summed up, perhaps, under these heads : Republican federalism, strict separation of the state from the church, greater equality and acknowl edgment of abstract right in the citizen,.and a more popular or demo cratic cast of the whole polity." These last features, however, are but the logical outgrowth of the principles of Anglican liberty. 1 There are numerous other state documents on this question that might be inserted, but the limited space permits only the principal ones, which set forth the subject in a clear and decided manner. Consider able space in the first part of this work is devoted to the foundation prin ciples of the American government, — the absolute rights of the indi vidual, — and the usurpation of government in interfering with one's vested rights. It was the same spirit of liberty which produced these and hundreds of other similar documents, that during our early history either banished from the statute books or relegated to the background our Sunday laws, compulsory attendance at church, laws against Unitarians, infidels, witches, Baptists, Quakers, Sabbatarians, etc. But now, in certain localities, we see some of these very laws being revived, and new and more stringent ones being demanded. From thirty to fifty cases of the prosecution of Sabbatarians for Sunday work have come to the editor's notice within the past few years, among them being an ordained minister. The national government has always maintained but one position — uncompromising opposition to Sunday legislation or any legislation whatever giving one sect or religion preference over another. But on the other hand the States have been divided on the question, the statute-books of most of the States containing Sunday laws, and by far the larger number of the judicial decisions upholding these laws. Hence, decisions have been inserted in this work both in favor of and against the constitutionality of Sunday laws. CONTENTS. Preface . . Editor 5 Introduction Editor 11 Plan of Accommodation with Great Britain . . Mew York Provincial Congress . 17 Virginia Declaration of Rights . . . George Mason and Patrick Henry 17 Declaration of Independence .... Thomas Jefferson . . .21 Virginia Act for Establishing Religious Freedom Thomas Jefferson .... 23 A Memorial and Remonstrance . . . James Madison 27 Northwest Territorial Ordinance . . Continental Congress . . 40 Constitution op the United States . Constitutional Convention . . 43 Comments on the Constitution . . . Madison, Henry, et al. . 44 Proposed Amendments to the Constitu tion State and National Assemblies 47 Amendments to the Constitution . . Congress . . 50 Treaty with Tripoli United States Government . 54 Religious Proclamations Unconstitu tional Thomas Jefferson . . 56 An Act Regulating the Post-office Es tablishment Congress 58 Petitions in Reference to Sunday Mails Synod of Pittsburg et al. 58 Remonstrance against Sunday Mails . Hon. Gideon Granger . . 59 Memorial and Petition against Sunday Mails James P. Wilson et al. . 61 House Report on Sunday Mails . . . Hon. John Rhea ... §2 House Report on Sunday Mails . . . Hon. John Rhea ... . . 63 House Report on Sunday Mails . . . Hon. John Rhea .... 64 Report of Postmaster-General . . Hon. Return J. Meigs, Jun. 65 Senate Report on Sunday Mails . . . Hon. David Daggett .... 65 Discussion on Sunday Mails House of Representatives . 67 The Sphere of Civil Government . . Thomas Jefferson . . .69 The Rights of Jews James Madison 73 Civil Government and Religion . . . James Madison ... 75 Religion in Public Schools James Madison . .... 78 Civil Laws Against Blasphemy . . . John Adams 80 AMERICAN STATE PAPERS. An Act in Reference to the Post-office Department Discussion on Sunday Mails Senate Report on Sunday Mails . . House Report on Sunday Mails . . . Memorial against Sunday Legislation Christianity and the Common Law . . Crimes against God and Religion The Social Compact Sunday Contracts not Void Decision Upholding Sunday Laws Religious Laws Unconstitutional Decision Upholding Sunday Laws Sunday Laws Unconstitutional Sunday Laws Unconstitutional The Bible in the Public Schools American Public Schools . . . An Un-American Letter .... Plea for Sabbatarians .... Sunday Legislation The Bible in the Public Schools The Bible in the Public Schools Congress .... . . United States Senate . Col. Richard' M. Johnson Col. Richard M. Johnson General Assembly of Indiana Thomas Jefferson .... Blackstone'1 s Covimentaries James Madison Justice Caldwell Chief Justice Johnson Hon. Allan G. Thurman Judge Scott .... Chief Justice Terry . Justice Burnett . . Justice Welch General Grant .... Hon. H. W. Blair . Hon. Robert H. Crockett Attorney W. H. Me Kee New York Independent . Justice Orton 828289 101 "5127138142 144146151 157 166 179192 202206 208 214226229 APPENDIX. State Constitutions Constitutional Conventions Dr. A. H. Lewis . State legislatures ... St. Louis Globe- Democrat . Patrick Henry Arkansas Bar Association History of Sunday Legislation . Sunday Laws of the United States Sabbatarianism in Arkansas . . Persecution of Baptists . . . Sunday Laws Operation of Sunday Laws Judges Williams, Rose, et al. , The Celebrated King Case . W. A. Colcord Testimony in the King Case . ... Witnesses Cole, Dobbins, et al. Supreme Court Brief Col. T. E. Richardson . . , Index Editor 237267 272 32532633o 33o 33433835336i INTRODUCTION. The fundamental principle of American jurispru- American dence is that stated in the Declaration of Independ ence : that government is instituted to secure the rights of man. These rights are simply artificial divisions of the law of nature.1 Now that which is to be secured — man's rights — precedes that which secures them — civil government. They are also superior to the provisions of government. Black- stone says: "This law of nature being coeval with Law of mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity if contrary to this ; and such of them as are valid derive all their force, and all their authority, mediately or immedi ately, from this original." In the universal recognition (whether acknowl- Lawof _ m justice the edged or not) of this principle — that there is a supe- superior law. rior standard of justice — lies the force of charges that certain legislative acts are unjust. For injustice is nonconformity to the law of justice — which is the natural law. If the legislature were omnipotent, if 1 " It [the term ' law of nature '] is not used among them that be Law of learned in the laws of England to reason what thing as commanded or prohibited by the law of nature and what not ; but all the reasoning in that behalf is under this manner : "As when anything is grounded upon the law of nature, they say that reason will that such a thing be done ; and if it be prohibited by the law of nature, they say that it is against reason, or that reason will not suffer it to be done." St. Germain's Doctor and Student, II, 12, the authority cited by Lord Coke, post page 14, note. 12 AMERICAN STATE PAPERS. Need of an absolute standard. Law ot nature in declarationsof rights. Rights not created by constitutions. there were no superior law, if it could make right wrong and wrong right, then any law it might make could not be said to be unjust. Its own acts would be the standard of justice. Right would then be conformity to human law, and wrong, violation of human law. The absurdity of such a position is evi dent — the claim would be preposterous ; as long as the maxim, Humanum est errare, is true, there must be some invariable standard by which all human acts, public as well as private, are to be judged. This standard is variously termed the law of justice, the law of nature, natural rights, etc., and has reference to those abstract principles of justice and right im printed more or less clearly on the sense of every man. It is this law that receives formal recognition in our declarations of rights — declarations simply of certain parts of this superior law; — not that these rights are any more sacred when thus "declared" than they were before, but they are thus rendered more susceptible of enforcement. That they are simply a part of this higher law, and are so recog nized, is proved by the provision so generally in serted in declarations of rights, that "the enumera tion herein of certain rights shall not be construed to deny or disparage others retained by the people" — a direct acknowledgment that these rights inhere in the people, and that such declaration is simply an express acknowledgment of the most important principles of this law. Theoretically, it adds no force whatever to the rights. Such declaration is not dis similar to the frequent instances where the State Con stitutions re-enact certain provisions of the national Constitution. Such re-enactment does not make the provision any more binding ; nor would a pro vision to the contrary annul the superior law. The State Constitution, in so far as it contravened the pro visions of the national Constitution, would simply be void. Blackstone states this principle in his commen- INTRODUCTION. 1 3 taries : "Those rights, then, which God and nature Rights in- 1 ii'iii 1/- herentinman. have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are ; neither do they receive any addi tional strength when declared by the municipal laws to be inviolable. On the contrary, no human legis lature has the power to abridge or destroy them." It is true that when recognized in our Constitutions, Rights rec- , ognized con- our rights are more easily enforced, and hence this stitutionaiiy to ° J render them recognition was insisted on by Jefferson and other more secure. early American statesmen. But because this recog nition may not exist, one's rights cannot therefore be legitimately trampled upon. Even if the Consti tution did not prohibit the taking of private property for public use without just compensation, the legisla ture could not therefore legitimately do it. Nor can the legislature rightfully take the property of A and give it to B. There is no court in the land that would enforce such a decree. It would violate this superior law, and therefore be absolutely void. Hence, as gov- Deprivation of any natural ernment is instituted to secure the natural rights of right unconsti- 0 tutiooal. man, and as our Constitutions, in their declarations of rights, recognize this law and limit the powers of government accordingly, any law which deprives an individual of his rights is unconstitutional. In accordance with this principle, Jefferson de clared : " Our legislators are not sufficiently apprised Legislative of the rightful limits of their power, that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. . . . The idea is quite unfounded that on entering into n» natural ^ ° rights surren- society we give up any natural right." This doc- dered- trine is coeval with courts of justice, and was une quivocally asserted and re-asserted centuries ago by England's most eminent Chief Justices. Said the dis tinguished Lord Hobart : " Even an act of Parlia ment, made against natural equity, as to make a man 14 AMERICAN STATE PAPERS. Law of nature im mutable. Enforce ment of this principle. judge in his own case, is void in itself; for jura naturce sunt immutabilia, and they are leges legum." 1 Thus this American principle is simply that which has been declared again and again by the greatest jurists which have ever adorned the English bench. In "Elements of Right and of the Law" (section 520), Mr. Smith says: "It is a well-established principle of the American law, that an act of Congress in ex cess of the constitutional powers of the federal gov ernment is absolutely void ; and so far as the direct infringement of private rights is concerned, this prin ciple is in fact enforced by the courts ; but in ques tions merely political, there is in general no practical means of restraining the execution of the law. Never theless such a law is void, and not only affords no legal justification to any one seeking to enforce it, but every subordinate officer, and indeed every pri vate individual, has the right to disobey it, and will be vindicated in doing so by the courts." The foregoing is a brief summary of the reasons and authorities (though only a few out of many) es- Acts against natural rights absolutelyvoid. Law of nature cannot be altered. Unanimity of opinion. 1 Hobart, page 87 ; see also Bishop's First Book of the Law, chapter 9, section 90. This principle, it seems, was well established ; for Lord Coke cited numerous cases and said : "It appears in our books that in many cases the common law [that is, the courts] will control acts of Parliament, and sometimes adjudge them to be utterly void. For when an act of Parliament is against common right and reason, or re pugnant, or impossible to be performed, the common law will control it and adjudge such act to be void. . . . Because it would be against common right and reason, the common law adjudges the said act of Parliament as to that point void. . . . The opinion of the court (in An. 27, Hilary Term 6, Annuity 41) was that this statute was void." Dr. Bonham's case, 8 Coke's Reports, 118. See also Calvin's case, 7 Coke's Reports, 12-14, 25 > z Brownlow's Reports, 198, 265 ; Hardres's Reports, 140 ; 2 Coke's Institutes, 588. In Calvin's case (page 14) Lord Coke declared emphatically : "The very law of nature itself, never was nor could be altered or changed. And therefore, it is certainly true that jura naturalia sunt immutabilia. And herewith agreeth Bracton, book I, chapter 5, and Doctor and Stu dent, chapters 5 and 6. And this appeareth plainly and plentifully in our books." INTRODUCTION. 15 tablishing the principles which permeate these Ameri can state papers. The individual retains his natural rights, and government is limited accordingly. And as every individual equally has the natural right .Application to worship whom he pleases and on what day he pleases (as long as he interferes not with this same liberty in others), or to refrain from worshiping alto gether, any human law interfering with this right, is, under our Constitutions, void ; it matters not whether it be a Sunday law, a law to compel him to attend . Nature of interference church, or a law requiring any other religious obser- immaterial. vance, if it interferes with the right of a single indi vidual, it is unconstitutional and absolutely void. It is true that our judiciary have not always had Contra dictory opin- a clear conception of this principle, and numerous ions decisions are flatly contradictory, as is illustrated by the two positions on the constitutionality of religious laws presented in this work. But this is because in some cases precedents have been followed, not Precedent r and principle principles. Law, by some, has been regarded as a bundle of previous decisions, rather than as a science founded, like other sciences, on the immutable law of nature. The erroneousness of such a view must be obvious to all who have given it reflection. " The Mansfield's ° statement. law of England," Lord Mansfield observed, " would be an absurd science were it founded upon precedent only."1 And Lord Coke repeatedly declared that the law " is the perfection of reason." " Reason," said he, " is the life of the law ; nay, the common law itself is nothing else but reason." 2 In the onward march of civilization and in the . Progress in the science advancement of science in general, progress has of law also been made in our system of jurisprudence ; — 1 Cited by Kent in his " Commentaries on American Law," volume i, page *477- 2 Coke upon Littleton, section 976. Mr. Justice Powell, in Coggs v. Bernard, 2 Lord Raymond's Reports, 911, makes a similar statement: "Let us consider the reason of the case, for nothing is law that is not 16 AMERICAN STATE PAPERS. Law of nature im mutable. Church and state ideas re pudiated in America. Objects of government. Departures from funda mental prin ciples. not that principles have changed, for the law of nature is both unchangeable 1 and immutable, but in this advancement clearer views of the principles of justice have been obtained.2 Progress is especially seen in connection with religious legislation and religious decisions. In America the dogma that Christianity is a part of the common law has been repudiated. Sunday laws have been declared to be unconstitutional. Religious proclamations, too, were so held by Jefferson and Madison ; and the latter also states that public chaplaincies are an illegiti mate departure from American principles. And as our judges and legislators incline more to justice and reason and less to the precedents dictated by big otry, our government will become still more liberal, and our Sunday laws, and all other religious laws, will go the way that similar laws have gone before them. In order to fulfil the objects of government, every man must be insured " the fullest liberty to exercise his faculties compatible with the exercise of like liberty by every other man." This is the princi ple asserted in the Declaration of Independence, when it says, "All men are created equal ; " and the repeated departures from it in our religious laws which discriminate against the Sabbatarian3 and infidel are a standing reproach to our government, and a constant travesty on justice. Cases overruled. Injustice to Sabbatarians. 1 " One rule can never vary, viz., the eternal rule of natural justice." Chief Justice Lee, in Omychund v. Barker, I Atkinson's Reports, 46. 8 This is strikingly illustrated in the fact that "there are over one thousand cases to be pointed out in the English and American books of reports which have been overruled, doubted, or limited in their appli cation." Kent's "Commentaries on American Law," volume i, page *477. 3 " The Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief." Cooley's "Constitutional Limitations," page *476. American State Papers. * * * PLAN OF ACCOMMODATION WITH j—4.I775. GREAT BRITAIN. And as the free enjoyment of the rights of con- free enjoy- J J D ment of rights science is of all others the most valuable branch of °f conscience the most valu- human liberty, and the indulgence and establishment huma^iiberty' of popery all along the< interior confines of the old Protestant colonies tends not only to obstruct their growth, but to weaken their security, [Resolved,] that neither the Parliament of Great Britain, nor any other No earthly power can of earthly legislature or tribunal, ought or can of right right interfere interfere or interpose in anywise howsoever in the concerns. religious and ecclesiastical concerns of the colonies} VIRGINIA DECLARATION OF RIGHTS.2 JuneI2.I776. Adopted June 12, 1776. A declaration of rights, made by the representa- Title. tives of the good people of Virginia, assembled in 1 Adopted in the New York Provincial Congress, "Die Saturnii, 9 ho. A. M., June 24, 1775." "American Archives," Fourth Series, volume ii, pages 1317, 1318. Published under authority of an act of Congress, passed on the second of March, 1833. 2 "American Archives," Fourth Series, volume vi, pages 1561, 1562. The Virginia Declaration of Rights was drafted in accordance with an order of the celebrated convention of Virginia of 1776, it being "Resolved unanimously, That a committee be appointed to prepare 3 18 AMERICAN STATE PAPERS. Rights the full and free convention ; which rights do pertain basis and foun- . 7 jr J dation of gov- to them and their posterity, as the basis and jounaa- ernment. r tion of government. ah men Section I. That all men are by nature equally equally inde- ••!.*. pendent. free and independent, and have certain inherent a declaration of rights, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people." Ibid., page 1524. Similar provisions to those of the Virginia Declaration of Rights have subsequently been made in the Constitutions of nearly every State of the Union. Everyman's 1 Although the powers of earth are slow to recognize the fact, the innate sense „ , - ^ A. asserts politi- sense of every man — yea, the sense of even the savage — asserts the cal equality. self-evident truth that all men are created equal, — that no one has the right to usurp authority over the opinions of another. Treating of the evolution of the recognition of this principle, Herbert Spencer says : Liberty of " This first and all-essential law, declaratory of the liberty of each only bythe limited only by the like liberty of all, is that fundamental truth of which hke liberty of tne moral sense is to give an intuition, and which the intellect is to de velop into a scientific morality. Evidence of " Of the correctness of this inference" there are various proofs, upon e in erence. an examination of which we must now enter. And first on the list stands the fact, that, out of some source or other in men's minds, there keep continually coming utterances more or less completely expressive of this truth. Quite independently of any such analytical, examinations Peipetual as that just concluded, men perpetually exhibit a tendency to assert the assert the equality of human rights. In all ages, but more especially in later ones, man rights ^as t'1's tendency been visible. In our own history we may detect signs of its presence as early as the time of Edward I, in whose writs of sum mons it was said to be 'a most equitable rule, that what concerns all should be approved of by all.' How our institutions have been in- Equality be- fiuenced by it may be seen in the judicial principle that ' all men are All men n'at- equal before the law.' The doctrine that ' all men are naturally equal ' urally equal. ^ course oniy ;n s0 far as the;r cia;ms are concerned), has not only been asserted by philanthropists like Granville Sharpe, but as Sir Robert Fil- mer, a once renowned champion of absolute monarchy, tells us, ' Hey- ward, Blackwood, Barclay, and others that have bravely vindicated the rights of kings, . . . with one consent admitted the natural liberty and of1Am1ericann e1uality of mankind- ' Again, we find the Declaration of American In- Independence. dependence affirming that ' all men have equal rights to life, liberty, and the pursuit of happiness;' and the similar assertion that 'every haf an"^ "a" man haS an e1ual riSht with every other man to a voice in the making right with ev- of the laws which all are required to obey,' was the maxim of the Com plete Suffrage movement. In his essay on 'Civil Government,' Locke, too, expresses the opinion that there is ' nothing more evident than VIRGINIA DECLARATION OF RIGHTS. 19 rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. SECTION 2. That all power is vested in, and con sequently derived from, the people, that magistrates are their trustees and servants, and at all times amen able to them. Inherent rights cannot be alienated by any com pact. All power vested in the people. Magistrates, as servants, al ways amen able to the people. SECTION 16. 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 therefore all men are equally entitled to the free exercise of religion, ac- Religion can be directed only by rea son, not by force. All men are equally enti tled to the free exercise of re cording to the dictates of conscience ; and that it is i;gion. the mutual duty of all to practice Christian forbear ance, love, and charity towards each other. 1 that creatures of the same species and rank, promiscuously born to the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection.' And those who wish for more authorities who have expressed the same conviction, may add the names of Judge Blackstone and ' the judicious Hooker. ' " The sayings and doings of daily life continually imply some intui tive belief of this kind. We take for granted its universality, when we appeal to men's sense of justice. In moments of irritation it shows itself in such expressions as ' How would you like it ? ' ' What is that to you ? ' ' I've as good a right as you,' etc. Our praises of liberty are pervaded by it ; and it gives bitterness to the invectives with which we assail the oppressors of mankind. Nay, indeed, so spontaneous is this faith in the equality of human rights, that our very language embodies it. Equity and equal are from the same root ; and equity literally means equalness." " Social Statics," chapter 5, section 2. '"On the twelfth of June, the convention adopted, without a dis senting voice, its celebrated 'Declaration of Rights,' a compact, luminous, and powerful statement, in sixteen articles, of those great fundamental rights that were henceforth to be ' the basis and founda tion of government ' in Virginia, and were to stamp their character Locke says nothing is more evident. Evidences exhibited in daily life. Expressions indicating nat ural equality. Our lan guage itself an evidence of political equal ity. Declaration of Rights adopted unan imously. 20 AMERICAN STATE PAPERS. Its influence seen in all sub sequent Consti tutions. Liberty pre served only by adhering to fundamentalprinciples. The first as sertion of re ligious liberty in Virginia. Original ar ticle as writ ten by Patrick Henry. Madison an ardent advo cate of relig ious liberty. Religious toleration not religious lib erty. Religious lib erty a right, not a privilege. Government, of right, has no jurisdiction whatever in religious mat ters. Madison's character. upon that Constitution on which the committee were even then engaged. Perhaps no political document of that time is more worthy of study in connection with the genesis not only of our State Constitutions, but of that of the nation likewise. It is now known that, in the original draft, the first fourteen articles were written by George Mason, and the fif teenth and sixteenth by Patrick Henry. The fifteenth article was in these words : " 'That no free government, or the blessings of liberty can be pre served to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to funda mental principles.' "The sixteenth article is an assertion of the doctrine of religious liberty, — the first time that it was ever asserted by authority in Virginia. The original draft, in which Henry followed very closely the language used on that subject by the Independents in the Assembly of Westminster, stood as follows : " ' That religion, or the duty we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence ; and, therefore, that 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 color of religion, any man disturb the peace, the happiness, or the safety of society ; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.' Edmund Randolph, manuscript, 'History of Virginia.'" Tyler's "Patrick Henry," pages 183, 184. Of Madison, who was a member of this convention, history says : "Religious liberty was a matter that strongly enlisted his feelings. When it was proposed that, under the new Constitution, all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, Madison pointed out that this provision did not go to the root of the matter. The free exercise of religion, according to the dictates of conscience, is something which every man may de mand as a right, not something for which he must ask as a privilege. To grant to the state the power of tolerating is implicitly to grant to it the power of prohibiting : whereas Madison would deny to it any jurisdic tion whatever in the matter of religion. The clause in the Bill of Rights, as finally adopted, at his suggestion, accordingly declares that ' all men are equally entitled to the free exercise of religion, according to the dictates of conscience.' The incident not only illustrates Madi son's liberality of spirit, but also his precision and forethought in so drawing up an instrument as to make it mean all that it was intended to mean." Appleton's " Cyclopedia of American Biography," volume iv, page 165. The statements in the sixteenth section seemed to be proverbial of the times. The Presbytery of Hanover declared as follows : DECLARATION OF INDEPENDENCE. 21 DECLARATION OF INDEPENDENCE. juiy4,I776. In Congress, July 4, 1776. THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA.1 We hold these truths to be self-evident : that all American , i,i ,,t principles self- men are created equal ; that they are endowed, by evident. , i_ ¦/-• -i • , • , , . 1 , -^n men p°- tneir Creator, with certain unalienable rights ; that lWcaiiy equal. among these are life, liberty,3 and the pursuit of "The only proper objects of civil government are the happiness and Man's tem- protection of men in the present state of existence ; the security of the {he^only prop- life, liberty, and property of the citizen ; and to restrain and encourage er object of . government. the virtuous by wholesome laws equally extended to every individual : Manner of but the duty that we owe to our Creator, and the manner of discharging reHgiorfcog- it, can only be directed by reason and conviction, and is nowhere cogni- nizable only at 1 ' ' fa the bar of God. zable but at the tribunal of the universal Judge. To judge for ourselves, and to engage in the exercise of religion agreeably to the dictates of our The free ex- own conscience, is an inalienable right, which, upon the principles on ;on an inafien- which the gospel was first propagated, and the reformation from popery able "Snt' carried on, can never be transferred to another." It was also asserted that if the Assembly had a right to determine Government the preference between Christianity and the other systems of religion g;ve prefer- that prevail in the world, they might also at a convenient time give a pref- ence to Chns- erence to some favored sect among Christians. Washington entertained the same views : " Every man who conducts himself as a good citizen, is accountable Washing- alone to God for his religious faith, and should be protected in worship ing God according to the dictates of his own conscience." 1" United States Statutes at Large," volume i, page I. 2 On the rights of life and personal liberty, Spencer says : "These are such self-evident corollaries from our first principle [/. e., Corollaries that " Every man has freedom to do all that he wills, provided that he ^ g^t pr;n. infringes not the equal freedom of any other man"] as scarcely to need clple- a separate statement. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, it is manifest that he has a claim to his life : for without it he can do nothing that he has willed ; and to his personal liberty : for the with drawal of it partially, if not wholly, restrains him from the fulfilment of his will. It is just as clear, too, that each man is forbidden to deprive 22 , AMERICAN STATE PAPERS. Govern ments insti tuted to secure our rights. happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.1 Jefferson the drafter of the Declaration of Independence. The leading statesman of the times. Political views. A firm advo cate of relig ious liberty. Madison the best exponent of Jefferson's principles in the Constitu tional Conven tion. Jefferson's views on natu ral rights. On entering into society man gives up no natural right. Letter to Mr Randolph. Best politi cal works. his fellow of life or liberty, inasmuch as he cannot do this without break ing the law, which, in asserting his freedom, declares that he shall not infringe 'the equal freedom of any other.' For he who is killed or enslaved is obviously no longer equally free with his killer or enslaver." "Social Statics," chapter 8, section I. 1 Thomas Jefferson was chairman of the committee appointed to draft the Declaration of Independence, and himself wrote the original, which met with very little alteration in the committee. Jefferson was both a scholar and a philosopher, and of all the great statesmen that the times produced, he undoubtedly took the lead. His views on government were those laid down by Locke — the social compact theory — that governments derive their just powers from the consent of the governed, and that no power on earth has a right to interfere with an individual's natural rights. Religious liberty had no firmer, no more consistent, advocate than Mr. Jefferson ; and no other statesman of the times had a clearer idea of the foundation principles of our government. The nearest friend of Jefferson in the Constitutional Convention was Madison, who was also the best exponent of the principles held by that great democratic statesman. Jefferson's views on the doctrine of natural rights are found in a letter to Francis W. Gilmer, dated at Monticello, June 7, 1816: "Our legislators are not sufficiently apprised of the rightful limits of their power ; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another ; and this is all from which the laws ought to restrain him ; every man is under the natural duty of contributing to the necessities of the society ; and this is all the laws should enforce on him ; and, no man having a natural right to be the judge between him self and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. ' ' In reference to the best works on government, in a letter to Mr. Randolph, dated at New York, May 30, 1790, Jefferson said : "In polit ical economy, I think Smith's Wealth of Nations is the best book extant ; in the science of government, Montesquieu's Spirit of Laws is generally recommended. It contains, indeed, a great number of political truths ; but also an equal number of heresies ; so that the reader must be con stantly on his guard. . . . Locke's little book on government, is perfect as far as it goes. Descending from theory to practice there is no better book than the Federalist. Burgh's Political Disquisitions are ACT FOR ESTABLISHING RELIGIOUS FREEDOM. 23 A IN AL 1 Dec. 26, i78s. FOR ESTABLISHING RELIGIOUS FREEDOM.1 Well aware that Almighty God hath created the God has ere- ir .-f.ii ' n t a ted the mind mind free ; that all attempts to influence it by tern- free. poral punishments or burdens, or by civil incapacita- good also, especially after reading De Lome. Several of Hume's Polit ical Essays are good. There are some excellent books of theory writ ten by Turgot and the economists of France. For parliamentary knowl edge, the Lex Parliamentaria is the best book." "Works of Thomas Jefferson," volume iii, page 145. Subsequently, during his second term as President of the United States, in a letter to John Norvell, dated at Washington, June 11, 1807, Letter to he said : " I think there does not exist a good elementary work on the organization of society into civil government : I mean a work which Works on presents in one full and comprehensive view the system of principles on which such an organization should be founded, according to the rights of nature. For want of a single work of that character, I should recommend Locke on Government, Sydney, Priestly's Essay on the First Principles of Government, Chipman's Principles of Government, and the Federalist." Ibid., volume v, pages 90, 91. 1 " Works of Thomas Jefferson," volume viii, page 454 et seq.; " Col lection of the Laws of Virginia," by W. W. Hening, volume xii, page 84. Jefferson took more pride in this " Act for establishing religious Jefferson's freedom" than in anything else he ever wrote, except that immortal 6"re:' '•*b-n document, the Declaration of Independence. The following is a por- for establish- e • -i • ,- r-iT titt ing religious tion of an interesting letter written to his warm friend, James Madison : freedom. "Paris, December 16, 1786. Letter to "... The Virginia act for religious freedom has been received with paris. infinite approbation in Europe, and promulgated with enthusiasm. I do Reception of not mean by the governments, but by the individuals who compose rope. them. It has been translated into French and Italian, has been sent to . Its tra,ns'a-„ tion and pubh- most of the courts of Europe, and has been the best evidence of the cation. falsehood of those reports which stated us to be in anarchy. It is inserted in the new Encyclopedia, and is appearing in most of the publi cations , respecting America. . . " "Works of Thomas Jefferson," volume ii, pages 55, 56. Jefferson endeavored to effect this disestablishment a decade before. Speaking of the General Assembly of 1776, Parton says : " Petitions for the repeal of statutes oppressive of the conscience of Efforts made r' r l a decade be- disserrters came pouring in upon the Assembly from the first day of the fore. 24 AMERICAN STATE PAPERS. burdSStend ^ons> tenc^ onty to beget habits of hypocrisy and to beget hy- meanness, and are a departure from the plan of the pocnsy. 7 * x holy Author of our religion,1 who being Lord both Religion not of body and mind, yet chose not to propagate it by to be propa- . . , ...... , gated by coer- coercions on either, as was in his almighty power to do; that the impious presumption of legislators Someiegis- and rulers, civil as well as ecclesiastical, who being lators assume dominion over themselves but fallible and uninspired men, have as- the faith of others. sumed dominion over the faith of others, setting up session. These being referred to the Committee of the Whole, led to the severest and longest struggle of the session. ' Desperate contests,' as Jefferson records, ' continued almost daily from the eleventh of Octo- Jefferson de- ber to the fifth of December.' He desired to sweep away the whole f'h b° ies, " system of restraint and monopoly, and establish perfect liberty of con- liberty at once, science and opinion, by a simple enactment of half a dozen lines : No. C°™P"^" ' ' ' No man shall be compelled to frequent or support any religious of religion. worship, ministry, or place whatsoever ; nor shall be enforced, re- None to suf- . , , ,,,.,.,, , , „ feron account strained, molested, or burdened in his body or goods; nor shall other- fief6 ous wise suffer on account of his religious opinions or belief : but all men All to have shall be free to profess, and by argument to maintain, their opinions in legeS( matters of religion ; and the same shall in nowise diminish, enlarge, or affect their civil capacities.' Nine years " It required more than nine years of effort on the part of Jefferson, fecVthe pas- Madison, and their liberal friends, to bring Virginia to accept this solu- sageof the tion of the religious problem, in its simplicity and completeness." Par- ton's " Life of Jefferson," page 2io. 1 Illustrative of the spirit of liberty during the Revolutionary period and definitive of the meaning of the term " religion " in our early docu ments, I insert the following comments of Jefferson on the adoption of this part of the preamble, as found in his " Autobiography : " Liberality of "The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition ; but, with some mutilations in the preamble, it was finally passed ; and a singular Its protec- proposition proved that its protection of opinion was meant to be univer- beuruversal.0 sal- Where the preamble declares that coercion is a departure from the plan of the holy Author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, " a de parture from the plan of Jesus Christ, the holy Author of our religion ; " Religion the insertion was rejected by a great majority, in proof that they meant pehend" all- to comprehend within the mantle of its protection the Jew and the believers or unbelieversthe Bible. Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." See " Works of Thomas Jefferson," volume i, page 45. ACT FOR ESTABLISHING RELIGIOUS FREEDOM. 25 their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and main tained false religions over the greatest part of the world, and through all time ; that to compel a man to furnish contributions of money for the propaga tions of opinions which he disbelieves, is sinful and tyrannical ; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose mor als he would make his pattern, and whose powers he feels most persuasive to righteousness, and is with drawing from the ministry those temporal rewards, which proceeding from an approbation of their per sonal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind ; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry ; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right ; that it tends also to corrupt the prin ciples of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it ; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way ; that to suffer the civil magistrate to intrude his pow ers into the field of opinion and to restrain the pro fession or propagation of principles, on the supposi tion of their ill tendency, is a dangerous fallacy, Some en deavor to im pose their opinions on others. Compulsion in furnishing money for the propagation of opinions, ty rannical. Even forcing one to support teachers of his own belief, de prives him of rightful lib erty. Civil rights have no de pendence on religious opin ions. Any civil in capacitationon account of religion is a deprivation of natural right. It also cor rupts the relig ion it is meant to encourage. The intru sion of civil power into the field of opin ion destroys religious lib erty. 26 AMERICAN STATE PAPERS. which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall Time square with or differ from his own ; that it is time terferewhen enough for the rightful purposes of civil government, break out into for its officers to interfere when principles break out overt actions. into overt actions against peace and good order ; Truth will and, finally, that truth is great, and will prevail if left error if feft to to herself, that she is the proper and sufficient antag- herself. . , . r r , onist to error, and has nothing to fear from the con flict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them. Be. it therefore enacted by the General Assembly, That no man shall be compelled to frequent or sup port any religious worship, place, or ministry whatso- Noman ever, nor shall be enforced, restrained, molested, or ics'ted or bur- burthened in his body or goods, nor shall otherwise dened in body __ . or goods on surfer on account of his religious opinions or belief; account of re- i . ., 111 ligious belief, but that all men shall be free to profess, and by Aii men argument to maintain, their opinions in matters of shall be free to x maintain their religion, and that the same shall in no wise diminish. opinions in * iHonrs°£re" enlarge> or affect their civil capacities. And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with the powers equal to our own, and that therefore to declare this act irrevocable, would be of no effect in law, yet we the'naturafh,s are free to declare> and do declare, that the rights rights of ma,,- hereby asserted are of the natural rights of mankind, the contrar'0 anC* ^^ if" any act sna^ be hereafter passed to repeal iS- the Present or t0 narrow its operation, such act will urai right. be an infringement of natural right. MADISON'S MEMORIAL. 27 MADISON'S MEMORIAL.1 During the Year 1785. To the Honorable, the General Assembly of the Com monwealth of Virginia : A MEMORIAL AND REMONSTRANCE. We, the subscribers, citizens of the said common- Preamble. wealth, having taken into serious consideration a bill printed by order of the last session of General Assem bly, entitled, "A bill establishing a provision for teach- B;n causing ers of the Christian religion," z and conceiving that the remonstrance. 1 " Writings of James Madison," published by order of Congress, (Philadelphia, 1865), volume i, page 162, el seq. 2 The bill was quite liberal, as it allowed every person to pay his Liberality of money to his own denomination ; or, if he did not wish it to go to any ' e ' ' denomination, it was to go to the maintenance of a school in the county. The objection to it was that it gave the Christian religion a preference Objection to over other beliefs, which was opposed to religious equality. Madison b'"- said that it was " chiefly obnoxious on account of its dishonorable prin- Its dishonor- ciple and dangerous tendency." In a letter to Thomas Jefferson, dated and dangerous at Richmond, January 9, 1785, Madison gave the following account of tendency. the bill : " A resolution for a legal provision for the ' teachers of the Christian History of religion ' had early in the session been proposed by Mr. Henry, and, in spite of all the opposition that could be mustered, carried by forty- seven against thirty-two votes. Many petitions from below the Blue Ridge had prayed for such a law ; and though several from the Presby- Laity op- terian laity beyond it were in a contrary style, the clergy of that sect p°presbyterian favored it. The other sects seemed to be passive. The resolution lay ?ler8y favored some weeks before a bill was brought in, and the bill some weeks before it was called for ; after the passage of the incorporating act [incorporat ing the Protestant Episcopal Church], it was taken up, and, on the third reading, ordered by a small majority to be printed for considera tion. The bill, in its present dress, proposes a tax of blank per cent on all taxable property, for support of teachers of the Christian religion. Each person when he pays his tax, is to name the society to which he Each person dedicates it, and in case of refusal to do so, the tax is to be applied to religion. the maintenance of a school in the county. As the bill stood for some time, the application in such cases was to be made by the Legislature to pious uses. In a Committee of the Whole it was determined, by a ma- 28 AMERICAN STATE PAPERS. A dangerous abuse of power. Reasons for remonstration. same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are deter mined. We remonstrate against the said bill — i. Because we hold it for a fundamental and un deniable truth, "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." 1 The religion, then, of every man must be left to the conviction and conscience of every man ; and it is the right of every man to Right to the exercise it as these may dictate. This right is in its religion is in- nature an unalienable right. It is unalienable, because alienable. Attempt to make bill more liberal. The dis criminationre-instated. Its dishonor able principle and dangerous tendency. Madison calls it an act for the corrup tion of our re ligious system. Efforts of Jefferson and Madison. Absolute equality of all. Representa tives defeated on account of voting for the bill. Presbyterian clergy become alarmed for themselves. jority of seven or eight, that the word ' Christian ' should be exchanged for the word ' religious.' On the report to the House, the pathetic zeal of the late Governor Harrison gained a like majority for re-instating dis crimination. Should the bill pass into a law in its present form, it may and will be easily eluded. It is chiefly obnoxious on account of its dis honorable principle and dangerous tendency." "Writings of James Madison," volume i, pages 130, 131. In a letter to Marquis Fayette on March 20, he remarked : "Our Legislature . . . did not pass the act for the corruption of our religious system." Ibid., page 140. It was laid over until the next ses sion, and in the meantime Madison wrote and circulated his "Memo rial and Remonstrance,'- which resulted in the defeat of the bill, and in the enactment of Jefferson's "Act for the establishment of re ligious freedom" in its stead. Thus by earnest effort on the part of Jefferson and Madison, the principle of absolute equality among all religions and among all religious believers — for the Jew, the Ma hometan, the infidel, etc., as well as for the Christian — was estab lished in Virginia as an exemplary precedent for other States. In a let ter of May 29, to James Monroe, Madison said : " I have heard of sev eral counties where the late representatives have been laid aside for vot ing for the bill, and not of a single one where the reverse has happened. The Presbyterian clergy, too, who were, in general, friends to the scheme, are already in another tone, either compelled by the laity of that sect, or alarmed at the probability of farther interferences of the Legislature if they once begin to dictate in matters of religion." "Writings of James Madison," volume i, pages 154, 155. 1 "Declaration of Rights," article 16. MADISON'S MEMORIAL. 29 the opinions of men, depending only on the evidence inaiienabii- . ity of religious contemplated in their own minds, cannot follow the liberty. dictates of other men. It is unalienable, also, be cause what is here a right towards men is a duty towards the Creator. It is the duty of every man Duty of ev- to render to the- Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of civil society. Before any man can be considered as a member of Wemust . ... - obey God civil society, he must be considered as a subject rather than J J man. of the Governor of the universe ; and if a member of civil society who enters into any subordinate as sociation must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with a saving of his allegiance to the universal Sovereign. We maintain, therefore, Religious i ¦ • • ¦ rights of no that in matters of religion no man s right is abridged man abridged ° ° ° by entering so- by the institution of civil society, and that religion a<*y- . . J J ' o Religion is is wholly exempt from its cognizance. True it is, y/hoiiy exempt J sr b > from the cog- that no other rule exists by which any question nr^ent?fg°v which may divide a society can be ultimately deter mined than the will of the majority ; but it is also Majority . may trespass true that the majority may trespass upon the rights upon rights of of the minority. 2. Because, if religion be exempt from the au- Legislatures ° x no authority thority of the society at large, still less can it be . ^?tft)vner over subject to that of the legislative body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited. It is limited with regard to the coordinate departments ; more necessarily is it limited with regard to the con stituents. The preservation of a free government requires, not merely that the metes and bounds which separate each department of power be inva riably maintained, but more especially that neither 30 AMERICAN STATE PAPERS. Rights of people are su preme. Encroaching rulers are ty rants. Submitting people are slaves. First step should cause alarm. Precedents dangerous. The princi ple itself should be opposed. Establish ment of Chris tianity op posed. Smallest in fringements tyrannical. Equality the right basis of every law. All men equal. No one has less rights than another. of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority, and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves. 3. Because it is proper to take alarm at the first experiment upon our liberties. We hold this pru dent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revo lution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other re ligions, may establish, with the same ease, any par ticular sect of Christians, in exclusion of all other sects? that the same authority which can. force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever ? 4. Because the bill violates that equality which ought to be the basis of every law, and which is more indispensable in proportion aS the validity or expediency of any law is more liable to be im peached. " If all men are by nature equally free and independent,"1 all men are to be considered as entering into society on equal conditions ; as relin quishing no more, .and, therefore, retaining no less, one than another, of their natural rights. Above all 1 " Declaration of Rights," article l. MADISON'S MEMORIAL. 31 are they to be considered as retaining an " equal Retention of b ± religious title to the free exercise of religion according to equaiityof ° b paramount lm- the dictates of conscience."1 Whilst we assert for p°rtance. ourselves a freedom to embrace, to profess, and to observe, the religion which we believe to be of divine origin, we cannot deny an equal freedom to them whose No aria- minds have not yet yielded to the evidence which has equal freedom to unbelievers. convinced us. If this freedom be abused, it is an offense against God, not against man. To God, therefore, not to man, must an account of it be rendered. As the bill violates equality by subjecting Equaiityis ... . . violated in some to peculiar burdens, so it violates the same prin- preferences x and exemp- ciple by granting to others peculiar exemptions. Are ti°ns. the Quakers and Mennonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable ? Can their piety alone be en trusted with the care of public worship ? Ought their religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others ? We think too favorably of the justice and good sense of these denominations to believe that they either covet preeminences over their fellow-citizens, or that they will be seduced by them from the common opposition to the measure.2 1 "Declaration of Rights," article 16. 2 A similar favor was held out to Sabbatarians by the Sunday-rest Attempted agitators. A Sunday bill was introduced in the Senate of the United batarian oppo- States, May 21, 1 888, and, largely through the opposition of Sab- sltion- batarians, was killed. The following year another Sunday bill was introduced, but containing a clause exempting conscientious observers of the seventh day from its operations. It seems, however, that they, too, had too much justice and good sense to either covet preeminence over their fellow-citizens, or to be seduced by the favor from the com mon opposition to the measure. Professor Jones, their representative at the hearing held February 1 8, 1890, before the House Committee on the District of Columbia, in the United States Congress, speaking on this point, said : "Why, then, does he [Mr. Crafts] propose to exempt these [Sev- Reasons for enth-day Adventists anfl Seventh-day Baptists] ? Is it out of respect Sabbatarians. 32 AMERICAN STATE PAPERS. The magis trate not com petent to de cide what is religious truth. An arrogant pretension. The words of leading Sun day-rest agitat- Objectof the proposed ex emption. Legislatures too lenient to Sabbatarians ! A sample of exemplary generosity — granting what is an inherent right! - 5. Because the bill implies either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension, falsified by the contradictory opinions of rulers in all ages and throughout the world ; the second, an unhallowed perversion of the means of salvation. for them, or a desire to help them in their good work ? Not much. It is hoped by this to check their opposition until Congress is committed to the legislation. " How do we know this ? We know it by their own words. The lady who spoke here this morning as the representative of the Woman's Christian Temperance Union, Mrs. Catlin, said in this city, ' We have given them an exemption clause, and that, we think, will take the wind out of their sails.' Well, if our sails were dependent upon legislative enactments, and must needs be trimmed to political breezes, such a squall as this might take the wind out of them. But so long as they are dependent alone upon the power of God, wafted by the gentle influences of the grace of Jesus Christ, such squalls become only prospering gales to speed us on our way. "By this, gentlemen, you see just what is the object of that pro posed exemption — that it is only to check our opposition until they secure the enactment of the law, and that they may do this the easier. Then when Congress shall have been committed to the legislation, it can repeal the exemption upon demand, and then the advocates of the Sunday law will have exactly what they want. I am not talking at random here. I have the proofs of what I am saying. They expect a return for this exemption. It is not extended as a guaranteed right, but as a favor that we can have if we will only pay them their own stated price for it. As a proof of this I read again from Mr. Craf ts's book, page 262 : ' ' ' The tendency of legislatures and executive officers toward those who claim to keep a Saturday Sabbath is to over-leniency rather than to over-strictness.' . "Again I read, and here is the point to which I wish especially to call the attention of the committee. It shows that they intend we shall pay for the exemption which they so over-generously offer: "'Instead of reciprocating the generosity shown toward them by the makers of Sabbath laws, these seventh-day Christians expend a very large part of their energy in antagonizing such laws, seeking, by the free distribution of tracts and papers, to secure their repeal or neglect.' " "Arguments on the Breckinridge Sunday Bill " (New York, 1890), page 37 el seq. MADISON'S MEMORIAL. 33 6. Because the establishment proposed by the bill Christian re- . . ligion needs is not requisite for the support of the Christian relig- not human ion. To say that it is, is a contradiction to the Chris tian religion itself, for every page of it disavows a dependence on the powers of this world. It is a contradiction to fact, for it is known that this religion Success of both existed and flourished, not only without the unsupported _ » by human law. support of human laws, but in spite of every opposi tion from them ; and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of providence. Nay, it is a contradiction in terms ; for a religion not invented by human policy must have preexisted and been supported before it was established by human policy. It is, moreover, to weaken in those who pro- Deleterious ... effects of es- fess this religion a pious confidence in its innate ex- tabiishing 0 1 _ Christianity. cellence and the patronage of its Author ; and to fos ter in those who still reject it a suspicion that its friends are too conscious of its fallacies to trust it to its own merits. 7. Because experience witnesseth that ecclesiastical of^er!,e,£ce establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal estab lishment of Christianity been on trial. What have been its fruits ? More or less, in all places, pride Effecton clergy and and indolence in the clergy ; ignorance and ser- laity. vility in the laity ; in both, superstition, bigotry, and persecution. Inquire of the teachers of Chris tianity for the ages in which it appeared in its greatest luster ; those of every sect point to the ages prior to its incorporation with civil policy. u^e^ft'he Propose a restoration of this primitive state, in which f^f^,;*; its teachers depended on the voluntary rewards of j£treecat£ing ¦ their flocks; — many of them predict its downfall. On which side ought their testimony to have greatest weig ht ; — when for, or when against, their interest? 3 34 AMERICAN STATE PAPERS. Establish ment of Chris tianity not nec essary. Religion not in the cogniz ance of gov ernment Effects of ecclesiasticalestablish ments. Good gov ernment se cures to every citizen equal religious en joyment. A departure from the policy of our govern ment. A sad degen eracy. Equality of citizens in vaded. Similarity to Inquisition. 8. Because the establishment in question is not nec essary for the support of civil government. If it be urged as necessary for the support of civil govern ment only as it is a means of supporting religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If religion be not within the cognizance of civil government, how can its legal establishment be necessary to civil government ? What influence, in fact, have ecclesiastical establish ments had on civil society ? In some instances they have been seen to erect a spiritual tyranny on the ruins of civil authority ; in many instances they have been seen upholding the thrones of political tyranny ; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty may have found in estab lished clergy convenient auxiliaries. A just govern ment, instituted to secure and perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion with the same equal hand which protects his person and his property ; by neither invading the equal right of any sect, nor suffering any sect to in vade those of another. Because the proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every nation and religion, promised a luster to our country, and an ac cession to the number of its citizens. What a melan choly mark is the bill of sudden degeneracy ! In stead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the legislative author ity. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other is the last in the career MADISON'S MEMORIAL. 35 of intolerance. The magnanimous sufferer of this Sufferers . . from persecu- cruel scourge in foreign regions must view the bill as tionswiiiberepelled. a beacon on our coast warning him to seek some other haven, where liberty and philanthropy, in their due extent, may offer a more certain repose from his troubles. Because it will have a like tendency to banish our Effect on . . rr^, . . emigration. citizens, ihe allurements presented by other situa tions are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy, would be the same species of folly which has dishonored and depopu lated flourishing kingdoms. Because it will destroy that moderation and har- Religious preferences mony which the forbearance of our laws to inter- 'oster discord. meddle with religion has produced among its several sects. Torrents of blood have been spilt in the Old- Effectof proscribing re- World in consequence of vain attempts of the secular ligious differ- x l ences. arm to extinguish religious discord by proscribing all differences in religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American theater has exhibited proofs that equal Salutary ef- , . ... . r . i,t ,. feet of equal and complete liberty, if it does not wholly eradicate and complete it, sufficiently destroys its malignant influence on the- health and prosperity of the State. If, with the salutary effects of this system under our own eyes, we begin to contract the bounds of religious freedom, we know no name which will too severely reproach our folly. At least, let warning be taken at the first- Threatened innovations fruits of the threatened innovation. The very ap- should be re- J r pulsed. pearance of the bill has transformed "that Christian forbearance, love, and charity,"1 which of late mutu ally prevailed, into animosities and jealousies, which 1 " Declaration of Rights," article 16. 36 AMERICAN STATE PAPERS. Dangers of religious legis lation. Preference of Christian religion detri mental to itself. Evangeliza tion retarded. Ignoble an unchristian timidity ex hibited. Injurious tendenciesin general. The great importance of the measure. may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of law ? Because the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of man kind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false religions, and how small is the former ! Does the policy of the bill tend to lessen the disproportion ? No ; it at once discourages those who are strangers to the light of revelation from coming into the region of it, and countenances by example the nations who continue in darkness in shutting out those who might convey it to them. Instead of leveling, as far as possible, every obstacle to the victorious progress of truth, the bill, with an ignoble and unchristian timidity, would circum scribe it with a wall of defense against the encroach ments of error. Because attempts to enforce, by legal sanctions, acts obnoxious to so great a proportion of citizens, tend to enervate the laws in general, and to slacken the bands of society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? And what maybe the effect of so striking an example of impotency in the government on its general authority ? Because a measure of such singular magnitude and delicacy ought not to be imposed without the clearest evidence that it is called for by a majority of citizens ; and no satisfactory method is yet pro posed by which the voice of the majority in this case may be determined, or its influence secured. "The people of the respective counties are, indeed, MADISON'S MEMORIAL. 37 requested to signify their opinion respecting the adoption of the bill to the next session of the As sembly." But the representation must be made equal before the voice either of the representatives or of the counties will be that of the people. Our hope is, that neither of the former will, after due consideration, espouse the dangerous principle of the bill. Should the event disappoint us, it will still leave us in full confidence that a fair appeal to the latter will reverse the sentence against our liberties. Because, finally, "the equal right of every citizen to the free exercise of his religion, according to the dictates of conscience," is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature ; if we weigh its im portance, it cannot be less dear to us ; if we consult the declaration of those rights "which pertain to the good people of Virginia as the basis and foundation of government,"1 it is enumerated with equal solem nity, or rather with studied emphasis. Either, then, we must say that the will of the Legislature is the only measure of their authority, and that in the plenitude of that authority they may sweep away all our fundamental rights, or that they are bound to leave this particular right untouched and sacred. Either we must say that they may control the free dom of the press, may abolish the trial by jury, may swallow up the executive and judiciary powers of the State ; nay, that they may despoil us of our very right of suffrage, and erect themselves into an in dependent and hereditary Assembly ; or we must say that they have no authority to enact into a law the bill under consideration. We, the subscribers, say that the General Assem bly of this commonwealth have no such authority. "Request for expression of opinion. Hopes for the ill success of the danger ous principle. Equal rights in the exercise of religion held by same tenure with other rights. A natural right If legisla tures can in terfere with re ligion, they can take away all fundament al rights. Either we must say they are omnipo tent, or that they can estab lish no relig ious prefer ences. Declaration of petitioners. 1 " Declaration of Rights," title ; ante page 17. 38 AMERICAN STATE PAPERS. Showing preference for the Christian religion a dan gerous usurpa tion. Invocation to the Supreme Lawgiver. And in order that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it this remonstrance ; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act which would affront his holy preroga tive, or violate the trust committed to them ; and, on the other, guide them into every measure which may be worthy of his blessing, redound to their own praise, and establish more firmly the liberties, the prosperity, and the happiness of the commonwealth.1 Prayer was answered and bill defeated. Two invalu able docu ments. The incep tion of the memorial. Very exten sively signed by Christians. Jefferson's bill a perma nent barrier against relig ious legisla tion. Letter to General La Fayette. 1 The prayer of these magnanimous and exemplary Christians was answered ; for the bill "establishing a provision for the teachers of the Christian religion" was defeated, and Jefferson's " Act for establishing religious freedom," ante page 23, was passed by the Assembly in its stead. There are two documents that are invaluable in arriving at a proper conclusion in reference to the views held by our early statesmen — the famous "Act for establishing religious freedom," written by Thomas Jefferson, and the celebrated " Memorial and Remonstrance," written by James Madison, and circulated and signed in the remotest parts of the State. In reference to the inception of this memorial, he said, forty years afterwards, in a letter to George Mason : ' ' Your highly distinguished ancestor, Col. Geo. Mason, Col. Geo. Nicholas also possessing much public weight, and some others, thought it would be advisable that a remonstrance against the bill should be prepared for general circulation and signature, and imposed on me the task of drawing up such a paper. This draught, having received their sanction, a large number of printed copies were distributed, and so extensively signed by the people of every religious denomination, that at the ensuing session the projected measure was entirely frustrated ; and under the influence of the public sentiment thus manifested, the celebrated bill 'establishing religious freedom' enacted a permanent barrier against future attempts on the rights of conscience, as declared in the great charter prefixed to the Constitu tion of the State." "Writings of James Madison," volume iii, page 526. In a letter to General La Fayette, dated at Montpelier, November, 1826, Madison gave the following account of the controversy : "In the year 1775, a bill was introduced under the auspices of Mr. Henry, imposing a general tax for the support of 'teachers of the Christian religion.' It made a progress, threatening a majority in its favor. As an expedient to defeat it, we proposed that it should be post- MADISON'S MEMORIAL. 39 poned to another session, and printed in the meantime for public con sideration. Such an appeal in a case so important and so unforseen could not be resisted. With a view to arouse the people, it was thought proper that a memorial should be drawn up, the task being assigned to me, to be printed and circulated through the State for a general signa ture. The experiment succeeded. The memorial was so extensively signed by the various religious sects, including a considerable portion of the old hierarchy, that the projected innovation was crushed ; and, un der the influence of the popular sentiment thus called forth, the well- known bill prepared by Mr. Jefferson, for ' establishing religious free dom,' passed into a law, as it now stands in our code of statutes." "Writings of James Madison," volume iii, page 543. On the importance of consulting the writings of our early statesmen to obtain correct views of the principles advocated by them, Madison says : "It has been the misfortune of history, that a personal knowledge and an impartial judgment of things rarely meet in the historian. The best history of our country, therefore, must be the fruit of contributors bequeathed by cotemporary actors and witnesses to successors who will make an unbiased use of them. And if the abundance and authentic ity of the materials which still exist in the private as well as public re positories among us should descend to hands capable of doing justice to them, the American history may be expected to contain more truth, and lessons certainly not less valuable, than those of any country or age." " Writings of James Madison," volume iii, pages 308, 309. Both Jefferson and Madison were opposed to the state's having any thing whatever to do with regulating religious observances of any kind ; and the liberal spirit supported them. But as this spirit is supplanted by self-interests, the intolerance of state-churchism again manifests itself in reviving the old religious laws, and prosecuting Sabbatarians for Sunday labor, etc. Jefferson, foreseeing this, desired to have all religious laws swept from the statute books, not willing to have them remain as a dead letter, which might at any time be revived by the partisan zealot. In his "Notes on Virginia," query xvii, Jefferson says : " Besides, the spirit of the times may alter, will alter. Our rulers will become corrupt, our people careless. A single zealot may com mence persecution, and better men be his victims. It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the con clusion of this war we shall be going down hill. It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till oxir rights shall revive or expire in a convulsion. ' ' Postponement Extensively signed by Christians. Adoption of Jefferson's bill. Importance of American history. The state should have nothing what ever to do with religion. Danger from the zealot. Danger from intolerent laws unrepealed. 40 AMERICAN STATE PAPERS. July 13, 1787. No orderly person shall ever be mo lested on ac count of his worship. AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO.1 Adopted in the Continental Congress, July 13, 1787. ARTICLE I. No person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments in the said territory. Religion, morality, and knowledge be ing a necessity, educationshall forever be encouraged. ARTICLE III. Religion, morality, and knowledge being' neces sary to good government and the happiness of man kind, schools and the means of education shall forever be encouraged.2 Adoption of ordinance. Articles to forever remain unalterable. Erroneous views. 1 ' ' While the Constitutional Convention was in session at Philadelphia, the Continental Congress, sitting under the Articles of Confederation, passed an ordinance July 13, 1787, 'for the government of the territory of the United States northwest of the river Ohio.' This territory was ceded by Virginia to the United States, and embraced the present States of Ohio, Indiana, Illinois, Michigan, and Wisconsin. The same ordi nance was afterwards extended to Tennessee, Alabama, and Mississippi. This ordinance provides for full religious liberty on the one hand, and for the cultivation of religion, morality, and education, as essential conditions of national prosperity." "Church and State in the United States," page 1 19. The articles above were among those which were to " forever remain unalterable. " See " Charters and Constitutions of the United States," volume ii, page 431. s It is maintained that the word " religion " in this article has refer ence specifically to the "Christian religion," and that provision is here made for the teaching of "Christian principles" in the public schools. No such idea, however, is contained in the article. The word " religion " as used in our early state documents, was a generic term, and had refer ence to all systems of belief in a superior power. A similar question arose about >. year previous to the .adoption of this ordinance, in the NORTHWEST TERRITORIAL ORDINANCE. 41 very Assembly that ceded this territory to the United States — the Gen- Declaration eral Assembly of the State of Virginia. And in reporting this, Tefferson °J the General ,, .,.7, , ... . Assembly of says : Where the preamble declares that coercion is a departure from Virginia. the plan of the holy Author of our religion, an amendment was proposed by inserting the word 'Jesus Christ,' so that it should read, ' a depart ure from the plan of Jesus Christ, the holy Author of our religion ; ' the insertion was rejected by a great majority, in proof that they meant Religion to comprehend, within the mantle of its protection, the Jew and the metnt T Cum' ~ .. . „7 . . J prebend all — O entile, the Christian and Mahometan, the Hindoo, and infidel of every believers or denomination. " " Works of Thomas Jefferson, "volume i," page 45 . {h^Biible5™ °f On the provision in question, which was afterwards incorporated in the Constitution of the State of Ohio, the Supreme Court says as fol lows : "If, by this generic word ' religion,' was really meant ' the Chris- Decision of tian religion,' or 'Bible religion,' why was it not plainly so written? *em?Court. * Surely the subject was of importance enough to justify the pains, and surely it was of interest enough to exclude the supposition that it was written in haste, or thoughtlessly slurred over. At the time of adopting our present Constitution, this word ' religion ' had had a place in bur old Constitution for half a century, which was surely ample time for studying its meaning and effect, in order to make the necessary correction or alteration, so as to render its true meaning definite and certain. The same word 'religion,' and in much the same connection, is found in the Constitution of the United States. The latter Constitution, at least, if not our own also, in a sense, speaks to mankind, and speaks of the rights of man. Neither the word ' Christianity,' ' Christian,' nor ' Bible,' is to be found in either. When they speak of ' religion,' they must mean the Meaning of religion of man, and not the religion of any class of men. When they liglon/^ speak of ' all men ' having certain rights, they cannot mean merely ' all Christian men.' Some of the very men who helped to frame these Constitutions were themselves not Christian men. "The declaration is, not that government is essential to good religion, but that religion is essential to good government. Both propo sitions are true, but they are true in quite different senses. Good gov ernment is essential to religion for the purpose declared elsewhere in Government the same section of the Constitution, namely, for the purpose of mere ijgion only xia" protection. But religion, morality, and knowledge are essential to gov- Protect IC- eminent, in the sense that they have the instrumentalities for producing and perfecting a good form of government. On the other hand, no gov- No govern- ernment is at all adapted for producing, perfecting, or propagating a ™ep'0pagate good religion. Religion, in its widest and best sense, has most, if not good religion. all, the instrumentalities for producing the best form of government. Religion is the parent, and not the offspring, of good government. Its kingdom is to be first sought, and good government is one of those things which will be added thereto. True religion is the sun which gives to government all its true lights, while the latter merely acts upon religion by reflection. 42 AMERICAN STATE PAPERS. State relig ion is some individual's religion. Whose re ligion shall the state adopt? To what ex tent will it go \ Religious in struction viola tive of Ohio's Constitution. Christianity not a part of Ohio's com mon law. Duty of the government to religion. Encourage ment given by our govern ment to re ligion. "Properly speaking, there is no such thing as 'religion of state.' What we mean by that phrase is, the religion of some individual, or set of individuals, taught and enforced by the state. The state can have no religious opinions ; and if it undertakes to enforce the teaching of such opinions, they must be the opinions of some natural person or class of persons. If it embarks in this business, whose opinion shall it adopt ? If it adopts the opinions of more than one man, or one class of men, to what extent may it group together conflicting opinions ? or may it group together the opinions of all ? And where this conflict exists, how thorough will the teaching be ? Will it be exhaustive and exact, as it is in elementary literature and in the sciences usually taught to children ? and, if not, which of the doctrines or truths claimed by each will be blurred over, and which taught in preference to those in conflict ? These are difficulties which we do not have to encounter when teaching the ordinary branches of learning. It is only when we come to teach what lies ' beyond the scope of sense and reason ' — what, from its very nature, can only be the object of faith — that we encounter these difficulties." And the counsel (among them Hon. Stanley Matthews and Hon. George Hoadley) for the Cincinnati Board of Education under the Ohio Constitution containing the above provision, in their argument to the Supreme Court in this case, said : " The State is, in Ohio, forbidden to interfere with, or exercise the office of, the church. ' Religious instruction and the reading of religious books, including the Holy Bible,' cannot be prosecuted in schools sup ported by the taxation of men of all religious opinions, without the viola tion of section 7, article 1, and section 2, article 6, of the Constitution. " Neither Christianity nor any other system of religion is a part of the law of this State. Bloom v. Richards, 2 Ohio State, 387 ; Thurman, Justice, in McGatrick v. Wason, 4 Ohio State, 571 ; article 1 1 of the treaty with Tripoli, concluded by the administration of George Washington, November 4, 1796, 8 United States Statutes at Large, 155." It is the duty of the state to "encourage" religion by giving every individual of whatever belief a full and impartial protection in the pro mulgation and exercise of his belief. As this has been the general pol icy of this government, we have as a result, better government and a better morality than any other nation. The encouragement of religion is an incident in insuring civil liberty, of which religious liberty and free thought are the most important branches. Religion in general has been encouraged to such an extent that America has been termed the "home of the persecuted ; " for here the Jew or Mahometan has equal rights — even though through the inefficiency or prejudice of the inter nal police they may not always be protected as they should be — with the highest professor of Christianity in the land. The teaching of Christianity constitutionally has no right in our public schools, or in any of our public institutions. THE FEDERAL CONSTITUTION. 43 THE CONSTITUTION OF THE UNITED sePtI7,I787. STATES.1 Adopted in the Constitutional Convention, September 17, 1787. We, the people of the United States, in order to Preamble. form a more perfect union, establish justice, insure domestic tranquillity, provide for the common de fense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. No religious test shall ever be required as a quali- No religious atior States.1 fication to any office or public trust under the United require". ° 1 "United States Statutes at Large," volume i, page 10. 2 Justice Joseph Story in his Commentaries on the " Constitution of the United States," page 690 et seq., says : "This clause is not introduced merely for the purpose of satisfying Objectofthe the scruples of many respectable persons who feel an invincible repug nance to any religious test or affirmation. It had a higher object : to cut off forever every pretense of any alliance between church and state All alliance in the national government. The framers of the Constitution were tobe'itorever fully sensible of the dangers from this source, marked out in the history severed- of other ages and countries, and not wholly unknown to our own. They knew that bigotry was unceasingly vigilant in its stratagems to secure to itself an exclusive ascendancy over the human mind, and that intoler ance was ever ready to arm itself with all the terrors of the civil power to exterminate those who doubted its dogmas or resisted its infallibility. The Catholic and Protestant had alternately waged the most ferocious Tactics of and unrelenting warfare on each other, and Protestantism, at the very andProtestant moment when it was proclaiming the right of private judgment, pre scribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom. The history of the parent country, too, could not fail to instruct them in the uses and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy." 44 AMERICAN STATE PAPERS. COMMENTS ON THE CONSTITUTION. VIRGINIA CONVENTION. The govern ment has not a shadow of right to inter meddle with religion . Mr. Madison : . . . There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation. I can appeal to my uni form conduct on this subject, that I have warmly supported religious freedom. It is better that this security should be depended upon from the general legislature, than from one particular State. A par ticular State might concur in one religious project.1 Liberty the direct end of government. Should be guarded with jealousy. Cause of England'sprosperity. Mr. Henry : Mr. Chairman. . . . You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured ; for liberty ought to be the direct end of your government. . . . Liberty — the greatest of all earthly bless ings — give us that precious jewel, and you may take everything else ! . . . Guard with jealous atten tion the public liberty. . . . We are descended from a people whose government was founded on lib erty : our glorious forefathers of Great Britain made liberty the foundation of everything. That country is become a great, mighty, and splendid nation ; not because their, government is strong and energetic, but, sir, because liberty is its direct end and founda tion. We drew the spirit of liberty from our British ancestors : by that spirit we have triumphed over every difficulty. . . . The great and direct end 'Elliot's "Debates on the Federal Constitution," volume iii, page 330. There were few objections urged so strongly against the pro posed Constitution as that it did not sufficiently insure religious liberty. COMMENTS ON THE CONSTITUTION. 45 of government is liberty. Secure our liberty and privileges, and the end of government is answered. If this be not effectually done, government is an without iib- p,,;i 1 ertygovern- c v Ll- • • • ment is an evil. NORTH CAROLINA CONVENTION. Mr. Caldwell thought that some danger might arise. He imagined it2 might be objected to in a political as well as in a religious view. In the first Constitution 1 i_ • 1 ._i ¦ • • /- y ' 1 an invitation place, he said, there was an invitation for Jews and toaiitocome . among us. pagans of every kind to come among us. ... I think, then, added he, that, in a political view, those gentlemen who formed this Constitution should not have given this invitation to Jews and hea thens.3 . . . MASSACHUSETTS CONVENTION. REV. Mr. BACKUS:4 Mr. President, I have said Speech of ... 1 • ' 1 tne Rev- Mr- very little to this honorable convention ; but I now Backus. 'Elliot's "Debates on the Federal Constitution, ".volume iii, pages 43 et seq., 53 et seq.,6$I. 2 Article six of the Federal Constitution, providing that no religious test shall ever be required as a qualification to any office or public trust under the United States. 3 Elliot's "Debates on the Federal Constitution," volume iv, page 199. This speech of Mr. Caldwell shows in what light the Federal Constitution was regarded at the time of its adoption, — by its opponents as well as by its friends, — that it intended absolute equality, irrespective Intention of of religious belief or worship. This point was emphasized by the adop- n on- tion of the first amendment to the Constitution. The idea that Chris tianity, or any other religion, was intended to be either favored or dis countenanced, was entirely foreign to the intentions of the framers of our government. Such charges are the gratuitous inventions of the op ponents of the absolute religious equality provided for by the Constitu tion — persons who desire to have their religious belief, Christianity, or its institutions, forced upon others. How different would be their A difference tone if it was some other person's religion that was being attempted to be forced on them ! * Rev. Mr. Isaac Backus was the author of the " History of New England" (three volumes), published 1777-1796; and, as " Appleton's 46 AMERICAN STATE PAPERS. Thoughts on beg leave to offer a few thoughts upon some points religious tests. ° 1 t 1 II u • in the Constitution proposed to us, and I shall begin with the exclusion of any religious test. Many ap pear to be much concerned about it ; but nothing is more evident, both in reason and the Holy Script ures, than that religion is ever a matter between God and individuals ; and, therefore, no man or men can impose any religious test without invading the essen tial prerogatives of our Lord Jesus Christ. Ministers first assumed this power under the Christian name ; and then Constantine approved of the practice, when he adopted the profession of Christianity as an en gine of state policy. And let the history of all na tions be searched from that day to this, and it will appear that the imposing of religious tests has been the greatest engine of tyranny in the world. And I rejoice to see so many gentlemen who are now giv ing in their rights of conscience in this great and important matter. Some serious minds discover a a character- concern lest if all religious test should be excluded, istic Protestant & argument. the Congress would hereafter establish popery or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.1 . Christian ity's first usurpation. Effect. An earnest advocate of the utmost relig ious freedom. Not a con flict between religion and irreligion. Wisdom manifested. Cyclopedia of American Biography" says, "Thoughout his life he was an earnest and consistent advocate of the utmost religious freedom. " He was one of the many early liberal ministers who worked heart and hand with the statesmen of the times to sever for the first time in the world's history the connection which had so long existed between religion and the powers of earth. It was not a conflict between religion and irreligion, nor between Christianity and infidelity ; but it was a conflict between f ree-churchism and state-churchism, between the liberty of the gospel and the superstition of heathenism, between human rights and the usurpa tions of ecclesiastics, and Dr. Backus and many other clergymen of the same stamp took the side of liberty, of humanity, and of the gospel of Christ. And upward of a century of unexampled prosperity by both the state and the church attests to the wisdom of their course. 1 Elliot's "Debates on the Federal Constitution," volume ii, pages 148, 149. PROPOSED CONSTITUTIONAL AMENDMENTS. 47 PROPOSED AMENDMENTS TO THE CONSTITUTION. NEW YORK CONVENTION. Sept 17, i7s7. That the people have an equal, natural, and un- Ail equally i ¦ , i . i r i i .i • 1 • entitled to the alienable right freely and peaceably to exercise their free exercise of ° J L^ J religion. religion according to the dictates of conscience ; and that no religious sect or society ought to be favored Religious or established by law in preference to others.1 wrong. PENNSYLVANIA CONVENTION. Dec r*. i7s7. The right of conscience shall be held inviolable, The right of ° conscience to and neither the legislative, executive, nor judicial j!fbS1eeld invio" powers of the United States shall have authority to alter, abrogate, or infringe any part of the Constitu tions of the several States, which provide for the preservation of liberty in matters of religion.2 NEW HAMPSHIRE CONVENTION. June ai, i788. Congress shall make no laws touching religion, No laws & 1 touching or to infringe the rights of conscience. religion. 1 Elliot's "Debates on the Federal Constitution," volume i, page 328. 2 In Pennsylvania, the minority of the convention issued an address entitled, "Reasons of Dissent," etc., in which several amendments were proposed, the first of which was the above. The " Reasons of Dissent" were published, Philadelphia, December 12, 1787, and re printed in Carey's " American Museum," volume ii, number 5, pages 536-553 ; quoted by Schaff in " Church and State in the United States," page 31. 3 Elliot's "Debates on the Federal Constitution," volume i, page 326. 48 AMERICAN STATE PAPERS. June 27, 1788, Natural rights inalien able. All power vested in the people. Magistrates their trustees, Religion can be directed only byreason, not by force. Religious preferences wrong. VIRGINIA CONVENTION. That there are certain natural rights, of which men, when they form a social compact, cannot de prive or divest their posterity ; among which are the enjoyment of life and liberty, with the means of ac quiring, possessing, and protecting property, and pursuing and obtaining happiness and safety. That all power is naturally invested in, and con sequently derived from, the people ; that magistrates are therefore their trustees and agents, at all times amenable to them. 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, therefore, all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.1 . Aug. 1, i788. NORTH CAROLINA CONVENTION. Religion can be directed onlyby reason, not by force. Religious preferences wrong. 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, therefore, all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience ; and that no particular religious sect or society ought to be favored or established by law in preference to others.2 1 Elliot's " Debates on the Federal Constitution," volume iii, page 650. 2 Elliot's "Debates on the Federal Constitution," volume iv, pages 242, 244. This amendment was among twenty others proposed in PROPOSED CONSTITUTIONAL AMENDMENTS. 49 RHODE ISLAND CONVENTION. Maya9,i79o. That religion, or the duty which we owe to our Religion can Creator, and the manner of discharging it, can be oniybyreason, _,.,,, not by force. directed only by reason and conviction, and not by force and violence ; and, therefore, all men have a natural, equal, and unalienable right to the exercise of religion according to the dictates of conscience ; and that no particular religious sect or society ought Religious to be favored or established by law in preference to wVong?nct others.1 NATIONAL HOUSE OF REPRESENTATIVES. Aug. 14, i876. No State shall make any law respecting an estab- states forbid- 1-1 r 1 • • i-,.- ,/- den to *nter* hsnment of religion, or prohibiting the free exercise fere with free exercise of thereof; and no money raised by school taxation in religion. any State, for the support of public schools, or de rived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the con trol of any religious sect: nor shall any money so state money 1 11 1 • • 1 1 not to be put to raised, or lands so devoted, be divided between re- religious uses. ligious sects or denominations.2 the Convention of North Carolina as a "Declaration of Rights," the wording being substantially the same as the one proposed by Virginia. 1 Elliot's " Debates on the Federal Constitution," volume i, page 334. a On December 14, 1875, the Hon. James G. Blaine proposed the above amendment to the Constitution. It was not acted upon, how- TheBlaine ever, until the succeeding Congress, when, on August 14, 1876, it was passed with the almost unanimous vote of "Yeas, 180," to "Nays, 7." When the amendment came up for action in the House, the Judiciary Its favorable Committee added the following: "This article shall not vest, enlarge, or diminish legislative power in Congress." When introduced into the Senate, it was further amended, but failed to secure the necessary two- thirds vote in its favor, the vote standing, "Yeas, 28," to "Kays, 16." Both of the great political parties that year inserted in their platforms resolutions on the subject of religious freedom, the Democratic party declaring : " We do here re-affirm . . . our faith in the total separation of church and state, for the sake alike of civil and religious freedom." reception. 50 AMERICAN STATE PAPERS. AMENDMENTS TO THE CONSTITUTION. Sept. 25, 1789. Limitations on Congress. ARTICLE I. Congress shall make no law respecting an estab lishment of religion} or prohibiting the free exercise Meaning of ' religion." It is the duty that we owe to our Creator. "Religion" intended to include all sys tems of belief. Subterfuges of religious partisans. Madison emphasizes his idea of absolute relig ious liberty. 1 Chief Justice Waite, who delivered the opinion of the Supreme Court of the United States, in the case of Reynolds u. United States, in 1878, said : "The word ' religion ' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted." This, most certainly, is the only way in which we can obtain the correct meaning of the word. And as the subject was a live question when the Federal Constitution was adopted, the documents of the times furnish us an accurate idea of the meaning intended by the use of the word "religion." In the Virginia " Declaration of Rights," adopted June 12, 1776, it is incidentally defined in the sixteenth section : " 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, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience ; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other." Identically the same definition was given to the word in the proposed amendments guaranteeing religious rights in the Federal Constitution, by the State conventions of Virginia, North Carolina, and Rhode Island. In the Virginia " Memorial and Remonstrance," written by Madison, it was distinctly stated that they meant religious equality to extend to all beliefs — not alone to sects of the Christian religion. They said : "Who does not see that the same authority which can establish Chris tianity in exclusion of all other religions, may establish with the same ease, any particular sect of Christians, in exclusion of all other sects?" And yet religious partisans resort to all kinds of subterfuges in their at tempts to make it appear in some way or other that the Christian re ligion is a part of our common law, its institutions are entitled to espe cial regard by the government, etc., ad infinitum. Madison emphasized the idea of absolute religious equality for all in the religious amendment which he originally proposed, among nine others, to incorporate in the body of the Constitution, instead of in separate articles as they were finally adopted. His proposed amendment was as follows : "Fourthly, That in article first, section nine, between clauses three and four, be inserted these clauses, to wit : The civil rights oj none shall AMENDMENTS TO THE CONSTITUTION. 51 thereof; or abridging the freedom of speech1 or of Freedom of i ..... speech. the press ; or the right of the people peaceably to assemble, and to petition the government for a re dress of grievances. be abridged on account of religious belief or worship, nor shall any na. No national tional religion be established, nor shall the full and equal rights of con- established * science be in any manner, or on any pretext, infringed." "Annals of Congress," page 434. From the above quotations it will be seen that the word "religion" "Religion" was used in its broadest sense. And, as Schaff says : "This is much agenenc erm- more than freedom of religious opinions; for this exists everywhere, even under the most despotic governments, and is beyond the reach of law, which deals only with overt actions. Freedom of exercise includes public worship, acts of discipline, and every legitimate manifestation of religion." " Church and State in the United States," page 35. The Complete framers of our government intended to separate absolutely and for- reTigion'and ever all connection between civil government and religion ; but as years statc intended. roll by, and the spirit of liberty that was so prominent a characteristic of the American people then, fades from the American mind, we see a revival of the demands for Sunday laws and their enforcement, and calls for the recognition of the Christian religion in our public documents. Religious But as long as the integrity of the Federal Constitution is preserved, no ten^withthe" such laws can be enacted by the government of the United States of Constitution. America. And any right that an individual has as a citizen of the United States, no State is allowed to abridge ; for, according to the fourteenth amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." 1 Herbert Spencer, commenting on the right of free speech, says : " The utterance of thought being one species of action, there arises from the proposition that every man is free within specified bounds to do what he wills, the self-evident corollary, that, with the like qualifica tion, he is free to say what he wills ; or, in other words, as the rights Man has the of his fellow-men form the only legitimate restraint upon his deeds, so, £ga£ h° ^Ms likewise, do they form the only legitimate restraint upon his words. " There are two modes in which speech may exceed the ordained Limitations limits. It may be used for the propagation of slander, which, as we have seen in a foregoing chapter, involves a disregard of moral obliga tion ; or it may be used in inciting and directing another to injure a third party. In this last case, the instigator, although not personally concerned in the trespass proposed by him, must be considered as hav ing virtually committed it. We should not exonerate an assassin who pretended that his dagger was guilty of the murder laid to his charge, on speech. 52 Sept. 25, 1789. Other rights of the people, AMERICAN STATE PAPERS. ARTICLE IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.1 Incitation to crime is crimi nal. The inciter equally guilty with incited. Extent of the liberty of speech. Instinct of personal rights. Effect of this instinct Idea of per sonal rights treated with contempt. Belief in the doctrine per petually be trayed. rather than himself. We should reply, that the having moved a dagger with the intention of taking away life, constituted his crime. Follow ing up the idea, we must also assert that he who, by bribes or persua sion, moved the man who moved the dagger, is equally guilty with his agent. He had just the same intention, and similarly used means for its fulfilment ; the only difference being that he produced death through a more complicated mechanism. As, however, no one will argue that the interposing of an additional lever between a motive force and its ultimate effect, alters the relationship between the two, so neither can it be said that he who gets a wrong done by proxy, is less guilty than if he had done it himself. Hence, whoso suggests or urges the infrac tion of another's rights, must be held to have transgressed the law of equal freedom. "Liberty of speech, then, like liberty of action, may be claimed by each, to the fullest extent compatible with the equal rights of all. Ex ceeding the limits thus arising, it becomes immoral. Within them, no restraint of it is permissible." "Social Statics," chapter 14, section 1. 2In his philosophical argument upon the self-evidence of inherent natural rights, Herbert Spencer says : " There exists in man what may be termed an instinct of personal rights — a feeling that leads him to claim as great a share of natural privilege as is claimed by others — a feeling that leads him to repel anything like an encroachment upon what he thinks his sphere of original freedom. By virtue of this impulse, individuals, as units of the social mass, tend to assume like relationships with the atoms of matter, surrounded as these are by their respective atmospheres of re pulsion as well as of attraction. And perhaps social stability may ultimately be seen to depend upon the due balance of these forces. "There exists, however, a dominant sect of so-called philosophical politicians, who treat with contempt this belief that men have any claims antecedent to those indorsed by governments. As disciples of Ben- tham, consistency requires them to do this.- Accordingly, although it does violence to their secret perceptions, they boldly deny the existence of ' rights ' entirely. They nevertheless perpetually betray a belief in the doctrines which they professedly reject. They inadvertently talk about justice, especially when it concerns themselves, in much the same style as their opponents. They draw the same distinction between law and equity that other people do. They applaud fairness and honor, AMENDMENTS TO THE CONSTITUTION. 53 ARTICLE XIV. June 16, 1866. SECTION i. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State in which they reside. No State shall make or No state to enforce any law which shall abridge the privileges or of "alonlf K ..... ° r ° citizens. immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or prop erty without due process of law, nor deny to any per son within its jurisdiction the equal protection of the laws. quite as if they thought them something more than mere words. And When they when robbed, or assaulted, or wrongly imprisoned, they exhibit the the)Tas'se«d' same indignation, the same determination to oppose the aggressor, their rights. utter the same denunciations of tyranny, and the same loud demands for redress, as the sternest assertors of the rights of man. By way of explaining such inconsistencies, it is indeed alleged, that the feeling thus manifested is nothing but the result of a gradually-acquired con viction that benefits flow from some kinds of action, and evils from other kinds ; and it is said that the sympathies and antipathies respec tively contracted toward these, exhibit themselves as a love of justice, and a hatred of injustice. To which supposition it was by implication elsewhere replied, that it would be equally wise to conclude that hunger springs from a conviction of the benefit of eating ; or that love of off spring is the result of a wish to maintain the species ! " But it is amusing when, after all, it turns out that the ground Ludicrous- on which these philosophers have taken their stand, and from which f;n?on°of these with such self-complacency they shower their sarcasms, is nothing philosophers. but an adversary's mine, destined to blow the vast fabric of con clusions they have based on it into nonentity. This so solid-looking ' principle of 'the greatest happiness to the greatest number,' needs but to have a light brought near it, and lo ! it explodes into the astounding assertion, that all men have equal rights to happiness — an assertion far more sweeping and revolutionary than any of those which are as sailed with so much scorn. " When we see, then, that an instinct of personal rights manifests Conclusion itself unceasingly in opinions and institutions ; when further we find menL arSU' that the attempt to trace the monitions of this instinct to experience, betrays us into an absurdity ; and when, lastly, the dogma of those who most sturdily deny that there is such an instinct, proves to be only another emanation from it, we find ourselves in possession of 54 AMERICAN STATE PAPERS. 