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IN No. 18 of the current volume of this paper was published an article under this title in which it was shown that “in all ages and in every country religious intolerance has been defended on the ground of public policy,” and that “dissenters have ever been stigmatized as enemies of the State, subverters of social order, and disturbers of the public peace.” 1The article to which reference is here made will appear shortly in tract form as a number of the “Religious Liberty Library.” The proof of these propositions was conclusive, but by no means as full as it might have been. Indeed, to exhaust the subject would be to review the entire history of the world, for substantially the same arguments have been urged in justification of restrictions of freedom of conscience in every country and in every period. AMS June 18, 1896, page 195.1
Speaking of the causes of pagan persecutions, Lecky says that “they were partly political and partly religious.” The same writer explains this statement in this way:— AMS June 18, 1896, page 195.2
In the earlier days of Rome religion was looked upon as a function of the State; its chief object was to make the gods auspicious to the national policy, and its principal ceremonies were performed at the direct command of the Senate. 2“History of European Morals,” Vol. I, page 308. AMS June 18, 1896, page 195.3
Of certain repressive measures directed by the Romans against other religions than their own, Lecky says:— AMS June 18, 1896, page 195.4
They grew out of that intense national spirit which sacrificed every other interest to the State, and resisted every form of innovation, whether secular or religious, that could impair the unity of the national type, and dissolve the dicipline [sic.] which the predominance of the military spirit and the stern government of the Republic had formed. 3Id., page 403. AMS June 18, 1896, page 195.5
It thus appears that the real motive that led the pagans to persecute the Christians was a desire to preserve intact their civil institutions; the very motive which to-day actuates the Czar in the persecution of Jews and Stundists, and that is urged in our own country in justification of certain measures of religious legislation. In justification of Sunday laws, Mr. Crafts says, as quoted in our former article:— AMS June 18, 1896, page 195.6
It is the conviction of the majority that the nation cannot be preserved without religion, nor religion without the Sabbath, nor the Sabbath without laws, therefore Sabbath laws are enacted by the right of self-preservation, not in violation of liberty, but for its protection. AMS June 18, 1896, page 195.7
This is but a revamping of the old pagan theory firmly believed by the multitude. Lecky says, “that the prosperity and adversity of the empire depended chiefly upon the zeal or indifference that was shown in conciliating the national divinities.” That the Christian religion is true while the religion of the Romans was false does not affect the principle; civil government was as much a divine ordinance in Rome as it is in the United States, and if the preservation of social order justifies religious laws now, it justified them as fully then. Nor is this all; if the preservation of either this or any other nation justifies religious restrictions at all, it justifies such restriction to any extent which in the judgment of those in authority may be necessary for the preservation of that nation. But to maintain such a position would be to justify all the persecution that has ever cursed any land, or disgraced any system of religion. AMS June 18, 1896, page 195.8
Another point of semblance between ancient and modern intolerance, between pagan and so-called Christian bigotry, is found in the fact that when Rome reached the point of tolerating professors of all religions in Rome, this liberty did not free the Roman “from the obligation of performing also the sacrifices or other religious rites in his own land.” The parallel to this is found in Tennessee and some other of our American States in which perfect religious liberty is supposed to be guaranteed, notwithstanding the fact that a certain amount of deference must always be paid to the religion of the majority, in the observance of Sunday. AMS June 18, 1896, page 195.9
American colonial history is exceedingly fruitful in illustrations of how religious intolerance has sought to shield itself behind civil considerations, and justify persecution on the ground of protecting public morals and preserving the peace and dignity of the State. In “The Emancipation of Massachusetts,” Brooks Adams relates how the clergy of that colony “used the cry of heresy to excite odium, just as they called their opponents Antinomians, or dangerous fanatics.” To stir up the people against them. “Though the scheme was unprincipled,” says Mr. Adams, “it met with complete success, and the Antinomians have come down to posterity branded as deadly enemies of Christ and the commonwealth; yet nothing is more certain than that they were not only good citizens, but substantially orthodox.” Of course the motive of the clergy was wholly religious, yet they made it appear that while they were concerned for what they regarded as the true faith they were equally interested in the welfare of the colony. Henry Dunster, the first president of Harvard College, did not believe in infant baptism, and for this he was indicted and convicted on the charge of disturbing church ordinances. The disturbance was as real as is the disturbance charged in Tennessee against Seventh-day Adventists—it was all in the minds of those, who, having control of legislation, were determined that the civil power should be used in support, to some extent at least, of their tenets. Dunster was driven out as an enemy of the commonwealth, and died in poverty and neglect. AMS June 18, 1896, page 195.10