5th Congress] [ist Session May26.I797. TREATY OF PEACE AND FRIENDSHIP BETWEEN THE UNITED STATES OF AMERICA AND THE BEY AND SUBJECTS OF TRIPOLI, OF BARBARY.1 Communicated to the Senate, May 26, 1797. Our govern ment not founded on Christianity. No enmity towards the Mahometan religion. Treaties the supreme law Not merely administerial measures. Treaties must be re garded in all courts. Framing of the treaty. ARTICLE ii. As the government of the United States of America is -not, in any sense, founded on the Christian religion? as it has in itself no charac ter of enmity against the laws, religion, or tranquillity, of Mussulmans.; and, as the said States never entered into any war, or act of hostility against any Mahom- the strongest possible evidence of its existence — the testimony of all parties. We are therefore justified in considering that existence as sufficiently proved." "Social Statics," chapter 3, sections 2, 3. J" American State Papers," Class I, Foreign Relations, volume ii, page 18 ; " United States Statutes at Large," volume viii, Foreign Treaties, page 154. According to article six of the Constitution of the United States, "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Consti tution or laws of any State to the contrary notwithstanding." When ever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States ; and whoever may have the right under any treaty, it is to be protected. Owings v. Norwood's Lessee, 5 Cranch, 344. Treaties are sometimes regarded as administerial measures, rather than measures of the government as a ¦ whole, being carried into execution by the sovereign power of the re spective parties to the instrument. According to a decision of the United States Supreme Court, however, we do not so regard them. In Foster and Elam v. Neilson, 2 Pet. 314, Chief Justice Marshall declared : "In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. ' ' 2 Dr. Philip Schaff, of the Union Theological Seminary, New York, says that he learns "from Dr. Francis Wharton that the treaty was framed by an ex-Congregational clergyman." "Church and State in TREATY WITH TRIPOLI. 55 etan nation, it is declared by the parties, that no pre- No religious . . r pretext to in- text, arising from religious opinions, shall ever pro- temrpt exist- ¦*- in? harmnnv. duce an interruption of the harmony existing be tween the two countries. ing harmony. the United States," page 41, note 2. So there was no antagonism or disrespect to the Christian religion intended ; nor do the words convey any such impression to the unbiased mind. It is simply a plain and un equivocal statement, though negative in form, of the absolute equality, as far as our government is concerned, of other religions with the Chris- tion religion. " It is not the legitimate province of the legislature," as Not the the United States Senate declared, " to determine what religion is true, Pr0.v,nce of the or what false." All are entitled to an impartial protection from the determine ... ..,.. . , .., , religious ques- government ; and it is entirely foreign to its sphere to inquire when, how, tions. why, or where a person worships or does not worship. The declaration fo^jjjjj^o ;B in the treaty is declarative of American institutions as understood by the sphere. statesmen founding them, and by the people at that time. The writings of Thomas Jefferson, James Madison, and others, also furnish conclusive proof on this point. Speaking of the Virginia "Act for establishing religious freedom," Jefferson, in his "Autobiography," gives the following, which is of interest in this connection : "The bill for establishing religious freedom, the principles of which Jefferson's had, to a certain degree, been enacted before, I had drawn in all the ;^g religious" latitude of reason and right. It still met with opposition ; but, with freedom. some mutilations in the preamble, it was finally passed ; and a singular proposition proved that its protection of opinion was meant to be uni- Protection versal. Where the preamble declares that coercion is a departure UigHSt'tabe from the plan of the holy Author of our religion, an amendment was universal. proposed by inserting the word 'Jesus Christ,' so that it should read, ' a departure from the plan of Jesus Christ, the holy Author of our religion ; ' the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew Embraces . **¦ j tt- j j • -c j 1 every shade and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of belief. of every denomination." "Works of Thomas Jefferson," volume i, page 45. And Madison, in his celebrated " Memorial and Remonstrance " of 1781; ante tiaee 30, says : " Who does not see that the same authority If a system / J» r to o J _ _ or religion can which can establish Christianity, in exclusion of all other religions, may be established, establish, with the same ease, any particular sect of Christians, to the *™ a^Lcan exclusion of all other sects ? ' ' The treaty was made under the administration of George Washington, and was signed and sealed at Tripoli on the fourth day of November, 1796, and at Algiers, the third day of January, 1797, by Hassan Bashaw, Dey of Algiers, and Joel Barlow, Consul-General of the United States. 56 AMERICAN STATE PAPERS. jan.23.l8o8. RELIGIOUS PROCLAMATIONS STITUTIONAL. UNCON- Written by Thomas Jefferson to the Rev. Mr. Millar.1 Washington, January 23, 1808. SIR : I have duly received your favor of the eighteenth, and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with. I consider the government of the United States as interdicted by the Constitution constitution from intermeddling with religious institutions, their nterdicts in- . ..... o m, . ¦.. termeddiing doctrines, discipline, or exercises. 1 his results not only from the provision that no law shall be made respecting the establishment or free exercise of re ligion, but from that, also, which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any re ligious exercise, or to assume authority in religious discipline, has been delegated to the general gov ernment. It must, then, rest with the States, as far as it can be in any human authority. But it is only with religion. No such power dele gated. Jefferson re fused to pro claim festivals. Alliance be tween church and state con demned. 1 " Works of Thomas Jefferson," volume v, pages 236, 237. 2 In harmony with the principle here laid down, Je0erson refused to proclaim any fasts or festivals. In a letter to Mr. Lincoln, dated January I, 1802, he said : "The Baptist address, now inclosed, admits of a condemnation of the alliance between church and state, under the authority of the Constitution. It furnishes an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did. The address, to be sure, does not point at this, and its introduction is awkward. But I foresee no opportunity of doing it more pertinently. I know it will give great offense to the New England clergy ; but the advocate of religious free dom is to expect neither peace nor forgiveness from them. " "Works of Thomas Jefferson," volume iv, page 427. Madison, also, considered the enjoining of fasts and festivals as an unwarranted assumption on the part of the chief executive. stitution. RELIGIOUS PROCLAMATIONS UNCONSTITUTIONAL. 57 proposed that I should recommend, not prescribe, a Jefferson's day of fasting and prayer. That is, that I should ShStry! indirectly assume to the United States an authority over religious exercises, which the Constitution has Prescribing directly precluded them from. It must be meant, too, servancesdi- that this recommendation is to carry some authority, "e& lyCoL J J ' stirnrinn. and to be sanctioned by some penalty on those who disregard it ; not, indeed, of fine and imprisonment, but of some degree of proscription, perhaps in public opinion. And does the change in the nature of the penalty make the recommendation less a law of con duct for those to whom it is directed ? I do not be lieve it is for the interest of religion to invite the Nor is it for . . . . _ . . the interest of civil magistrate to direct its exercises, its discipline, religion. or its doctrines ; nor of the religious societies, that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious Fastingand .... prayer relig- exercises ; the enjoining them, an act of discipline, 'ous exercises. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in should be their own hands, where the Constitution has depos- posited by the Constitution. tied it. 1 This was a characteristic of President Jefferson. He was ever jeal- A character- ous of the rights of the people, and was particularly careful not to abridge '^^ Je or encroach in any way upon those rights. It was on account of this His jealousy jealousy that he felt disappointed when he found that the Constitu- jjjj'JX tso tional Convention at Philadelphia had omitted a declaration of rights in the new Federal Constitution ; and he and Madison were mainly instrumental in securing the first ten amendments which now stand as a part of that instrument. And, now, after having secured the first amendment, among the others, he was desirous of having it strictly Anxiety to carried out — not to have it stand as a dead letter ; he was desirous that n^oFcon-66* it might fulfil the ends for which it was adopted — to separate entirely stitution. and forever every connection between religion and the state in the first amend- United States of America. 58 AMERICAN STATE PAPERS. iith Congress ] [2D Session April 3o, 1810. y^ y\QT REGULATING THE POST-OFFICE ESTABLISHMENT.1 Enacted April 30, 1810. Post-offices to be kept open on every day on which mail arrives. Postmaster to deliver mail on every day of the week. SECTION 9. And be it further enacted, That every postmaster shall keep an office in which one or -more persons shall attend on every day on which a mail, or bag, or other packet, or parcel of letters shall arrive by land or water, as well as on other days, at such hours as the Postmaster-General shall direct, for the purpose of performing the duties thereof; and it shall be the duty of the postmaster at all reasonable hours, on every day of the week, to deliver, on demand, any letter, paper, or packet, to the person- entitled to or authorized to receive the same. iith Congress] [3d Session PETITIONS Jan. 4, 1811. Petition pre sented against Sunday mails. Referred. IN REFERENCE TO SUNDAY MAILS. Friday, January 4.2 Mr. Findley presented a petition of the Synod of Pittsburg, in the State of Pennsylvania, praying that the laws and regulations for the government of the Post- office Establishment maybe so altered or amended as to prohibit mail stages and post riders from traveling, and post-offices being kept open, on Sunday. Referred to the Postmaster-General. 1 "United States Statutes at Large," volume ii, page 592. This act was repealed March 3, 1825, by an act entitled "An act to reduce into one the several acts establishing and regulating the Post-office Depart ment." The above section, however, was refinacted. a " Annals of Congress," page 487. SUNDAY MAILS. 59 Friday, January 18. jan. l8> l8lI. Similar petitions presented and referred to the Petitions ¦n ,-, . presented and rostmaster-General. referred. Friday, January 25. Jan. 25. i8n. Mr. John Porter presented a petition of sundry Petition inhabitants of Philadelphia, to the same effect with and read. the petition of the Synod of Pittsburg, presented on the fourth instant ; which was read. Thursday, January 3i.3 Jan. 31, i8n. The Speaker laid before the House a report from Report on A petitions read the Postmaster-General,3 on the petitions of the Synod and referred. of Pittsburg, and of sundry inhabitants of the west ern country, in the States of Pennsylvania, Virginia, and Ohio, referred on the fourth and eighteenth in stant ; which was read, and referred to the Committee on Post-offices and Post-roads, to report specially by bill or otherwise. iith Congress] [3d Session REMONSTRANCE AGAINST THE DELIVERY OF LETTERS, PAPERS, AND PACKETS, AT THE POST-OFFICE ON THE SABBATH.* Communicated to the House of Representatives, January 31, 1811. Jan. 31, i8n. The Postmaster-General, in obedience to the res- Reportof . r Postmaster- olutions of the House of Representatives of the General. United States, passed on the fourth and eighteenth of the present month, respectfully reports : 1 "Annals of Congress," pages 826, 827. 2 "Annals of Congress," page 855. 3 The report given herewith. 4 " American State Papers," Class VII, pages 44, 45. 5 Referring to him two memorials, from sundry citizens of Philadel phia and elsewhere, substantially similar, an extract from the first of which follows this report. 60 AMERICAN STATE PAPERS. The act of 1810 required the receipt and delivery of letters by the post-offices on Sunday. Instruction of Postmaster- General. Doubt as to whether he was warranted in limiting time to one hour. Judgment of postmasters considereda sufficient guarantee for the delivery of letters. That, under and by virtue of the ninth section of the act of the thirtieth of April, 18 10, the Post master-General conceived himself bound to compel the postmasters to receive letters from, and deliver letters to, the citizens, on the Sabbath day ; and in conformity to that act, the following instruction was given to the postmasters, to wit : "At post-offices where the mail arrives on Sun day, the office is to be kept open for the delivery of letters, etc., for one hour after the arrival and assort ing of the mail ; but in case that would interfere with the hours of public worship, then the office is to be kept open for one hour after the usual time of dis solving the meetings, for that purpose." The Postmaster-General further remarks, that from the peculiar phraseology of the^ninth section of said act, it is doubted whether he be warranted by law in limiting the right of the citizens to demand their letters to one hour on the Sabbath ; and, in one in stance, in Pennsylvania, an officer has been prose cuted, under the section aforesaid, for refusing to deliver a letter on the Sabbath, not called for within the time prescribed by this office. Although in cases of extreme anxiety or national calamity, it may be proper for postmasters to open their offices for the reception and delivery of letters on the Sabbath, and particularly to the officers of government, still it is believed that the good sense of the officers is a suffi cient safeguard for the delivery of letters under all such circumstances ; and that compelling the post masters to attend to the duties of the office on the Sabbath, is on them a hardship, as well as in itself tending to bring into disuse and disrepute the insti tutions of that holy day. Gideon Granger, Postmaster-General. General Post-office, January 30, 181 1. SUNDAY MAILS. 61 MEMORIAL AND PETITION. To the Honorable, the Senate and House of Repre sentatives of the United States, in Congress, the memorial, representation, and petition of the un dersigned citizens, resident in Philadelphia, re spectfully represents : Your memorialists cannot, in justice to their own Religious ' feelings, refrain from observing that the violation of theW|ompTa?nt. known and universally received precepts, when sanc tioned by the most powerful influence in the Union, cannot fail of having a tendency to justify every Tendency of species of breach of the laws made for the strict ob- toTessoV^e- s servance of the first day of the week, as set apart by day which the .1 1 r <- i <• <¦ • • *¦ . i petitioners re- tne command of God for his more immediate service. eard as h°'y- They do, therefore, most respectfully and earnestly Prohibition petition your honorable body, that the said ninth °f mln Lkld7 section of the act, entitled,'" An act regulating the Lord's day. Post-office Establishment," and passed the twenty- fifth of April last, may be so amended as to prohibit the delivery of letters, papers, and packets, on the first day of the week, commonly called the Lord's day. And your petitioners, as in duty bound, will ever pray. James P. Wilson, and others. 1 This is the real foundation of all Sunday-rest movements ; though Basis of all for clandestine purposes, reasons are often given of a very different nat- movements' ure, as, solicitude for the public health, — as though the people were so devoid of common sense as not to know- enough to rest when they are tired, without being compelled to do so by law ! Mr. Chief Justice Ruf- fin, of the Supreme Court of North Carolina, in the case of the State v. Williams, 4 Iredell, 403, said : " The truth is, that it offends us, not so Sundaypros- much because it disturbs us in practising for ourselves the religious du- JJSJjfc oVreUe- ties, or enjoying the salutary repose or recreation, of that day, as that it ious feelings. is, in itself, a breach of God's law, and a violation of the party's own relig ious duty." Sabbath laws are the remnants of religious legislation ; and it was only to appear to escape the force of incontrovertible arguments A shallow that such a shallow subterfuge as the " civil" Sabbath. was invented. su te Be' 62 AMERICAN STATE PAPERS. 12th Congress] [ist Session j-.3,i8- SUNDAY MAILS.1 Communicated to the House of Representatives, January 3,.i8i2. Mr. Rhea2 made the following report : House com- The Committee on Post-offices and Post-roads, to ' ' ' *• whom were referred the petition of the Synod of Presbyters and other citizens of Christian denomi nations, residing in the western parts of the United States, and the report of the Postmaster-General thereon, have had the same under consideration, and do respectfully report : Report That however desirable it would be to advise the adoption of such regulations, relative to the carrying and opening of the mail, as might meet the views of the venerable Synod of Pittsburg, and the other peti- committee tioners, your committee cannot, at this peculiar cri- cannot recom- . mend any ai- sis of the united States, recommend any alterations teration in the ^w. in the law regulating the Post-office Establishment ; and do respectfully submit the following resolution : Petitioners Resolved, That the petitioners have leave to with- requested to withdraw peti- draw their petitions. tions. Resolution The resolution was concurred in.8 concurred in. 1 " American State Papers," Class VII, page 45. 2 Chairman of the Committee on Post-offices and Post-roads. 3 This was the first of a series of adverse reports on this question of TheSunday- the discontinuance of Sunday mails. As the petitions increased and the Xo-i83o.rtS ° demands of the clergy became more strenuous, the adverse 'reports were more decided. Again and again they refused to run the government according to the dictates of the ecclesiastical power ; and, finally, when the question had become one of national interest, adverse petitions also coming in, and the best statesmen of the times opposing the "reform" movement, Senator Johnson wrote his celebrated reports which have Senator received such general approbation. These reports were so well written reports" S an<^ treated the subject so thoroughly that the movement was killed. Senator Johnson took pride in continuing the movement for complete religious freedom initiated by the founders of our government. Subse quently his popularity made him Vice-President of the United States. SUNDAY MAILS. 63 12™ Congress] [ist Session SUNDAY MAILS.1 j™.*.*,. Communicated to the House of Representatives, June 15, 1812. Mr. Rhea made the following report : House com- mittee reports. The Committee on Post-offices and Post-roads, to whom was referred the memorial of the General As sembly of the Presbyterian Church in the United States of America, have had the same under consid eration, and do respectfully report : That, heretofore, during the present session of Report Congress, petitions of the Synod of Presbyters, and other citizens of several Christian denominations, re siding in the western part of the United States, were referred to the Committee on Post-offices and Post- roads ; that the prayers of the said petitions were, in Petitions u similar to pre- their object, design, and end, similar to that of the viousones. memorial of the said reverend General Assembly ; that your committee, after having had the aforesaid petitions under consideration, reported thereon on the third day of January last past : "That, however desirable it would be to advise ^reviousre_ the adoption of such regulations, relative to the carrying and opening of the mail, as might meet the views of the venerable Synod of Pittsburg, and the other petitioners, your committee cannot, at this pe- committee r > J * cannot recom- culiar crisis of the United States, recommend any ™^™\^ alterations in the law regulating the Post-office Es- law- tablishment, and do respectfully submit the following resolution : "Resolved, That the petitioners have leave to Petitioners 1 *¦ requested to withdraw their petitions." $££££ And the same resolution was afterwards con- Resolution concurred in. curred in. > "American State Papers," Class X, volume ii, page 194. port. 64 AMERICAN STATE PAPERS. No reason for changing the report Memori alists re quested to withdraw their memorial. Your committee further report, that there doth not appear any reason to induce a change or alter ation of the report made in the case of the petition of the venerable Synod of Pittsburg ; nor hath any reason occurred to induce your committee to report on the memorial now under consideration, different from the report on that petition ; they do, therefore, respectfully submit the following resolution : Resolved, That the memorialists have leave to withdraw their memorial. All which is respectfully submitted. Jan. 20, 1S15. 13th Congress ] SUNDAY MAILS. [ 3D Session Report of House com mittee. Question of great national importance. Inexpedient to discontinue Sunday mail service. Communicated to the House of Representatives, January 20, 1815. Mr. Rhea, from the Committee on the Post-offices and Post-roads, to whom were referred sundry peti tions and memorials remonstrating against the usage of transporting and opening the mail on the Sabbath, and the report of the Postmaster-General relating thereto, reported : That they have had the same under consideration, and deeming it of great national importance, particu larly in time of war, that no delay should attend the transportation of the mail, they deem it inexpedient to interfere with the present arrangement of the Post-office Establishment, and, therefore, submit the following resolution : Resolved, That it is inexpedient to grant the prayer of the petitioners. 1" American State Papers," Class VII, page 46. The report was read and referred to a Committee of the Whole, and considered by them on Friday, February 10, 1815. See "Annals of Congress," pages 1084, 1 186. The minutes of its consideration in the Committee of the Whole are inserted herein, post pages 67, 68. SUNDAY MAILS. 65 REPORT OF POSTMASTER-GENERAL. Jan. 16, ,8.s. General Post-office, January 16, 1815. SlR : The Postmaster-General, to whom were re- Report of r 1 -1.1 r Postmaster- ferred sundry memorials against the usage of trans- General. porting and opening the mails on the Sabbath, has the honor to report the following facts and observa tions : The usage of transporting the mails on the Sab- Sabbath _ , ^-, .. 7TT.7 transportation bath is coeval with the Constitution of the United of mail coevai J with the Con- States, and a prohibition of that usage will be first stitution. considered. Return J. Meigs, Jun.1 To the Honorable, the Speaker of the House of Representatives. 13™ Congress] [3d Session SUNDAY MAILS.2 jan.27,l8l5.L Communicated to the Senate, January 27, 1815. Mr. Daggett made the following report : The committee of the Senate, to whom were re- th*|££t°f ferred the petitions of numerous citizens of the States committee. of New Hampshire, Massachusetts, Connecticut, North Carolina, and Ohio, praying the Congress to prohibit the transportation and opening of the mail on the Sabbath, having attended to the duty assigned to them, respectfully report : That the importance of the subject, and the mo- . subject an ahu... t.**^ £* /• 11 importantone. tives which actuate so large a portion of their fellow- citizens, are duly regarded and appreciated. Was the practice of the transportation of the mail on ^«ne. every day of the week now commenced, and that of 1 Postmaster-General. 2 "American State Papers," Class VII, page 47. 66 AMERICAN STATE PAPERS. Opinion of committee. Sabbath transportation of the mail has been carried on ever since the establishmentof the govern ment Public con venience has justified it. Post-offices to be kept open on every day on which mail arrives. Postmaster to deliver mail on every day of the week. Committee indorse regula tion concern ing Sunday mails. Instruction of Postmaster- General. Continuance of regulation desired. opening it on the Sabbath under no regulations, the committee would consider it necessary to make some legislative provision on the subject. The general government from its establishment has pursued a system of causing the mail to be trans ported on the Sabbath, on the great roads leading through and across the country, while the practice has been avoided on routes of less importance. The public convenience has justified these measures in the view of the government. In 1810, a law was made, directing "that every postmaster shall keep an office, in which one or more persons shall attend on every day on which a mail, or bag, or other packet or parcel of letters shall arrive, by land or water, as well as on other days, at such hours as the Post master-General shall direct, for performing the duties thereof; and it shall be the duty of the postmaster, at all reasonable hours, on every day of the week, to deliver on demand, any letter, paper, or packet, to the person entitled to or authorized to receive the same." The committee learn with pleasure that the Post master-General, under this law, has prescribed the following regulation : " At post-offices where the mail arrives on .Sun day, the office is to be kept open for the delivery of letters, etc., for one hour after the arrival and assort ing of the mail ; but in case that would interfere with the hours of public worship, then the office is to be kept open for one hour after the usual time of dis solving the meetings, for that purpose." Presuming that the Postmaster-General will con tinue this regulation, and that he will, at all times, guard the post-office against improper practices, in respect to the opening the mail and the delivering of letters on the Sabbath ; and considering the condi tion of the country, engaged in war, rendering fre- SUNDAY MAILS. 67 quent communication through the whole extent of it absolutely necessary, the committee deem it inex- it is deemed j*, ...... . r , , inexpedient to pedient, at this time, to interfere and pass any laws interfere with . , , . .. , . . the law. on the subject-matter of the petitions referred, and they, therefore, respectfully submit the following resolution : Resolved, That, at this time, it is inexpedient to Petitions interfere and pass any laws on the subject-matter of the several petitions praying the prohibition of the transportation and opening of the mail on the Sabbath. 13th Congress ] [ 3d Session SUNDAY MAILS.1 Feb.*** Friday, February 10, 1815. The House resolved itself into a Committee of the Whole, on the report of the Committee on Post- Report offices and Post-roads, that it is inexpedient to make any alteration in the present regulations respecting the transportation and opening the mails on the Sabbath. Mr. Farrow moved to amend the report so as to Amendment declare it expedient, instead of inexpedient, to grant the prayer of the petitioners. This motion was negatived without debate, and the committee rose Resolution, and reported the resolution unamended to the House, reported to ' Mr. King, of Massachusetts, moved to lay the re- Motion to , ,, 1 • i • r 11 table report, port on the table ; which motion, after debate, was negatived. negatived. Mr. King then moved to add to the end of the Motion to , , . . ,, limit report, resolution the words, during the present war, so negatived. as to confine the resolve to the inexpediency of acting on the subject during the present war. The question on Mr. King's motion was decided in the negative. 1 "Annals of Congress," volume iii, page 1146. 68 AMERICAN STATE PAPERS. Another motion nega tived. Resolution adopted. Petition refused. Mr. Stanford then moved to amend the resolution by adding thereto the following : " So far as respects the progress of the mail and the issuance of letters on the Sabbath ; but that the issuing of newspapers under the proper restrictions may be prohibited ; " which motion was negatived. The question on concurring in the resolution re ported by the committee, was then decided by yeas and nays. For the report, 81 ; against it, 41. So it was resolved that it is inexpedient to grant the prayer of the petitioners.1 Principles of Williams. Illustration of a common wealth. Religious rights. Sphere of government. 1 In refusing to grant the petition and thus to give preference to the Sunday-keeper over the Jew and Mahometan, the Senate did no more than to carry out the principles taught by Roger Williams nearly two hundred years before. In his "Letter to the People of Providence," A. D. 1655, he defines the limitations of governmental authority in a way which shows how far he was in advance of his times : "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a common wealth or a human combination or society. It halh fallen out some times that both Papists and Protestants, Jews and Turks, may be embarked in one ship ; upon which supposal I affirm that all the liberty of conscience that ever I pleaded for turns upon these two hinges — that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship, nor compelled from their particular prayers or worship, if they practise any. I further add that I never denied that, notwithstanding this liberty, the commander of this ship ought to command the ship's course, yea, and also command that jus tice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their services, or passengers to pay their freight ; if any refuse to help, in person or purse, toward the common charges or defense ; if any refuse to obey the common laws and orders of the ship, concerning their com mon peace or preservation ;' if any shall mutiny and rise up against their commanders and officers ; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, there fore no masters, nor officers, nor laws, nor orders, nor corrections, nor punishments; — I say, I never denied, but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors, according to their deserts and merits. This, if seriously and honestly minded, may, if it so please the Father of lights, let in some light to such as willingly shut not their eyes." THE SPHERE OF GOVERNMENT. 69 THE SPHERE OF CIVIL GOVERNMENT. Written by Thomas Jefferson to Francis W. Gilmer.1 june7, 1816. Monticello, June 7, 18 16. Dear Sir: . . . Our legislators are not suffi- office of the 1 legislator. ciently apprised of the rightful limits of their power ; that their true office is to declare and enforce only our natural rights and duties, and to take none of them Natural rights should from us. No man has a natural right to commit not be taken b away. 1 "Works of Thomas Jefferson," volume vii, page 3. aBlackstone, in section two of the introduction to his " Commentaries on the Laws of England, ' ' page 39 et seq. , states this principle as follows : "This will of his [man's] Maker is called the law of nature. . . . Laws of This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding Superior to over all the globe, in all countries, and at all times. No human laws are of any validity if contrary to this; and such of them as are valid derive All laws de- all their authority, mediately or immediately , from this original. "^ hom'tt.' "But in order to apply this to the particular exigencies of each indi vidual, it is still necessary to have recourse to reason, whose office it is Reason its to discover, as was before observed, what the law of nature directs in lnterPreter- every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. " Those rights, then, which God and nature have established, and are Natural therefore called natural rights, such as are life and liberty, need not ^fthout gov- the aid of human laws to be more effectually invested in every man than ernmental J J sanction. they are ; neither do they receive any additional strength when declared by the municipal laws to be inviolable." "Lord Chief Justice Hobart has also advanced that even an act of Any act Parliament made against natural justice, . . is void of itself ; for jura fu^ce'void" naturtc sunt immutabilia, and they are leges leguni." Chitty's notes. Upon the foregoing statement made by Blackstone, Herbert Spencer comments as follows: " 'No human laws are of any validity if con- No human trary to the law of nature ; and such of them as are valid derive all their to^helaw of force and all their authority, mediately or immediately, from this original.' nature, valid. Thus writes Blackstone, to whom let all honor be given for having so far outseen the ideas of his time ; and, indeed, we may say of our time. Blackstone A good antidote, this, for those political superstitions which so widely tin^e prevail ; a good check upon that sentiment of power-worship which still misleads us by magnifying the prerogatives of constitutional govern ments as it once did those of monarchs. Let men learn that a legisla- 70 AMERICAN STATE PAPERS. Sphere of the law. No natural rights given up by the formation of government. aggression on the equal rights of another ; and this is all from which the laws ought to restrain him ; every man is under the natural duty of contributing to the necessities of the society ; and this is all the laws should enforce on him ; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the um pirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions ; and the idea is quite unfounded, that on entering into society we give up any natural right} The trial of every law by one of these texts, would lessen much the labors of our legislators, and lighten equally our municipal codes. . . . The legisla ture not om nipotent. Authority of the legislature in matters of religion. Authority of the legislature temporal only. Erroneous views. Society for the protection of natural rights. Object of government. ture is not ' our God upon earth,' though by the authority they ascribe to it, and the things they expect from it, they would seem to think it is. Let them learn rather that it is an institution serving a purely temporary purpose, whose power, when not stolen, is at the best borrowed." "So cial Statics," chapter 19, section 2. In reference to the authority of the legislature in religious matters, Madison, in his "Memorial and Remonstrance," of 1785, declared: " Either, then, we must say that the will of the legislature is the only measure of their authority, and that in the plentitude of that au thority they may sweep away all our fundamental rights, or that they are bound to leave this particular right untouched and sacred." See ante page 37. The truth of the theory that the power of the legislature rightfully extends "only to the bodies and goods of men," as Roger Williams used to say, has been firmly established. •* The same political doctrine is expressed by Alexander H. Stephens : "Many writers maintain that individuals, upon entering into society, give up or surrender a portion of their natural rights. This seems to be a manifest error. In forming single "societies or states, men only enter into a compact with each other — a social compact — either ex pressed or implied, as before stated, for their mutual protection in the enjoyment by each of all their natural rights. The chief object of all good governments, therefore, should be the protection of all the natural rights of their constituent members. . . . No person has any natural right wantonly to hurt or injure another. The object of gov ernment is to prevent and redress injuries of this sort ; for, in a state of nature, without the superior restraining power of government, the strong would viciously impose upon the weak. Wrongs upon rights could not be so efficiently prevented nor so adequately redressed. THE SPHERE OF GOVERNMENT. 71 " Upon entering into society, however, for the purpose of having their natural rights secured and protected, or properly redressed, the weak do not give up or surrender any portion of their priceless heritage in any government constituted and organized as it should be." Herbert Spencer, also, develops the following principle : " Every man has freedom to do all that he wills, provided that he infringes not the equal freedom of any other man." "Social Statics," chapter 6, section I. Or, as subsequently expressed : " Every man has the right to do whatsoever he wills, provided that in the doing thereof he infringes not the equal right of any other man." And, in considering the idea that man surrendered a portion of his natural rights upon entering into the social state, Spencer says : "The self-importance of a Malvolio is sufficiently ludicrous ; but we must go far beyond it to parallel the presumption of legislatures. Some steward who, deluded by an intense craving after dominion, and an im pudence equal to his craving, should construe his stewardship into pro prietorship, would more fitly illustrate it. Were such an one to argue that the estate he was appointed to manage had been virtually resigned into his possession ; that to secure the advantages of his administration its owner had given up all title to it ; that he now lived on it only by his (the steward's) sufferance ; and that he was in future to receive no emoluments from it, except at his (the steward's) good pleasure, — then should we have an appropriate travesty upon the behavior of govern ments to nations ; then should we have a doctrine perfectly analogous to this fashionable one, which teaches how men on becoming members of a community, give up, for the sake of certain social advantages, their natural rights. Adherents of this fashionable doctrine will doubt less protest against such an interpretation of it. They have no reasona ble cause for doing so, however, as will appear on submitting them to a cross-examination. Suppose we begin it thus : "'Your hypothesis that men, when they entered into the social state, surrendered their original freedom, implies that they entered into such state voluntarily, does it not ? ' " 'It does.' "'Then they must have considered the social state preferable to that under which they had previously lived ? ' " 'Necessarily.' " ' Why did it appear preferable ? ' " ' Because it offered greater security.' " ' Greater security for what ? ' " ' Greater security for life, for property, for the things that minister to happiness. ' "'Exactly. To get more happiness: that must have' been the ob ject. If they had expected to get more awhappiness, they would not have willingly made the change, would they ? ' "'No.' No rights surrenderedon the forma tion of govern ment Statement of a principle. Equality of mankind. The pre sumption of legislatures. An appro priate travesty Cross-exam ination. Entrance in to the social state volun tary. Social state preferable. Greater se curity offered. More happi- ness secured. 72 AMERICAN STATE PAPERS. In what hap piness consists. Happiness impossible without free dom. Freedom is privilege of ex ercising rights. Summary of argument. Simpler statement Man's rights. Object of organized society. Preservation of rights. ^ Contradic tion involved. Another statement Government an agent. " 'Does not happiness consist in the due satisfaction of all the desires ? in the due exercise of all the faculties ? ' " ' Yes.' "'And this exercise of the faculties is impossible without freedom of action. The desires cannot be satisfied without liberty to pursue and use the objects of them.' "'True.'"'Now it is this freedom to exercise the faculties within specific limits, which we signify by the term "rights," is it not?' (See "Social Statics," page 93.) "'It is.' " ' Well, then, summing up your answers, it seems that, by your hypothesis, man entered the social state voluntarily ; which means that he entered it for the sake of obtaining greater happiness ; which means that he entered it to obtain fuller exercise of his faculties ; which means that he entered it to obtain security for such exercise ; which means that he entered it for the guaranteeing of his " rights." ' " ' Put your proposition in a more tangible form.' "'Very good. If this is too abstract a statement for you, let us attempt a simpler one. You say that a state of political combination was preferred mainly because it afforded greater security for life and property than the isolated state, do you not ? ' " 'Certainly.' " ' Are not a man's claims to his life and his property amongst what we term his rights, and moreover, the most important of them ? ' " 'They are.' "'Then to say that men formed themselves into communities to prevent the constant violation of their claims to life and property, is to say that they did it for the preservation of their rights ? ' "'It is.' " ' Wherefore, either way we find that the preservation of rights was the object sought.' " ' So it would seem.' " ' But your hypothesis is that men give up their rights on entering the social state ? ' "'Yes.'" ' See now how you contradict yourself. You assert that on becom ing members of a society, men give up what, by your own showing, they joined it the better to obtain ! ' "'Well, perhaps I ought not to have said that they "give up" their rights, but that they place them in trust. ' " ' In whose trust ? ' " ' In that of a government.' " ' A government, then, is a kind of agent employed by the mem bers of a community, to take care of, and administer for their benefit, something given into its charge ? ' THE RIGHTS OF JEWS. 73 THE RIGHTS OF JEWS. Written by James Madison to Dr. De La Motta.1 August i&c, MONTPELIER, August, 1820. SIR: • . . The history of the Jews must for- History of ever be interesting. The modern part of it is, at w* mterest" the same time, so little generally known, that every ray of light on the subject has its value. Among the features peculiar to the political sys- Equality of tern of the United States, is the perfect equality of fiLV^Ame"" ¦ 1 . , • 1 ., . , . . can political rights which it secures to every religious sect. And system. it is particularly pleasing to observe in the good citi zenship of such as have been most distrusted and "'Exactly.''"And of course, like all other agents, exercises authority only at Acts within the will of those who appoint it — performs all that it is commissioned '^commis- sioned author- to do subject to their approval ? ' ity. " 'Just so.' " 'And the things committed to its charge still belong to the original Logical con owners. The title of the people to the rights they have placed in trust continues valid : the people may demand from this agent the full benefit accruing from these rights ; and may, if they please, resume possession of them ? ' " 'Not so.' " ' Not so ! What, can they not reclaim their own ? ' "'No. Having once consigned their rights into the keeping of a legislature, they must be content with such use of them as that legis lature permits.' "And thus we arrive at the curious doctrine above referred to, that Ludicrous the members of a community having intrusted an estate (their rights) opponents. to the care of a steward (their government), thereby lose all proprietor ship in such estate, and can have no benefit from it, except what their steward pleases to vouchsafe ! " " Social Statics," chapter 18, section 5. The sovereignty of the individual and the subserviency of govern- Virginia's ment were also emphatically declared in section two of the Virginia me subservi- " Declaration of Rights," in 1776, in the following words : " That all encyofgov- 13 ' ' & eminent power is vested in, and consequently derived from, the people ; that mag- Magistrates istrates are their trustees and servants, and at all times amenable to nabie to the them." People- 1 "Writings of James Madison," volume iii, pages 178, 179. elusion. 74 AMERICAN STATE PAPERS. Success of our secular principles. Jews in cluded. oppressed elsewhere a happy illustration of the safety and success of this experiment of a just and benig nant policy. Equal laws, protecting equal rights, are found, as they ought to be presumed, the best guarantee of loyalty and love of country ; as well as best calculated to cherish that mutual respect and good-will among citizens of every religious denomi nation which are necessary to social harmony, and most favorable to the advancement of truth. The account you give of the Jews of your congregation brings them fully within the scope of these observa tions.1 This letter important. Constitu tional equality of all sects. Jews no exception. Sunday laws incompatiblewith religious equality. Congress prohibited from enacting religious laws. What con stitutes relig ious liberty. 1 This letter is an important commentary on the question of how far religious equality extends ; — whether to the sects of Christianity alone, or to all religions. Mr. Madison says : "Among the features peculiar to the political system of the United States, is the perfect equality of rights which it secures to everyreligious sect; " and this statement coming, as it does, from the principal framer of the instrument which is the embod iment of our political system, should decide the question positively and forever. That religious equality is not restricted to Christian sects, is also proved by the statement that the Jews come "fully within the scope of these observations; ' ' for this is a specific assertion that our institutions intended that "perfect equality " should extend to the Jews — a sect that even regards the Author of Christianity as an impostor. The " perfect equality " of Jews and Christians introduces the question of Sunday legislation. For, when laws are made enforcing the distinctive institutions of the Christian religion, then is the principle of religious equality set aside. The Jew has the same right to work on the day which the Christian regards as the Sabbath, as has the Chris tian to work on the day which the Jew regards as the Sabbath ; — the right inheres in both ; for no power on earth has the right to compel any individual, no matter what he believes, to observe in any way whatever the religious institutions of any other individual or set of individuals. This was the principle recognized in the enactment of the first amend ment to the Constitution : "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Hence, to compel any one to observe the Sabbath of the Christian religion, or of any other religion, is directly contrary to our constitu tional principles, and subversive of American institutions. Religious liberty is liberty to differ in anything and everything, — not liberty to differ only in what the dominant parly permits us to differ; for in this idea there is nothing incompatible with the most veritable despotism. CIVIL GOVERNMENT AND RELIGION. 75 CIVIL GOVERNMENT AND RELIGION. Written by James Madison to Edward Livingston.1 July 1°. 1822. MONTPELIER, July 10, 1822. DEAR Sir : . . . I observe with particular pleasure the view you have taken of the immunity immunity of r 1 • - r ..,..,.,. . , religion from 01 religion from civil jurisdiction, in every case where civil jurisdic- tion. it does not trespass on private rights or the public peace. This has always been a favorite principle with me ; and it was not with my approbation .that Madison the deviation from it took place in Congress, when deviating from 7 " 7 J T ' r our Pr'nc'" they appointed chaplains, to be paid from the national p1cs- treasury. It would have been a much better proof to their constituents of their pious feeling if the members had contributed for the purpose a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done may be to apply to the Constitution the maxim of the law, de minimus non curat. There has been another deviation from the strict Another bad prece- principle in the executive proclamations of fasts and dent. festivals? so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eye of the Con stitution. Whilst I was honored with the executive trust, I found it necessary on more than one occa sion to follow the example of predecessors. But I was always careful to make the proclamations abso lutely indiscriminate, and merely recommendatory ; or, rather, mere designations of a day on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith 1 "Writings of James Madison," volume iii, page 273 et seq. 2 For Jefferson's views on the appointment of fasts and festivals, see " Religious Proclamations Unconstitutional," ante pages 56, 57. 76 AMERICAN STATE PAPERS. Madison would think that Catholics would assert their rights. Still a strong prejudice in favor of church and state. Danger can not be too carefullyguarded against Every new application is of importance. Absolute separation better for both. _ The old ideas. Toleration beneficial. and forms. In this sense, I presume, you reserve to the government a right to appoint particular days for religious worship. I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small and even unpopular sect in the United States, would rally, as they did in Virginia when religious liberty was a legislative topic, to its broadest principle. Notwithstanding the general progress made within the two last centuries in favor of this branch of liberty, and the full establishment of. it in some parts of our country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between government and religion, neither can be duly sup ported. Such, indeed, is the tendency to such a coali tion, and such its corrupting influence on both the par ties, that the danger cannot be too carefully guarded against. And in a government of opinion, like ours, the only effectual guard must be found in the sound ness and stability of the general opinion on the sub ject. Every new and successful example, therefore, of a perfect separation between ecclesiastical and civil matters, is of importance ; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and government will both exist in greater purity the less they are mixed together. It was the belief of all sects at one time that the establishment of religion by law was right and necessary ; that the true religion ought to be established in exclusion of every other ; and that the only question to be decided was, which was the true religion. The example of Holland proved that a toleration of sects dissenting from the established sect was safe, and even useful. The example of the colonies, now States, which rejected religious estab lishments altogether, proved that all sects might be CIVIL GOVERNMENT AND RELIGION. 77 safely and advantageously put on a footing of equal Absolute and entire freedom; and a continuance of their ex- eny better. ample since the Declaration of Independence has shown that its success in colonies was not to be ascribed to their connection with the parent country. If a further confirmation of the truth could be wanted, it is to be found in the examples furnished by the States which have abolished their religious establish ments. I cannot speak particularly of any of the cases excepting that of Virginia, where it is im possible to deny that religion prevails with more Beneficial 11 i -iii" effects in zeal and a more exemplary priesthood than it ever Virginia. did when established and patronized by public au thority. We are teaching the world the great truth "Liberty en- ,,., ... .. lightening the that governments do better without kings than with world." them. The merit will be doubled by the other les son : that religion flourishes in greater purity without, than with, the aid of government.1 My pen, I perceive, has rambled into reflections for which it was taken up. I recall it to the proper object, of thanking you for your very interesting pamphlet, and of tendering you my respects and good wishes. 1 In the foregoing letter Madison shows his progressive as well as his Madison's liberal spirit. He says: "Every new and successful example, there- sp°rf£eSS fore, of a perfect separation between ecclesiastical and civil matters, is of importance ; and I have no doubt that every new example will suc ceed, as every past one has done, in showing that religion and govern ment will both exist in greater purity the less they are mixed together." How different is this from the constant opposition of so many Chris- Contrast tians to-day against every application of the doctrine. If the Bible is Christians. taken from the schools, the cry is raised that the children will go to ruin ; if state chaplains are not hired, the early destruction of the state is predicted ; if Sunday laws are not enforced, anathemas are pronounced against the whole nation; — and all this, too, when religion in Amer ica has prospered better — far better ! — under the secular principles of Prosperity , . . .,,,.,.. . . of religion in government than ever it did in any nation with all its religious teaching our secular by the state. The words of General Grant should ever be remembered BovelnmenL by the American people : " Keep church and state forever separate." 78 AMERICAN STATE PAPERS. March 19, 1823. Religion : the schools. False impu tations, against secularschools. A futile project. Christians slow to see the benefitof secu lar schools. Religion wholly ex empt from cognizance of government. All sects have equal rights. RELIGION IN PUBLIC SCHOOLS. Written by James Madison to Edward. Everett.1 MONTPELIER, March, 19, 1823. DEAR Sir : . . . A university with sectarian professorships becomes, of course, a sectarian mo nopoly ; with professorships of rival sects, it would be an arena of theological gladiators.. Without any such professorships, it may incur, for a time at least, the imputation of irreligious tendencies, if not de signs. The last difficulty was thought more manage able than either of the others. On this view of the subject, there seems to be no alternative but between a public university without a theological professor ship, and sectarian seminaries without a university. I recollect to have seen, many years ago, a proj ect of a prayer, by Governor Livingston, father of the present Judge, intended to comprehend and con ciliate college students of every Christian denomina tion, by a form composed wholly of texts and phrases of Scripture. If a trial of the expedient was ever made, it must have failed, notwithstanding its win ning aspect, from the single cause that many sects reject all set forms of worship. The difficulty of reconciling the Christian mind to the absence of a religious tuition from a univer sity established by law, and at the common expense, is probably less with us than with you. The settled opinion here is that religion is essentially distinct from civil government, and exempt from its cogni zance ; that a connection between them is injurious to both; that there are causes in the human breast which insure the perpetuity of religion without the aid of the law ; that rival sects, with equal rights, 1 " Writings of James Madison," volume iii, page 305 et seq. RELIGION IN PUBLIC SCHOOLS. 79 exercise mutual censorships in favor of good morals ; Mutual cen _ sorship bene- that if new sects arise with absurd opinions or over- ficial heated imaginations, the proper remedies lie in time, forbearance, and example ; that a legal establish ment of religion without a toleration could not be Toleration , . c , . . ... r a source of thought of, and with a toleration, is no security for animosity. public quiet and harmony, but rather a source itself of discord and animosity ; and, finally, that these opinions are supported by experience, which has shown that every relaxation of the alliance between Theory of .... r , .. i r t t i entire separa- law and religion, from the partial example of Hoi- tion of religion B ' f f and law land to its consummation in Pennsylvania, Delaware, sound. New Jersey, etc., has been found as safe in practice as it is sound in theory. Prior to the Revolution, the Episcopal Church was established by law in this State. On the Declaration of Independence it was left, with all other sects, to a self-support. And no doubt exists that there is much more of religion among us now than there ever was before the change, and particularly in the sect which enjoyed the legal patronage. This proves rather more than that the Human r a A .... laws not nec- law is not necessary to the support of religion. essarytosup- With such a public opinion, it may be expected Hgion. that a university, with the feature peculiar to ours, will succeed here if anywhere. Some of the clergy clergy ' arraigned did not fail to arraign the peculiarity ; but it is not ^os=jcsular improbable that they had an eye to the chance of in- Probable r ' l. • reason. troducing their own creed into the professor s chair. A late resolution for establishing an Episcopal school within the College of William and Mary, though in a very guarded manner, drew immediate animadver sions from the press, which, if they have not put an end to the project, are a proof of what would follow such an experiment in the university of the State, en dowed and supported, as this will be, altogether by the public authority and at the common expense. 80 AMERICAN STATE PAPERS. CIVIL LAWS AGAINST BLASPHEMY. Jan. 23, 1825. Written by John Adams to Thomas Jefferson.1 We boast of entire liberty of conscience. How far we are from it. Pan ish ment in Europe. Punishment in America. QUINCY, January 23, 1825. My Dear Sir : We think ourselves possessed, or at least we boast that we are so, of liberty of con science on all subjects, and of the right of free inquiry and private judgment in all cases, and yet how far are we from these exalted privileges in fact. There exists, I believe, throughout the whole Christian world, a law which makes it blasphemy to deny, or to doubt, the divine inspiration of all the books of the Old and New Testaments, from Genesis to Revelations. In most countries of Europe it is pun ished by fire at the stake, or the rack, or the wheel. In England itself, it is punished by boring through the tongue with a red hot poker. In America it is not much better ;2 even in our Massachusetts, which, Adams's statement veri fied. An act of Congress. Law against blasphemy. Boring through the tongue. 1 " Works of Thomas Jefferson," volume vii, pages 396, 397. 8 The truth of Adams's statement is proved by the following law, which, legally, is in force in the very capital of our nation to-day, — * although, of course, it is a dead letter. It was a Maryland law enacted October, 1793, and, with the rest of the laws of Maryland, was adopted as a law in the District of Columbia by the following act of Congress : " Section 92. The laws of the State of Maryland not inconsistent with this title, as the same existed on the twenty-seventh day of Febru ary, 1801, except as since modified or repealed by Congress or by au thority thereof, or until so modified or repealed, continue in force within the District." "Revised Statutes, District of Columbia," page 9. The first section of the act, entitled, "An act to punish blasphemers, swearers, drunkards, and Sabbath-breakers,'.' etc., reads as follows : "... That if any person shall hereafter, within this province, wittingly, maliciously, and advisedly, by writing or speaking, blaspheme, or curse God, or deny our Saviour Jesus Christ to be the Son of God, or shall deny the Holy Trinity, the Father, Son, and Holy Ghost, or the Godhead of any of the three persons, or the unity of the Godhead or shall utter any profane words concerning the Holy Trinity, or any of the persons thereof, and shall be thereof convict by verdict, or con fession, shall, for the first offense, be bored through the tongue and LAWS AGAINST BLASPHEMY. 81 I believe, upon the whole, is as temperate and mod erate in religious zeal as most of the States, a law was made in the latter end of the last century repeal ing the cruel punishments of the former laws, but substituting fine and imprisonment upon all those blasphemies upon any book of the Old Testament or the New. Now, what free inquiry, when a writer must surely encounter the risk of fine or imprison ment for adducing any arguments for investigation into the divine authority of those books ? Who would run the risk of translating Volney's Recher- ches Nouvelles ? Who would run the risk of trans lating Dapin's ? But I cannot enlarge upon this subject, though I have it much at heart. I think such laws a great embarrassment, great obstructions to the improvement of the human mind. Books that cannot bear examination, certainly ought not to be established as divine inspiration by penal laws. It is true, few persons appear desirous to put such laws into execution, and it is also true that some few per sons are hardy enough to venture to depart from them ; but as long as they continue in force as laws, the human mind must make an awkward and clumsy progress into its investigations. I wish they were repealed. The substance and essence of Christianity, as I understand it, is eternal and unchangeable, and will bear examination forever ; but it has been mixed with extraneous ingredients, which, I think, will not bear examination, and they ought to be separated. The laws in Massachusetts. Free inquiry proscribed. Subject dear to Adams. They retard progress of humanity. Their repeal desired. Christianity will bear ex amination for ever. fined twenty pounds sterling ; . . . and that for the second offense, the offender being therefore convict as aforesaid, shall be stigmatized by burning in the forehead with the letter B and fined forty pounds sterling ; . . . and that for the third offense, the offender being con vict as aforesaid, shall suffer death without the benefit of the clergy." " Laws of the District of Columbia," page 136 et seq. As incompatible as they are with religious equality, several of the States have similar laws, with the penalty somewhat modified, and now and then attempts are made to enforce them. Burning on forehead. Death for third offense. 82 AMERICAN STATE PAPERS. March 3, 1825. 18th Congress ] [2d Session AN ACT TO REDUCE INTO ONE THE SEVERAL ACTS ESTAB LISHING THE POST-OFFICE DEPARTMENT.1 Enacted March 3, 1825. Post-offices to be kept open on every day on which mail arrives. Postmaster to deliver mail on every day of the week. SECTION ii. And be it further enacted, That every postmaster shall keep an office, in which one or more persons shall attend on every day on which a mail shall arrive, by land or water, as well as on other days, at such hours as the Postmaster-General shall direct, for the purpose of performing the duties thereof; and it shall be the duty of the postmaster, at all reasonable hours, on every day of the week, to deliver, on demand, any letter, paper, or packet, to the person entitled to, or authorized to receive, the same. Jan. 19, 18 Report of Senate com mittee. 20th Congress] [2d Session SUNDAY MAILS. Monday, January 19, 1829.2 Mr. Johnson, of Kentucky, from the Committee on the Post-offices and Post-roads, to whom had been re ferred several petitions in relation to the transporta tion and opening the mails on the Sabbath day, made a report, concluding with a resolution, " that the committee be discharged from the further considera tion of the subject." Mr. Johnson moved that the reading of the report the report18 °£ be dispensed with, and that it be printed. He re- Motion to dispense with 1 '* United States Statutes at Large," volume iv, page 102. 2 " Register of Debates in Congress," volume v, page 42. SUNDAY MAILS. 83 quested that more than one copy for each Senator should be provided, that he might send copies to his constituents. He believed that legislation upon the subject was improper, and that nine hundred and ninety-nine in a thousand were opposed to any legis lative interference, inasmuch as it would have a tend ency to unite religious institutions with the govern ment. Mr. Chambers moved that one thousand copies be printed, and Mr. Hayne, that three thousand copies be printed for the use of the Senate. Mr. Chandler said he had no objection to the printing of any number of copies, except as to prin ciple : it did not appear to him that it was right to order a large, number of copies to be printed until the Senate knew what it was, and that they should not be ordered until the report had been read, as it might seem to imply that they approved of the report. Mr. Johnson said he had moved to dispense with the reading of the report, because he did not wish to trouble the Senate with the reading of any of his re ports. He believed that these petitions and memo rials in relation to Sunday mails, were but the enter ing wedge of a scheme to make this government a religious, instead of a social and political, institution ; they were widely circulated, and people were induced to sign them without reflecting upon the subject,1 or the consequences which would result from the adop tion of the measure proposed. There was nothing more improper than the interference of Congress in this matter. Extra copies wanted. Legislation upon the sub ject improper. It would have a ten dency to unite religion with the state. Motion to print extra copies. Objection made. Petitions an entering wedge to make the govern ment religious instead of political. People in duced to sign them without reflection. . Nothing more improper than the inter ference of Congress. *In the more recent Sunday-law agitation of 1888-90, a much more expeditious plan was adopted for obtaining petitioners for Sunday laws. The advocates of religious legislation in many cases simply induced a. representative convention or individual of some organization to indorse the petition, and then the names of the thousands or millions of mem- Plan now adopted for obtaining "petitioners.' 84 AMERICAN STATE PAPERS. Letter of Cardinal Gibbons. Cardinal Gibbons's name counted for over seven million. Senator Elair presents the representative " signatures." bers of such organization, as the case may have been, were presented to Congress as asking for a Sunday law. The following letters from Cardi nal Gibbons and extract from the "Congressional Record," illustrate the plan of work : "Cardinal's Residence, 408 North Charles Street, ) Baltimore, December 4, 1888. ( " Rev. Dear Sir : I have to acknowledge your esteemed favor of the 1st instant, in reference to the proposed passage of a law by Congress ' against Sunday work in the government's mail and military service,' etc. " I am most happy to add my name to those of the millions of others who are laudably contending against the violation of the Christian Sab bath by unnecessary labor, and who are endeavoring to promote its decent and proper observance by legitimate legislation. As the late Plenary Council of Baltimore has declared, the due observance of the Lord's day contributes immeasurably to the restriction of vice and im morality, and to the promotion of peace, religion, and social order, and cannot fail to draw upon the nation the blessing and protection of an overruling Providence. If benevolence to the beasts of burden directed one day's rest in every week under the old law, surely humanity to man ought to dictate the same measure of rest under the new law. "Your obedient servant in Christ, "James Cardinal Gibbons, "Rev. W. F. Crafts. "Archbishop of Baltimore." This letter saying, " I am most happy to add my name," was taken as the indorsement of seven million two hundred thousand, and so pre sented to Congress, as the following from the ' ' Congressional Record ' ' of January 17, 1889, shows : "Mr. Blair: I present petitions of individual bodies, praying for the passage of a Sunday-rest law. Of the petitions, the following analysis is submitted by those who desire their presentation : "petitions from national bodies. " Contents: " I. Individual signatures, ..... . 407 "2. Representative signatures by indorsements of bodies and Analysis of indorsements. meetings, H,I74,33714,174,744 "Total, ' ' Analysis of the latter : " First indorsement is that of the American Sabbath Union, which was officially constituted by official action of the General Conference of the Methodist Episcopal Church, the Home Missionary Society of the Baptist Church, the General Assemblies of the Presbyterian Church (North and South), and the Synod of the Reformed Church, five de nominations whose membership together is five million nine hundred seventy-seven thousand six hundred ninety-three. Of the membership of the Brotherhood of Locomotive Engineers, the indorsement of whose international convention stands second, at least twenty thousand citi- SUNDAY MAILS. 85 zens of the United States. Of the Knights of Labor, the indorsement of whose international convention stands third, at least two hundred nineteen thousand citizens of the United States. The Presbyterian General Assembly, North, whose action stands next, had at the time of the indorsement seven hundred twenty-two thousand seventy-one mem bers. The convention of Christian Workers, whose indorsement is next, had four hundred fifty present when the unanimous vote of indorse ment was taken. The Woman's Christian Temperance Union, which comes next, had one hundred eighty-five thousand five hundred twenty- one at the time of the vote. The Roman Catholics, for whom Cardinal Gibbons speaks, number seven million two hundred thousand." From this official analysis it appears that of the alleged fourteen million one hundred seventy-four thousand three hundred thirty-seven signatures to the Sunday-law petitions, only four hundred seven were actual signatures.- And of the "representative signatures," seven mill ion two hundred thousand (over one-half) no one had any authority whatever to present, as is proved by the following letter from Cardinal Gibbons : " Cardinal's Residence, 408 North Charles Street, ) Baltimore, Md., February 27, 1889. f "My Dear Sir: In reply to your favor dated February 25, 1889, duly received, his Eminence Cardinal Gibbons desires me to write to you, that whatsoever countenance his Eminence has given to the ' Sunday law ' referred to in your favor, as he had not the authority, so he had not the intention, of binding the archbishops, the bishops, or the Catholic laity of the United States. His Eminence bids me say to you that he was moved to write a letter favoring the passage of the bill, mainly from a consideration of the rest and recreation which would re sult to our poor overworked fellow-citizens, and of the facility which it would then afford them of observing the Sunday in a religious and decorous way. "It is incorrect to assume thata his Eminence, in the alleged words of Senator Blair set forth in your favor, ' signed the bill, thus pledging seven million two hundred thousand Catholics as indorsing the bill. ' "I have the honor to remain, with much respect, yours faithfully, "J. P. Donahue, Chancellor. "To D. E. Lindsey, Esq., 708 Rayner Avenue, Baltimore, Md." That a large part of the Knights of Labor are also opposed to Sunday legislation is proved by the following speech of Master Workman Millard F. Hobbs, of the District of Columbia, who appeared before the House Committee on the District of Columbia, at a hearing held at Washing. ton, February 18, 1890 : " Mr. Hobbs : I occupy, at the present time, the position of chief officer of the Knights of Labor in the District of Columbia. I want to deny that the Knights of Labor have authorized anybody to speak for them in this particular matter. Further analysis. Second let ter of Cardinal Gibbons. Had no intention to pledge others. An incorrect assumption. Many Knights of Labor also oppose Sun day legisla tion. Address of a Master Workman. 86 AMERICAN STATE PAPERS. Knights re fuse to indorse Sunday-rest bill. As a whole, they will have nothing to do with it. Opposition on account of its religious feature. Opposition to Sunday bill. Resolved to have nothing to do with the measure. Opposition almost unani- Others also opposed. " Mr. Crafts came before the Federation of Labor, and argued this bill, and that body refused to indorse the bill. He came before the District Assembly of the Knights of Labor (which is made up of all the Knights of Labor of the Assemblies of the District of Columbia), and that body has refused to indorse it. There are parties in that body who believe in the bill as it is ; others believe in a certain portion of it, and others are wholly opposed to it ; and the Knights of Labor, as a whole, have thought best not to have anything to do with it. Every Knight of Labor is in favor of a day of rest ; — some of them believe they ought to have two days of rest. I believe they are all in favor of the rest feature of the bill, but, on account of what is calleduthe religious feature of the bill, they are opposed to it. "Mr. Schulteis : I am a duly elected member of the legislative committee, but I deny that you are a member of that committee, or have any right to talk in this meeting, or have been authorized by any meeting— " Mr. Crafts : Of the Knights of Labor. Mr. Schulteis has a right to be heard here. "Mr. Hobbs : Mr. Schulteis's credentials merely show that he is a member of the District Committee on Labor Legislation, and Mr. Schulteis himself is in favor of the bill, and he is a member of that committee ; but the balance of that committee have unanimously signed a petition against this bill. Now District Assembly 66 of the District of Columbia, has jurisdiction of all local assemblies in this community, and (with the exception of one local assembly) they have resolved not to do anything with this measure, claiming that they can best satisfy the members of the local assemblies in the District in this way. They do not believe in working on Sunday, but as for the other feature of the bill, they think it is best not to appear here in favor of it ; and I believe there is quite a lot of the members of the order who believe that if they want rest on Sunday, or any other day, they can get it through their labor organizations, and that it is best not to try to get it through Con gress by a sort of church movement. " There are over thirty unions of Knights of Labor, and there has been only one petition sent here. They have remained silent upon this subject, and I think they want to remain silent upon it. " Mr. Schulteis denies my right to speak here ; but any one who be longs to the organization knows that I have a right to speak without credentials. ' ' So, also, some of the members of the Methodist and Presbyterian churches, Woman's Christian Temperance Union, and others, who were counted as "petitioning" for the enactment of a Sunday-rest bill, under the head of "representative signatures," are known to be opposed to Sunday legislation, many of them having signed the counter-petition. How extensive this class is that have been represented to Congress as petitioning for Sunday laws when it was without their consent and di rectly contrary to their principles and desires, it is impossible to determine. SUNDAY MAILS. 87 Mr. Chambers disagreed with the gentleman from Mr. cham- Tvyr . . . , bcrs disagrees. JVlaine, that ordering a large number would imply any assent to the principles adopted in the report. Neither did he agree with the gentleman from Ken tucky, that the adoption of the measure prayed for would iave a bad tendency, and that legislation upon the subject would be improper. Some had asserted that this measure did tend to unite relig ious with our political institutions, and others had asserted that such would not be the result. The petitioners took an entirely different ground. They Petitioners said that the observance of the Sabbath was con- sabbath legis- . lation was nected with the civil interest of the government. cision of a religious con troversy out side the sphere of govern ment. Our Consti tution recog nizes only per suasion to en force religious observances. Petitioners enjoy protec tion from all molestation. Report and resolution con curred in. however small. Despotic power may invade those rights, but justice still confirms them} Let the national legislature once perform an act which involves the decision of a religious controversy, and it will have passed its legitimate bounds. The precedent will then be established, and the founda tion laid, for that usurpation of the divine prerogative in this country which has been the desolating scourge to the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion, for enforcing religious observ ances. Let the professors of Christianity recommend their religion by deeds of benevolence, by Christian meekness, by lives of temperance and holiness. Let them combine their efforts to instruct the ignorant, to relieve the widow and the orphan, to promulgate to the world the gospel of their Saviour, recommend ing its precepts by their habitual example ; govern ment will find its legitimate object in protecting them. It cannot oppose them, and they will not need its aid. Their moral influence will then do infinitely more to advance the true interests of religion, than any meas ure which they may call on Congress to enact. The petitioners do not complain of any infringement upon their own rights. They enjoy all that Christians ought to ask at the hands of any government — pro tection from all molestation in the exercise of their religious sentiments. Resolved, That the committee be discharged from any further consideration of the subject. The report and resolution were concurred in by the Senate. 1 In the Virginia " Act for establishing religious freedom," Jefferson said : "We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind ; and that if any act shall be hereafter passed to repeal the present, or narrow its operation, such act will be an infringement of natural right. ' ' Ante page 26. REPORT OF HOUSE OF REPRESENTATIVES. 101 21 ST CONGRESS] [1ST SESSION SUNDAY MAILS.1 March 4>l83o. Communicated to House of Representatives, March 4 and 5, 1830. Mr. Johnson, of Kentucky, from the Committee on Report the Post-offices and Post-roads, to whom had been re- committee. ferred memorials from inhabitants of various parts of the United States, praying for a repeal of so much of the post-office law as authorizes the mail to be trans ported and opened on Sunday, and to whom had also been referred memorials from other inhabitants of various parts of the United States remonstrating against such repeal, made the following report : That the memorialists regard the first day of the Memorialists regard the first week as a day set apart by the Creator for religious day as sacred. 1 "American State Papers," Class VII, page 229. This report and the report preceding it, are the last congressional reports upon the sub ject of Sunday legislation. The question is presented with logic, force, and clearness, and the reports are able papers upon the subject of Sun day legislation. In a document submitted to the Senate Committee on Education and Labor, the following statement is reluctantly made by a friend of religious legislation, the Rev. T. P. Stevenson, D. D., corre sponding secretary of the National Reform Association and an editor of the "Christian Statesman : " " The decision then reached remains to-day as the latest decision, and The last con- the report which recommended it as the latest utterance of the American cision. Congress on the subject to which it refers. For fifty-one years it has stood without reply and without protest. . . . Ought that report and that decision to remain any longer on the records of the govern ment, and to operate as they are still operating in the minds of the people, without re-argument and without protest ? Whatever the issue of the present effort, it cannot make the situation worse than it is to-day. Statement of Nothing could be worse than the last recorded decision of the government agitator. in the terms of the above report!" " Senate Miscellaneous Documents," No. 43, page 36. Such sentiments would have been more appropriate two hundred years ago than they are in this enlightened age. It is to be hoped that the spirit of the Revolution, — the spirit of Washington, Jefferson, and Madison, — the spirit so well expressed in these reports, — will not die out as time goes on ; but the intolerant spirit that is now and then mani fested in various States, would seem to indicate otherwise. 102 AMERICAN STATE PAPERS. Ground of objection. exercises, and consider the transportation of the mail and the opening of the post-offices on that day the violation of a religious duty, and call for a suppres sion of the practice.1 Sunday movements. No Sabbath without a re ligious basis. Parental governmentupheld. Sunday laws must be based on the law of God. Religion its only basis. All Sunday laws based on religion. 1 This is the substratum of all Sunday agitation. All the Sunday movements in history have been led by the clergy. In the Senate hear ing of December 13, 1888, the most prominent in our national history, of. those making remarks in favor of Sunday legislation, nine were clergy men, two representatives of State Sabbath Unions, one a representative of the Sabbath observance department of the National Woman's Chris tian Temperance Union, and only one other representative of a secular organization (a temperance society), who was not a minister. Rev. Wilbur F. Crafts, A. M., the apostle of Sunday legislation, in a document submitted by him to the Senate Committee on Education and Labor, at the hearing on the Sunday-rest bill, December 13, 1888, says: "A weekly day of rest has never been permanently secured in any land except on the basis of religious obligation. Take the religion out, and you take the rest out." "Senate Miscellaneous Documents," No. 43, page 21. Again he says : " Liberty is a gain, but it has its perils. . . A large degree of freedom is not safe for children, large or small. Even a republican government is compelled to parent such of its people as are not capable of self-government, until they have learned the art." "The Sabbath for Man," page 192. And in an address in Denver, Rev. Mr. Crafts said : ' ' No laws will avail anything if they are not on the basis of religion. Mount Sinai is the only true basis of all Sabbath legislation." " Daily Rocky Mountain News," Denver, Colorado, February 9, 1890. Joseph Cook, also, in 1887, in one of his celebrated Boston Monday lectures, said : " The experience of centuries shows that you will in vain endeavor to preserve Sunday as a day of rest, unless you preserve it as a day of worship. Unless Sabbath observance be founded upon religious reasons, you will not long maintain it at a high standard on the basis of economic, physiological, and political considerations only." In the various Sabbath conventions of the country, speeches and papers are even more outspoken in favor of a religious and against a " civil " Sabbath. Dr. A. H. Lewis, also, in the preface (pages viii, ix) to his work, "A Critical History of Sunday Legislation," says : " Some now claim that Sunday legislation is not based on religious grounds. This claim is contradicted by the facts of all the centuries. Every Sunday law sprung from a religious sentiment. Under the pagan conception, the day was to be ' venerated ' as a religious duty owed to REPORT OF HOUSE OF REPRESENTATIVES. 103 sentiments. Others, by counter memorials, are known to enter- Variety of tain a different sentiment, believing that no one day of the week is holier than another. Others, holding the universality and immutability of the Jewish dec alogue, believe in the sanctity of the seventh day of the week as a day of religious devotion, and, by their memorial now before the committee, they also request that it may be set apart for religious pur poses. Each has hitherto been left to the exercise of his own opinion, and it has been regarded as the Government , . should protect proper business of government to protect all and de- aii, but deter- , mine for none. termme for none} But the attempt is now made to the god of the sun. As the resurrection-festival idea was gradually com bined with the pagan conception, religious regard for the day was also demanded in honor of Christ's resurrection. In the middle-age period, sacredness was claimed for Sunday because the Sabbath had been sacred under the legislation of the Jewish theocracy. Sunday was held su premely sacred by the Puritans, under the plea that the obligations im- Puritan idea. posed by the fourth commandment were transferred to it. There is no meaning in the statutes prohibiting 'worldly labor,' and permitting Evidence in ' works of necessity and mercy,' except from the religious standpoint. sefVelWS them" There can be no ' worldly business,' if it be not in contrast with religious obligation. Every prohibition which appears in Sunday legislation is Religious based upon the idea that it is wrong to do on Sunday the things pro- ' ea aPParent hibited. Whatever theories men may invent for the observance of Sun- Scientific day on non-religious grounds, and whatever value any of these may have never been from a scientific standpoint, we do not here discuss; but the fact re- 'he basis of Sunday legis- mains that such considerations have never been made the basis of legis- lation. lation. To say that the present Sunday laws do not deal with the day Contrary as a religious institution, is to deny every fact in the history of such leg- n;ai 0f n;s_ islation. The claim is a shallow subterfuge." toI7' , „ & A shallow 1 The English philosopher, John Stuart Mill, says : subterfuge. "Another important example of illegitimate interference with the Sunday laws rightful liberty of the individual, not simply threatened, but long since erry."86 carried into triumphant effect, is Sabbatarian legislation." And? in reference to laws forbidding Sunday pastimes, Mr. Mill says : "The only ground, therefore, on which restrictions on Sunday amusements can be defended, must be that they are religiously wrong ; a motive of legislation which can never be too earnestly protested against. Cannot be ' Deorum injuria Diis curee.' It remains to be proved that society or p°otestedS y any of its officers holds a commission from on high to avenge any sup- against posed offense to Omnipotence, which is not also a wrong to our fellow- 104 AMERICAN STATE PAPERS. As argument fails, force is solicited. Authority ..of Congress. Prohibited from legislat ing on relig ion. bring about a greater uniformity, at least in practice ; and, as argument has failed, the government has been called upon to interpose its authority to settle the controversy.1 Congress acts under a Constitution of delegated and limited powers. The committee look in vain to that instrument for a delegation of power authorizing this body to inquire and determine what part of time, or whether any, has been set apart by the Almighty for religious exercises. On the contrary, among the few prohibitions which it contains, is one that pro hibits a religious test, and another which declares that Foundation of all religious persecutions. A statement . of the case. Tendency of humanity. Disposition of mankind to impose their opinipns on others. This power increasing. creatures. The notion that it is one man's duty that another should be religious, was the foundation of all the religious persecutions ever per petrated, and if admitted, would fully justify them. Though the feel ing which breaks out in the repeated attempts to stop railway traveling on Sunday, in the resistance to the opening of museums, and the like, has not the cruelty of the old persecutors, the state of mind indicated by it is fundamentally the same. It is a determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor's religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested." " On Liberty," chapter 4, paragraph 19. 1 In reference to the tendency of mankind to enforce upon others their opinions and their customs, John Stuart Mill makes the following important observation : "Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the pow ers of society over the individual, both by the force of opinion and even by that of legislation ; and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend sponta neously to disappear, but, on the contrary, to grow more and more formidable. The disposition of mankind, whether as rulers or as fellow- citizens, to impose their own opinions and inclinations as a rule of con duct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power ; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase." "On Liberty " chapter I. REPORT OF HOUSE OF REPRESENTATIVES. 105 Congress shall pass no law respecting the establish- Congress to make no law ment of religion, or prohibiting the free exercise respecting * ° J religion. thereof The committee might here rest the argument upon the ground that the question referred to them does not come within the cognizance of Congress ; but the perseverance and zeal with which the memo rialists pursue their object seems to require a further Further .... - . ,. , , .. elucidation elucidation of the subject ; and, as the opposers of required. Sunday mails disclaim all intention to unite church and state, the committee do not feel disposed to im pugn their motives ; and whatever may be advanced in opposition to the measure will arise from the fears entertained of its fatal tendency to the peace and happiness of the nation. The catastrophe of other Experience x * L _ # of other na- nations furnished the framers of the Constitution a tionsa warn ing. beacon of awful warning, and they have evinced the greatest possible care in guarding against the same evil. The law, as it now exists, makes no distinction as Law now makes no dis- to the days of the week, but is imperative that the tinction of ^ L days of week. postmasters shall attend at all reasonable hours in every day to perform the duties of their offices ; and the Postmaster-General has given his instructions to all postmasters that, at post-offices where the mail ar rives on Sunday, the office is to be kept open one hour or more after the arrival and assorting the mail ; but in case that would interfere with the hours of public worship, the office is to be kept open for one hour after the usual time of dissolving the meeting. 1 On this point, Jefferson, in his second inaugural address, March 4, 1805, spoke as follows : "In matters of religion, I have considered that its free exercise is Religion j- 7 7 placed inde- placed by the Constitution independent of the powers of the general gov- pendent of ernment. I have therefore undertaken, on no occasion, to prescribe the government religious exercises suited to it ; but have left them, as the Constitution found them, under the direction and discipline of state or church author ities acknowledged by the several religious societies." 106 AMERICAN STATE PAPERS. No just ground of complaint A question on which even Christians dif fer among themselves. Incompati ble with a republican legislature. A statesman is not to rep resent his con stituents' relig ious views. Usurpation of the divine prerogative. This liberal construction of the law does not satisfy the memorialists ; but the committee believe that there is no just ground of complaint, unless it be conceded that they have a controlling power over the con sciences of others.1 If Congress shall, by the authority of law, sanction the measure recommended, it would constitute a legis lative decision of a religious controversy, in which even Christians themselves are at issue. However suited such a decision may be to an ecclesiastical council, it is incompatible with a republican legislature, which is purely for political, and not for religious, purposes. In our individual character we all entertain opin ions, and pursue a corresponding practice, upon the subject of religion. However diversified these may be, we all harmonize as citizens, while each is willing that the other shall enjoy the same liberty which he claims for himself . But, in our representative char acter, our individual character is lost. The individual acts for himself; the representative for his constitu ents. He is chosen to represent their political, and not their religious, views ; to guard the rights of man, not to restrict the rights of conscience. Despots may regard their subjects as their prop erty, and usurp the divine prerogative of prescribing their religious faith ; but the history of the world Coercion In matters of opinionillegitimate. Especially noxious when supported by public opinion. A noble statement. 1 " Let us suppose," says John Stuart Mill, " that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, man kind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind." "On Liberty," chapter 2, paragraph I. The principle here stated is the only one compatible with liberty. REPORT OF HOUSE OF REPRESENTATIVES. 107 furnishes the melancholy demonstration that the dis- Disposition . . to coerce relig- position of one man to coerce the religious homage iou? homage 00 springs from of another, springs from an unchastened ambition, anunhaiwed r ° ' ambition. rather than [from] a sincere devotion to any religion. The principles of our government do not recog- Majority has ... . . no authority nize in the majority any authority over the minority, over minority J in religion. except in matters which regard the conduct of man to his fellow-man.1 1 In an essay on " Railway Morals and Railway Policy," published in the "Edinburgh Review" for October, 1854, Herbert Spencer had oc casion to deal with the question of a majority's powers as exemplified in the conduct of public companies. The same principle is true of gov ernments, or of any other organizations. Mr. Spencer says : "Under whatever circumstances, or for whatever ends, a number of Essay of men co-operate, it is held that if difference of opinion arises among Spencer. them, justice requires that the will of the greater number shall be exe cuted, rather than that of the smaller number ; and this rule is supposed to be uniformly applicable, be the question at issue what it may. So confirmed is this conviction, and so little have the ethics of the matter been considered, that to most this mere suggestion of a doubt will cause some astonishment. Yet it needs but a brief analysis to show that the opinion is little better than a political superstition. Instances may readily be selected, which prove by reductio ad absurdum, that the right of a ma- Right of jority is a purely conditional right, valid only within specific limits. Let us valid only take a few. Suppose that at the general meeting of some philanthropic j)^1,'" sPecinc association, it was resolved that in addition to relieving distress, the association should employ home missionaries to preach down popery. Might the subscriptions of Catholics, who had joined the body with charitable views, be rightfully used for this end ? Suppose that of the members of a book club, the greater number, thinking that under ex isting circumstances rifle practice was more important than reading, should decide to change the purpose of their union, and to apply the funds in hand for the purchase of powder, ball, and targets ? Would the rest be bound by this decision ? Suppose that under the excitement of news from Australia, the majority of a Freehold Land Society should determine, not simply to start in » body for the gold-diggings, but- to use their accumulated capital to provide outfits. Would this appropria tion of property be just to the minority ? and must these join the expe dition ? Scarcely any one would venture an affirmative answer even to the first of these questions ; much less to the others. And why ? Be cause every one must perceive that by uniting himself with others, no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them. Each of these supposed minorities would 108 AMERICAN STATE PAPERS. Usurpation of authority. A Jewish monarch, by grasping the holy censer, lost both his scepter and his freedom. A destiny as A sound argument for the minority. Minority not bound by actions of majorities for eign to com pact. Sphere of the majority. Coercion in objects foreign to contract is gross tyranny. Sphere of the majority. Rule of ma jority not necessarilyliberty. Rights of minority must be protected. properly reply to those seeking to coerce them : ' We combined with you for a defined object ; we gave money and time for the further ance of that object ; on all questions thence arising, we tacitly agreed to conform to the will of the greater number ; but we did not agree to con form on any other questions. If you induce us to join you by professing a certain end, and then undertake some other end of which we were not apprised, you .obtain our support under false pretenses ; you exceed the expressed or understood compact to which we committed ourselves; and we are no longer bound by your decisions. ' Clearly this is the only ra tional interpretation of the matter. The general principle underlying the right government of every incorporated body, is that its members contract with each other severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they were incorporated; but in no others. To this extent only can the con tract hold. For as it is implied in the very nature of a contract, that those entering into it must know what they contract to do ; and as those who unite with others for a specified object, cannot contemplate all the unspecified objects, which it is hypothetically possible for the union to undertake ; it follows that the contract entered into cannot extend to such unspecified objects. And if there exists no expressed or understood contract between the union and its members respecting unspecified ob jects, then for the majority to coerce the minority into undertaking them, is nothing less than gross tyranny." And, subsequently in another essay, he added : " Naturally, if such a confusion of ideas exists in respect of the pow ers of a majority where the deed of corporation tacitly limits those powers, still more must there exist such * confusion where there has been no deed of incorporation. Nevertheless the same principle holds. I again emphasize the proposition that the members of an incorporated body are bound 'severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are in corporated; but in no others.' And I contend that this holds of an in corporated nation as much as of an incorporated company." And Professor Francis Lieber says : "Liberty has not unfrequently been defined as consisting in the rule of. the majority ; or, it has been said, where the people rule, there is liberty. The rule of the majority, of itself, indicates the power of a certain body ; but power is not liberty. Suppose the majority bid you drink hemlock, is there liberty for you ? Or, suppose the majority give away liberty and establish a despot. We might say with greater truth, that where the minority is protected, although the majority rule then probably, liberty exists. But in this latter case it is the protection, or in other words, rights beyond the reach of the majority, which constitute REPORT OF HOUSE OF REPRESENTATIVES. 109 little to be envied may be the lot of the American a possible people, who hold the sovereignty of power, if they, in °f religious . , _ . . J legislation. the person of their representatives, shall attempt to unite, in the remotest degree, church and state. From the earliest period of time, religious teachers Religious have attained great ascendency over the minds of the theCpSt° people ; and in every nation, ancient or modern, ah nations whether pagan, Mahometan, or Christian, have sue- united "Ith ceeded in the incorporation of their religious tenets with the political institutions of their country. The Persian idols, the Grecian oracles, the Roman augu ries, and the modern priesthood of Europe, have all, in their turn, been the subject of popular adulation, and the agents of political deception. If the measure rec ommended should be adopted, it would be difficult for Dangerous 7 • r i .7,777 consequences human sagacity to foresee how rapid would be the sue- Hkeiy to result ° J \ from Sunday cession, or how numerous the train of measures which legislation. follow, involving the dearest rights of all — the rights of conscience. » It is perhaps fortunate for our country that the Opportune time for con- proposition should have been made at this early period sideration of J r proposition. while the spirit of the Revolution yet exists in full vigor.1 Religious zeal enlists the strongest prejudices liberty, — not the power of the majority. There can be no doubt that Despotism the majority ruled in the French massacres of the Protestants ; was ° maJorl ,es- there liberty in France on that account ? All despotism, without a standing army, must be supported or acquiesced in, by the majority. It could not stand otherwise." "On Civil Liberty and Self-Government" (London, 1853), page 15. 1 Jefferson foresaw the same retrogradation in public opinion on the Foresight of matter of the individual's religious rights. He stated explicitly that ¦* erson' from the close of the Revolution public opinion would " be going down hill. " In Query xvii, of his " Notes on Virginia, ' ' he says in closing : "Besides, the spirit of the times may alter, will alter. Our rulers Alteration will become corrupt, our people careless. A single zealot may com- 0pmj0n. mence persecution, and better men be his victims. It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going down hill. It will not then be necessary to resort every moment to the people for support. They 110 AMERICAN STATE PAPERS. Prejudice in religion. Religious professionsmay destroy our equality of rights. Tew and Christianequal. Declarations of Congress will convince none. Spirit of persecution in America. of the human mind ; and, when misdirected, excites the worst passions of our nature, under the delusive pre text of doing God service. Nothing so infuriates the heart to deeds of rapine and blood ; nothing is so in cessant in its toils, so persevering in its determina tions, so appalling in its course, or so dangerous in its consequences. The equality of rights, secured by the Constitution, may bid defiance to mere political ty rants ; but the robe of sanctity too often glitters to de ceive. The Constitution regards the conscience of the Jew as sacred as that of the Christian, and gives no more authority to adopt a measure affecting the con science of a solitary individual than that of a whole community. That representative who would violate this principle would lose his delegated character, and forfeit the confidence of his constituents. If Congress shall declare the first day of the week holy, it will not convince the Jew nor the Sabbatarian. It will .dissatisfy both, and, consequently, convert neither. Human power may extort vain sacrifices, but the Deity alone can command the affections of the heart.1 It must be recollected that in the earliest settle ment of this country, the spirit of persecution which drove the Pilgrims from their native home was brought with them to their new habitations, and that some Christians were scourged, and others put to death, for no other crime than dissenting from the dogmas of their rulers. Rights ol people will be disregarded. Remaining shackles will be a constant menace. Enactments against irreligion provoke it. will be forgotten, therefore, and their rights disregarded. They wrll forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion." 1 " Positive enactments against irreligion," says George Bancroft, " like positive enactments against fanaticism, provoke the evil which they were designed to prevent." REPORT OF HOUSE OF REPRESENTATIVES. HI With these facts before us, it must be a subj'ect of Regret that , . . such a ques- deep regret that a question should be brought before tion should ° be raised. Congress which involves the dearest privileges of the Constitution, and even by those who enjoy its choic est blessings. We should all recollect that Cataline, a professed patriot, was a traitor to Rome ; Arnold, a professed Whig, was a traitor to America ; and Judas, a professed disciple, was a traitor to his divine Master. With the exception of the United States, the whole Religious human race, consisting, it is supposed, of eight hun- the world. dred million of rational beings, is in religious bondage ; and, in reviewing the scenes of persecution which history everywhere presents, unless the committee could believe that the cries of the burning victim, and the flames by which he is consumed, bear to heaven a grateful incense, the conclusion is inevitable that the line cannot be too strongly drawn between Line cannot be too closely church and state. If a solemn act of legislation shall, drawn be- tween church in one point, define the law of God, or point out to ^ff'^. the citizen one religious duty, it may, with equal pro- ^/reiigicms" priety, proceed to define every part of divine revela- define'to«.ay tion, and enforce every religious obligation, even to the forms and ceremonies of worship, the endowment of the church, and the support of the clergy. It was with a kiss that Judas betrayed his divine False pto- * fessions. Master ; and we should all be admonished — no mat ter what our faith may be — that the rights of con- Rights can # be most suc- science cannot be so successfully assailed as under cessfuiiyas- J sailed under the pretext of holiness. The Christian religion made £jjj{|^0f its way into the world in opposition to all human governments. Banishment, tortures, and death were inflicted in vain to stop its progress. But many of its professors, as soon as clothed with political power, lost the meek spirit which their creed inculcated, and began to inflict on other religions, and on dis senting sects of their own religion, persecutions more 112 AMERICAN STATE PAPERS. Persecutions aggravated than those which their own apostles had by state Chris- 00 r tianity. endured.1 Toleration of the fourth century. Influence of orthodox Christianity. Persecution immediatelyfollows its establishment. Total destructionof "heretics.' Applauded by state- church ad vocates. Establish ment of Christianity. ^ Edict of Constantine. 1 Scarcely had the Christian church the law in her hands before she began to persecute. Gibbon says : "The Edict of Milan [A. D. 313], the great charter of toleration, had confirmed to each individual of the Roman world the privilege of choosing and professing his own religion. But this inestimable privilege was soon violated ; with the knowledge of truth the emperor imbibed the maxims of persecution ; and the sects which dissented from the Catholic Church [which was orthodox], were afflicted and oppressed by the triumph of Christianity. Constantine easily believed that the here tics, who presumed to dispute his opinions, or to oppose his commands, were guilty of the most absurd and criminal obstinacy. . . . Not a moment was lost [after Christianity had been established] in excluding the ministers and teachers of the separated congregations from any share of the rewards and immunities which the emperor had so liberally bestowed on the orthodox clergy. But as the sectaries might still exist under the cloud of royal disgrace, the conquest of the East was immedi ately followed by an edict which announced their total destruction. [Eusebius's " Life of Constantine," I, iii, chapters 63, 66.] After a pre amble filled with passion and reproach, Constantine absolutely prohibits the assemblies of the heretics, and confiscates their public property to the use either of the revenue or of the Catholic Church. The design of extirpating the name, or at least of restraining the progress, of these odious heretics, was prosecuted with rigor and effect. Some of the penal regulations were copied from the edicts of Diocletian ; and this method of conversion was applauded by the same bishops who had felt the hand of oppression, and had pleaded for the rights of humanity. " " De cline and Fall of the Roman Empire," chapter 21, paragraph 1. It was Christianity, too, as a whole, and not any particular belief, that Constantine had established as the religion of the state. In Eusebius's "Life of Constantine," book ii, chapter 66, we find the following in the letter of Constantine to Alexander and Arius : " For I was aware that if I should succeed in establishing, according to my hopes, a common harmony of sentiment among all the servants of God, the general course of affairs would also experience a change correspondent to the pious desires of them all." And in the edict of Constantine on polytheism, we read : L ' Victor Constantinus, Maximus Augustus, to the people of the Eastern provinces : "My own desire is, for the general advantage of the world and all mankind, that thy people should enjoy a life of peace and undisturbed concord. Let those, therefore, who are still blinded by error, be made welcome to the same degree of peace and tranquillity which they have who believe. For may be that this restoration of equal privileges to all persecute on acquiringpower. ligion REPORT OF HOUSE OF REPRESENTATIVES. 113 The ten persecutions of the pagan emperors were Pagan exceeded in atrocity by the massacres and murders exclededTn perpetrated by Christian hands ; and in vain shall we "Christian" , . , ,. . . , persecutions. examine the records of imperial tyranny for an engine of cruelty equal to the holy Inquisition} Every relig- ah religions ious sect, however meek in its origin, commenced the work of persecution as soon as it acquired political power. The framers of the Constitution recognized the Reiig eternal principle that man's relation with his God is fe^suS"™*" above human legislation, and his rights of conscience inalienable.8 Reasoning was not necessary to estab- will have a powerful effect in leading them into the path of truth. Let no one molest another in this matter ; but let every one be free to follow the bias of his Own mind." " Life of Constantine," book ii, chapter 56. 1 "There are many," says Thomas Clarke, "who do not seem to be Persecutor sensible that all violence in religion is irreligious, and that, whoever is wron^*™'5' wrong, the persecutor cannot be right." 2 " The United States furnishes the first example in history of a gov- America the ernment -deliberately depriving itself of all legislative control over relig- Jjp1 t0^e?0B- ion, which was justly regarded by all older governments as the chief rights. support of public morality, order, peace, and prosperity. But it was an act of wisdom and justice, rather than self-denial. Congress was shut up to this course by the previous history of the American colonies, and the actual condition of things at the time of the formation of the national government. The Constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people. . . "The framers of the Constitution, therefore, had no right and no Government intention to interfere with the religion of the citizens of any State, or to IJJ't^on'Jo discriminate between denominations ; their only just and wise course interfere with religion. was to leave the subject of religion with the several States, to put all churches on an equal footing before the national law, and to secure to them equal protection. Liberty of all is the best guarantee of the liberty of each. ' ' North America was predestinated from the very beginning for the Liberty largest religious and civil freedom, however imperfectly it was under- ln menca- stood by the first settlers. It offered a hospitable home to emigrants of all nations and creeds. The great, statesmen of the Philadelphia con vention recognized this providential destiny, and adapted the Constitution to it. They could not do otherwise. To assume the control of religion 8 114 AMERICAN STATE PAPERS. The princi ple self- evident. lish this truth ; we are conscious of it in our own bosoms.1 It is this consciousness which, in defiance Any control of religion an act of usurpation. American system. Inherent sense of indi vidual rights. Moral sense of man. A critical cross-exam ination. in any shape, except by way of protection, would have been an act of usurpation, and been stoutly resisted by all the States. "Thus Congress was led by Providence to establish a new system, which differed from that of Europe and the colonies, and set an example to the several States for imitation." Philip Schaff, in "Church and State in the United States," page 23 et seq. 1 Speaking of this innate sense, Herbert Spencer argues as follows : "But that we possess such a sense, may be best proved by evidence drawn from the lips of those who assert that we have it not. Oddly enough Bentham unwittingly derives his initial proposition from an oracle whose existence he denies, and at which he sneers when it is ap pealed to by others. ' One man,' he remarks, speaking of Shaftesbury, ' says he has a thing made on purpose to tell him what is right and what is wrong ; and that it is called moral sense ; and then he goes to work at his ease, and says such and such a thing is right, and such and such a thing is wrong. Why? "Because my moral sense tells me it is." ' Now that Bentham should have no other authority for his own maxim than this same moral sense, is somewhat unfortunate for him. Yet on putting that maxim into critical hands, we shall soon discover such to be the fact. Let us do this. " ' And so you think,' says the patrician, ' that the object of our rule should be " the greatest happiness to the greatest number." ' " ' Such is our opinion,' answers the petitioning plebeian. " ' Well, now, let us see what your principle involves. Suppose men to be, as they very commonly are, at variance in their desires on some given point ; and suppose that those forming the larger party will receive a certain amount of happiness each, from the adoption of one course, whilst those forming the smaller party will receive the same amount of happiness each, from the adoption of the opposite course : then if "greatest happiness " is to be our guide, it must follow, must it not, that the larger party ought to have their way ? ' " 'Certainly.' " 'That is to say, if you, the people, are a hundred, whilst we are ninety-nine, your happiness must be preferred, should our wishes clash, and should the individual amounts of gratification at stake on the two sides be equal.' " 'Exactly ; our axiom involves that.' " ' So then it seems, that as, in such a case, you decide between the two parties by numerical majority, you assume that the happiness of a member of the one party, is equally important with that of a member of the other.' " ' Of course.' " ' Wherefore, if reduced to its simplest form, your doctrine turns REPORT OF HOUSE OF REPRESENTATIVES. 115 of human laws, has sustained so many martyrs in tort- Sustentation of the martyrs. ures and in flames. They felt that their duty to out to be the assertion that all men have equal claims to happiness ; or, Equality of applying it personally, that you have as good a right to happiness as I ng s' have.' " 'No doubt I have.' " 'And pray, sir, who told you that you have as good a right to Source of , . T , -. , information. happiness as I have ? ' " ' Who told me ? — I am sure of it ; I know it ; I feel it ; I — ' "'Nay, nay, that will not do. Give me your authority. Tell me who told you this — how you got at it — whence you derived it.' "Whereupon, after some shuffling, our petitioner is forced to confess Proposition that he has no other authority but his own feeling — that he has simply admitted. y an innate perception of the fact ; or, in other words, that ' his moral sense tells him so.' " In truth, none but those committed to a preconceived theory, can fail to recognize, on every hand, the workings of such a faculty. From Evidences early times downward there have been constant signs of its presence — ence exlst signs which happily thicken as our own day is approached. The articles of Magna Charta embody its protests against oppression, and its demands Its force for a better administration of justice. Serfdom was abolished partly at movements. its suggestion. It encouraged Wickliffe, Huss, Luther, and Knox, in their contests with popery : and by it were Huguenots, Covenanters, Moravians, stimulated to maintain freedom of judgment in the teeth of armed ecclesiasticism. It dictated Milton's ' Essay on the Liberty of Unlicensed Printing.' It piloted the Pilgrim Fathers to the New World. It supported the followers of George Fox under fines and imprisonment. And it whispered resistance to the Presbyterian clergy of 1662. In latter days it emitted that tide of feeling which undermined and swept away Catholic disabilities. Through the mouths of anti-slavery orators, it poured out its fire, to the scorching of the selfish, to the melting of the good, to our national purification. It was its heat, too, which warmed our sympathy for the Poles, and made boil our indignation against their oppressor. Pent-up accumulations of it, let loose upon a long-standing injustice, generated the effervescence of a reform agita tion. Out of its growing flame came those sparks by which protectionist theories were exploded, and that light which discovered to us the truths of free trade. By the passage of its subtle current is that social electroly sis effected, which classes men into parties, which separates the nation into its positive and negative, its radical and conservative elements. At present it puts on the garb of anti-state-church associations, and Present ...,,..,-., £. 1 manifest- shows its presence in manifold societies for the extension of popular ations. power. It builds monuments to political martyrs, agitates for the ad mission of Tews into Parliament, publishes books on the rights of women, Rights now ... , , .,.,. demanded. petitions against class legislation, threatens to rebel against militia con- 116 AMERICAN STATE PAPERS. Duty to God paramount A principle that cannot be eradicated. It is virtually recognized, even by the bigot Primitive Christianity did not ask governments to recognize its religious institutions. All now en joy their re ligious rights. Why wrest these rights from our neighbor? Evidence in our max ims. Innate sense of rights. Doctrine of the intol erant. God was superior to human enactments, and that man could exercise no authority over their consciences. It is an inborn principle which nothing can eradicate. The bigot, in the pride of his authority, may lose sight of it ; but, strip him of his power, prescribe a faith to him which his conscience rejects, threaten him in turn with the dungeon and the fagot, and the spirit which God has implanted in him rises up in rebellion, and defies you. Did the primitive Christians ask that government should recognize and observe their religious institu tions ? All they asked was toleration ; all they com plained of was persecution. What did the Protestants of Germany, or the Huguenots of France, ask of their Catholic superiors ? Toleration. What do the per secuted Catholics of Ireland ask of their oppressors? Toleration. Do not all men in this country enjoy every religious right which martyrs and saints ever asked? Whence, then, the voice of complaint ? Who is it that, in the full enjoyment of every principle which human laws can secure, wishes to wrest a por tion of these principles from his neighbor ? * scriptions, refuses to pay church-rates, repeals oppressive debtor acts, laments over the distresses of Italy, and thrills with sympathy for the Hungarians. From it, as from a root, spring our aspirations after social rectitude : it blossoms in such expressions as — ' Do as you would be done by,' ' Honesty is the best policy,' 'Justice before generosity ; ' and its fruits are equity, freedom, safety." " Social Statics," introduction, page 33 et seq. Jefferson emphasized this same point in a letter to Dr. John Manners, dated at Monticello, June 12, 1817 : "The evidence of this natural right [expatriation] , like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophist ical investigations of reason, but is impressed on the sense of every man. We do not claim these under the charters of kings or legislators, but under the King of kings." x"The doctrine which," says Lord Macaulay, "from the very first origin of religious dissensions, has been held out by all bigots of all sects, when condensed into a few words, and stripped of rhetorical dis guise, is simply this : I am in the right, you are in the wrong. When REPORT OF HOUSE OF REPRESENTATIVES. 117 Do the petitioners allege that they cannot consci- Pointed . . questions. entiously participate in the profits of the mail con tracts and post-offices, because the mail is carried on Sunday ? If this be their motive, then it is worldly gain which stimulates to action, and not virtue or religion. Do they complain that men less consci entious in relation to the Sabbath obtain advantages over them by receiving their letters and attending to their contents ? Still their motive is worldly and selfish. But if their motive be to induce Congress to sanction, by law, their religious opinions and observ- Anyat- . tempts to ances, then their efforts ought to be resisted, as in sanction, by ° law, religious their tendency fatal both to religious and political 0h3ser^aDlces' freedom. resisted- Why have the petitioners confined their prayer to the mails ? Why have they not requested that the government be required to suspend all its executive functions on that day ? Why do they not require us to enact that our ships shall not sail ; that our armies shall not march ; that officers of justice shall not seize the suspected or guard the convicted ? They seem to forget that government is as necessary on Government , r , .-p., . . as necessary Sunday as on any other day of the week. The spirit on Sunday as ' •* •* x on other days. of evil does not rest on that day. It is the govern ment, ever active in its functions, which enables us all, even the petitioners, to worship in our churches in peace. Our p-overnment furnishes very few blessings like Our govem- ° . ment furnishes our mails. They bear from the center of our republic few blessings J x like our mails. to its distant extremes the acts of our legislative bod- you are the stronger, you ought to tolerate me ; for it is your duty to tolerate truth. But when I am the stronger, I shall persecute you ; for it is my duty to persecute error." And John Fiske says : " Cotton, in his elaborate controversy with Roger Williams, frankly A popular .j. . , , j. .. , doctrine asserted that persecution is not wrong in itself ; it is wicked tor false- among hood to persecute truth, but it is the sacred duty of truth to persecute chnstlans- falsehood." "The Beginnings of New England," page 178. 118 AMERICAN STATE PAPERS. Usefulness of the mails. Human ad vancement depends, in part, upon rapidity of disseminationof knowledge. Stopping mails retards our advance ment. Greater ex tension of mail sys tem recom mended. ies, the decisions of the judiciary, and the orders of the executive. Their speed is often essential to the defense of the country, the suppression of crime, and the dearest interests of the people. Were they sup pressed one day of the week, their absense must be often supplied by public expresses ; and, besides, while the mail bags might rest, the mail coaches would pursue their journey with the passengers. The mail bears, from one extreme of the Union to the other, letters of relatives and friends, preserving a communion of heart between those far separated, and increasing the most pure and refined pleasures of our existence ; also, the letters of commercial men convey the state of the markets, prevent ruinous speculations, and promote general as well as individ ual interest ; they bear innumerable religious letters, newspapers, magazines, and tracts, which reach almost every house throughout this wide republic. Is the conveyance of these a violation of the Sabbath ? The advance of the human race in intelligence, in virtue, and religion itself, depends, in part, upon the speed with which a knowledge of the past is disseminated. Without an interchange between one country and another, and between different sections of the same country, every improvement in moral or political science and the arts of life, would be confined to the neighborhood where it originated. The more rapid and the more frequent this inter change, the more rapid will be the march of intellect and the progress of improvement. The mail is the chief means by which intellectual light irradiates to the extremes of the republic. Stop it one day in seven, and you retard one seventh of the advance ment of our country. So far from stopping the mail on Sunday, the com mittee would recommend the use of all reasonable REPORT OF HOUSE OF REPRESENTATIVES. 119 means to give it a greater expedition and a greater importance *- ttti. iii , . °^ rapid coin- extension. What would be the elevation of our munication. country if every new conception could be made to strike every mind in the Union at the same time ? It is not the distance of a province or State from the seat of government which endangers its separation ; but it is the difficulty and unfrequency of intercourse improve- between them. Our mails reach Missouri and Arkan- system. mai sas in less time than they reached Kentucky and Ohio in the infancy of their settlements ; and now, when there are three million of people extending a thousand miles west of the Alleghany, we hear less of discontent than when there were a few thousands Effect of .... „ . stopping mails scattered along their western base. To stop the one day in seven. mails one day in seven would be to thrust the whole western country, and other distant parts of this repub lic, one day's journey from the seat of government. But, were it expedient to put an end to the trans- why are . petitions sent mission of letters and newspapers on Sunday because to the national government? it violates the law of God, have not the petitioners begun wrong in their efforts? If the arm of govern ment be necessary to compel men to respect and obey the laws of God, do not the State governments possess infinitely more power in this respect ? Let the petitioners turn to them, and see if they can in duce the passage of laws to respect the observance of the Sabbath ; for, if it be sinful for the mail to carry letters on Sunday, it must be equally sinful for indi viduals to write, carry, receive, or read them. It would seem to require that these acts should be Logical x outcome of made penal to complete the system. Traveling on Sunday legis- business or recreation, except to and from church ; all printing, carrying, receiving, and reading of news papers ; all conversations and social intercourse, ex cept upon religious subjects, must necessarily be punished to suppress the evil. Would it not also fol low, as an inevitable consequence, that every man, 120 AMERICAN STATE PAPERS. A natural deduction. woman, and child should be compelled to attend meeting?1 And, as only one sect, in the opinion of some, can be deemed orthodox, must it not be determined by law which that is, and compel all to hear those teachers, and contribute to their sup port ?2 Compulsory Sabbath ob servance and attendanceat church. Necessary decisions in providing for religious in struction. Responsi bility of the state. Questions to be decided. 1 The logical consequence is followed out in South Carolina, for a Sunday law of that State orders all persons "to apply themselves to the observation (of the day), by exercising themselves thereon in the duties of piety and true religion, publicly and privately, and having no reasonable or lawful excuse on every Lord's day, to resort to some meet ing or assembly tolerated and allowed by the laws of the State." " Sun day Laws," a paper read at the Third Annual Meeting of the American Bar Association, 1880, by Hon. Henry E. Young, of the Charleston Bar. 2 The principle is the same whether it be preachers or teachers. Both teach religion ; and the money with which they are paid is raised by general taxation. Commenting upon the theory of some that the state has the right to teach religion, Mr. Herbert Spencer says : "Before state-paid ministers can be set to preach, it must first be decided what they are to preach. And who is to say ? Clearly, the state. Either it must itself elaborate a creed, or it must depute some man or men to do so. It must in some way sift out truth from error, and can not escape the responsibility attending this. If it undertakes itself to settle the doctrines to be taught, it is responsible. If it adopts a ready- made set of doctrines, it is equally responsible. And if it selects its doctrines by proxy, it is still responsible, both as - appointing those who choose for it, and as approving their choice. Hence, to say that a gov ernment ought to set up and maintain a system of religious instruction, is to say that it ought to pick out from amongst the various tenets that men hold or have held, those which are right ; and that, when it has done this — when it has settled between the Roman Catholic, the Greek, the Lutheran, and the Anglican creeds, or between the Puseyite, High Church, and Evangelical ones — when it has decided whether we should be baptized during infancy or at a mature age, whether the truth is with Trinitarians or Unitarians, whether men are saved by faith or by works, whether pagans go to hell or not, whether ministers should preach in black or white, whether confirmation is scriptural, whether or not saints' days should be kept, and (as we have lately seen it debating) whether baptism does or does not regenerate — when, in short, it has settled all those controversies which have split mankind into innumerable sects, it ought to assert that its judgment is incapable of error is un questionable — is beyond appeal. There is no alternative. Unless the state says this, it convicts itself of the most absurd inconsistency. Only on the supposition of infallibility can its ecclesiastical doings be made to REPORT OF HOUSE OF REPRESENTATIVES. 121 If minor punishments 1 would not restrain the Jew, important , . question. or the Sabbatarian, or the infidel, who believes Sat- seem tolerable. How else shall it demand rates and tithes of the dis senter ? What answer can it make to his expostulations ? " ' Are you quite sure about these doctrines of yours ? ' inquires the dissenter. " ' No,' replies the state ; ' not quite sure, but nearly so.' " ' Then, it is just possible you may be wrong, is it not ? ' "'Yes.' " ' And it is just possible that I may be right, is it not ? ' "'Yes.' " ' Yet you threaten to inflict penalties upon me for non-conformity ! You seize my goods ; you imprison me if I resist ; and all to force from me the means to preach up doctrines which you admit may be false, and by implication to preach down doctrines which you admit may be true ! How do you justify this ? ' " No reply. ' ' Evidently, therefore, if the state persists, the only position open to it is that its judgment cannot be mistaken — that its doctrines cannot be erroneous. And now observe that if it says this, it stands committed to the whole Roman Catholic discipline as well as to its theory. Having a creed that is beyond the possibility of doubt, and being commissioned to disseminate that creed, the state is in duty bound to employ the most efficient means of doing this — is bound to put down all adverse teach ers, as usurping its function and hindering the reception of its unques tionable doctrine — is bound to use as much force as may be needful for doing this — is bound, therefore, to imprison, to fine, and if necessary, to inflict severer penalties, so that error may be exterminated and truth be triumphant. There is no half-way. Being charged to put men in the way to heaven, it cannot without sin permit some to be led the other way. If, rather than punish a few on earth, it allows many to be eternally damned for misbelief, it is manifestly culpable. Evidently it must do all, or it must do nothing. If it does not claim infallibility, it cannot in reason set up a national religion ; and if, by setting up a national religion, it does claim infallibility, it ought to coerce all men into the belief of that religion. Thus, as was said, every state church is essentially popish." 1 Gibbon makes the following important observation : "It is incumbent on the authors of persecution previously to reflect whether they are determined to support it in the last extreme. They excite the flame which they strive to extinguish ; and it soon becomes necessary to chastise the contumacy, as well as the crime, of the offender. The fine which he is unable or unwilling to discharge, exposes his per son to the severities of the law ; and his contempt of lighter penalties suggests the use and propriety of capital punishment." "Decline and Fall of the Roman Empire," chapter 37, paragraph 23. The ques tion interrog atively pre sented. Injustice to the individual, Necessary deduction. If the prin ciple is right, it must be pursued to its ultimatum. Danger in inauguratingpersecution. 122 AMERICAN STATE PAPERS. Govern ment's duty is to protect all on every day. Logical urday to be the Sabbath, or disbelieves the whole, ¦demands of J the system. would not the same system require that we should resort to imprisonment, banishment, the rack, and the fagot, to force men to violate their own con sciences, or compel them to listen to doctrines which they abhor ? When the State governments shall have yielded to these measures, it will be time enough for Congress to declare that the rattling of the mail coaches shall no longer break the silence of this des potism. It is the duty of this government to afford all — to Jew or Gentile, pagan or Christian, the protection and the advantages of our benignant institutions on Sunday as well as every day of the week. Although this government will not convert itself into an eccle siastical tribunal, it will practice upon the maxim laid down by the founder of Christianity — that it is lawful to do good on the Sabbath day. If the Almighty has set apart the first day of the week as a time which man is bound to keep holy, and devote exclusively to his worship, would it not be more congenial to the precepts of Christians to appeal exclusively to the great Lawgiver of the universe to aid them in making men better — in cor recting their practices, by purifying their hearts ? Government will protect them in their efforts. When they shall have so instructed the public mind, and awakened the consciences of individuals as to make them believe that it is a violation of God's law to carry the mail, open post-offices, or receive letters on Sunday, the evil of which they complain will cease of itself, without any exertion of the strong arm of civil power. When man undertakes to become God's avenger, he becomes a demon.1 Driven by the frenzy f 1nd"fiCed 1 ' ' N°W amonS the victims of religious persecution must necessarily be ent minds. found an unusual proportion of men and women more independent than the average in their thinking, and more bold than the average in utter- Christian means, not law, should be resorted to. Government will afford them pro tection. How to remedy the evil. REPORT OF HOUSE OF REPRESENTATIVES. 123 of a religious zeal, he loses every gentle feeline. for- The zealot , , - , & forgets the gets the most sacred precepts of his creed, and be- precepts of Christianity. comes ferocious and unrelenting.1 Our fathers did not wait to be oppressed when The unjust - 1 ii>, oppression of the mother country asserted and exercised an uncon- the colonists. stitutional power over them. To have acquiesced in the tax of three pence upon a pound of tea, would have led the way to the most cruel exactions ; they took a bold stand against the principle, and liberty and independence was the result. The petitioners have not requested Congress to suppress Sunday ing their thoughts. The Inquisition was a diabolical winnowing ma- Detriment chine for removing from society the most flexible minds and the stoutest °0 national '°n hearts ; and among every people in which it was established for a length character. of time, it wrought serious damage to the national character. It ruined the fair promise of Spain, and inflicted incalculable detriment upon the fortunes of France. No nation could afford to deprive itself of such a valuable element in its political life as was furnished in the thirteenth century by the intelligent and sturdy Cathari of southern Gaul. ' ' John Fiske, in " The Beginnings of New England," pages 41, 42. 1 The truth of this statement has been proved in our own history. Men of Neither Cotton nor Winthrop, says John Fiske, "had the temperament sitionwill which persecutes. Both were men of genial disposition, sound common {^^to'death. sense, and exquisite tact." Yet these were the men who executed the death penalty on "dissenters" and "infidels;" and Roger Williams, in theMead of winter, was compelled to take refuge with the savages of the forests. "On the statute books," says Fiske, "there were not less Capital than fifteen capital crimes, including such offenses as idolatry, witch craft, blasphemy, marriage within the Levitical degrees, ' presumptuous Sabbath-breaking,' and cursing or smiting one's parents." "Colonial Laws of Massachusetts," pages 14-16. Hutchinson, the historian, declares: "In the first draught of the Sabbath- ,.,¦.- -,.,. , , breaking a laws- by Mr. Cotton, which I have seen corrected with Mr. Winthrop's capital crime. hand, diverse other offenses were made capital ; viz. , profaning the Lord's day in a careless or scornful neglect or contempt thereof. ( Numbers 15 : 30-36.) " " History of Massachusetts," volume i, page 390. The following, which was legal authority, is an extract from the "answers of the reverend elders to certain questions propounded to them," November 13, 1644 : " So any sin committed with an high hand, as the gathering of sticks on the Sabbath day, may be punished with death, when a lesser punishment might serve for gathering sticks privily, and in some need." " Records of Massachusetts Bay," volume ii, page 93 ; Winthrop, ii, 204 el seq. 124 AMERICAN STATE PAPERS. Religious, not civil, reasons the cause of complaint. Counter- memorialsoppose inter ference of Congress on a religious question. Sunday leg islation uncon stitutional. Resolution. mails upon the ground of political expediency, but because they violate the sanctity of the first day of the week. This being the fact, the petitioners having indig nantly disclaimed even the wish to unite politics and religion, may not the committee reasonably cherish the hope that they will feel reconciled to its decision in the case ; especially as it is also a fact that the counter-memorials, equally respectable, oppose the interference of Congress upon the ground that it would be legislating upon a religious subject, and therefore unconstitutional ? Resolved, That the committee be discharged from the further consideration of the subject.1 Reminis cence of 1S20- 1830. 1 Mr. Ben: Perley Poore, an old official of the United States Senate, in his "Reminiscences" (page 101), records the following in connection with the foregoing report : "When Admiral Reeside was carrying the mails between New York and Washington, there arose a formidable organization in opposition to the Sunday mail service. The members of several religious denomina tions were prominent in their demonstrations, and in Philadelphia Public streets chains, secured by padlocks, were stretched across the streets on Sun days to prevent the passage of the mail coaches. The subject was taken up by politicians, and finally came before the House of Repre sentatives, where it was referred to the Committee on Post-roads, of which Richard M. Johnson of Kentucky, was then the chairman. The Rev. Obadiah B. Brown, who had meanwhile been promoted in the Post- office Department, wrote a report on the subject for Colonel Johnson, which gave the * killer of Tecumseh ' an extended reputation, and was the first step toward his election as Vice-President, a few years later." The general favor with which these reports were received, their com mendation by the newspapers, and the expressions of approval by public assemblies, show in what light religious legislation was regarded three quarters of a century ago. Nor was it, as the advocates of Sunday laws would have us believe, on acoount of opposition to Christianity, but exactly the opposite ; for some of the most strenuous advocates of our secular system of government were Christian ministers. The power of legislating upon religion, as Bancroft says, was withheld, "not from indifference, but that the infinite spirit of eternal truth might move in its freedom and purity and power." " History of the Formation of the Constitution," book v, chapter i. Popularity of reports. Spirit of the times. MEMORIAL OF THE STATE OF INDIANA. 125 21st Congress] [ist Session MEMORIAL Feb. I5. 183=, OF THE GENERAL ASSEMBLY OF INDIANA.1 Executive Department, Indiana, ) Indianapolis, February 15, 1830. [ The memorial of the General Assembly of the Memorial. State of Indiana, respectfully represents : That we view all attempts to introduce sectarian Sectarian a . j. . . r . . .,. influence in influence into the councils of the nation as a violation congress un- r 1 1 a 1 1 ti • • r 1 ?-* •¦ r constitutional. of both the letter and the spirit of the Constitution of the United States and of this State, and at the same time dangerous to our civil and religious liberties, in- Aisodanger- . , . , ous to our asmuch as those charters secure to every man the liberties. free exercise of his religion and the right to worship the Almighty God according to the dictates of his own conscience, and inasmuch as any legislative in- Anyiegisia- terference in matters of religion would be an infrac- enceinreiig- _ , . , ion an infrac tion of those rights ; tion of rights. We, therefore, most respectfully remonstrate Remon- , ... c strance against against any attempt, by a combination of one or combination more sects, to alter the laws providing for the trans- enforce reiig- . ious duties. portation of the mail, and against the passage of a law to regulate or enforce the observance of religious duties, or which may interfere with what belongs to the conscience of each individual ;a not conflict 1 " American State Papers," Class VII, page 240. 2 "There ought to be room in this world," says Samuel T. Spear, Rights do in "Religion and the State," "for all the consciences in it, without any encroachment upon the rights of each other ; and there would be if all men, in their relations to each other, would be content to exercise their own rights of conscience in a reasonable manner. This would leave every man to determine the religious question for himself, and, as the necessary consequence, relieve every man from all impositions, burdens, taxes, or disabilities arising from the determination of the question by others. Though the rule is a simple one, it is, nevertheless, one of the most difficult things for bigotry to learn. The only way to learn it effectually is not to be a bigot." 126 AMERICAN STATE PAPERS. All religious legislation contrary to Christianity. No observ ance of Chris tianity needs the state's aid. Every connection between church and state danger ous to liberty. A cordial approval of Mr. Johnson's Senate report. A solemn protest against the enforced^ observanceof any day. Yet volun tary observ ance bene ficial. That all legislative interference in matters of re ligion is contrary to the genius of Christianity ; and that there are no doctrines or observances inculcated by the Christian religion which require the arm of civil power either to enforce or sustain them ; That we consider every connection between church and state at all times dangerous to civil and religious liberty ; 1 and further, That we cordially agree to and approve of the able report of the Hon. R. M. Johnson, adopted by the Senate of the United States at its last session, upon the petitions for prohibiting the transportation of the mail on Sunday ; and while we protest in the most solemn manner against every attempt to en force, by legislative interference, the observance of any particular day, yet believe that both the spiritual and temporal interest of mankind is promoted by setting apart one day in the week for the purpose of rest, religious instruction, and the worship of God. Resolved, That his Excellency the Governor be requested to transmit a copy of the foregoing memo rial to each of our Senators and Representatives in Congress, and to the President of the Senate and Speaker of the House of Representatives. Value of first amendment. Jefferson's popularity. 1 Jefferson, February 4, 1809, replying to an address of the society of the Methodist Episcopal Church, at New London, Connecticut, said : "No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority. It has not left the religion of its citizens under the power of its public functionaries, were it possible that any of these should consider a conquest over the consciences of men either attainable or applicable to any desirable purpose." Although Jefferson was not a Christian, no president ever received more commendations in public addresses from religious denominations than did he. His jealousy for the rights of every denomination, and for the rights of every individual of every denomination, made him extremely popular among all lovers of religious liberty ; and many were the addresses which he received, especially from the Baptists and Methodists, approbative of his course in carrying out American principles. CHRISTIANITY AND THE COMMON LAW. 127 CHRISTIANITY AND THE COMMON LAW. WHETHER CHRISTIANITY IS A PART OF THE COM MON LAW.1 In quare impedit, in Common Bench, [Year Book] *. ". 1458. 34, Hilary Term 6, folio 38, the defendant, bishop of Lincoln, pleads that the church of the plaintiff statement x of the Clrcum- became void by the death of the incumbent ; that stances caus- ' ' ing the litiga- the plaintiff and I. S., each pretending a right, pre- ^h°chUPrisgot's sented two several clerks ; that the church being thus ^"^de rendered litigious, he was not obliged, by the ecclesi astical law, to admit either, until an inquisition de jure patronatus, in the ecclesiastical court ; that, by the same law, this inquisition was to be at the suit of either claimant, and was not ex officio to be insti tuted by the bishop, and at his proper costs ; that 1 Appendix to " Reports of Cases Determined in the General Court of Virginia, from 1730 to 1740 and from 1768 to 1772, by Thomas Jefferson" (Charlottesville, F. Carr & Co., 1829), page 137 et seq. In the preface to his reports (page vi), Jefferson says : " I have added, also, a disquisition of my own on the most remark- Mostremark- able instance of judicial legislation that has ever occurred in English jur- „f judicial isprudence, or, perhaps, in any other. It is that of the adoption in mass Jeg'slation in of the whole code of another nation, and its incorporation into the legiti mate system, by usurpation of the judges alone, without a particle of legislative will having ever been called on, or exercised towards its in troduction or confirmation." And in a letter to Edward Everett, dated at Monticello, Octobei 15, 1824, he wrote as follows : "I do not remember the occasion which led me to take up this sub ject, while a practitioner of the law. But I know I went into it with all Thorough- the research which a very copious law library enabled me to indulge ; S^sYtidv6*" and I fear not for the accuracy of any of my quotations. The doctrine might be disproved by many other and different topics of reasoning ; but having satisfied myself of the origin of the forgery, and found how, like a rolling snow-ball, it had gathered volume, I leave its further pur suit to those who need further proof, and perhaps I have already gone further than the feeble doubt you expressed might require." " Works of Thomas Jefferson," volume vii, page 383. 128 AMERICAN STATE PAPERS. Statement of circumstances. The expres sion upon which is based the claim that "Christianity is part of the common law." neither party had desired such an inquisition ; that six months passed ; whereon it belonged to him of right to present as on a lapse, which he had done. The plaintiff demurred. A question was, How far the ecclesiastical law was to be respected in this matter by the common law court. And Prisot, chapter 5, in the course of his argument uses this expression: " A tiels leis que ils de seint eglise ont en ancien scripture, covient a nous a donner credence ; car ceo common ley sur quel touts manners leis sont fondrSs : et auxy, sin, nous sumus obliges de conustre lour ley de seint eglise : et semblablement ils sont obliges de conustre nostre ley ; et, sin, si poit apperer or a- nous que l'evesque ad fait come un ordinary fera en tiel cas, adong nous devons ceo adjuger bon, ou auterment nemy," etc.1 Translation. Expression paraphrased. 1 " To such laws as those of holy church have in ancient writing, it is proper for us to give credence, for it is common law on which all man ners of laws are founded ; and also, if not, we are obliged to know the law of their holy church [ecclesiastical law] ; and, likewise, they are obliged to know our law ; and, if not, if it appears to us that the bishop has done as an ordinary would do in such case, then we should adjudge it good, otherwise not," etc. Jefferson says : ' ' The reports in the Year Books were taken very short. The opinions of the judges were written down sententiously, as notes or memoranda, and not with all the development which they probably used in delivering them. Prisot's opinion, to be fully ex pressed, should be thus paraphrased : ' To such laws as those of holy church have recorded and preserved in their ancient books and writings, it is proper for us to give credence ; for so is, or so says the common law, or law of the land, on which all manner of other laws rest for their authority, or are founded ; that is to say, the common law, or the law of the land common to us all, and established by the authority of us all, is that from which is derived the authority of all other special and subordinate branches of law, such as the canon law, law merchant law maritime, law of gavelkind, borough-English, corporation laws, local customs and usages, to all of which the common law requires its judges to permit authority in the special or local cases belonging to them. The evidence of these laws is preserved in their ancient treatises books, and writings, in like manner as our own common law itself is known, the text of its original enactments having been long lost, and its CHRISTIANITY AND THE COMMON LAW. 129 It does not appear that judgment was given. Year judgment Book, ubi supra, third chapter ; Fitzherbert's Abridg ment, quare impedit, 89 ; Brooke's Abridgment, quare impedit, 12. Finch misstates this in the following manner: " To such laws of the church as have warrant Finch's tt j c ¦ j 1 ¦ 1 . .. misstatement in Holy Scripture, our law giveth credence, and of Prisofs . expression. cites the above case, and the words of Prisot in the margin. Finch's law, book 1, chapter 3, published 1613. Here we find "ancien scripture" „Thewords *¦ r " ancien [ancient writing] converted into " Holy Scripture," converted' whereas it can only mean the ancient written laws of scripture0'5' the church. It cannot mean the Scriptures, — First, Because the term " ancien scripture " must then be Meaning r of Pnsot's understood as meaning the Old Testament in con- expression. tradistinction to the New, and to the exclusion of that ; which would be absurd and contrary to the ^^"we'dln wish of those who cite this passage to prove that theclailn- *the Scriptures, or Christianity, is a part of the com- 1*138] substance only preserved in ancient and traditionary writings. And .if it appears, from their ancient books, writings, and records, that the bishop in this case, according to the rules prescribed by these authori ties, has done what an ordinary would have done in this case, then we should adjudge it good, otherwise not.' To decide this question, they would have to turn to the ancient writings and records of the canon law, in which they would find evidence of the laws of advowsons, quare impedit, the duties of bishops and ordinaries, for which terms Prisot could never have meant to refer them to the Old or New Testa- Nothing in the Bible on ment, Ies saincts scriptures, where surely they would not be found. A the question license which should permit ' ancien scripture ' to be translated ' Holy eration. Scripture,' annihilates at once all the evidence of language. With such a license, we might reverse the sixth commandment into ' thou shalt not omit murder.' It would be the more extraordinary in this case, when _ Consequence the mistranslation was to effect the adoption of the whole code of the of Prisof s mis- Jewish and Christian laws into the text of our statutes, to convert re ligious offense into temporal crimes, to make the breach of every relig ious precept a subject of indictment, submit the question of idolatry, for example, to the trial of a jury, and to a court, its punishment, to the third and fourth generation of the offender. Do we allow our judges this lumping legislation?" "Works of Thomas Jefferson," volume vii, pages 3S1, 382. 9 translation. 130 AMERICAN STATE PAPERS. PrisoPs expression. Wingate formulatesFinch's false quotation into a maxim of law. Sheppard's statement Sir Matthew Hale's ex pression. mon law. Second, Because Prisot says : " Ceo (est) common ley sur quel touts manners leis sont fondes."1 Now it is true that the ecclesiastical law, so far as admitted in England, derives its authority from the common law. But it would not be true that the Scriptures so derive their authority. Third, The whole case and arguments show that the question was, How far the ecclesiastical law in general should be respected in a common law court. And in Brooke's abridgment of this case, Littleton says : "Les juges del common ley prendra conusans quid est lex ecclesia, vel admiralitatis, et trujus modi."2 Fourth, Because the particular part of the ecclesias tical law then in question, viz. : the right of the patron to present to his advowson, was not founded on the law of God, but subject to the modifications of the lawgiver ; and so could not introduce any such general position as Finch pretends. Yet Wingate (in 1658) thinks proper to erect this false quotation into a maxim of the common law, expressing it in the very words of Finch, but citing Prisot. Wingate's Maxims, 3. Next comes Sheppard (in 1675), who states it in the same words of Finch, and quotes the Year Book, Finch, and Wingate. 3 Sheppard's Abridgment, title "Religion." In the case of the King v. Taylor, Sir Matthew Hale lays it down in these words : " Christianity is parcel of the laws of England." 1 Ventris's Reports, 293 ; 3 Keble's Re ports, 607. But he quotes no authority. It was from this part of the supposed common law that he derived his authority for burning witches. So strong was this doctrine become in 1728, by additions and repetitions from one another, that in the case of the King v. Woolston, the court would not suffer it to Translations. 1 " jt is common law, on which all manners of laws are founded." 2 " The judges of the common law will take cognizance of what is the law of the church [ecclesiastical law] , or of the admiralty, and of this sort. ' ' CHRISTIANITY AND THE COMMON LAW. 131 be debated, whether to write against Christianity Theques- • i 1 1 • i tiou not was punishable in the temporal courts at common allowed to x be debated. law, saying it had been so settled in Taylor's case, ante, 2 Strange's Reports, 834 ; therefore, Wood, in wood lays his Institutes, lays it down that all blasphemy and aii Skspnemy r rr i 1 i ana- profane- profaneness are offenses by the common law, and nessare _ offenses by cites Strange, ubi supra, Wood, 40Q. And Black- the common ^ law. stone (about 1763) repeats, in the words of Sir Blackstone Matthew Hale, that "Christianity is part of the laws thewHahvs of England," citing Ventris and Strange, ubi supra, expres " " 4 Blackstone's Commentaries, 59. Lord Mansfield qualified it a little by saying, in the case of the Chamberlain of London v. Evans, 1767, that "the essential principles of revealed religion are part of Mansfield's the common law." But he cites no authority, and Noauthority . . , r , ..... cited. leaves us at our peril to find out what, in the opinion of the judge, and according- to the measure of his foot or his faith, are those essential principles of revealed religion obligatory on us as a part of the common law. Thus we find this string of authorities, when summary examined to the beginning, all hanging on the same hook, a perverted expression of Prisot, or on nothing. For they all quote Prisot, or one another, or nobody. Thus Finch quotes Prisot ; *Wingate also ; Sheppard quotes Prisot, Finch, and 1*139] Wingate ; Hale cites nobody ; the court in Wool- ston's case cite Hale ; Wood cites Woolston's case ; Blackstone that and Hale ; and Lord Mansfield, like Hale, ventures it on his own authority. In the earlier ages of the law, as in the Year Books, for instance, we do not expect much recurrence to authorities by the judges, because in those days there were few or none such made public. But in later times we take no judge's word for what the law is, further than he is warranted by the authori ties he appeals to. His decision may bind the un- 132 AMERICAN STATE PAPERS. Decisions of judges can not alter the law. Hale's com ments on the common law. Judges should be held to a declara tion of their authorities. fortunate individual who happens to be the particular subject of it ; but it cannot alter the law. Although the common law be termed " lex non scripta," yet the same Hale tells us, " When I call those parts of our laws leges non scriptos, I do not mean as if all those laws were only oral, or communicated from the former ages to the latter merely by word. For all these laws have their several monuments in writ ing, whereby they are transferred from one age to another, and without which they would soon lose all kind of certainty. They are for the most part extant in records of pleas, proceedings, and judg ments, in books of reports and judicial decisions, in tractates of learned men's arguments and opinions, preserved from ancient times and still extant in writ ing." Hale's Common Law, 22. Authorities for what is common law may, therefore, be as well cited, as for any part of the lex scripta; and there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present, where we detect them endeavoring to make law where they found none, and to submit us, at one stroke, to a whole system, no particle of which has its foundation in the common law, or has received the "esto" of the legislator. For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England,1 and altered, Origin of the common law. 1 " Our ancient lawyers, and particularly Fortescue (chapter 17), insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated." Blackstone's "Commentaries on the Laws of Eng land," introduction, page *64. Blackstone, however, assures us that these customs were influenced by the customs of adventitious nations intermixing with the Saxons, and that Fortescue's statement "ought only to signify, as the truth seems to be, that there never was any for mal exchange of one system of laws for another." CHRISTIANITY AND THE COMMON LAW. 133 from time to time, by proper legislative authority, Alterations . J of the common from that time to the date of Magna Charta, which 'aw- terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Termination lex scripta. This settlement took place about the law period. middle of the fifth century, but Christianity was not introduced till the seventh century ; the conver- introduction of Christianity sion of the first Christian king of the Heptarchy hav- into England. ing taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever, therefore, was adopted into the common law, it adopted , , , , . , . r into the com- lt must have been between the introduction of moniaw.it 111 r iirt- /--i -n must have Christianity and the date of Magna Charta. But been previous J D to date of the laws of this period we have a tolerable col- °' Magna r Charta. lection by Lambard and *Wilkins, probably not per- [*i4oj feet ; but neither very defective ; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its con tents. These were so far alterations of the common law, and became themselves a part of it, but none of these adopt Christianity as apart of the common Notso adopted. law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are able to find among them no such act of adoption, we may safely affirm Hence, iii-i 1 • Christianity (though contradicted by all the judges and writers neither is, nor ever was, on earth) that Christianity neither is, nor ever was, a pan of the ' J common law. a part of the common law. Another cogent proof of this truth is drawn silence 0 another proof. from the silence of certain writers on the common law. Bracton gives us a very complete and scien- 134 AMERICAN STATE PAPERS. Bracton's treatise. A valuable book. No intima tion that Christianity was a part of common law. Fleta and Britton equally silent. Glanvil also silent. Fortescue's statement of the question. Falsifi cation of Alfred's laws. [*i4i] tific treatise of the whole body of the common law. He wrote this about the close of frhe reign of Henry III, a very few years after the date of Magna Charta. We consider this book as the more valua ble, as it was written about the time which divides the common and statute law, and therefore gives us the former in its ultimate state. Bracton, too, was an ecclesiastic, and would certainly not have failed to inform us of the adoption of Christianity as a part of the common law, had any such adoption ever taken place. But no word of his, which intimates any thing like it, has ever been cited. Fleta and Britton, who wrote in the succeeding reign (of Edward I), are equally silent. So also is Glanvil, an earlier writer than any of them (to wit : tempore Henry II), but his subject perhaps might not have led him to mention it. It was reserved then for Finch, five hundred years after, in the time of Charles II, by a falsification of a phrase in the Year Book, to open this new doctrine, and for his successors to join full- mouthed in the cry, and give to the fiction the sound of fact. Justice Fortescue Aland, who pos sessed more Saxon learning than all the judges and writers before mentioned put together, places this subject on more limited ground. Speaking of the laws of the Saxon kings, he says : " The ten com mandments were made part of their law, and con sequently were once part of the law of England ; so that to break any of the ten commandments was then esteemed a breach of the common law of Eng land ; and why it is not so now, perhaps it may be difficult to give a good reason." Preface to For tescue's reports, xvii. The good reason is found in the denial of the fact. Houard, in his Coutumes Anglo-Normandes, i, 87, notices the falsification of the laws of Alfred by prefixing to them four *chapters of the Jewish law, CHRISTIANITY AND THE COMMON LAW. 135 to wit : the twentieth, twenty-first, twenty-second, chapters ' J > ¦" ' prefixed to and twenty-third chapters of Exodus, to which he Alfred's laws. might have added the fifteenth of the Acts of the Apostles, verses 23 to 29, and precepts from other parts of the Scripture. These he calls a hors d'osuvre of some pious copyist. This awkward monkish fab rication makes the preface to Alfred's genuine laws Effect of this • 1 1 fabrication stand in the body of the work, and the very words on the body J J of laws of of Alfred himself prove the fraud ; for he declares Alfred's work. in that preface that he has collected these laws from those of Ina, of Offa, Aethelbert, and his an cestors, saying nothing of any of them being taken from the Scripture. It is still more certainly proved by the inconsistencies it occasions. For ex- inconsist- 1 1 t - 1 1 • 1 t^ 1 ¦ ency occa- ample, the Jewish legislator, Exodus xxi, 12, 13, 14 sioned by this . . interpolation. (copied by the pseudo-Alfred, section 13), makes murder, with the Jews, death. But Alfred himself, laws, xxvi, punishes it by a fine only, called a were- gild, proportioned to the condition of the person killed. It is remarkable that Hume (appendix 1 to Hume . , notices the his History) examining this article of the laws of inconsistency J ' b without per- Alfred, without perceiving the fraud, puzzles himself ceivingthe with accounting for the inconsistency it had intro duced. To strike a pregnant woman so that she die, Some of the • 1 1 inconsistencies is death by Exodus xxi, 22, 23, and pseudo-Alfred, occasioned by J f the interpola- section 18 ; but by the laws of Alfred, ix, the offender tion- pays a weregild for both the woman and child. To smite out an eye or a tooth, Exodus xxi, 24 to 27, pseudo-Alfred, sections 19, 20, if of a servant by his master, is freedom to the servant ; in every other case, retaliation. But by Alfred's laws, xi, a fixed in demnification is paid. Theft of an ox, or a sheep, by the Jewish law, Exodus xxii, 1, was repaid fivefold for the ox and fourfold for the sheep ; by the pseu- dograph, section 24, double for the ox, and fourfold for the sheep ; but by Alfred's laws, xvi, he who stole a cow and a calf was to repay the worth of the cow and 136 AMERICAN STATE PAPERS. Some of the inconsistenciesoccasioned by the interpola tion. The inter polation not recognized as authority by Sir Matthew Hale. Hale's affirmationof his belief in witches. Hale's Pleas of the Crown more authori tative than his hasty method ical summary. forty shillings for the calf. Goring by an ox was the death of the ox, and the flesh not to be eaten. Exodus xxi, 28 ; pseudo-Alfred, section 21. By the laws of Alfred, xxiv, the wounded person had the ox. This pseudograph makes municipal laws of the ten commandments ; sections 1 to 10 regulate concubin age ; section 12 makes it death to strike or to curse father or mother ; sections 14, 15, give eye for eye, tooth for tooth, hand for hand, foot for foot, burn ing for burning, wound for wound, stripe for stripe ; section 19 sells the thief to repay his theft ; section 24 obliges the fornicator to marry the woman he has lain with ; section 29 forbids interest on money ; sections 28, 35 make the laws of bailment very dif ferent from what Lord Holt delivers in Coggs v. Bernard, and what Sir William Jones tells us they were ; and punishes witchcraft with death, section 30, which Sir Matthew Hale, 1 Hale's Pleas of the Crown, chapter 33, declares was not a felony before the statute 1, James, chapter 12. It was under that statute that he hung Rose Cullender and Amy Duny, 16 Charles II (1662), on whose trial he declared "that there were such creat ures as witches, he made no doubt at all ; for, first, the Scripture had affirmed so much ; second, the wisdom of all nations had provided laws against such per sons, and such hath been the judgment of this king dom, as appear by that act of Parliament which hath provided punishment proportionable to the quality of the offense." And we must certainly allow greater weight to this position " that it was no felony till James's statute," deliberately laid down in his Hale's Pleas of the Crown, a work which he wrote to be printed, and transcribed for the press in his life time, than to the hasty scriptum that " at common law witchcraft was punished with death as heresy, by writ de heretico comburendo " in his methodical CHRISTIANITY AND THE COMMON LAW. 137 summary of the Pleas of the Crown (page 6), a work "not intended for the press, not fitted for it, and which he declared himself he had never read over since it was written " (preface) ; unless we under stand .his meaning in that to be that witchcraft could not be punished at common law as witchcraft, but as heresy. In either sense, however, it is a denial of this pretended law of Alfred. Now all men of reading know that these pre tended laws of homicide, concubinage, theft, retali ation, compulsory marriage, usury, bailment, and others which might have been cited from this pseu dograph, were never the laws of England, not even in Alfred's time ; and, of course, that it is a for gery. Yet, palpable as it must be to a lawyer, our judges have piously avoided lifting the veil under which it was shrouded. In truth, the alliance be tween church and state in England has ever made their judges accomplices in the frauds of the clergy ; and even bolder than they are ; for instead of being contented with the surreptitious introduction of these four chapters of Exodus, they have taken the whole leap, and declared at once that the whole Bible and Testament in a lump, make a part of the common law of the land ; the first judicial declaration of which was by this Sir Matthew Hale. And thus they incorpo rate into the English code, laws made for the Jews alone, and the precepts of the gospel, intended by their benevolent Author as obligatory only in foro concientice ; and they arm the whole with the coer cions of municipal law. They do this, too, in a case where the question was not at all whether Chris tianity was a part of the law of England, but simply Methodical summary not intended for publication. Certain pro-. visions of the pseudographwere never the laws of England. The fraud, however,has been studiouslyenshrouded. Church and state in England has always been upheld by fraud. Sir Matthew Hale makes the first judi cial decision on the sub ject. The precepts of the gospel obligatoryonly in foro concientiee. 1 A. summary of the doctrine that "Christianity is a part of the common law," is given in Blackstone's Commentaries, book iv, page *40 et seq., from which can be obtained a modified view of the desires of modern religious "reformers " and Sunday-law advocates, who hold so 138 AMERICAN STATE PAPERS. Question how far the ecclesiastical law was to be respected by under consid eration, the common law courts of England, in the special case of a right of presentment ; thus identifying Christianity with the ecclesiastical law of England. Effect of principles of religious lib erty. State crimes against God. Apostasy. Capital punishment. Apostates to be burnt in England. Heresy. r*45] Arbitrary latitude al- owed to the ecclesiastical judge. Definition of " heretic." tenaciously to this doctrine. The subject is treated under eleven heads in a chapter on "Offenses against God and Religion." The advancing principles of rehgious freedom and equality of rights for all, have now and then modified the penalties, or relegated the statutes to the back ground ; yet the old doctrine is still maintained ; and, when the power is not lacking, the " dissenter" from the dominant religion is still made to feel the " iron hand of law." Blackstone says : "First, then, of such crimes and misdemeanors as more immediately offend Almighty God, by openly transgressing the precepts of religion, either natural or revealed : and mediately, by their bad example and consequence, the law of society also : which constitutes that guilt in the action which human tribunals are to censure. " I. Of this species the first is that of apostasy, or a total renuncia tion of Christianity, by embracing either a false religion, or no religion at all.. This offense can only take place in such as have once pro fessed the true religion. The perversion of a Christian to Judaism, paganism, or other false religion, was punished by the emperors Constantius and Julian with confiscation of goods ; to which the em perors Theodosius and Valentinian added capital punishment, in case the apostate endeavored to pervert others to the same iniquity : a pun ishment too severe for any temporal laws to inflict upon any spiritual offense ; and yet the zeal of our ancestors imported it into this country ; for we find by Bracton that in his time apostates were to be burnt to death. "2. A second offense is that of heresy, which consists not in a total denial of Christianity, but of some of its essential *doctrines, publicly and obstinately avowed ; being defined by Sir Matthew Hale, "sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa." And here it must also be acknowledged that particular modes of belief or unbelief, not tending to overturn Chris tianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrine shall there fore be adjudged heresy was left by our old constitution to the determi nation of the ecclesiastical judge ; who had herein a most arbitrary lati tude allowed him. For the general definition of an heretic given by Lyndewode, extends to the smallest deviation from the doctrines of holy church : "haereticus est qui dubitat de fide catholica, et qui negligitser- vare ea, quaa Romana ecclesia statuit, seu servare decreverat." Or, as the statute 2 Henry IV, chapter 15, expresses it in English, " teachers of erroneous opinions, contrary to the faith and blessed determinations CHRISTIANITY AND THE COMMON LAW. 139 of the holy church." Very contrary this to the usage of the first gen eral councils, which defined all heretical doctrines with the utmost pre cision and exactness. And what ought to have alleviated the punish ment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no farther than enjoining pen ance, excommunication, and ecclesiastical deprivation for heresy ; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the meantime they had pre vailed upon the weakness of bigoted princes to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital, offense : the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the sec ular arm the odium and drudgery of executions ; with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur : well *knowing at the same time that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the ancient Donatists and Manichseans by the emperors Theodosius and Justinian ; hence also the constitution of the emperor Frederic mentioned by Lyndewode, ad judging all persons without distinction to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. . . Christianity being thus deformed by the demon of persecution upon the continent, we cannot expect that our own island should be entirely free from the same scourge. ... In the reign of Henry the Fourth, when the eyes of the Christian world began to open, and the seeds of the Protest ant religion (though under the approbrious name of Lollardy) took root in the kingdom ; the clergy taking advantage from the king's dubious title to demand an increase of their own power, obtained an act of Par liament, which sharpened the edge of persecution to its utmost keen ness. For, by that statute, the diocesan alone, without the intervention of a synod, might convict of heretical tenets ; and unless the convict abjured his opinions, or if after abjuration he relapsed, the sheriff was bound, ex officio, if required by the bishop, to commit the unhappy vic tim to the flames, without waiting for the consent of the crown. . . . By statute I Elizabeth, chapter I, all former statutes relating to heresy are repealed, which leaves the jurisdiction of heresy as it stood at com mon law ; viz., as to the infliction of common censures, in the ecclesias tical courts ; and in case of burning the heretic, in the provincial senate only. . . . The principal point now gained was, that by this statute a boundary is for the first time set to what shall be accounted heresy ; nothing for the future being to be so determined, but only such tenets, which have been heretofore so declared : (I) By the words of the can onical Scriptures ; (2) By the first four general councils, or such *others as have only used the words of the Holy Scriptures ; or, (3) Which shall Usage of the councils. Made a capi tal offense. Pious pre tensions. [*46] Persecution in England. Sheriff must burn victim at command of bishop. Heresy made more definite. [*49l 140 AMERICAN STATE PAPERS. Heresy made more definite. A consoling state of affairs ! Non-con formists. Papists and Protestant dis senters. Blasphemy. Christianity a part of the laws of Eng land. [*6o] Witchcraft. Punished by derfth. [*6i] Severity of penalties. hereafter be so declared by the Parliament, with the assent of the clergy in convocation. Thus was heresy reduced to a greater certainty than be fore ; though it might not have been the worse to have defined it in terms still more precise and particular : as a man continued still liable to be burnt for what perhaps he did not understand to be heresy till the ecclesiastical judge so interpreted the words of the canonical Scriptures. "3. Another species of offenses against religion are those which affect the established church. And these are either positive or negative ; positive, by reviling its ordinances ; or negative, by non-conformity to its worship. . . . Non-conformists are of two sorts : first, such as absent themselves from divine worship in the established church, through total irreligion, and attend the service of no other persuasion. These, by the statutes of 1 Elizabeth, chapter 2 ; 23 Elizabeth, chapter I ; and 3 James I, chapter 4, forfeit one shilling to the poor every Lord's day they so absent themselves, and twenty pounds to the king if they continue such default for a. month together. And if they keep any inmate, thus irreligiously disposed, in their houses, they forfeit ten pounds per month. The second species of non-conformists are those who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the Reformation, to be papists and Protestant dissenters. "4. The fourth species of offenses, therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence ; or by contumelious reproaches of our Saviour Christ. Whither also may be referred all profane scoffing at the Holy Scripture, or exposing it to contempt and ridicule. These are offenses punishable at common law by fine and imprisonment, or other infamous corporal punishment (1 Hawkins's Pleas of the Crown, 5); for Christianity is part of the laws of England (1 Ventris's Reports, 293 ; 2 Strange's Reports, 834). " 5. Somewhat allied to this, though in an inferior degree, is the offense of profane and common swearing and ^cursing. . "6. A sixth species of offense against God and religion, of which our ancient books are full, is a crime of which one knows not well what account to give. I mean the offense of witchcraft, conjuration, en chantment, or sorcery. . . . The civil law punishes with death not only the sorcerers themselves, but also those who consult them, imitat ing in the former the express law of God, 'Thou shalt not suffer a witch to live.' And our own laws, both before and since the conquest, have been *equally penal ; ranking this crime in the same class with heresy, and condemning both to the flames. . . . Our forefathers were stronger believers, when they enacted by statute 33 Henry VIII, chapter 8, all witchcraft and sorcery to be felony without benefit of clergy ; and again by statute I James I, chapter 12, that all persons invoking any evil spirit, or consulting, covenanting with, entertaining, employing, feeding, or rewarding any evil spirit ; or taking up dead CHRISTIANITY AND THE COMMON LAW. 141 bodies from their graves to be used in any witchcraft, sorcery, charm, or enchantment ; or killing or otherwise hurting any person by such infernal arts, should be guilty of felony without benefit of clergy, and suffer death. And if any person should attempt by sorcery to discover hidden treasure, or to restore stolen goods, or to provoke un lawful love, or to hurt any man or beast, though the same were not effected, he or she should suffer imprisonment and pillory for the first offense, and death for the second. These acts continued in force till lately, to the terror of all ancient females in the kingdom : and many poor wretches were sacrificed thereby to the prejudice of their neigh bors, and their own illusions ; not a few having, by some means or other, confessed the fact at the gallows. . . . "7. A seventh species of offenders in this class are all religious imposters ; such as falsely pretend an extraordinary commission from heaven ; or terrify and abuse the people with false denunciations of judgments. These, as tending to subvert all religion, by bringing it into ridicule and contempt, are punishable by the temporal courts with fine, imprisonment, and infamous corporal punishment. "8. Simony. "9. Profanation of the Lord's day, vulgarly (but improperly) called Sabbath-breaking, is a ninth offense against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit ; it enables the industri ous workman to pursue his occupation in the ensuing week with health and cheerfulness ; it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker. And therefore the laws of King Athelstan forbade all merchandizing on the Lord's day, under very severe penalties. And by the statute 27 Henry VI, chapter 5, no fair or market shall be held on the principal festivals, Good Friday, or any Sunday (except the four Sundays in harvest), on pain of forfeiting the goods exposed to sale. And since, by the statute I Charles I, chapter 1, no person shall assem ble out of their own parishes, for any sport whatsoever upon this day ; nor, in their parishes shall use any bull or *bear-baiting, interludes, plays, or other unlawful exercises, or pastimes ; on pain that every offender shall pay three shillings four pence to the poor. This statute does not prohibit, but rather impliedly allows, any innocent recreation or Capital crimes. Religious imposters. Sabbath- breaking. A character. istic argument. Severity of penalties. [*6+] Provision of statute. 142 AMERICAN STATE PAPERS. THE SOCIAL COMPACT. Compact theory a fundamentalprinciple of free govern ment. Original compactimplied. Christianity no part of Americancommon law. Descent of religious legis lation. A relic of superstition. Written by James Madison. Although the old idea of a compact between the government and the people be justly exploded, the idea of a compact among those who are parties to a government is a fundamental principle of free govern ment. The original compact is the one implied or pre sumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a government over them. These two compacts may be amusement, within their respective parishes, even on the Lord's day, after divine service is over. But by statute 29 Charles II, chapter 7, no person is allowed to work on the Lord's day, or use any boat or barge, or expose any goods to sale ; except meat in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of five shillings. Nor shall any drover, carrier, or the like, travel upon that day, under pain of twenty shillings. "10. Drunkenness. "11. The last offense which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness. . . ." From the foregoing, it is evident that the idea that Christianity is a part of the common law of the American people, is not only contrary to the facts in the case, but it is contrary to reason, human right, and even to Christianity itself. As Jefferson says, Christianity was never intended to be enforced by law, but only in foro conscientim ; and all attempts at compulsion are now, and always were, diametrically opposed to the teachings of the Author of Christianity. Religious legislation is the heritage that has been handed down to us from pagan times ; and in all these laws can be seen the pagan superstitions. These superstitious ideas were on the statute books of the Roman empire, were adopted by a corrupted Christian church, and carried wherever the empire extended its dominion ; were fraudulently engrafted on the common law of Eng land by the supporters of the church, and have thus come down through the Puritans to us to-day — a relic of the superstitious ideas of the dark ages. THE SOCIAL COMPACT. 143 considered as blended in the Constitution of the Nature r- i*i °* American United States, which recognizes a union or society of compact States, and makes it the basis of the government formed by the parties to it. It is the nature and essence of a compact, that it is equally obligatory on the parties to it, and, of Equally i r ii ii obligatory course, that no one of them can be liberated there- uponaii. from without the consent of the others, or such a vio lation or abuse of it by the others as will amount to a dissolution of the compact.1 It must not be forgotten that compact, express or importance I'l-l'l'-irr °^ ^e com" lmphed, is the vital principal of free governments as pact theory. contradistinguished from governments not free, and that a revolt against this principle leaves no choice but between anarchy and despotism.2 The sovereignty of the society, as vested in and Powers i . . , , . , of majorities. exercisable by the majority, may do anything that could be rightfully done by the unanimous concur rence of the members ; the reserved rights of indi- vested . . . rights beyond viduals (conscience, for example) in becoming parties their reach. to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed.3 The government of the United States, like all gov- Ourgovem- . ment rests ernments free in their principles, rests on compact ; a on compact compact, not between the government and the par ties who formed and live under it, but among the parties themselves ; and the strongest of governments are those in which the compacts were most fairly formed and most faithfully executed.4 1 "Writings of James Madison," volume iv, page 63. a " Writings of James Madison," volume iv, page 294. s " Writings of James Madison," volume iv, page 422. ? " Writings of James Madison," volume iv, pages 392, 393. 144 AMERICAN STATE PAPERS. December Term, 1849. SUPREME COURT OF OHIO. December Term, 1849. PRESTON W. SELLERS v. GEORGE DUGAN.1 Enactments making Sun day contracts illegal, rest on the ground that it is im moral. Logical . consequence. America's glory. Equal lib erty extends to all. Caldwell, Justice, dissenting. . . . If an act, such as making a single contract on Sunday, that in its nature is not calculated to disturb the peace and quiet of the day, can be made the subject of legal supervision and penal enactment, it can only be on the ground that it is absractly wrong, immoral. If the legislature can punish one act of this kind, they can another, and their power to persecute, to punish for whatever they may consider abstractly wrong, is un limited. It is the glory of our country that the right of belief in any particular religious tenet without mo lestation on account thereof, is granted to every one ; but this principle can only be preserved by extending it equally to the unbeliever. It is the same great in divisible principle that alike protects humanity, the birth- right of the whole, which each with equal reason may claim, should he believe any religious creed whatever ; or should he disbelieve the whole. Religious precedents v. Americanprinciples. 1 18 Ohio, 489. The majority of the Supreme Court of Ohio de cided, in this case, that "under the act of 1831, 'for the prevention of immoral practices,' a sale on Sunday of four hundred bushels of corn, is void, and no action for damages can be sustained for the breach of such contract." The judgment of the Supreme Court of Brown county, which had decided to the contrary, was accordingly reversed. From this decision Mr. Justice Caldwell dissented. Dissenting opinions have been a prominent characteristic in decisions on the constitutionality of Sunday laws ; and, as is evident from the Supreme Court decisions fol lowing, the point of contention seems to be whether religious precedents or American principles shall prevail as the rule of decision in our State courts. Thus far the former rule has largely been followed ; but the decisions adopting the latter have been by far the most able and best reasoned opinions. DISSENT OF JUDGE CALDWELL. 145 We have been referred to the decisions of the other t decisions. court for authority upon this subject. Those de cisions are all made on statutes essentially differing from our own. We know that many authorities can be found, both ancient and modern, that have gone as far as this decision in enforcing the observance of the Sabbath. We do not propose to examine them, for two reasons : one is the one mentioned above, that the statutes on which they are made differ from ours. Another is, that the pernicious and ruinous Pernicious . . . consequences consequences of enforcing religious principle by legal of enforcing enactment have been so well tested, and are so ap- servances. parent, that any decision of the kind should not be regarded. Indeed, if I were to attempt to present the error into which, I think, the court have fallen in this decision, in its strongest light, I would do it by a reference to the action of the courts and legislative Parallels to bodies, not only in Europe, but in some parts of this court. country, in its early settlement, in attempting to en force the observance of the Sabbath by law. It al ways has and always will produce a pharisaical and Effect of enforcing hypocritical observance of a religious duty, and ere- religious J r observances, ates a spirit of cen-*sorious bigotry, and tends power- 1*497] fully to destroy every religious feeling of the heart. I know of but one reported decision in the State ; a previous that is the case of Swisher's Lessee v. Williams's Heirs, Wright's Reports, 754. The court there say : "The objection that the deed was executed on Sun day will not avail you. Both parties partook equally of the sin of violating the Sabbath, and the law does not require of us to enable either party to add to the sin, by breaking the faith pledged on that day, and commit a fraud out of assumed regard for the Sabbath day." This decision is directly in point, Directly -¦-1-11 1 ¦ • r 1 to tne point. and, I think, good law. I think the decision of the court on the circuit was right, and should have been affirmed. 146 AMERICAN STATE PAPERS. January Term, 1850. Christianity claimed to be a part of our common law. Keeping a grocery open on Sunday is criminal. SUPREME COURT OF ARKANSAS. January Term, 1850. SHOVER v. THE STATE.1 The Christian religion is recognized as constituting part of the com mon law ; its institutions are entitled to profound respect, and may well be protected by law. The Sabbath, properly called the Lord's day, is amongst the first and most sacred institutions of Christianity, and the act for the punish ment of Sabbath-breaking (Digest, chapter 51, part 7, article 5, page 369 ) is not in derogation of the liberty of conscience secured to the citi zen by the third section of the Declaration of Rights. In an indictment under the above act for keeping open a grocery on Sunday, it is not necessary to aver that it was kept open with any crim inal intent — keeping it open on that day is the gist of the offense. When the fact of keeping the grocery open on the Sabbath is estab lished, the law presumes a criminal intent, and the defendant must ex cuse himself by showing that charity or necessity required it. Keeping a grocery door open on the Sabbath is a temptation to vice, and therefore criminal. In such an indictment it is not necessary to aver that the person charged with keeping open the grocery is the owner of it, but if alleged, it must be proven. Any person who has control of a grocery, may be indicted for keep ing it open on Sunday, whether he be owner or not. APPEAL FROM THE HEMPSTEAD CIRCUIT COURT. Well- reasoned and able opinions. Mr. Chief Justice Johnson delivered the opin ion of the court. The indictment in this case is based upon the fifth section, chapter fifty-first, Digest. That section 1 5 English, 259. This decision and the State v. Ambs, post page 157, are inserted as representative of those upholding the constitution ality of Sunday laws. In the celebrated New York Supreme Court de cision on Sunday laws, Mr. Justice Allen says that "in most States the [ Sunday ] legislation has been upheld by the courts and sustained by well-reasoned and able opinions," — citing these decisions among others, as the leading decisions. It was originally intended to insert in this DECISION UPHOLDING SUNDAY LAWS. 147 enacts that " Every person who shall, on Sunday, Arkansas . Sunday law. keep open any store, or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or sell or retail any spirits or wine, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than ten dollars nor more than twenty." The first objection taken is to the indictment, and Law objected to is predicated upon the supposed unconstitutionality a.s unconstitu- of the act by which the offense is created. If the act is unauthorized by the Constitution, it must arise from the fact that it interferes with the rights of con science which are secured by all the Declaration of Rights. A portion of those rights consists in a free dom to worship Almighty God according to the dictates of every one's conscience, and in not being compellable to attend, erect, or support, any place of worship, or to maintain any ministry against their consent. The act in question cannot, with any de- objection . , overruled. gree of propriety, be said to trench upon any one of the rights thus secured. By reserving to every indi- The court G ... claims that the vidual the sacred and indefeasible rights of conscience, convention did b not intend re- the convention most certainly did not intend to leave !'p°us e,7] Religio-polit ical combina tions always dangerous. Foundation- stone of relig ious liberty. ¦ seventh-day Christian complains of this, is it any answer to say, Your conscience is not constrained, you are not compelled to worship or to perform religious rites on that day, nor forbidden to keep holy the day which you esteem as a Sabbath ? We think not, however high the authority which decides otherwise. When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense — a complete separation between church and state, and a perfect equality without distinction between all re ligious sects.1 " Our government," says Mr. Johnson, in his celebrated Sunday mail report, "is a civil, and not a religious, institution : whatever may be the re ligious sentiments of citizens, and however variant, they are alike entitled to protection from the gov ernment, so long as they do not invade the rights of others." And again, dwelling upon the danger of applying the powers of government to the further ance and support of sectarian objects, he remarks, in language which should not be forgotten, but which ought to be deeply impressed on the minds of all who *desire to maintain the supremacy of our republican system : " Extensive religious combinations to effect a political object are, in the opinion of the commit tee, always dangerous. The first effort of the kind calls for the establishment of a principle which would lay the foundation for dangerous innovation upon the spirit of the Constitution, and upon the religious lSee Bloom v. Richards, ante page 154; Hale v. Everett, 53 New Hampshire, 1 ; also ante page 98, note 2. The principle of absolute religious equality is the foundation-stone of religious liberty in this country. As Madison says, "Whilst we assert for ourselves a freedom to embrace, to profess, and to observe, the religion which we believe to be of divine origin, we cannot deny an equal freedom to them whose minds have not yet yielded to the evidence which has convinced us." SUNDAY LAWS UNCONSTITUTIONAL. 173 rights of the citizens. If admitted, it may be justly apprehended that the future measures of the govern ment will be strongly marked, if not eventually con trolled, by the same influence. All religious despot ism commences by combination and influence, and when that influence begins to operate upon the polit ical institution of a country, the civil power soon bends under it, and the catastrophe of other nations furnishes an awful warning of the consequences. What other nations call religious toleration, we call religious rights ; they were not exercised in virtue of governmental indulgence, but as rights of which the government cannot deprive any portion of her citizens, however small. Despotic power may invade those rights, but justice still confirms them. Let the national legislature once perform an act which in volves the decision of a religious controversy, and it will have passed its legitimate bounds. The prece dent will then be established, and the foundation laid for that usurpation of the divine prerogative in this country, which has been the desolating scourge of the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion for enforcing religious observances." We next come to the question whether, consider ing the Sunday law as a civil regulation, it is in the power of the Legislature to enforce a compulsory ab stinence from lawful and ordinary occupation for a given period of time, without some apparent civil ne cessity for such action ; whether a pursuit, which is not only peaceable and lawful, but also praiseworthy and commendable, for six days in the week, can be arbitrarily converted into a penal offense or misde meanor on the seventh. As a general rule, it will be admitted that men have a natural right to do any thing which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights Pernicious influence. Inception of all religious depotism. Religious rights inalien able. A single re ligious decis ion by govern ment a usur pation. Unconstitu tionality of forced relig ious observ- Considered as a civil regu lation. Individual rights. 174 AMERICAN STATE PAPERS. Formation of society. A necessity for the preser vation of free institutions. [508] Sphere of government. None should be allowed to encroach upon rights of others. Justifiable civil regula tions. Statement of a principle. Natural rights inalien able. of others.1 When societies are formed, each individ ual surrenders certain rights,2 and as an equivalent for that surrender, has secured to him the enjoyment of certain others appertaining to his person and prop erty, without the protection of which society cannot exist. All legislation is a restraint on individuals, but it is a restraint which must be submitted to by all who would enjoy the benefits derived from the in stitutions of society. It is necessary, for the preservation of free institu tions, that there should be some general and easily recognized rule to determine the extent of govern mental power, and establish a proper line of demar- kation between such as are strictly legitimate and *such as are usurpations which invade the reserved rights of the citizen, and infringe upon his constitu tional liberty. The true rule of distinction would seem to be that which allows the Legislature the right so to restrain each one, in his freedom of con duct, as to secure perfect protection to all others from every species of danger to person, health, and prop erty ; that each individual shall be required so to use his own as not to inflict injury upon his neighbor ; and these, we think, are all the immunities which can be justly claimed by one portion of society from an other, under a government of constitutional limita tion. For these reasons the law restrains the estab lishment of tanneries, slaughter-houses, gunpowder depots, the discharge of fire-arms, etc., in a city, the sale of drugs and poisons, and the practice of physic xAs Mr. Herbert Spencer says: "Every man has the right to do whatsoever he wills, provided that in the doing thereof he infringes not the equal right of any other man.'' 2 For the views of Mr. Jefferson and others upon this question, see ante page 69 et seq. The natural rights of man are inalienable ; for governments have no legitimate power to take away what they were instituted to protect. As declared by the United States Senate, "Des potic power may invade those rights, but justice still confirms them." SUNDAY LAWS UNCONSTITUTIONAL. 175 by incompetent persons, and makes a variety of other Legitimate i • i_ ¦ . , prohibitions. prohibitions, the reason and sense of which are ob vious to the most common understanding. Now, when we come to inquire what reason can Reasons be given for the claim of power to enact a Sunday latmenTo"11" i ii,,. ... Sunday laws. law, we are told, looking at it in its purely civil aspect, that it is absolutely necessary for the benefit of his [the individual's] health and the restoration of his powers, and in aid of this great social necessity, the Legislature may, for the general convenience, set apart a particular day of rest, and require its observ ance by all. This argument is founded on the assumption that Argument founded on an men are in the habit of working too much, and incorrect as sumption. thereby entailing evil upon society ; and that, with out compulsion, they will not seek the necessary repose which their exhausted natures demand. This is to us a new theory, and is contradicted by the his tory of the past and the observation of the present. We have heard, in all ages, of declamations and re proaches against the vice of indolence ; but we have yet to learn that there has ever been any general complaint of an intemperate, vicious, unhealthy, or morbid industry. On the contrary, we know that Man win • r ¦! r i i rest for self- mankind seek cessation from toil, from the natural preservation. influences of self-preservation, in the same manner and as certainly as they seek slumber, relief from pain, or food to appease their hunger. Again : it may be well considered that the amount Somere- & J - quire more of rest which would be required by one half of society ^e*an do may be widely disproportionate to that required by the other. It is a matter of which each individual must be permitted to judge for himself, according to his own instincts and necessities. As well might the Hours of work, also, Legislature fix the days and hours for work, and en- might as well b J be compul- force their observance by an unbending rule which sory shall be visited alike upon the weak and strong. 176 AMERICAN STATE PAPERS. Sumptuary laws a usur pation. 1*509] An invasion of natural Variety of opinion. A false pre tense. Judiciary is to protect con stitutionalrights. Whenever such attempts are made, the law-making power leaves its legitimate sphere, and makes an in cursion into the realms of physiology, and its enact ments, like the sumptuary laws of the ancients, which prescribe the mode and texture of people's clothing, or similar laws which *might prescribe and limit our food and drink, must be regarded as an invasion, with out reason or necessity, of the natural rights of the citizen, which are guaranteed by the fundamental law. The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the an cient Hebrew, it has been adopted into all the creeds of succeeding religious sects, throughout the civilized world ; and whether it be the Friday of the Mahom etan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication ; and in most of the States of our Confederacy, the aid of the law to enforce its observance has been given, under the pretense of a civil, municipal, or police regulation. But it has been argued that this is a question ex clusively for the Legislature ; that the law-making power alone has the right to judge of the necessity and character of all police rules, and that there is no power in the judiciary to interfere with the exercise of this right. One of the objects for which the judicial depart ment is established, is the protection of the constitu tional rights of the citizen. The question presented in this case is not merely one of expediency or abuse of power ; it is a question of usurpation of power. If the Legislature have the authority to appoint a time of compulsory rest, we would have no right to inter fere with it, even if they required a cessation from SUNDAY LAWS UNCONSTITUTIONAL. \77 toil for six days in the week, instead of one. If they Logical . i • . , . . . ¦ deductions possess this power, it is without limit, and may ex- from Sunday ,,,. ..... r legislation. tend to the prohibition of all occupations at all times. While we concede to the Legislature all the su- Legislature premacy to which it is entitled, we cannot yield to it t1e0ntommp°" the omnipotence which has been ascribed to the British Parliament, so long as we have a Constitution which limits its powers, and places certain innate rights of the citizen beyond its control. It is said that the first section of article first of the Acharacter- C. • . . . . . ,. „ istic claim. onstitution is a common-place assertion of a general principle, and was not intended as a restriction upon the power of the Legislature. This court has not so considered it. In Billings v. Hall, 7 California, 1, Chief Justice Murray says, in reference to this section of the Con stitution : "This principle is as old as the Magna Afunda- /— 1 t 1- 1 r 1 • r mental prin- Charta. It lies at the foundation of every constitu- cipie. tional government, and is necessary to the existence of civil liberty and free institutions. It was not lightly incorporated into the Constitution of this State, as one of those political dogmas designed to tickle the popular ear, and conveying no substantial meaning or idea, but as one of those fundamental it must be ° rigorously ob- principles of enlightened government, without a rig- ;iu™e?iD0rin" orous observance of which there could be neither liberty nor safety to the citizen." In the same case, Mr. Justice Burnett asserted the following *principles, which bear directly upon 1*510] the question : " That among the inalienable rights declared by our Constitution as belonging to each citizen, is a right of acquiring, possessing, and pro- Aninaiien- tecting property. . . . That for the Constitution to declare a right inalienable, and at the same time leave the Legislature unlimited power over it, would be a contradiction in terms, an idle provision, proving that a Constitution was a mere parchment barrier, 178 AMERICAN STATE PAPERS. Ruinous consequences of a non- enforcementof bill of rights. California Supreme Court enforces constitutionalrights. Sunday law unconstitutional. Discrimi nates in favor of Christianity. Madison's assertion. insufficient to protect the citizen, delusive, and vis ionary, and the practical result of which would be to' destroy, not conserve, the rights it vainly assumed to protect."1 Upon this point, I dissent from the opinion of the court in Billings v. Hall, and if I considered the question an open one, I might yet doubt its correct ness ; but the doctrine announced in that opinion hav ing received the sanction of the majority of the court, has become the rule of decision, and it is the duty of the court to see it is uniformly enforced, and that its application is not confined to a particular class of cases. It is the settled doctrine of this court to enforce every provision of the Constitution in favor of the rights reserved to the citizen against a usurpation of power in any question whatsoever ; and although in a doubtful case we would yield to the authority of the Legislature, yet upon the question before^ us, we are constrained to declare that, in our opinion, the act in question is in conflict with the first section of article first of the Constitution, because, without necessity, it infringes upon the liberty of the citizen, by restrain ing his right to acquire property. And that it is in conflict with the fourth section of the same article, because it was intended as, and is in effect, a discrimination in favor of one religious profession, and gives it a preference over all others. It follows that the prisoner was improperly con victed, and it is ordered that he be discharged from custody. 