In 1651, John Cotton denounced certain Baptists as “foul murtherers” because they denied infant baptism. And in “The Emancipation of Massachusetts” page 116, we are told that under the Puritan Commonwealth, the moment a man “refused implicit obedience, or above all, if he withdrew from his congregation he was shown no mercy, because such acts tended to shake the temporal power.” “Therefore,” says the same writer, page 118, “though Winslow solemnly protested before the commissioners at London that Baptists who lived peaceably would be left unmolested, yet such of them as listened to ‘foul murtherers’ were denounced as dangerous fanatics who threatened to overthrow the government, and were hunted through the country like wolves.” AMS June 18, 1896, page 195.11
Regarding the facility with which civil offenses were for religious reasons charged in Massachusetts against dissenters, Charles Francis Adams says:— AMS June 18, 1896, page 195.12
A species of sweep-net was now needed which should bring the followers no less than the leaders under the ban of law. The successful prosecution of Wheelwright afforded the necessary hint. Wheelwright had been brought within the clutches of the civil authorities by a species of ex post facto legal chicanery. Even his most bitter opponents did not pretend to allege that he had preached his Fast day sermon with the intent to bring about any disturbance of the peace. They only claimed that his utterances tended to make such a result probable, and that his own observation ought to have convinced him of the fact. Therefore, they argued, although it was true that no breach of the peace had actually taken place and although the preacher had no intent to excite to a breach of the peace, yet he was none the less guilty of constructive sedition. Constructive sedition was now made to do the same work in New England which constructive treason, both before and after, was made to do elsewhere. 4“Three Episodes of Massachusetts History,” Vol. I. page 477. AMS June 18, 1896, page 195.13
But it mattered not that Wheelwright could be accused only by legal fiction, and that an extremely attenuated one. Mr. Adams thus relates the sequel:— AMS June 18, 1896, page 195.14
The court being now purged of all his friends Coddington only excepted, Wheelwright’s case was taken up. He appeared in answer to the summons; but, when asked if he was yet prepared to confess his errors, he stubbornly refused to do so, protesting his entire innocence of what was charged against him. He could not be induced to admit that he had been guilty either of sedition or of contempt, and he asserted that the doctrine preached by him in his Fast-day discourse was sound; while, as to any individual application which had been made of it, he was not accountable. Then followed a long wrangle, reaching far into the night and continued the next day, during which the natural obstinacy of Wheelwright’s temper must have been sorely tried. At his door was laid all the responsibility for all the internal dissensions of the province. He was the fruitful source of those village and parish ills; and every ground of complaint was gone over, from the lax response of Boston to the call for men for the Pequot war, to the slight put by his church upon Wilson, and halberdiers upon Winthrop. To such an indictment defense was impossible; and so, in due time, the court proceeded to its sentence. It was disfranchisement and exile.... His sentence stands recorded as follows: “Mr. John Wheelwright, being formally convicted of contempt and sedition, and now justifying himself and his former practice, being to the disturbance of the civil peace, he is by the court disfranchised and banished, having fourteen days to settle his affairs; and if within that time he depart not the patent, he promiseth to render himself to Mr. Stoughton, at his house to be kept till he be disposed of; and Mr. Hough undertook to satisfy any charge that he, Mr. Stoughton, or the country should be at.” 5Id., pages 480, 481. AMS June 18, 1896, page 195.15
Similar facts might be given at almost any length both in the history of Massachusetts and in that of England and other countries, but the reader can pursue the study for himself. Enough has been said to fully sustain the proposition that religious intolerance ever seeks to hide its hideous face behind some civil law, and to justify its crimes against humanity on the ground of public necessity; but nobody is deceived except the poor bigots themselves. Everybody else knows full well the real motive. AMS June 18, 1896, page 195.16
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OUR readers are familiar with the fact that a decision was handed down May 18 by the Supreme Court of the United States affirming the constitutionality of Section 4,578 of the Code of Georgia prohibiting the running of freight trains in that State on Sunday, except under certain conditions and circumstances. AMS June 18, 1896, page 197.1
The “law” was assailed on the ground that it was in violation of the Constitution, which provides that Congress shall have power to regulate commerce between the States; but the majority of the court held that the said act was only “an ordinary police regulation designed to secure the well-being and promote the general welfare of the people within the State by which it was established, and, therefore, not invalid by force alone of the Constitution of the United States.” AMS June 18, 1896, page 197.2
Like the “Christian Nation” decision of February 29, 1892, this decision is more broad and far-reaching than was really required by the question before the Court, Mr. Justice Harlan who delivered the opinion of the court, seems to have gone out of his way to lay broad and deep the foundation of Sunday “laws.” AMS June 18, 1896, page 197.3
Judging from this opinion, the power of the several States to enact and enforce Sunday “laws” is not regarded as open to question. Immediately after stating the facts in the case the learned Justice says:— AMS June 18, 1896, page 197.4