1 Mr. Madison, in remonstrating against any infringement by the Legislature of Virginia upon the religious liberty of the individual, had occasion to assert the same principle : " Either, then, we must say that the will of the Legislature is the only measure of their authority, and that in the plentitude of that authority they may sweep away all our funda mental rights, or that they are bound to leave this particular right untouched and sacred." Ante page 37. SUNDAY LAWS UNCONSTITUTIONAL. 179 BURNETT, Justice. — The great importance of the importance of question. constitutional principle involved, and the different view I take of some points, make it proper for me to submit a separate opinion. The question is one of no ordinary magnitude, and of great intrinsic difficulty. The embarrassment we might otherwise experience in deciding a question of such interest to the commu nity, and in reference to which there exists so great Great differ- ence of opin- a difference of opinion, is increased by the considera- ion- tion that the weight of the adjudged cases is against the conclusion at which we have been compelled to arrive. In considering this constitutional question, it must be conceded that there are some great leading prin- Eternal and " unchangeable ciples of Justice, eternal and unchangeable, that are principles. applicable at all times and under all circumstances. It is upon this basis that all Constitutions of *free [*5"l government must rest. A Constitution that admits that there a're many inalienable rights of human nat ure reserved to the individual, and not ceded to society, must, of logical necessity, concede the truth of this position. But it is equally true that there are other principles, the application of which may be justly modified by circumstances. It would seem to be true that exact justice is only Justice a J J conformity to an exact conformity to some law. Without law there some law. could be neither merit nor demerit, justice nor in justice ; and, when we come to decide the question whether a given act be just or unjust, we must keep in our view that system of law by which we judge it. As judged by one code of law, the act may be inno cent ; while, as judged by another, it may be crimi nal. As judged by the system of abstract justice .J£j?iCt (which is only that code of law which springs from the natural relation and fitness of things), there must be certain inherent and inalienable rights of human nature that no government can rightfully take away. 180 AMERICAN STATE PAPERS. Retention of individual rights. Sovereignty of the people. J udiciary must abide by Constitution. These rights are retained by the individual because their surrender is not required by the good of the whole. The just and legitimate ends of civil govern ment can be practically and efficiently accomplished whilst these rights are retained by the individual. Every person, upon entering into a state of society, only surrenders so much of his individual rights as may be necessary to secure the substantial happiness of the community.1 Whatever is not necessary to at tain this end, is reserved to himself. But, conceding the entire correctness of these views, it must be equally clear that the original and primary jurisdiction to determine the question what are these inalienable rights, must exist somewhere ; and wherever placed, its exercise must be conclusive, in the contemplation of the theory upon all. The power to decide what individual right must be conceded to society, originally existed in the sovereign people who made the Constitution. As they possessed this primary and original jurisdic tion, their action must be final. If they exercised this power, in whole or in part, in the formation of the Constitution, their action, so far, is conclusive. It must also be conceded that this power, from its very nature, must be legislative, and not judicial. The question is simply one of necessity — of abstract justice. It is a question that naturally enters into the mind of the law-maker, not into that of the law- expounder. The judicial power, from the nature of its functions, cannot determine such a question. Ju dicial justice is but conformity to the law as already made. If these views be correct, the judicial department cannot, in any case, go behind the Constitution, and by any original standard judge the justice or legality 1 For a discussion of this question, see ante page 69 et seq. SUNDAY LAWS UNCONSTITUTIONAL. 181 of any single one or more of its provisions. The Judiciary i .... , _ , a creature of judiciary is but the creature of the Constitution, and Constitution. cannot judge its creator. It cannot rise above the *source of its own existence. If it could do this, it 1*51=0 could annul the Constitution, instead of simply de claring what it means. And the same may be said of any act of the Legislature, if within the limits of its discretion, as defined by the Constitution. Such an act of the Legislature is as much beyond the reach of the judiciary as is the Constitution itself. 1 Bald win, 74 ; 1 Brockenborough, 203 ; 10 Peters, 478 ; 5 Georgia, 194. But it is the right and the imperative duty of this Dutyofju- . ,~, . diciary to con- court to construe the Constitution and statutes in stme consti tution. the last resort ; and, from that construction, to as certain the will of the law-maker. And the only le gitimate purpose for which a court can resort to the principles of abstract justice, is to ascertain the proper construction of the law in cases of doubt. When, in the opinion of the court, a given construction is clearly contrary to the manifest principles of justice, then it will be presumed, as a case not free from doubt, that the Legislature never intended such a consequence. Varick v. Briggs, 6 Paige, 330 ; Flint River Steamboat Company v. Foster, 5 Georgia, 194. But when the intention is clear, however unjust and absurd the consequences may be, it must prevail, un less it contravenes a constitutional provision. If these views be correct, it follows that there can constitution 1 • i«ii i 1 s-> - ^e supreme be for this court no higher law than the Constitution ; law. and in determining this question of constitutional construction, we must forget, as far as in us lies, that we are religious or irreligious men. It is solely a matter of construction, with which our individual feelings, prejudices, or opinions upon abstract ques tions of justice, can have nothing to do. The Con stitution may have been unwisely framed. It may 182 AMERICAN STATE PAPERS. Limitations of power. British v. American principles. Difference overlooked. All prefer ence in relig ion unconsti tutional. Equality of all religions. [*5X3] Provision of Constitu tion. have given too much or too little power to the Legis lature. But these are questions for the statesmen, not the jurist. Courts are bound by the law as it is. The British Constitution differs from our Ameri can Constitutions in one great leading feature. It only classifies and distributes, but does not limit the powers of government ; while our Constitutions do both. It is believed that this difference has been sometimes overlooked by our courts in considering constitutional questions ; and English authorities followed in cases to which they could be properly applied. We often meet with the expression that Christianity is a part of the common law. Conceding that this is true, it is not perceived how it can influ ence the decision of a constitutional question. The Constitution of this State will not tolerate any dis crimination or preference in favor of any religion ; and, so far as the common law conflicts with this pro vision, it must yield to the Constitution. Our con stitutional theory regards all religions, as such, equally entitled to protection, and all equally unentitled to any preference. Before the Constitution they are all equal. In so far as the principles found in all, or in any one or more of the different *religious systems, are considered applicable to the ends legitimately contemplated by civil constitutional government, they can be embodied in our laws and enforced. But when there is no ground or necessity upon which a principle can rest, but a religious one, then the Con stitution steps in, and says that you shall not enforce it by authority of law. The Constitution says that " the free exercise and enjoyment of religious profession and worship, with out discrimination or preference, shall forever be al lowed in this State." If we give this language a mere literal construction, we must conclude that the protection given is only SUNDAY LAWS UNCONSTITUTIONAL. 183 intended for the professor, and not for him who does Constitution , . rT^1 r construed. not worship. I he free exercise and enjoyment of religious profession and worship," is the thing ex pressly protected by the Constitution. But, taking the whole section together, it is clear that the scope and purpose of the Constitution was to assert the Constitution , . intended relig- great, broad principle of religious freedom for all — ious freedom for the believer and the unbeliever. The govern ment has no more power to punish a citizen when he professes no religion, than it has when he professes any particular religion. The act of the Legislature under consideration Sunday . , , . . r 1 /-• 'aws comPeI violates this section of the Constitution, because it religious observance. establishes a compulsory religious observance ; and not, as I conceive, because it makes a discrimination between different systems of religion. If it be true that the Constitution intended to secure entire relig ious freedom to all, without regard to the fact whether they were believers or unbelievers, then it follows that the Legislature could not create and enforce any merely religious observance whatever. It was the purpose of the Constitution to establish a permanent a perma nent principle principle, applicable at all times, under all circum- established. stances, and to all persons. If all the people of the State had been unbelievers, the act would have been subject to the same objection. So, if they had all been Christians, the power of the Legislature to pass An impor- L ° A tant observa- the act would equally have been wanting. The will tion- of the whole people has been expressed through the Constitution, and until this expression of their will has been changed in some authoritative form, it must prevail with all the departments of the State govern ment. The Constitution, from its very nature as a permanent organic act, could not shape its provisions so as to meet the changing views of individuals. Had the act made Monday, instead of Sunday, a day of The princi- •* pie involved. compulsory rest, the constitutional question would 184 AMERICAN STATE PAPERS. Religious compulsion wrong in itself. [*5i4] An impor tant observa- Sphere of legislation. Constitu tional prin ciples. Number to be protected immaterial. A single individual as much en titled to pro tection as majority. have been the same. The fact that the Christian voluntarily keeps holy the first day of the week, does not authorize the Legislature to make that ob servance compulsory. The Legislature cannot compel the citizen to do that which the Constitution leaves him free to do or omit, at his election. The act vio lates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of *the Christian compel him to keep Sunday as a Sab bath, he has the right to object, when the Legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the act of the Legislature compels us to do that which we wish to do or not to do. The compulsory power does not exist in either case. If the Legislature has power over the subject, this power exists without regard to the particular views of individuals. The sole inquiry with us is, whether the Legislature can create a day of compul sory rest. If the Legislature has the power, then it has the right to select the particular day. It could not well do otherwise. The protection of the Constitution extends to every individual or to none. It is the individual that is in tended to be protected. The principle is the same whether the many or the few are concerned. The Constitution did not mean to inquire how many or how few would profess or not profess this or that particular religion. If there be but a single individ ual in the State who professes a particular faith, he is as much within the sacred protection of the Con stitution as if he agreed with the great majority of his fellow-citizens. We cannot, therefore, inquire into the particular views of the petitioner, or of any other individual. We are not bound to take judicial notice of such matters, and they are not matters of proof. SUNDAY LAWS UNCONSTITUTIONAL. 185 There may be individuals in the State who hold Mon- . Questions involved. day as a Sabbath. If there be none such now, there may be in the future. And if the unconstitutionality of an act of this character depended, in any manner, upon the fact that a particular day of the week was selected, then it follows that any individual could de feat the act by professing to hold the day specified as his Sabbath. The Constitution protects the free- Religious , profession dom of religious profession and worship, without re- mustbepro- B r J Jr tected re gard to the sincerity or insincerity of the worshiper, gardiessof & J J L sincerity. We could not inquire into the fact whether the indi vidual professing to hold a particular day as his Sab bath was sincere or otherwise. He has the right to profess and worship as he pleases, without having his motives inquired into. His motives in exercising a Motivesnot • ^ "a matter of constitutional privilege are matters too sacred to be JH^'^ inves- submitted to judicial scrutiny. Every citizen has the undoubted right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State. Under the Constitution of this State, the Legis- Unconstitu- tionality of lature cannot pass any act, the legitimate effect of f°ucsedbsr^- which is forcibly to establish any merely religious *nces. truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from *doing anything, because it violates 1*515] simply a religious principle or observance, the act is unconstitutional. In considering the question whether the act can be considered o ^ as a civil regu- sustained upon the ground that it is a mere munici- lation. pal regulation, the inquiry as to the reasons which operated upon the minds of members, in voting for the measure, is, as I conceive, wholly immaterial. The constitutional question is a naked question of off4™ legislative power. Had the Legislature the power to p™"- 186 AMERICAN STATE PAPERS. Motives of the legislator effect not the unconstitutionality of Sunday laws. Motives of the legislator not a subject of judicial in quiry. Construc tion of Con stitution. do the particular thing done ? What was that particu lar thing ? It was the prohibition of labor on Sunday. Had the act been so framed as to show that it was intended by those who voted for it as simply a mu nicipal regulation, yet if in fact it contravened the provision of the Constitution securing religious free dom to all, we should have been compelled to declare it unconstitutional for that reason. So, the fact that the act is so framed as to show that a different reason operated upon the minds of those who voted for it, will not prevent us from sustaining the act, if any portion of the Constitution conferred the power to pass it upon the Legislature. Where the power exists to do a particular thing, and the thing is done, the reason which induced the act is not to be inquired into by the courts. The power may be abused, but the abuse of the power cannot be avoided by the judiciary. A court may give a wrong reason for a proper judgment ; still, the judgment must stand. The members of the Legisla ture may vote for a particular measure from errone ous or improper motives. The only question with the courts is, whether that body had the power to command the particular act to be done or omitted. The view here advanced is sustained substantially by the decision in the case of Fletcher v. Peck, 6 Cranch, 131. It was urged, in argument, that the provision of the first section of the first article of the Constitution, asserting the " inalienable right of ac quiring, possessing, and protecting property," was only the statement in general terms, on a general principle, not capable in its nature of being judicially enforced. It will be observed that the first article contains a declaration of rights, and if the first section of that article asserts a principle not susceptible of practical application, then it may admit of a question whether SUNDAY LAWS UNCONSTITUTIONAL. 187 any principle asserted in this declaration of rights . Principles x ° susceptible of can be the subject of judicial enforcement. But that enforcement. at least a portion of the. general principle asserted in that article can be enforced by judicial determination, must be conceded. This has been held at all times, by all the courts, so far as I am informed. The provisions of the sixteenth section of the first Property rights, article, which prohibits the Legislature from passing any law impairing the obligation of contracts, is based upon essentially the same ground as the first section, which asserts the right to acquire, *possess, and de- l*si6j fend property. The right substantially secured by both sections is the right of property. This right of property is the substantial basis upon which the pro visions of both sections must rest. The reason of, and the end to be accomplished by, each section, are the same. The debtor has received property or other valuable consideration, for the sum he owes the cred itor, and the sum, when collected by the creditor, becomes his property. The right of the creditor to collect from the debtor that which is due, is essen tially a right of property. It is the right to obtain from the debtor property which is unjustly detained from the creditor. If we take the position to be true, for the sake of Property 1 rights enforce- the argument, that the right of property cannot be r"^vthe enforced by the courts against an act of the Legisla ture, we then concede a power that renders the re strictions of other sections inoperative. For example, if the Legislature has the power to take the property of one citizen, and give it to another without compen sation, the prohibition to pass any law impairing the obligation of contracts, could readily be avoided. All the Legislature would have to do to accomplish this purpose, would be to allow the creditor first to collect his debt, and afterwards take the property of the creditor, and give it to the debtor. For if we once AMERICAN STATE PAPERS. Property rights. Construe tion of first Provisions of Constitu tion harmo nious. concede the power of the Legislature to take the property of A and give it to B, without compensa tion, we must concede to that body the exclusive right to judge when, and in what instance, this con ceded right should be exercised. It was also insisted, in argument, that the judicial enforcement of the right of property, as asserted in the first section, is inconsistent with the power of compulsory process, to enforce the collection of debts by the seizure and sale of the property of the debtor. But is this true ? On the contrary, is not the power to seize and sell the property of the debtor expressly given by the Constitution for the very purpose of protecting and enforcing this right of property ? When the Constitution says that you shall not impair the obligation of the contract, it says in direct effect that you shall enforce it ; and the only means to do this efficiently is by a seizure and sale. The seizure and sale of the property of the debtor was contem plated by the Constitution, as being a part of the contract itself. The debtor stipulates in the contract, that, in case he fails to pay, the creditor may seize and sell his property by legal process. Such is the legal effect of the contract, because the existing law enters into and forms a part of it. The different provisions of the Constitution will be found when fairly and justly considered, to be harmonious and mutually dependent one upon the other. A general principle may be asserted in one section without any specification of the exceptions in that place. But it must be evident that practical 1*517] Convenience and logical arrangement will not al ways permit the exceptions to be stated in the same section. It is matter of no importance in what part of the Constitution the exception may be found. Wherever found, it must be taken from the general rule, leaving the remainder of the rule to stand. The SUNDAY LAWS UNCONSTITUTIONAL. 189 general right of enjoying and defending life and lib- Assertion erty is asserted in the first section of the first article ; while the exceptions are stated in the eighth, ninth, fifteenth, and eighteenth sections of the same article. A party may, by express provisions of the Constitu tion, forfeit his liberty. The same remark, in refer ence to exceptions to general principles, will apply to other provisions. The right to protect and possess property is not Right more clearly protected by the Constitution than the sacred^'right 1_ . • rji-t . -, . * to protect, right to acquire. I he right to acquire must include property. the right to use the proper means to attain the end. The right itself would be impotent without the power to use its necessary incidents.1 The Legislature, Legislature , c , ., . , ,. cannot abridge therefore, cannot prohibit the proper use of the means this right. of acquiring property, except the peace and safety of the State require it. And in reference to this point, I adopt the reasons given by the Chief Justice, and concur in the views expressed by him. 1 This important principle is not infrequently overlooked when the An impor- question of the constitutionality of Sunday laws is under consideration, nt pnnclp c- "All men are created equal." All men have a right to use their time to acquire property. The legislature can no more deprive a person of the free use of a. part of his time, than it can deprive him of the use of his time altogether. And because the Sabbatarian has enough inde pendence of thought and enough strength of character to differ from the majority in Sabbath observance, it is manifestly unjust to deprive him Injustice to for that reason of one seventh of his time, to which he has an inalien able right. The innate sense of every man asserts that he has the same right to his opinion that others have to their opinion ; that he has the same right to work on such days as he wills, that others have to work on such days as they will. The question is one of individual rights, not a question of whether you do or whether you do not agree with the dominant religious party. Any laws interfering with the right to acquire . __- property, like laws interfering with the rights to life and personal lib erty, are a flagrant violation of the individual's natural rights. The principle is as follows : An individual's rights cannot be infringed Principle because he belongs to the minority. If I have a right to work six days, and then rest one, all others have the same right ; and if I choose the first day on which to rest, no one has a right to molest me ; and if ray friend chooses the seventh day on which to rest, no one has a right to stated. 190 AMERICAN STATE PAPERS. Limitations on Legislature. Chief Jus tice Taney's decision. There are certain classes of subjects over which the Legislature possesses a wide discretion ; but still its discretion is confined within certain limits ; and although, from the complex nature of the subject, these limits cannot always be definitely settled in advance, they do and must exist. It was long held, in general terms, that the Legislature had the power to regulate the remedy ; but cases soon arose where the courts were compelled to interpose. In the case of Bronson v. Kenzie, I Howard, 311, Chief Justice Taney uses this clear language : " It is difficult, perhaps, to draw a line that would be applicable in all cases, between legitimate altera tions of the remedy and provisions which in the form of remedy impair the right ; but it is manifest that the obligation of the contract may, in effect, be destroyed by denying a remedy altogether ; or may be seriously impaired by hampering the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing." So, the power of the Legislature to pass record ing acts and statutes of limitations is conceded, in general terms, and a wide discretion given. Yet, in Equality of rights. Objection advanced. Absurdity involved. molest him. If I work on the day on which he rests without molesting him, no one has a right to stop or hinder me in my work ; and, likewise, no one has a right to stop or hinder him if he works on the day on which I rest. This is justice and equality. But it is neither justice nor equality to deprive my friend of one day (Sunday) for work in every week because he chooses the seventh day on which to rest — thus giving him only five days in which to work for a livelihood. "But," argues the advocate of Sunday laws, "the minority are not compelled to work on their Sabbath, but simply to refrain from working on our Sabbath." But if the legislature may compel the minority to ' ' refrain from working ' ' one day in the week, why not two ? and if two, why not three ? and if three, why not six ? Thus there is no time to which the minority has a right ; and the legislature (the servant of the people) is empowered to entirely deprive the people of the use of their time, and thus of the very means of sustaining life itself. To this absurd conclusion do the positions of Sunday-law advocates lead us. SUNDAY LAWS UNCONSTITUTIONAL. 191 reference to these powers, Mr. Justice Baldwin, in Power of ... . , . . _ , _ Legislature. delivering the opinion of the Supreme Court of the United States, in the case of Jackson v. Lamphine, 3 Peters, 289, uses this language : " Cases may occur where the provisions of a law Justice . , . Baldwin's de- on these subjects may be so unreasonable as to cision- amount to a denial of the right, and call for the inter position of the court." The Legislature is vested by the Constitution with a wide dis-*cretion in determining what is 1*518] necessary to the peace and safety of the State ; yet this discretion has some limits. It may be difficult, in many cases, to define these limits with exact pre cision ; but this difficulty cannot show that there are no limits. Such difficulties must arise under every system of limited government. The question arising under this act is quite dis- Question x ° A of rest consid- tinguishable from a case where the Legislature of a ered- State in which slavery is tolerated, passes an act for the protection of the slave against the inhumanity of the master in not allowing sufficient rest. In this State every man is a free agent, competent and able to protect himself, and no one is bound by law to labor for any particular person. Free agents must hFr^g|cj^ be left free, as to themselves. Had the act under frec- consideration been confined to infants or persons bound by law to obey others, then the question pre sented would have b^en different. But if we cannot trust free agents to regulate their own labor, its times and quantity, it is difficult to trust them to make their own contracts. If the Legislature could pre- Logical con- . elusion. scribe the days of rest for them, then it would seem that the same power could prescribe the hours to work, rest, and eat. For these reasons I concur with the Chief Justice in discharging the prisoner. 192 'AMERICAN STATE PAPERS. Decembei Term, 1872, SUPREME COURT OF OHIO. December Term, 1872. THE BOARD OF EDUCATION OF THE CITY OF CINCINNATI v. JOHN D. MINOR et al.1 Claims made. We are told that this word "religion" must mean " Christian religion," because " Christianity is a part of [*247l the *common law of this country," lying behind and above its Constitutions. Those who make this asser tion can hardly be serious, and intend the real import of their language. If Christianity is a law of the State, like every other law, it must have a sanction. Ade- Eminent counsel secured. Resolutions adopted by board. Decision of Superior Court. 'The opinion in this case was rendered by Mr. Justice Welch. Stanley Matthews, since a Justice of the Supreme Court of the United States, and George Hoadley, subsequently Governor of Ohio, were of the counsel for the Board of Education, and delivered clear and effective speeches at the trial of the case before the Superior Court. The defendants had brought their action in the Superior Court of Cincinnati to enjoin the Board of Education from carrying into effect two resolutions adopted by the board, which read as follows : "Resolved, That religious instruction, and the reading of religious books, including the Holy Bible, are prohibited in the common schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the common school fund. " Resolved, That so much of the regulations on the course of study and text-books in the intermediate and district , schools (page 213, annual report) as reads as follows : ' The opening exercises in every department shall commence by reading a portion of the Bible, by or under the direction of the teacher, and appropriate singing by the pupils,' be repealed." Two of the judges, Hagans and Storer, decided in favor of religion in the public schools, and enjoined the board from carrying the forego ing resolutions into effect. The other member of the court, Judge Taft, dissented. The case was then carried to the Supreme Court of the State, which reversed the decision of the lower court, and wrote a. decision which has proved to be of interest throughout the country, and justifies its republication. For decision entire, see 23 Ohio State, 211 et seq. THE BIBLE IN PUBLIC SCHOOLS. 193 quate penalties must be provided to enforce obedience Laws must have to all its requirements and precepts. No one seriously penalties. contends for any. such doctrine in this country, or, Anabsurd t , i doctrine. I might almost say, in this age of the world. The only foundation — rather, the only excuse — for the proposition that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its Constitutions and laws are made by a Christian people. And is not the very fact that those christian principles laws do not attempt to enforce Christianity, or to exemplified in x •* J our secular place it upon exceptional or vantage ground, itself a government. strong evidence that they are the laws of a Christian people, and that their religion is the best and purest of religions ? It is strong evidence that their religion is indeed a religion " without partiality," and there fore a religion " without hypocrisy." True Christian- .TrueChns- J b J r J tianity asks ity asks no aid from the sword of civil authority. It no state aid. began without the sword, and wherever it has taken the sword, it has perished by the sword. To depend Dependence 1 J A on state an on civil authority for its enforcement is to acknowl- acknowiedg- J ment of edge its own weakness, which it can never afford to weakn<*s- do. It is able to fight its own battles. Its weapons are moral and spiritual, and not carnal. Armed with these, and these alone, it is not afraid nor "ashamed" to be compared with other religions, and to withstand them single-handed. And the very reason why it is not so afraid or " ashamed " is that it is not the "power of man" but "the power of God," on which it depends. True Christianity never shields itself TrueChris- Sr J tianity never behind majorities. Nero, and the other persecuting j^f^^g Roman emperors, were amply supported by major ities ; and yet the pure and peaceable religion of Christ in the end triumphed over them all ; and it was only when it attempted, itself, to enforce religion by the arm of authority, that it began to wane. A form of religion that cannot live under equal and im partial laws ought to die, and sooner or later must die. 13 in the ma jority. 194 AMERICAN STATE PAPERS. [*z48] Legal Christianitya solecism. State religion is invariably superstition. Religious states are invariablydespotic. Religion not recog nized in Constitution. Necessity of religion. Intention of framers of Constitution. How gov ernment is essential to religion. *Legal Christianity is a solecism, a contradiction of terms. When Christianity asks the aid of govern ment beyond mere impartial protection, it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, religion never rises above the merest superstition ; united with religion, government never rises above the merest despotism ; and all history shows us that the more widely and completely they are separated, the better it is for both. Religion is not — much less is Christianity or any other particular system of religion — named in the preamble to the Constitution of the United States as one of the declared objects of government ; nor is it mentioned in the clause in question, in our own Con stitution, as being essential to anything beyond mere human government. Religion is "essential" to much more than human government. It is essential to man's spiritual interests, which rise infinitely above, and are to outlive, all human governments. It would have been easy to declare this great truth in the Constitution ; but its framers would have been quite out of their proper sphere in' making the declaration. They contented themselves with declaring that re ligion is essential to good government ; providing for the protection of all in its enjoyment, each in his own way, and providing means for the diffusion of general knowledge among the people. The declaration is not that government is essen tial to good religion, but that religion is essential to good government. Both propositions are true, but they are true in quite different senses. Good government is essential to religion for the purpose declared elsewhere in the same section of the Con stitution ; namely, for the purpQse of mere protection. But religion, morality, and knowledge are essential THE BIBLE IN PUBLIC SCHOOLS. 195 to government, in the sense that they have the How ... r 7 . . religion is instrumentalities for producing and perfecting a good essential to form of government. On the other hand, no govern ment is at all adapted for producing, perfecting, or propagating a good religion. Religion, in its widest and best sense, has most, if not all, *the instrumen- [^49] talities for producing the best form of government. Religion is the parent, and not the offspring, of good government. Its kingdom is to he first sought, and good government is one of those things which will be added thereto. True religion is the sun which gives to government all its true lights, while the latter merely acts upon religion by reflection. Properly speaking, there is no such thing as "re- No such ... r „ ,.,. , , thing as ligion of state. What we mean by that phrase is, "state" . . . religion. the religion of some individual, or set of individuals, . Some individual s taught and enforced by the State. The State can religion. have no religious opinions ; and if it undertakes to enforce the teaching of such opinions, they must be the opinions of some natural person, or class of persons. If it embarks in this business, whose opin- whose ion shall it adopt ? If it adopts the opinions of more state adopt? than one man, or one class of men, to what extent may it group together conflicting opinions ? or may it group together the opinions of all ? And where this conflict exists, how thorough will the teaching How far , ., ttt.,i . , , . , , ... will it go? be ? Will it be exhaustive and exact, as it is in elementary literature and in the sciences usually taught to children ? and, if not, which of the doc trines or truths claimed by each will be blurred over, and which taught in preference to those in conflict ? These are difficulties which we do not have to Disacuities encounter when teaching the ordinary branches of to religious learning. It is only when we come to teach what lies "beyond the scope of sense and reason" — what from its very nature can only be the object of faith — that we encounter these difficulties. Especially teaching. 196 AMERICAN STATE PAPERS. Difficulty increased. Pertinent questions. [*25o] Religious teaching by state incom patible with Christianity. Golde role. Religious teaching by state an out growth of false Chris tianity. Injustice to unbelievers. First step logically involves last step. is this so when our pupils are children, to whom we are compelled to assume a dogmatical method and manner, and whose faith at last is more a faith in us than in anything else. Suppose the State should undertake to teach Christianity in the broad sense in which counsel apply the term, or the " religion of the Bible," so as also to include the Jewish faith, — where would it begin ? how far would it go ? and what points of disagreement would be omitted ? If it be true that our law enjoins the teaching of the *Christian religion in the schools, surely, then, all its teachers should be Christians. Were I such a teacher, while I should instruct the pupils that the Christian religion was true and all other religions false, I should tell them that the law itself was an unchristian law. One of my first lessons to the pupils would show it to be unchristian. That lesson would be: "Whatsoever ye would that men should do to you, do ye even so to them ; for this is the law and the prophets." I could not look the veriest infi del or heathen in the face, and say that such a law was just, or that it was a fair specimen of Christian republicanism. I should have to tell him that it was an outgrowth of false Christianity, and not one of-the "lights" which Christians are commanded to shed upon an unbelieving world. I should feel bound to acknowledge to him, moreover, that it violates the spirit of our constitutional guaranties, and is a state religion in embryo ; that if we have no right to tax him to support " worship," we have no right to tax him to support religious instructions ; that to tax a man to put down his own religion is of the very essence of tyranny ; that however small the tax, it is a first step in the direction of an " establishment of religion ; " and I should add, that the first step in that direction is the fatal step, because it logically involves the last step. THE BIBLE IN PUBLIC SCHOOLS. 197 But it will be asked, How can religion, in this gen- objections . suggested. eral sense, be essential to good government ? Is atheism, is the religion of Buddha, of Zoroaster, of Lao-tse, conducive to good government ? Does not the best government require the best religion ? Cer tainly the best government requires the best religion. It is the child of true religion, or of truth on the subject of religion, as well as on all other subjects. But the real question here is not, What is the best Question religion ? but, How shall this best religion be secured ? I answer, It can best be secured by adopting the doc trine of this seventh section in our own bill of rights, and which I summarize in two words, by calling it the doctrine of "hands off." Let the State not only keep its own hands off, but let it also see to it that religious sects keep their hands off each *other. Let [*25i] religious doctrines have a fair field, and a free, intel- Freedom 1 1 l • ¦ n • tm i ^or au re~ lectual, moral, and spiritual conflict. The weakest — ligions. that is, the intellectually, morally, and spiritually weakest — will go to the wall, and the best will triumph in the end. This is the golden truth which a principle 1 ii ii-i • i sIow to be it has taken the world eighteen centuries to learn, recognized. and which has at last solved the terrible enigma of " church and state." Among the many forms of stat ing this truth, as a principal of government, to my mind it is nowhere more fairly and beautifully set justice of . . Constitution. forth than in our own Constitution. Were it in my power, I would not alter a syllable of the form in which it is there put down. It is the true republican doctrine. It is simple and easily understood. It means a free conflict of opinions as to things divine ; Freedom , provided by and it means masterly inactivity on the part of the constitution. State, except for the purpose of keeping the conflict free, and preventing the violation of private rights or of the public peace. Meantime, the State will im partially aid all parties in their struggles after religious truth, by providing means for the increase of general 198 AMERICAN STATE PAPERS. Religious rights as sacred as rights to life and property. "Protec tion " means protectionto minority. Discovery of truths. Christian principles. How to overcome error. Spiritual warfare. knowledge, which is the handmaid of good govern ment, as well as of true religion and morality. It means that a man's right to his own religious con victions, and to impart them to his own children, and his and their right to engage, in conformity thereto, in harmless acts of worship toward the Almighty, are as sacred in the eye of the law as his rights of person or property, and that although in the minor ity, he shall be protected in the full arid unrestricted enjoyment thereof. The " protection " guaranteed by the section in question, means protection to the minority. The majority can protect itself. Consti tutions are enacted for the very purpose of protecting the weak against the strong ; the few against the many. As with individuals, so with governments, the most valuable truths are often discovered late in life ; and when discovered, their simplicity and beauty make us wonder that we had not known them before. Such is the character and history of the truth here spoken of. At first sight it seems to lie deep ; but 1*252] on close examination, we find it to be only *a new phase or application of a doctrine with which true religion everywhere abounds. It is simply the doc trine of conquering an enemy by kindness. Let religious sects adopt it toward each other. If you desire people to fall in love with your religion, make it lovely. If you wish to put down a false religion, put it down by kindness, thus heaping coals of fire on its head. You cannot put it down by force ; that has been tried. To make the attempt, is to put down your own religion, or to abandon it. Moral and spiritual conflicts cannot be profitably waged with carnal weapons. When so carried on, the enemy of truth and right is too apt to triumph. Even heathen writers have learned and taught this golden truth. Buddha says : " Let a man overcome THE BIBLE IN PUBLIC SCHOOLS. 199 anger by love, evil by good, the greedy by liberality, Truths of and the slanderer by a true and upright life." Chris tianity is full of this truth, and, as a moral code, might be said to rest upon it. It is in hoc signo, by the use of such weapons, that Christianity must rule, if it rules at all. We are all subject to prejudices, deeper and more Prejudices r i .1 i • r i • • 1 i °^ humanity. fixed on the subject of religion than on any other. Each is, of course, unaware of his own prejudices. A change of circumstances often opens our eyes. No Protestant in Spain, and no Catholic in this country, will be found insisting that the government of his residence shall support and teach its own religion to the exclusion of all others, and tax all alike for its support. If it is right for one government to do so, then it is right for all. Were Christians in the minority here, I apprehend no such a policy would be thought of by them. This is the existing policy of most governments in the world. Christian coun tries, however, are fast departing from it — witness Tendency . . of civilization. Italy, Prussia, Spain, England. The true doctrine on the subject is the doctrine of peaceful disagreement, of charitable forbearance, and perfect impartiality. Three men — say, a Christian, an infidel, and a Jew Right - principle. — ought to be able to carry on a government for their common benefit, and yet leave the religious doctrines and worship of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his *searches after truth. If 1*253] they are sensible and fair men, they will so carry on their government, and carry it on successfully, and for the benefit of all. If they are not sensible and fair men, they will be apt to quarrel about religion, and, in the end, have a bad government and bad religion, if they do not destroy both. Surely they could well and safely carry on any other business, as that of banking, without involving their religious 200 AMERICAN STATE PAPERS. Nature of government. Erroneous claims. Only just method. These principles not new. ["•254] Statements of Madison. opinions, or any acts of religious worship. Govern ment is an organization for particular purposes. It is not almighty, and we are not to look to it for everything. The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government. Counsel say that to withdraw all religious instruc tion from the schools would be to put them under the control of "infidel sects." This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing ; and to give no instructions on the subject is quite another thing. The only fair and impartial method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the State schools, where of necessity all are to meet ; and to put dis puted doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely be taught elsewhere. Our charitable, punitive, and disciplinary institutions stand on an entirely different footing. There the State takes the place of the parent, and may well act the part of a parent or guardian in directing what religious instructions shall be given. The principles here expressed are not new. They are the same, so far as applicable, enunciated by this court in Bloom v. Richards, 2 Ohio State, 387, and in McGatrick v. Wason, 4 Ohio State, 566. They are as old as Madison, and were his favorite opinions. Madison, who had more to do with framing the Con stitution of the United States than any other man, and *whose purity of life and orthodoxy of religious belief no one questions, himself says: " Religion is not within the purview of human government." And again he says : " Religion is THE BIBLE IN PUBLIC SCHOOLS. 201 essentially distinct from human government, and Religion . r • • ¦ exempt from exempt irom its cognizance. A connection between cognizance of government. them is injurious to both. There are causes in the human breast which insure the perpetuity of relier- Support • , , ..„. ., & of religion. ion without the aid of law. l In his letter to Governor Livingston, July 10, 1822, he says: "I observe with particular pleasure the view you have taken of the immunity of religion from civil government, in every case where it does not trespass on private rights or the public peace. This has always been a favorite doctrine with me."* a favorite ti ii* • • ¦ ,, ,,,. doctrine with 1 have made this opinion exceptionally and labori- Madison. ously long. I have done so in the hope that I might thereby aid in bringing about a harmony of views and a fraternity of feeling between different classes of society, who have a common interest in a great public institution of the State, which, if managed as sensible men ought to manage it, I have no doubt, will be a principal instrumentality in working out for Good 1 11 1 ¦ 1 , r r , government us what all desire — the best form of government and and good ° religion. the purest system of religion. I ought to observe that, in our construction of the first named of the two resolutions in question, es pecially in the light of the answer of the Board, we do not understand that any of the " readers," so called, or other books used as mere lesson-books, are excluded from the schools, or that any incon venience from the necessity of procuring new books will be occasioned by the enforcement of the resolu tions. It follows that the judgment of the Superior Court judgment •> b x _ of the court. will be reversed, and the original petition dismissed. Judgment accordingly. 1 Ante page 78. 2 Ante page 75. : world . . . tha with, the aid of government." 2^»rfpage75. In the same letter he declared : " We are teaching America's ,..„.,. . . , , lesson. the world . . . that religion flourishes in greater purity without, than 202 AMERICAN STATE PAPERS. September, 1875- General Grant's ad dress. Price of our Union. Equality for all. Interest created re markable. Attention attracted. ADDRESS OF PRESIDENT GRANT.1 To the Army of the Tennessee. Comrades : It always affords me much gratifica tion to meet my old comrades in arms ten to fourteen years ago, and to live over again in memory the trials and hardships of those days, — hardships im posed for the preservation and perpetuation of our free institutions. We believed then and believe now that we had a government worth fighting for, and, if need be, dying for. How many of our comrades of those days paid the latter price for our preserved Union ! Let their heroism and sacrifices be ever green in our memory. Let not the results of their sacrifices be destroyed. The Union and the free in stitutions for which' they fell should be held more dear for their sacrifices. We will not deny to any who fought against us any privileges under the gov ernment which we claim for ourselves. On the con trary, we welcome all such who come forward in good faith to help build up the waste places and to perpetuate our institutions against all enemies, as 'This address was delivered at Des Moines, Iowa, at the reunion of the Army of the Tennessee in 1875. The interest taken in the speech by the American people was remarkable. The "Iowa State Register," in its Grant memorial edition of July 23, 1885, reprints the address with the following introduction : " The people of Des Moines will always remember with great pride and satisfaction the visit of General Grant to this city in September, 1875. The Army of the Tennessee held its annual reunion here at that time, and the occasion called together a brilliant array of men distin guished in civil and military life. . . . The event of the reunion was his famous speech on the school question, delivered in Moore's old opera house on the second day of the meeting. This speech has attracted more attention than perhaps any other of General Grant's public utterances. On account of the wide-spread interest that it then and since has excited, we give it below in full as it was printed at the time in the ' Register.' " OUR PUBLIC SCHOOL SYSTEM. 203 brothers in full interest with us in a common her- Our com mon heritage. itage. But we are not prepared to apologize for the part we took in the war. It is to be hoped that like trials will never again befall our country. In this sentiment no class of people can more heartily join than the soldier who submitted to the dangers, trials, and hardships of the camp and the battle-field, on whichever side he fought. No class of people are more interested in guarding against a recurrence of those days. Let us, then, begin by guarding against every enemy threatening the perpetuity of free re publican institutions. I do not bring into this assemblage politics, — cer tainly not partisan politics, — but it is a fair subject for soldiers in their deliberations to consider what may be necessary to secure the prize for which they bat tle. In a republic like ours, where the citizen is The people are sovereign the sovereign and the official the servant, where no —officials are servants. power is exercised except by the will of the people, it is important that the sovereign — the people — should possess intelligence. The free school is the importance 1 of our free promoter of that intelligence which is to preserve us schools. a free nation. If we are to have another contest in the near future of our national existence, I pre dict that the dividing line will not be Mason and Dixon's, but between patriotism and intelligence on the one side, and superstition, ambition, and ignor ance on the other. Now, in this centennial year of our national existence, I believe it is a good time to . Our free. , institutions beerm the work of strengthening the foundation of should be ° o o strengthened. the house commenced by our patriotic forefathers one hundred years ago at Concord and Lexington. Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, Moreper- F J OX fe(.t SeCUnty and free press ; pure morals, unfettered religious sen- s^u^££d timents, and of equal rights and privileges to all men, Absolute irrespective of nationality, color, or religion. Ehcour- of rights 204 AMERICAN STATE PAPERS. Public funds not to be ap propriated to sectarian uses. No religious teaching in public schools. It should be left to private institutions. age free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that neither the State or nation, nor both combined,1 shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical tenets. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contri bution. Keep the church and state forever separate. With these safeguards I believe the battles which created the Army of the Tennessee will" not have been fought in vain.2 Interest in religious liberty. Equality of all before the law. Educational amendment recommended. Religious teachingshould be prohibited. 1 There is some controversy as to the exact words used by the Presi dent in this sentence. " It is claimed that by a typographical error General Grant is made to express himself as opposed to public aid to higher education. So it is said that in the sentence beginning, ' Resolve that neither the State or nation, nor both combined,' etc., the ' n's ' should come off from the disjunctives." It would then read, "Resolve that either the State or nation, or both combined," etc. "Iowa State Register," July 23, 1885. 2 The interest in religious liberty and the opposition to sectarian use of public moneys was greatly augmented by this speech. So in his message to Congress, December 7, 1875, President Grant said : "We are a republic whereof one man is as good as another before the law. Under such a form of government, it is of the greatest impor tance that all should be possessed of education and intelligence enough to cast a vote with the right understanding of its meaning. . As a primary step, therefore, to our advancement in all that has marked our progress in the past century, I suggest for your earnest con sideration, and most earnestly recommend, that a constitutional amend ment be submitted to the Legislatures of the several States for ratifica tion, making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all the children in the rudimentary branches, irrespective of sex, color, birth-place, or religion ; forbidding the teaching in said schools of re ligious, atheistic, or pagan tenets, and prohibiting the granting of any school funds, or school taxes, or part thereof, either by legislative, municipal, or any other authority, for the benefit or in aid, directly or OUR PUBLIC SCHOOL SYSTEM. 205 indirectly, of any religious sect or denomination, or in aid or for the benefit of any other object, of any nature or kind whatsoever." Accordingly, one week later, Hon. James G. Blaine proposed in the Blaine House of Representatives the amendment found on page 49 of this amend,neilt- work. It was not acted upon, however, during that Congress. The fol lowing year, on June 15, the Republican national convention declared : "The public school system of the several States is the bulwark of the Republican American republic, and with a view to its security and permanence, we resolutlon- recommend an amendment to the Constitution of the United States, forbidding the application of any public funds or property for the benefit of any schools or institutions under sectarian control. " The Democratic national convention, a few days subsequently, June 28, 1876, also asserted its position in the following words : " We do here re-affirm . . . our faith in the total separation of church Democratic and state for the sake alike of civil and religious freedom." resolution. The convention also asserted that the Democratic party has cher- Position ished our free public schools "from their foundation, and is resolved to °!,£fmocra"c maintain [them] without prejudice or preference for any class, sect, or_ creed, and without largesses from the treasury to any." In contrast with the above liberal expressions of both of the great A contrary political parties, an attempt is being made to foist another policy upon P0'"^- the American people. During the first session of the fiftieth Congress, May 25, 1888, a joint resolution proposing an amendment to the national Constitution was offered by Senator Blair, which is to compel the teach ing of " the principles of the Christian religion " in every public school in the land. Section two of the proposed amendment reads as follows : " Section 2. Each State in this Union shall establish and maintain Blair a system of free public schools, adequate for the education of all the amen mcnt- children living therein, between the ages of six and sixteen years in clusive, in the common branches of knowledge, and in virtue, morality, Statetoteach and the principles of the Christian religion. But no money raised by pubfic schools. taxation imposed by law, or any money or other property or credit be longing to any municipal organization, or to any State, or to the United States, shall ever be appropriated, applied, or given to the use or purpose of any school, institution, corporation, or person, whereby instruction or training shall be given in the doctrines, tenets, belief, ceremonials, or observances peculiar to any sect, denomination, organization, or society, being or claiming to be, religious in its character, or such peculiar doc trines, tenets, belief, ceremonials, or observances be taught or inculcated in the free public schools." In the succeeding Congress the amendment was again introduced, Re-introduc- but on account of the opposition aroused, the objectionable provision amendment was recast so as to read, "In knowledge of the fundamental and non- sectarian principles of Christianity ; " — as though a more obscure word ing would make the anti-American amendment any the less objectionable. The public schools, like all state institutions, should be purely secular. 206 AMERICAN STATE PAPERS. Spirit of religious amendmentand proposed Sunday laws. The spirit which actuates this amendment and the proposed Sunday laws is manifested in a contribution of Senator Blair to the New York "Mail and Express" of April 19, 1890. Its positions are so diamet rically opposed to the whole policy of our national government and to the equality of all before the law, that it is a matter of surprise that such an illiberal, un-American, and un-Christian policy should be advo cated in this enlightened age. The article is as follows : "BLAIR'S LETTER "THERE CAN BE BUT ONE RELIGION AND ONE EDUCATIONAL SYSTEM. "FALSE TEACHINGS MUST BE ERADICATED. "The American Nation Awakening to the Necessity of Assimilating Its Heterogeneous Elements of Population — Religion the Great Human izing Influence — No Doctrine which Interposes a Human Potentate between the Creator and His Creatures will be Tolerated in America. " ( Special Correspondence op ' Mail and Express.' ) "From United States Senator Henry William Blair. Un-Ameri can principles. But one religion to be tolerated. "BUT ONE FAITH CAN PREVAIL. ,t " Only a homogeneous people can be great. No nation can exist with more than one language, more than one religion, more than one general form of education for the masses of the people. There may be change, modification, improvement in all these, but community of language, religion, and of educational forces are indispensable to the development of nationality, and there is no hope of prolonged existence of great communities where there is not either already complete unification in all these respects, or a strong and increasing tendency to the same. The American people instinctively feel and know these things to be so. Hence it is that everywhere we now find the public mind arousing itself, and grappling with the adverse and hostile elements which are almost everywhere to be found in our physical, mental, and spiritual life. "I do not believe that it is possible that the American nation will develop in the direction of toleration of all religions — that is, so- called religions. Whether the general public conviction shall be right or wrong, I yet believe that instead of selecting and finally tolerating all so-called religions, the American people will, by constant and irre sistible pressure, gradually expel from our geographical boundaries every religion except the Christian in its varied forms. I do not expect to see the pagan and other forms existing side by side with the former, both peaceably acquiesced in for any considerable length of time. I do not think that experience will satisfy the American people that the inculca tion of anv oositive religious belief hostile to the Christian faith or the AN UN-AMERICAN LETTER. 207 practice of the forms of any other worship, is conducive to the good order of society and the general welfare. There may not be an exhibi tion of bigotry in this. I believe that religious toleration will yet come Jesuitic to be considered to be an intelligent discrimination between the true and demanded. the false, and the selection of the former by such universal consent as shall exclude by general reprobation the recognition and practice of the latter. " ROMANISM'S BALEFUL INFLUENCE. "No religion which interposes any agency between man and God is Christianity. No other religion than Christianity — and Christianity as I have thus defined it — is consistent with the existence of human liberty and republican institutions. This country will not long exist as a free country if any other religious teaching comes generally to prevail. No one human being is the superior of any other human being in kind, however much we may differ in the extent of our several endowments, and no religion which finds space for an authority between the creature and the Creator can prevail without destroying the republic. Now, religious belief is a matter of education, and hence no free people will, or at least can, safely permit a system or a practice of education which sets up any human master of the human soul — save only the supremacy of each soul over itself. "This does not imply that the people will undertake to teach affirm atively the dogmas of religion in the sectarian sense, or perhaps, even, in the most general and fundamental sense. But it does imply that the Interference people of the republic will see to it that certain things are not taught to rights upheld. the American child. The people will not rest until they have subverted all schools and teachers who create in the soul of the child a belief in a power greater than the right of private judgment and less than the authority of God — an allegiance to any spiritual power except the highest, or any prince, potentate, or power, save only the eternal King, which can inflict pains and penalties of a spiritual nature, or in any other life than this on earth. " FALSE RELIGIONS MUST GO. "The people will not rest in their study of the subject, nor in the regulation of the educational forces of the land, until they have com pelled all citizens to be the masters of the English tongue — until they have secured the eradication of all religious teaching which enslaves the Intolerance soul of the child to any other master than its Supreme Father, or rest advocates. which clothes a mere man with powers which partake of the preroga tives of God. "The people are studying these subjects anew. They are question ing whether there be not some mistake in theories of religious liberty which permit the inculcation of the most destructive errors in the name of toleration, and the spread of pestilence under the name of that liberty which despises the quarantine." 208 AMERICAN STATE PAPERS. February, 1887. Repeal of exemption clause. Infamous wrongs com mitted. Guarantees of Constitu tion. Equal pro tection to all. SPEECH OF SENATOR CROCKETT.1 In the Senate of the State of Arkansas. Sir, I take shame to myself as a member of the General Assembly of 1885, which repealed the act of religious protection which this bill is intended to restore. It was hasty and ill-advised legislation, and, like all such, has been only productive of oppressive persecution upon many of our best citizens, and of shame to the fair fame of our young and glorious State. Wrong in conception, it has proved infamous in execution, and under it such ill deeds and foul oppressions have been perpetrated upon an inoffen sive class of free American citizens in Arkansas, for conscience' sake, as should mantle the cheek of every lover of his State and country with indignant shame. For nearly half a century, the laws of our State, constitutional and statutory, were in accord with our national Constitution, in guaranteeing to every citizen the right to worship God in the manner prescribed by his own conscience, and that alone. The noble patriots who framed our nation's fundamental law, with the wisdom taught by the history of disastrous results in other nations from joining church and state, and fully alive to so great a danger to our republican institutions and their perpetuity, so wisely con structed that safeguard of our American liberties, that for forty years after its ratification there was no effort to interfere with its grand principle of equal protec tion to all, in the full enjoyment and exercise of their religious convictions. Then petitions began to pour 1 A speech by Senator Robert H. Crockett, grandson of Hon. David Crockett, in behalf of a bill introduced into the Legislature, granting immunity to Sabbatarians from the penalties inflicted for working upon Sunday. See " Weekly Arkansas Gazette," February 10, 1887. PLEA FOR SABBATARIANS. 209 in from the New England States upon the United States Senate " to prevent the carrying and delivery of the mails upon Sunday" — which they declared was set aside by " divine authority as a day to be kept holy." The petitions were referred to the committee on postal matters, and the report was made by Hon. Richard M. Johnson, one of the fathers of the Demo cratic party. I quote the following from that report,1 which was adopted unanimously, and " committee discharged : " "Among all the religious persecutions with which almost every page of modern history is stained, no victim ever suffered but for violation of what govern ment denominated the law of God. To prevent a similar train of evils in this country, the Constitution has withheld the power of defining the divine law. It is a right reserved to each citizen. And while he re spects the rights of others, he cannot be held amena ble to any human tribunal for his conclusions. . . . The obligation of the government is the same on both these classes [Sabbatarians and Sunday-keepers]; and the committee can discover no principle on which the claims of one should be more respected than those of the other, unless it be admitted that the consciences of the minority are less sacred than those of the ma jority." Listen to that last sentence — but again I quote: " What other nations call religious toleration, we call religious rights. They are not exercised in virtue of governmental indulgence, but as rights, of which government cannot deprive any of its citizens, how ever small. Despotic power may invade these rights, but justice still confirms them." And again : Attempt to modify American institutions. Petitions referred. Religious persecutions of the past. Interference in religion, un constitutional. All equal before the law. American principle is rights — not merely toler ation. Rights inalienable. 1 For this report in full, see onte page 89, et seq. 14 210 AMERICAN STATE PAPERS. A single religious de cision uncon stitutional. Force in religious matters un- American. Resources of Arkansas. Immigra tion. " Let the national Legislature once perform an act which involves the decision of a religious contro versy, and* it will have passed its legitimate bounds. The precedent will then be established, and the foun dation laid, for the usurpation of the divine preroga tive in this country, which has been the desolating scourge to the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion, for enforcing religious observances." Sir, it was my privilege during the last two years to travel through our north-western States in the interest of immigration. I delivered public lectures upon the material resources of Arkansas, and the inducements held out by her to those who desired homes in a new State. . I told them of her cloudless skies and tropical climes, and bird songs as sweet as vesper chimes. I told them of her mountains and valleys, of her forests of valuable timber, her thou sands of miles of navigable waters, her gushing springs, her broad, flower-decked and grass-carpeted prairies, sleeping in the golden sunshine of unsettled solitude. I told them, sir, of the rich stores of min eral wealth sleeping in the sunless depths of her bosom. I told them of our God-inspired liquor laws, of our " pistol laws," of our exemption laws, and oh, sir! — God forgive me the lie — I told them that our Constitution and laws protected all men equally in the enjoyment and exercise of their religious convictions. I told them that the sectional feeling engendered by ¦ the war was a thing of the past, and that her citizens, through me, cordially invited them to come and share this glorious land with us, and aid us to develop it. Many came and settled up our wild lands and prairies, and where but a few years ago were heard in the stillness of the night the howl of the wolf, the scream of the panther, and the wail of the wildcat, these people for whom I am pleading, came and PLEA FOR SABBATARIANS. 211 settled; — and behold the change! Instead of the Prosperity ' & of State. savage sounds incident to the wilderness, now are heard the tap, tap, tap, of the mechanic's hammer, the rattle and roar of the railroad, the busy hum of industry, and softer, sweeter far than all these, is heard the music of the church bells as they ring in silvery chimes across the prairies and valleys, and are echoed back from the hill-sides throughout the bor ders of our whole State. These people are, many of them, Seventh-day Many a • r. i i t-» rrt immigrants Adventists and Seventh-day Baptists. 1 hey are s.ibbatarians. people who religiously and conscientiously keep Sat urday, the seventh day, as the Sabbath, in accordance with the fourth commandment. They find no au thority in the Scripture for keeping Sunday, the first day of the week, nor can any one else. All com mentators agree that Saturday is and was the script ural Sabbath, and that the keeping of Sunday, the first day of the week, as the Sabbath, is of human origin, and not by divine injunction. The Catholic writers and all theologians agree in this. These people understand the decalogue to be fully Moral law • i i i i i i i still considered as binding upon them to-day as when handed down binding. amid the thunders of Sinai. They do not feel at liberty to abstain from their usual avocations, be cause they read the commandment, " Six days shalt thou labor," as mandatory, and they believe that they have no more right to abstain from labor on the first day of the week than they have to neglect the observance of Saturday as their Sabbath. They agree with their Christian brethren of other denom- character- mations in all essential points of doctrine, the one batarians. great difference being upon the day to be kept as the Sabbath. They follow no avocations tending to de moralize the community in which they live. They came among us expecting the same protection in the exercise of their religious faith as is accorded to them 212 AMERICAN STATE PAPERS. Persecution in Arkansas. Operations of Sunday laws. in all the States of Europe, in South Africa, Au stralia, the Sandwich Islands, and every State in the Union except, alas ! that I should say it, Arkansas ! Sir, under the existing law, there have been in Ar kansas, within the last two years, three times as many cases of persecution for conscience' sake1 as there have been in all the other States combined since the adoption of our national Constitution. Let me, sir, illustrate the operation of the present law by one or two examples. A Mr. Swearingen came from a Northern State and settled a farm in Benton county. His farm was four miles from town, and far away from any house of religious worship. He was a member of the Seventh-day Adventist Church, and after having sacredly observed the Sab bath of his people (Saturday) by abstaining from all secular work, he and his son, a lad of seventeen, on the first day of the week went quietly about their usual avocations. They disturbed no one — inter fered with the rights of no one. But they were 1 For a summary of more than twenty of these cases, see A. T. Jones's pamphlet, "Civil Government and Religion," page 114 et seq., published by the "American Sentinel," 43 Bond street, New York City. But the Senator overlooked the fact that similar outrages had been perpetrated in Tennessee and elsewhere. The truth is, that religious persecution goes hand -in hand with religious legislation. During the Prosecutions past few years, since the Sunday-law agitation has been revived, Sabbata rians have been prosecuted in several of the States, among them Ten nessee, Arkansas, Georgia, Massachusetts, and Pennsylvania. In the Nashville "Daily American" of October 19, 1886, we read: ' ' The readers of the ' American ' are aware that three of the members of the Seventh-day Adventists are lying in jail at Paris [Tennessee] for carrying out the principles of their faith concerning the Sabbath of the decalogue." Two of these Christians contracted a fever from the filthy, sickening cells, and on account of this they were released under promise of returning when they recovered. One of them, in order to have paid his fine and costs in jail, at the rate fixed by law, would have been con fined two hundred eighty days, or over three fourths of a year ; and all this simply because he acted contrary to the religious belief of some one else ! In a Georgia jail a Sabbatarian contracted a fever from which he died. in various States. Tennessee Adventistsin jail. PLEA FOR SABBATARIANS. 213 observed, and reported to the grand jury — indicted, Adventists j • i , ,- * fined and arrested, tried, convicted, fined; and having no senttojaii. money to pay the fine, these moral Christian citizens of Arkansas were dragged to the county jail and imprisoned like felons for twenty-five days — and for christians , . imprisoned what? For daring in this so-called land of liberty, like felons. in the year of our Lord 1887, to worship God ! Was this the end of the story ? Alas, no, sir ! They were turned out ; and the old man's only horse, oid man's 1 - 1 , ¦ . ,_..,.,, horse sold. his sole reliance to make bread for his children, was levied on to pay the fine and costs, amounting to thirty-eight dollars. The horse sold at auction for twenty-seven dollars. A few days afterward the sheriff came again, and demanded thirty-six dollars, — eleven dollars balance due on fine and costs, and twenty-five dollars for board for himself and son while in jail. And when the poor old man — a Chris tian, mind you — told him with tears that he had no His only . • cow levied on, money, he promptly levied on his only cow, but was persuaded to accept bond, and the amount was paid t Helped A r c by friends. by contributions from his friends of the same faith. Sir, my heart swells to bursting with indignation as I repeat to you the infamous story. On next Monday, at Malvern, six as honest, good, Continua tion of prose- and virtuous citizens as live in Arkansas are to be cution. tried as criminals for daring to worship God in accordance with the dictates of their own consciences, for exercising a right which this government, under the Constitution, has no power to abridge. Sir, I plead, in the name of justice, in the name of our pieafor ,,. ... . r rr Sabbatarians. republican institutions, in the name of these inoffen sive, God-fearing, God-serving people, our fellow- citizens, and last, sir, in the name of Arkansas, I plead that this bill may pass, and this one foul blot be wiped from the escutcheon of our glorious com monwealth. 214 AMERICAN STATE PAPERS. Feb. j8. 18 SUNDAY LEGISLATION. Reasons. Submitted to the House Committee on the District of Columbia, February 18, 1890.1 To the Honorable, the Committee on the District of Columbia: GENTLEMEN : In submitting to you this brief, as a statement of some of the considerations why you are Unfavorable asked to report unfavorably upon House bill 3854, en- Sundaybiii titled, "A bill to prevent persons from being forced requested. r r b to labor on Sunday," your attention is called to these propositions : I. The legislation asked is unconstitutional, and contrary to the spirit of American institutions. 2. Waiving the question of unconstitutionality, Sunday laws already exist, in force and enforceable, in the District of Columbia, and the measure is one of cumulative legislation. Article first of the amendments to the Constitu tion declares that " Congress shall make no law re specting an establishment of religion." House bill 3854 embodies a measure which Con gress is asked to adopt, as a law governing the Dis trict of Columbia over which Congress has sole juris diction. Therefore, if this measure has in view the establishment of the observance of a religious dogma, or the enforcement of religious reverence for a par ticular day, because of the supposed divine origin of the observance required, or because a larger or smaller proportion of citizens observe the day relig- Reiigious iously, it is a religious measure, outside the pale of legislation ...,.,. , „ . . r foreign to civil legislation, and Congress is incompetent to en- Congress. tertain it. Bill is un constitutional. 1 A brief upon the proposed Sunday law for the District of Columbia, submitted by Attorney W. H. Mc Kee of Washington. SUNDAY LEGISLATION. 215 Three points of internal evidence prove the bill to Evidence of i 1 • • * . • .... nature of bill. be religious in its inception and in its intent : First, The word "secular," in the phrase "to per- Religious L r features of form any secular labor or business," betrays the rev- Sunday bin. erential spirit in which the bill is framed. The in congruity of the word, in such a connection, in a purely civil statute, will be perfectly patent if applied to a supposed measure, "To prevent persons from being forced to labor on the Fourth of July," or, "To prevent persons from being forced to labor on the twenty-second of February." The various antonyms — regular, religious, monastic, spiritual, clerical — of the word " secular," show the character which this term gives to the bill, and unavoidably. No stronger strong • i 'i ii • evidence. circumstantial evidence could possibly be required than the unconscious testimony of this expression. Second, The words " except works of necessity or its excep tions prove mercy" are subject, in a lesser degree, to the same its nature. construction. The character of phrases as well as of human beings, may be determined by the company they keep, and this phrase is one which carries the mind immediately to the consideration of religious and Biblical exceptions made to the strict application of the divine law for the Sabbath. That is the source of the expression, and its course may be followed through all the religious laws for " Sabbath observ ance," and the judicial interpretation of them, which have been had. The effect of this phrase, in connec tion with the preceding word " secular," is conclusive. E™Jjj°« Third, The exemption clause contains the lan guage, " who conscientiously believe in and observe any other day." What has a purely civil statute to Further J J . evidence. do with the conscience of man, as regards his consci entious belief in, and observance of, a day of rest ? The moment the domain of conscience is touched, as such, from that instant the measure is no longer civil. And if, as this exemption shows, there be a class 216 AMERICAN STATE PAPERS. Logic of exemptions. Presupposi tion of an exemptionclause. Bill not tn purview of congressional legislation. Heredity of Sunday bill. Blair Sun day bill its progenitor. Object of Blair bill. New title of Blair bill. to whose conscience this bill would work a hardship, and to whose religious convictions it would stand opposed, then, per contra, there is another class the consciences of whom the measure is intended to favor. It is, therefore, not only legislation on matters of conscience, but class legislation as well. More than this : What does an exemption clause presuppose ? Is it not a civil or legal incapacity to meet the requirements of the law? If the incapacity arise within the domain of conscience, it is without the civil sphere, and the necessary conclusion is that the legislation is outside the jurisdiction of human law. These three points might be elaborated further, but this statement of them is sufficient to show that the bill bears within itself conclusive evidence of its religious character ; and if religious, it is not within the purview of congressional legislation, as contem plated by the Constitution. In measures, as in men, there is an ancestral spirit by which we may know them. What is the heredity of this bill ? Its progenitor in the Senate is the Blair Sunday-rest bill, which, on its first introduction in the Senate of the fiftieth Congress, was plainly en titled, " A bill to secure to the people the enjoyment of the first day of the week, commonly known as the Lord's day, as a day of rest, and to promote its ob servance as a day of religious worship ; " and in the fifty-first Congress it is called, " A bill to secure to the people the privileges of rest and of religious wor ship, free from disturbance by others, on the first day of the week." The body of the two bills is the same, except that the incongruous nomenclature in the first has been harmonized in the second, and " first day," " Lord's day," and " Sabbath," made to read, " first day " and " Sunday." Although in the last section of the former bill the expression " religious observance of the Sabbath day" is omitted, in the second, a neu- SUNDAY LEGISLATION. 2l7 trality clause, for it is nothing else, is inserted, which Neutrality declares that " this act shall not be construed to pro hibit or sanction labor on Sunday, by individuals who conscientiously believe in and keep any other day as the Sabbath," etc. It is the same bill resurrected, and attempts the mingling of incongruous elements incongruity which cannot be assimilated, — the Sabbath which is bin."" divine, and the Sunday which is human ; Sabbath of the moral law, Sunday of the civil law ; Sabbath of the Lord thy God, Sunday a religious day by the enactment of Constantine, and a dies non in the stat utory nomenclature of the civil law. The very next branch of this family tree is en- Another ¦ 1 a - religious bilL titled, "An act to punish blasphemers, swearers, drunkards, and Sabbath-breakers," which is openly a religious law. See " Laws of the District of Colum bia, 1868," pages 136, 137, 138. The family likeness of these three measures, the old Maryland law adopted into the statutes of the District, the Blair Sunday- rest bill, and the Breckinridge local Sunday bill, is unmistakable, and if the original from which the latter two are derived is a religious law, the two descendants certainly must be. But in the bill before this committee there has been an attempt to separate the civil from the relig ious, and the claim is made that this measure is claims consistently for a " civil Sunday." In making good this claim, what is it necessary to show ? It is necessary to show that the legislative and public mind has been entirely divested of the popular idea that Sunday is a day to which a due religious observ ance is to be paid. Both those who make the law, and those who are subject to it, must be shown to have placed themselves exactly in the mental position of the civilian whose mind has never harbored the thought of the sacredness of one day above another. Then no other legislative restrictions would be at- made. 218 AMERICAN STATE PAPERS. How its religiouscharacter is manifested. Origin of Sunday observance. Its adop tion by Chris tianity. Character of Sunday. tempted to be placed upon Sunday than could be enacted for Monday, or Tuesday, or any succeeding day of the week. But read this bill, 3854, and insert for the word " Sunday " the name of a different day of the week, and consider how quickly the sense of the people would reject it. Its propriety as a civil measure would be instantly denied. What should give it a different complexion when it contains the word "Sunday" ? What is the magic "presto change" in that name ? It is the religious association ; the fact that the consciences of many men for many gen erations have been trained to reverence Sunday as the holy day of God. Sunday was first a holiday, dedicated as such to the sun and its worship. So that in its inception it was a day the observance of. which was based upon a religious idea ; in the accommodation of the forms and observances of the pagan and Christian churches, which, for the sake of temporal power and success, was brought about in the reign of Constantine, the church found it politic, from the point of view which then prevailed, to adopt the pagan holiday, and did so, consecrating it anew, with all the sacredness of the religious forms and beliefs of the church, trans ferring to it the awful sanctity involved in the com mandment of God, " Remember the Sabbath day to keep it holy," and adding to that all the holy senti ment which can be invoked for a day commemorative of the resurrection of our Saviour. Thus cumulatively religious is the history of this day. The religious idea has never been separated from it. No enforcement of its observance, distinct ively from other days, can be divorced from that inbred religious idea, any more than the physical and moral characteristics of the father and mother can be eliminated from the child. This child of the church and a religious holiday ("the venerable day of the SUNDAY LEGISLATION. 219 sun") is, by birth, by inheritance, and by unbroken Sunday a . , . , , . . religious day. habit throughout its existence, a religious day — nothing else. Congressmen are here to crystallize into law the sphere of hi • ft .,,*., . ^n. the legislator. lghest expression of the will of the people. The expression of the civilian will, must result in civil law. You are here to make civil law then, are you not, not moral law ? Why can you not make moral law for the people ? Because you cannot exceed the powers which the people had to give you, who constituted you legislators. And as they had no power to make a rule of moral action one for the other, or for themselves, therefore they had no author ity to delegate such power to you. If, then, you cannot, in your own minds, and in . There- ' hgious idea the minds of the people, both in theory and in fact, inseparable L x J from the day. divorce completely — as utterly as though it had never existed — the religious idea from the concept Sunday, you have no right to legislate upon the use of that day as distinguished from any other day. Those who are asking for the passage of this bill, are urging the members to commit themselves to an unconstitutional act. Sunday laws, and the whole line of religious legis- Sunday lation which goes in the same category, are alien to American. the letter of American fundamental law and to the spirit of American institutions. They are a survival Survival r -'of the Eng- of the English church establishment, and should not lish church. have existed after the Declaration of Independence and the adoption of the Constitution any more than the laws governing the control of livings, and the maintenance of the Church of England. They have rightly no more place in our statutes than have laws for the regulation of the royal succession. But the legal and judicial indolence of bar and supported . . by precedent, bench has permitted this alien brood an entrance notbyprin- x ciple. into our statute-books through precedent and not 220 AMERICAN STATE PAPERS. Purpose of the gov ernment. Absolute rights of citizen. Right to time in alienable. His neigh bor cannot take it. Nor can such power be delegated. principle. And the precedent can be relied upon, in every case, to prove its principle wrong. A clause of article fourteen of the amendments to the Constitution says that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" but, when " legislating for the District of Columbia, Con gress is bound by the prohibitions of the Constitu tions ; " and, as otherwise expressed, it is the purpose of this government to defend the personal rights and privileges of all its citizens, that, as the preamble states, the blessings of liberty may be secured to ourselves and to our posterity. Yet suppose for a moment that you are able to divest yourselves of the religious heredity acquired since your ancestors first heard Sunday preached, and you proceed upon a civil basis entirely. How far may you, as legislators, proceed in this special legislation without trenching upon individual and absolute rights ? To determine that, let us go back again to the source from which legislative authority is derived, — the people. A citizen .holds the right and title to his life in fee-simple. Of what is a man's life composed ? Threescore years and ten, no more, if by reason of strength he may attain to it. In other words, it is time — that is the stuff of which the web of his life is woven. That time is his, possessed by him in indefeasible right. May he take, civilly, one seventh of his neighbor's time, ten years of his life ? May his neighbor take one seventh of his life, ten years of his time, and devote it to any purpose whatever ? If not, then have they the right to delegate to you the power to take away one seventh of the life-time of all the people ? For, if it be true that they have that right, and may therefore give it to you, then the representative of the Knights of Labor who spoke at the late Sunday convention at Washington, was SUNDAY LEGISLATION. 221 on the right track when he said, " We go farther than Logical con- . , i i ¦ , ,-. sequence of you, and demand two days in the week, Saturday for Sunday-iaw play and Sunday for rest ;" and it may properly be made a penal offense to labor on Saturday and Sun day ; and if for two days, then for three, four, five, six, seven ; and the state may properly dictate what shall be the works of necessity and mercy permissible for any and all days of the week. Then a man's life-time is not his, but has been absorbed into the being of a vampire of his own creation. If this can be so, what then becomes of the "inalienable rights" of " life, liberty, and the pursuit of happiness," which the Declaration of Independence asserts ? It is, therefore, by the inexorable logic of their Logic com- . . till • pe's Sunday- position that those who are promoting the passage law advocates to renounce of Sunday laws are compelled to deny the soundness American principles. !The logic is this : the right to punish for transgressions of God's law American inheres in God alone ; that right exists in no human being ; therefore, if ' eory' governments derive their just powers from the consent of the governed, — the people,— then, necessarily, governments have no right to punish for violation of the law of God. But, on the other hand, if the advocates of Sunday laws can get the people to accept their theory, — that govern- Church and ments derive their just powers directly from God, — then the state is to s e ' eory' decide just how far it is to enforce the law of God. This is the object they have in view. For all history proves that the state will in the course of time decide just what the logic of the position demands, that it is its prerogative to settle all points of morality and religious faith. The present Sunday agitation is simply a step — but a very serious Nature one — toward supplanting our American institutions with the despotic J,ov°^eany[, church and state institutions from which all of our present Sunday laws descend. And as a result of the spirit of liberty implanted in our patriotic forefathers by birth, watered by the Revolution, and matured under the influence of the greatest statesmen and philosophers of the age, all religious laws received a set-back from which they have never recov ered. Sunday legislation was demanded sixty years ago. The report of Former the House committee, however, was not only adverse, but condemnatory mu0"e^e, in the extreme. The danger of religious legislation was fully realized. The report said: "It is perhaps fortunate for our country that the proposition should have been made at this early period while the spirit of the Revolution yet exists in full vigor.'' But how is it now ? Has that spirit so far disappeared that religious laws will now be enacted ? movement 222 AMERICAN STATE PAPERS. American principles. Statement of a Sunday- law divine. Colonel Shepard'sassertion. Position of Sunday-law advocates. Authority of our gov ernment. of the foundation principles of our government, "All men are created equal," and, "Government derives its just powers from the consent of the gov erned," declaring them to be untrue and dangerous doctrines. At a joint convention of the Sabbath Union and National Reform Association, held at Sedalia, Missouri, last summer, Rev. W. D. Gray said, in open convention, " I do not believe that governments derive their just powers from the con sent of the governed, and so the object of this move ment is an effort to change that feature of our fundamental law." The assent of the convention to these views was shown by the election of Mr. Gray to the secretaryship of the permanent State organiza tion. Colonel Elliott F. Shepard, president of the American Sabbath Union, in a speech made at Chau tauqua last summer, said : " Governments do not derive their just powers from the consent of the governed. God is the only lawgiver. His laws are made clear and plain in his word, so that all nations may know what are the laws which God ordained to be kept." These open statements show that the Sabbath Union and National Reform Association are, by the utterances of their representative men, traitors at heart. They unblushingly declare their disrespect for the principles of the Declaration of Independ ence, as a preliminary to the request to Congress for the passage of laws in violation of the Constitution. They are at enmity with the Declaration and Con stitution because they desire to ignore rights which the one specifies and the other secures to the people. In this nation every individual is subject to the government, and this government derives its author ity from no foreign power. The just powers of this government, then, if not from the governed, must be derived directly from God. We can understand how that the people express their highest civil concep- SUNDAY LEGISLATION. 223 tions in voicing human law; but if there be no who is God's vice- human law, and all law is the expression of the per- g«ent! fection of God, what medium shall give voice to it ? Upon this point hear Rev. W. F. Crafts, secretary of the American Sabbath Union, in the convention lately held in the city of Washington. The following is verbatim : " Mr. Hamlin : Is it proposed that an end should Questions arising. be put to the running of the street-cars on Sunday ? " MR. Crafts : Well, whatever the law may be, I suppose the consciences of the people, and the offi cers, will carry out the law ; otherwise, I suppose the citizens will form a law and order league, to aid in the enforcement of the law ; for, even independent of police, local influence, a law and order league is useful in connection with the officers. As to news papers and street-cars, these would come either under 'secular work' or 'works of necessity and mercy,' and that is a matter of interpretation by the courts. . . . But the question of horse-cars and newspapers will undoubtedly be discussed by the Tobede- sr L~ J J cided by the courts, and something will either be put into the law courts- or decided by the courts shortly after the law is passed." See also " Notes of Hearing," before the Senate Committee (of the fiftieth Congress) on Education and Labor, on the joint resolution (Senate resolution 86) proposing an amendment to the Constitution of the United States, respecting establishments of re ligion and free public schools, page 90 : " SENATOR PAYNE : Let me inquire whether Another L question. Unitarianism is within the principles of the Christian religion. . . . Is not Unitarianism a direct denial of the divinity of Christ and the Christian church ? and is that to be prohibited, or is it to be allowed ? "The Chairman: The court would have to .J°t>edr cided by the settle that wherever the question was raised." courts- 224 AMERICAN STATE PAPERS. Religious questions to be decided. Question brought up before. Decided adversely. Present laws Df District. There is, then, no controversy but that these questions raised by this line of legislation must come before the courts for adjudication. If this is to be " the American Sabbath," and these the necessary measures for its " preservation," who will be the "American god" — Jehovah? the courts? or the the ological instructors behind the bench ? This is not a new subject in the committee-rooms of Congress. The twentieth Congress was largely petitioned for the stoppage of Sunday mails, and it was then said that " these petitions did in fact call upon Congress to settle -what was the law of God." The measure was reported upon adversely, the Sen ate concurring. See " Register of Debates in Con gress," volume v, page 43, and " Abridgments of Debates of Congress," volume x, page 232. The report of Mr. Johnson of Kentucky, from the Senate Committee on Post-offices and Post-roads, to whom these petitions had been referred, is germane to the present issue. It is submitted that the committee of the District of Columbia would in this instance be justified in presenting a similar report on House resolution 3854, on similar ground. As to the point that the District of Columbia already has Sunday laws in force and enforceable, see "Laws of the District of Columbia, 1868," page 137, sections 10 and 1 1 (re-adopted in 1874). Section 92, page 9, of the " Revised Statutes of the District of Columbia," says : "The laws of the State of Mary land, not inconsistent with this title, as the same existed on the twenty-seventh day of February, 1801, except as since modified or repealed, continue in force within the District." The authority so to legis late is shown in " Laws of Maryland, 1791 " (1 Dorsey, page 269, chapter 45, section 2), in connection with the clause in section 8, article 1, of the Constitution of the United States, where, in citing the powers of SUNDAY LEGISLATION. 225 Congress, it says : " To exercise exclusive legislation Powers 111 °f Congress. m all cases whatsoever over such district (not ex ceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of government of the United States," etc. The District being thus under the jurisdiction of Congress, and the Maryland law adopted, the " Re vised Statutes of the District of Columbia" (section 1049, page 122) determines what court has jurisdic- Counhav- r ing jurisdic tion of cases coming under this law. It is there tion- found to be the police court, and section 1054, same page, provides that "the court may enforce any of its judgments or sentences, by fine or imprisonment, or both." Therefore, although the penalty affixed to the Maryland law may have become obsolete or difficult of determination, authority is lodged in the court having jurisdiction to affix its penalty by "fine or imprisonment, or both ; " and in evidence of the fact that the law survives, although the penalty may become obsolete, see " United States v. Royall, 3 Cranch, Circuit Court Reports," pages 620-25. If Congress ever had the power to adopt such a law, the Maryland Sunday law of 1723 is still in force and enforceable in the District of Columbia, and to adopt another would be simply cumulative legislation. But, on the other hand, if it be true that, when " legislating for the District of Columbia, Congress is bound by the prohibitions of the Constitution" (see United States v. More, 3 Cranch, 160), and Con gress never rightfully adopted this law into the stat utes of the District, then Congress would be guilty To pass bin 1 would be of cumulative unconstitutionality in passing the law cumulative J l b unconstitu- contemplated in House resolution 3854. tionaiity. Respectfully submitted, W. H. McKEE, For the National Religious Liberty Association. 226 AMERICAN STATE PAPERS. SUPREME COURT OF WISCONSIN. DECISION AGAINST THE READING OF THE BIBLE IN THE PUBLIC SCHOOLS.1 New York " Independent." Approval of decision. Opinions delivered. Statement of case. Summary of points decided. Reading of Bible sectarianinstruction. We have read, with hearty approval, the opinions recently delivered in the Supreme Court of Wisconsin in regard to the question of the Birjle in the public schools of that State, the full text of which has been published in. the Albany "Law Journal." This reading only confirms our opinion of this decision, as heretofore expressed. Mr. Justice Lyon delivered the opinion of the court, and Messrs. Justices Cassody and Orton delivered concurring opinions. The case before the court was that of a petition for a mandamus, commanding the School Board in the city of Edgerton to cause the teachers in one of the public schools of that city to discontinue the practice of reading, during school-hours, portions of King James's Version of the Bible. The petitioners for the mandamus were residents and tax-payers in Edgerton, and presumptively Catholics in their religious faith, although this fact is not stated in these deliverances. They complained of the practice above referred to. ' This petition brought squarely before the court the question whether such a practice is consistent with the Constitution of the State of Wis consin ; and this question the court unanimously answered in the nega tive. And that our readers may the better understand the case, we submit in the following order the several points decided : I. The first point is the construction of article x, section 3, of the Constitution of the State, which declares that " the Legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable, and such schools shall be free and without charge for tuition to all children between the ages of four and twenty years, and no sectarian instruction shall be allowed therein." The court held that the reading of King James's Version of the Bible in the public schools of the State during school-hours is "sectarian in struction ' ' within the meaning of this constitutional prohibition, and Favorable reception of decision. 1 The favor with which this decision of the Wisconsin Supreme Court is received by the public, by liberal Christians as well as by unbelievers, is well expressed in the comments on and summary of the case by the New York "Independent," the leading religious journal of the country. The summary is inserted prefatorial to the opinion of Mr. Justice Orton following. The editorial appeared in the "Independent" of July 19, 1890, and expresses the views of the most careful thinkers. THE BIBLE IN PUBLIC SCHOOLS. 227 hence inconsistent therewith. Mr. Justice Lyon said that the prohibition Constitution "manifestly refers exclusively to instruction in religious doctrines," and construed- in such doctrines as " are believed by some religious sects and rejected by others." The court took judicial knowledge of the fact that King James's Version of the Bible is not accepted and used by all "religious sects " in Wisconsin, but is accepted by some of these sects and rejected by others. Hence, as between them, all having the same constitutional rights, the court held that version to be a "sectarian" book, and the reading of it in the manner and for the purpose set forth in the com plaint to be forbidden by the Constitution of the State. How any other conclusion could have been drawn from the premises, Correctness we are not able to see. We presume that there is not a Protestant in Wisconsin who would hesitate a moment on the point, if the book read had been the Douay Version of the Bible, which is acceptable to Catho lics, or the Koran, or the Book of Mormon. The reading of such a book as a part of school exercises, whether for worship or religious in struction, would be offensive to Protestants, and they would have good cause for complaint, just as the reading of King James's Version, which is sometimes called the Protestant Bible, is offensive to Catholics. It should not be forgotten that, under the Constitution of Wisconsin, Catholics and Protestants have on this subject precisely the same rights, Equality of and that neither can claim any precedence over the other. The Consti- Protestants."1 tution of that State makes no distinction between them, and determines no question relating to their differences, or any other religious differ ences. It deals with all the people simply as citizens, no matter what may be their religious tenets, or whether they have any such tenets. 2. The second point decided is that "the practice of reading the Bible in such schools can receive no sanction, from the fact that pupils are not compelled to remain in the school while it is being read." On this point we quote, as follows, the language of Mr. Justice Lyon : "When, as in this case, a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, par ticularly when such cause is apparent hostility to the Bible, which a majority of the pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy Tendency the equality of the pupils, which the Constitution seeks to establish and equauty.y protect, and puts a portion of them at a serious disadvantage in many ways with respect to the others." The plain fact is that not to compel the attendance upon such reading, Argument of the children of parents who object to it, for the sake of continuing ceded. the reading, is a virtual confession that the reading has a "sectarian" character, as between those who desire it and those who object to it. It is merely an attempt to get round what is apparent on the face of the case. 228 AMERICAN STATE PAPERS. Heading of Bible an act of worship. State money expended for religiousinstruction. Conclusions sound. Sacred things should be left in sacred hands. 3. The third point decided is that "the reading of the Bible is an act of worship, as that term is defined in the Constitution ; and, hence, the tax-payers of any district who are compelled to contribute to the erection and support of common schools, have the right to object to the reading of the Bible, under the Constitution of Wisconsin, article I, section 18, clause 2, declaring that no man shall be compelled to . . . erect or support any place of worship." This provision is in what is called the "Declaration of Rights." The opinion delivered by Mr. Justice Cassody on this point is, to our understanding, clear and con clusive. Bible-reading in public schools has the form and intention of religious worship ; and this being the fact, then to compel the people by taxation to erect and support public schools in which such reading is a practice, is to compel them by law to erect and support places of wor ship. The fact that these places are also used for other purposes does not relieve the difficulty. The Constitution expressly declares that the people shall not " be compelled to erect any place " that is used for the purpose of worship. To tax a man to erect and support a public school, and then to introduce the element of religious worship into that school, is to make a combination which the Constitution forbids. 4. The fourth point decided is that, " as the reading of the Bible at stated times in a common school is religious instruction, the money drawn from the State treasury in support of such school is 'for the benefit of a religious seminary,' within the meaning of the Constitution of Wisconsin, article 1, section 18, clause 4, prohibiting such an appro priation of the funds of the State." The design of the clause referred to is to prevent the State from using the public funds to defray the ex penses of religious instruction ; and this design is frustrated just as really when these funds are used to support common schools in which such instruction is given, as it would be if these funds were used to support "religious societies or religious or theological seminaries." Mr. Justice Cassody, in his opinion, sets forth this point very clearly. We have thus given the pith of the argument on this subject as stated by the three justices of the Supreme Court of Wisconsin. We see no escape from the conclusion reached, and have no desire to escape it, since we thoroughly believe in its correctness everywhere. To the argument that "the exclusion of Bible-reading from the district schools is derogatory to the value of the Holy Scriptures, a blow to their influ ence upon the conduct and consciences of men, and disastrous to the cause of religion," Mr. Justice Lyon thus replied : "We most emphatically reject these views. The priceless truths of the Bible are best taught to our youth in the church, the Sabbath and parochial schools, the social religious meetings, and above all by parents in the home circle. There those truths may be explained and enforced, the spiritual welfare of the child guarded and protected, and his spiritual nature directed and cultivated, in accordance with the dictates of the parental conscience. The Constitution does not interfere with such THE BIBLE IN PUBLIC SCHOOLS. 229 teaching and culture. It only banishes theological polemics from the Constitution district schools. It does this, not because of any hostility to religion, f*n from^tate" but because the people who adopted it believed that the public good schools only. would thereby be promoted, and they_ so declared in the preamble. Religion teaches obedience to law, and flourishes best where good gov ernment prevails. The constitutional prohibition was adopted in the interests of good government, and it argues but little faith in the vital ity and power of religion, to predict disaster to its progress because a constitutional provision, enacted for such a purpose, is faithfully executed." The doctrine of the Constitution of Wisconsin, as thus settled by the The true Supreme Court of that State, is, in our judgment, the true doctrine for every State in the Union. It remits the question of religious instruction, as to what it shall be, as to the agency giving it, and as to the cost thereof, to voluntary private and individual effort, and devotes the pub lic school, created and regulated by law, and supported by a general taxation of the people, exclusively to secular education. This principle is in harmony with the nature and structure of our political institutions, and is, moreover, just and equitable as between religious sects. It favors no one of them, and proscribes no one of them ; and, while it leaves All religious them all free to propagate their religious beliefs in their own way, and equai. at their own expense, it gives to the whole people, at the cost of the whole, a system of popular education that is certainly good as far as it goes, and is all that the State can give, without itself becoming a relig ious propagandist. Catholics and Protestants alike ought to be satisfied with it. There is no other basis on which the school question can be Only just justly settled as between different religious sects. OPINION BY JUSTICE H. S. ORTON. I most fully and cordially concur in the decision, Decision concurred in. and in the opinions of Justices Lyon and Cassody, in this case. It is not needful that any other opinion should be written, but I thought it proper to state briefly some of the reasons which have induced such concurrence in the decision. " The right of every man to worship Almighty Provisions of ° J l Constitution. God according to the dictates of his own conscience, shall never be infringed ; nor shall any man be com pelled to attend, erect, or support any place of wor ship, . . . nor shall any control or interference with the rights of conscience be permitted, or any 230 AMERICAN STATE PAPERS. Provisions of Constitution. Sectarian instruction not allowed. Complete separation of the State from religion. Complete protection to all. preference be given by law to any religious establish ments or modes of worship." Constitution, article I, section 18. " No religious test shall ever be required as a quali fication for any office of public trust under the State, and no person shall be rendered incompetent to give evidence in any court of law or equity, in conse quence of his opinions on the subject of religion." Constitution, article i, section 19. "The interest of 'the school fund,' and all other revenues derived from the school lands, shall be ex clusively applied," etc., " to the support and mainte nance of common schools in each school-district," etc. Article 10, section 2, subdivision 1. " The Legislature shall provide by law for the establishment of district schools which shall be as nearly uniform as practicable ; and such schools shall be free, and without charge for tuition to all children between the ages of four and twenty years ; and no sectarian instruction shall be allowed therein." Article 10, section 3. " Each town and city shall be required to raise by tax annually, for the support of common schools therein, a sum not less," etc. Article 10, section 4. "Provision shall be made by law, for the distribution of the income of the school fund among the several towns and cities of the State, for the support of com mon schools therein," etc. Article 10, section 5. These provisions of the Constitution are cited to gether to show how completely this State, as a civil government, and all its civil institutions, are divorced from all possible connection or alliance with any and all religions, religious worship, religious establish ments, or modes of worship, and with everything of a religious character or appertaining to religion ; and to show how completely all are protected in their re ligion and rights of conscience, and that no one shall THE BIBLE IN PUBLIC SCHOOLS. 231 ever be taxed or compelled to support any religion Taxes not to 11 J ° be used to pay or place of worship, or to attend upon the same, and forreiigiousteaching. more especially to show that our common schools, as one of the institutions of the State created by the Constitution, stand, in all these respects, like any other institution of the State, completely excluded from all complete separation of possible connection or alliance with religion, or relig- theschoois * b ° from religion. ious worship, or with anything of a religious charac ter, and guarded by the constitutional prohibition that "no sectarian instruction shall be allowed therein." They show also that the common schools are free Our free 11 i-i ii • i- • ii r public schools to all alike, to all nationalities, to all sects of re ligion, to all ranks of society, and to all complexions. For these equal privileges and rights of instruction in them, all are taxed equally and proportionately. The constitutional name, "common schools," ex- Nature , . , . i*i i °f our public presses their equality and universal patronage and schools. support. Common schools are not common, as being low in character or grade, but common to all alike, to everybody and to all sects or denominations of religion, but without bringing religion into them. The common schools, like all the other institutions of the State, are protected by the Constitution from all "con trol or interference with the rights of conscience," and from all preferences given by law to any religious Noprefer- ence to be establishments or modes of worship. As the State shown. can have nothing to do with religion, except to pro tect every one in the enjoyment of his own, so the common schools can have nothing to do with religion, in any respect whatever. They are as completely Schools J x / * J absolutely secular as any of the other institutions of the State, secular. in which all the people, alike, have equal rights and privileges. The people cannot be taxed for religion taAtnimpor' in schools, more than anywhere else. Religious in struction in the common schools, is clearly prohibited by these general clauses of the Constitution, as relig ious instruction or worship in any other department 232 AMERICAN STATE PAPERS. Constitution intended to exclude every thing pertain ing to religion. Principle of taxation. Disastrous effects of state religions. Intolerance manifestedby religious partisans. of State, supported by the revenue derived from taxation. The clause that " no sectarian instruction shall be allowed therein," was inserted ex industria to exclude everything pertaining to religion. They are called by those who wish to have not only relig ion, but their own religion, taught therein, " godless schools." They are godless, and the educational de partment of the government is godless, in the same sense that the executive, legislative, and administra tive departments are godless. So long as our Con stitution remains as it is, no one's religion can be taught in our common schools. By religion, I mean religion as a system, not religion in the sense of nat ural law. Religion in the latter sense is the source of all law and government, justice and truth. Relig ion as a system of belief cannot be taught without offense to those who have their own peculiar views of religion, no more than it can be without offense to the different sects of religion. How can religion, in this sense, be taught in the common schools, without taxing the people for or on account of it. The only object, purpose, or use for taxation by law in this State, must be exclusively secular. There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution and war, and all evil in the State, as religion. Let it once enter into our civil affairs, our government would soon be destroyed. Let it once enter into our common schools, they would be destroyed. Those who made our Constitu tion, saw this, and used the most apt and compre hensive language in it, to prevent such a catastrophe. It is said, If reading the Protestant version of the Bible in school is offensive to the parents of some of the scholars, and antagonistic to their own religious views, their children can retire} They ought not to 1 The intolerance manifested by these religious partisans in Wiscon sin is quite frequently displayed in the speeches and writings of the THE BIBLE IN PUBLIC SCHOOLS. 233 be compelled to go out of the school for such a rea son, for one moment. The suggestion itself concedes the whole argument. That version of the Bible is hostile to the belief of many who are taxed to sup port the common schools, and who have equal rights and privileges in them. It is a source of religious and sectarian strife. That is enough. It violates the letter and spirit of the Constitution. No State Constitution ever existed, that so completely excludes and precludes the possibility of religious strife in the civil affairs of the State, and yet so fully protects all alike in the enjoyment of their own religion. All sects and denominations may teach the people their own doctrines in all proper places. Our Constitution protects all, and favors none. But they must keep out of the common schools and civil affairs. It re quires but little argument to prove that the Protest ant version of the Bible, or any other version of the Bible, is the source of religious strife and opposition, and opposed to the religious belief of many of our Suggestion concedesargument. Violative of constitutionalprovisions. Equality insured. All versions of the Bible sectarian. advocates of religious legislation. Especially is this true of those who are so strenuously working for Sunday laws. Many quotations might be made, but the following sufficiently illustrate the spirit of the movement : Rev. E. B. Graham, an ardent Sunday-law advocate, in an address delivered at York, Nebraska, said : " We might add in all justice, if the opponents of the Bible do not like our government and its Christian features, let them go to some wild, desolate land, and in the name of the devil, and for the sake of the devil, subdue it, and set up a government of their own on infidel and atheistic ideas ; and then, if they can stand it, stay there till they die." " Christian Statesman," May 21, 1885. At a convention in New York City, February 27, 1873, Dr. Jonathan Edwards, in a speech, after saying that Sabbatarians must be classed as, and named, " atheists," continued : " What are the rights of the atheist? I would tolerate him as I would a conspirator. The atheist is a dangerous man. . . . Tolerate atheism, sir ? There is nothing out of hell that I would not tolerate as soon. The atheist may live, as I said, but, God helping us, the taint of his destructive creed shall not defile any of the civil institutions of all this fair land ! Let us repeat : atheism and Christianity are contradictory terms. They are incompatible systems. They cannot dwelt together on the same continent. ' ' Intolerance of advocates of religious legis lation. Intolerant statement of a Sunday-law advocate. Intolerance perfected. 234 AMERICAN STATE PAPERS. Protestant ism a sect. Value of our public schools. A parallel act. Religion needs no state support. Importance of case. Evil results of church and state. people. It is a sectarian book. The Protestants were a very small sect in religion, at one time, and they are a sect yet, to the great Catholic Church against whose usages they protested, and so is their version of the Bible sectarian, as against the Catholic version of it. The common school is one of the most indis pensable, useful, and valuable civil institutions this State has. It is democratic, and free to all alike, in perfect equality, where all the children of our people stand on a common platform, and may enjoy the ben efits of an equal and common education. An enemy to our common schools is an enemy to our State gov ernment. It is the same hostility that would cause any religious denomination, that had acquired the ascendency over all others, to remodel our Constitu tion, and change our government and all of its insti tutions, so as to make them favorable only to itself, and exclude all others from their benefits and protec tion. In such an event, religious and sectarian in struction will be given in all schools. Religion needs no support from the state. It is stronger and much purer without it. This case is important and timely. It brings before the courts a case of the plausible, in sidious, and apparently innocent entrance of religion into our civil affairs, and of an assault upon the most valuable provisions of the Constitution. Those pro visions should be pondered and heeded by all of our people, of all nationalities and of all denominations of religion, who desire the perpetuity and value the blessings of our free government. That such is their meaning and interpretation, no one can doubt, and it requires no citation of authorities to show. It is religion and sectarian instruction that are excluded by them. Morality and good conduct may be incul cated in the common schools, and should be. The connection of church and state corrupts religion, and makes the state despotic. APPENDIX APPENDIX. STATE CONSTITUTIONS. PROVISIONS OF THE CONSTITUTIONS OF THE SEV ERAL STATES GUARANTEEING OR RESTRICT ING LIBERTY OF CONSCIENCE.1 ALABAMA. ARTICLE I. — DECLARATION OF RIGHTS. Ratified Nov. 16, 1875. That no religion shall be established by law ; that no Religious . liberty. preference shall be given by law to any religious sect, society, denomi- Section 4. eference sha nation, or mode of worship ; that no one shall be compelled by law to *The provisions of the State Constitutions which either guarantee or restrict the rights of conscience are here inserted, though in the fundamental laws very few restrictions are made upon the rights of the individual ; and when they are made, they not infrequently manifest their injustice and incompatibility with freedom by being absolutely contradictory to some of the provisions of the declaration of rights. To illustrate: Section 26 of the declaration of rights of the Constitution of Arkansas declares that "no religious test shall ever be required of any person as a disqualifica tion to vote or hold office ; nor shall any person be rendered incompetent to be a wit ness on account of his religious belief ; " and then in article 19, section 1, we find the following: "No person who denies the existence of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court." In other States ministers of the gospel are disqualified from holding any civil office, In some States, also, denominational property is exempted from taxation. The injustice of this in a country professing complete separation of the state and the church is manifest ; for if church property is not taxed, other property must be taxed just that much more. Therefore other property is taxed, though indirectly, to help support all churches or church property which is exempted from taxation. It is not the amount of money paid, but the wrong principle, that should arouse the opposition of the American people to this relic of the ecclesiastical states of Europe. In the State of Vermont the declaration is made that " every sect or denomination of Christians ought to observe the Sabbath, or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God." Thus it is evident that the religio-political ideas of mediaeval Europe have never been fully eradicated from our political institutions ; and absolute religious liberty can never be attained while these state and church clogs are left to impede our national progress. In the arrangement of the Constitutions, the marks ox ellipses are omitted where sections are left out, as the numbering of the sections sufficiently indicates the oittission. Where irrelevant matter has been omitted from sections, the omission is indicated in the usual way, 0371 Restrictions of rights in Constitutions not frequent. Contradic tory provis- Exemption of church property from taxation. Sunday law in Vermont Constitution. 238 AMERICAN STATE PAPERS. Religious liberty. attend any place of worship, nor to pay any tithes, taxes, or other rate, for building or repairing any place of worship, or for maintaining any minister or ministry ; that no religious test shall be required as a qualifi cation to any office or public trust under this State ; and that the civil rights, privileges, and capacities of any citizen shall not be in any man ner affected by his religious principles. ARTICLE XII. — EDUCATION. SECTION 8. No money raised for the support of the public schools Public funds not to be used for sectarian of the State shall be appropriated to or used for the support of any purposes. sectarian or denominational school. Ratified Oct. 13, 1874. ARKANSAS. ARTICLE II. — DECLARATION OF RIGHTS. Class legislationforbidden. Religious liberty. Sectarian preferenceprohibited. Religious tests pro hibited. Rights to be enforced. Section 18. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. Section 24. All men have a natural and indefeasible right to wor ship 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 or manner whatsoever, control or interfere with the right of conscience ; and no preference shall ever be given by law to any religious establishment, denomination, or mode of worship above any other. - Section 25. Religion, morality, and knowledge being essential to good government, the General Assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship. Section 26. No religious test shall ever be required of any person as a qualification to vote or hold office ; nor shall any person be rendered incompetent to be a witness on account of his religious belief ; but noth ing herein shall be construed to dispense with oaths or affirmations. Section 29. This enumeration of rights shall not be construed to deny or disparage others retained by the people ; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that every thing in this article is excepted out of the general powers of the gov ernment, and shall forever remain inviolate ; and that all laws contrary thereto, or to the other provisions herein contained, shall be void. Religious test. ARTICLE XIX. — MISCELLANEOUS PROVISIONS. Section 1. No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court. STATE CONSTITUTIONS. 239 CALIFORNIA. ARTICLE I. — DECLARATION OF RIGHTS. Ratified May 7, 1879. SECTION 4. The free exercise and enjoyment of religious profession Religious and worship, without discrimination or preference, shall forever be llberty- guaranteed in this State ; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief ; but the liberty of conscience hereby secured shall not be so con strued as to excuse acts of licentiousness, or justify practices incon sistent with the peace or the safety of the State. ARTICLE IX. — EDUCATION. Section 8. No public money shall ever be appropriated for the Public funds support of any sectarian or denominational school, or any school not °ottobe.used * for sectarian under the exclusive control of the officers of the public schools ; nor purposes. shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of the State. ARTICLE XX. — MISCELLANEOUS SUBJECTS. SECTION 7. No contract of marriage, if otherwise duly made, shall Marriage be invalidated for want of conformity to the requirements of any relig- con ac C1VI ' ious sect.1 iThis section is simply a constitutional provision for a firmly established American principle. The marriage contract is purely a- civil contract, and the absence of relig ious ceremonies no more detracts from the validity of the marriage than does the absence of religious ceremonies detract from the validity of any other civil contract. In the history of American jurisprudence there is probably but a single isolated excep tion to this principle, — a Massachusetts decision in which it was held that "parties could not solemnize their own marriage," and that a marriage by mutual agreement, not in accordance with the statute, was void. "Johnson's Universal Cyclopedia," says : "In the United States by the law which prevails very generally, if not, in fact, universally, throughout the States, marriage is regarded as wholly based upon contract, upon the present mutual consent of the parties, and no special forms are necessary to its validity. If a man and a woman, by words of present import, promise and agree with each other to be husband and wife, the contract and the resulting status of marriage are perfected ; solemnization by a clergyman or by a civil magistrate, the presence of witnesses, and all the ceremonies and forms which are customarily used, even those provided for by statute, are nothing more than convenient means of per petuating the evidence of the contract between the spouses, which itself constitutes the marriage ; tkey are not in the least essential to its efficacy. Whenever certain preliminary steps, such as license, notice, and the like, are prescribed by statute, a failure to comply with these provisions does not impair the marriage which has been contracted without their presence ; it simply subjects the delinquent parties to a slight pecuniary penalty. The words of the contract by which the parties signify their inten tion must be in prcesenti (of a present force and operation), and they do not need to be followed by a cohabitation, since the status of marriage arises from the mental and not the physical union of the spouses. In this respect the United States law of mar riage is identical with that which has long prevailed in Scotland, so that the decis ion of the Scotch courts furnish valuable precedents which may be followed by our own tribunals." American principle. No forms necessary to validity of marriage. Violations of statutes do not invalidate a marriage. 240 AMERICAN STATE PAPERS. Leading case. Nature of marriage. Nature of contract. No divine ceremony prescribed. Influence of Reformation. What constitutes marriage. Consent the only requisite. Statutory provisions. Nature of marriage. Requisites to a valid Violations of statutes do not invalidate a marriage. Opinion of -United States Supreme Court, The leading case on this question is that of Dalrymple v. Dalrymple, 4 English Ecclesiastical Reports, 485, the decision being written by Lord Stowell, one of Eng land's most distinguished judges. From that able opinion the following is taken : "Marriage, in its origin, is a contract of natural law. It may exist between two individuals of different sexes, although no third person existed in the world, as hap pened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. ... It was natural that such a con tract should, under the religious system which prevailed in Europe, fall under eccle siastical notice and cognizance with respect both to its theological and its legal con struction, though it is not unworthy of remark that amidst the manifold ritual provisions made by the divine Lawgiver of the Jews for various offices and transactions of life, there is no ceremony prescribed for the celebration ofinarriage. . . "At the Reformation this country disclaimed, amongst other opinions of the Romish Church, the doctrine of a sacrament in marriage, though still retaining the idea of its being of divine institution in its general origin, and on that account, as well as of the religious forms that were prescribed for its regular celebration as an holy estate, holy matrimony ; but it likewise retained those rules of the canon law which had their foundation, not in the sacrament or in any religious view of the subject, but in the natural and civil contract of marriage." On this question, Mr. Bishop, in his treatise on "Marriage and Divorce," says: "We have seen that the law compels no one to assume the matrimonial status. Therefore every marriage requires for its constitution a consent of the parties. The consent must be mutual ; for, as there cannot be a husband without a wife, one of them cannot be married without the other. This mutual consent is in fact a contract, differ ing not essentially from other contracts. It is that circumstance without which the status of marriage is never superinduced upon the parties. And by the law of nature, by the canon law prior to the Council of Trent, perhaps by the law of England as it stood before the passage of the first marriage act, by the law of Scotland, and by the laws of several oi the United States, nothing need be added to this simple consent to constitute perfect marriage. "Even where a statute requires the irfarriage to be attended with specified formali ties, in order to its validity, this mutual consent of the parties is no less essential. The forms are not a substitute for it. They are but methods of declaring and substantiat ing it ; having reference to the matter of publicity or evidence. If they are gone through with, without the added consent, the marriage is a nullity, as regards both the parties and third persons." Fifth edition, volume i, sections 218, 219. In Dumaresly v. Fishly (1821), 3 A. K. Marshall (Kentucky), the Chief Justice said : " Marriage is nothing but a contract ; and to render it valid, it is only necessary upon the principles of natural law that the parties should be able to contract, willing to contract, and should actually contract. A marriage thus made without ceremony was, according to the simplicity of the ancient common law, deemed valid to all purposes.*' Mr. Greenleaf, also, in his treatise on evidence, volume ii, page 531, says : "Marriage is a civil contractors gentium, to the validity of which the consent of the parties able to contract is all that is required by natural or public law. . . . And though in most if not all the United States, there are statutes regulating the celebration of marriage and inflicting penalties on all who disobey the regulations, yet it is gener ally considered that in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according to the common law, 'without observing the statutory regulations, would still be a valid marriage." I also quote from the case of Meister v. Moore (1877), 96 United States, 76, the opinion being delivered by Mr. Justice Strong of the United States Supreme Court: "That such a contract [per verba de pr&senti] constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract" STATE CONSTITUTIONS. 241 COLORADO. ARTICLE II. — BILL OF RIGHTS. Ratified July i. 1876. Section 4. That the free exercise and enjoyment of religious pro fession and worship, without discrimination, shall forever hereafter be guaranteed ; and no person shall be denied any civil or political right, privilege, or capacity on account of his opinions concerning religion ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or jus tify practices inconsistent with the good order, peace, or safety of the State. No person shall be required to attend or support any ministry or place of worship, religious sect, or denomination against his consent ; nor shall any preference be given by law to any religious denomination or mode of worship. ARTICLE IX. — EDUCATION. Religious liberty. Section 7. Neither the General Assembly, nor any county, city, town, township, school-district, or other public corporation shall ever make any appropriation, or pay from any public fund or moneys what ever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution controlled by any church or sectarian denomination whatsoever ; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church or for any sectarian purpose. Section 8. No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the State, either as teacher or student ; and no teacher or student of any such institution shall ever be required to attend or par ticipate in any religious service whatever. No sectarian tenets or doc trines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. Public funds not to be used for sectarian purposes. Religious tests pro hibited. Sectarian teaching prohibited. CONNECTICUT. ARTICLE I. — DECLARATION OF RIGHTS. Ratified Oct. 5, 1818 Section 3. The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this State, provided that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify prac tices inconsistent with the peace and safety of the State. Section 4. No preference shall be given by law to any Christian sect or mode of worship. 16 Religious liberty. 242 AMERICAN STATE PAPERS. ARTICLE VII. — OF religion. Provisions concerningreligion. Religious preferenceprohibited. Section i. It being the duty of all men to worship the Supreme Being, the great Creator and Preserver of the Universe, and their right to render that worship in the mode most consistent with the dictates of their consciences, no person shall by law be compelled to join or sup port, nor be classed with, or associated to, any congregation, church, or religious association ; but every person now belonging to such congrega tion, church, or religious association, shall remain a member thereof until he shall have separated himself therefrom, in the manner herein after provided. And each and every society or denomination of Chris tians in this State shall have and enjoy the same and equal powers, rights, and privileges ; and shall have power and authority to support and maintain the ministers or teachers of their respective denomina tions, and to build and repair houses for public worship by a tax on the members of any such society only, to be laid by a major vote of the legal voters assembled at any society meeting, warned and held accord ing to law, or in any other manner. Section 2. If any person shall choose to separate himself from the society or denomination of Christians to which he may belong, and shall leave a written notice thereof with the clerk of such society, he shall thereupon be no longer liable for any future expenses which may be in curred by said society. Framed Nov. 8, 1831. DELAWARE. ARTICLE I. Religious liberty. Religious tests pro hibited. Section 1 . Although it is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted, yet no man shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent ; and no power shall or ought to be vested in or as sumed by any magistrate that shall, in any case, interfere with, or in any manner control, the rights of conscience in the free exercise of religious worship ; nor shall a preference be given by law to any religious societies, denomination, or modes of worship. Section 2. No religious test shall be required as a qualification to any office or public trust under this State. We declare that everything in this article is reserved out of the general powers of government hereinafter mentioned. ARTICLE VII. Section 8. The rights, privileges, immunities, and estates of relig ious societies and corporate bodies shall remain as if the Constitution of this State had not been altered. No ordained clergyman or ordained STATE CONSTITUTIONS. 243 preacher of the gospel of any denomination shall be capable of holding Religious any civil office in the State, or of being a member of either branch of fo^s* ' Ca~ the Legislature while he continues in the exercise of the pastoral or clerical functions. FLORIDA. ARTICLE I. — DECLARATION OF RIGHTS. Ratified May, 1868. Section 5. The free exercise and enjoyment of religious profession and worship shall forever be allowed in this State, and no person shall be rendered incompetent as a witness on account of his religious opinions ; but the liberty of conscience hereby secured shall not be so construed as to justify licentiousness, or practices subversive of the peace and safety of the State. Section 23. No preference can be given by law to any church, sect, or mode of worship. GEORGIA. ARTICLE I. — DECLARATION OF FUNDAMENTAL PRINCIPLES. Section 1. Protection to person and property is the paramount duty of government, and shall be impartial and complete. Section 6. Perfect freedom of religious sentiment shall be, and the same is hereby secured, and no inhabitant of this State shall ever be molested in person or property, or prohibited from holding any public office or trust, on account of his religious opinion ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the people. IDAHO. ARTICLE I. — DECLARATION OF RIGHTS. Section 4. The exercise and enjoyment of religious faith and worship shall forever be guaranteed ; and no person shall be denied any civil or political right, privilege, or capacity, on account of his religious opinions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness, or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the State. . . No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. ARTICLE IX. — EDUCATION AND SCHOOL LANDS.1 Religious liberty. Religious preferenceprohibited. Ratified Mar. 11, 1868. Protection to be im partial. Religious liberty. Ratified Nov. 6, i88( Religious liberty. Polygamy prohibited. Religious preferences forbidden. 1 This article forbids the appropriation of "any public fund or moneys whatever" Sectarian to aid in any way any religious or sectarian society, purpose, or institution. It also appropriations forbids religious tests or qualifications, and the use of any publications of a "political, sectarian, or denominational character " in its public schools. 244 AMERICAN STATE PAPERS. Ratified July 2, 1870. Religious liberty. Public funds not to be used for sectarian purposes. Ratified 1851. Religious liberty. Religious preferences prohibited. Religious tests pro hibited. Administra tion of oaths. ILLINOIS. ARTICLE II. — BILL OF RIGHTS. SECTION 3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed ; and no person shall be denied any civil or political right, privilege, or capac ity on account of his religious opinions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirma tions, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to at tend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship. ARTICLE VIII. — EDUCATION. Section 3. Neither the General Assembly nor any county, city, town, township, school-district, or other public corporation, shall ever make any appropriation, or pay from any public fund whatever, any thing in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever ; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such corporation, to any church, or for any sectarian purpose. INDIANA. ARTICLE I. — BILL OF RIGHTS. Section 2. All men shall be secured in their natural right to wor ship Almighty God according to the dictates of their own consciences. Section 3. No law shall, in any case whatever, control the free ex ercise and enjoyment of religious opinions, or interfere with the rights of conscience. Section 4. No preference shall be given by law to any creed, relig ious society, or mode of worship ; and no man shall be compelled to attend, erect, or support any place of worship, or to maintain any min istry against his consent. Section 5. No religious test shall be required as a qualification for any office of trust or profit. Section 6. No money shall be drawn from the treasury for the benefit of any religious or theological institution. Section 7. No person shall be rendered incompetent as a witness in consequence of his opinions on matters of religion. Section 8. The mode of administering an oath or affirmation shall be such as may be most consistent with, and binding upon, the con science of the person to whom such oath or affirmation may be ad ministered. STATE CONSTITUTIONS. 245 IOWA Ratified Aug. 3, 1857. ARTICLE I. — BILL OF RIGHTS. Section 3. The General Assembly shall make no law respecting an Religious establishment of religion, or prohibiting the free exercise thereof ; nor Ilberty- shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry. Section 4. No religious test shall be required as a qualification for Religious any office or public trust, and no person shall be deprived of any of his hibited° rights, privileges, or capacities, or disqualified from the performance of any of his public or private duties, or rendered incompetent to give evi dence in any court of law or equity, in consequence of his opinions on the subject of religion. . . . Section 6. All laws of a general nature shall have a uniform oper- Class ation. The General Assembly shall not grant to any citizen or class of forbidden! citizens privileges or immunities which upon the same terms shall not equally belong to all citizens. KANSAS. nRatified Oct. 4, 1859. BILL OF RIGHTS. Section 7. The right to worship God according to the dictates of Religious conscience shall never be infringed ; nor shall any person be compelled to attend or support any form of worship ; nor shall any control of, or interference with, the rights of conscience be permitted ; nor any pref erence be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election ; nor shall any person be incompetent to testify on account of religious belief. ARTICLE VI. — EDUCATION. Section 8. No religious sect or sects shall ever control any part of School the common-school or university funds of the State. KENTUCKY. Ratified 1850. ARTICLE II. — CONCERNING THE LEGISLATIVE DEPARTMENT. Section 27. No person, while he continues to exercise the functions Religious of a clergyman, priest, or teacher of any religious persuasion, society, "** ' '^ or sect, . . . shall be eligible to the General Assembly. . . . ARTICLE III. — CONCERNING THE EXECUTIVE DEPARTMENT. Section 6. No member of Congress, or person holding any office Religious under the United States, or minister of any religious society, shall be ' '^' eligible to the office of governor. 246 AMERICAN STATE PAPERS. ARTICLE VIII. — GENERAL PROVISIONS. Administra tion of oaths. Despotic power unre- publican. Religious liberty. Rights to enforced. Ratified Aug. 18, i8( Religious liberty. be SECTION 7. The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed by the General Assembly the most solemn appeal to God. ARTICLE XIII. — BILL OF RIGHTS. SECTION 2. That absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority. Section 5. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own con sciences ; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent ; that no human authority ought, in any case whatever, to control or in terfere with the rights of conscience ; and that no preference shall ever be given by law to any religious societies or modes of worship. Section 6. That the civil rights, privileges, or capacities of any citizen shall in no wise be diminished or enlarged on account of his religion. Section 30. To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate, and that all laws contrary thereto, or contrary to this Constitution, shall be void. LOUISIANA. TITLE 1. — BILL OF RIGHTS. Article 12. Every person has the natural right to worship God according to the dictates of his conscience. No religious test shall be required as a qualification for office. Ratified Jan. 5, 1820. Religious liberty. MAINE. ARTICLE I. — DECLARATION OF RIGHTS. Section 3. All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no one shall be hurt, molested, or restrained in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience, nor for his religious professions or sentiments, provided he does not disturb the public peace, nor obstruct others in their religious worship ; and all persons demeaning themselves peaceably, as good members of the State, shall be equally under the pro tection of the laws, and no subordination nor preference of any one sect or denomination to another shall ever be established by law, nor shall any religious test be required as a qualification for any office or trust STATE CONSTITUTIONS. 247 under this State ; and all religious societies in this State, whether incor- Rights porate or unincorporate, shall at all times have the exclusive right of secured- electing their public teachers, and contracting with them for their sup port and maintenance. MARYLAND. Ratified Sept. 18, 1867. DECLARATION OF RIGHTS. Article 36. That as it is the duty of every man to worship God in Religious such manner as he thinks most acceptable to Him, all persons are uberty- equally entitled to protection in their religious liberty ; wherefore, no person ought, by any law, to be molested in his person or estate on ac count of his religious persuasion or profession, or for his religious prac tice, unless, under the color of religion, he shall disturb the good order, peace, or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil, or religious rights ; nor ought any person to be compelled to frequent or maintain, or contribute, unless on contract, to maintain any place of worship, or any ministry ; nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief ; Provided, he believes in the Religious existence of God, and that, under his dispensation, such person will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come. Article 37. That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God ; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Con stitution. ARTICLE III. — legislative department. tests. Section ii. No minister or preacher of the gospel, or of any relig- Religious ious creed or denomination, and no person holding any civil office of profit or trust under this State, except justices of the peace, shall be eligible as senator or delegate. MASSACHUSETTS. Ratified I78o. A declaration of the rights of the inhabitants of THE COMMONWEALTH OF MASSACHUSETTS. Article 2. It is the right as well as the duty of all men in society, Religious liberty publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace, or obstruct others in their religious worship. 248 AMERICAN STATE PAPERS. Preamble. Establish ment of state religion. Compulsory attendance at church. Republican state-church- Semi-liberal provisions. Sectarian preference prohibited. Article 3. As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a com munity but by the institution of the public worship of God and of public instructions in piety, religion, and morality ; Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their Legislature with power to authorize and require, and the Legis lature shall, from time to time, authorize and require the several towns, parishes, precincts, and other bodies politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protest ant teachers of piety, religion, and morality in all cases where such pro vision shall not be made voluntarily. And the people of this commonwealth have also a right to, and do, invest their Legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend. Provided, notwithstanding, that the several towns, parishes, pre cincts, and other bodies politic, or religious societies, shall at all times have the exclusive right of electing their public teachers, and of contract ing with them for their support and maintenance. And all moneys paid by the subject to the support of public worship and of the public teachers aforesaid shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own re ligious sect or denomination, provided there be any on whose instruc tions he attends ; otherwise it may be paid toward the support of the teacher or teachers of the parish or precinct in which the said moneys are raised. And every denomination of Christians, demeaning themselves peace ably and as good subjects of the commonwealth, shall be equally under the protection of the law ; and no subordination of any one sect or de nomination to another shall ever be established by law. CHAPTER VI. — OATHS AND SUBSCRIPTIONS — INCOMPATIBILITY OF AND EXCLUSION FROM OFFICES — PECUNIARY QUALIFICATIONS. Religious test pre scribed. Article 1 . Any person chosen governor, lieutenant-governor, coun cillor, senator, or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and sub scribe the following declaration ; viz : "I, A B, do declare that I believe the Christian religion, and have a firm persuasion of its truth ; and that I am seized and possessed, in my own right, of the property required by the Constitution, as one quali fication for the office or place to which I am elected." STATE CONSTITUTIONS. 249 AMENDMENTS. Article 6. Instead of the oath of allegiance prescribed by the Con- Ratified 1822. stitution, the following oath shall be taken and subscribed by every person chosen or appointed to any office, civil or military, under the government of this commonwealth, before he shall enter on the duties of his office ; to wit : "I, A B, do solemnly swear that I will bear true faith and alle giance to the commonwealth of Massachusetts, and will support the Constitution thereof : So help me God." Religious liberty. Article -ii. Instead of the third article of the Bill of Rights, the Ratified 1833. following modification and amendment thereof is substituted : As the public worship of God, and the instructions in piety, religion, and morality, promote the happiness and prosperity of a people, and the security of a republican government ; Therefore, the several religious societies of this commonwealth, whether corporate or unincorporate, at any meeting legally warned and holden for that purpose, shall ever have the right to elect their pastors or religious teachers, to contract with them for their support, to raise money for erecting and repairing houses for pub lic worship, for the maintenance of religious instruction, and for the payment of necessary expenses ; and all persons belonging to any relig ious society shall be taken and held to be members, until they shall file with the clerk of said society a written notice declaring the dissolution of their membership, and thenceforth shall not be liable for any grant or contract which may be thereafter made or entered into by such society ; and all religious sects and denominations, demeaning themselves peace ably and as good citizens of the commonwealth, shall be equally under Sectarian the protection of the law ; and no subordination of any one sect or de- prohibited. nomination to another shall ever be established by law. MICHIGAN. Ratified 1850. ARTICLE IV. — LEGISLATIVE DEPARTMENT. Section 39. The Legislature shall pass no law to prevent any person from worshiping Almighty God according to the dictates of his own conscience, or to compel any person to attend, erect, or support any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion. Section 40. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or re ligious seminary, nor shall property belonging to the State be appropri ated for any such purposes. Section 41. The Legislature shall not diminish or enlarge the civil or political rights, privileges, and capacities of any person on account of his opinion or belief concerning matters of religion. Religious liberty. Public funds not to be used for sectarian purposes. Religious preferenceprohibited. 250 AMERICAN STATE PAPERS. ARTICLE VI. — JUDICIAL DEPARTMENT. SECTION 34. No person shall be rendered incompetent to be a wit ness on account of his opinions on matters of religious belief. Ratified 1857. MINNESOTA. Religious liberty. Religious tests pro hibited. ARTICLE I. — BILL OF RIGHTS. Section 16. The enumeration of rights in this Constitution shall not be construed to deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed, nor shall any man be compelled to attend, erect, or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent, nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious estab lishment or mode of worship ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State, nor shall any money be drawn from the treasury for the benefit of any religious societies, or religious or theological seminaries. Section 17. No religious test or amount of property shall ever be required as a qualification for any office of public trust under the State. No religious test or amount of property shall ever be required as a quali fication of any voter at any election in this State ; nor shall any person be rendered incompetent to give evidence in any court of law or equity in consequence of his opinion upon the subject of religion. Ratified Dec. 1. 186S Religious liberty. MISSISSIPPI. ARTICLE I. — BILL OF RIGHTS. Section 23. No religious test as a qualification for office shall ever be required, and no preference shall ever be given by law to any relig ious sect or mode of worship, but the free enjoyment of all religious sentiments and the different modes of worship shall ever be held sacred ; Provided, the rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals, or dangerous to the peace and safety of the State. ARTICLE VIII. — SCHOOL FUNDS, EDUCATION, AND SCIENCE. Section 9. No religious sect or sects shall ever control any part of the school or university funds of this State. ARTICLE XII. — GENERAL PROVISIONS. Religious disqualifica tion. SECTION 3. No person who denies the existence of a Supreme Being shall hold any office in this State. STATE CONSTITUTIONS. 251 MISSOURI. ARTICLE II. — BILL OF RIGHTS. SECTION 5. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience ; that no person can, on account of his religious opinions, be rendered in eligible to any office of trust or profit under this State, nor be disqualified from testifying, or from serving as a juror ; that no human authority can control or interfere with the rights of conscience ; that no person ought, by any law, to be molested in his person or estate on account of his re ligious persuasion or profession ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace, or safety of this State, or with the rights of others. Section 6. That no person can be compelled to erect, support, or attend any place or system of worship, or to maintain or support any priest, minister, preacher, or teacher of any sect, church, creed, or de nomination of religion ; but if any person shall voluntarily make a con tract for any such object, he shall be held to the performance of the same. Section 7. That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomi nation of religion, or in aid of any priest, preacher, minister, or teacher thereof as such, and that no preference shall be given to, nor any discrimination made against, any church, sect, or creed of religion, or any form of religious faith or worship. Section 8. That no religious corporation can be established in this State, except such as may be created under a general law for the pur pose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages, and cemeteries. ARTICLE XI.— EDUCATION. Section ii. Neither the General Assembly, nor any county, city, town, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, anything in aid of any religious creed, church, or sectarian purpose ; or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning, controlled by any religious creed, church, or sectarian denomination whatever ; nor shall any grant or donation of personal property or real estate ever be made by the State, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.1 I The American principle of absolute separation of the state from religion requires the state to carry out these provisions to the letter. If all men are equal,— which is a self-evident truth,— the Christian has no right whatever to the use of public funds or to the services of any one hired by public money, either to have the Bible read in the public schools, or to maintain chaplaincies in the army or legislatures. Ratified Oct. 30, 1875. Religious liberty. Public funds not to be used for sectarian purposes. Public funds not to be used for sectarian purposes. Separation of state and religion. 252 AMERICAN STATE PAPERS. Ratified 1889 MONTANA. Religious liberty. Public funds not to be used for sectarian purposes. Ratified Oct. 12, 1875. Religious liberty. Religious tests pro hibited. ARTICLE III. — a DECLARATION OF RIGHTS OF THE PEOPLE OF THE STATE OF MONTANA. Section 4. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaran teed, and no person shall be denied any civil or political right or privi lege on account of his opinions concerning religion ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts df licentiousness, by bigamous or polyga mous marriage, or otherwise, or justify practices inconsistent with the good order, peace, or safety of the State, or opposed to the civil au thority thereof, or of the United States. No person shall be required to attend any place of worship or support any ministry, religious sect, or denomination, against his consent ; nor shall any preference be given by law to any religious denomination or mode of worship. ARTICLE XI. — EDUCATION. Section 8. Neither the Legislative Assembly, nor any county, city, town, or school district, or other public corporations, shall ever make, directly or indirectly, any appropriation, or pay from any public fund or moneys whatever, or make any grant of lands or other property in aid of any church, or for any sectarian purpose, or to aid in the support of any school, academy, seminary, college, university, or other literary, scientific institution, controlled in whole or in part by any church, sect, or denomination whatever. NEBRASKA. ARTICLE I. — BILL OF RIGHTS. Section 4. All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own con sciences. No person shall be compelled to attend, erect, or support any place of worship against his consent, and no preference shall be given by law to any religious society ; nor shall any interference with the rights of conscience be permitted. No religious test shall be required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief ; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction. ARTICLE VIII. — EDUCATION. Section 1 i . No sectarian instruction shall be allowed in any school or institution supported in whole or in part by the public funds set apart STATE CONSTITUTIONS. 253 for educational purposes ; nor shall the State accept any grant, convey ance, or bequest of money, lands, or other property, to be used for sectarian purposes. NEVADA. ARTICLE I. — DECLARATION OF RIGHTS. Section 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State ; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. Ratified 1864. Religious liberty. ARTICLE XI. — EDUCATION. Section 9. No sectarian instruction shall be imparted or tolerated Sectarian in any school or university that may be established under this Con- prohibited. stitution. NEW HAMPSHIRE. Ratified 1792. PART I. — BILL OF RIGHTS. ARTICLE 4. Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience. Article 5. Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason ; and no person shall be hurt, molested, or restrained in his person, liberty, or estate for worshiping God in the manner most agreeable to the dictates of his own conscience, or for his religious profession, senti ments, or persuasion, provided he doth not disturb the public peace or disturb others in their religious worship. Article 6. As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection ; and as a knowledge of these is most likely to be propagated through a society by the institution of the public worship of the Deity, and of pub lic instruction in morality and religion ; * Therefore, to promote those important purposes, the people of this State have a right to empower, and do hereby fully empower, the Legislature to authorize, from time to time, the several towns, parishes, bodies corporate, or religious societies Rights of conscience. Religious liberty . Establish ment of state religion. lln this provision can be plainly seen the direct connection that religious exer cises in the public schools, in the way of reading King James's Version of the Bible (the Protestant version) and opening the schools with prayer, etc., have with state-church laws of the last century. Senator Blair's amendment providing for the teaching of the Christian religion in the public schools is simply a step backward a hundred years. 254 AMERICAN STATE PAPERS. Protestant religionestablished. Republican state-church- Sectarian preferenceprohibited. Ratified Aug. 13, 1844. ^ Religious liberty. Religious preferencesprohibited. within this State, to make adequate provisions, at their own expense, for the support and maintenance of public Protestant teachers1 of piety, religion, and morality. Provided, notwithstanding, that the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no person, or any one particu lar religious sect or denomination, shall ever be compelled to pay toward the support of the teacher or teachers of another persuasion, sect, or denomination. And every denomination of Christians, demeaning themselves quietly and as good subjects of the State, shall be equally under the pro tection of the law ; and no subordination of any one sect or denomi nation to another shall ever be established by law. And nothing herein shall be understood to affect any former contracts made for the support of the ministry ; but all such contracts shall re main and be in the same state as if this Constitution had not been made. NEW JERSEY. ARTICLE I. RIGHTS AND PRIVILEGES. Three. No person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience ; nor under any pretense whatever be compelled to at tend any place of worship contrary to his faith and judgment ; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately and voluntarily engaged to perform. Four. There shall be no establishment of one religious sect in pref erence to another ; no religious test shall be required as a qualification for any office or public trust ; and no person shall be denied the enjoy ment of any civil right merely on account of his religious principles. Ratified Nov., 1846. Religious liberty. NEW YORK. ARTICLE I. Section 3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be al lowed in this State to all mankind ; and no person shall be rendered in competent to be a witness on account of his opinions on matters of relig ious belief ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices incon sistent with the peace or safety of this Slate. !In this connection read Madison's "Memorial and Remonstrance," ante page 27. STATE CONSTITUTIONS. 255 NORTH CAROLINA. ARTICLE I. DECLARATION OF RIGHTS. Ratified 1876. SECTION 26. All men have a natural and unalienable right to wor- Religious ship Almighty God according to the dictates of their own consciences, llbertv- and no human authority should, in any case whatever, control or inter fere with the rights of conscience. ARTICLE VI. — SUFFRAGE AND ELIGIBILITY TO OFFICE. The following classes of persons shall be disqualified for Religious Section 5 office : First, All persons who shall deny the being of Almighty God ; Son." Second^ All persons who shall have been convicted of treason, perjury, or of any other infamous crime, since becoming citizens of the United States, or of corruption or malpractice in office, unless such person shall have been legally restored to the rights of citizenship.1 ARTICLE IX. — EDUCATION. Section i. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. tJisqualifica- 1This article, by reductio ad absurdum, makes the injustice of disqualifying atheists from holding public trusts peculiarly manifest. "Persons who shall have been convicted of treason, perjury, or of any other infamous crime" can hold office when " legally restored to the rights of citizenship ; " but an atheist, never — unless he com promises his manhood by becoming a hypocrite and perjurer by swearing that he be lieves in God (when he does not), and then he is rewarded by having all disqualifica tions removed I This contemptible way of gaining accessions to Christianity from the servile classes has ever been a characteristic of state religion ; — in fact, is a necessary consequence of its existence. Gibbon, in relating how state Christianity first obtained the ascendancy, says : "The exact balance of the two religions [paganism and Christianity] continued but a moment; and the piercing eye of ambition and avarice soon discovered that the profession of Christianity might contribute to the interest of the present as well as of a future life. The hopes of wealth and honors, the example of an emperor, his exhort ations, his irresistible smiles, diffused conviction among the venal and obsequious crowds which usually fill the apartments of a palace. The cities which signalized a forward zeal by the voluntary destruction of their temples, were distinguished by municipal privileges, and rewarded with popular donatives ; and the new capital of the East gloried in the singular advantage that Constantinople was never profaned by the worship of idols. As the lower ranks of society are governed by imitation, the conver sion of those who possessed any eminence of birth, of power, or of riches, was soon fol lowed by dependent multitudes. The salvation of the common people was purchased at an easy rate, if it be true that, in one year, twelve thousand men were baptized at Rome, besides a proportionable number of women and children, and that a white garment, with twenty pieces of gold, had been promised by the emperor to every convert." The atheist, however, who will not compromise principle for any reward, not even the highest office in the land, is rewarded by being placed politically beneath the level of the basest felons ! No wonder that John Adams wrote to Jefferson that "we think ourselves possessed, or at least we boast that we are so, of liberty of conscience on all Absurdity of disqualify ing atheists. Illustration of conferring political re wards for em bracing Chris tianity. Treatment of atheists of principle. 256 AMERICAN STATE PAPERS. Ratified 1889. NORTH DAKOTA. ARTICLE I. DECLARATION OF RIGHTS. Religious liberty. Section 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall be forever guaranteed in this State, and no person shall be rendered incompetent Adams's exclamation. An apt ap plication of scripture. Penalties for expression of opinion. American cases. Unjust legal doctrine. Characteris tic of infidels. A contradic tory doctrine. A badge of hatred. An insulting rule. subjects, and of the right of free inquiry and private judgment in all cases," and then said, " yet how far are we from these exalted privileges in fact ! " Mr. John Stuart Mill, in discoursing on this subject, in his essay " On Liberty,'' writes as follows : " It will be said that we do not now put to death the introducers of new opinions ; we are not like our fathers who slew the prophets, we even build sepulchers to them. It is true we no longer put heretics to death ; and the amount of penal infliction which modern feeling would probably tolerate, even against the most obnoxious opinions, is not sufficient to extirpate them. But let us not flatter ourselves that we are yet free from the stain even of legal persecution. Penalties for opinion, or at least for its ex pression, still exist by law ; and their enforcement is not, even in these times, so unex ampled as to make it at all incredible that they may some day be revived in full force. In the year 1857, at the summer assizes of the county of Cornwall, an unfortunate man said to be of unexceptionable conduct in all relations of life, was sentenced to twenty-one months' imprisonment for uttering, and writing on a gate, some offensive words concern ing Christianity. [A number of instances also might be cited in the United States, notably, People v. Ruggles, 8 Johnson (New York), 290 ; State v. Chandler, 2 Harring ton (Delaware), 553 ; Updegraph v. Commonwealth, 11 Sergeant and Rawle (Pennsyl vania), 394 ; and Commonwealth v. Kneeland, 20 Pickering (Massachusetts), 206.] Within a month of the same time, at the Old Bailey, two persons, on two separate oc casions, were rejected as jurymen, and one of them grossly insulted by the judge and by one of the counsel, because they honestly declared that they had no theological be lief ; and a third, a foreigner, for the same reason was denied justice against a thief. This refusal of redress took place in virtue of the legal doctrine that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God (any god is sufficient) and in a future state ; which is equivalent to declaring such persons to be outlaws, excluded from the protection of the tribunals ; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions, be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence. The assumption on which this is grounded, is that the oath is worthless, of a person who does not believe in a future state ; a proposition which betokens much ignorance of history in those who assent to it (since it is historic ally true that a large proportion of infidels in all ages have been persons of distinguished integrity and honor) ; and would be maintained by no one who had the smallest con ception of how many of the persons in greatest repute with the world, both fo% virtues and attainments, are well known, at least to their intimates, to be unbelievers. The rule, besides, is suicidal, and cuts away its own foundation. Under pretense that atheists must be liars, it admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obliquy of publicly confessing a detested creed rather than affirm a falsehood. A rule thus self-convicted of absurdity so far as regards its professed purpose, can be kept in force only as a badge of hatred, a relic of persecution — a perse cution, too, having the peculiarity that the qualification for undergoing it, is the being clearly proved not to deserve it. The rule and the theory it implies, are hardly less in sulting to believers than to infidels. For if he who does not believe in a future state necessarily lies, it follows that they who do believe are only prevented from lying, if prevented they are, by the fear of hell. We will not do the authors and abettors of the rule the injury of supposing that the conception which they have formed of Christian virtue is drawn from their own consciousness. STATE CONSTITUTIONS. 257 to be a witness or juror on account of his opinion on matters of religious belief ; but the liberty of conscience hereby secured shall not be so con strued as to excuse acts of licentiousness, or justify practices inconsist ent with the peace or safety of this State. Section 24. To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate. ARTICLE VIII. — EDUCATION. Religious liberty. Rights to be enforced. Section 152. All colleges, universities, and other educational insti tutions, for the support of which lands have been granted to this State, or which are supported by a public tax, shall remain under the absolute and exclusive control of the State. No money raised for the support of School funds the public schools of the State shall be appropriated to or used for the for sectarian support of any sectarian school. purposes. ARTICLE XVI. — compact with the united states. The following article shall be irrevocable without the consent of the United States and the people of this State : Section 203. First, perfect toleration of religious sentiment shall be secured, and no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship. Perfect toleration secured. OHIO. ARTICLE I. BILL OF RIGHTS. Ratified 1851. Section 7. All men have a natural and indefeasible right to wor ship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of wor ship, or maintain any form of worship, against his consent, and no pref erence shall be given by law to any religious society, nor shall any inter ference with the rights of conscience be permitted. No religious test Religious rights. "These, indeed, are but rags and remnants of persecution, and may be thought to be not so much an indication of the wish to persecute, as an example of that very fre quent infirmity of English minds, which makes them take a preposterous pleasure in the assertion of a bad principle, when they are no longer bad enough to desire to cany it really into practice. But unhappily there is no security in the state of the public mind, that the suspension of worse forms of legal persecution, which has lasted for about the space of a generation, will continue. In this age the quiet surface of routine is as often ruffled by attempts to resuscitate past evils, as to introduce new benefits. What is boasted of at the present time as the revival of religion, is always, in narrow and uncul tivated minds, at least as much the revival of bigotry ; and where there is the strong, permanent leaven of intolerance in the feelings of a people, which at all times abides in the middle classes of this country, it needs but little to provoke them into actively persecuting those whom they have never ceased to think proper objects of persecution." Religious liberty must be absolute ; for the same logic that would give the state the power to require belief in God, would give it the power to require belief in any other doctrine to which the majority might take a fancy. Relics of persecution. Present dangers. Modern bigotry. Religious liberty. *7 258 AMERICAN STATE PAPERS. Religious tests pro- hibited. shall be required as a qualification for office, nor shall any person be in competent to be a witness on account of his religious belief ; but nothing herein shall be construed to dispense with oaths and affirmations. Relig ion, morality, and knowledge, however, being essential to good govern ment, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction. article vi. — education. Funds held in trust. School funds not to be under secta rian control. Ratified Nov. 9, 1857. Section i. The principal of all funds arising from the sale or other disposition of lands or other property, granted or intrusted to this State for educational and religious purposes, shall forever be preserved inviolate and undiminished ; and the income arising therefrom shall be faithfully applied to the specific objects of the original grants or appropriations. Section 2. The General Assembly shall make such provisions, by taxation or otherwise, as, with the interest arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State ; but no religious or other sect or sects shall ever have any exclusive right to or control of any part of the school funds of this State. OREGON. ARTICLE I. BILL OF RIGHTS. Religious liberty. Religious tests pro hibited. Public funds not to be used for sectarian uses. Administra tion of oaths. Class legis lation for bidden. Section 2. All men shall be secured in their natural right to wor ship Almighty God according to the dictates of their own consciences. Section 3. No law shall, in any case whatever, control the free ex ercise and enjoyment of religious opinions, or interfere with the rights of conscience. Section 4. No religious test shall be required as a qualification for any office of trust or profit. Section 5. No money shall be drawn from the treasury for the ben efit of any religious or theological institution, nor shall any money be appropriated for the payment of any religious service, in either house of the Legislative Assembly. Section 6. No person shall be rendered incompetent as a witness or juror in consequence of his opinions on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony. Section 7. The mode of administering an oath or affirmation shall be such as may be most consistent with, and binding upon, the con science of the person to whom such oath or affirmation may be admin istered. Section 21. No law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. STATE CONSTITUTIONS. 259 PENNSYLVANIA. ARTICLE I. — declaration of rights. SECTION 3. 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 relig ious establishments or modes of worship. Section 4. No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his relig ious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth. Ratified Dec. 16, 1873. Religious liberty. Religious disability. ARTICLE X. — EDUCATION. Section 2. No money raised for the support of the public schools School funds of the commonwealth shall be appropriated to or used for the support "° sectarian of any sectarian school. school. RHODE ISLAND. Ratified Nov. 23, 1842. ARTICLE I. DECLARATION OF CERTAIN CONSTITUTIONAL RIGHTS AND PRINCIPLES. In order effectually to secure the religious and political freedom established by our venerated ancestors, and to preserve the same for our posterity, we do declare that the essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained, and preserved, and shall be of paramount obligation in all legislative, judicial, and executive proceedings. Section 3. Whereas, Almighty God hath created the mind free, and all attempts to influence it by temporal punishment, or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness ; and, whereas, u. principal object of our venerated ancestors, in their migration to this country and their settlement of this State, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious con cernments ; JVe therefore declare, that no man shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfilment of his own voluntary contract ; nor enforced, re strained, molested, or burdened in his body or goods ; nor disqualified from holding any office ; nor otherwise suffer on account of his religious belief ; and that every man shall be free to worship God according to the dictates of his own conscience, and to profess, and by argument to maintain, his opinion in matters of religion ; and that the same shall in no wise diminish, enlarge, or affect his civil capacity. Rights to be enforced. Preamble. Religious liberty. 260 AMERICAN STATE PAPERS. Ratified Apr. 16, i8( SOUTH CAROLINA. Article i. — declaration of rights. Religious liberty. Religious tests pro hibited. SECTION 9. No person shall be deprived of the right to worship God according to the dictates of his own conscience ; Provided, that the liberty of conscience hereby declared shall not justify practices in consistent with the peace and moral safety of society. Section 10. No form of religion shall be established by law ; but it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of worship. Section 12. No person shall be disqualified as a witness, or be pre vented from acquiring, holding, and transmitting property, or be hin dered in acquiring education, or be liable to any other punishment for any offense, or be subjected in law to any other restraints or disquali fications, in regard to any personal rights than such as are laid upon others under like circumstances. article xiv. — miscellaneous. Religious disqualifica- Section 6. No person who denies the existence of the Supreme Being shall hold any office under this Constitution. Ratified 1889. SOUTH DAKOTA. ARTICLE VI. — BILL OF RIGHTS. Religious liberty. Public funds not to be used for sectarian purposes. Section 3. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege, or position on account of his religious opinions ; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the State. No person shall be compelled to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the State shall be given or appropriated for the benefit of any sectarian or religious society or institution. Ratified Mar. 26, 18: TENNESSEE. Religious liberty. ARTICLE I. — DECLARATION OF RIGHTS. SECTION 3. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience ; that no man can, of right, be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent ; STATE CONSTITUTIONS. 261 that no human authority can, in any case whatever, control or interfere with the rights of conscience ; and that no preference shall ever be given by law to any religious establishment or mode of worship. Section 4. That no political or religious test, other than an oath to support the Constitution of the United States and of this State, shall ever be required as a qualification to any office or public trust under this State. Section 6. That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors. article ix. — disqualifications. Section i. Whereas, Ministers of the gospel are, by their profes sion, dedicated to God and the care of souls, and ought not to be di verted from the great duties of their functions ; Therefore, no minister of the gospel, or priest of any denomination whatever, shall be eligible to a seat in either house of the Legislature. Section j.. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil de partment of this State. article xi. — miscellaneous provisions. Section 15. No person shall in time of peace be required to per form any service to the public on any day set apart by his religion as a day of rest. TEXAS. ARTICLE I. BILL OF RIGHTS. Religious liberty. Religious tests pro hibited. Religious disqualifica tion. Religious equality. Ratified Feb. 17, 1876. Religious liberty. Section 6. All men have a natural and indefeasible right to wor ship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be neces sary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. Section 7. No money shall be appropriated or drawn from the treasury for the benefit of any sect or religious society, theological or religious seminary ; nor shall property belonging to the State be appro- purposes. priated for any such purposes. ARTICLE VII. EDUCATION THE PUBLIC FREE SCHOOLS. Section 5. . . . And no law shall ever be enacted appropriating School funds any part of the permanent or available school fund to any other purpose fo^Veciarian whatever ; nor shall the same or any part thereof ever be appropriated purposes. to or used for the support of any sectarian school. Public funds not to be used for sectarian 262 AMERICAN STATE PAPERS. Adopted Nov. 2, 1796. Religious liberty. VERMONT. CHAPTER I. — DECLARATION OF RIGHTS. Article 3. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God ; and that no man ought to, or of right can, be compelled to attend any religious worship, or erect or support any place of worship, or main tain any minister, contrary to the dictates of his conscience ; nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship ; and that no authority can or ought to be vested in or assumed by any power whatever, that shall in any case interfere with or in any manner control the rights of conscience in the free exercise of religious worship. Nev ertheless, every sect or denomination of Christians ought to.observe the Sabbath, or Lord's day,1 and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God. Ratified July 6, 1869. Religious liberty. Rights to 1 enforced. Absurdity of state- churchism. VIRGINIA. ARTICLE I. BILL OF RIGHTS. Section 18. 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, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of con science ; and that it is the mutual duty of all to practice Christian for bearance, love, and charity towards each other. The declaration of the political rights and privileges of the inhabit ants of this State is hereby declared to be a. part of the Constitution of this commonwealth, and shall not be violated on any pretense what ever. 1 As well might the state say that "every sect or denomination of Christians ought to be baptized, partake of the Lord's supper, offer prayer three times a day, and read their Bibles regularly." It is true that it is the duty of the Christian to observe the pre cepts inculcated in the word of God ; but it is not the sphere of the state either to pre scribe or enforce such observance. The state is just as much out of its place in dictating to the church as the church is in dictating to the state. The state has rightly nothing to do with matters of doctrine and religious observances. A Unitarian can be just as good a citizen as a Trinitarian ; and a Sabbatarian or Mahometan can be just as good a citizen as a Sunday-keeper. The business of the state is not to inquire into what indi viduals believe, but to protect all, without regard to what they believe. The absurdity that the state, which has ever been composed, more or less, of notori ously wicked men, should prescribe the religious doctrines and duties of Christians, or of any one else, has been apparent to the American people, and consequently they have established the principle in this country of entire separation of the state from the church. The reason, Bancroft says, was "not from indifference, but that Die infi nite spirit of eternal truth might move in its freedom, and purity, and power.'* James Madison, too, said, "We are teaching the world the great truth . . that religion flour ishes in greater purity without, than with, the aid of government." STATE CONSTITUTIONS. 263 ARTICLE V. LEGISLATIVE DEPARTMENT. Section 14. . . . No man shall be compelled to frequent or Religious support any religious worship, place, or ministry whatsoever, nor shall ' e any man be forced, restrained, or molested, or burdened in his body or goods, or otherwise suffer on account of his religious opinions or belief, but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and the same shall in no wise affect, diminish, or enlarge their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar Religious privileges or advantages on any sect or denomination, or pass any law prohibited. requiring or authorizing any religious society, or the people of any dis trict within this commonwealth, to levy on themselves or others any tax for the erection or repair of any house of public worship, or for the sup port of any church or ministry, but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please. Section 17. The General Assembly shall not grant a charter of in corporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law. WEST VIRGINIA. AuRgatl2fi2?dl872. ARTICLE III. — BILL OF RIGHTS. Section ii. Political tests, requiring persons, as a prerequisite to Po'"1?*' the enjoyment of their civil and political rights, to purge themselves by tests pro- their own oath of past alleged offenses, are repugnant to the principles ' e ' of free government, and are cruel and oppressive. No religious or polit ical test oath shall be required as a prerequisite or qualification to vote, serve as a juror, sue, plead, appeal, or pursue any profession or employ ment ; nor shall any person be deprived by law of any right or privilege because of any act done prior to the passage of such law. Section 15. No man shall be compelled to' frequent or support any Religious religious worship, place, or ministry whatsoever ; nor shall any man be ' erty' enforced, restrained, molested, or burdened in his body or goods, or other wise suffer, on account of his religious opinions or belief ; but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion ; and the same shall in no wise affect, diminish, or enlarge their civil capacities ; and the Legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advan tages on any sect or denomination, or pass any law requiring or author izing any religious society, or the people of any district within this State, to levy on themselves or others any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support such private contract as he shall please. 264 AMERICAN STATE PAPERS. Ratified 1889. Administra tion of oaths. Religious liberty. WASHINGTON. ARTICLE I. — DECLARATION OF RIGHTS. Section 6. The mode of administering an oath, or affirmation, shall be such as may be most consistent with and binding upon the conscience of the person to whom such oath, or affirmation, may be administered. Section ii. Absolute freedom of conscience in all matters of relig ious sentiment, belief, and worship, shall be guaranteed to every individ ual, and no one shall be molested or disturbed in person or property, on account of religion ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State. No public money or property shall be appropriated for, or applied to, religious worship, exercises, or instruction, or the support of any religious establish* ment. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a. witness or juror, in consequence of his opinion on matters of religion, nor be ques tioned in any court of justice touching his religious belief to affect the weight of his testimony. ARTICLE XXVI. — COMPACT WITH THE UNITED STATES. The following ordinance shall be irrevocable without the consent of the United States and the people of this State : First, That perfect toleration of religious sentiment shall be secured, and that no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship. Fourth, Provision shall be made for the establishment and mainte nance of systems of public schools free from sectarian control, which shall be open to all the children of said State. Ratified March, 1848. Religious liberty. Religious tests pro hibited. WISCONSIN. ARTICLE 1. — DECLARATION OF RIGHTS. Section 18. The right of every man to worship Almighty God ac cording to the dictates of his own conscience shall never be infringed, nor shall any man be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent. Nor shall any control of, or interference with, the rights of conscience be per mitted, or any preference be given by law to any religious establish ments or mode of worship. Nor shall any money be drawn from the treasury for the benefit of religious societies or religious or theological seminaries. . Section 19. No religious tests shall ever be required as a qualifica tion for any office of public trust under the State, and no person shall be rendered incompetent to give evidence in any court of law or equity, in consequence of his opinions on the subject of religion. STATE CONSTITUTIONS. 265 ARTICLE X. — EDUCATION. Section 3. The Legislature shall provide by law for the establish ment of district schools, . . and no sectarian instruction shall be allowed therein. Section 6. Provision shall be made by law for the establishment of a State university, . and no sectarian instruction shall be allowed in such university. WYOMING. Sectarian instructionprohibited. Recognition of rights. Religious liberty. ARTICLE I. — DECLARATION OF RIGHTS. Section 7. Absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority. Section 18. The free exercise and enjoyment of religious profes sion and worship without discrimination or preference shall be forever guaranteed in this State, and no person shall be rendered incompetent to hold any office of trust or profit, or to serve as a witness or juror, because of his opinion on any matter of religious belief whatever ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the State. Section 19. No money of the State shall ever be given or appro priated to any sectarian or religious society or institution. ARTICLE VI. — SUFFRAGE. Section i. The rights of citizens of the State of Wyoming to vote Equality and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall equally enjoy all civil, political, and religious rights and privileges. article vii. — education. Section 12. No sectarian instruction, qualifications, or tests shall be Schools to ... , , . be free from imparted, exacted, applied, or in any manner tolerated in the schools of sectarianism. any grade or character controlled by the State, nor shall attendance be required at any religious service therein, nor shall any sectarian tenets or doctrines be taught or favored in any public school or institution that may be established under this Constitution. NEW. MEXICO. ARTICLE II. — BILL OF RIGHTS. Section 14. The free exercise and enjoyment of religious pro fession and worship, without discrimination or preference, is hereby guaranteed, and no person shall be rendered incompetent to be a wit ness or a j uror on account of his opinions on matters of religious belief, but the liberty of conscience hereby secured shall not excuse acts of Adopted Sept., 1890. Religious liberty. 266 AMERICAN STATE PAPERS. Polygamy prohibited. licentiousness, or justify polygamous practices or other acts inconsistent with morality or the peace or safety of the State, nor permit any person, organization, or association, directly or indirectly, to aid or abet, counsel or advise, any person to commit bigamy or polygamy, or any other crime. Bigamy and polygamy are forever prohibited. Section 26. The natural right of the people to one day of rest in every seven is hereby acknowledged. Separation of schools from sectarian in struction. School funds not to be used for sectarian purposes. American principles to be taught. Religious tests pro hibited. ARTICLE IX. EDUCATION. Section i. Provision shall be made by law for the establishment and maintenance of a uniform system of public schools, which shall be open to and sufficient for the education of all the children in the State, and shall be under the absolute control of the State, and free from sectarian or church control ; and no other or different schools shall ever receive any aid or support from public funds. No sectarian tenet, creed, or church doctrine shall be taught in the public schools. Section 2. . . . But no part of such [school] funds, nor of any other funds created or authorized by law for educational purposes, shall ever be applied toward the maintenance, support, or aid of any school or other institution in the management of which any religious or other sect has any part, or which is not under the absolute control of the State. The provisions of this and the last preceding section are hereby declared to be irrevocable without the consent of the United States and the people of this State. Section 6. Provision shall be made by law for teaching the princi ples of the Constitutions of the United States and of this State in the common schools. All teachers in the public schools shall be citizens of the United States, properly qualified, and persons of. good moral character. Section 7. No religious test shall ever be required of any person as a condition of admission into any public educational institution of the State, either as teacher or student ; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatever ; nor shall any distinction or classification of pupils be made on account of race or color. Guaranty of religious liberty. ARTICLE XVIII. — COMPACT WITH THE UNITED STATES. . Section 3. Perfect toleration of religious sentiment shall be se cured, and no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship, nor shall any preference be given by law to any religious establishment. No religious test shall be required for any office or for any vote at any election ; nor shall any person be incompetent to testify on account of his or her opinions on matters of religious belief, nor be questioned in any court touching such opinions so as to affect the weight of his or her testimony. HISTORY OF SUNDAY LEGISLATION. 267 HISTORY OF SUNDAY LEGISLATION. A HISTORICAL SUMMARY OF SUNDAY LEGISLATION FROM 321 TO 1888. ' Written by Dr. A. H. Lewis. The first Sunday legislation was the product of that pagan con ception, so fully developed by the Romans, which made religion a de partment of the state. This was diametrically opposed to the genius of New Testament Christianity. It did not find favor in the church until Christianity had been deeply corrupted through the influence of Gnos ticism and kindred pagan errors. The Emperor Constantine, while still a heathen — if indeed he was ever otherwise — issued the first Sunday edict by virtue of his power as Pontifex Maximus in all matters of re ligion, especially in the appointment of sacred days. This law was pagan in every particular. Sunday legislation between the time of Constantine and the fall of the empire, was a combination of the pagan, Christian, and Jewish cults. Many other holidays — mostly pagan festivals baptized with new names and slightly modified — were associated, in the same laws, with the Sunday. During the middle ages, Sunday legislation took on a more Judais- tic type, under the plea of analogy, whereby civil authorities claimed the right to legislate in religious matters, after the manner of the Jewish theocracy. The continental Reformation made little change in the civil legis lation concerning Sunday. The English Reformation introduced a new theory, and developed a distinct type of legislation. Here we meet, for the first time, the doctrine of the transfer of the fourth command ment to the first day of the week, and the consequent legislation grow ing out of that theory. The reader will find the laws of that period to be extended theological treatises, as well as civil enactments. The Sun day laws of the United States are the direct outgrowth of the Puritan legislation, notably, of the Cromwellian period. These have been much modified since the colonial times, and the latest tendency, in the few Nature of first Sunday legislation. Christiani^a- tion of pagan holidays. Media-val influence. Puritanic theory and legislation. !This interesting summary of the history of Sunday laws has an additional interest Interesting as an introduction to the Sunday laws of the United States following. It is from the historical sum- preface and chapters I, 2, 4, and 5 of Dr. A. H. Lewis's "Critical History of Sunday Sunday laws. Legislation from 321 to 1888 A. d." (New York, D. Appleton & Company, 1888), a valu able addition to our literature upon the Sunday problem. The act of the twenty-ninth year of Charles II, is inserted to show the direct connection that our Sunday laws have with the church and state laws of England, and through them with the ecclesiastical domination of the dark ages. The connection is direct, and the evidence as to the religious nature of Sunday laws is conclusive. 268 AMERICAN STATE PAPERS. Modern policy. Modern claims. Origin of all Sunday laws. Puritanic ideas of Sunday. Nature of Sunday laws. Scientific grounds not the basis of Sunday laws. A shallow subterfuge. Evolution of laws. Sunday legislation pagan. Christianity opposed to it. Evidence of its pagan cases which come to direct trial under these laws, is to set forth laws of a wholly different character, through the decisions of the courts. In the Sunday legislation of the Roman Empire the religious ele ment was subordinate to the civil. In the middle ages, under Cromwell, and during our colonial period, the church was practically supreme. Some now claim that Sunday legislation is not based on religious grounds. This claim is contradicted by the facts of all the centuries. Every Sunday law sprang from a religious sentiment. Under the pagan conception, the day was to be " venerated " as a religious duty owed to the god of the sun. As the resurrection-festival idea was gradually combined with the pagan conception, religious regard for the day was also demanded in honor of Christ's resurrection. In the middle-age period, sacredness was claimed for Sunday because the Sabbath had been sacred under the legislation of the Jewish theocracy. Sunday was held supremely sacred by the Puritans, under the plea that the obliga tions imposed by the fourth commandment were transferred to it. There is no meaning in the statutes prohibiting "worldly labor," and permitting "works of necessity and mercy," except from a religious standpoint. There can be no "worldly business," if it be not in contrast with religious obligation. Every prohibition which appears in Sunday legislation is based upon the idea that it is wrong to do on Sunday the things prohibited. Whatever theories men may invent for the observ ance of Sunday on non-religious grounds, and whatever value any of these may have from a scientific standpoint, we do not here discuss ; but the fact remains that such considerations have never been made the basis of legislation. To say that the present Sunday laws do not deal with the day as a religious institution, is to deny every fact in the his tory of such legislation. The claim is a shallow subterfuge. The original character of laws and institutions is not easily lost. History is a process of evolution, whereby original germs, good or bad, are developed. In the process of development modifications take place, and methods of application change ; but the properties of the original germ continue to appear. Neither legislation nor the influence of the church have been able to prevent the development of holidayism and its associate evils in connection with Sunday. The preceding chapter [chapter I] shows that there was nothing new in the legislation by Constantine concerning the Sunday. It was as much a part of the pagan cultus, as the similar legislation concerning other days which had preceded it. Such legislation could not spring from apostolic Christianity. Every element of that Christianity forbade such interference by the state. The pagan character of this first Sunday legislation is clearly shown, not only by the facts above stated, but by the nature and spirit of the law itself. Sunday is mentioned only by its pagan name, "venerable day of the sun." Nothing is said of any rela tion to Christianity. No trace of the resurrection-festival idea appears. No reference is made to the fourth commandment or the Sabbath, or HISTORY OF SUNDAY LEGISLATION. 269 anything connected with it. The law was made for all the empire. It applied to every subject alike. The fact that on the day following the publication of the edict concerning the Sunday, another was issued, order ing that the haruspices 1 be consulted in case of public calamity, which was thoroughly pagan in every particular, shows the attitude of the em peror and the influences which controlled him. The following is the complete text of the laws just referred to. It will repay the reader for prolonged and careful study : FIRST SUNDAY EDICT. "Let all judges and all city people and all tradesmen rest upon the venerable day of the sun. But let those dwelling in the country freely and with full liberty attend to the culture of their fields ; since it fre quently happens that no other day is so fit for the sowing of grain or the planting of vines ; hence, the favorable time should not be allowed to pass, lest the provisions of heaven be lost. "Given the seventh of March, Crispus and Constantine being consuls, each for the second time (321)." "Codex Justin," lib. iii, tit. xii, 1. 3. Constan- tine's pagan ism. Constan- tine's Sunday edict. EDICT CONCERNING HARUSPICES. " The August Emperor Constantine to Maximus : "If any part of the palace or other public works shall be struck by lightning, let the soothsayers, following old usages, inquire into the meaning of the portent, and let their written words, very carefully collected, be reported to our knowledge ; and also let the liberty of making use of this custom be accorded to others, provided they abstain from private sacrifices, which are specially prohibited. "Moreover, that declaration and exposition, written in respect to the amphitheater being struck by lightning, concerning which you had written to Heraclianus, the tribune, and master of offices, you may know has been reported to us. " Dated the sixteenth, before the calends of January, at Serdica (320). Ace. the eighth, before the Ides of March, in the consulship of Crispus II and Constantine III, Csesars Coss. (321)." "Codex Theo.," lib. xvi, tit. x, 1. 1. It will be difficult for those who are accustomed to consider Con stantine a " Christian emperor " to understand how he could have put forth the above edicts. The facts which crowd the preceding century will fully answer this inquiry. The sun-worship cult had grown steadily Pagan edict by Constan tine. 1 The "Encyclopedia Britannica," volume xi, page 500, says: "Haruspices Nature of (literally, entrail-observers, confer Sanskrit juld, Greek yopdij ), a class of soothsayers haruspices. in Rome. Their art consisted especially in deducing from the appearance presented by the entrails of the slain victim the will of the gods. ... In later times the art fell into disrepute, and the saying of Cato the censor, is well known, that he wondered one haruspex could look another in the face without laughing (Cic, De Di?>. ii, 24)." 270 AMERICAN STATE PAPERS. Reasons for issuing the Sunday edict. Origin of Sundaylegislation. Descent of these laws. in the Roman Empire for a long time. In the century which preceded Constantine's time, specific efforts had been made to give it prominence over all other systems of religion. The efforts made under Heliogabalus (218-222 a. D.) marked the ripening influence of that cult, both as a power to control and an influence to degrade Roman life.1 . All Sunday legislation is the product of pagan Rome. The Saxon laws were the product of the middle-age legislation of the "Holy Roman Empire." The English laws are an expansion of the Saxon, and the American are a transcript of the English. Our own laws were all inchoate in those [the Saxon laws] which are found below. . . . The early Sunday laws in England were but the expansion of the Saxon laws. When compared with the Saxon laws, they show the suc cessive links by which our Sunday laws have been developed from the original source. They are of great value, beyond their mere historic interest, in showing how the advance of civilization and of Christianity has left the original idea behind. THE SUNDAY LAW OF CHARLES II.' The model Sunday law. Compulsory attendance at church. Compulsory Sundayabservance. The act of the 29th of Charles II, chapter vii, issued in 1676, was the law of the American colonies up to the time of the Revolution, and so became the basis of the American Sunday laws. It runs as follows : " For the better observation and keeping holy the Lord's day, com monly called Sunday : be it enacted by the king's most excellent maj esty, and by and with the advice and consent of the lords, spiritual and temporal, and of the commons in this present Parliament assembled, and by the authority of the same, that all the laws enacted and in force concerning the observation of the day, and repairing to the church thereon, be carefully put in execution ; and that all and every person and persons whatsoever shall upon every Lord's day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately ; and that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor or business or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted), and that every person being of the Degradation and universal ity of sun- worship, 1 Sun-worship has ever been the most extensive and degrading of all heathen idolatry. In the "Encyclopedia Britannica," article "Baal," is the following: "As the sun-god, he [ Baal ] is conceived as the male principle of life and reproduction in nature, and thus in some forms of his worship is the patron of the grossest sensuality, and even of systematic prostitution." In an article in the " Old Testament Student," January, 1886, Dr. Talbot W. Chambers said that the worship of the sun is " the oldest, the most widespread, and the most enduring of all forms of idolatry known to man. The universality of this form of idolatry is something remarkable. It seems to have prevailed everywhere." 2 "Johnson's Universal Cyclopedia5' says : "This statute, somewhat modified by subsequent laws, is the present Sunday law of England, and lies at the basis of the Sunday laws of this country." Revised edition, volume vii, page 626, article " Sunday." HISTORY OF SUNDAY LEGISLATION. 271 age of fourteen years or upwards offending in the premises shall, for every such offense, forfeit the sum of five shillings ; and that no person or persons whatsoever shall publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods, or chattels whatsoever, upon the Lord's day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or showed forth or exposed for sale. " 2. And it is further enacted that no drover, horse-courser, wag oner, butcher, higgler, they or any of their servants, shall travel or come into his or their inn or lodging upon the Lord's day, or any part thereof , .upon pain that each and every such offender shall forfeit twenty shillings for every such offense ; and that no person or persons shall use, employ, or travel upon the Lord's day with any boat, wherry, lighter, or barge, except it be upon extraordinary occasion to be allowed by some justice of the peace of the county, or some head officer, or some justice of the peace of the city, borough, or town corporate, where the fact shall be committed) upon pain that every person so offending shall forfeit and lose the sum of five shillings for every such offense." [ The remainder of section two places such cases in the hands of ordi nary justices of the peace, orders the confiscation of goods cried or ex posed, and the collection of fines by distraint if needful. In case the offender cannot meet the penalties, he shall " be set public in the stocks for the space of two hours."] " 3. Provided, That nothing in this act contained shall extend to the prohibiting of dressing meats in families, or dressing or selling of meat in inns, cook-shops, victualing houses, for such as otherwise cannot be provided, nor to the crying or selling of milk before nine of the clock in the morning, or after four of the clock in the afternoon." [Section four requires all prosecution to be made within ten days of the offense.] [Section five protects the district in which any one traveling on Sunday may chance to be robbed from being responsible for the amount lost, but requires the people to make diligent effort to apprehend the robber after "hue and cry" has been made, under penalty of forfeiting to the crown the amount which might have been recovered.] " Section 6. Provided, also, That no person or persons upon the Lord's day shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment, or decree (except in case of treason, felony, or breach of the peace), but that the service of every such writ, process, warrant, order, judgment, or decree, shall be void to all intents and purposes whatever ; and the person or persons so serving or executing the same shall be as liable to the suit of the party grieved, and to answer damages to him for the doing thereof, as if he or they had done the same without any writ, process, warrant, order, judgment, or decree at all." "Revised Statutes of England from 1235-1685 A. D." (London, 1870), pages 779, 780; also "British Statutes at Large" (London, 1786), volume iii, page 365. Penalty. Sunday travelingprohibited. Penalty. Exemptions Legal papers not to be served on Sunday. 272 American state papers. SUNDAY LAWS OF THE UNITED STATES. PROVISIONS OF THE SEVERAL STATES PROHIBITING SECULAR LABOR ON SUNDAY.1 Acts pro hibited on Sunday. Penalty. ALABAMA. [Code of Alabama, 1886, volume ii, chapter 7, article 14.] Section 4045. Certain Acts Prohibited on Sunday; Pun ishment. Any person who compels his child, apprentice, or servant to perform any labor on Sunday, except the customary domestic duties of daily necessity or comfort, or works^of charity ; or who engages in shooting, hunting, gaming, card-playing, or racing on that day ; or who, being a merchant or shop-keeper, drugs excepted, keeps open store on that day, must, for the first offense, be fined not less than ten nor more than twenty dollars, and, for the second, or any subsequent offense, must be fined not less than twenty nor more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months ; but the provisions of this Style adopted. Sunday laws ridiculous. Illustrations of absurdities. A marked difference I 1 In these Sunday laws, as in the State Constitutions, the marks of ellipsis are not inserted when irrelevant sections are omitted, the numbering of the sections sufficiently indicating such omission ; but when any part of a section is omitted, the ellipsis is in serted. Sections declaring Sunday to be a dies non, or that legal papers shall not be served on that day, are usually omitted, as Sunday is by common law a dies non jur- idicus; and the custom of not holding court on that day or doing any judicial business, is universal in this country, no special statute being required. The incongruity of Sunday laws with the American principles of absolute equality and entire separation of the state from the church is often ridiculous, and has already proved a fruitful subject for the satirist. As, in Georgia, " indecent bathing** is pro hibited only on Sunday ; hence, we must presume, it is allowed on other days I In Ver mont, any person who "visits from house to house, except from motives of humanity or charity, or for moral or religious edification," is to be fined ! . One person cannot even take dinner with another without violating the law ! Nevertheless, the judiciary of this country are endeavoring to uphold the constitutionality of these Sunday laws on the ground that they are civil, not religious. The judiciary will render a decision against a young man because he takes the lady of his choice out riding on Sunday, as was done by a New England court, and then with a mock solemnity proceed to assert that the Sunday laws of this country "rest entirely upon a civil basis." If the dark ages had only been possessed of some modern American judges, they might have disposed of their fifty million or more of martyrs on an " entirely civil basis," and thus avoided the ignominy that is necessarily attached to religious persecution. An apt illustration of the distinction between the civil and religious Sabbath is given by the Rev. Byron Sunderland in the New York '* Evangelist : " "The distinction forcibly reminds me of a certain lord-bishop who said, " 'Oh, but you know, John, I don't swear as a bishop, only as a man.' " 'That is true, your Grace,' replied the valet, 'but I was thinking that when the devil comes after the man, what would become of the bishop* " Take the religious idea away from the day, and how ridiculously absurd these laws appear; — to illustrate: supply "Tuesday*' whenever "Sunday" or its synonyms occur. SUNDAY LAWS OF THE UNITED STATES. 273 section do not apply to the running of railroads, stages, or steamboats, Exceptions. or other vessels navigating the waters of this State, or any manufactur ing establishment which requires to be kept in constant operation. Section 4046. Holding Public Markets and Trading There- Opening in on Sunday. Any person who opens, or causes to be opened, for the Sunday. purpose of selling or trading, any public market-house or place on Sunday, or opens or causes to be opened, any stall or shop therein, or connected therewith, or brings anything for sale or barter to such market or place, or offers the same for sale therein on that day, or buys or sells therein on that day (including live stock or cattle), must, on conviction, be pun- Penalty. ished as prescribed in the preceding section. Any place where people assemble for the purchase and sale of goods, wares, and merchandise, provisions, cattle, or other articles, is a market-house or place, within the meaning of this section. ARIZONA. [ No Sunday law.] ARKANSAS. [Mansfield's Digest of the Statutes of Arkansas, 1884, chapter 45, page 496.] ARTICLE XLIX. — SABBATH-BREAKING. No Sunday law in Ari- Section 1883. Every person who shall, on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to labor, or to perform other services than customary household duties of daily ne cessity, comfort, or charity, on conviction thereof shall be fined one dol lar for each separate offense. Section 1884. Every apprentice or servant compelled to labor on Sunday shall be deemed a separate offense of the master. Section 1885. The provisions of this act shall not apply to steam boats and other vessels navigating the waters of the State, nor to such manufacturing establishments as require to be kept in continual operation. Section 1886. Persons who are members of any religious society who observe as Sabbath any other day of the week than the Chris tian Sabbath, or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeable to the faith and practice of their church or society. Section 1887. Every person who shall, on Sunday, keep open any store or retail any goods, wares, or merchandise, or keep open^any dram shop or grocery, or sell or retail any spirits or wine, shall, on conviction thereof, be fined in any sum not less than ten dollars, nor more than twenty. Section 1888. Charity or necessity on the part of the customer may be shown in justification of the violation of the last preceding action. jg Acts pro hibited on Sunday. Exceptions. Sabbatarians exempted. Merchan dizing pro hibited. 274 AMERICAN STATE PAPERS. Horse-racing prohibited. Card-play ing prohibited. [Revised Statutes, chapter 44, division 7, article 2. J Section 1889. Every person who shall, on the Christian Sabbath, or Sunday, be engaged in the running of any single horse, for any bet or wager on the speed of such horse, or for pastime, or for amusement, without any bet or wager, or'shall be engaged in any cock fight, on any bet or wager, or for pastime, without bet or wager, shall, on conviction thereof, be fined in any sum not exceeding one hundred dollars, nor less than twenty dollars. [Act of January 12, 1853.] Section 1890. Every person who shall, on the Christian Sabbath or Sunday, be engaged in any game of brag, bluff, poker, seven-up, three-up, twenty-one, vingt-et-un, thirteen cards, the old trick, forty-five, whist, or any other game at cards known by any name now known to the laws, or with any other new name, for any bet or wager on such games, or for amusement, without any bet or wager, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars, nor more than fifty dollars. [Act of January 19, 1855.] Section 1891. If any person shall be found hunting with a gun, with intent to kill game, or shooting for amusement on the Sabbath day, on conviction thereof he shall be fined in any sum not less than five nor more than twenty-five dollars for each separate offense. [Act 18, section 2.] Section 1892. If such offense should be committed by *. minor, under the age of twenty-one years, and it shall be made to appear that the offense was committed by or with the consent or approbation of the parent or guardian of said minor, then such parent or guardian, as aforesaid, shall also be fined according to the provisions of section 1891. [Act of November 5, 1875, section 4.] Section 1893. If any person shall be engaged in running a horse race on the day known as the Christian Sabbath, or Sunday, on a bet or wager, or for sport or pastime, with or without such bet or wager, he shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not less than twenty-five nor for more than one hundred dollars. [Acts and Resolutions of the General Assembly of the State of Arkansas, 1885, page 37.1 ACT XXXIII. Section i. That section 1886 of the Revised Statutes of Arkansas exempting . . Sabbatarians be, and the same is, hereby repealed. *In "Civil Government and Religion" (New York, 1889), by A. T.Jones, there is a summary of upward of twenty prosecutions of Sabbatarians, following this repeal. See also the speech of Senator Crockett, ante page 208. Hunting prohibited. Offenses of minors. Horse-racing prohibited. Section ixemptin iabbatar repealed, SUNDAY LAWS OF THE UNITED STATES. 275 Section 2. That section 1887 of the Revised Statutes of Arkansas Section 1887 be amended so as to read as follows : Every person who shall, on Sun- amended- day, keep open any store or retail any goods, wares, or merchandise, or keep open any dram-shop or grocery, or who shall keep the doors of the same so as to afford ingrees (ingress) or egrees (egress), or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five ($25.00) dollars, nor more than one hundred ($100.00) dollars. ACT xxxix. Section 1. That, hereafter, it shall be unlawful for any club, per- Base-ball son, or persons, to engage in any game or play of base-ball in this State P'-?;5"n.g pro" on the Christian Sabbath, or Sunday. Section 2. That all persons violating the preceding section shall Penalty. be guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than ten ($10.00) dollars nor more than twenty ($20.00) dollars in each case. [ Acts and Resolutions of the General Assembly of the State of Arkansas, 1887, page 12.] ACT II. Section i. That no person who from religious belief keeps any other day than the first day of the week as the Sabbath shall be required to observe the first day of the week, usually called the Christian Sab bath, and shall not be liable to the penalties enacted against Sabbath- breaking ; Provided, that no store or saloon shall be kept open or busi ness carried on therein on the Christian Sabbath; And provided fur ther, that no person so observing any other day shall disturb any relig ious congregation by his avocations or employments.1 Sabbatarians exempted. CALIFORNIA. [No Sunday Lavv.]y 1 For the speech of Senator Crockett on the adoption of this exemption clause, see ante page 208. Senator Crockett declared that under the Arkansas Sunday law " such ill deeds and foul oppressions have been perpetrated upon an inoffensive class of free American citizens in Arkansas, for conscience' sake, as should mantle the cheek of every lover of his State and country with indignant shame." 2 In 1883 the question of the repeal of the Sunday law was made the issue of the political campaign. In 1858 Sunday laws had been declared to be unconstitutional (see page 162 et seq.) ; but in 1861 a new law was enacted which was upheld by the new court, and the former decision was overruled. But few prosecutions, however, were made until early in the last decade, when, under the pressure of a fanatical move, so many arrests were made that the proceedings of the courts were clogged. Among those arrests was that of one of the most prominent Sabbatarians of the country, who was then manager of the Pacific Press Publishing House, the largest on the Pacific Coast In the campaign of 1883, Sunday legislation was argued by the press in all its bearings, and the question probably had never been so thoroughly canvassed and its nature so well understood by the public before. As a consequence, the law, on the recommenda tion of the Governor, was immediately repealed. Attempts have been made repeat edly since to re-enact a Sunday law, but such attempts have met with receptions that are exceedingly discouraging even to the most sanguine agitators. No Sunday law in Cali fornia. Injustice of Sunday laws. History of the repeal of California'sSunday law. Attempts to re-enact the Sunday law. 276 AMERICAN STATE PAPERS. Disturbing peace on Sun day. Other dis turbances on Sunday. Sunday theaters, etc., prohibited. Sunday gaminghouses, etc., prohibited. Danger of Sunday legislation. COLORADO. [Criminal Code of Colorado, 1883, chapter 25.] 876. — DISTURBING PEACE ON SUNDAY — PENALTY. Section 188. (159.) Any person who shall hereafter knowingly disturb the peace and good order of society, by labor or amusement on the first day of the week, commonly called Sunday (works of neces sity and charity excepted), shall be fined, on conviction thereof, in any sum not exceeding fifty dollars. 877. — DISTURBING FAMILY, CONGREGATION, PROCESSION' ON SUNDAY — PENALTY. Section 189. (160.) Whoever shall be guilty of any noise, rout, or amusement on the first day of the week, called Sunday, whereby the peace of any private family may be disturbed, or who shall, by a disor derly or immoral conduct, interrupt or disturb the meeting, processions, or ceremonies of any religious denomination, on either a Sunday or week day, such person so offending shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding fifty dollars. [Chapter 64, page 658, section 2113.] THEATERS, CIRCUS, ETC., INCLUDED — SUNDAY — FINE. Section 18. This chapter shall extend to and include all theaters, circuses, and shows where an admission fee is charged for entrance thereto. No person shall be allowed by virtue of such license to open any place of public amusement, such as a theater, circus, or show, on the Sabbath, or Lord's day ; but any person who shall so offend on such day shall be fined in a sum not less than fifty nor more than one hun dred dollars, for every such offense.1 [Criminal Code of Colorado, 1883, chapter 25, page 331.] SECTION 839. — OPEN LEWDNESS — KEEPING LEWD HOUSE — PENALTY. Section 151. (132.) If any person shall be guilty of open lewd ness, or other notorious act of public indecency, tending to debauch the public morals, or shall keep open any tippling- or gaming-house on the Sabbath day or night, or shall maintain or keep a lewd house or place for the practice of fornication, or shall keep a common, ill-gov erned, and disorderly house, to the encouragement of idleness, gaming, drinking, fornication, or other misbehavior, every such person shall, on conviction, be fined not exceeding one hundred dollars, or imprisoned in the county jail not exceeding six months. 1 On the right of prohibiting Sunday pastimes, see note from Mr. John Stuart Mill, ante page 160. He says that the only ground on which such restrictions "can be de fended must be that they are religiously wrong, a motive of legislation which can never be too earnestly protested against." SUNDAY LAWS OF THE UNITED STATES. 277 CONNECTICUT. [General Statutes of Connecticut, 1888, chapter 99, page 349.] Section 1569. Every person who shall do any secular business or labor, except works of necessity or mercy, or keep open any shop, ware-house, or manufacturing or mechanical establishment, or expose any property for sale, or engage in any sport or recreation on Sunday, between sunrise and sunset, shall be fined not more than four dollars nor less than one dollar. Section 1570. Every person who shall be present at any concert of music, dancing, or other public diversion on Sunday, or on the even ing thereof, shall be fined four dollars. Section 1571. Prosecutions for violations of the two preceding sections shall be exhibited within one month after the commission of the offense. Section 1572. No person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day, shall be liable to prosecution for performing secular business and labor on the Sabbath, provided he disturbs no other person while attending public worship. Section 2409. Every person who shall set or draw a seine or gill net in any river between sunset on Saturday evening and sunset on the following Sunday evening, between the fifteenth day of March and June, or who shall at any time in any river use a net or seine for catch ing shad, with a mesh less than two and a half inches square, shall be fined one hundred dollars. Section 2533. Every person who shall on Sunday shoot or hunt or have in possession in the open air the implements for shooting, shall be fined not less than seven or more than twenty-five dollars. Section 2534. In case of conviction under any of the preceding sections of this chapter, one half of the fine imposed by the court shall be paid to the informer. Section 3523. No railroad company shall run any train on any road operated by it within this State, between sunrise and sunset on Sunday, except from necessity or mercy ; Provided, that before ten o'clock and thirty minutes in the forenoon and after three o'clock in the afternoon it may run trains carrying the United States mail, and such other trains or classes of trains as may be authorized by the railroad commissioners of this State, on application to them on the ground that the same are re quired by the public necessity, or for the preservation of freight. Section 3524. No railroad company shall permit the handling, the loading, or the unloading of freight on any road operated by it, or at any of its depots or stations within this State, between sunrise and sun set on Sunday, except from necessity or mercy. Secular work pro hibited. Attendance at Sunday amusementsprohibited. Sabbatarians exempted. Sunday fishing pro hibited at certain times. Sunday hunting pro hibited. Sunday trains pro hibited. Railroad work on Sun day prohib ited. 278 AMERICAN STATE PAPERS. Penalty. Worldly labor pro hibited on Sunday. Amusements prohibited. SECTION 3525. Every railroad company which shall violate any of the provisions of the five preceding sections shall forfeit to the State the sum of two hundred and fifty dollars for any such violation. [Act of May 7, 1889, chapter 130.] No person who receives a valuable consideration for a contract, ex press or implied, made on Sunday, shall defend any action upon such contract on the ground that it was so made, until he restores such con sideration.1 DELAWARE. [Revised Statutes of the State of Delaware, 1874, chapter 131, page 782.] Section 4. If any person shall perform any worldly employment, labor, or business on the Sabbath day (works of necessity and charity excepted), he shall be fined four dollars, and on failure to pay such fine and costs, shall be imprisoned not exceeding twenty-four hours. If any carrier, peddler, wagoner, or driver of any public stage or carriage, or any carter, butcher, or drover, with his horse, pack, wagon, stage, carriage, cart, or drove, shall travel or drive upon the Sabbath day ; or if any retailer of goods shall expose the same to sale on the Sabbath ; he shall be fined eight dollars, and on failure to pay such fine and costs, shall be imprisoned not exceeding twenty-four hours. Any justice of the peace may stop any such person so traveling on the Sabbath, and detain him until -the next day. If any person shall be guilty of fishing, fowling, horse-racing, cock fighting, or hunting game on the Sabbath day, he shall be fined four dollars, and on failure to pay such fine and costs, shall be imprisoned as aforesaid. If any number of persons shall assemble to game, play, or dance on the Sabbath day, and shall engage, or assist in such game, play, or dance, every such person shall be fined four dollars, and on failure to pay such fine and costs, shall be imprisoned as aforesaid. Any justice of the peace of the county shall have jurisdiction and cognizance of the offenses mentioned in this section. Sunday contracts. Injustice of invalidating them. Opposition to separation of church and state. *For a discussion of the subject of Sunday contracts, see the dissent of Judge Caldwell, ante pages 144, 145 ; also note from Judge Thurman, ante page 153. The state has no more right to avoid a paper made on Sunday than to avoid a paper made on Tuesday or any other day of the week. As evident as is the religious phase of these Sunday statutes, the State Legislatures still cling to them with all the tenacity character istic of church-and-state governments. Every movement for the freedom of the indi vidual, every movement that encourages individuality and lessens the power of the government over the minds and actions of its subjects, has been successful only after a long and severe contest with the dominant church, with established custom, and with superstitious laws. It was only by indomitable will and indefatigable energy that Jefferson and Madison and their co-laborers succeeded in establishing the principles of entire separation of church and state in our national political system : and it will take many years, using the same energy, to establish the same principles in the political systems of the States. SUNDAY LAWS OF THE UNITED STATES. 279 DISTRICT OF COLUMBIA. [ Laws of the District of Columbia, 1868, pages 136, 137.] AN ACT TO PUNISH BLASPHEMERS,1 SWEARERS, DRUNKARDS, AND SABBATH-BREAKERS, ETC. SECTION IO. Be it enacted, That no person whatsoever shall work or do any bodily labor on the Lord's day, commonly called Sunday, and that no person having children, servants, or slaves, shall command, or wittingly or willingly suffer any of them £0 do any manner of work or labor on the Lord's day (works of necessity and charity always ex cepted), nor shall suffer or permit any children, servants, or slaves, to profane the Lord's day by gaming, fishing, fowling, hunting, or unlaw ful pastimes or recreations ; and that every person transgressing this act, and being thereof convicted by the oath of one sufficient witness, or confession -of the party before a single magistrate, shall forfeit two hun dred pounds of tobacco, to be levied and applied as aforesaid. Section i i . And be it likewise enacted, That no housekeeper shall sell any strong liquor on Sunday (except in cases of absolute necessity), or suffer any drunkenness, gaming, or unlawful sports or recreations, in his or her house, on pain of forfeiting two thousand pounds of tobacco to his lordship, one half to the use aforesaid, and the other half to him that will sue for the same, to be recovered by action of debt, bill, plaint, or information, wherein no essoin, protection, or wager of law shall be allowed. [Laws of the District of Columbia, 1868, page 243.] Section 10. Be it further enacted, That . . said levy court shall also have power to pass such ordinances as it may deem necessary to effectually prevent Sabbath-breaking in said county by hunting, gaming, fishing, or otherwise, on Sunday. [Revised Statutes of the United States Relating to the District of Columbia, passed by the first session forty-third Congress, 1873-74, chapter 13, page 40, and chapter 1, page 9.] Section 335. It shall be the duty of the board of police at all times of the day and night within the boundaries of said police district . . . to see that all laws relating to the observance of Sunday . . . are promptly enforced. Section 92. The laws of the State of Maryland not inconsistent with this title, as the same existed on the twenty-seventh day of February, 1801, except as since modified or repealed by Congress or by authority thereof, or until so modified or repealed, continue in force within the District. Acts pro hibited on Sunday. Further prohibitions. Power dele gated to levy court. Sunday observance to be en forced. Section adopting Maryland'sreligious laws. 1 For the provisions of this act concerning blasphemy, see ante pages 80, 81, note. For the first offense the offender is to be bored through the tongue, and fined twenty pounds ; for the second offense he is to have the letter B burned in his forehead, and to be fined forty pounds ; and for the third offense he must " suffer death without the benefit of the clergy." And under that law, all Unitarians would be condemned. Punishment of blasphemy. 280 AMERICAN STATE PAPERS. Sunday business pro hibited. Sunday merchandizing prohibited. Penalty. Sunday shooting pro hibited. FLORIDA. [McClellan's Digest of the Laws of Florida, 1881, chapter 79, page 425.] CRIMES — MISDEMEANORS. SECTION 9. It shall not be lawful for any person to follow any pur suit, business, or trade on the Sabbath, the first day of the week, either by manual labor or with animal or mechanical power, except the same be work of "necessity," or justified by the accident or circumstances of the occasion. Section io. No merchant or shop-keeper or other person shall keep open store, or dispose of any wares, merchandise, goods, or chattels on the Sabbath day, or sell or barter the same ; Provided, that in cases of emergency or necessity they may dispose of the comforts and neces saries of life to customers without keeping open doors. Section ii. Any violation of this law shall be deemed a misde meanor, and any person convicted thereof shall be subject to a fine of not less than twenty dollars and not more than fifty dollars. Section 12. If any person on the Sabbath day sha.ll employ his ap prentice or servant in labor or other business, except it be in the ordinary household business of daily necessity, or other work of necessity or charity, he shall forfeit and pay the sum of ten dollars for every such offense. Section 13. No merchant or shop-keeper or other person shall keep open store or dispose of any wares, merchandise, goods, or chattels on the Sabbath day, or sell or barter the same, upon pain that every person so offending shall forfeit and pay the sum of twenty dollars for every such offense. Section 14. It shall not be lawful for any person or persons within the State of Florida, to use fire-arms by hunting game or fir ing at targets on Sunday ; and any violation of this section shall be deemed a misdemeanor, and the person or persons so offending shall, upon conviction before any justice of the peace, be punished by a fine of not less than five nor more than twenty-five dollars, or imprisonment not exceeding twenty days. GEORGIA. [Code of the State of Georgia, 1882, part 4, title 1, division io, page 1196.1 RUNNING FREIGHT TRAINS ON THE SABBATH DAY. Certain Section 4578. . If any freight train, [excursion trains, or other Sunday trains ..¦.,., , . . , , . „ , prohibited. trains than the regular trains run for the carrying of the mails or passengers 1], shall be run on any railroad in this State on the Sab bath day (known as Sunday), the superintendent of the transportation 1 Inserted in this section by amendment during the session of the Legislature of 1882-83. SUNDAY LAWS OF THE UNITED STATES. 281 of such railroad company, or the officer having charge of the business of that department of the railroad, shall be liable for indictment for a misdemeanor in each county through which such trains shall pass, and, on conviction, shall be for each offense punished as prescribed in section 4310 of this code. On such trial it shall not be necessary to allege or prove the names of any of the employees engaged on such train, but the simple fact of the train being run. The defendant may justify himself by proof that such employees acted in direct violation of the orders and rules of the defendant ; Provided, always, that whenever any train on any railroad in this State, having in such train one or more cars loaded with live stock, which train shall be delayed beyond schedule time, shall not be required to lay over on the line of road or route during Sunday, but may run on to the point where, by due course of shipment or consignment, the next stock-pen on the route may be, where said animals may be fed and watered, according to the facilities usually afforded for such transportation. And it shall be lawful for all freight trains on the different railroads in this State, running over said roads on Saturday night, to run through to destina tion ; Provided, the time for arrival, according to the schedule by which the train or trains started on the trip, shall not be later than eight o'clock on Sunday morning. Section 4579. (4493-) (445 1.) Violating Sabbath. Any tradesman, artificer, workman, or laborer, or other person whatever, who shall pursue their business or work of their ordinary callings on the Lord's day (works of necessity or charity only excepted), shall be guilty of a misdemeanor, and, on conviction, shall be punished as pre scribed in section 4310 of this code.1 Section 4580. Hunting on Sunday ; Penalty. Any person or Liability of officers. Sunday labor pro hibited. Sunday persons who shall hunt any kind of game with gun or dogs, or both, on hibitedf Pr° the Sabbath day, shall be guilty of a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this code.1 IThis Georgia Sunday law furnishes a good illustration of how bigots are enabled to punish persons whose doctrines they abhor, in a way that the framers of the laws never intended, and shows the danger of legislatures entering into the realm of relig ion, and enacting such laws. Sections 4579, 4580 provide that persons convicted under those sections " shall be punished as prescribed in section 4310 of this code." Section 4310 provides that persons punished under it "shall be punished by a fine not to exceed one thousand dollars, imprisonment not to exceed six months, to work in the chain-gang on the public works, or on such other works as the county authorities may employ the chain-gang, not to exceed twelve months, and any one or more of these punishments may be ordered in the discretion of the judge." But to show how much more severe this law may be in the cases of Sabbatarians, it is only necessary to suggest the fact that they will not, under any circumstances, work. upon the day that they consider as sacred. Then what will be the consequence ? The consequence will simply depend upon the humanity of the Supreme Court of the county. For if Sabbatarians obstinately and repeatedly refuse to work on Saturday, if they were so ordered, it would be much easier to convict them of "insurrection" than it formerly was to make "treason" cover the cases of obstinate Sabbatarians, in England, as was frequently done. The "People's Cyclopedia of Universal Knowl- Georgia Sunday law. Possibility of severe persecution. Probable "insurrec tion " of Sab batarians. 282 AMERICAN STATE PAPERS. Indecent bathing pro hibited on Sunday. Sabbatarians punishedcapitally. Death penalty in Georgia. No security against per- With relig ious revivals come revivals of bigotry. Probability of persecution. Justice perverted. Individuals ' should be left free. Interference with individ uality illegiti mate. Section 4581. Indecent Bathing. Any person who shall bathe in any stream or pond of water on the Sabbath day, in view of any road or pass-way, leading to or from any house of religious worship, edge," in an account of one of these cases, says : " On October 19, 1661, Mr. James [Rev. John James, a Sabbatarian minister] was arrested in his pulpit, tried, and condemned on the false charge of 'treason/ a proceeding not uncommon in those days in order to get rid of men whose religious and reformatory views could not be answered otherwise. He was ' hung, drawn, and quartered.' ' After he was dead, his heart was taken out and burned, his quarters were affixed to the gates of the city, and his head was set up in Whitechapel, on a pole opposite the alley in which his meeting-house stood.' " Pages 1597, 1598, article "Seventh-day Baptists." So if the Sabbatarians in the chain-gangs of Georgia obstinately refuse to obey orders by not working on Saturday, and are convicted of " insurrection " before the Supreme Court of the county, then they shall, according to section 4821, "be deemed guilty of a capital offense, and punished with death, or such other punishment as the judge in his discretion may inflict." The idea, however, that persecution would result from these laws is generally con sidered with incredulity. The assertion is continually made that the public mind will not allow persecution. But a true and forcible answer is given by John Stuart Mill, in speaking of religious disabilities : "But unhappily there is no security in the state of the public mind, that the suspension of worse forms of legal persecution, which has lasted for about the space of a generation, will continue. In this age the quiet surface of routine is as often ruffled by attempts to resuscitate past evils, as to introduce new benefits. What is boasted of at the present time as the revival of religion, is always, in narrow and uncultivated minds, at least as much the revival of bigotry ; and where there is the strong permanent leaven of intolerance in the feelings of a people, which at all times abides in the middle classes of this country, it needs but little to provoke them into actively per secuting those whom they have never ceased to think proper objects of persecution." That there is a probability of persecution, and of the severest that the laws can by any means be made to inflict, is evident from the recent case of King v. the State, the recent Tennessee Sunday case. The law makes provision for the punishment of viola tions of Sunday sacredness by a fine of only three dollars. But members of the domi nant religious sect had Mr. King indicted under the charge that his plowing upon Sunday was a public nuisance (which the law never intended, and which is manifestly a perversion of the law), and in this way he was fined seventy-five dollars and costs for working on a day that some one else considers sacred ! Such action outrages justice exactly as much as though the Sunday-keepers in the country were being fined and sent to jail for working on Saturday, on the ground that such work was a public nui sance, because, forsooth, some Sabbatarians regard that day as sacred ! If the individual, says Mr. Mill, "refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost. That mankind are not infallible ; that their truths, for the most part, are only half-truths ; that unity of opinion, unless resulting from the fullest and freest com parison of opposite opinions, is not desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognizing all sides of the truth,— are principles applicable to men's modes of action, not less than to their opinions. As it is useful that while mankind are imperfect there should be different opinions, so it is that there should be different experiments of living ; that free scope should be given to varieties of character short of injury to others ; and that the worth of different modes of life should be proved practically, when any one thinks fit to try them. It is desirable, in short, that in things which do not primarily concern others, individuality should as sert itself. Where not the person's own character, but the traditions or customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and quite the chief ingredient of individual and social progress." SUNDAY LAWS OF THE UNITED STATES. 283 shall be considered guilty of a misdemeanor, and, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars, or imprisoned in the common jail of the county, at the discretion of the court, not exceeding six months. Section 4582. Fines for Violation of the Sabbath. All moneys arising from fines imposed for offenses, the gist of which con sists in their being committed on the Sabbath day, shall be paid to the ordinary of the county, to be by him distributed for the purpose of establishing and promoting Sabbath-schools in the county. [Code of the State of Georgia, 1882, page 1137.] Section 4310. (4245.) (4209.) Punishment of Accessories After THE Fact. Accessories after the fact, except where it is otherwise ordered in this code, shall be punished by a fine not to exceed one thousand dollars, imprisonment not to exceed six months, to work in the chain-gang on the public works, or on such other works as the county authorities may employ the chain-gang, not to exceed twelve months, and any one or more of these punishments may be ordered in the discretion of the judge ; Provided, that nothing herein contained shall authorize the giving the control to private persons, or their employ ment by the county authorities in such mechanical pursuits as will bring the products of their labor into competition with the products of free labor. [ Code of the State of Georgia, 1882, page 1248 et sea.'] OF CONVICTS. Section 4814. Convicts ; How Disposed of. In all cases where persons are convicted of misdemeanor, and sentenced to work in the chain-gang on the public works, or public roads, or when such persons are confined in jail for non-payment of fines imposed for such misdemeanor, the ordinary of the county, and where there is a Board of Commissioners of roads and revenues of the counties, then said Board of Commissioners, and in those counties where there is a county judge, then the said county judge, where such conviction was had, or where such convicts may be confined, may place such convicts, in the county or elsewhere, to work upon such public works of the county, in chain-gangs, or otherwise, or hire out such convicts, upon such terms and restrictions as may subserve the ends of justice, and place such convicts under such guards as may be necessary for their safe keeping.1 Section 4821. (4723.) Insurrection. Whenever any convict or convicts now confined, or hereafter to be confined, in the peniten tiary of this State, or member or members of the chain-gang now confined, or hereafter to be confined, in the penitentiary of this State, or wherever else employed as such, shall be guilty of insurrection or attempt at insurrection, such convict or convicts, or member or mem- Penalty. Fines to go to religious purposes. Penalty for violations of Sunday sacredness. Disposition of convicts. Insurrection. ^This section referred to and construed in 55 Georgia, 435. 284 AMERICAN STATE PAPERS. of obstinate Sabbatarians. Sunday tippling-houses pro hibited. Disturbing the peace. Possible fate bers of the chain-gang, shall, upon trial and conviction in the Supreme Court of the county in which the crime is committed, be deemed guilty of a capital offense, and punished with death, or such other punish ment as the judge in his discretion may inflict.1 IDAHO. [No Sunday law. ] 2 ILLINOIS. [Revised Statutes of Illinois, 1889, chapter 38, page 499.] SUNDAY. Section 259. Tippling-house on. Whoever keeps open any tip- pling-house, or place where liquor is sold or given away, upon the first day of the week, commonly called Sunday, shall be fined not exceeding two hundred dollars. Section 260. Definition. Sunday shall include the time from midnight to midnight.3 Section 261. Disturbing Peace of Society on. Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted), or by any amusement or diversion on Sunday, shall be fined not exceeding twenty-five dollars. This section shall not be construed to prevent watermen and railroad companies from landing their passengers, or watermen from loading and unloading their car goes, or ferrymen from carrying over the water travelers and persons moving their families, on the first day of the week, nor to prevent the due exercise of the rights of conscience by whomever thinks proper to keep any other day as a Sabbath. !The extremity to which those who disregard Sunday as the Sabbath or rest day may be subjected in Georgia, is in marked contrast with the protection in the exercise and enjoyment of equal rights and privileges guaranteed by section 2776 of the code of Iowa. (See page 286.) One is the voice of religious intolerance; the other the ex pression of philanthropy, equality, and justice. 2 The Revised Statutes of Idaho for 1887 contain^ noSunday law. The statutes of the Territory, that were published in 1874-75 (pages 844, 845), however, provided that "no shop-keeper, merchant, saloon-keeper, or other person, except apothecaries and druggists, shall keep open the front door of any shop, store, saloon, or other place of business, between the hours of ten o'clock in the forenoon, and three o'clock in the afternoon," under penalty of a fine of from twenty to fifty dollars. On the other hand, the Revised Statutes for 1887 provide that "no books, papers, tracts, or documents of » political, sectarian, or denominational character must be used or introduced in any school established under the provisions of this Title, and any and every political, sectarian, or denominational doctrine is hereby expressly forbidden to be taught therein, nor shall any teacher nor any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this Title." 8 The inconsistency of Sabbath legislation is shown in such provisions as this. Some believe the Sabbath should begin and end at midnight, others at sunset, ad ducing the scripture, "From even to even shall ye celebrate your Sabbath" (Lev. xxiii, 32), and Mark i, 32 ; Deut. xvi, 6 ; Judges xiv, 18, etc., in support of the view. Exemption. Time to begin and end Sabbath. SUNDAY LAWS OF THE UNITED STATES. 285" Section 262. Disturbing Peace of Family on. Whoever Disturbance shall be guilty of any noise, rout, or amusement on the first day of the °f famllies- week, called Sunday, whereby the peace of any private family may be disturbed, shall be fined not exceeding twenty-five dollars. [Revised Statutes of Illinois, 1889, page 998,] PENITENTIARIES. SECTION 31. Sunday. Facilities for attending religious services Sunday regularly on Sundays shall be afforded each convict, so far as the same p^fded'for" can be done judiciously, and upon no pretext shall a convict on contract ctmvicls- be required to labor on Sunday, nor shall any convict be required to do other than necessary labor for the State on that day. INDIANA. [ Revised Statutes of the State of Indiana, 1888.] SABBATH-BREAKING. SECTION 2000. Whoever, being over fourteen years of age, is found Secular on the first day of the week, commonly called Sunday, rioting, hunting, prohibTted'on fishing, quarreling, at common labor, or engaged in his usual avocation Sunday. (works of charity and necessity only excepted), shall be fined in any sum not more than ten nor less than one dollar ; but nothing herein con- Sabbatarians tained shall be construed to affect such as conscientiously observe the exemPte • seventh day of the week as the Sabbath, travelers, families removing, keepers of toll-bridges and toll-gates, and ferrymen acting as such. BASE-BALL. SECTION 2000a. It shall be unlawful for any person or persons to Sunday engage in playing any game of base-ball, where any fee is charged, or ing prohibited. where any reward or prize, or profit, or article of value is depending upon the result of such game, on the first day of the week, commonly called Sunday ; and every person so offending shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not ex ceeding twenty-five dollars. SELLING LIQUOR ON SUNDAY. SECTION 2098. Whoever shall sell, barter, or give away to be drunk Sunday . . ...... liquor-selling as a beverage, any spirituous, vinous, malt, or other intoxicating liquor prohibited. upon Sunday, the fourth day of July, the first day of January, the twenty-fifth day of December (commonly called Christmas day), Thanks giving day as designated by proclamation of the Governor of this State or the President of the United States, on any legal holiday ; or upon the day of any election in the township, town, or city where the same may be holden ; or between the hours of eleven o'clock P. M. and five o'clock A. M., shall be fined in any sum not more than fifty dollars nor less than ten dollars, to which may be added imprisonment in the county jail not more than sixty days nor less than ten days. 286 AMERICAN STATE PAPERS. Sunday liquor-selling by druggists prohibited. Secular employmentsprohibited on Sunday. Sabbatarians exempted. Equality of Sabbatariansand Sunday- keepers. DRUGGISTS SELLING LIQUOR ON SUNDAY. Section 2099. It shall be unlawful for any druggist or druggist clerk to sell, barter, or give away any spirituous, vinous, malt, or other intoxicating liquor on Sunday ; or upon the fourth day of July, the first day of January, the twenty-fifth day of December (commonly called Christmas), Thanksgiving day, on any legal holiday ; or upon the day of any State, county, township, primary, or municipal election, in the township, town, or State where the same may be holden ; or between the hours of eleven o'clock P. M. and five o'clock A. M. of any day, un less the person, to whom the same is sold, bartered, or given shall have first procured a written prescription therefor from some regular practicing physician of the county where the same is so sold, bartered, or given away. Any person so offending shall be fined in any sum not more than fifty dollars nor less than ten dollars, to which may be added imprisonment in the county jail not more than sixty days nor less than ten days. IOWA. [McLain's Annotated Code and Statutes, 1888, volume ii, page 1574, chapter 12.] Section 5438. Breach of Sabbath. 4072. If any person be found on the first day of the week, commonly called Sabbath, engaged in any riot, fighting, or offering to fight, or hunting, shooting, carrying of fire-arms, fishing, horse-racing, dancing, or in any manner disturbing any worshiping assembly or private family ; or in buying or selling property of any kind, or in any labor, the work of necessity and charity only excepted, every person so offending shall on conviction be fined in a sum not more than five dollars nor less than one dollar, to be recov ered before any justice of the peace in the county where such offense is committed, and shall be committed to the jail of said county until the said fine, together with the costs of prosecution, shall be paid ; but nothing herein contained shall be construed to extend to those who con scientiously observe the seventh day of the week as the Sabbath, or to prevent persons traveling, or families emigrating, from pursuing their journey, or keepers of toll-bridges, toll-gates, and ferrymen from attend ing the same. trial by jury. SECTION 2776. A person whose religious faith and practice are to keep the seventh day of the week as a day set apart by divine command, and dedicated to rest and religious uses, cannot be compelled to attend as a juror on that day, and shall in other respects be protected in the enjoyment of his opinions, to the same extent as those who keep the first day of the week.1 1 This is equality as far as Sabbatarians and Sunday-keepers are concerned ; but why not extend this equality to all — to the nullindian as well as to the Christian 1 "All men are created equal," and any infringement of this equality is un-American SUNDAY LAWS OF THE UNITED STATES. 287 KANSAS. [ General Statutes, volume i, 1889.] Section 2395. Laboring on Sunday. Every person who shall Secular either labor himself, or compel his apprentice, servant, or any other person prohibited on under his charge or control, to labor or perform any work other than the Sunday. household offices of daily necessity, or other works of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding twenty-five dollars. Section 2396. Exceptions. The last section shall not extend to Sabbatarians any person who is a member of a religious society, by whom any other exemPted- than the first day of the week is observed as a Sabbath, so that he ob serves such Sabbath, nor to prohibit any ferryman from crossing passen gers on any day in the week. Section 2397. Horse- racing, etc., on Sunday. Every person Sunday who shall be convicted of horse-racing, cock fighting, or playing at cards, etafpro^™8' or game of any kind, on the first day of the week, commonly called hlblted- Sunday, shall be deemed guilty of a misdemeanor, and fined not exceed ing fifty dollars. Section 2398. Selling, etc., on Sunday. Every person who Sunday shall expose to sale any goods, wares, or merchandise, or shall keep open prohibited. any ale or porter house, grocery, or tippling shop, or shall sell or retail any fermented or distilled liquor, on the first day of the week, com monly called Sunday, shall, on conviction, be adjudged guilty of a mis demeanor, and fined not exceeding fifty dollars. Section 2399. Exceptions. The last section shall not be con- Exceptions. strued to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity. Section 2439. Hunting. Every person who shall engage in Sunday hunting or shooting on the first day of the week, commonly called prohibited. Sunday, shall be deemed guilty of a misdemeanor, and upon convic tion be fined in a sum not less than five nor more than twenty dollars. KENTUCKY. [ General Statutes of Kentucky, 1883, chapter 21, pages 245, 320, 344.] Section 9. If any proceeding is directed by law to take place, or any act is directed to be done, on a particular day of a month, if that day happen to be Sunday, the proceeding shall take place, or the act shall be done, on the next day. Section io. No work or business shall be done on the Sabbath day, Secular except the ordinary household offices, or other work of necessity or prohibited on charity. If any person on the Sabbath day shall himself be found at Sundav- his own, or any other trade or calling, or shall employ his apprentices or other person, in labor or other business, whether the same be for profit 288 AMERICAN STATE PAPERS. Penalty. Sabbatarians exempted. Hunting prohibited. Suit to be commenced within six months. or amusement, unless such as is permitted above, he shall be fined not less than two nor more than fifty dollars for each offense. Every person or apprentice so employed shall be deemed a separate offense. Persons who are members of a religious society, who observe as the Sabbath any other day in the week than Sunday, shall not be liable to the penalty prescribed in this section, if they observe as the Sabbath one day in each seven, as herein provided. Section ii. If any person shall hunt game with a gun or dogs on the Sabbath, he shall be fined not less than five nor more than fifty dollars for each offense. Section 23. Prosecutions by the commonwealth for felony shall not be barred by lapse of time or any law of limitations. Prosecutions by the commonwealth to recover a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person, to recover any such penalty, shall be commenced within one year after the right to such penalty accrued, and not after, unless a different time is allowed by the law imposing the penalty. Prosecutions for profane swearing, cursing, or being drunk, or Sabbath-breaking, and against sur veyors of public roads, shall be commenced within six months after the offense is committed, and not after. LOUISIANA. Secular employmentsprohibited on Sunday. Penalty. Exceptions. [Acts of Louisiana, 1886, page 28.] Section i . Be it enacted by the General Assembly of the State of Louisiana, That from and after the thirty-first day of December, A. D. 1886, all stores, shops, saloons, and all places of public business, which are or may be licensed under the law of the State of Louisiana, or under any parochial or municipal law or ordinance, and all plantation stores, are hereby required to be closed at twelve o'clock on Saturday nights, and to remain closed, continuously for twenty-four (24) hours, during which period of time it shall not be lawful for the proprietors thereof to give, trade, barter, exchange, or sell any of the stock or any article of merchandise kept in such establishment. Section 2. Be it further enacted, etc., That whosoever shall vio late the provisions of this act, for each offense shall be deemed guilty of a. misdemeanor, and on trial and conviction, shall pay a fine of not less than twenty-five dollars nor more than two hundred and fifty dol lars, or be imprisoned for not less than ten days nor more than thirty days, or both, at the discretion of the court ; provisions of this act shall not apply to newsdealers, keepers of soda fountains, places of resort for recreation and health, watering-places, and public parks, nor prevent the sale of ice. Section 3. Be it further enacted, etc., That the provisions of this act shall not apply to newspaper offices, printing-offices, bookstores, drug stores, apothecary shops, undertaker shops, public and private mar- SUNDAY LAWS OF THE UNITED STATES. 289 kets, bakeries, dairies, livery-stables, railroads, whether steam or horse, Exceptions. hotels, boarding-houses, steamboats and other vessels, warehouses for receiving and forwarding freights, restaurants, telegraph offices, and theaters, or any place of amusement, providing no intoxicating liquors are sold in the premises ; Provided, that stores may be opened for the purpose of selling anything necessary in sickness and for burial purposes ; Provided, that nothing in this act shall be construed so as to allow hotels or boarding-houses to sell or dispose of alcoholic liquors, except wine for table use on Sundays ; And provided further, that no alcoholic,, vinous or malt liquors shall be given, traded, or bartered, or sold, or delivered in any public place on said day, except when actually administered or prescribed by a practicing physician in the discharge of his professional duties in case of sickness ; in such case the physicians administering the intoxicating liquors may charge therefor. MAINE. [Revised Statutes of the State of Maine, 1883, chapter 124, page 905.] Section 17. Whoever on the Lord's day, or at any other time, be- Acts pro- haves rudely or indecently within the walls of any house of public wor- Sunday. ship ; wilfully interrupts or disturbs any assembly for religious worship within the place of such assembly or out of it ; sells or exposes for sale within one mile thereof and during the time of their meeting, intoxi cating liquors, refreshments, or merchandise, except in his usual course and place of business ; exhibits any show or play ; engages or aids in any horse-race, gambling, or other sport, to the disturbance of such assembly; or, coming within their neighborhood, refuses, on request, either immediately and peaceably to retire beyond their hearing, or to conform to their established regulations, shall be punished by imprison ment for not more than thirty days, and by fine not exceeding ten dollars. Section 20. Whoever, on the Lord's day, keeps open his shop, Secular , employments work-house, ware-house, or place of business ; travels, or does any work, prohibited. labor, or business on that day, except works of necessity or charity ; uses any sport, game, or recreation ; or is present at any dancing, pub lic diversion, show, or entertainment, encouraging the same, shall be punished by fine not exceeding ten dollars. SECTION 21. If any innholder or victualer, on the Lord's day, suffers Sunday ,.,..., loafing to any persons, except travelers, strangers, or lodgers, to abide m his house, be prohibited. yard, or field, drinking, or spending their time idly, at play or doing any secular business, except works of charity or necessity, he shall be pun ished by fine not exceeding four dollars for each person thus suffered to abide ; and if after conviction he is again guilty, by fine not exceeding ten dollars for each offense ; and upon a third conviction, he shall also be incapable of holding any license ; and every person so abiding shall be fined not exceeding four dollars for each offense. SECTION 22. The Lord's day includes the time between twelve o'clock on Saturday night and twelve o'clock on Sunday night. 19 290 AMERICAN STATE PAPERS. Sabbatarians exempted. Suit to be commencedwithin six months. Section 23. No person conscientiously believing that the seventh day of the week ought to be observed as the Sabbath, and actually re fraining from secular business and labor on that day, is liable to said penalties for doing such business or labor on the first day of the week, if he does not disturb other persons. Section 24. Tythingmen, or any other persons, may prosecute for all offenses described in sections seventeen, twenty, and twenty-one, at any time within six months after the commission thereof. Acts pro hibited on Sunday. Sunday trafficking prohibited. Penalties. MARYLAND. [Maryland Code of Public and General Laws, 1888, volume i, article 27, page 538.] SABBATH-BREAKING. Section 2-47. No person whatsoever shall work or do any bodily labor on the Lord's day, commonly called Sunday, and no person hav ing children or servants shall command or willingly suffer any of them to do any manner of work or labor on the Lord's day (works of neces sity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord's day by gaming, fishing, fowling, hunt ing, or unlawful pastime or recreation ; and every person transgressing this section and being thereof convicted before a justice of the peace, shall forfeit five dollars, to be applied to the use of the county. Section 248. No person in this State shall sell, dispose of, barter, or if a dealer in any one or more of the articles of merchandise in this section mentioned, shall give away on the Sabbath day, commonly called Sunday, any tobacco, cigars, candy, soda, or mineral waters, spirituous or fermented liquors, cordials, lager beer, wine, cider, or any other goods, wares, or merchandise whatsoever ; and any person violating any one of the provisions in this section shall be liable to indictment in any court in this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than twenty nor more than fifty dollars, in the discretion of the court, for the first offense, and if con victed a second time for a violation of this section, the person or persons so offending shall be fined a sum not less than fifty nor more than five hundred dollars, and be imprisoned for not less than ten nor more than thirty days, in the discretion of the court, and his, her, or their license, if any were issued, shall be declared null and void by the judge of said court ; and it shall not be lawful for such person or persons to obtain another license for the period of twelve months from the time of such conviction, nor shall a license be obtained by any other person or per sons to carry on said business on the premises or elsewhere, if the per son, so as aforesaid convicted, has any interest whatever therein, or shall derive any profit whatever therefrom ; and in case of being con victed more than twice for a violation of this section, such person or persons on each occasion shall be imprisoned for not less than thirty nor more than sixty days, and fined a sum not less than double that im- SUNDAY LAWS OF THE UNITED STATES. 291 posed on such person or persons on the last preceding conviction ; and his, her, or their license, if any were issued, shall be declared null and void by the court, and no new license shall be issued to such person or persons for a period of two years from the time of such conviction, nor to any one else to carry on said business wherein he.' or she is in any wise interested, as before provided for the second violation of the pro vision of this section ; and half of all the fines to be imposed under this section shall be paid to the State, and the other half to the informer ; this section is not to apply to milk or ice dealers in supplying their cus tomers, or to apothecaries when putting up bona fide prescriptions. Section 249. It shall not be lawful to keep open or use any dancing saloon, opera house, ten pin alley, barber saloon, or ball alley within this State on the Sabbath day, commonly called Sunday ; 1 and any per son or persons, or body politic or corporate, who shall violate any pro visions of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her, or its employ, shall be liable to indictment in any court of this State having criminal jurisdiction, and upon conviction thereof, shall be fined a sum not less than fifty dollars nor more than one hundred dollars in the discretion of the court, for the first offense ; and if convicted a second time for a violation of this section, the person or persons, or body politic or corporate, shall be fined a sum not less than one hundred nor more than five hundred dollars ; and if a natural person, shall be imprisoned not less than ten nor more than thirty days, in the discretion of the court ; and in the case of any conviction or convictions under this section, subsequent to the second, such person or persons, body politic or corporate, shall be fined on each occasion a sum at least double that imposed upon him, her, them, or it, on the last preceding conviction ; and if a natural person, shall be im prisoned not less than thirty nor more than sixty days, in the discretion of the court ; all fines to be imposed under this section shall be paid to the State. [Maryland Code of Public and General Laws, 1888, volume ii, page 1046.] OYSTERS. Section 22. It shall be unlawful for any person to take or catch oys ters on Sunday or at night ; and any person violating this section shall, on conviction thereof, be fined a sum not less than fifty dollars nor more than three hundred dollars, or sentenced to the house of correction for a period of not less than three months nor more than one year, or forfeit the boat, vessel, or canoe used in violation of this section, at the discre tion of the judge or justice of the peace trying the case. Penalty. Places of amusementprohibited on Sunday. Penalties. Oyster- catching. ^ohn Stuart Mill, in treating on the subject of illegitimate authority of society over the individual, says : " There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings ; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings by persisting in their abominable worship or creed." 292 AMERICAN STATE PAPERS. Secular employmentsprohibited on Sunday. Public en tertainmentsProhibited on unday. Penalties. Loafing prohibited. Penalty. MASSACHUSETTS. [General Statutes of Massachusetts, chapter 98, page 519.] Section 2. Whoever on the Lord's day keeps open his shop, ware house, or workhouse, or does any manner of labor, business, or work, except works of necessity and charity, or takes part in any sport, game, or play, or, except as allowed or prohibited in the preceding section, is present at any dancing or public diversion, show, game, or entertain ment, shall be punished by fine not exceeding fifty dollars for each offense ; but nothing in this section shall be held to prohibit the manu facture and distribution of steam, gas, or electricity for illuminating purposes, heat, or motive power, nor the distribution of water for fire or domestic purposes, nor the use of the telegraph or the telephone, nor the retail sale of drugs and medicines, nor articles ordered by the pre scription of a physician, nor mechanical appliances used by physicians or surgeons, nor the letting of horses and carriages, nor the letting of yachts and boats, nor the running of steam ferryboats on established routes, or street railway cars, nor the' preparation, printing, and pub lishing of newspapers, nor the sale and delivery of newspapers, nor the retail sale and delivery of milk, nor the transportation of milk, nor the making of butter and cheese, nor the keeping open of public bath houses, nor the making or selling by bakers or their employees of bread or other food usually dealt in by them before ten of the clock in the morning and between the hours of four of the clock and half-past six of the clock in the evening ; Provided, however, that this section shall not apply to sales by bakers, between the hours of six and ten of the clock in the forenoon and four and half-past six of the clock in the afternoon, of bread and other articles of food usually dealt in by them. Section 4.1 Whoever, keeping a house, shop, cellar, or place of public entertainment or refreshment, entertains therein on the Lord's day any persons other than travelers, strangers, or lodgers, or suffers such persons on said day to abide or remain therein, or in the yards, orchards, or fields appertaining to the same, drinking or spending their time idly or at play, or in doing any secular business, shall be punished by a fine not exceeding fifty dollars for each person so entertained or suffered so to abide or remain ; and upon any conviction after the first, by fine not exceeding one hundred dollars ; and if convicted three times, he shall thereafter be incapable of holding a license. Section 5. No person licensed to keep a place of public entertain ment shall entertain or suffer to remain or be in his house, yard, or other places appurtenant, any persons other than travelers, strangers, or lodgers in such house, drinking and spending their time there, on the Lord's day, or the evening preceding the same ; and every such innholder or other person so offending shall be punished by fine not exceeding five dollars for each offense. 1 Section three was repealed June 9, 1887. SUNDAY LAWS OF THE UNITED STATES. 293 Section 6. No person shall serve or execute any civil process on the Lord's day ; but such service shall be void, and the person serving or executing such process shall be liable in damages to the party aggrieved in like manner as if he had no such process. SECTION 7. Whoever on the Lord's day behaves rudely or inde cently within the walls of any house of public worship, shall be pun ished by fine not exceeding ten dollars. Section 8. Prosecutions for penalties incurred under the preceding provisions of tnis chapter shall be instituted within six months after the offense is committed. Section 9. All sheriffs, grand jurors, and constables shall inquire into and inform of all offenses against the preceding provisions of this chapter, and cause the same to be carried into effect. Section io. Whoever on the Lord's day discharges any firearm for sport or in the pursuit of game, shall be punished by fine not exceeding ten dollars. Section ii. Whoever attempts to take or catch any fish on the Lord's day, by using any hook, line, net, spear, or other implement, shall be punished by fine not exceeding ten dollars. Section 12. All prosecutions under the two preceding sections shall be instituted within thirty days from the time the offense was com mitted. Section 13. Whoever conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day, shall not be liable to the penalties of this chapter for performing secular business, travel, or labor on the Lord's day, if he disturbs no other person.1 Section 14. Any innholder, common victualer, or person keeping or suffering to be kept in any place occupied by him implements such as are used in gaming, in order that the same may be for hire, gain, or reward, or be used for purposes of amusement, who on the Lord's day uses or suffers to be used any implements of that kind upon any part of his premises, shall for the first offense forfeit a sum not exceeding one hun dred dollars, or be imprisoned in the house of correction not exceeding three months ; and for every subsequent offense shall be imprisoned in the house of correction for a term not exceeding one year ; and in either case shall further recognize, with sufficient sureties, in a. reasonable sum for his good behavior, and especially that he will not be guilty of any offense against the provisions of this section for the space of three months then next ensuing. Civil processes served on Sunday void. Sunday misbehaviorprohibited. Sunday shootingprohibited. Sabbatarians exempted. Renting gaming im- §lements on unday pro hibited. Penalties. 1 This expression, like many others running through our Sunday laws, points di rectly to the religious feature of the law. The Sabbatarian is allowed to work " if he disturbs no other person ; " but the nullifidian is not, according to this law, allowed to work, even if he does not disturb any one. In other words, the law intends to compel all to observe some Sabbath; — the day of the dominant cult if they will, but if not, then of some minor sect ! It would never do to allow the unbeliever, as we do the Chris tian, to use his time as he wills, — no, never ! he must pay homage to some religion ! Sunday laws religious. 294 AMERICAN STATE PAPERS. Sunday to be duly regarded. Provision for Sunday observance. Penalty. Enter tainment of loafers pro hibited. Penalty. SECTION 15. The Board of Railroad Commissioners may authorize the running of such steamboat lines, and upon any railroad of such trains, on the Lord's day as, in the opinion of the board, the public ne cessity and convenience may require, having regard to the due observ ance of the day. Section 16. The Lord's day shall be deemed to include the time from midnight to midnight. [Public Statutes of Massachusetts, chapter 203, page 1152.] Section 104. Whoever is discovered in the act of wilfully injuring. a fruit or forest tree, or committing any kind of malicious mischief on the Lord's day, may be arrested by a sheriff, deputy-sheriff, constable, watch man, police officer, or other person, and lawfully detained by imprison ment in the jail or otherwise until a complaint can be made against him for the offense, and he be taken upon a warrant issued upon such com plaint ; but such detention without warrant shall not continue more than twenty-four hours. [Act of February 27, 1884, chapter 37.] Beit enacted, etc., as follows : Section i. The provisions of chapter ninety-eight of the Public Statutes relating to the observance of the Lord's day shall not consti tute a defense to an action for a tort or injury suffered by a person on that day. MICHIGAN. [Howell's Annotated Statutes, volume i, page 543 */ seq., chapter 54, sections 2015-2022.] OBSERVANCE OF THE FIRST DAY OF THE WEEK, AND THE PREVEN TION AND PUNISHMENT OF IMMORALITY. Section i. No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertain ment, or take part in any sport, game, or play on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor to the solemnization of marriages. And every person so offending shall be punished by fine not exceeding ten dollars for each offense. Section 2. No tavern-keeper, retailer of spirituous liquors, or other person keeping a house of public entertainment, shall entertain any per sons, not being travelers, strangers, or lodgers in his house, on the said first day of the week, or shall suffer any such person on said day to abide or remain in his house, or in the buildings, yards, or orchards, or fields appertaining to the .same, drinking, or spending their time idly, or at play, or in doing any secular business. Section 3. Every person offending against any of the provisions of the last preceding section, shall be punished by a fine not exceeding five SUNDAY LAWS OF THE. UNITED STATES. 295 dollars for each person so entertained, or suffered so to abide or remain ; and upon any conviction after the first, such offender shall be punished by a fine not exceeding ten dollars ; and if convicted three times, he shall be afterwards incapable of holding a license ; and every person so abiding or drinking shall be punished by a fine not exceeding five dollars. Section 4. No person shall be present at any game, sport, play, or public diversion, or resort to any public assembly, excepting meetings for religious worship or moral instruction, or concerts of sacred music, upon the evening of the said first day of the week ; and every person so offending shall be punished by a fine not exceeding five dollars for each offense. Section 5. No person shall serve or execute any civil process from midnight preceding to midnight following the said first day of the week ; but such service shall be void, and the person serving or executing such process shall be liable in damages to the party aggrieved, in like man ner as if he had not had any such process. Section 6. If any person shall, on the said first day of the week, by rude and indecent behavior, or in any other way, intentionally inter rupt or disturb any assembly of people met for the purpose of worship ing God, he shall be punished by a fine not less than two nor more than fifty dollars, or by imprisonment in the county jail not exceeding thirty days. Section 7. No person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually re frains from secular business and labor on that day, shall be liable to the •penalties provided in this chapter, for performing secular business or labor on the said first day of the week, provided he disturb no other person. Section 8. For the purposes of the provisions of this chapter, the said first day of the week shall be understood to include all the time between the midnight preceding and the midnight following the said day ; and no prosecution for any fine or penalty incurred under any of the preceding provisions of this chapter shall be commenced after the expiration of three months from the time when the offense shall have been committed. Penalties. Persons to attend relig ious meetings only. Indecent behavior pro hibited on Sunday. Sabbatarians exempted. [Howell's Annotated Statutes, volume ii, sections 7088-7090.] RELATIVE TO SUITS AGAINST SEVENTH-DAY OBSERVERS. Section I. The people of the State of Michigan enact, That no Relative to £ t. t 1.* suits against person who conscientiously believes the seventh day ot the week ought Sabbatarians. to be observed as the Sabbath, and actually refrains from secular busi ness and labor on that day, shall be compelled to defend any civil suit in the justice's courts of this State on that day. Section 2. Whenever any person, as aforesaid, shall be served with any process returnable on the seventh day of the week, such person may 296 AMERICAN STATE PAPERS. Relative to suits against Sabbatarians. make affidavit before any person authorized to administer oaths, setting forth the fact that a summons has been issued, naming the day when the same was issued, when returnable, by whom issued, and in whose favor, and against whom the same was issued ; and also that said affiant conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and that the said affiant actually refrains from secular business and labor on said day, and may at any time after serv ice of such process, and before the return day thereof, file such affidavit with the justice before whom said cause shall be pending. Section 3. It shall be the duty of any justice of the peace before whom any cause shall be pending, in which such affidavit shall be filed regularly, to call such cause on the return day thereof, as in other cases, and upon his own motion to adjourn the same without pleadings, to such time as he shall see fit ; Provided, the same shall not be adjourned to the seventh or the first day of the week ; And provided also, that the said cause shall not be so adjourned more than ten days, for the cause aforesaid. MINNESOTA. [ General Statutes of the State of Minnesota, 1888, volume ii, title 10, page 984, chapter 1. 1 THE SABBATH. Sabbath- breaking. Secular labor pro hibited on Sunday. Exemption clause. Section 222. The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community. SABBATH-BREAKING. Section 223. A violation of the foregoing prohibition is Sabbath- breaking. "day" defined. Section 224. Under the term "day," as employed in the phrase "first day of the week," when used in this chapter, is included all. the time from midnight to midnight. SERVILE LABOR. Section 225. All labor on Sunday is prohibited, excepting the works of necessity or charity. In works of necessity or charity is in cluded whatever is needful during the day for good order, health, or comfort of the community ; Provided, however, that keeping open a barber-shop on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity. PERSONS OBSERVING ANOTHER DAY AS A SABBATH. Section 226. It is a sufficient defense to a prosecution for servile labor on the first day of the week that the defendant uniformly keeps another day of the week as holy time, and does not labor upon that day, SUNDAY LAWS OF THE UNITED STATES. 297 and that the labor complained of was done in such manner as not to Sunday interrupt or disturb other persons in observing the first day of the week prohibited" as holy time. PUBLIC sports. Section 227. All shooting, hunting, fishing, playing, horse-racing, Public sports gaming, or other public sports, exercises, or shows, upon the first day pro of the week, and all noise disturbing the peace of the day, are pro hibited. trades, manufactures, and mechanical employments. SECTION 228. All trades, manufactures, and mechanical employ- Trades, etc., ments upon the first day of the week are prohibited, except that when the same are works of necessity, they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community. PUBLIC TRAFFIC. SECTION 229. All manner of public selling, or offering for sale, of Trafficking any property upon Sunday is prohibited, except that articles of food may pro ' lte " be sold and supplied at any time before ten o'clock in the morning, and except also that meals may be sold to be eaten on the premises where sold, or served elsewhere by caterers ; and prepared tobacco in places other than where spirituous or malt liquors or wines are kept or offered for sale, and fruit, confectionery, newspapers, drugs, medicines, and sur gical appliances may be sold in a quiet and orderly manner at any time of the day. SERVING PROCESS ON SUNDAY PROHIBITED. Section 230. All service of legal process of any kind whatever upon Serving the first day of the week, is prohibited, except in cases of breach of the JJ^ P^f' peace, or apprehended breach of the peace, or when sued out for the ap- hibited. prehension of a person charged with crime, or except where such service is specially authorized by statute. PUNISHMENT OF SABBATH-BREAKING. Section 231. Sabbath-breaking is a misdemeanor, punishable by a Penalty. fine not less than one dollar nor more than ten dollars, or by imprison ment in a county jail not exceeding five days, or by both. MISSISSIPPI. [Revised Code of Mississippi, 1880, chapter 77, page 769.] Section 2949. Violation of Sabbath. If any person, on a Sab- Sunday bath day, commonly called Sunday, shall himself be found laboring at hibited™ his own, or any other trade, calling, or business, or shall employ his ap prentice, or servant, in labor or other business, except it be in the ordi nary household offices of daily necessity, or other work of necessity or charity, he shall, on conviction, be fined not more than twenty dollars, for every offense, deeming every apprentice or servant, so employed, as 298 AMERICAN STATE PAPERS. Exceptions. Sunday traffickingprohibited. Sunday amusements prohibited. Sunday saloons pro hibited. Laboring on Sunday a misdemeanor. Penalty.Exceptions. Horse- racing on Sunday a misdemeanor. constituting a distinct offense ; Provided, that nothing in this section shall apply to railroads, or steamboat navigation in this State. Section 2950. No merchant, shopkeeper, or other person, except apothecaries and druggists, shall keep open store, or dispose of any wares or merchandise, goods or chattels, on Sunday, or sell or barter the same ; and every person so offending shall, on conviction, be fined not more than twenty dollars for every such offense. Section 2951. If any person shall show forth, exhibit, act, repre sent, or perform, or cause to be shown forth, acted, represented, or per formed, any interludes, farces, or plays of any kind, or any games, tricks, juggling, sleight-of-hand, or feats of dexterity, agility of body, or any bear-baiting, or any bull-baiting, horse-racing, or cock fighting, or any such like show or exhibition whatsoever, on Sunday, every person, so offending, shall be fined not more than fifty dollars. Section 2952. If any person shall be found hunting with a gun or with dogs on the Sabbath, or fishing in any way, he shall, on convic tion thereof, be fined not less than five, nor more than twenty dollars. Section 2953. It shall not be lawful for any person having license to sell vinous or spirituous liquors, to keep open the bar, or place where such liquors are sold, or to sell any such liquors, on the first day of the week, commonly called Sunday ; and any person so offending shall be liable to a fine of not less than fifty nor more than one hundred dollars for each offense. MISSOURI. [Revised Statutes of the State of Missouri, 1889, volume i, chapter 47, page 919.] Section 3852. Sabbath-breaking. Every person who shall either labor himself, or compel or permit his apprentice or servant, or any other person under his charge or control, to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, or shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars. Section 3853. Last Section Construed. The last section shall not extend to any person who is a member of a religious society by whom any other than the first day of the week is observed as a Sabbath, so that he observe such Sabbath, nor to prohibit any ferryman from crossing passengers on any day of the week, nor shall said last section be extended or construed to be an excuse or defense in any suit for the re covery of damages or penalties from any person, company, or corpora tion voluntarily contracting or engaging in business on Sunday. Section 3854. Horse-racing on Sunday. Every person who shall be convicted of horse-racing, cock fighting, or playing at cards or games of any kind, on the first day of the week, commonly called Sun day, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars. SUNDAY LAWS OF THE UNITED STATES. 299 Section 3855. Selling Goods on Sunday. Every person who Trafficking shall expose to sale any goods, wares, or merchandise, or shall keep misdemeanor. open any ale or porter house, grocery, or tippling-shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars. Section 3856. Last Section Construed. The last section shall Exceptions. not be construed to prevent the sale of any drugs or medicines, provis ions, or other articles of immediate necessity. MONTANA. [Compiled Statutes of Montana, LORD'S DAY. . page 1039.] Section 1406. Hereafter it shall be unlawful for any person or per sons to keep open any play-house, theater, dance-house, hurdy-gurdy- house, prize-ring, or race-grounds on the first day of the week, com monly called the Lord's day. Section 1407. Hereafter it shall be unlawful for any person or per sons to keep open any house or other habitation wherein any game of chance is played, or open any banking game at cards on the first day of the week, commonly called the Lord's day. Section 1408. If any person or persons shall violate the provisions of this chapter, they shall be deemed guilty of a misdemeanor, and, upon conviction thereof, before any court having competent jurisdiction, shall be fined in any sum not less than ten dollars nor more than one hundred dollars, or be imprisoned in the county jail not less than one nor more than thirty days for such offense, or by both such fine and im prisonment, and shall be adjudged to pay all costs of such prosecution. Section 1409. Justices of the peace shall have jurisdiction in all cases arising under the provisions of this chapter. Section 1410. All fines collected under this chapter shall be paid into the county treasury of the county where such conviction was had, and shall be for the benefit of the common schools of said county. ; ' Places of amusement prohibited on Sunday. Gaming houses pro hibited on Sunday. Penalty. Jurisdiction. NEBRASKA. s [ Compiled Statutes of the State of Nebraska, 1885, chapter 23, page 803, and chapter 50, page 415.] SABBATH-BREAKING. SECTION 241. If any person of the age of fourteen years or upward, hijJjJ^™" shall be found on the first day of the week, commonly called Sunday, Sunday. sporting, rioting, quarreling, hunting, fishing, or shooting, he or she shall be fined in a sum not exceeding twenty dollars, or be confined in the county jail for a term not exceeding twenty days, or both, at the dis cretion of the court. And if any person of the age of fourteen years or Penalty. 300 AMERICAN STATE PAPERS. Secular upward shall be found on the first day of the week, commonly called hibited. Sunday, at common labor (work of necessity and charity only excepted), he or she shall be fined in any sum not exceeding five dollars nor less than one dollar; Provided, nothing herein contained in relation to com mon labor on said first day of the week, commonly called Sunday, shall Sabbatarians be construed to extend to those who conscientiously do observe the exempted. seventh day of the week as the Sabbath, nor to prevent families emmi- grating from traveling, watermen from landing their passengers, super intendents or keepers of toll-bridges or toll-gates from attending and superintending the same, or ferrymen from conveying travelers over the water, or persons moving their families on such days, or to prevent rail road companies from running necessary trains. Restrictions on the liquor traffic. ELECTION DAYS — SUNDAYS. SECTION 14. Every person who shall sell or give away any malt, spirit uous, and vinous liquors on the day of any general or special election, or at any time during the first day of the week, commonly called Sunday, shall forfeit and pay for every such offense, the sum of one hundred dollars. Sunday amusementsprohibited. Enforce ment of Sun day as a dies noil. Penalty. Jurisdiction. NEVADA. [General Statutes of Nevada, 1885, page 1077.] AN ACT FOR THE BETTER OBSERVANCE OF THE LORD'S DAY. Section 4847. No person shall keep open any play-house or theater, race ground, cock pit, or play at any game of chance for gain, or en gage in any noisy amusement, on the first day of the week, commonly called the Lord's day. Section 4848. No judicial business shall be transacted by any court except deliberations of a jury who have received a case on a week day, so-called, and who may receive further instructions from the court, at their request, or deliver their verdict ; nor any civil process be served by any certifying or attesting officer, or any record made by any legally ^appointed or elected officer, upon the first day of the week, commonly called the Lord's day ; Provided, that criminal process may issue for the apprehension of any person charged with crime, and criminal exam ination be proceeded with. Section 4849. Any person or persons violating the provisions of the two preceding sections of this act shall be punished, on conviction thereof, by a fine of not less than thirty dollars nor more than two hun dred and fifty dollars, for each offense. Section 4850. Justices of the peace may have jurisdiction of all complaints arising under the aforesaid act. Section 4851. On complaint of any person, before a justice of the peace, the person or persons found guilty of any offenses specified in this act shall be fined as aforesaid, to be paid to the treasurer of the SUNDAY LAWS OF THE UNITED STATES. 301 territory, for the benefit of common schools ; and the offender shall, in addition to the said fine and the costs of prosecution, give bonds, with two good and sufficient sureties, in the sum of not less than two hundred dollars nor more than five hundred dollars, for good behavior during any time within the discretion of the court, and stand committed until the whole order is complied with, and the fine be paid. Penalties. NEW HAMPSHIRE. [ General Laws of New Hampshire, 1878, chapter 273, page 617.] Section 3. No person shall do any work, business, or labor of his secular calling, to the disturbance of others, works of necessity and mercy excepted, on the first day of the week, commonly called the Lord's day ; nor shall any person use any play, game, or recreation on that day or any part thereof. This section shall not be construed to prevent necessary repairs in mills and factories, which could not be made on a week day without throwing many operatives out of employment. Section 4. No person shall, on the Lord's day, within the walls of any house of public worship or near the same, behave rudely or inde cently, either in the time of public service or between the forenoon and afternoon services.1 Section 5- Any person offending against any provision of the laws of the last two preceding sections of this chapter, shall forfeit a sum not exceeding six dollars, which shall be recovered by any selectman or police officer, for the use of the town. Section io. No person shall keep open his shop, warehouse, cellar, restaurant, or workshop, for the reception of company, or shall sell or expose for sale any merchandise whatsoever on the first day of the week, commonly called the Lord's day ; but this section shall not be construed to prevent the entertainment of boarders, or the sale of milk, bread, and other necessaries of life, or drugs and medicines. Secular labor pro hibited. Rude behavior pro hibited on Sunday. Penalty. Sunday entertainmenprohibited. [ Laws of the State of New Hampshire, passed June Session, 1887, chapter 8, page 412.] AN ACT TO PREVENT HUNTING AND THE DISCHARGE OF FIRE-ARMS ON THE LORD'S DAY. Section 1. Whoever on the Lord's day discharges any fire-arms for Sunday sport or in the pursuit of game, and whoever on the Lord's day shall prohibited carry any fire-arms in any field, highway, or private way, while in the pursuit of game, or with intent to discharge the same in sport, shall be punished by a fine not exceeding ten dollars. 'The injustice and favoritism of Sunday laws are evident from this and similar provisions in our Sunday statutes. Persons are prohibited from behaving " rudely or indecently" "within the walls of any house of public worship, or near the same" m the Lord' s day 1 Why not, pray, on every day of the week T Are we to conclude that persons who hold meetings on other days are to be without protection ? 302 AMERICAN STATE PAPERS. NEW JERSEY. [Revision of the Statutes of New Jersey, 1877, page 1227.] Worldly diversions prohibited on Sunday. Penalty. Trafficking prohibited. Sports prohibited. VICE AND IMMORALITY. Section i. That no traveling, worldly employment, or business, or dinary or servile labor or work, either upon land or water (works of necessity and charity excepted), nor shooting, fishing (not including fishing with a seine or net, which is hereafter provided for), sporting, hunting, gunning, racing, or frequenting of tippling-houses, or any inter ludes or plays, dancing, singing, fiddling, or other music for the sake of merriment, nor any playing at foot-ball, fives, nine-pins, bowls, long-bul lets, or quoits, nor any other kind of playing, sports, pastimes, or diver sions, shall be done, performed, used, or practiced by any person or persons within this State, on the Christian Sabbath, or first day of the week, commonly called Sunday ; and that every person, being of the age of fourteen years or upwards, offending in the premises, shall for every such offense forfeit and pay to the use of the poor of the township in which such offense shall be committed, the sum of one dollar ; and that no person shall cry, show forth, or expose to sale, any wares, merchandise, fruit, herbs, meat, fish, goods, or chattels, upon the first day of the week, commonly called Sunday, or sell or barter the same, upon pain that every person so offending shall forfeit and pay to the use of the poor of the township where such offense shall be committed, the sum of two dollars ; and if any person offending in any of the premises shall be thereof convicted before any justice of the peace for the county where the offense shall be committed, upon the view of the said justice, or confession of the party offending, or proof of any witness or witnesses upon oath or affirmation, then the said justice before whom such con viction shall be had, shall direct and send his warrant, under his hand and seal, to some constable of the county where the offense shall have been committed, commanding him to levy the said forfeitures or penal ties by distress and sale of the goods' and chattels of such offenders, and to pay the money therefrom arising to the overseers of the poor of the town ship where the said offense or offenses shall have been committed, for the use of the poor thereof ; and in case no such distress can be had, then every such offender shall, by warrant under the hand and seal of the said justice, be committed to the county jail of the said county, or to the jail of any city or town corporate within the same, for a term not exceed ing ten days, to be certainly expressed in said warrant ; And further, that if any person shall be found fishing, sporting, playing, dancing, fiddling, shooting, hunting, gunning, traveling, or going to or returning from any market or landing with carts, wagons, or sleds, or behaving in a dis orderly manner, on the first day of the week, called Sunday, it shall be lawful for any constable, or other citizen, to stop every person so offend ing, and to detain him or her till the next day, to be dealt with accord- SUNDAY LAWS OF THE UNITED STATES. 303 ing to law ; Provided always, that no person going to or returning from Exceptions. any church or place of worship, within the distance of twenty miles, or going to call a physician, surgeon, or midwife, or carrying mail to or from any post-office, or going express by order of any public officer, shall be considered as traveling within the meaning of this act ; And provided also, that nothing in this act contained shall be construed to prohibit the dressing of victuals in private families, or in lodging-houses, inns, and other houses of entertainment for the use of sojourners, trav elers, or strangers ; And provided further, that it shall and may be law ful for any railroad company in this State to run one passenger train each way over their roads on Sunday for the accommodation of the citi zens of this State. Section 2. No person shall on the first day of the week, called Sunday e. , -, r r * fishing pro- Sunday, cast, draw, or make use of any seine or net, for the purpose of hibited. catching fish in any pond, lake, stream, or river, within the territorial limits or jurisdiction of this State, or be aiding or assisting therein ; and every person offending in the premises shall, on being thereof convicted before any justice of the peace for the county where the offense shall be committed, upon the view of the said justice, or confession of the party offending, or proof of any witness or witnesses upon oath or affirmation, forfeit and pay the sum of fourteen dollars for every such offense ; and Penalty. in case of non-payment of the said forfeiture, then the said justice be fore whom such conviction shall be had, shall direct and send his war rant, under his hand and seal, to some constable of the county in which the offense shall have been committed, commanding him to levy the said forfeiture or penalty by distress and sale of the goods and chattels of such offender, and to pay the money therefrom arising to the overseers of the poor of the township where the said offense shall have been com mitted, for the use of the poor thereof ; and for want of goods and chattels whereby to make such distress, to convey the body of the said offender to the common jail of the county, or the jail of any city or town corporate within the same, there to remain in safe custody until the said forfeiture, with the costs of prosecution, shall be fully paid, or until such offender shall be delivered by due course of law. Section 3. If any stage or stages shall be driven through any part Sunday of this State on the first day of the week, called Sunday, except sufficient hibited. reason shall be offered to show that it be done in cases of necessity or mercy, or in case of carrying the mail to or from any post-office, the driver or drivers, proprietor, or proprietors of such stage or stages, shall, on being thereof convicted before any justice of the peace for the county where the offense shall be committed, upon the view of the said justice, or confession of the party offending, or testimony of any witness or wit nesses, forfeit and pay the sum of eight dollars for every such offense ; Penalty. and in case of non-payment of the said forfeiture or penalty, then the same shall be levied, recovered, and applied in the manner and form prescribed in and by the second section of this act ; and every justice of 304 AMERICAN STATE PAPERS. Duties of justices. Sunday travelingprohibited. Penalty. Freight transportationprohibited. Disturbance of meetings prohibited on Sunday. the peace in this State is hereby empowered and required, upon his per sonal knowledge or view or other due information, of any stage or stages being driven or run through any part of this State as aforesaid, to stop and detain the same, or order and direct the same to be stopped and detained, at the cost and expense of the proprietor or proprietors of such stage or stages, until the following day, and then to be dealt with as hereinbefore is directed. Section 4. No wagoner, carrier, drayman, drover, butcher, or any of his or their servants, shall ply or travel with his or their wagons, carts, or drays, or shall load or unload any goods, wares, merchandise, or produce, or drive cattle, sheep, or swine in any part of the State, on the first day of the week, called Sunday, under the penalty of two dol lars for every offense, to be levied, recovered, and applied in the man ner and form prescribed in the second section of this act. Section 13. No transportation of freight, excepting milk, on any public highway, railroad, or canal, shall be done or allowed by any per son or persons within this State, on the first day of the week, commonly called the Christian Sabbath ; Providing, that nothing in this act con tained shall be construed so as to prevent the transportation of the United States mail by railroad or on the public highways, or to the regu lar trips of ferry-boats within the State or between this and another State. Section 17. If any person or persons shall disturb or interrupt any religious meeting, as aforesaid, on the first day of the week, called Sun day, it shall be lawful for any constable or member of the meeting, and a citizen or freeholder as aforesaid, to apprehend such person or persons immediately, and detain him or them until the next day, then to be dealt with according to law, unless said offender or offenders shall give sufficient security before some magistrate, to appear at any time and place that he may direct, to answer the charge preferred against him or them, in which case it shall be lawful for said magistrate to discharge such offender or offenders. Section .23. No person shall be prosecuted or troubled for any offense against this act, unless the same be proved or prosecuted within thirty days after the commission of such offense. Section 24. If any suit or action shall be commenced or brought against any justice of the peace, constable, or other officer or person whatsoever, for doing, or causing to be done, anything in pursuance of this act, concerning any of the said offenses, the defendant in such action or suit may plead the general issue, and give the special matter in evidence ; and if, in any such action or suit, a verdict shall be given for the defendant, or the plaintiff become nonsuit, or discontinue his action, then the defendant shall have treble costs. Section 25. In every complaint or information which shall be made or brought before any justice of the peace, under and by virtue of this act, it shall and may be lawful for the person charged in such complaint or information, after he has appeared thereto, and before the said jus- SUNDAY LAWS OF THE UNITED STATES. 305 tice has proceeded to inquire into the merits of the said complaint or information, to demand a trial by jury ; and thereupon a venire shall be issued to summon a jury of six men to try whether the said person so charged is guilty or not guilty of the offense charged against him in said complaint or information ; it shall be the duty of the said justice to issue the said venire, and to direct a return thereof to be to him made, and to proceed therein as in other cases of trials by jury ; Provided, that the costs of the justice and constable upon the said venire, and costs of the said jury, and of swearing and attending the same, shall in all cases be paid by the person demanding the said jury ; And provided also, that this act shall not extend to any case in which any justice of the peace is au thorized by this act to convist upon his own view or personal knowledge. Section 29. Every person being of the age of fourteen years or up wards, offending in the premises, shall for every such offense forfeit and pay to the use of the public schools of the township where such offense shall be committed, the sum of twenty dollars ; and if any person offend ing in any of the premises shall be thereof convicted before any justice of the peaee for the county where the offense shall be committed, upon the view of the said justice, or confession of the party offending, or proof of any witness or witnesses, or oath or affirmation, then the said justice be fore whom the said conviction shall be had, shall direct and send his warrant, under his hand and seal, to some constable of the county where the offense shall have been committed, commanding him to levy the said penalty or penalties, by distress and sale of the goods and chattels of such offender, and to pay the money therefrom arising to the collector of the township where the offense or offenses shall have been committed, for the use of the public schools thereof. SECTION 30. In case no such distress can be had, then every such offender shall, by warrant under the hand and seal of the said justice, be committed to the common jail of the said county, city, or town cor porate, within the same, for a term not exceeding ten days, to be cer tainly expressed in said warrant. Section 31. Every justice of the peace in this State is hereby em powered and required, upon his personal knowledge or view, or other due information, of any canal-boat, or railroad car transporting freight through any part of this State, as aforesaid, he shall be authorized and required to stop and detain the same, or order the same to be stopped and detained, at the cost and expense of the proprietor or proprietors of such canal-boat or railroad car, until the following day, and then to be dealt with as hereinbefore is directed. Section 32. This shall apply also to cattle, sheep, and hogs being driven to market on the Sabbath day. SECTION 33. Every inhabitant of this State who religiously observes the seventh day of the week as the Sabbath, shall be exempt from answering to any process, in law or equity, either as defendant, witness, or juror, except in criminal cases ; likewise from executing, on the said 20 Jury demandable. Penalties. Imprison ment. Duties of justices. Sabbatarians exempted. 306 AMERICAN STATE PAPERS. Exemption of Sabbata rians from gov ernment work on Saturday. Restrictions on Sabba tarians. Railroad tvork pro hibited. Exceptions. day, the duties of any post or office to which he may be appointed or commissioned, except when the interest of the State may absolutely re quire it, and shall also be exempt from working on the highways and doing any militia duty on that day, except when in actual service. Section 34. If any person, charged with having labored or worked in the first day of the week, commonly called Sunday, shall be brought before a justice of the peace to answer the information and charge thereof, and shall then and there prove, to the satisfaction of the said judge, that he or she uniformly keeps the seventh day of the week as the Sabbath, and habitually abstains from following his or her usual occupation or business, and from all recreation, and devotes the day to the exercise of religious worship, then such defendant shall be dis charged ; Provided always, that the work or labor for which such per son is informed against, was done and performed in his or her dwelling- house or work-shop, or on his or her premises or plantation, and that such work or labor has not disturbed other persons in the observance of the first day of the week as the Sabbath ; And provided also, that noth ing in this section contained shall be construed to allow any such person to openly expose to sale any goods, wares, merchandise, or other article or thing whatsoever in the line of his or her business or occupation. [ Supplement to the Revision of the Statutes of New Jersey, 1886, page 956.] 58. Section 2. That within the limits of the said premises the said board of trustees, directors, managers, commissioners, or other cor- . porate authorities shall have power, by ordinance or otherwise, to regu late and restrain the running of any railroad train, locomotive, or cars upon any railroad track within said premises upon the first day of the week, commonly called Sunday, and if any corporation, person, or indi vidual shall, without the written consent of the said trustees, directors, managers, commissioners, or other corporate authorities, run, operate, or cause to be run or operated over any railroad track within said prem ises, any railroad train, locomotive, or cars, whether operated by steam, horse, or other power, upon the first day of the week, commonly called Sunday, such corporation, individual, or person so offending shall forfeit and pay to the said trustees, directors, managers, commissioners, or other corporate authorities, for each and every of the said acts, the sum of five hundred dollars, to be recovered with costs of the suit by the said trustees, directors, managers, commissioners, or other corporate authori ties in an action of trespass on the case, in the circuit court of the county in which such act was committed ; in said action it shall be sufficient to declare general, and give notice of special matter, and execution may ensue thereon as in other cases ; one half of any penalty thus collected shall, after deducting costs of collection, be paid to the overseer of the poor of the county or township wherein such act was committed ; Pro vided, that this act shall not prevent the running of any railroad train, locomotive, or cars through said premises to any other terminal point ; SUNDAY LAWS OF THE UNITED STATES. 307 And provided further, that nothing in this act contained shall be con strued to prevent the running of any railroad train, locomotive, or cars at any time over any railroad heretofore or hereafter constructed or located. 59. SECTION 3. That the said trustees, directors, managers, com missioners, or other corporate authorities, shall have power, by ordi nance or otherwise, to regulate and restrain, within the limits of the said premises, or upon any pier or landing-place adjacent thereto, the carrying of any person by means of any boat or vessel of any kind to and from said premises, piers, or landing-place upon the first day of the week, commonly called Sunday, and to regulate and restrain the land ing on said premises, by either public or private conveyance, of any per son on the first day of the week, commonly called Sunday, except on errands of mercy, sickness, or death, and to regulate and restrain the manufacture and sale of tobacco in any of its forms within said prem ises ; and if any person shall, without the written license of the said trustees, directors, managers, commissioners, or other corporate author ities first obtained, commit any of the acts in this section named, he shall forfeit and pay to the said trustees, directors, managers, commis sioners, or other corporate authorities a penalty of five dollars for each and every off ense, and for each and every person so landed or carried, to be recovered, with costs of prosecution, in the same manner and by the same proceedings as are mentioned and described in the first section of this act. 60. SECTION 4. That nothing in this act contained shall be con strued as in any way limiting or abridging any of the rights, powers, and privileges conferred by the act to which this is a supplement, or by other acts, upon any board of trustees, directors, commissioners, or other corporate authorities of any incorporated camp meeting association or sea-side resort. Exceptions. Transporta tion on water prohibited on Sunday. NEW MEXICO. [Compiled Laws of New Mexico, 1884, title 9, chapter 5.] SABBATH OBSERVANCE. Section 933. (a) Any person or persons who shall be found on the first day of the week, called Sunday, engaged in any sports, or in horse- racing, cock fighting, or in any other manner disturbing any worshiping assembly or private family, or attending any public meeting or public exhibition, excepting for religious worship or instruction, or- engaged in any labor, except works of necessity, charity, or mercy, shall be pun ished by a fine not exceeding fifteen dollars nor less than five dollars, or imprisonment in the county jail of not more than fifteen days nor less than five days, in the discretion of the court, upon conviction before any district court. (b) All fines collected under this act to be applied to the school fund of the district in which the offense was committed. It shall be the duty Sunday amusementsprohibited. Penalty. Disposition of fines. 308 AMERICAN STATE PAPERS. Payment of fines. of any sheriff collecting said fine to pay the same to the county treas urer, to the credit of the school district of the county in which the said offense was committed, within thirty days after collecting said fine, and take his receipt therefor. 934. It shall be lawful in cases of necessity for farmers and gar deners to irrigate their lands, and when necessary to preserve the same, to remove grain and other products from the fields on said day ; and nothing in this act shall be construed to prevent cooks, waiters, and other employees of hotels and restaurants, and of butchers and bakers, from performing their duties on said day. 936. Sunday, for the purposes of this act, shall be regarded as the time between sunrise and midnight of said day. Acts pro hibited on Sunday. NEW YORK. [Revised Statutes of New York, 1889, volume ii, part 1, chapter 20, pages 2232, 2361.]^ Section 21. No inn-, tavern-, or hotel-keeper, or other person, shall sell or give away intoxicating liquors or wines on Sunday,1 or upon any day on which a general or special election or town-meeting shall be held, in any of the villages, cities, or towns of this State, to any person whatever, as a. beverage. In case the election or town-meeting shall not be general throughout the State, the provisions of this section in such case shall only apply to the city, county, village, or town in which such election or town-meeting shall be held. Whoever shall offend against the provisions of this section shall be guilty of a misdemeanor, and shall be punished for each offense by a fine not less than thirty dollars nor more than two hundred dollars, or by imprisonment not less than five days nor more than fifty days, or both such fine and imprison ment at the direction of the court. Sunday hunting prohibited. HUNTING ON SUNDAY. Section 32. There shall be no shooting, hunting, trapping, or caging of birds or wild beasts, or having in possession in the open air for such purpose the implements for the shooting, hunting, trapping, or caging of the same, on the first day of the week, called Sunday, and any person violating either of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto, shall be liable to a penalty of twenty-five dollars for every such offense. Sunday laws not tem perance laws. Interference with Sunday observanceobnoxious. 1 The " Colorado Graphic " says : "Sunday laws are not passed in the interests of temperance. They are passed in the interest of a certain class of so-called Christians, who wish to tear down the beautiful structure Christ built, to gratify their selfish, clan nish, dogmatic reasoning. They even grossly insult fellow-Christians who oppose Sun day legislation, and totally ignore the Hebrews. The question of Sunday observance is something with which no government, no State, no city, no town, should meddle. The observance of Sunday as a day of rest is a beautiful custom, but its enforcement at the muzzle of a national, a State, or a municipal law, is as obnoxious and uncalled for as the enforcement of church attendance or family prayers, by the same means." SUNDAY LAWS OF THE UNITED STATES. 309 [New York Penal Code.] Section 265. All shooting, hunting, fishing, playing, horse-racing, Sunday gaming, or other public sports, exercises, pastimes, or shows, upon the prohibited. first day of the week, and all noise disturbing the peace of the day, are prohibited.1 NORTH CAROLINA. [Code of North Carolina, 1883, chapter 25, page 448.] HUNTING ON SUNDAY PROHIBITED ; PENALTY. Section 1115. If any person whomsoever shall be known to hunt on the Lord's day, commonly called Sunday, with a dog or dogs, or shall be found off of his own lands on Sunday, having a shot gun, rifle, or pistol, every person so offending shall be subject to indictment ; and shall pay a fine not to exceed fifty dollars, at the discretion of the court, two thirds of such fine to inure to the benefit of the free public schools in the county of which such convict is a resident, the remainder to the informant. Sunday hunting prohibited. Penalty. FISHING ON SUNDAY WITH SEINES OR. NETS PROHIBITED ; PUNISHMENT. Section 1116. It shall be unlawful for any person to fish on Sun day with a seine, drag net, or other kind of net, except such as are fast ened to stakes ; and any person violating this section shall be guilty of a misdemeanor, and fined not less than two hundred nor more than five hundred dollars, or imprisoned not more than twelve months. Certain Sunday fish ing prohibited. SALE OF INTOXICATING LIQUORS ON SUNDAY ; A MISDEMEANOR. Section 1117. If any person shall sell spirituous, or malt, or other intoxicating liquors on Sunday, except on the prescription of a physician, and then only for medicinal purposes, the person so offending shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, in the discretion of the court. speaking of these laws, the New York "World" asks: "How long will the anachronism and injustice continue which compel New-Yorkers to violate some statute in order to get needed and innocent recreation on Sunday?" And in reference to the teaching of the Bible in the public schools, which is only another phase of the question, the "World" says: "It is simply a question of the functions of the State and the rights of men. Ours is a purely secular State, in which men of all religions and men of no religion are upon an exactly equal footing before the law. It has nothing whatever to do with creeds or with religion, except to protect all citizens alike in their perfect religious liberty. The public schools are maintained by the secular State for the secular education of the children ; their religious education is a matter with which the State has no right to concern itself. That is a matter for parents and pastors. The State has no more right to teach a religion which is held by the great majority of the people, than to teach one held by only one of all its citizens. It has no right to interfere with religion at all." This is the true American theory ; and it is the only theory that can be carried out and American institutions be preserved. How long shall injustice continue ? Simply a question of rights. A sound principle. 310 AMERICAN STATE PAPERS. Sunday railroad work prohibited. Exceptions. Penalty. [Chapter 49, page 759.] RAILROAD COMPANIES PROHIBITED FROM LOADING OR UNLOADING FREIGHT CARS ON SUNDAY, AND ALSO FROM RUNNING LOCO MOTIVES OR CARS, EXCEPT SUCH AS SHALL BE RUN FOR CARRYING PASSENGERS OR THE MAILS. Section 1973. No railroad company shall permit the loading or unloading of any freight car on Sunday ; nor shall permit any car, train of cars, or locomotive to be run on Sunday on any railroad, except such as may be run for the purpose of transporting the United States mail, either with or without passengers, and except such as shall be run for carrying passengers exclusively, and except such as shall be run for the purpose of transporting fruits, vegetables, live stock, and perishable freights exclusively ; Provided, that the word " Sunday " in this section shall be construed to embrace only that portion of the day between sun rise and sunset ; and that trains in transitu, having started on Saturday, may, in order to reach the terminus or shops, run until nine o'clock A. M. on Sunday, but not later, nor for any other purpose than to reach the terminus or shops. And any railroad company violating this section shall be guilty of a misdemeanor in each county in which such car, train of cars, or locomotive shall run, or in which any such freight car shall be loaded or unloaded ; and upon conviction shall be fined not less than five hundred dollars for each offense ; the fine when collected to be paid to the State treasurer for the use of the public schools. Sunday sacrednessenforced. Acts pro hibited on Sunday. Exemption clause. NORTH DAKOTA. t Compiled Laws of Dakota, 1887.3 CRIMES AGAINST RELIGION. Section 6238. The first day of the week being by very general consent set apart for rest and religious uses, the law forbids to be done on that day certain acts deemed useless and serious interruptions of the repose and religious liberty of the community. Section 6239. Any violation of this prohibition is Sabbath- breaking. Section 6240. Under the term "day" as employed in the phrase " first day of the week," in the seven sections following, is included all the time from midnight to midnight. Section 6241. The following are the acts forbidden to be done on the first day of the week, the doing any of which is Sabbath-breaking : (1) Servile labor ; (2) Public sports ; (3) Trades, manufactures, and mechanical employments ; (4) Public traffic ; (5) Serving process. Section 6242. All manner of servile labor on the first day of the week is prohibited, excepting works of necessity or charity. Section 6243. It >s a sufficient defense in proceedings for servile labor on the first day of the week, to show that the accused uniformly SUNDAY LAWS OF THE UNITED STATES. 311 keeps another day of the week as holy time, and does not labor upon Exemption that day, and that the labor complained of was done in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time. Section 6244. All shooting, sporting, horse-racing, gaming, or Gaming other public sports upon the first day of the week, are prohibited. prohibited. Section 6245. All trades, manufactures, and mechanical employ- Secular ments upon the first day of the week, are prohibited. hibited™ Section 6246. All manner of public selling, or offering, or expos- Trafficking ing for sale publicly, of any commodities upon the first day of the week, is prohibited, except that meats, milk, and fish may be sold at any time before nine o'clock in the morning, and except that food may be sold to be eaten upon the premises where sold, and drugs and medicines and surgical appliances may be sold at any time of the day. Section 6247. All service of legal process of any description what- Service of ever, upon the first day of the week, is prohibited, except in cases of perohibTtedeSS breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law. Section 6248. Every person guilty of Sabbath-breaking is punish- Penalty. able by a fine of one dollar for each offense. Section 6249. The fines prescribed in this chapter for profane Collection swearing and for Sabbath-breaking, may be collected in the manner prescribed by law, for the collection of debts ; but no property shall be No property exempt from execution which has been taken to satisfy any such fines and costs. SECTION 6250. Whoever maliciously procures any process in a civil Prosecution action to be served on Saturday upon any person who keeps Saturday tarians on as holy time, and does not labor on that day, or serve upon him any Saturday- process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor. OHIO. [Revised Statutes of Ohio, volume ii, page 1733.] Section 7032. Whoever, being over fourteen years of age, en- Acts pro- gages in sporting, rioting, quarreling, hunting, fishing, or shooting on Su^deay. Sunday, shall, on complaint made within ten days thereafter, be fined not more than twenty dollars, or imprisoned not more than twenty days, or both. Section 7032. Whoever on the first day of the week, commonly Public .... , ... ... ... ,. amusement called Sunday, participates in or exhibits to the public with or without prohibited. charge for admittance, in any building, room, ground, garden, or other place in this State, any theatrical or dramatic performance of any kind or description, or any equestrian or circus performance of jugglers, ac robats, rope-dancing, sparring exhibitions, variety shows, negro min- 312 AMERICAN STATE PAPERS. Public amusements prohibited on Sunday. Penalty. Sunday labor pro hibited. Sabbatarians exempted. Acts pro hibited on Sunday. Persons exempted. Sunday liquor-sellingprohibited. strelsy, living statuary, ballooning, or any base-ball playing, or any ten-pins, or other games of similar kind or kinds, or participates in keep ing any low or disorderly house of resort, or shall sell, dispose of, or give away any ale, beer, porter, or spirituous liquors in any building appendant or adjacent thereto, when any such show, performance, or exhibition is given, or houses or places are kept, he or she shall, on com plaint made within twenty days thereafter, be fined in any sum not ex ceeding one hundred dollars, or be confined in the county jail not exceeding six months, or both, at the discretion of the court. Section 7033. Whoever, being over fourteen years of age, engages in any labor on Sunday (works of necessity and charity excepted), shall, on complaint made within ten days thereafter, be fined not more than five dollars ; but this section does not extend to those who conscien tiously observe the seventh day of the week as the Sabbath,1 nor shall it be construed so as to prevent families emigrating from traveling, water men from landing their passengers, superintendents or keepers of toll- bridges or toll-gates from attending the same, or ferrymen from convey ing travelers over waters. OREGON. [ Hill's Annotated Laws of Oregon, 1887, volume i, pages 957, 962.] Section 1890. If any person shall keep open any store, shop, grocery, ball-alley, billiard-room, or tippling-house for the purpose of labor or traffic, or any place of amusement, on the first day of the week, commonly called Sunday or the Lord's day, such person, upon con viction thereof, shall be punished by a fine not less than five nor more than fifty dollars ; Provided, that the above provision shall not apply to the keepers of drug stores, doctor shops, undertakers, livery-stable keepers, barbers, butchers, and bakers ; and all circumstances of necessity and mercy may be pleaded in defense, which shall be treated as questions of fact for the jury to determine, when the offense is tried by jury. Section 1909. No person shall keep open any house or room in which intoxicating liquor is kept for retail, on the first day of the week, commonly called Sunday, or give, or sell, or otherwise dispose of intoxicat ing liquors on that day ; any persons violating this section shall be fined in any sum not exceeding twenty-five nor less than ten dollars for each offense ; and such fine to be for the use of common schools in the county in which the offense was committed ; Provided, that this section, so far as it prohibits keeping open a house or room, shall not apply to tavern-keepers. Injustice of Sunday laws. 1 The very fact that there are those to whose consciences these Sunday laws would be a hardship if there were no exemption clause, proves that the laws themselves are unjust. Sunday laws are open to the same charge as was the Virginia religious bill of 1785. Madison said : "As the bill violates equality by subjecting some to peculiar bur dens, so it violates the same principle by granting to others peculiar exemptions." If a Christian has a right to be exempted from the operation of a law on account of a differ ence in belief from the majority, the unbeliever has the same right ; — in other words, if one who differs from the majority has a right to exemption, all have. SUNDAY LAWS OF THE UNITED STATES. 313 PENNSYLVANIA. [ Brightly's Purdon's Digest of the Laws of Pennsylvania, et seq., and 835,] volume ii, pages 1571 Section 3. If any person shall do or perform any worldly employ ment or business whatsoever on the Lord's day, commonly called Sun day (works of necessity and charity only excepted), shall use or practice any unlawful game, hunting, shooting, sport, or diversion whatsoever on the same day, and' be convicted thereof, every such person so offend ing shall, for every such offense, 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 six days' imprisonment in the house of correction of the proper county ; Provided always, that noth ing herein contained shall be construed to prohibit the dressing of vict uals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment for the use of sojourners, travelers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travelers, or persons removing with their families on the Lord's day, commonly called Sunday, nor to the delivery of milk or of the necessaries of life, before nine of the clock in the fore noon, nor after five of the clock in the afternoon of the same day. Section 4. Provided always, That every such prosecution shall be commenced within seventy-two hours after the offense shall be com mitted. Section 5. All persons who are found drinking and tippling in ale-houses, taverns, or other public house or place, on the first day of the week, commonly called Sunday, or any part thereof, shall, for every offense, forfeit and pay one shilling and sixpence to any constable that shall demand the same, to the use of the poor ; and all constables are hereby empowered, and by virtue of their office required, to search public houses and places suspected to entertain such tipplers, and them, when found, quietly to disperse ; but in case of refusal, to bring the persons so refusing before the next justice of the peace, who may com mit such offenders to the stocks, or bind them at their good behavior, as to him shall seem requisite. And the keepers of such ale-houses, taverns, or other public house or place, as shall countenance or tolerate any such practices, being convicted thereof, by the view of a single magistrate, his own confession, or the proof of one or more credible witnesses, shall, for every, offense, forfeit and pay ten shillings, to be recovered as and for the uses above said. Section 6. Provided always, That nothing in this act be construed to prevent victualing-houses or other public house or place from supplying the necessary occasions of travelers, inmates, lodgers, or others, on the first day of the week, with victuals and drink in moderation, for refreshment Secular employmentprohibitedon Sunday. Exceptions. Sunday tipplingprohibited. Above section con strued. 314 AMERICAN STATE PAPERS. Trafficking in liquor pro hibited on Sunday. Penalty. Sunday hunting and fishing pro hibited. only ; of which necessary occasion for refreshment, as also moderation, the magistrate before whom complaint is made, shall be judge ; any law, usage, or custom in this province to the contrary notwithstanding. Section 7. It shall not be lawful for any person or persons to sell, trade, or barter in any spirituous or malt liquors, wine, or cider, on the first day of the week, commonly called Sunday ; or for the keeper or keepers of any hotel, inn, tavern, ale-house, beer-house, or other public house or place, knowingly to allow or permit any spirituous or malt liquors, wine, or cider, to be drank on or within the premises or house occupied or kept by such keeper or keepers, his, her, or their agents or servants, on the said first day of the Week. Section 8. Any person or persons violating the provisions of the foregoing section, shall, for each and every offense, forfeit and pay the sum of fifty dollars, one half of which shall be paid to the prosecutor, and the other half to the guardians of the poor of the city or county in which suit is brought, or in counties having no guardians of the poor, then to the overseers of the poor of the township, ward, or borrough in which the offense was committed ; to be recovered before any mayor, alderman, burgess, or justice of the peace, as debts of like amount are now by law recoverable, in any action of debt brought in the name of the commonwealth, as well for the use of the guardians of the poor (or for the overseers of the poor of the township, ward, or borrough, as the case may be) as for the person suing ; Provided, that when any prose cutor is himself a witness, on any trial under the provisions of this section, then the whole penalty of forfeiture shall be paid to the guard ians or overseers as aforesaid ; And provided further, that it shall be a misdemeanor in office for such mayor, alderman, burgess, or justice of the peace to neglect to render to the said guardians of the poor and prosecutor the amount of such penalty, within ten days from the pay ment of the same. Section 17. There shall be no hunting or shooting or fishing on the first day of the week, called Sunday ; and any person offending against the provisions of this section shall be liable to a penalty of twenty-five dollars. Secular oc cupations prohibited on Sunday. RHODE ISLAND. [ Public Statutes of Rhode Island, 1882, page 686, chapter 244.] Section 15. Every person who shall do or exercise any labor or business or work of his ordinary calling, or use any game, sport, play, or recreation on the first day of the week, or suffer the same to be done or used by his children, servants, or apprentices, works of necessity antl charity only excepted, shall be fined not exceeding five dollars for the first offense, and ten dollars for a second and every subsequent offense. Section 16. Every person who shall employ, improve, set to work, or encourage the servant of any other person to commit any act named in the preceding section, shall suffer like punishment. SUNDAY LAWS OF THE UNITED STATES. 315 Sabbatari ans exempted. SECTION 17. All complaints for violations of the provisions of the Complaints. preceding two sections shall be made within ten days after the commit ting thereof, and not afterwards. Section 18. Every professor of the Sabbatarian faith or of the Jew ish religion, and such others as shall be owned or acknowledged by any church or society of said respective professions as members of or as be longing to such church or society, shall be permitted to labor in their respective professions or vocations on the first day of the week, but the exception in this section contained shall not confer the liberty of opening shops or stores on the said day for the purpose of trade and merchandise, or lading, unlading, or of fitting out of vessels, or of working at the smith's business, or any other mechanical trade in any compact place, except the compact villages in Westerly and Hopkinton, or of drawing seines or fishing or fowling in any manner in public places, and out of villlge^'3 their own possessions ; and in case any dispute shall arise respecting the person entitled to the benefit of this section, a certificate from a regular pastor or priest of any of the aforesaid churches or societies, or from any three of the standing members of such church or society, declaring the person claiming the exemption aforesaid to be a member of or owned by or belonging to such church or society, shall be received as conclusive evidence of the fact. Exception [ Session Acts of Rhode Island, 1885, page 242, chapter 492.] Section 2. Every person licensed to sell intoxicating liquors shall cause to be removed on his licensed premises all obstructions of what ever kind that may prevent a clear view of the interior of the same from the outside thereof, by the passer by, through the window, during the entire day of each Sunday ; and every person violating the provisions of this section shall be fined twenty dollars. Saloon win dows to be un obstructedon Sundays. SOUTH CAROLINA. [ Code of South Carolina, volume ii, chapter 61, page 573.] SUNDAY AND HOLIDAYS. Section 3782. No person to work on Sunday under penalty OF one DOLLAR. On the Lord's day, commonly called Sunday, no trademan, artificer, planter, laborer, or other person, shall, upon land or water, do or exercise any labor, business, or work of his ordinary calling, works of necessity and charity alone excepted, nor employ himself in hunting, fishing, fowling, nor use any game, sport, or play, upon pain that every person so offending, being of the age of fourteen years or upwards, shall forfeit and pay one dollar. Section 3783. Hunting on Sunday prohibited ; penalty on failure TO PAY FINE. If any person shall be known to hunt on Sun day with a dog, or shall be found off his premises on Sunday, having with him a shot gun, rifle, or pistol, he shall be guilty of a misdemeanor, and pay a fine not exceeding fifty dollars, two thirds of such fine to inure Secular occupations prohibited on Sunday. Carrying firearms on Sunday pro hibited. 316 AMERICAN STATE PAPERS. to the benefit of the public schools in the county of which such con vict is a resident, the remainder to the informant ; and upon failure of such convict to pay the required fine, he shall be imprisoned at hard labor for not more than three months, as the court shall direct ; Provided, that this section shall not apply to any person who may violate its provisions in defense of his own property. OF THE OBSERVANCE OF THE LORD'S DAY AND BETTER PROTECTION OF RELIGIOUS WORSHIP, AND LEGAL HOLIDAYS. Secular labor pro hibited. Sunday trafficking prohibited. Public sports prohibited. Enforce ment of law. Sunday gaming-'houses pro hibited. Section 1631. No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord's day (commonly called Sunday), or any part thereof (works of necessity or charity alone ex cepted) ; and every person being of the age of fifteen years or upwards, offending in the premises, shall, for every such offense, forfeit the sum of one dollar. Section 1632. No person or persons whatsoever shall publicly cry, show forth, or expose to sale, any wares, merchandise, fruit, herbs, goods, or chattels whatsoever, upon the Lord's day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried, or showed forth, or exposed to sale. Section 1633. No public sports or pastimes, as bear-baiting, bull- baiting, foot-ball playing, horse-racing, interludes, or other games, ex ercises, sports, or pastimes whatsoever, shall be used on the Lord's day by any person or persons whatsoever ; every person or persons offending in any of the premises shall forfeit for every offense the sum of one dollar. Section 1634. For the better execution of all foregoing provisions, every trial justice within his county shall have power and authority to summon before him any person or persons whatsoever who shall offend in any of the particulars before mentioned, and upon his own view or confession of the party, or proof of any one or more witnesses, upon oath, said trial justice shall give a warrant, under his seal, to seize the said goods cried, showed forth, or put to sale as aforesaid, and to sell the same ; and as to the other penalties and forfeitures, to impose a fine and penalty for the same, and to levy the said forfeitures and penalties by way of distress and sale of the goods of every such offender, return ing overplus, if any be, for charges allowed for the distress and sale. All forfeitures and penalties recovered under this chapter to be paid over to the county treasurer for the use of the county. Section 2592. Whoever shall keep, or suffer to be kept, any gam ing table, or permit any game or games to be played in his, or her, or their houses, on the Sabbath day, such person or persons, on conviction thereof before any court having jurisdiction, shall be fined in the sum of fifty dollars, to be sued for on behalf of, and to be recovered for, the use of the State. SUNDAY LAWS OF THE UNITED STATES. 317 [ General Statutes of South Carolina, T882, pages 442, 483, 728.] Section 1475. Running Trains on Sunday. It shall be unlawful Railroad for any railroad corporation, owning or controlling railroads operating in hibited on this State, to load or unload, or permit to be loaded or unloaded, or to Sunday. run or permit to be run, on Sunday, any locomotive, cars, or trains of cars, moved by steam power, except as hereinafter provided, and except to unload cars loaded with animals. Section 1476. It shall be lawful for said corporations or persons to run on said day their regular mail trains, and such construction trains, or other trains rendered necessary by extraordinary emergencies, other than those incident to freight or passenger traffic, " and such freight trains as may be in IransitULwhich can reach their destination by six o'clock A. M." Section 1477. It shall be lawful for any train running by a sched ule in coriformity with the provisions of this chapter, but delayed by accident or other unavoidable circumstances, to be run until it reaches the point at which it is usual for it to rest upon a Sunday. Section 1478. For a wilful violation of the provisions of sections Penalty. 1475, '47^, and 1477 of this chapter, the railroad company so offending shall forfeit to the State five hundred dollars, to be collected in any court of competent jurisdiction. SOUTH DAKOTA. [See North Dakota.] TENNESSEE. [Code of Tennessee, 1884, chapter 11.] Section 2289. If any merchant, artificer, tradesman, farmer, or other person shall be guilty of doing or exercising any of the common avocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county, forfeit and pay three dollars, one half to the per son who will sue for the same, the other half for the use of the county. Section 2290. Any person who shall hunt, fish, or play at any game of sport, or be drunk on Sunday, as aforesaid, shall be subject to the same proceedings and liable to the same penalties as those who work on the Sabbath. Section 2013. Every person selling or offering to sell any article or traffic whatsoever, within view of any worshiping assembly on the Sabbath day, in such manner as to disturb such assembly, is also liable as prescribed in section 201 1. The provisions of this last section do not extend to any person selling such articles of traffic as he may lawfully sell on the Sabbath day, and at his usual place of business. Secular employmentsprohibitedon Sunday. Sunday amusementsprohibited. 318 AMERICAN STATE PAPERS. Sunday liquor-selling prohibited. [Act of February 22, 1889. Session Acts, chapter 22, page 60.] Section I . Be it enacted by the General Assembly of the State of Tennessee: The law of this State prohibiting the sale of liquor on Sun day, as compiled in section 5671 of Milliken and Vertree's compilation, be so amended as to prohibit the sale on Sunday of any malt, vinous, fermented, or other intoxicating liquors, or to keep open on Sunday any place where such liquors are sold or dispensed. And any person offend ing shall be punished as provided in said act ; Provided, that the pro visions of this act shall not apply to druggists selling on the prescription of a practicing physician ; Provided further, that restaurants and eating houses where spirituous, vinous, and malt liquors are sold under the license of the law of the State on week days, shall be allowed to con duct their eating department on Sunday, but the bar room shall be closed, and no drinks of any kind sold. TEXAS. Secular labor pro hibited on Sunday. Sunday trafficking prohibited. Amuse ments pro hibited. Exceptions. [Laws of Texas, 1887, chapter 116, page 108. Amendment of article 186 of the Penal Code, approved April 10, 1883.] SUNDAY LAW. Article 183. Any person who shall hereafter labor, or compel, force, or oblige his employees, workmen, or apprentices to labor on Sun day, or any person who shall hereafter hunt game of any kind whatso ever on Sunday within one half mile of any church, school-house, or private residence, shall be fined not less than ten nor more than fifty dollars. [Approved April 2, 1887.] Article 186. Any merchant, grocer, or dealer in wares or merchan dise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employee of any such person, who shall sell or barter, or permit his place of business or place of public amusement to be opened for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dol lars. The term ' ' place of public amusement, " shall be construed to mean circuses, theaters, variety theaters, and such other amusements as are exhibited, and for which an admission fee is charged '; and shall also in clude dancing at disorderly houses, low dives, and places of like char acter, with or without fees for admission. Article i860. The preceding article shall not apply to markets or dealers in provisions as to sales of provisions made by them before nine o'clock A. M., nor to the sale of burial or shrouding material, news papers, ice, ice-cream, milk, nor to the sending of telegraph or telephone messages at any hour of the day, nor to keepers of drug stores, hotels, boarding-houses, restaurants, livery-stables, barber shops, bath houses, ice dealers, nor to telegraph nor telephone offices. SUNDAY LAWS OF THE UNITED STATES. 319 [Special Laws of Texas, 1889, pages 155, 157.] Section 21. General Powers. That the city council shall have Powers exclusive control and power ... to close drinking houses, saloons, J^cmmcfls bar rooms, beer saloons, and all places or establishments where intoxicat ing or fermented liquors are sold on Sundays, and prescribe hours for closing them, and also all places of amusement and business. UTAH. [Compiled Laws of Utah, 1888, volume ii, page 594, chapter 7.] Section 4514. Every person who, on Sunday, gets up, exhibits, Acts pro- opens, or maintains, or aids in getting up, exhibiting, opening, or main- Sunday0" taining, any bull, bear, cock, or prize fight, horse-race, circus, gambling house, or saloon, or any barbarous and noisy amusement, or who keeps, conducts, or exhibits any theater, melodeon, dance, cellar, or other place of musical, theatrical, or operatic performance, spectacle, or representa tion where any wines, liquors, or intoxicating drinks are bought, sold, used, drank, or given away, or who purchases any ticket of admission, or directly or indirectly pays any admission fee to or for the purpose of witnessing or attending any such place, amusement, spectacle, perform ance, or representation, is guilty of a misdemeanor. Section 4515. Every person who keeps open on Sunday any store, Sunday workshop, bar, saloon, banking house, or other place of business, for the prohflTited!5 purpose of transacting business therein, is punishable by fine not less than five nor more than one hundred dollars. Section 4516. The provisions of the preceding section do not ap- Exceptions. ply to persons who, on Sunday, keep open hotels, boarding-houses, baths, restaurants, taverns, livery-stables, or retail drug stores for the legitimate business of each, or such manufacturing establishments as are usually kept in continued operation. Section 4519. Every person who performs any unnecessary labor, Sunday or does- any unnecessary business on Sunday, is guilty of a misdemeanor, hibited. and shall be fined in any sum not exceeding twenty-five dollars. Section 4520. Labor employed by employees of such works as are usually kept in constant operation, and in irrigating, is not included in the foregoing section. Section 4521. For the purposes of this act, Sunday shall com mence at midnight Saturday, and terminate the following midnight. VERMONT. [Revised Laws of Vermont, 1881, chapter 202, page 826.] SABBATH-BREAKING. Section 4315. Any person who between twelve o'clock Saturday Secular , . employments night and sunset on the following Sunday exercises any business or em- prohibited ployment, except such only as works of necessity and charity, or is on Sunday. 320 AMERICAN STATE PAPERS. Traveling and visiting prohibitedon Sunday. Sunday shootingprohibited. Sunday to be duly regarded. present at any public assembly except such as is held for social and re ligious worship and moral instruction, or travels, except from necessity or charity, or visits from house to house, except from motives of human ity or charity, or for moral or religious edification, or holds or resorts to any ball or dance, or uses or exercises any game, sport, or play, or re sorts to any tavern, inn, or house of entertainment for amusement or recreation, shall be fined not more than two dollars. Section 4316. A person who hunts, shoots, or pursues, takes, or kills wild game or other birds or animals, or discharges any firearms, except in the just defense of person or property, or in the performance of military or police duty, on Sunday, shall be fined ten dollars, one half to go to the person who makes the complaint, and one half to the State. [Act of November 27, 1888. An act in addition to chapter 202 of the Revised Laws, in relation to Sunday trains.] Section i. The Board of Railroad Commissioners may autHorize the running upon any railroad of such trains on Sunday as, in the opinion of the board, the public necessity and convenience may require, having regard to the due observance of the day. Secular labor pro hibited. Sabbatari ans exempted. Prohibition of transporta tion. Exceptions. VIRGINIA. [ Code of Virginia, 1887, page 900.] Section 3799. Violation op the Sabbath ; How Punished. If a person, on the Sabbath day, be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offense. Every day any servant or apprentice is so em ployed shall constitute a distinct offense. Section 3800. Exception as to the Jews.1 The forfeiture de clared by the preceding section, shall not be incurred by any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath, and actually refrains from all secular business and labor on that day, provided he does not compel an apprentice or servant not of his belief, to do secular work or business on a Sunday, and does not on that day disturb any other person. Section 3801. What Transportation, etc., by Railroads on Sunday Prohibited. No railroad company, receiver, or trustee con trolling or operating a railroad, shall, by any agent or employee, load, unload, run, or transport upon such road on a Sunday, any car, train of cars, or locomotive, nor permit the same to be done by any such agent or employee, except where such cars, trains, or locomotives are used ex clusively for the relief of wrecked trains, or trains so disabled as to ob struct the main track of the railroad ; or for the transportation of the nec- !This law presents quite a contrast with the views of Virginia's early statesmen, Jefferson and Madison, on religious legislation and exemptions. See pages 23, 31, 73. SUNDAY LAWS OF THE UNITED STATES. 321 essary mail ; or for the transportation of passengers and their baggage ; or for the transportation of live stock ; or for the transportation of arti cles of such perishable nature as would be necessarily impaired in value by one day's delay in their passage ; Provided, however, that if it should be necessary to transport live stock or perishable articles on a Sunday to an extent not sufficient to make a whole train load, such train load may be made up with cars loaded with ordinary freight. Section 3802. What Time the Word " Sunday " in the Pre ceding Section Embraces. The word "Sunday" in the preceding section shall be construed to embrace only that portion of the day between sunrise and sunset ; and trains in transitu having started prior to twelve o'clock on Saturday night, may, in order to reach the terminus or shops of the railroad, run until nine o'clock the following Sunday morning, but not later. Section 3803. Violations of Section 3801 ; Where and How Punished. Any railroad company, receiver, or trustee violating the provisions of section 3801, shall be deemed to have committed a separ ate offense in each county or corporation in which such car, train of cars, or locomotive shall run, or in which such car or train of cars shall be loaded or unloaded ; and shall be fined not less than fifty nor more than one hundred dollars for each offense. Section 3804. The Sale of Intoxicating Liquors on Sunday, etc.; How Punished. No bar-room, saloon, or other place for the sale of intoxicating liquors, shall be opened, and no intoxicating bitters or other drink shall be sold in any bar-room, restaurant, saloon, store, or other place, between twelve o'clock on any Saturday night and sun rise on the succeeding Monday morning. If any person violate the pro visions of this section, he shall be fined not less than ten nor more than five hundred dollars ; and shall also, in the discretion of the court, for feit his license ; but nothing herein contained shall apply to any city having police regulations on this subject, and an ordinance prescribing a penalty equal to that imposed by this section. Section 3806. Carrying Dangerous Weapons to Place of Religious Worship, or on Sunday at Place Other than his own Premises ; How Punished. If any person carry any gun, pistol, bowie-knife, dagger, or other dangerous weapon, to a place of worship while a meeting for religious purposes is being held at such place, or without good and sufficient cause therefor, carry any such weapon on a Sunday at any place other than his own premises, he shall be fined not less than twenty dollars. If any offense under this section be committed at a place of religious worship, the offender may be arrested on the order of a conservator of the peace, without warrant, and held until a warrant can be obtained, but not exceeding three hours. It shall be the duty of every justice, upon his own knowledge, or upon the affidavit of any person, that an offense under this section has been committed, to issue a warrant for the arrest of the offender. 21 Exceptions. Penalty. Sunday saloons prohibited. Penalty. Carrying firearms on Sunday. 322 AMERICAN STATE PAPERS. WASHINGTON. [Code of Washington, 1881, page 227.] Sunday amusementsprohibited. Service of legal papers on Sunday. Penalty. Sunday tradingprohibited. Penalty. OBSERVANCE OF SUNDAY. Section i 266. No person shall keep open any play-house or theater, race-ground, cock pit, or play at any game of chance for gain, or en gage in any noisy amusements, or keep open any drinking or billiard sa loon, or sell or dispose of any intoxicating liquors, as a beverage, on the first day of the week, commonly called Sunday. Section 1267. No judicial business shall be transacted by any court, except the deliberations of a jury, who have received a case on a week day so called, and who receive further instructions from the court at their request, or deliver their verdict, nor any civil process be served by certifying or attesting officer, or any record made by a legally appointed or elected officer, upon the first day of the week, commonly called Sun day ; Provided, that criminal process may issue for the apprehension of any person charged with crime, and criminal examination to be pro ceeded with. Writs of arrest, attachment, and injunctions may issue and be served on Sunday, in all cases in which the said writs might have been issued and served under the provisions of the civil code, the jus tices' practice act and the probate practice act. Section 1268. Any person violating any of the provisions of the two preceding sections of this act, shall be punished, upon conviction thereof, by a fine of not less than thirty dollars nor more than two hundred and fifty dollars for each offense. Section 1269. The person or persons found guilty of any offense specified in this title shall be fined as aforesaid, to be paid to the treas urer of the county for the benefit of common schools, and the offender shall stand commftted until the fine and costs are paid, or the same be commuted by confinement, at the rate of two dollars per day. [ Page 351, chapter 168.] Section 2067. It shall be unlawful for any person or persons of this territory to open on Sunday for the purposes of trade, or sale of goods, wares, and merchandise, any shop, store, or building, or place of business, whatever ; Provided, that this chapter shall apply to hotels only in so far as the sale of intoxicating liquors is concerned, and shall not apply to drug stores, livery-stables, and undertakers. Section 2068. Any person or persons violating the foregoing sec tion shall be guilty of a misdemeanor, and on conviction thereof be fined in any sum not less than twenty-five nor more than one hundred dollars. Section 2069. And it shall be the duty of any and all public officers of this territory, knowing of any violation of this chapter, tomake com plaint, under oath, to the nearest justice of the peace from where the offense was committed. SUNDAY LAWS OF THE UNITED STATES. 323 WEST VIRGINIA. [Code of West Virginia, second edition, 1887, 'chapter r49, page 902.] SABBATH-BREAKING. Section 16. If a person, on a Sabbath day, be found laboring at any trade or calling, or employ his minor children, apprentices, or serv ants in labor or other business, except in household or other work of necessity or charity, he shall be fined not less than five dollars for each offense. And every day any such minor child, or servant, or apprentice is so employed, shall constitute a distinct offense. And any person found hunting, shooting, or carrying firearms on the Sabbath day, shall be guilty of a misdemeanor, and fined not less than five dollars. Section 17. No forfeiture shall be incurred under the preceding section for the transportation on Sunday of the mail, or of passengers and their baggage, or for running any railroad train or steamboat on the Sabbath day, or for carrying firearms, or shooting on that day, by any person having the right to do so under the laws of the United States or of this State ; and no forfeiture for laboring on the Sabbath day shall be incurred under the said section, by any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath, and actually refrains from all secular business and labor on that day, provided he does not compel an apprentice or servant not of his belief to do secular work or business on Sunday, and does not on that day disturb any other person in his observance of the same. And no contract shall be deemed void because it is made on the Sabbath day. Secular employmentsprohibited on Sunday. Exceptions. Sabbatari ans exempted. Sunday con tracts valid. WISCONSIN. [Annotated Statutes of Wisconsin, 1889, chapter 23m.] Section 4595. Violation of the Sabbath. Any person who shall keep open his shop, warehouse, or work-house, or shall do any manner of labor, business, or work, except only works of necessity and charity, or be present at any dancing or public diversion, show, or en tertainment, or take part in any sport, game, or play, on the first day of the week, shall be punished by a fine not exceeding ten dollars ; and such day shall be understood to include the time between the midnight preceding and the midnight following the said day, and no civil process shall be served or executed on said day. Section 4596. Observers of other Day's not Affected. Any person who conscientiously believes that the seventh, or any other day of the week, ought to be observed as the Sabbath, and who actually refrains from secular business and labor on that day, may perform secu lar labor and business on the first day of the week, unless he shall wil fully disturb thereby some other person, or some religious assembly on said day. Acts pro hibited on Sunday. Exemption clause. 324 AMERICAN STATE PAPERS. Relative to processesagainstSabbatarians. Section 4279. Not on Saturday, When. Whenever an execu tion or other final process shall be issued against the property of any person who habitually observes the seventh day of the week, instead of the first, as a day of rest, the officer to whom such process shall be directed, shall not levy upon or sell the property of any such person on the seventh day of the week ; Provided^ that said person shall deliver to such officer an affidavit in writing, setting forth the fact that he habit ually keeps and observes the seventh day of the week, as a day of rest, at any time before such levy, or at least two days before such sale, as the case may be ; and such sale may at the time appointed therefor be adjourned to any day within the life of the execution, or such execution may be renewed, as in other cases. Sunday liquor-selling prohibited. Secular occupationsprohibited. Exceptions. WYOMING. [ Laws of Wyoming, 1888, chapter 86, page 182.] AN ACT RELATING TO THE PROPER OBSERVANCE OF THE FIRST DAY OF THE WEEK, COMMONLY CALLED SUNDAY. Section i . Every person or persons, company or corporation, hav ing license to sell liquors under the laws of Wyoming, who shall keep open, or suffer his or their agent or employee to keep open, his or their place of business, or who shall sell, give away, or dispose of, or permit another to sell, give away, or dispose of, on his or their premises, any spirituous, malt, vinous, or fermented liquors, or any mixtures of any such liquors, on the first day of the week, commonly called Sunday, or upon any day upon which any general or special election is being held, shall be guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than twenty-five (25) dollars, or more than one hundred (100) dollars, or imprisonment in the county jail not to exceed three months. Section 2. It shall be unlawful for any person or persons, com pany or corporation, to keep open any barber shop, store, shop, or other place of business for the transaction of business therein, upon the first day of the week, commonly called Sunday ; Provided, this section shall not apply to newspaper printing-offices, railroads, telegraph companies, hotels, restaurants, drug stores, livery-stables, news depots, farmers, cattle men and ranchmen, mechanics, furnaces or smelters, glass works, electric light plants, and gas works, the venders of ice, milk, fresh meat, and bread, except as to the sale of liquors and cigars. Any person, company, or corporation who shall violate the provisions of this section, shall, on conviction, be fined in a sum of money not less than twenty- five dollars nor more than one hundred dollars, for each offense. Section 4. For the purposes of this act, the first day of the week, commonly called Sunday, shall begin at midnight Saturday, and termi nate the following midnight. SABBATARIANISM IN ARKANSAS. 325 OPERATION OF SUNDAY LAWS. INTRODUCTION OF SABBATARIANISM INTO ARKAN SAS, AND THE SUNDAY LAW. Illustrative of the operation of Sunday laws, the following excerpt from an article in the St. Louis "Globe-Democrat," on the trials of the Sev enth-day Adventists in Arkansas, is inserted. After alluding to the suc cess of the denomination in the State, it says : "They have been from the first apparently an industrious and God fearing people, the chief difference between them and other Christian bodies being that they observe the seventh day as the Sabbath, accord ing to the commandment. But it seems that sectionalism cannot lay down its arms even when the sacred precincts of religion are entered, so among the first things performed by the Legislature at its session last winter, less than a year after these people had come into the State, was the repeal of the clause which gave them the liberty to keep the day of their choice. This may be a part of the ' reform ' connected with the new machine ; but if so, it seems to be directed by a very bigoted spirit. " As the law now stands, all parties, irrespective of their religious belief, are compelled to observe the first day of the week as the Christian Sabbath, and under this law three indictments were found against members of the above denomination, one of the cases being against Elder Scoles, one of their ministers, whose case is to be made the test in the Supreme Court as to the constitutionality of the recent act of the Legislature. It is a little singular that no one else has been troubled on account of the law, with perhaps one minor exception, while members of the above denomination are being arrested over the whole Slate. It savors just a trifle of the religious persecution which charac terized the dark ages. A minister of the gospel pleading in a court of justice, with the open Bible in his hand, for the liberty to keep God's commands is a strange sight in this country; » but according to the Operation of Sunday laws. Character of Adventists. Repeal of exemption clause. All com pelled to keep Sunday. Adventists alone arrested. A minister prosecuted. IThe indictment of Rev. J. W. Scoles, an ordained minister, was as follows : " State of Arkansas 1 v. > Indictment. J. W. Scoles. ) "The grand jury of Washington county, in the name and by the authority of the State of Arkansas, accuse J. W. Scoles of the crime of Sabbath-breaking, committed as follows ; viz., the said J. W. Scoles, on Sunday, the twenty-sixth day of April, 1885, in the county and State aforesaid, did unlawfully perform labor other than customary household duties of daily comfort, necessity, or charity, against the peace and dignity of the State of Arkansas. "J. P. Henderson, Prosecuting Attorney." Mr. Scoles was arrested at Springdale, Arkansas, where he had organized a church of Sabbatarians in 1885, and where they had begun a house of worship. In refer ence to his arrest. Rev. Mr. Scoles says : Indictment of Mr. Scoles. 326 AMERICAN STATE PAPERS. Depriva of rights. rulings of the court in this case, a man has no rights of conscience out side of the dictation of the law. If this be the case, and if our law makers are to control the religious opinions of their constituents, there is no telling what we may yet see in the way of enforcing their peculiar creeds and dogmas. Much interest is manifested here over this matter, and a decision from the higher courts is anxiously looked for." 1 SPEECH OF PATRICK HENRY. Baptists persecuted in Virginia. Henry's entranceinto court. His speech. Similar prosecutions to the foregoing occurred in Virginia in its early history. From 1 768 to 1775 Baptists were frequently arrested on the charge of "disturbing the peace." Jefferson, Madison, and Henry were all radically opposed to any interference in matters of re ligion, and were zealous supporters of the rights of conscience. So in this case Mr. Henry came fifty miles to defend some Baptist ministers who had been arrested. The only difference in the two cases is that those ministers were arrested for preaching the gospel as they believed the Bible commanded them, and Rev. Scoles was arrested for keeping the commandments of God, as he believed the Bible commanded him. In relating the case, the historian says : " He [Mr. Henry] entered the court-house while the prosecuting attorney was reading the indictment. He was a stranger to most of the spectators ; and being dressed in the country manner, his entrance ex cited no remark. When the prosecutor had finished his brief opening, the new-comer took the indictment, and glancing at it with an expression of puzzled incredulity, began to speak in the tone of a man who has just heard something too astounding for belief : (< ' May it please your Worships, I think I heard read by the prose cutor, as I entered the house, the paper I now hold in my hand. If I have rightly understood, the king's attorney has framed an indictment for the purpose of arraigning and punishing by imprisonment these three inoffensive persons before the bar of this court for a crime of great magnitude, — as disturbers of the peace.2 May it please the court, Circum stances under which Rev. Mr. Scoles was arrested. Similarity of present and past persecutions. "I volunteered to do the painting as my share of the work, in addition to my sub scription. I worked away at the church at odd times, sometimes half a day and some times more, as I could spare the time. The last Sunday in April, 1S85, in order to finish the work so I could be free to go out for the summer's labor with the tent, and expecting to go the next day twenty miles, I went over to the church, and finished up a small strip of painting on the south side of the house, clear out of sight of all public roads ; and here I quietly worked away for perhaps two hours, in which time I finished it, and then went home. It was for this offense that I was indicted." *The Supreme Court of the State confirmed the decision of the lower court, and in this case, as in the case of Shover v. the State, ante page 146 et seq., the Sunday law was held to be constitutional. The decision, however, was not written out. 2 There are some striking similarities in the indictments of the Baptists in the last century and those of the Sabbatarians in this. Baptists were arrested for " disturb ing the peace;" Sabbatarians are now arrested because they "perform labor . . . against the peace and dignity of the State," Judging from present appearances, "dis- SPEECH OF PATRICK HENRY. 327 what did I hear read ? my own ? your Worships are about to try for misdemeanor, are charged with — with — with what ? ' Did I hear it distinctly, or was it a mistake of Henry's Did I hear an expression as of crime, that these men, whom turbing the peace" will prove as convenient (though on account of the penalties being so much less severe, will not prove as effectual) a charge on which to arrest persons whose opinions are troublesome, as the charge of "treason" formerly did in England. In the proposed Blair Sunday bill, and in many of the State Sunday laws, provision is made for the exemption of "conscientious" Sabbatarians from the penalties of the law for labor upon Sunday, "provided such labor be not done to the disturbance of others." The worthlessness of any such provision as this, however, is manifest; for some people are " disturbed " even when they hear of a Sabbatarian working upon the day which they regard as holy, though such person be plowing or hoeing, — and that, too, miles away from any place of meeting. The unreasonableness and injustice of any such provision, even in purely civil matters, was illustrated in San Francisco a few years ago ; and in a religious question like that of Sabbath observance the evil would be increased a hundredfold. In 1887 the city of San Francisco had an ordinance reading as follows : "No person shall in any place indulge in conduct having a tendency to annoy persons passing or being upon the public highway, or upon adjacent premises." Under that ordinance one Ferdinand Pape was arrested for "annoying" some one by distributing circulars on the street. He applied to the Superior Court for a writ of habeas corpus, claiming that the offense charged against him did not constitute a crime, and that the ordinance making such action an offense was invalid and void, because it was unreasonable and uncertain. The case is reported as follows : "The writ was made returnable before Judge Sullivan, and argued by Henry Hutton in behalf of the imprisoned offender. Disposing of the question, the Judge gave quite a lengthy written opinion, in which he passed a somewhat severe criticism upon the absurdity of the contested ordinance, and discharged Pape from custody. Said the Judge : "'If the order be law, enforceable by fine and imprisonment, it is a crime to indulge in any conduct, however innocent and harmless in itself, and however uncon sciously done, which has a tendency to annoy other persons. The rival tradesman who passes one's store with an observant eye as to the volume of business, is guilty of a crime, because the very thought of rivalry and reduction of business has a tend ency to annoy. The passing of the most lenient creditor has a tendency to annoy, because it is a reminder of obligations unfulfilled. The passing of a well-clad, indus trious citizen, bearing about him the evidences of thrift, has a tendency to annoy the vagabond, whose laziness reduces him to a condition of poverty and discontent. The importunities of the newsboy who endeavors with such persistent energy to dispose of his stock, has a tendency to annoy the prominent citizen who has already read the papers, or who expects to find them at his door as he reaches home. He who has been foiled in an attempted wrong upon the person or property of another, finds a tendency to annoy in the very passing presence of the person whose honesty or ingenuity has circumvented him. And so instances might be multiplied indefinitely in which the most harmless and inoffensive conduct has a tendency to annoy others. If the lan guage of the ordinance defines a criminal offense, it sets a very severe penalty of liberty and property upon conduct lacking in the essential element of criminality. " 'But it may be said that courts and juries will not use the instrumentality of this language to set the seal of condemnation on unoffending citizens, and to unjustly deprive them of their liberty and brand them as criminals. The law countenances no such dangerous doctrine, countenances no principle so subversive of liberty, as that the life or liberty of a subject should be made to depend upon the' whim or caprice of judge or jury, by exercising a discretion in determining that certain conduct does or does not come within the inhibition of a criminal action. The law should be engraved so plainly and distinctly on the legislative tables that it can be discerned alike by all An unreas onable pro vision. A similar ordinance. An arrest made. of Superior Court. Unjust consequencesof such laws. Ease with which some people are disturbed. A dangerous doctrine. 328 AMERICAN STATE PAPERS. Mr. Henry's delivery. Religion and the state about to be dissevered. " Having delivered these words in a halting, broken manner, as if his mind was staggering under the weight of a monstrous idea, he low ered his tone to the deepest bass ; and assuming the profoundest solem nity of manner, answered his own question : < 1 1 preaching the gospel of the Son of God ! ' ' ' Then he paused. Every eye was riveted upon him, and every mind intent ; for all this was executed as a Kean or a Siddons would have performed it on the stage, — eye, voice, attitude, gesture, all in ac cord to produce the utmost possibility of effect. Amid a silence that could be felt, he waved the indictment three times round his head, as though still amazed, still unable to comprehend the charge. Then he raised his hands and eyes to heaven, and in a tone of pathetic energy wholly indescribable, exclaimed, '"Great God!' "At this point, such was his power of delivery, the audience relieved their feelings by a burst of sighs and tears. The orator continued : " ' May it please your Worships, in a day like this, when Truth is about to burst her fetters ; when mankind are about to be aroused to claim their natural and inalienable rights ; when the yoke of oppression that has reached the wilderness of America, and the unnatural alliance of ecclesiastical and civil power is about to be dissevered, — at such a period, when Liberty, Liberty of Conscience, is about to wake from her slumberings, and inquire into the reason of such charges as I find ex hibited here to-day in this indictment ' — "Here occurred another of his appalling pauses, during which he cast piercing looks at the judges and at the three clergymen arraigned. Then resuming, he thrilled every hearer by his favorite device of repetition. " ' If I am not deceived, — according to the contents of the paper I now hold in my hand, — these men are accused of preaching the gospel of the Son of God ! ' "He waved the document three times around his head, as though still lost in wonder ; and then with the same electric attitude of appeal to heaven, he gasped, " ' Great God ! ' " This was followed by another burst of feeling from the spectators ; and again this master of effect plunged into the tide of his discourse : " ' May it please your Worships, there are periods in the history of man when corruption and depravity have so long debased the human A tyrannical provision. subjects of the commonwealth, whether judge upon the bench, juror in the box, or prisoner at the bar. Any condition of the law which allows the test Of criminality to depend on the whim or caprice of judge or juror, savors of tyranny. The language employed is broad enough to cover conduct which is clearly within the constitutional rights of the citizen. It designates no border-line which divides the criminal from the non-criminal conduct. Its terms are too vague and uncertain to lay down a rule of conduct. In my judgment, the portion of the ordinance here involved is uncertain and unreasonable.' " SPEECH OF PATRICK HENRY. 329 character, that man sinks under the weight of the oppressor's hand, Days of becomes his servile, his abject slave. He licks the hand that encfpas^" smites him. He bows in passive obedience to the mandates of the despot ; and in this state of servility, he receives his fetters of perpetual bondage. But may it please your Worships, such a day has passed. From that period when our fathers left the land of their nativity for Americans these American wilds,— from the moment they placed their feet upon fo^beTree. the American continent, — from that moment despotism was crushed, the fetters of darkness were broken, and Heaven decreed that man should be free, — free to worship God according to the Bible. In vain were all their offerings and bloodshed to subjugate this new world, if we, their offspring, must still be oppressed and persecuted. But, may it please your Worships, permit me to inquire once more, For what are these men about to be tried ? This paper says, for preaching the gospel of the Saviour to Adam's fallen race / ' "Again he paused. For the third time, he slowly waved the in dictment round his head ; and then turning to the judges, looking them full in the face, exclaimed with the most impressive effect, " ' What laws have they violated ? * "The whole assembly were now painfully moved and excited. The presiding judge ended the scene by saying, " * Sheriff, discharge these men.' " It was a triumph of the dramatic art. The men were discharged ; but not the less in other counties, did zealous bigots pursue and perse cute the ministers of other denominations than their own. It was not till the Revolutionary War absorbed all minds, that Baptists ceased to be imprisoned." * Mr. Henry's triumph. barton's "Life of Thomas Jefferson,'' page 204 et seq. It is, indeed, a fact to be deplored that, even in free America, the state cannot be contented with confin ing its punishment to the criminal classes, but must enact and enforce laws against some of the most respectable and worthy citizens of the land. After all the examples we have had of the prosecution of noble men like Roger Williams and other Baptists, of the Quakers, Unitarians, and infidels, how can Americans again allow the revival of persecution on account of belief ? Is the land so cleared of criminals that its jails would be lying idle unless they can be filled with Christians? or are the jails intended as altars from which prayers shall daily ascend to God for the prosperity of the nation and the welfare of its inhabitants? It is a day that should make Americans blush for shame when the most enlightened nation on earth locks Christians in the dirty cells of its jails simply because they obey the words of the Bible as they understand them, and just as they are read from the pulpit of every Christian church in the land ! As the historian says, "It was not till the Revolutionary War absorbed all minds, that Baptists ceased to be persecuted." And it is only when the spirit of the Revolu tion — the spirit of American freedom — is effaced from our minds, that we will again begin to persecute. As was declared by the report of the House of Representatives, sixty years ago, "It is, perhaps, fortunate for our country that the proposition [for Sunday legislation in 1829-30] should have been made at this early period while the spirit of the Revolution yet exists in full vigor." And it was ; for the Sunday move ment received a set-back from which it has not even yet recovered. But the Sunday advocates seem to think that the spirit of the Revolution has now been effaced suffi ciently so that Sunday laws can be enacted and enforced with impunity. A lesson hard to learn Spirit of the Revolution. 330 AMERICAN STATE PAPERS. REPORT OF THE OF THE STATE Exemption clause in Arkansas. Its repeal. A system of religious persecution. Restoration of exemption clause recom mended. BAR ASSOCIATION OF ARKANSAS. SUNDAY LAWS. " Our statute as it stands in ' Mansfield's Digest,' provides that ' per sons who are members of any religious society who observe as Sabbath any other day of the week than the Christian Sabbath, or Sunday, shall not be subject to the penalties of this act (the Sunday law), so that they observe one day in seven, agreeably to the faith and practice of their church or society. ' ' Mansfield's Digest,' section 1886. " This statute had been in force from the time of the organization of the State government ; but it was unfortunately repealed by act of March 3, 1885. Acts, 1885, page 37. "While the Jews adhere, of course, to the letter of the original command to remember the seventh day of the week, there is also in the State a small but respectable body of Christians who consistently believe that the seventh day is the proper day to be kept sacred ; and in the case of Scoles v. State, our Supreme Court was compelled to affirm a judgment against a member of one of these churches, for worshiping God according to the dictates of his own conscience, supported, as he supposed, by good theological arguments. It is very evident that the system now in force, savoring as it does very much of religious perse cution, is a relic of the middle ages, when it was thought that men could be made orthodox by an act of Parliament. Even in Massa chusetts, where Sabbatarian laws have always been enforced with unusual vigor, exceptions are made in favor of persons who religiously observe any other day in the place of Sunday. We think that the law as it stood in ' Mansfield's Digest,' should be restored, with such an amendment as would prevent the sale of spirits on Sunday, as that was probably the object of repealing the above section." OPEN LETTERS. With the permission of the recipient, I insert the statements of some of the foremost lawyers and other prominent citizens of Arkansas, rela tive to the operation of the Sunday law of that State. BAR OF THE WHOLE STATE SHOCKED. The first is from Judge Williams of Little Rock, formerly a judge of the Supreme Court of the State of Arkansas : "Little Rock, Arkansas, March 21, 1887. "Rev. Dan T. Jones: " Sir : As requested, I give you a short r£mm6 of the history of our Sabbath law of 1885. Up to the time of the meeting of the Legislature in January, 1885, our Sunday law had always excepted from it sanctions OPERATION OF SUNDAY LAWS. 331 the cases wherein persons from conscience kept the seventh day as the Sabbath. It had been the case for many years at the capital, that no Sabbath laws were observed by the saloon-keepers. After the election of 1884, the newly-elected prosecuting attorney of that district, com menced a rigid enforcement of the law. A few Jewish saloon-keepers successfully defied it during the session of the Legislature. This led to the total and unqualified repeal of the conscience proviso for the seventh day in the old law. This was used oppressively upon the seventh-day Sabbath Christians, to an extent that shocked the bar of the whole State. A test case was brought from Washington county. Our Su preme Court could not see its way clear to hold the law unconstitutional, but the judges, as men and lawyers, abhorred it. Judge B. B. Battle, one of the three judges, was, with Judge Rose and myself, a member of the standing Committee on Law Reform of our State Bar Association. In our report, as you see, we recommended a change, which the Associa tion adopted unanimously, Chief Justice Cockrill and Associate Justices Smith and Battle being members present and voting. At the meeting of the General Assembly the next week (January, 1887), Senator Crockett introduced a. bill repealing the obnoxious law, in so far as it affected those who keep holy the seventh day, still forbidding the open ing of saloons on Sunday.1 Truly yours, " Sam W. Williams." Sabbatarians always had been ex- emptecV. Sabbatarians oppressed. Members of Committee on Law Reform. Senator Crockett's bill. LAW OPPRESSIVE ON SABBATARIANS. The next is from Judge Rose of Little Rock, a prominent lawyer, and one of the Committee on Law Reform of the State Bar Association : " Little Rock, Arkansas, April 15, 1887. " Rev. Dan T. Jones, " Springdale, Arkansas : " Dear Sir : Yours received. The law passed in this State in 1885, and which has since been repealed, requiring all persons to keep Sun day as a day of rest, although they might religiously keep some other Allcom- 7,.., t j!^-t pelted to keep day of the week, was enacted, I think, to meet the case of certain Jews guntiay. in this city who kept saloons and other business houses open on Sunday. It was said that those persons only made a pretense of keeping Saturday as a day of rest.2 Whether these statements were true or not, I do not know. The act of 1885 was found to work oppressively on persons believing as you do that Saturday is the Christian as well as the Jewish Sabbath ; and hence its repeal. It was manifestly unjust to them as well as to Jews who are sincere in their faith. " You ask me to express my opinion as to the propriety of such legis lation as that contained in the repealed act. Nothing can exceed my 1 For Senator Crockett's speech on the adoption of this bill, see ante page 208 et seq. SThiswas the plea made in the Legislature to get the exemption repealed : but it was a peculiarly significant fact that while Sabbatarians were prosecuted in various parts of the State, not a single saloon-keeper was prosecuted during the whole two years. Alleged reason. Sabbatarians oppressed. 332 AMERICAN STATE PAPERS. Abhorrence for religious legislation. Consistency manifested ! Religious legislation the result of ignorance and fanaticism. abhorrence for any kind of legislation that has for its object the re straint of any class of men in the exercise of their own religious opin ions. It is the fundamental basis of our government that every man shall be allowed to worship God according to the dictates of his own conscience. It was certainly not a little singular that while in our churches the command was regularly read at stated times, requiring all men to keep the Sabbath, which, amongst the Jews to whom the com mand was addressed, was the seventh day of the week, men should be prosecuted and convicted in the courts for doing so. As to the theolog ical aspect of the matter, I am not competent to speak ; but as a civil requirement, my opinion is that any legislation that attempts to control the consciences of men as to the discharge of religious duty, can only be the result of that ignorance and fanaticism which for centuries proved to be the worst curse that ever afflicted humanity. "Very respectfully yours, "U. M. Rose." NATURE OF THE SUNDAY PROSECUTION. Sabbatarians alone indicted. Religious persecution intended. Injustice of Sunday law. Other Sun day dese- cratorsunmolested. Mr. E. Stinson, a public school teacher in Hot Spring county, writes concerning the nature of the Sunday prosecutions as follows : "Malcolm, Hot Spring County, Arkansas, ) March 27, 1887. ) " Mr. Jones : " Dear Sir : In answer to your inquiry, will say that since the repeal of the exemption clause in our statutes, which allowed persons who kept another day than Sunday as Sabbath, to go about their ordinary work or business on that day, several indictments have been found in Hot Spring county. In each and every case the parties so indicted have been conscientious observers of the seventh day, so far as I know them. To my knowledge others have worked on Sunday who did not observe the seventh day, and no bills were found against them. I believe the prosecutions to be more for religious persecution than for the purpose of guarding the Sunday from desecration. The men who have been indicted are all good moral men and law-abiding citizens, to the best of my knowledge. The indictments, to the best of my belief, were mali cious in their character, and without provocation. I believe the unmod ified Sunday law to be unjust in its nature, and that it makes an unjust discrimination against a small but worthy class of our citizens. I am a member of the Baptist Church, and not an observer of the seventh day ; but I accept with gratitude the recent change in the laws of our State, which shows more respect for the conscientious convictions of all our citizens. I do not believe that if the same acts for which the indict ments were lodged against Seventh-day Adventists, had been committed by those who did not keep the seventh day, any notice would have been taken of them. Respectfully, " E. Stinson." OPERATION OF SUNDAY LAWS. 333 persecution and religious intolerance manifested. The physician and the proprietor of the Potash Sulphur Springs Hotel, a health resort near Hot Springs, both old residents of the place, were personally acquainted with some of those convicted of Sabbath-breaking in Hot Spring county, and write as follows : "Potash Sulphur Springs, Arkansas, March, 1887. "To WHOM it may concern : We, the undersigned, herewith tes- Intolerance tify that the recent prosecutions against the observers of the seventh- toward day Sabbath in our vicinity, have brought to the surface a religious in- Sabbatarians. tolerance and a spirit of persecution, the existence whereof a great many imagine not to exist any more in our time. "J. T. Fairchild, M. D. "E. E. Woodcock." SABBATARIANS ALONE INDICTED. Another letter, from Mr. Fitzhu'gh, a. justice of the peace, and act ing deputy-sheriff in Hot Spring county during the two years in which the unmodified Sunday law was in force, will show the estimate as citizens and neighbors, placed upon some who were indicted for Sab bath-breaking. " State of Arkansas, County of Hot Spring, ) Salim Township, April 9, 1887. f " On the second day of March, 1885, the Legislature of Arkansas re pealed the law allowing any person to observe as the Sabbath any day of the week that they preferred, and compelled them to keep the Chris tian Sabbath, or first day of the week. The effect of this change worked H^^JP"" a hardship on a class of citizens in this county, known as Seventh-day Adventists, who observe the seventh instead of the first day of the week, as the Lord's Sabbath. There were five or six of them indicted (and some of them the second time) by the grand jury of this county, for the violation of this law.* In fact, these people were the only ones .^others that were indicted for Sabbath-breaking, during the two years in which this law was in force. I was not intimately acquainted with but one of these people, Mr. John Shockey, who moved from Ohio, and settled within one and one-fourth miles of me, some two and a half years ago. I know nothing in the character of this gentleman but what would recommend him to the world at large. As , citizen, he recognizes and s^™s°< regards the laws of our country (with the above exception) ; as a neigh bor, he might well be called a Samaritan ; as a Christian, he is strict to his profession, and proves his faith by his works. " Respectfully, " Benj. C Fitzhugh, Justice of the Peace. "Malvern, Hot Spring county, Arkansas." 1 In Arkansas there were over twenty cases of the prosecution of Sabbatarians. 334 AMERICAN STATE PAPERS. THE CELEBRATED KING CASE. SUMMARY OF THE CIRCUMSTANCES CONNECTED WITH THE CASE OF THE STATE v. KING.1 Surprising facts. Tennessee Sunday laws. The law a dead letter. Its revival. Cause of revival. t No exemp tion clause. Feelings towardSabbatarians. His faith not to be tolerated. That a man should be fined seventy-five dollars and costs for quietly working in his own field in the United States of America may indeed seem a strange story to relate. That he should twice be tried and subjected to fines or imprisonments for substantially the same offense, may appear stranger still ; but such are facts. On the statutes of Tennessee is found a Sunday law which forbids " any merchant, artificer, tradesman, farmer, or other person . . . do ing or exercising any of the common avocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday." It also provides that " any person who shall hunt, fish, or play at any game of sport, or be drunk on Sunday, as aforesaid, shall be subject to the same proceedings and liable to the same penalties, as those who work on the Sabbath. " Code of Tennessee, sections 2289, 2290. From the day of its enactment until recently, this law has been practically a dead letter. Men have been allowed to hunt, fish, shoot, drink, and labor on that day without interference. No one has complained of being disturbed. But of late certain citizens in the western part of the State, residents of Obion county, seem to have discovered the purpose for which this law was made, and found occasion to set in motion this hitherto inoperative sec tion of the code. Within the past few years, some of their fellow-citizens becoming convinced that the seventh day is the Sabbath, a small church was organized in the community, whose members observe the seventh day, and believe it to be their privilege, according to the commandments of God, to labor on the other six days of the week. This appears to have led to the discovery of the Tennessee Sunday law, which, unlike the Sunday laws of most other States, makes no exemption in favor of those who conscientiously observe another day. The presence of this new but small organization of Sabbatarians seems not to have been agreeable to certain citizens of other religious belief. They told Mr. King, a member of this new organization, that if he wished to keep the seventh day, and do as he had done, he must move out of the country. He replied that this is a free country ; that 1 The case of the State v. King, brought before the Supreme Court of Tennessee, having attracted much attention and been commented upon by the press in all parts of the country, a brief history of it will be of interest. The account here inserted is written by Mr. W. A. Colcord of the editorial committee of the National Religious Liberty Association, a gentleman who has carefully examined the case in detail. THE CELEBRATED KING CASE. 335 a man is allowed here to worship God as he understands the Scriptures to teach. But they insisted that he must keep Sunday, and not teach their children by his example that the seventh day is the Sabbath ; and if he did not comply with their wishes, he would be prosecuted. He cited them to the past history of the community, wherein Sunday had not been observed, and yet they had not prosecuted any one for its vio lation. Their answer indicated that all parties would be compelled to keep it from that time on, whether they kept any other day or not. He argued that if he conscientiously observed the day which he believed God required, they should not then compel him to keep a day in which he did not believe, as that would be tyrannical. He also stated to them that lie was a poor man, and could not afford to lose one sixth of his time from the support of his family. But nothing short of submission would be accepted by them. Not being able to convince him that he was in error, nor to dissuade him from his course, they immediately set about to compass their ends by other means. The Sunday law of the State would accomplish their purpose. Accordingly, a league was formed for the enforcement of the law. The following is a copy of the pledge taken by this league when it was organized : "NOTICE. " To whom it may concern : That the undersigned citizens of , being desirous of the welfare of our community, and that peace and har mony may prevail, and that the morals of ourselves and our children may not be insulted and trampled upon by a. wilful violation of the Sunday laws of our land ; do this day pledge our word and honor, that we will individually and collectively prosecute each and every violation of the Sunday law of our State that may come under our observation. "December 10, 1888." Previous to this, the Sunday law had long been violated by the peo ple of this neighborhood. Scores of men had made Sunday a day for hunting and fishing. And church members of different denominations, as well as non-professors, had made it a rule, if business was urgent, to do common labor upon that day. Now it would be supposed that after the organization of the league, all this would cease, or that every of fender would be promptly complained of, and summoned to appear be fore the court. But what was the result ? The Sunday gaming and shooting went on after the league was organized the same as before. Others besides those who keep the seventh day worked upon their farms on Sunday in a more public and noisy manner than those who observed the seventh day.1 But not one word of complaint was made about it. When, however, Mr. King went out into his field one Sunday in June, quietly to cultivate his corn, which was so tall at the time as nearly to Claims of Mr. King. Formation of vigilance committee. Pledge of the league. Sunday observancepreviously. Sunday work in general. Sabbatarians alone com plained of. 1 This point has been prominent in connection with the prosecution of Sabbatarians in nearly every State where they have been arrested. 336 AMERICAN STATE PAPERS. Mr. King's first arrest. A significant episode. Kuklux proceedings. Shooting into meeting. Indictment of Adventists. hide him from sight, he was promptly arrested, brought before Justice Barker, of Obion county, July 6, 1889, tried, and assessed fines and costs, amounting to twelve dollars and eighty-five cents.1 Another episode occurred about this time which showed the real ob ject of the attack. The seventh-day-keeping church desired a minister to visit them during their quarterly meeting, and hold some services with them. A company on the Kuklux plan was organized, and, armed with shot guns, rifles, and revolvers, went to the place of meeting one Sunday night, and fired into a congregation of men, women, and chil dren. Some fifteen or twenty shots were fired, but as they had to shoot through the wall of the building, no one was hit, though one rifle ball passed exactly through the space behind the desk that had been occupied a moment before by the speaker.3 All this failing to accomplish the desired result, Mr. King and two of his brethren, Mr. Callicott and Mr. Stem, who lived across the line in Dyer county, soon learned that they had been complained of before the grand juries of their respective counties, and indictments found against them for laboring on Sunday. Their cases were to be tried in November. Mr. King's trial, which was to be held at Troy, Obion Character of Mr. King's principal prosecutor. "None so blind as those who will not First prin ciple of gov ernment. Effects of its application. 1 Since judgment has been rendered against Mr. King for working on Sunday by the Supreme Court of the State, some facts have transpired which throw consider able light upon the spirit actuating his prosecutors in his arrest. It seems that his most prominent prosecutor has since proved to be a criminal himself. The report is as follows : " One of the most prominent persons connected with the arrest and prosecution of R. M. King and other Sabbatarians in Dyer county, Tennessee, was the superintendent and teacher of the Bible class in the Union Sunday-school. It was this man who rode around to the farther side of Mr. King's corn-field, and, when the gentleman whose religious views were so repugnant to the community, emerged from the tall corn at the end of the rows, said he would have to have him arrested, and asked if he did noi think it was wrong to break the law of his country. This man who thus posed as religious instructor and guardian of the law, has since been arrested for selling whisky at a public gathering, contrary to the laws of the State, the result of which was a hand-to-hand fight participated in by thirty intoxicated men, one of whom is probably fatally wounded. After his arrest, on pretext of desiring to speak a few moments with his sick wife, he was allowed to enter her room, from which he jumped through the window, and escaped." There were fifteen witnesses against him. s Even occurrences like this will not convince the obstinate minds of religio-political reformers that any such thing as religious persecution can happen in this age of the world. Probably nothing will convince them. But whenever we see society or members of society interfering illegitimately with the actions of others, it is time for all persons interested in the liberty and welfare of the nation to protest. As to the limits of the authority of society over the individual, John Stuart Mill says : "The maxims are, first, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. Advice, instruction, parsuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct." It is the partial carrying out of this principle that has enabled truth to make such marked advancement in the latter part of the present millennium. And every de parture from it, whether by the state or by communities is a retrogradation in civil ization, and retards the advancement of truth. God created individuals free agents, and when men interfere with this freedom, they sin against both man and God. THE CELEBRATED KING CASE. 337 county, was postponed until the spring term of court. The trial of the other two occurred at Dyersburg, Dyer county, November 25, 26, the two cases being tried as one. The jury brought in a verdict of guilty in one case, and disagreed in the other. Judge Flippin sent them back to try again, which only resulted in a like disagreement. The Judge then dismissed them, stating that the evidence would not sustain the verdict rendered in the case of the one they pronounced guilty, and granted a new trial.1 The trials. *The second trial of Mr. L. A. Callicott came off at Dyersburg, Tennessee, July 21, 1890. During this trial the question arose as to the position of the Seventh-day Adventists in reference to paying religious homage to the Sabbath of the dominant cult by resting on the day which they regard as the foundation-stone of their belief. An Adventist minister was summoned, and the following evidence elicited : TESTIMONY OF REV. MR. MARVIN. Col. Richardson : Mr. Marvin, where do you live? Mr. Marvin : At Trezevant, Carroll county, Tennessee. Col. Richardson : Are you a minister of the Seventh-day Adventist Church ? Mr. Marvin : Yes, sir. Col. Richardson : What is the belief and practice of your church concerning the Sabbath ? Mr. Marvin: We believe the seventh day is the Sabbath of the Lord, as brought to view in Exodus, twentieth chapter, and keep it as such; and with James (second chapter, twelfth verse), we believe this to be a law of liberty, and that we have a heaven-born right to obey it in any State or nation. Col. Richardson : You regard it as a Christian duty to keep that day holy, and no other ? Mr. Marvin : Yes, sir. Col. Richardson : Does your church hold that the working upon six days is as imperative as the keeping of the seventh ? Mr. Marvin : No, sir. CROSS-EXAMINATION. Attorney-General : Mr. Marvin, what is the position of your people as to work ing six days ? Mr. Marvin : They have never officially or publicly expressed any rule concern ing it- Attorney-General : Do your people teach that it is a sin to rest on Sunday t Mr. Marvin : We believe that when required to — Attorney-General : But answer my question. Mr. Marvin : I will, sir, if you will give me opportunity. Attorney-General : Well, go on, then. Mr. Marvin: We believe that when required to rest on Sunday by laws based upon the religious aspect of the day, it would be wrong to obey them. Attorney-General : Do laws requiring men simply to rest tend to enforce re ligion or worship? Mr. Marvin : Yes, sir, if such laws be Sunday laws. Attorney-General: On what grounds? Mr. Marvin : On the grounds that there is not now, nor ever was, a Sunday law that did not have for its basis the religious character of the day. Attorney-General : But it would not interfere with your religion to rest on Sunday ? Mr. Marvin : Yes, sir. Sunday-keeping is a religious act — an act of worship. It would be conforming to an opposing religion. The minister was then excused, and the Attorney-General yielded the case, Judge Flippin charging the jury to bring in the verdict, " not guilty." Second trial of Mr. Callicott. Examination of an Advent ist minister. Belief of Adventists. Views of Sunday rest. Sunday observance an act of worship. 338 AMERICAN STATE PAPERS. Mr. King's trial. His indictment. Witnesses examined. Evidence not admitted. Mr. King's work. No feeling engendered. March 6, 1890, Mr. King's trial came up in court again at Troy, be fore Judge Swiggart, Attorney-General Bond appearing for the State, and Colonel Richardson for the defendant. The indictment against Mr. King was based on the following charges : ' ' Plowing on Sunday, and doing various other kinds of work on that day [ June 23 ] and on Sun days before that day without regard to said Sabbath-days." In this it was claimed that this was " a disturbance to the community in which done, was offensive to the moral sense of the public, and was and is a public nuisance." Six witnesses were examined : five for the prosecution — Robert Cole, W. W. Dobbins, Alex. Wright, Wm. Oakes, and J. T. Marshall ; and one for the defense — Squire J. A. Barker. All testified to the good character of the defendant, Mr. King, as a quiet, peaceable, law-abid ing citizen, with the one exception of working on Sunday. The defend ant offered to show that he had been brought before Squire Barker, and fined for the principal offense charged in the indictment (working on June 23), and that he had paid his fine ; but the court would not permit him to prove it. The examination of the witnesses showed that two of them, members of a popular church, belonged to the organization, the members of which had bound themselves together by a written agree ment to prosecute every violation of the Sunday laws. Colonel Rich ardson then offered to prove that men in the same neighborhood where Mr. King lives had cut wheat with a self-binder, rafted logs, and done other work on Sunday, for which they had never been called in ques tion ; but the court would not admit the evidence. The following testimony of the witnesses in this trial substantiates the above statements, and shows that the sole cause for the prosecution was a dislike on the part of certain witnesses to the religious views of the defendant : TESTIMONY OF MR. COLE. Attorney-General : Did you see Mr. King engaged in plowing or doing any kind of farm work in District No. 9, Obion county, about the fourth Sunday in June last ? Mr. Cole : I did. Attorney-General : What sort of work was he doing, Mr. Cole ? Mr. Cole : He was plowing in the field. Attorney-General : Plowing corn ? Mr. Cole : Yes, sir. Attorney-General: That is part of his regular work, farming? Mr. Cole : Yes, sir. Attorney-General : That was his means of making a living ? Mr. Cole : Yes, sir. Attorney-General ; That was on Sunday ? Mr. Cole : Yes, sir. Attorney-General : Was there any disturbance or excitement of any kind produced by his working there, plowing there ? THE CELEBRATED KING CASE. 339 Mr. Cole ". Well, sir, it excited a good deal of comment, and gave offense to the sense of propriety of those who were on their way to the d'UCed church. Attorney-General : Was there any feeling produced or engen dered in the neighborhood by reason of that fact ? Mr. Cole : No, sir ; I cannot say that there was. Attorney-General . Only a. determination on the part of some that he should be prosecuted for it ? Mr. Cole : Yes, sir. cross-examination. Col. Richardson : Of what church are you a member ? Mr. Cole : The Methodist Church. Col. Richardson : Had there been a combination or a written agreement entered into between you and the parties that you have named, and others, that you would prosecute all violations of the Sun day law ? Mr. Cole : Yes, sir ; there had. Col. Richardson : Have you ever had anybody else indicted, or arrested, or charged except Seventh-day Adventists ? Attorney-General : I object to that. Col. Richardson (to the court) : I am asking it with a view to show the animus of these witnesses and their feelings against this par ticular man. I expect to show why Mr. Cole, as he said, had entered into a compact to prosecute all parties who violated the Sunday law. I expect to prove by Mr. Cole, or if not by him, by others, that divers parties who are not Seventh-day Adventists cut wheat, did all sorts of work on the Sabbath, desecrated it generally, and that no attempt has been made to prosecute or interfere with any one except this remnant of Israel. The Court : I sustain the Attorney-General's objection. Col. Richardson (to the witness) : Did you see the defendant, Mr. King, working on Sunday ? Mr. Cole : Yes, sir ; I saw him plowing in his field on Sunday, the twenty-third day of June last. Col. Richardson : It did not disturb you any, did it ? Mr. Cole : Yes, sir ; of course it did ; it was very annoying to my feelings. ' Disturb ance" pro- Mr. Cole a member of the league. Object of cross- examination. " Annoy ance" to feelings. 2John Stuart Mill presents this kind of intolerance in its true light. He says : "There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings ; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to re tort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feel ing of another who is offended at his holding it ; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person's taste is as much his own peculiar concern as his opinion or his purse. . . The evil here pointed out is not one which exists only in theory ; and it may perhaps be expected that Argument of Mr. Mills. 340 AMERICAN STATE PAPERS. Reason for his annoyance. Illustration of illegitimate interferences with rights of individuals. Another illustration. Col. Richardson : On what account ? Mr. Cole : Because I thought it a wilful and intentional slight to our community. Col. Richardson : On what grounds ? Mr. Cole : On the ground that it was a violation of laws, both sacred and civil. I should specify the instances in which the public of this age and country improperly invests its own preferences with the character of moral laws. I am not writing an essay on the aberrations of existing moral feeling. That is too weighty a subject to be dis cussed parenthetically, and by way of illustration. Yet examples are necessary, to show that the principle I maintain is of serious and practical moment, and that I am not endeavoring to erect a barrier against imaginary evils. And it is not difficult to show, by abundant instances, that to extend the bounds of what may be called moral police, until it encroaches on the most unquestionably legitimate liberty of the individual, is one of the most universal of all human propensities. "As a first instance, consider the antipathies which men cherish on no better grounds than that persons whose religious opinions are different from theirs, do not practice their religious observances, especially their religious abstinences. To cite a rather trivial example, nothing in the creed or practice of Christians does more to envenom the hatred of Mahometans against them, than the fact of their eating pork. There are few acts which Christians and Europeans regard with more unaffected disgust, than Mussulmans regard this particular mode of satisfying hunger. It is, in the first place, an offense against their religion ; but this circumstance by no means explains either the degree or the kind of their repugnance ; for wine also is forbidden by their religion, and to partake of it is by all Mussulmans accounted wrong, but not disgusting. Their aversion to the flesh of the ' unclean beast' is, on the contrary, of that peculiar char acter, resembling an instinctive antipathy, which the idea of uncleanliness, when once it thoroughly sinks into the feelings, seems always to excite even in those whose per sonal habits are anything but scrupulously cleanly, and of which the sentiment of religious impurity, so intense in the Hindoos, is a remarkable example. Suppose now that in a people of whom the majority were Mussulmans, that majority should insist upon not permitting pork to be eaten within the limits of the country. This would be nothing new in Mahometan countries. Would it be a legitimate exercise of the moral authority of public opinion? and if not, why not? The practice is really revolting to such a public. They also sincerely think that it is forbidden and abhorred by the Deity. Neither could the prohibition be censured as religious persecution. It might be religious in its origin, but it would not be persecution for religion, since nobody's religion makes it a duty to eat pork. The only tenable ground of condemnation would be that with the personal tastes and self-regarding concerns of individuals the public has no business to interfere. "To come somewhat nearer home : the majority of Spaniards consider it a gross impiety, offensive in the highest degree to the Supreme Being, to worship him in any other manner than the Roman Catholic ; and no other public worship is lawful on Spanish soil. The people of all Southern Europe look upon a married clergy as not only irreligious, but unchaste, indecent, gross, disgusting. What do Protestants think of these perfectly sincere feelings, and of the attempt to enforce them against non- Catholics? Yet if mankind are justified in interfering with each other's liberty in things which do not concern the interests of others, on what principle is it possible con sistently to exclude these cases? or who can blame people for desiring to suppress what they regard as a scandal in the sight of God and man ? No stronger case can be shown for prohibiting anything which is regarded as a personal immorality, than is made out for suppressing these practices in the eyes of those who regard them as impieties ; and unless we are willing to adopt the logic of persecutors, and to say that we may persecute others because we are right, and that they must not persecute us because they are wrong, we must beware of admitting a principle of which we should resent as a gross injustice the application to ourselves." THE CELEBRATED KING CASE. 341 Col. Richardson : Then it was an excitement of your religious Religious feelings, and repulsive to your views of Christianity? garfed '"" Mr. Cole : Yes, sir. Col. Richardson : You regarded it as an insult purely because it was on the Sunday? Mr. Cole : Yes, sir. Col. Richardson : How long have you known Mr. King? Mr. Cole : For about twenty or twenty-five years. Col. Richardson • What was the general character of the defend- Character ant as a peaceable, quiet, law-abiding citizen, up to the time of this in- of Mr' K!ng' dictment ? Mr. Cole : It was good. Col. Richardson : Is he a pious, Christian gentleman? Attorney-General : I object to that question. The Court : I sustain the objection. The question is not relevant. His religious Col. Richardson : Your Honor, I think it is relevant, and I sub- vlews' mit to your Honor that I propose to prove that he is a member of a church which holds that Saturday, the seventh day, is the Sabbath, and that he observes it. I think I have a right to do this for two pur poses : first, to show that he did not intentionally violate the law ; second, to show the intent and purpose for which he did it, as a matter of mitigation". If this action can be sustained at all, and if this jury can find any verdict at all, it is within the discretion and power of the jury to impose any fine above fifty dollars that they may see proper. And I think that as a matter of mitigation I have a right to show to the jury that this man belongs to a church that professes certain tenets of relig ious faith, amongst which is that the seventh day is the Sabbath ; and that he observes that day as the Sabbath. I think I have a right to prove this, — not, I grant you, as a defense to the action, or as a decision of it, but in mitigation of any fine. The Court : I do not think his religious belief or religious connec- Testimony tion with any church or sect has anything to do with this lawsuit, and sustain all objections tending to prove anything of that sort. Col. Richardson : And your Honor declines to allow me to prove it, even as a matter of mitigation? The Court •¦ Yes, sir. Col. Richardson (to the witness) : Are you prejudiced against the defendant because of his religious views ? Mr. Cole : I can say this, that I do not favor his religious views. Here the court objected to any further questions on this point from the defense. TESTIMONY OF MR. DOBBINS. Col. Richardson : How long have you known Mr. King ? Mr. Dobbins : I have known Mr. King for seven, eight, nine, or ten years — somewhere along there. 342 AMERICAN STATE PAPERS. Mr. King's reputation. Spirit actu ating prose cutors of Sabbatarians. Col. Richardson : Do you know what his reputation and standing are in that community since you have known him ? How do the people regard him ? Mr. Dobbins : They regard him as a pretty clever sort of fellow. Col. Richardson : Stands well in the community there ? Mr. Dobbins : Yes, sir ; I think he did. Col. Richardson : You had him arrested ? Mr. Dobbins : I do not deny that. Col. Richardson : Where did you have him carried ? Mr. Dobbins : Before Squire Barker. Col. Richardson : I propose, if your Honor please, to ask him if he did not belong to an- association down there that had formed an agreement to prosecute all violations of the Sabbath. The Court : He may answer that. Mr. Dobbins : I signed an article of that kind, sir. Col. Richardson : Did you ever indict, or have arrested, or prose cute, any other man than this ? (Answer — Never. ) Attorney-General : I object to that. Col. Richardson : In order to show the spirit of this witness, I propose to ask him, if your Honor please, if he ever had any man arrested in accordance with their undertaking ; whether he ever had anybody arrested except some persons belonging to this denomination to which this defendant belongs. Attorney-General ; Hold on, Mr. Dobbins, I object to that. The Court :. I think the objection is well taken. Col. Richardson : I am not in the habit of having a controversy with the court. I always try to submit gracefully. But it strikes me like this, if your Honor please, that when I have shown that Mr. Cole, and Mr. Dobbins, and some others, though claiming to be law-abiding citizens, have formed a combination and entered into a solemn agree ment to prosecute all violators of the Sunday law, but have prosecuted only those of a certain class, they have in this arrogated to themselves the position of guardians par excellence, of these Christian people, and they intend to suppress them. Now, 'he is the prosecutor in this case. He has had this identical man arrested, and carried before a justice of the peace about this identical matter. Now, it does strike me that it is legitimate to show his feeling toward this man in this trial. And I in tend to show that other people have worked there — men of their relig ious views — in other pursuits, that they have worked there Sunday after Sunday, under his knowledge, and with the knowledge of this associa tion to which he belongs ; and that the men belonging to these Seventh- day Adventists are the only men that he has ever interrupted or called to account for violation of the Sabbath law. I think it is fair and legiti mate evidence to go to the jury to show the motives that have prompted this prosecution. I submit to your Honor that I have a right to show it. The Court : I do not think that what you propose to call out by the question put to the witness is competent matter. THE CELEBRATED KING CASE. 343 The cross-examination of the three following witnesses developed the Witnesses .....who worked fact that two of them were going to another part of the neighborhood Dn Sunday. after a cow, and the other was engaging harvest hands, when they saw Mr. King at work on Sunday. They seemed to think that it was per fectly legitimate for them to engage in secular work on Sunday, even in the most public manner, but if a Sabbatarian works quietly on his own premises, they are at once "shocked," as witness Wright stated he was. TESTIMONY OF MR. WRIGHT. Col. Richardson : How long have you known this defendant? Mr. Wright : I suppose I have known him, some twelve or fifteen years. Col. Richardson = Do you know his reputation and standing as a Mr. King's moral, upright, law-abiding citizen in that community before the finding repu of this indictment ? Mr. Wright : I have never heard anything great against Bob until this work. Col. Richardson : Was his reputation that of a peaceable, law- abiding, orderly man ? Mr. Wright : I believe it was, up to that time, sir ; so far as I know, it was. Col. Richardson : When did you see him working first ? Mr. Wright : Well, as to the exact time, if you call for it, I have it right here (striking his breast). Col. Richardson : You have it written down ? Mr. Wright : Yes, sir. Col. Richardson : Pull it out, and let me see it. Mr. Wright = I got it just there — got it May 12. Col. Richardson : When did you put that down there ? Mr. Wright : Something near the time of the occurrence. Col. Richardson : How came you to put it there ? Mr. Wright : Because I supposed they were going to stop their o[Pse°P^iyt!red working on Sunday. work. Col. Richardson : What made you suppose that ? Mr. Wright : Because the general community was tired uf the work. Col. Richardson : Who was tired of it ? Mr. Wright : The general people. Col. Richardson : How do you know ? Mr. Wright : I heard them say so. Col. Richardson : Who did you hear say so ? Mr. Wright : Various ones. Col. Richardson : Name them. Mr. Wright : Wright, Pardue — Col. Richardson : Which Wright ? Mr. Wright : Bill Wright. 344 AMERICAN STATE PAPERS. Relation to witness Wright. Intentions to prosecute. Col. Richardson : What relation is he to you ? Mr. Wright : We are cousins. Col. Richardson : When did he leave there? Mr. Wright : In January. Col. Richardson : He left in January, and was tired of plowing that was done in May ! Mr. Wright : He was tired of work, I suppose, that had been done before that time. Col. Richardson : How do you suppose that ? Mr. Wright : Well, I suppose he was. Col. Richardson : Why did you write that down in your book ? Mr. Wright : I will tell you why I did it. The people in the gen eral community were tired of the work that had been done before, and I was right there adjoining him, where I could see him, and I knew that I would be called to court, as I am, and I set it down. Col. Richardson : Now who was tired besides Mr. Wright ? Mr. Wright : I was, myself, and Mr. Cole, Dobbins, and Pardue. Col. Richardson : What did you say you saw him doing in May ? Mr. Wright : He was hoeing corn, I believe [reading from the book he had produced] — yes, he was hoeing corn. Col. Richardson : How long did you see him hoeing? Mr. Wright : Well, I was passing — Col. Richardson : Where were you going ? Mr. Wright : I was passing down the road, and then I passed back up the road. I went down to my field. Col. Richardson : What were you doing down to your field ? Mr. Wright : I went down to see if my corn was coming up. Col. Richardson : When was the next time you saw any work done? Mr. Wright : Nineteenth of May. Col. Richardson : About how long did you see him ? Mr. Wright : I do not know exactly ; about five minutes, may be. Col. Richardson : When was the next time ? Mr. Wright : June 2. Col. Richardson : When did you write that down ? Mr. Wright : At the time when it was done. Col. Richardson : Wrote those all down the time it was done ? keeping books ? Mr. Wright : Yes, sir ; keeping books for my own convenience. Col. Richardson : Who else saw that besides you ? Mr. Wright : A man by the name of Oaks saw it. Col. Richardson : Where were you when you saw it ? Mr. Wright : We were riding down the road. Col. Richardson : What for ? Mr. Wright ¦ I was going to my father-in-law's. Col. Richardson : What were you going there for ? Mr. Wright : I was going there to get a cow that belonged to me, sir. THE CELEBRATED KING CASE. 345 Col. Richardson : Drove the cow home that day ? Mr. Wright : I did, sir. Col. Richardson : Necessity, was it ? Mr. Wright : Yes, sir ; it was a case of necessity. Col. Richardson : What was Mr. Oaks doing ? Mr. Wright : Helping me drive the cow. Col. Richardson : That is what you went for ? Mr. Wright : Yes, sir. . Col. Richardson : How long did you see Mr. King harrowing ? Mr. Wright : No longer than I was just passing by. Col. Richardson : It did not take him as long as it took you to get the cow, did it ? Mr. Wright : I do not know whether it did or not. Col. Richardson : Well, that plowing and hoeing — that did not disturb you in any way, did not hurt you, damage you, or hinder you in any way, did it ? Mr. Wright : I did not consider that I was hurt by it. Col. Richardson : It did not incommode you in any way, did it ? Mr. Wright : Not further than this : I did not want to raise my children up there where this work was going on. Col. Richardson : How did this work disturb you ? Mr. Wright : It disturbed me in this way : it was something that I was not used to ; it sort of came up in this way, that it was so unex pected at the time, it shocked me. Col. Richardson : Shocked you ? Mr. Wright : Yes, sir. Col. Richardson : How long did the shock continue ? Mr. Wright : Not very long. Col. Richardson : Who else was shocked besides you ? Mr. Wright : I do not know of any one else. Col. Richardson : How many times did it shock you ? Mr. Wright : I acknowledge, sir, that it did not shock me but one time. Col. RICHARDSON : Create any disturbance at the time ? Mr. Wright : Not at the time, that I saw. Col. Richardson (to the court) : Well, I propose, if your Honor please, to ask this man, too, what he knows about their working, cutting wheat, etc., there in that country on Sunday. The Court : I will make the same ruling. Col. Richardson : So it will go on record if it becomes necessary? The Court : Yes, sir. TESTIMONY OF MR. OAKS. Col. Richardson • Who else saw Mr. King when you saw him ? Mr. Oaks : Alex. Wright saw him at the time he was harrowing. Col. Richardson : Where were you going that day, Mr. Oaks ? Mr. Oaks : I was going with Mr. Wright. Mr. Dob- bins's secular Sunday work. Witness not injured. Feelings shocked, how- No disturb ance created. 346 AMERICAN STATE PAPERS. Work of witnesses. Mr. King working quietly. Col. Richardson : What was he going for ? Mr. Oaks : He was going to look after a cow. Col. Richardson : Did you help drive the cow ? Mr. Oaks : Yes, sir. He turned her out, and we followed along behind her. Col. Richardson : Did that disturb anybody ? Mr. Oaks : It did not disturb me. Col. Richardson ; Did not disturb anybody else, did it ? Mr. Oaks : No, sir. Col. Richardson : How long was Mr. King engaged at work ? Mr. Oaks : I do not know. Col. Richardson : It was not calculated to disturb anybody, was it? Mr. Oaks : No, sir ; he was not making any noise about it at all. Col. Richardson : Did your ever see him at work, doing any kind of work, performing any secular labor on any of the public roads, or at any public places on Sunday ? Mr. Oaks : No, sir ; never did. Col. Richardson : Whatever you have seen him do was on his own private premises ? Mr. Oaks : Yes, sir. TESTIMONY OF MR. MARSHALL. Witness not disturbed. . Work not calculated to disturb any one. Work of witness. Col. Richardson : Did this work disturb you ? Mr. Marshall : No, sir ; it did not disturb me any. Col. Richardson : Did not annoy you in any way ? Mr. Marshall ; No, sir ; did not annoy me. Col. Richardson : Where were you going ? Mr. Marshall : I was going up to Sunday-school. Col. Richardson : Did you see him at work ten minutes ? Mr. Marshall ; No, sir ; I do not know that I did. Col. Richardson : Was he doing anything that was calculated to annoy, injure, vex, harass, or disturb anybody ? Mr. Marshall : Not as I know. Col. Richardson : Who was with you at the time he was harrowing ? Mr. Marshall: Mr. Johnson — Dick Johnson. Col. Richardson : It did not disturb Dick, did it ? Mr. Marshall . No, sir. Col. Richardson : Where were you going when you saw him har rowing ? Mr. Marshall ; To another town. Col. Richardson : That was on Sunday ? Mr. Marshall : Yes, sir. Col. Richardson : What were you going for ? Mr. Marshall ; To see about hiring some hands. Col. Richardson : Did these other witnesses here know it ? (An swer — Mr. Cole knew it.) THE CELEBRATED KING CASE. 347 Attorney-General : I object to that. The Court : I sustain the objection. Col. Richardson : Do you know what Mr. King's reputation was in the community down there as a peaceable, orderly, quiet, law-abiding citizen before the finding of this indictment ? Mr. Marshall ; Yes, sir. Col. Richardson : What was it, good or bad ? Mr. Marshall : It was good. Justice Barker was then put upon the stand for the defense, and testi fied that he had known Mr. King for about twenty-five years, and that his general reputation, with the exception of the Sabbath part of it, was as good as anybody's in the community. But the court refused to allow him to testify to the fact that on the affidavit of Mr. Dobbins he issued a warrant against Mr. King for working on Sunday, June 23 ; that Mr. King was arrested, brought before him, and fined for this ; that Mr. King issued a mittimus committing him to jail ; and that fine and costs were collected of him. This closed the testimony in the case. Objection made. Mr. King's reputation. Previous conviction of Mr. King for same offense. SUMMARY OF COLONEL RICHARDSON'S SPEECH. Colonel Richardson then made a plea before the jury, in which he claimed that this indictment was a stroke at the rights of man, and subversive of religious liberty. He held that it was in conflict with the Bill of Rights which the State had adopted as article one of its Consti tution, the third section of which says, "No human authority can, in any case whatever, control or interfere with the rights of conscience ; and that no preference shall ever be given by law to any religious es tablishment or mode of worship." From this he argued that to declare that certain acts are a nuisance because they are obnoxious to certain religious views, or a disturbance to certain religious sentiments, is noth ing less than the giving of preference denied by this section. He held that the Sunday law was in conflict with the Constitution of the State, and for that reason inoperative. He claimed that if an act is a nuisance because done on Sunday, then it is because it is obnoxious to some man's religious views ; and if obnoxious on this account, then it is religious legislation — legislation in favor of some sect, some mode of worship, which is in direct contravention of the Bill of Rights which are the declaration of the unalterable and inalienable rights of all men. He asked why it is not as shocking, as immoral, and as indecent for a man to work on Saturday in violation of the belief of the Sabbatarian, as it is for the Sabbatarian to work on Sunday. He also stated that so far as the act of the defendant considered apart from the day was concerned, no man could disapprove of it. It was the day, then, and not the act that was the question involved.1 Rights of man in fringed. Conviction unconstitutional. Religious preference shown. A difference of gigantic proportions ! Sunday sacredness the pivotal point. 1 This fact is admitted in some of the decisions on the unlawfulness of Sunday labor. Mr. Chief Justice Ruffin of the Supreme Court of North Carolina, in 4 Iredell, 403, said : 348 AMERICAN STATE PAPERS. Why are Advent ists alone arrested ? Mr. King's labor dis turbed no one. In answer to the claim that this was not persecution on account of religious faith, he asked why it was that only those of this particular faith had been singled out, while others who had violated the Sunday law as openly as they, had been allowed to go undisturbed. He called attention to the fact that the defendant's labor was performed in no public place, that it had disturbed no worshiping congregation, nor interfered with any man's business or rights ; and yet these men had hounded him like sleuth-hounds following a flying fugitive. In this indictment he said the jury were asked to declare as a crime an act on Sunday which on Monday would be commendable and worthy of all encouragement and approbation. "Woe the day," said he, "when the State or this government shall allow the church to put its hand upon the citizen, upon the conscience of the citizen, or upon the property of the citizen. Sunday laws were the beginning of the power of the Span ish Inquisition in that mighty machinery invented by Ignatius Loyola, • and the establishment of them here in this country would be but the be ginning and elevation of o. like religious body to political power and prominence in the United States. It is dangerous." SUMMARY OF ATTORNEY-GENERAL BOND'S SPEECH. Attorney- General'sappeal to prejudices of jury. His speech. Tirade against Sab batarians. The speech of the prosecuting attorney was a tirade against the re ligious sect of which the defendant was a member, and a reflection upon Northern men, although Mr. King is not a Northern man, all of which was well calculated to arouse the prejudices of the jury. It was so saturated with obscenity and blackguardism that it would not be in place to repeat it entire. The main effort of the speaker was to confound the defendant and those of his religious faith with the Mormons. The fol lowing is that part of the speech which is the least objectionable : Your Honor, and Gentlemen of the Jury : . . . There were a lot of fellows in the olden time — some Adventists, or Seventh-day Advents, or Mormons, or Mayflower fellows, I do not care which you call them — that believed in human sacrifices, carrying them to the altar, and burning them up as an incense. Col. Richardson : They were Sunday fellows. Attorney-General ; They were the Mormons or Adventists ; that is who they were, taking the children and burning them on the altar as an incense to God Almighty. If you want two women, or four women, Why Sun day work disturbs us. The all- important Basis of Sunday laws. "The truth is, that it offends us, not so much because it disturbs us in practising for ourselves the religious duties, or enjoying the salutary repose or recreation of that day, as that it is, in itself, a breach of God's law, and a violation of the party's own relig ious duty." Likewise, in Shover v. the State, a decision upholding Sunday laws, ante page 149, the court said : " It is not simply the act of keeping open a grocery, but the keeping of it open on Sunday, that forms the head and front of the offense ; and when it is alleged to have been done on that day, the description is perfect." All Sunday legislation and all the prosecutions for Sunday labor in the history of our nation, have resulted from religious regard for the Sunday as a day of rest. THE CELEBRATED KING CASE. 349 why, in the name of God, stay in Salt Lake City where you can have them. Suppose they should come from the same section of that coun try, Colonel Richardson would say, "You have no right to interfere with the rights of conscience of this people ; and you can't interfere with them, because the Bill of Rights says that every man in this coun try has a right to worship God according to the dictates of his con science." Burn children, sleep with a dozen women, hang fellows that had long hair, and everything else of that sort ! No, sir ; away with all such foolishness, and everything of that sort ! I do not care any thing about the Adventists, or Mormons, whether they are right or not. But when they come here, they must walk up to the rack, and eat the same fodder that our folks eat. Col. Richardson : If your Honor please, I do not think you al lowed me any such latitude as that. The Court : I do not understand that the Attorney-General is charging the defendant as being himself a Mormon, but as illustrating the position of the defense. Col. Richardson : But the Mormons were Sunday observers. Attorney-General : Colonel Richardson knows more about the Mormons than I do. Col. Richardson : I merely wish to take an exception to it. Attorney-General ; I do not know whether this short-hand fellow is a Mormon or an Adventist. Got a short-hand fellow to take down what I say. Not satisfied with worshiping God ! Oh, no ; but with your short-hand reporters, your Mormons, and your Adventists, you want to corrupt not only the whole morals of the country, but you want to control the courts of the country. ... I wish to God we had more Methodist churches, and more Baptist churches, and more Presby terian churches, and more Episcopal churches, and more Catholic churches, until every man was brought under the benign influences of these churches ; but in the name of God, I do not want any of these Advent churches, or Mormon churches. Guiteau, when he had a reve lation from God (and I expect he had a Seventh-day Adventist lawyer to defend him), took a pistol, and shot down the ruler of this nation, and they hung him ; and that is what they ought to do with all these fellows. I have no respect for men like that. These fellows never heard from God, and the probabilities are that they never will. Some thing is said in the Bible about somebody that came up and knocked at the gate. He said I never knew you, I never knew you at all. That is about the way with these fellows. Not satisfied with working on Sunday, and keeping half a dozen women, they come down here and want to save us, and have us keep half a dozen women. . . . The obscene and filthy utterances of the attorney, which have been omitted, evoked considerable merriment among the visitors in the court room, the jury, and especially among the leading witnesses for the pros ecution, who were devout church members. Tirade against Sab batarians. Language objected to. Objection overruled. Exception taken. Tirade continued. Attorney- Generalposing as St. Peter ! Merriment provoked. 350 AMERICAN STATE PAPERS. STATEMENT OF JUDGE SWIGGART. Fine imposed. Statement of court. Sabbatarians must observe Sunday. Case appealed. Character of trial. Evidence of intolerance. Persecution of the past. The jury was out only about half an hour, when they returned a verdict of guilty, and assessed the fine at seventy-five dollars. The counsel for the defendant took exception to the rulings of the court, and the charge given to the jury, and moved a new trial. In refusing to grant a. new trial, the Judge said : "The law is clear. I charged it properly. The fine is a reasonable one, and one well warranted. The laws are made to be obeyed ; and Mr. King and all other men should and must obey them, or leave the country. I make these remarks that they may know that I intend to have the laws strictly enforced in the future. Mr. King and his brethren have a right to keep another day if they choose, but as Christian men, it is their duty to obey the laws of the State, and they must do it." An appeal was taken to the Supreme Court of the State. The whole trial from beginning to end is a clear case of religious persecution, gendered wholly by denominational spite and sectarian ani mosity. While the prosecution claimed that it was not a question of religion, the vindictive speech of Attorney-General Bond, as well as the rulings of the court and the testimony of the witnesses, shows that it was incited by denominational prejudice throughout. In expressing a desire for more of certain churches and a dislike for certain others, the Attorney-General betrayed the fact that this was sim ply a religious question, — a question between the churches. In this, too, he seems to have forgotten how some of these very churches of which he desires more, were, in their early history, themselves looked down upon by the old established churches of those times ; how the pioneers of Methodism, the Wesleys, George Whitfield, Adam Clarke, and others, trod a rugged path because of this ; how the clergy of Eng land closed their church doors against them, denounced them, and stirred up the people against them ; how even mobs were raised to sup press their preaching, and their followers were arraigned before courts, called "courts of justice," but were such only in name ; for, like too many of to-day, justice had no place in them. PERSECUTION OF DR. ADAM CLARKE. Experience of Dr. Adam Clarke. Dr. Clarke, in his comments on Luke iv, 30, gives an account of an experience he had while preaching one evening at St. Aubin, in the island of Jersey, he being the missionary to which reference is made. It is the experience of almost every small and unpopular denomination. " A missionary who had been sent to a strange land to proclaim the gospel of the kingdom of God, and who had passed through many hard ships, and was often in danger of losing his life through the persecu tions excited against him, came to a place where he had often before, at no small risk, preached Christ crucified. About fifty people, who had received good impressions from the word of God, assembled. He THE CELEBRATED KING CASE. 351 began his discourse ; and after he had preached about thirty minutes, Attack an outrageous mob surrounded the house, armed with different instru- °f mob" ments of death, and breathing the most sanguinary purposes. Some that were within shut the door ; and the missionary and his flock betook themselves to prayer. The mob assailed the house, and began to hurl stones against the walls, windows, and roof ; and in a short time almost every tile was destroyed and the roof nearly uncovered, and before they quitted the premises, scarcely left one square inch of glass in the five windows by which the house was enlightened. While this was going forward, a person came with a pistol to the window opposite to the place where the preacher stood (who was then exhorting his flock to be steady, to resign themselves to God, and trust in him), presented it at him, and snapped it ; but it only flashed in the pan ! . . . They assembled with the full purpose to destroy the man who came to show them the way of salvation ; but he, passing through the midst of them, went his way. ' ' Dr. Clarke styles this sort of treatment persecution. What but per- What is secution can the very similar treatment of the Sabbatarians in Tennessee Persecutl0n • be called ? or is it an essential of persecution that it should always be in the past ? PERSECUTION OF THE BAPTISTS. It will do now to talk about desiring more Baptist churches, when that denomination, by indomitable courage and perserverance, has main tained its doctrines against the fiercest opposition, until it has come to be one of the largest in the United States. But the day was when Baptists were ridiculed, despised, and persecuted as bitterly as are the observers of the seventh day whom Attorney-General Bond so berates ; when they, with the Quakers, were hated and hunted like wolves. The Baptists have not forgotten when Roger Williams in 1636 was driven from home, wandered in the woods for weeks in the dead of winter, and was taken in by the Indians, and given the hospitalities denied him by his fellow white men ; — have not forgotten when Massachusetts in 1644 made a law to banish them from that colony. They have not forgotten all these cruelties which they suffered in an early day for conscience' sake. The "Christian Herald " of October 3, 1889, a Baptist paper, says : "See from the sufferings endured by our Baptist fathers, at what cost this liberty we now enjoy was obtained, and how joyfully those fathers paid the price in the dungeon and at the whipping-post. They counted life itself a thing of no value when called to abandon Baptist principles." Much the same might be related of the early history of other denom inations. About the year 1675 two Presbyterian ministers, Rev. Francis Makemie and Rev. John Hampton, were arrested and imprisoned for two months for preaching one sermon each in New York, and finally re leased after paying three hundred dollars for the expenses of the trial. Feeling toward Bap tists formerly. Persecution of Roger Williams. Suffering endured by Baptists. Similar treatmentof other de nominations. 352 AMERICAN STATE PAPERS. A lesson not yet learned. Mr. King's prosecution. Actual results of Sunday laws. Rights should be guaranteed. Freedom is right to differ. Mr. King's belief. " A poor rule that don' t work both ways." It is an old mistake to seek to crush out honest convictions by fire and sword, and one which it seems the world should have learned by this time. The great trouble is, many of our legislators, courts, and lawyers do not know the history of nations, not even the early history of our own country ; and consequently they are repeating old experi ments, that not only have failed ages ago, but have ended in the direst cruelties. It would be fortunate for this country if every citizen would look into the political history of the past few centuries and examine carefully the evolution of the American political system, and learn that it is not the business of courts or legislatures to interfere with things purely religious. The unjust results of this trial come from the existence of a rigid Sunday law on the statute books of Tennessee, which Mr. King's fellow- citizens, who are entitled to no more protection from the government or the State than himself, have seen fit to take advantage of on account of a difference of religious belief. This manifest injustice should cause not only those who have been the immediate promoters of the prosecution to blush for shame, but every one who is helping forward any movement to have laws enacted throughout the country by which such advantage can be taken. Those who favor the enactment of such laws may paint in fancy sketches the beneficient results which they claim will come from them ; but the above case presents solid facts which show the legitimate and actual results of such laws put into effect. No such laws should ever be enacted or allowed to remain upon our statute books. The only safety lies in keeping our statute books free from such laws, and let re ligious questions be fought out solely upon religious grounds. It must be apparent to every intelligent and candid person that a man has the right and should have the privilege of using his time upon his own premises as he sees fit, and not be compelled to conform to the religious opinions and customs of the majority around him. Otherwise, religious freedom is simply freedom to believe and act as do the major ity, which is no freedom. The historian Ridpath says, "Essential freedom is the right to differ, and that right must be sacredly respected." Mr. King's difference of practice in the keeping of a day is due to con scientious belief. He observes the seventh day because he believes that is the day enjoined by the Sabbath commandment. He believes that this was the day set apart at creation, observed by the chosen people of God, kept by Christ and the apostles, and never divinely changed. He cer tainly has a right to believe this, the same as others have to believe otherwise. His belief and practice in this matter should be no more occasion of disturbance to those who believe otherwise than are their be lief and practice to him. But if he has rights of conscience which can not be secured under this government, then religious freedom here is at an end. It remains to be seen whether religious liberty in this country is a reality, or only an empty boast. THE CELEBRATED KING CASE. 353 SUPREME COURT OF TENNESSEE. The Brief Submitted by Colonel T. E. Richardson in the Case of King v. the State. Can there be any doubt that the act of 1741 1 was passed to favor and promote Christianity, and also the interests of the Church of England, then the religion and church of the state ? Is it not equally plain that the act of 1803 was passed to promote and give preference to the Christian religion ? that it was passed to prevent the profanation of a day sacred to certain persons claiming to be members of the Christian church, or of certain sects of Christians ? This court knows historically, if not judicially, of the wonderful revivals and wide-spread religious ex citement in the year 1800. They created a deep and lasting impression upon the people. They prevailed most extensively throughout the States of Kentucky and Tennessee. They were conducted principally by the Presbyterians and Methodists, and the power and influence then obtained by the latter, are felt and seen to the present time. That the act of 1803 was the result of those revivals, and passed in obedience to the behests of those churches and to conform to their re ligious views, no one can doubt.2 That the law was enacted to compel the observance of Sunday in conformity with their tenets, and to coerce the conscience of all persons who might differ with those sects, can be denied by no candid mind. By those acts exclusive jurisdiction was given to justices of the peace, to try, and punish, those who violated their provisions. For nearly a century no member of the bench or bar ever dreamed or held that the circuit courts of the State had jurisdic tion over the offense, as created by those acts. For a half century or more after the passage of the act of 1 803, it was regarded as the ex pression of earnest but fanatical zeal, and was allowed to fall into "innocuous desuetude." It is the fit instrument of petty persecution, and has been seldom used, even by the most earnest of zealots. To the credit of the Christian people of the State, it can be truly said, they have generally scorned to use such means of persecution or coercion. . Objea of Sunday laws. Revivals of 1800. Act of 1803 a religious law. Sunday law a dead letter. 1 An act. passed under Governor Gabriel Johnson, Esq., by and with the consent of King George IPs council, and the General Assembly of the province of North Carolina, when the church was a part of the state. It required that "all and every person or per sons whatsoever shall on the Lord's day, commonly called Sunday, carefully apply themselves to the duties of religion and piety." The fine for each offense was one dol lar and twenty-five cents. "This is admitted by Rev. W. F. Crafts, one of the leading advocates of Sunday laws in this country. In the "Christian Statesman" of July 3, 1890, he said : "Dur ing nearly all our American history, the churches have influenced the States to make and improve Sabbath laws." 354 AMERICAN STATE PAPERS. Jealous defenders of liberty. Judicial legislation. Why is Sunday work a nuisance ? Sunday law uncon stitutional. Our political system not founded on Christianity. Equality of all religions. An incon sistent as sumption. Praise worthy labor. A perver sion of law. Sunday labor not a nuisance. The framers of the Constitution have ever been jealous of any attempt to interfere with the rights of conscience, or the domination of any church or religious sect. In recent years, efforts have been made to revive and enforce the law of 1803, and by judicial legislation, the offense enacted by that act has been declared a nuisance at common law. . . . Why is the act complained of declared to be immoral and unlawful ? Why are a succession of such acts declared to be a nuisance and indict able ? Because they have been done on Sunday ? Then it must be be cause it is repugnant to the religious views of the community. If it is a nuisance, why is it not such on Monday or Saturday, as well as on Sun day ? The answer is, Because the work is done on Sunday. If it is an offense because done on Sunday, then the law declaring such acts to be illegal and immoral is a religious law, enacted for the purpose of favor ing some religion. If that be so, then the law is in violation of the Constitution. The government, State or federal, can in no sense be said to be founded or based upon Christianity.1 No preference can be given to any religion. All religions are alike protected. The followers of Mahomet, the disciples of Confucius, the believers in Buddha, as well as the wor shipers of the true and living God, are entitled to like protection, and are secured in the enjoyment of the same rights. In this State, in this nation, there is no such thing as " religious toleration." 2 Everyman enjoys the same right of conscience, and is responsible to no earthly tribunal for his religious faith and worship. The assumption, therefore, that Christianity is a part of the law of the land, is inconsistent with the spirit of our institutions, as well as in violation of the reserved, accepted, and inalienable rights of the people. It goes without saying that plowing, the occupation of the farmer, is necessary for the comfort, and even the existence, of the citizens. Can it be said with propriety or reason, that this act so essential for the wel fare of society, so commendable when done on Monday, when done on Sunday becomes offensive, immoral, and a common nuisance ? Is it not true that to hold that it becomes a nuisance when carried on on Sunday, is a perversion of the term " nuisance " ? s JFor a discussion of this question, see Hon. Allan G. Thurman's decision, ante page 154 ; opinion of the Supreme Court of Ohio, ante page 192 ; Jefferson's Essay on "Christianity and the Common Law," ante page 127 ; Tripolitan treaty, ante page 54. 2 See Report of the United States Senate, ante page 98, and note. 8 On this point, Colonel Richardson, on pages 2 and 3 of his brief, said : "The acts complained of and proven, do not constitute a nuisance, as defined by this court in State v. Lorry, 7 Baxter, 95. A nuisance is something that injuriously af fects the comfort, or welfare, or enjoyment of human existence, and must affedl all alike who come within its influence. It must be something more than a mere spiritual discomfort. . . In determining as to a nuisance, the true rule seems to be that the aft or thing complained of affects all alike who come within its influence. It is not a nuisance to one of peculiar sentiments, feelings, or tastes, if it would not affect others or all tastes; not to a sectarian, if it would not be so to one belonging to no church. It must be something about the effects of which all agree. See Sparhawk v- Union Pass Railroad Co., Pennsylvania State, 51, P. F. Smith, volume 4, page 427. THE CELEBRATED KING CASE. 355 The establishment of Sunday as a day of rest and worship, grew out of the union of church and state, was commanded by ecclesiastical law, and the enforcement of its observance is contrary to the spirit and pur pose of our form of government. It was the spirit of the Sunday laws that banished Baptists, whipped the Quakers, and hung and burned women as witches, in the pious New England States.1 Such laws have found favor and a congenial home only when there has been a union of church and state. On such legislation is based the statements and utterances of Mr. Blackstone,2 in his commentaries re ferred to, and relied on as authority by this court, in the cases herein cited. They are contrary to the letter and spirit of our Constitution and of free government. No human law has a right to interfere with a man's religious belief, his freedom of conscience, his right to worship his Creator when and how he will, so long as he does not trespass on the rights of others. . . . Our written Constitutions and our laws were made and intended for the protection of minorities — for the protection of the weak against the strong. Majorities and the powerful can protect themselves. But it is insisted that the act of 1803 and the opinions in Gunter v. the State and Parker v. the State, do not require that he shall work on Saturday, the Sabbath. Admitted. But they do coerce his conscience. They do require him to keep and observe a day he does not believe to be holy or sacred — a day he knows his Creator does not require him to keep. They do compel him to a religious observance repulsive to his conscience. They do give preference to a mode of worship which is contrary to his faith. It is conceded that in following his usual avoca- Sunday laws grew out of church and state. Contrary to our Con stitution. Constitutor for protection of minorities. Compulsion in Sunday laws. The proof shows that the work charged in the indictment was done by King in his own private field, in the country, remote from any town; that it was not in a public place ; that no crowd or assemblage was there ; that the people had no right or occasion to meet or assemble there ; and that the persons who claimed to be disturbed were dis turbed or excited only because of their religious views.1' See the testimony in the case, ante page 338, especially that of witnesses Oaks and Marshall, pages 345, 346. IThe so-called witches were not the only persons who were hanged. Quakers were also thus disposed of. Brooks Adams gives a chronological summary of these hangings in his recent work, " The Emancipation of Massachusetts," and on page 139 says : "A last effort was made to rekindle the dying flame in 1675, by fining constables who failed in their duty to break up Quaker meetings, and offering one third of the penalty to the informer. Marmaduke Stevenson, William Robinson, Mary Dyer, and William Leddra were hanged, several were mutilated or branded, two at least are known to have died from starvation and whipping, and it is probable that others were killed whose fate cannot be traced. The number tortured under the Vagabond Act is unknown, nor can any estimate be made of the misery inflicted upon children by the ruin and exile of parents." Speaking of the spirit which has always characterized prosecutions of offenders against the cherished institutions or beliefs of the dominant sect, Mr. Adams says : "Howsoever bitterly Catholic and Protestant divines have hated and persecuted each other, they have united like true brethren in their hatred and their persecution of heretics ; for such was their inexorable destiny." aSee ante pages 137 et seq. Nature of Mr. King's work. Hanging of Quakers. Spirit which characterizes religious pros ecutions. 356 AMERICAN STATE PAPERS. Limitation of rights. "A poor rule that don't work both ways." Showing religious preference. A perversion of the term " nuisance." Amount it costs to violate the teachings of the dominant cult. tions, he has no right to incommode or interfere with or disturb the re ligious worship of others. It is insisted that this law is in conformity with the religious faith of the majority of the Christian people, and that working upon Sunday is repulsive to them, and repugnant to their ideas of propriety and moral ity. Granted. That is a matter between them and their God. Is it not equally as offensive and repulsive to the plaintiff in error, to see the constant, open, and habitual violation and desecration of a day he holds to be holy and sacred ? Is he not entitled to the "same consideration and protection as the majority, or those who keep and observe Sunday ? are you not giving preference to a " mode of worship " when you hold that he shall rest and observe Sunday because it is the holy day of the majority, and that the day he holds in reverence can be violated with impunity ? What is this but giving a preference to a religious establish ment and mode of worship, and a denial of the natural and indefeasible right to worship Almighty God according to the dictates of conscience, whether it is done by legislative enactment or judicial construction ? Well was it said by the able and distinguished late chief justice of this court, that il to hold that barbering on Sunday was a nuisance, is a perversion of the term ' nuisance.' " A fortiori can his ruling be ap plied to plowing on Sunday, by a quiet, orderly citizen, in his own field, in a secluded part of the country, and in the discharge of what he con scientiously believes to be his duty to his God and his family. . . A fine of seventy-five dollars is imposed, to appease the demands for vengeance. Seventy-five dollars and costs are demanded of Mr. King, as due punishment for an act of which the law of the State for nearly one hundred years had declared the penalty to be ample when fixed at three dollars ! 1 Hardship caused by Sunday laws. Opposed by laboring men. Resolution of a labor union. lAs severe as these Sunday laws are found to operate on the laboring man, many of the petitions and arguments for Sunday legislation present the plea that the " poor, overworked laboring man " suffers where we do not have the Sunday law to protect his interests. But the absurdity of such pleas are manifest ; for laboring men are the very men who are made to suffer by these Sunday laws, Messrs. King and Parker of Ten nessee, and their brethren, for example. Sunday laws are intended to enforce regard for the day the majority consider as sacred, — not to protect the laboring man. "The ' American ' Sabbath must be protected ! " is their watchword ; and they are resolved to' protect Sunday— by law, too — whether the laboring man, or any other man, is bene fited or oppressed. The laboring classes do not want all means of enjoyment and recreation prohibited on Sunday ; they do not want libraries, museums, and art gal leries closed, nor excursion trains, picnics, and driving stopped. Far from it. They want and need the benefits to be derived from these various means of physical rest and mental culture which they can obtain only on the first day of the week. They even raise their voices against these oppressive ecclesiastical laws. This fact is reluctantly admitted by Rev. W. F. Crafts in his book appealing for Sunday laws. He says : "Blind to these great facts [the blessings of strict Sunday observance], a shoe- lasters* union in Brooklyn, at the publication of the new Penal Code of New York in 1882, adopted a paper which thus describes the Sabbath laws: 'We learn with regret that the churches are joining hands with tyranny and capital for the purpose of sup pressing liberty and oppressing the laborer' — sentiments representative of many labor organizations, which show that holiday Sundays prevent those who follow them from THE CELEBRATED KING CASE. The verdict and judgment are a travesty on justice ; the fine imposed is altogether disproportioned to the act ; the verdict shows that it is the result of prejudice, of intolerance, of fanatical zeal ; it shows the begin ning of a revival of religious persecution, that has so often cursed hu manity. It is another exhibition of "man's inhumanity to man." It merits, and I doubt not will meet, the reprobation of this high tribunal, — the last refuge and asylum of the oppressed and persecuted citizen! The dangers and evils that must result from the making and enforcement of Sunday laws, are fully illustrated in this case ; this verdict shows the necessity of returning to constitutional methods, the protection of inal ienable rights, the danger of judicial and religious legislation, the abso lute necessity of keeping forever separate the powers and functions of church and state.1 Christianity needs no legislation or judicial aid, beyond the protec tion of its adherents in their right to worship according to the dictates learning the a-b-c of political science, and keep them in such ignorance of the true meaning of liberty that they mistake its champions for oppressors." " The Sabbath for Man," page 226. Mr. Crafts also inadvertently admits that the laboring man will not suffer, but rather be the gainer, by a strict observance of Sunday, even where Sunday is not regarded. On pages 428, 429 of the same work, he says : "Among other printed questions to which I have collected numerous answers, was this one : ' Do you know of any instance where a Christian's refusal to do Sunday work or Sunday trading has resulted in his financial ruin?' Of the two hundred answers from persons representing all trades and professions, not one is affirmative. A West ern editor thinks that a Christian whose refusal to do Sunday work had resulted in his financial ruin would be as great a curiosity as ' the missing link.' There are instances in which men have lost places by refusing to do Sunday work, but they have usually found other places as good or better. With some there has been 'temporary self- sacrifice, but ultimate betterment.' . . Even in India, where most of the business community is heathen, missionaries testify that loyalty to the Sabbath in the end brings no worldly loss. On the other nand, incidents have come to me by the score, of those who have gained, even in their worldly prosperity, by daring to do right in the matter of Sunday work." ljohn Fiske, in speaking of the first decennium of our nation, in "The Critical Period of American History, 1783-1789," pages 76, 77, writes the following in reference to Sunday prosecutions a century ago : " By the revolutionary legislation of the States some progress was also effected in the direction of a more complete religious freedom. . . The tithing-man still arrested Sabbath-breakers, and shut them up in the town-cage in the market-place ; he stopped all unnecessary riding or driving on Sunday, and haled people off to the meet ing-house whether they would or not. Such restraints upon liberty were still endured by people who had dared and suffered so much for liberty's sake. The men of Boston strove hard to secure the repeal of these barbarous laws, and the disestablishment of the Congregational Church ; but they were outvoted by the delegates from the rural towns." The following extract from the diary of John Adams, himself from Massachusetts, also shows how tenaciously the New-Englanders clung to their religious laws : "I knew they [those endeavoring to unite the colonies] might as well turn the heavenly bodies out of their annual and diurnal courses, as the people of Massachusetts at the present day [1774J from their meeting-house and Sunday laws." It is these "barbarous laws" from which our early statesmen strove so earnestly to free themselves, that religio-political " reformers " are again endeavoring to fasten upon the American people. 357 A travesty on justice. "Man's inhumanityto- man." Necessity of forever separating church and state. Christianity needs no state aid. No need of Sunday laws. Sunday laws a century ago. Attempts to repeal them. Tenacity of Sunday-law advocates. 358 AMERICAN STATE PAPERS. Christ wants no state aid. Nature of work. Privacy of work. of their own consciences. " My kingdom is not of this world," said the Saviour, and no human laws are required to secure the triumph of the Christian faith. The arm of secular government is not needed to en force the commands of the world's Redeemer.1 . What is there in the acts proven tending to the corruption of the public morals, that was a disturbance of the community, that was offen sive to the moral sense of the public, or a common nuisance ? Only three men can be found who say there was anything offensive, and they only show that their sense of propriety was shocked. The other two witnesses for the State say they were not disturbed or annoyed, and saw nothing that was offensive. The work was done on King's own premises, where he had a right to be. It was not done in a public place ; it was not done where the A much- neededreform. Absurd legislation. Erratic notions. Descent of theocratic ideas. Conserva tism of govern ments. Present ideas. 1 Treating of the absurdity of government dealing with questions entirely foreign to its sphere, Mr. Minot J. Savage, in "The Forum" of September, 1890, truly says: "One of the most needed, as it is one of the most difficult, of all reforms is that which aims at having the state mind its own business. This includes two things — letting alone what is not its business, and really minding what is. In the light of legal history, one of the most curious things is the still-surviving popular faith in mere laws as means for preventing evil and accomplishing good. The statute books of even our young country are chiefly old lumber rooms. But, beyond this and more mischievous still, is the fact that the state is continually legislating concerning things that are beyond the limits not only of its rightful, but even of its possible, jurisdiction. Many of its attempts are as impracticable as would be a legal interference with the force of gravity. Should Congress ena<5l laws concerning things in India, all the world would smile. But not our country only, nearly all countries, are still passing laws that imply a claim of jurisdiction over other worlds and other states of existence. They are passing laws that attempt to deal with inner conditions of consciousness — with metaphysical subtleties, over which philosophers and ecclesiastics are still wrangling. People want laws passed not only for the protection of life and property and for securing good con- duel here and now, but they want laws the causes of which are supposed to come from other worlds, and for ends which issue only in other worlds. In brief, they are contin ually confounding the functions of the priest, the preacher, the philosopher, or the metaphysician with those of the legislator. "Unreasonable as this may seem to be, the causes of it are easily traced. Origin ally, all governments were theocracies. The gods were but supernatural chiefs, clothed by superstitious imaginations with unknown and therefore awful powers. Whether their representative were priest or king, their supposed will superceded all other con siderations. Even now, it is only here and there, and very slowly, that any of the nations are beginning to put considerations of human well-being in place of barbaric traditions of assumed authorities. Perhaps the larger part of all the government of the past has been dictated by considerations supposed to emanate from other worlds and issue in them. And precisely this part of all government has always been the most cruel and the most unjust. "We are slowly reaching a point at last where the most civilized peoples are begin ning to see, with at least partial clearness, that the functions of the state should be limited to the practical matters of conduct in this life, and to their bearing on the liberties and rights of men as citizens. The philosophers may reason of ethical origins and principles, and of supersensual sanctions. The metaphysicians may speculate as to transcendental causes and results. Theologians may theorize as to what was in ' the mind of God,' of which actual facts are only a partial expression. For my present pur pose, I question neither the right nor the wisdom of these things. But the point I wish to make is this, that, whether true or false, these things do not concern the state as such." THE CELEBRATED KING CASE. 359 public had a right to be ! There was no crowd, or assemblage of people, when the work was done. The people had no right to assemble there. The work was not done in a place or in a manner calculated to disturb or offend the public, because the public had no right or occasion to as semble there. It is a new assumption and assertion to say that the work done by Mr. King, as described by the witnesses, was immoral, or prejudicial to public morals, or a common nuisance. The morals that were or could be prejudiced or corrupted by what the witnesses saw and have detailed, must be weak indeed. Such morals are scarce worth the protection of the courts, and will not do to come in contact with the world. It is worse than a " perversion " of the word " nuisance," to de nounce and hold that the working of Mr. King was a common nuisance. To affirm the judgment can but result in evil, and only evil ; it will be to rekindle and cause to burn afresh, the fires of religious persecution ; for behind and pressing the prosecution, is the spirit of bigotry, intoler ance, and religious persecution. It is religious persecution. It is the very spirit of the Inquisition. It is the spirit of religious persecution, in every land, in every age, wherever found. It is the spirit that insti gated the " Massacre of St. Bartholomew." It is the spirit that inspired the "Sicilian Vespers." It is the spirit that revoked the Edict of Nantes, and lighted the fires of Smithfield. It is the spirit that moves and governs those who demand and clamor for the passage by Congress of the Blair Sunday-rest bill,1 and the District of Columbia Sunday bill. . . Un reference 10 the re-introduction of the Blair Sunday bill, the "Independent" of Litchfield, Minnesota, makes the following truthful observations : " Since the present session of Congress opened, Senator Blair has re-introduced his famous Sunday-rest bill. He has changed the title and made other modifications in the bill to disarm opposition. One of the most important is a sop thrown to the Sev enth-day Adventists in a proviso exempting them from the operations of the bill. Nut- withstanding these disguises and concessions, the spirit of the bill remains the same. The principle is wholly, radically, and fundamentally wrong, and it matters little how the act is doctored and tinkered to satisfy this or that element of opposition. We hope Congress will sit squarely down on it. It matters not what pleas are urged in favor of the bill — that it is in the ' interest of the laboring man to secure him a day of rest,' etc. There may be some truth in this, but the fact remains that the real object of the bill ,s coercion of those who differ from the prevailing religious observance of this nation." Quoted in the "Christian Statesman," Philadelphia, May S, 1890. The Blair educational amendment, providing that the "unsectarian principles of Christianity" shall be taught in the public schools, is equally subvers.ve of Amencan principles. On the question of religious instruction in the public schools. Dr. Tiffany, a Methodist pastor of Minneapolis. Minnesota, in an address at a high school commence ment, stated the following sound principles: ... " Church and state must not be united. As Americans, we deny the right of any religious or other combination to have authority in civil matters. We recogmze rehgion as a necessity, and the church as a form of it; but we look with suspicion upon any interference it may attempt in government. . Home shall teach youth obed.ence the churches religion, but the schools shall give knowledge. The state must not teach religion, for that would give it authority to decide what religion to teach. The state It could not be a nuisance. Religious persecution. Spirit permeating Sunday laws. Blair Sunday bill. Blair educational amendment. American principles. must educate the children to make them intelligent, not saints. Minnesota, July 13, 1S90. 'Post," Rochester, 360 AMERICAN STATE PAPERS. Sunday laws a step ping-stone to further religiouslegislation. Effect of adhering to an unjust precedent. Plea for Sabbatarians. Importance of the case. The enforcement of Sunday laws is the initial step by which they [religio-political organizations] hope to reach their ends, and crush out all freedom of thought and individual opinion. These organizations or societies, not content with thrusting themselves upon legislative bodies and seeking to gain political power, are attempting to invade the very Temple of Justice. They hang as a portentous cloud upon the political horizon, ominous of evil. By their acts they say that the " saints shall inherit the earth, and we are the saints ! " If the ruling in Parker v. the State 1 shall be adhered to, personal government, paternalism, will be the established law, while spiteful persecution and petty prosecutions will fill the courts to overflowing. Every man will be forced to adjust his conscience and his faith to fit and fill the bedstead of some religious Procrustes ; this boasted " land of the free " will be such no longer. For protection from persecution and threatened danger, the plaintiff in error invokes the aid and interposition of this court ; he craves the boon of living and worshiping as his conscience dictates. In their pres ent condition, well may he and his brethren exclaim in the words of St. Paul, "We are troubled on every side, yet not distressed ; we are per plexed, but not in despair ; persecuted, but not forsaken ; cast down, but not destroyed." The determination of the case is important, not only to the appellant, but to the people of the whole State. With confidence, with perfect trust, the cause of my client, carrying with it the cause of religious lib erty and of personal freedom, is submitted to the calm and impartial judgment of this court of last resort. Other Sabbatarians prosecuted. Evil con sequences. 1 Parker v. the State is another case of prosecution of Sabbatarians which occurred in 1886. Mr. W. H. Parker lives at Springville, Tennessee. About a score of prosecu tions of this kind have occurred among the members of the Seventh-day Adventist church at this place alone. His case was taken to the Supreme Court of the State, and notwithstanding the fact that the statute against Sunday labor in Tennessee does not make such labor an indictable offense, but subjects the offender to a fine of only three dollars, recoverable before the justice of the peace, it was there decided that "a succession of such acts becomes a nuisance, and is indictable." The decision of the lower court was confirmed, and his fine and costs, amounting to sixty-nine dollars and eighty-one cents, imposed. These he refused to pay, believing that to do so would be a compromise of his principles by acknowledging the justice of the law and of his conviction under it. Consequently he was sentenced to serve out the amount in jail, which would require a period of two hundred eighty days. Taken from his wife, who at the time was in a delicate condition, and from a child who was under the doc tor's care, he, with two other men, Mr. James Stem and Mr. William Dortch, was committed to jail, where he and Mr. Stem contracted malarial fever. On account of his sickness he was released after being in jail fifty-nine days, upon giving bonds to return when he got well. In two months he returned, and worked out the balance of his sentence, serving in all an imprisonment of seventy-four days. From the effects of the malaria he never fully recovered, and has since lost his health entirely, being unable longer to support his family, in consequence of which they have been brought into destitute circumstances. INDEX INDEX. References in this index are to pages, the superior figures being used when notes are referred t The superior cipher is used to designate that part of a note running over from the preceding page. Adams, Brooks, quoted, 3551. Adams, John, letter to Jefferson on civil laws against blasphemy, 80, 81, 255* ; Massachusetts Sunday laws, 3571. Adventists, Seventh-day, 312, 211, 325, 330-333, 337. 348, 349- 3591- 36oL Aid of government not necessary to religion, 331 57- 76> 77- 79- I591- I93-I9S. 201, 357, 358. Alabama, constitutional provisions concerning re ligion, 237, 238 ; Sunday law, 272, 273. Alarm, the least step towards religious legislation should cause, 30, 92, 95, 105, 109, 172, 173. Alfred's laws, their falsification, 134-138. ' Allen, Justice, upholds Sunday laws, 1461. Amendments to Federal Constitution, 50-53. quoted, 510, 741, 105, 214, 220. "American Archives," quoted, 17. American history, importance, 39O. American institutions, 5, 6, 9, io°, 54, 56, 73, 75, 93, "32» 3091- American political system, establishes absolute equality, 73, 74, 79 ; recognizes in Sabbatarians the same rights that exist in Sunday- keepers, 741 ; deviations from, 56, 57, 75-77, 95, 98, 354 ; lessons it is teaching to the world, 77, 352 ; see Jew, Mahometan, Infidel, Hindoo, etc. "American Sabbath Union," 84O, 880, 102l, 222, 223. "American State Papers," quoted, 54, 55, 59-67, 89-126. Anglican liberty, 9. " Annals of Congress," quoted, 58, 59, 67, 68. "Arguments on the Breckinridge Sunday Bill," quoted, 320. Arizona, has no Sunday law, 273. Arkansas Bar Association, report on Sunday laws, 33o. Arkansas, constitutional provisions concerning religion, 238 ; Sunday law, 273-275 ; Supreme Court upholds Sunday laws, 146-150. Army of the Tennessee, address of General Grant to, 202-204 ' quoted, 771, 921. Arrogant pretension, that rulers are competent to prescribe religion, 32. Atheist, has equal rights with the Christian, 9 : see Infidel. Authority of precedents, 131, 132, 170. "Autobiography," of Thomas Jefferson, quoted, 241. 4i°. 55°. Backus, Rev. Dr. Isaac, 45 ; an earnest advocate of religious liberty, 460. Baldwin, Justice, quoted, 191. Baptists, 840, 1261, 326-329, 351 ; Seventh-day, 312, 156, 211. Bancroft, George, quoted, 7I, no1, 1241, 262I. Barker, Justice, 336, 347. "Beginnings of New England," quoted, 931, 951, 1170, 122I, 123V Best, Chief Justice, quoted, 1531. Bible, cannot be constitutionally read in our pub lic schools, 420, 192-201, 226-234; prohibited in the public schools of Cincinnati, 1921 ; a secta rian book, 226-234 : quoted, 88°, 196, 284s, 337I, 358 ; cited, 349, 350. Billings v. Hall, 177. Bishop, on "Marriage and Divorce," quoted, 240". Blackstone, asserted equality of mankind, 181 ; on common law, 1321 ; states that human laws are void when contrary to natural law, 602 ; eu logized by Herbert Spencer, 6g2 ; states the English doctrine of Christianity being a part of the common law, 131, i371-i420, 1530. Blaine, Hon. James G., amendment proposed to national Constitution, 49s, 9a1, 2050. Blair, Senator H. W., presenting petitions for Sunday law, 84° ; Sunday bili, 880, 9si, 359I ; constitutional amendment, 88°, 981, 2050, 2531, 3591 ; letter to New York "Mail and Express," 206, 207. Blasphemy, 7s, 80, 81. Bloom v. Richards, 151-156 ; cited, 42O, 1551, 200. Board of Education of the City of Cincinnati v. Minor, 192-201, 410, 420. Bond, Attorney-General, 338, 339, 341, 342, 347, 450 ; summary of speech, 348, 349. Bower's "History of the Popes," quoted, 94O. Boyle, Chief Justice, 240O. Bracton, cited, 133. Brief of Attorney Mc Kee on Sunday legislation, 214-225. 362 AMERICAN STATE PAPERS. Brief of Colonel Richardson on the Tennessee Sunday law, 353-360. Bronson v. Kenzie, quoted, 190. Brown, Rev. Obadiah B., 1241. Bryan v. Berry, quoted, 170. Burke, Edmund, on American liberty, 92. Burnett, Justice, quoted, 179-191, 162I, 1650, 177. Caldwell, Justice, dissent, 144, 145 ; cited, 1551. California, constitutional provisions concerning religion, 239 ; has no Sunday law, 275 ; Supreme Court declared Sunday laws unconstitutional, 166-191 ; quoted, 162I, 165°, 177. Callicott, prosecution of, for violating the Tennes see Sunday law, 336, 337. Capital punishment, 121I ; for violating Sunday laws, 1230, 2811. Catholics, have equal rights with the Protestants, 9, 681 ; should assert their rights, 76 ; intoler ance toward, by "reform" agitators, 206, 207, Catlin, Mrs., 32. "Century Dictionary," quoted, 1512. Chamberlain of London v. Evans, 131, 1530. Chambers, 83, 87. Chandler, 83. Chaplains in Congress, 75, 251I. Charles II, Sunday law, 270, 271. Chitty's Blackstone, cited 69. "Christian Herald," quoted, 351. Christianity, see Christian religion. "Christian Nation," quoted, 94O. Christian religion, our government not, in any sense, founded on, 8, 54, 354 ; efforts to favor, said by Madison to be dishonorable and danger ous, 27s, 280 ; bill establishing a provision for teachers of the, condemned by Madison, 27-38 ; needs no state aid, 33, 76, 77 ; cannot be consti tutionally taught in our public schools, 42O ; such teaching unchristian, 196 ; not a part of our law, 42°, 501, 54, 127-141O, 151-156, 354; a part of the English common law, as given by Blackstone, 137I-142O. "Christian Statesman," quoted, 87I, 94O, 233O, 35^2. Church and state, separation of, 6», io°, 56s, 761 78, 234, 278I; position of national government on, 8 ; prejudice in its favor, 76; conspiracy be tween, 127I, 153°. Cincinnati Board of Education v. Minor, the Bible in the public schools, 192-201 ; quoted, 41O. * City of Canton v. Nist, 1560. Civil Sabbath theory, 611, 871, 1021, 173-176. Clarke, Adam, persecution of, 350, 351. Clarke, Thomas, quoted, 113I. Clergy, 46, 46°, 1021 ; in Virginia, 272, 280 ; in New England, 56s Coke, quoted, 1531. Colcord, W. A., summary of the King case, 334- 352- Cole, Robert, testimony, 338-341. Colorado, constitutional provision concerning re ligion, 241 ; Sunday law, 276. Common law, 151, 1511. Compact with the United States, of New Mexico, 266 ; of North Dakota, 257 ; of Washington, 264. Compulsory power illegitimate, 184. Congress, deviated from American principles in appointing chaplains, 75 ; votes to present a sword to Colonel Johnson, 8g2 ; cannot legislate on the Sunday question, 214-225 ; its sphere, 104, 105 ; has never legislated upon the question of Sunday mails, 96 ; passage of a Sunday law by, would be a religious decision, 106, 117 ; peti tion to, against Sunday legislation, 127, 128. "Congressional Record," quoted, 840, 85". Connecticut, constitutional provisions concerning religion, 241, 242 ; Sunday law, 277, 278. Constantine, 46, 112I, 267-270 ; Sunday law, 269. Constitution of the United States, 43 ; comments on, 44-46 ; liberty intended for Jews and pagans, 45; proposed amendments, 47-49 ; amendments, 5°~53 I quoted, 51°, 541, 74I, 105, 214, 220 ; pro hibits religious proclamations, 56, 57, 75 ; should be strictly adhered to, 56, 57, 75-77, 93-95, 98, 100 ; makes provision against Sunday legisla tion, 214 ; Sunday transportation of mail coeval with, 65. Contract, social, see Social compact. Contracts, Sunday, see Sunday contracts. Cook, Joseph, quoted, 102*. Cooley, Judge Thomas M., cited, y2; quoted, 990, 1621. Cotton, John, 123I. Crafts, Rev. W. F., letter from Cardinal Gibbons, 84°; before the House committee, 86° ; quoted, 32^, 1021, 1640, 223, 3532, 3561. "Critical Period of American History," quoted, 3571- Crockett, Senator, plea for Sabbatarians, 208-213. Daggett, Hon. David, report, 65. Dalrymple v. Dalrymple, quoted, 2400. Dangerous fallacy, to interfere with propagation of principles on account of their ill tendency, 25. Dangers to be guarded against, 30, 39O, 76, 92, 95, 95I, 105, 109, 357. Dead-letter laws, danger from unrepealed, 39O. "Debates on the Federal Constitution," quoted, 44-49. Declaration of Independence, 21 ; quoted, 80, i8i, 21, 222; drafted by Jefferson, 221. Declaration of rights ; see the respective States. "Decline and Fall of the Roman Empire," quoted, 1121, 1211, 255I. De La Motta, Dr., letter from Madison, 73, 74. Delaware, constitutional provisions concerning re ligion, 242, 243 ; Sunday law, 278. INDEX. 363 Democratic party, resolution on church and state, 402, 2050. Despotic power, 25, 32, 34, 37, 46, 95, 100, 106, 122, 1621, 209, 234, 3280, Deviations from American principles, 75-77, 56, 57. 95, 98, 354- Discussion on Sunday mails, in House of Repre sentatives, 67, 68; in Senate, 82-88. "Disturbance of others," an unreasonable pro vision in a Sunday law, 3262-328°, 339, 339I. Dobbins, W. W., testimony, 341-343. Drury v. Defontaine, 1531. Dumaresly v. Fishly, quoted, 2400. Dyer, Mary, hanged, 3551. Edicts of Constantine, 269. Edwards, Rev. Jonathan, quoted, 233°. "Emancipation of Massachusetts," quoted, 3551. Equality of all religions, 9, 280, 73, 74, 76, 77, 78, 79, 93, 166, 182, 183. Equality of mankind, 8°, 9, 18, 21, 203, philo sophical argument by Herbert Spencer, 181 ; in Virginia, 280. Equality, violation of, by religious legislation, 30, 741. 183. 184- Eusebius's "Life of Constantine," quoted, 1121. Everett, Edward, letter from Madison, 78, 79, 200, 201. Exemption clauses, a violation of equality, 31, 216, 5931, 3"1- Exemption of Quakers and Mennonites, 31 ; of Sabbatarians, 312; Sunday advocates say Sab batarians are exempted too much, 32O ; of Sab batarians expected to stop their opposition to religious legislation, 320. Ex Parte Newman, quoted, 166-191, 1621, 1650. Fairchild, Dr., open letter on persecutions under the Arkansas Sunday law, 333. Fanaticism, 332, 353. Farrow, 67. Federalist, said by Jefferson to be the best book on government, 221. Filmer, Sir Robert, quoted, 181. Finch, quoted, 129, 1520 ; cited, 134. Findley, 58. First amendment, 50, 51 ; quoted, 741, 105, 214. Fiske, John, quoted, 931, 951, 1170, 122I, 1231, 3571. Fitzhugh, Justice, open letter on the operation of Sunday laws, 333. Flippin, Judge, tries Sabbatarians for violation of Sunday law, 337. Florida, constitutional provisions concerning re ligion, 243 ; Sunday law, 280. Forgery, the means by which Christianity came to be recognized as a part of the common law, 1271. Fortescue, cited, 1321 ; quoted, 134. Foster and Elam v. Neilson, quoted, 54I. Foundation of Sunday-rest movements, 61, 611. 102I, 149, 1551-157°, 176. Fourteenth amendment, 53 ; quoted, 510, 220. Free speech, right of, 51, 511. Gault, Rev. M. A., quoted, 94O. Gay's "James Madison," quoted, 990. Georgia, constitutional provisions concerning re ligion, 243 ; Sunday law, 280-284. Gervinus, Professor, on Roger Williams, 5V Gibbon, establishment of Christianity, 1121, 255I ; capital punishment, 121!. Gibbons, James Cardinal, letter to Crafts, 8o° ; to Lindsey, 85°. Gilmer, Francis W., letter from Jefferson, 22I, 69, 70. Government, a compact, 221, 70I, 142, 143 ; de rives its just power from people, 19, 22 ; should be limited to its sphere, 29, 30; no right to in terfere with religion, 17; aid of, not necessary to religion, 33, 57, 77, 79, 159I, 193-195, 201, 357, 358 ; object, 6, 69-71°, 90. Graham, Rev. E. B., quoted, 233°. Granger, Gideon, report, 59, 60. Grant, General, address, 202-204 : quoted, 77, 921 ; message to Congress, quoted, 2042. Gray, Rev. W. D., quoted, 222. Greenleaf, states marriage to be a civil contract, 240°. Hale, Sir Matthew, quoted, 130, 132. Harrison, General, 89s. Hearing before the House Committee on District of Columbia, 312. Hindoo, has equal rights with the Christian. 24I, 4i°. 354- Henry, Patrick, 20°; on liberty, 44, 45; on the persecution of Baptists in Virginia, 326-329. " History of the Nineteenth Century," quoted, 51. Hoadley, Hon. George, 42°, 1921, Hobart, Lord Chief Justice, states that any act against natural justice is void of itself, 69s. Hobbs, Millard F., Master Workman of Knights of Labor, 85°, 86°, 164°. House of Representatives, report, in 1812, 62 ; in 1812, 63, 64 ; in 1815, 64 ; in 1830, 101-124; re port of 1830 quoted, 91. Hume's Political Essays, recommended by Jeffer son, 23°. Idaho, constitutional provisions Concerning re ligion, 243 ; Sunday law, 284. Illinois, constitutional provisions concerning re ligion, 244 ; Sunday law, 284, 285. "Independent," Litchfield, Minnesota, quoted, 3591- "Independent," New York, quoted, 226-229. Independents in Westminster Assembly, declara tion of, 20°. 364 AMERICAN STATE PAPERS. Indiana, constitutional provisions concerning re ligion, 244 ; Sunday law, 285, 286. Infidel, has equal rights with the Christian, 9, 24I, 28°, 31, 41°, 199. Innate sense of rights, 521, 114, 1141, 116, 1160. Inquisition, 34, 348. Intolerance of Sunday-law advocates, 2321, 232°. Iowa, constitutional provisions concerning relig ion, 245 ; Sunday law, 286. Jackson v. Lamphine, quoted, 191. Jefferson, Thomas, influence, 5 ; views on natural rights, 221 ; favorite political works, 221, 23°; pride in Virginia act for establishing religious freedom, 23I ; difficulty in establishing religious freedom, 24O ; breadth of views, 241 ; letter from Madison, 27s ; foresight, 39° ; equality of all, 41° ; sphere of government, 69, 70 ; for quota tions in full, see "Works of Thomas Jefferson," Jewish government a theocracy, 92. Jew has equal rights with the Christian, 9, 241, 28°, 41°, 45, 55°, 42°, 681, 73, 74, 91, 96, 110, 122, 199 ; discriminated against by Sunday laws, 1621. Johnson, Chief Justice (of Arkansas), upholds Sun day laws, 146-150. Johnson, Col. Richard M„ 628, 82, 83, 87, 88, 124*, 126 ; biography, 89s ; reports, 89-100, 101-126 ; popularity, 62s, 8g2, 124I ; one of the fathers of the Democratic party, 209 ; quoted, 5, 91, 55°, 1541, 1591, 172, 173, 209, 210, 224. "Johnson's Universal Cyclopedia," quoted, 239I. Jones, A. T., editor of "American Sentinel," quoted, 312. Jones, Rev. Dan T., letters from Judge Williams, 330, 331 ; Judge Rose, 331, 332 ; E. Stinson, 332 ; Dr. Fairchild and E. E. Woodcock, 333 ; Justice Fitzhugh, 333. Judicial legislation, 1271, 354. Kansas, constitutional provisions concerning relig ion, 245 ; Sunday law, 287. Kentucky, constitutional provision concerning re ligion, 245, 246 ; Sunday law, 287, 288. King case, see the State v. King, and King, R. M. King, Representative, 67. King, R. M., prosecuted for violating the Sunday law of Tennessee, 334-360 ; twice tried and con victed for the same act, 334, 347, King, Rufus, 155X King v. Woolston, 130. Knights of Labor, 85° ; some radically opposed to Sunday legislation, 86°. Knowles, Rev. J. H., editor of the "Pearl of Days," quoted, 88°. Laboring man and Sunday laws, 85, 86, 1631, 164°, 356L La Fayette, General, letter from Madison, 28°, 381. Lanman's "Dictionary of Congress," quoted, 89s, Law of nature, its absolute supremacy over human laws, 69s. Leddra, William, hanged, 3551. Legislative bodies, no authority over religion, 29 ; power derivative and limited, 29, 701, 72. 177 ; not supreme, 19, 37, 48, 177 ; their office, 69. Lessee of Lindsley v. Coates, quoted, 1511. Lewis, Dr. A. H., quoted, 1021, 156O. Liberty, necessity of guarding, 30 ; importance, 44. Liberty of conscience in Rhode Island, 51. Liberty of opinion, should be absolute, 26. Lieber, Francis, on American liberty, g2 ; majori ties and liberty, 108°. Lincoln, letter from Jefferson, 562. Littleton, quoted, 130. Livingston, Edward, letter from Madison, 75-77, 201. Livingston, Governor, an ideal prayer of, 78. Locke, John, quoted, 181 ; his work recommended by Jefferson, 221, 23O. Louisiana, constitutional provisions concerning religion, 246 ; Sunday law, 288, 289 . Lyon, Justice, quoted, 226-229. Macaulay, Lord, quoted, 901, gs2, 1161, 160°. Madison, James, 5, 892 g82, 200 ; interest in relig ious liberty, 20° ; letter to Jefferson, 27s ; views on toleration, 200, 982 ; memorial and remon strance, 27 ; quoted, 501, 55°, 70°, 172I, 1781 ; proposed amendment to national Constitution, 50' ; letter to La Fayette, 280, 381 ; letter to Monroe, 28° ; letter to Dr. De La Motta, 73, 74 ; letter to Edward Livingston, 75-77 ; letter to Edward Everett, 78, 79 ; for quotations in full, see "Writings of James Madison." Magistrates the servants of the people and ame nable to them, 19, 710, 73°. Mahometan, has equal rights with the Christian, 9, 241, 28°, 41°, 42°. 54. 55°. 681, 354, Mail, to be delivered on all days of the week, 58, 60, 66, 82, 105. Maine, constitutional provisions concerning re ligion, 246, 247 ; Sunday law, 289, 290. Majorities, 29, 96, 107, 143, 198, 209, 355 ; and Christianity, 193. Mansfield, quoted, 131, 153°, 153O. Marriage a civil contract, 239!, 240°. Marshall, Chief Justice, quoted, 541. Marshall, J. T., testimony, 346, 347. Marvin, Rev. Mr., testimony as to belief of Sev enth-day Adventists, 337. Maryland, constitutional provisions concerning religion, 247 ; Sunday law, 290, 291. Mason, Col. George, 200, 381. Massachusetts, constitutional provisions concern ing religion, 247-249 ; Sunday laws, 292-294. Matthews, Hon. Stanley, 42°, 192I. INDEX. 365 McAllister, Dr., editor "Christian Statesman," quoted, 94°, 95s, Mc Gatrick v. Wason, cited, 42°, 155I, 200. McKee, W. H., brief on Sunday legislation, 214- 225. Meigs, Return J., report, 65. Meister v. Moore, quoted, 2400. Memorial and petition against Sunday mails, 61. Memorial and remonstrance of James Madison, 27 ; its origin, 381 ; quoted, so1, 55°, 70°, 172*, 178I. Memorial of the General Assembly of Indiana, 125, T26. Methodists, 840, 86°, 126I, 353, 3591. Michigan, constitutional provisions concerning religion, 249, 250 ; Sunday law, 294-296. Millar, Rev. Mr., letter from Jefferson declaring religious proclamations to be unconstitutional, 56, 57- Mill, John Stuart, asserts that Sunday legislation is an infringement of liberty, 103I, 160°, 164° ; tendency of mankind to force their opinions upon others, 1041, 291I ; right of individual opin ion, 106I ; fundamental principle of government, 336s ; authority of society, 3391. Minnesota, constitutional provisions concerning religion, 250 ; Sunday law, 296, 297. Minorities, 29, 96, 107, 198, 209. Minor v. Cincinnati Board of Education, 42O, 1551. Mississippi, constitutional provisions concerning religion, 250 ; Sunday law, 297, 298. Missouri, constitutional provisions concerning re ligion, 251 ; Sunday law, 298, 299 ; Supreme Court upholds Sunday laws, 157-165. Monroe, James, letter from Madison, 28°, Montana, constitutional provision concerning re ligion, 252 ; Sunday law, 299. Montesquieu's " Spirit of Laws," recommended by Jefferson, 22I ; contains both political truths and heresies, 22I. Mormons, 348, 349 ; Sunday observers, 349. Narragansett Historical Society, publications of, quoted, 51. National Reformers, 940, 1011, 222. Natural law, its absolute supremacy over human laws, 69s. Natural rights, 9, 37, 39° ; not surrendered on en tering society, 221, 69, 70 ; infringement, 26 ; inalienability, 6g2. Nebraska, constitutional provisions concerning religion, 252, 253 ; Sunday law, 2gg, 300. Nevada, constitutional provisions concerning re ligion, 253 ; Sunday law, 300, 301. New England clergy, 46°, 562. New Hampshire, constitutional provisions con cerning religion, 253, 254 ; Sunday law, 301. New Jersey, constitutional provisions concerning religion, 254 ; Sunday law, 302-307. New Mexico, constitutional provisions concerning religion, 265, 266 ; compact with the United States, 266 ; Sunday law, 307, 308. New York, constitutional provisions concerning religion, 244, 255 ; Sunday law, 308, 309 ; Su preme Court, cited, 146L Nicholas, Col. George, 38. Ninth amendment, 52. North Carolina, constitutional provision concern ing religion, 255 ; Sunday law, 309, 310. North Dakota, constitutional provisions concern ing religion, 256, 257 ; Sunday law, 310, 311. Northwest territory, its cession to the United States, 40I. Norvell, John, letter from Jefferson, 23O. "Notes on Virginia," by Thomas Jefferson, quoted, 39O, 109I. Nuisance, 354, 3541, 327°, 356, 359. Nullifidian, 286I, 2931 ; see Infidel. Oaks, William, testimony, 345, 346. Ohio, constitutional provisions concerning relig ion, 257, 258 ; Sunday law, 311, 312 ; Supreme Court, quoted, 41°, 42°, 144, 145, 1531, 151-156, 192-201. " On Civil Liberty and Self-government," quoted, 92, 108°. "On Liberty," by John Stuart Mill, quoted, 103I, 104I, 106I, 160°, 1640, 256°. Operation of Sunday laws, 325-360. Oregon, constitutional provisions concerning relig ion, 258 ; Sunday law, 312. Orton, Justice H. S., on the Bible in the public schools, 229-234. Owings v. Norwood's Lessee, cited, 541. Parker, W. H., prosecution of, for violation of Sunday law, 360I. Parliament, law of, against natural justice void, 6g2 ; doctrine of its omnipotence alluded to, 156, 182. Parton's "Life of Thomas Jefferson," quoted, 231, 326-329. Paternalism, 360. Pelagius, Pope, quoted, 94°. Pennsylvania, constitutional provisions concern ing religion, 259 ; Sunday law, 313, 314. Persecution, in Old World, 35, 93, 95, in, 113 ; by Catholics and Protestants against each other, 432, 355I ; theories of Catholics and Protestants identical, 940, 355I. Petitions, in 1784, for religious legislation, 27s ; in reference to Sunday mails, 58, 59 ; how ob tained in 1888-1890, 83!-860. Plan of accommodation with Great Britain, 17. Political system, see American political system. Poore, Ben: Perley, quoted, 124I. Porter, 59. Precedents, authority of, 170. Presbyterians, 20°, 27s, 28°, 84°, 860, 351, 353. 366 AMERICAN STATE PAPERS. Presbytery of Hanover, declaration on the sphere of government, 210. Presumption of legislatures, 37, 71°. Priestly's essay on the first principles of govern ment, recommended by Jefferson, 23O. Prisot, quoted, 128, 130, 152O. Proctor, Major General, go0. Prosecution of Sabbatarians, io1, 1631, 208-213, 212I, 325-360, 360* ; spirit characterizing, 330- 333, 335. 3361» 359 = testimony, 337"347- Protestant doctrine of private judgment, go1. Protestantism, persecutions by, 432. Public opinion, 76. Quakers, 31, 351, 355, 3551. Randolph, letter from Jefferson, 221. Reformation, English, influence upon Sunday leg islation, 267-271. "Register of Debates in Congress," quoted, 82-88. Religion, Christian ; see Christian religion. "Religion," meaning of the term, 402. Religion, must not be forced, 19, 28, 29 ; govern ment no right to decide between true and false, 210, 5S°, 93 ; wholly exempt from cognizance of government, 17, 21°, 29, 34, 44, 75, 78 ; must not be established, 30 ; purest when it receives no state aid, 33, 76, 77, 771, 79 ; state teaching of, a revocation of liberty, 35 ; cannot be constitu tionally taught in our public schools, 27-38, 42°, 78, 79- Religious despotisms, how they originate, 95. Religious laws unconstitutional, 151-156. Religious proclamations unconstitutional, 56, 57, 75-77-' IQ51- Religious sects, on an equality, 34, 47-49, 73. 76, 77- 78. 79- 93' l66- l82< l83. 354- Religious tests, 7s ; corrupts religion, 25 ; forbid den by national Constitution, 43. Remonstrance, against religious legislation, 27-38 ; against Sunday mails, 61 ; against Sunday legis lation, 125, 126. Republican national convention on the use of public money for sectarian schools, 2050. Revolution, spirit of, 109, 3291. Reynolds v. United States, cited, 501. Rhea, Hon. John, Senate report of, 62-64. Rhode Island, founding of, 5I ; provisions con cerning religion, 259 ; Sunday law, 314, 315. Richardson, Col., 338-349; Supreme Court brief, 353-360 ; summary of speech, 347, 348. Ridpath, quoted, 352. Rights, cannot be taken away or surrendered, ig, 22I, 37, 99 ; necessity of guarding, 39°, 92 ; self- evidence of, 521-54° ; recognized by national government in ninth amendment, 52 ; to be pro tected by federal government, 53 ; their immu tability, 69s ; equality, 9, 18, 21, 30, 53°, 74 ; dep rivation of, by Sunday laws, 1891. Rive's " Life of Madison," cited, 99°. Robinson, William, hanged, 3551. Rose, Judge, says Sunday laws are oppressive on Sabbatarians, 33r, 332. Rowan, 88. Ruffin, Chief Justice, on the reason for Sunday prosecutions, 611, 165°, 348°. Sabbatarians, exemption, 312 ; exempted too much, 32O ; rights, 741 ; discriminated against in Sun day laws, 1621, 172 ; belief, 211, 337 ; character, 211, 213, 325, 330, 332, 333 ; prosecution of, see Prosecution of Sabbatarians. "Sabbath for Man," quoted, 32°, 102], 164°, 356I. Savage, Rev. M. J., on sphere of government, 3581- Schulteis, 86°. Schaff, Dr. Philip, quoted, 50°, 54s, 99°, 1132. Scoles, Rev. J. W., prosecution of, for Sunday work, 325I. Scott, Judge (of Missouri), quoted, upholding Sunday laws, 157-165. Scott, Judge (of Ohio), cited, 1551 ; quoted, 156°. Scriptures, see Bible. Sects, see Religious sects. Secular principles of government, 76, 771, 124I. Sellers v. Dugan, quoted, 144, 145. Senate,. United States, see United States Senate. Separation of church and state, see Church and state, separation of. Sepectw. Commonwealth, quoted, 171. Shepard, Col. Elliott F., quoted, 88°, 222. Shockey, John, prosecution of, for Sundaywork, 335- Shoe lasters' union, against Sunday laws, 1640. Shover v. State (Arkansas), 146-150, 348°. Slaves, people so called by Madison who submit to religious laws, 30. Smith's "Wealth of Nations," considered by Jef ferson as the best work on political economy extant, 22I. Smith v. Sparrow, 1531. Social compact, 221, 70I, 142, 143. "Social Statics," quoted, 181, 212, 51I, 521,692, 710, 114I, 1202. South Carolina, constitutional provisions con cerning religion, 260 ; Sunday law, 315-317, 72, 120I. South Dakota, constitutional provisions concern ing religion, 260 ; Sunday law, 317. Spencer, Herbert, philosophical argument on equality of rights, 18I ; statement of individual rights, 8° ; rights of life and personal liberty, 212 ; right of free speech, 511 ; self-evidence of rights, 521 ; invalidity of human laws when con trary to the law of nature, 6g2 ; rights not sur rendered on entering the social state, 7i°-73°; the powers of majorities, 1071; innate sense of rights, 1141; on state-paid religious teachers, 1208. INDEX. 367 Sphere of civil government, 221, 69, 70, 3581. Stanford, 68. Stanhope, Lord, quoted, 99°, State aid not necessary to religion, 33, 77, 79, I591» I93-i95, 201, 357, 358. State Constitutions, 237-266. State v. Ambs (Missouri), 157-165 ; cited, 1461. State v. King, prosecution for Sunday work, 334- 360. State v. Williams (North Carolina), quoted, 611, 1650, 348°. Stevenson, Marmaduke, hanged, 355. Stevenson, Dr., editor "Christian Statesman,'' quoted, 1011. St. Louis "Globe-Democrat," on Sunday prose cutions, 325, 326. Story, Justice Joseph, on reason for prohibiting religious tests, 432. Stowell, Lord, quoted, 240°. Strong, Justice, quoted, 240°. Sullivan, Judge, decision of, 3270. Sunday contracts, 144, 145, 153I, 278. Sunday laws, of the United States, see the various States; unconstitutional, 1570, 162* 166-191, 214; operation, 325-360; upheld, 146-150, 157- 165. 33i : basis of, 102I, 149, 1551-157°, 176, 215- 219, 267-271, 272I; deprive the individual of the inalienable right to acquire property, 1891 ; his tory, 267-271 ; first Sunday law, 269 : law of Charles II, the basis of American Sunday laws, 270, 271 ; report of Arkansas Bar Association, 330; open letters, 330-333; petitions for, 831- 86°. Sunday mails, 58-126, 224 ; refusals to discon tinue, 62s, 96 ; discontinuance of, would be injurious, 96 ; greater expedition of mails de sired, 118 ; chains stretched across the street to stop, 124I. Sunday movement based on the religious idea of the day, 88°, 93, 940, 1021, 149, 267-271. Sunday prosecutions, reasons which suggest, 611, 33o-333; basis of, 149, 1491. Sunday transportation of mails coeval with the Constitution, 65, Sundaywork, " highly vicious and demoralizing," 148 ; Sabbatarians prosecuted for, 1631, 167, 212, 2i3» 2752» 281I, 325, 330-360. Sunderland, Rev. Byron, quoted, 272'. Sun-worship, 268-270, 2701. Swearingen, prosecuted for Sunday work, 163I, 212, 213. Swiggart, Judge, 350. Sydney, Algernon, essay on government recom mended by Jefferson, 23°. Taney, Justice, quoted, 190. Taxes for religious purposes, sinful and tyran nical, 25. Tendency of public opinion, 5. Tennessee, constitutional provisions concerning religion, 260, 261 ; Sunday law, 317, 318. Terry, Chief Justice, decision declaring Sunday laws unconstitutional, 166, 168-178. Texas, constitutional provisions concerning relig ion, 261 ; Sunday law, 318, 319. Thanksgiving proclamations unconstitutional, 56, 57. 75- Thurman, Judge, quoted, 420, 151-156, 1531; cited, 1551- Toleration, theory of, not the same as that of re ligious liberty, 200, 98, 98s, 99°, 171-173, 209, 354. Treaty with Tripoli, 54, 55 ; quoted, 91 ; cited, 42°. Tyler's "Patrick Henry," quoted, 19I, 20°. Tyranny, 25, 335, 356L Tyrants, rulers so called by Madison who exceed their authority by legislating on religion, 30. United States Constitution, see Constitution of the United States. United States government, no right to interfere with religion, 44. United States Senate, report of, in 1815, 65-67 ; in 1829,89-100; report of 1829 quoted, 5, 91, 55°, 154I, 1591, 172, 173, 209, 210. "United States Statutes at Large," cited, 420; " quoted, 21, 43, 54, 55, 82. Unrepealed dead-letter laws, danger of, 39". Utah, Sunday law, 319. Vermont, Sunday law, 72 ; constitutional provis ion concerning religion, 262; Sunday law, 72, 319, 320: constitutional provision concerning Sunday, 8°, 262 ; absurdity of such provision, 262V Virginia act for establishing religious freedom, 23-26; written by Jefferson, 231,38!; reception in Europe, 23I ; its value, 381 ; quoted, ioo1. Virginia, constitutional provision concerning re ligion, 262, 263 ; Sunday law, 320, 321. Virginia Declaration of Rights, 17 ; drafting of, 172, 191 ; quoted, 28, 30, 31, 35, 37, 501, 730, 99°. Waite, Chief Justice, quoted, 501. Walker, Rev. C. E., quoted, 94°. Washington, constitutional provisions concerning religion, 264 ; compact with the United States, 264 ; Sunday law, 322. Washington, George, influence, 5 ; asserts that man is accountable to God alone for his relig ious belief, 2i° ; Tripolitan Treaty, made during administration of, 420, 55°. "Weekly Arkansas Gazette," speech of Senator Crockett, 208-213. Welch, Justice, opinion of, against the use of the Bible in the public schools, 192-201, 41°, 42°. West Virginia, constitutional provisions concern ing religion 263 ; Sunday law, 323. 368 AMERICAN STATE PAPERS. Wharton, Dr. Francis, cited, 54s. Williams, Judge, gives a history of the Arkansas Sunday law of 1885, 330, 331. Williams, Roger, 1170, 123I ; statesmanship, 51; banishment, 8°, 351 ; principles, 681. Wilson, James P., memorial and petition, 61. Winthrop, Governor, 1231. Wisconsin, constitutional provisions concerning religion, 264, 265 ; Sunday law, 323, 324 ; Su preme Court decides that reading the Bible in public schools is unconstitutional, 226-234. Woman's Christian Temperance Union, 32, 85°, 860, 102I. Woman's rights, 115°, 2651 Wood, cited, 131, 153O. Woodcock, E. E., open letter on persecutions under the Arkansas Sunday law, 333. " Works of Thomas Jefferson," quoted, 221, 23!, =4J> 39°. 402* 55°, 56, 562, 57. ^9- 7°. 80, 81, 90°, iooi, 105I, 1091, n6°, 126I, 127-138, 1271, 1281, 142°, 1512. Wright, Alex., 343"345- " Writings of James Madison," quoted, 27I, 27s, 28O, 381, 39°, 55°. 7°°. 73-79. 741. 771. '42. *43, 159!, 172I, 1781, 20i2, 2621. Wyoming, constitutional provisions concerning religion, 26s ; Sunday law, 324. Young, Henry E., Sunday, laws of South Caro lina and Vermont, 72. ' 7 « 3 9002 ¦'¦