If the statute in question forbidding the running in Georgia of railroad freight trains, on the sabbath day, had been expressly limited to trains laden with domestic freight, it could not be regarded otherwise than as an ordinary police regulation established by the State under its general power to protect the health and morals, and to promote the welfare, of its people. 1All italics in these extracts are ours.—ED. SENTINEL. AMS June 18, 1896, page 197.5
“From the earliest period in the history of Georgia,” continues the opinion, “it has been the policy of that State, as it was the policy of many of the original States, to prohibit all persons, under penalties, from using the sabbath as a day for labor and for pursuing their ordinary callings. By an act of the colonial legislature of Georgia, approved March 4th, 1762, it was provided: ‘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, or any part thereof (works of necessity or charity only excepted), and that every person being of the age of fifteen years or upwards, offending in the premises, shall for every such offense, forfeit the sum of ten shillings. And that 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, or pay ten shillings.’” AMS June 18, 1896, page 197.6
The court then cites the act against the running of freight trains on Sunday, described in the act as “the sabbath day,” and then continues:— AMS June 18, 1896, page 197.7
In what light is the statute of Georgia to be regarded? The well-settled rule is, that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the constitution. Mugler v. Kansas, 123 U.S. 623, 661; Minnesota v. Barber, 136 U.S. 313, 320. AMS June 18, 1896, page 197.8
In our opinion there is nothing in the legislation in question which suggests that it was enacted with the purpose to regulate interstate commerce, or with any other purpose than to prescribe a rule of civil duty for all who, on the sabbath day, are within the territorial jurisdiction of the States. It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease.... The legislature of Georgia no doubt acted upon the view that the keeping of one day in seven for rest and relaxation was “of admirable service to a State considered merely as a civil institution.” 4 Bl. Com. 63. The same view was expressed by Mr. Justice Field in Ex parte Newman, 9 Cal. 502, 520, 529, when, referring to a statute of California relating to the sabbath day, he said: “Its requirement is a cessation of labor. In its enactment, the legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists and statesmen of all nations, as on the necessity of periodical cessation of labor. One day in seven is the rule, founded in experience and sustained by science.... The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society is promoted.” AMS June 18, 1896, page 197.9
So, in Bloom v. Richards, 2 Ohio St. 387, 392, Judge Thurman, delivering the unanimous judgment of the Supreme Court of Ohio, said: “We are, then, to regard the statute under consideration as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the sabbath day. Wisdom requires that men should refrain from labor at least one day in seven, and the advantages of having the day of rest fixed, and so fixed as to happen at regularly recurring intervals, are too obvious to be overlooked. It was within the constitutional competency of the general assembly to required the cessation of labor, and to name the day of rest.” AMS June 18, 1896, page 197.10
The same principles were announced by the Supreme Court of Georgia in the present case.... That court, speaking by Chief-Justice Bleckley, said: “There can be no well-founded doubt of its being a police regulation, considering it merely as ordaining the cessation of ordinary labor and business during one day in every week; for the frequent and total suspension of the toils, care and strain of mind or muscle incident to pursuing an occupation or common employment, is beneficial to every individual, and incidentally to the community at large, the general public. Leisure is no less essential than labor to the well-being of man....” AMS June 18, 1896, page 197.11
That court further said: “With respect to the selection of the particular day in each week which has been set apart by our statute as the rest day of the people, religious views and feelings may have had a controlling influence. We doubt not that they did have; and it is probable that the same views and feelings had a very powerful influence in dictating the policy of setting apart any day whatever as a day of enforced rest. But neither of these considerations is destructive of the police nature and character of the statute.... Courts are not concerned with the mere beliefs, and sentiments of legislators, or with the motives which influence them in enacting laws which are within legislative competency. That which is properly made a civil duty by statute is none the less so because it is also a real or supposed religious obligation; nor is the statute vitiated, or in anywise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious rather than by the civil aspect of the measure. Doubtless it is a religious duty to pay debts, but no one supposes that this is any obstacle to its being exacted as a civil duty. With few exceptions, the same may be said of the whole catalogue of duties specified in the ten commandments. Thos os them which are purely and exclusively religious in their nature cannot be made civil duties, but all of them may be, in so far as they involve conduct as distinguished from mere operations of mind or states of the affections. Opinions may differ, and they really do differ, as to whether abstaining from labor on Sunday is a religious duty; but whether it is or is not, it is certain that the legislature of Georgia has prescribed it as a civil duty. The statute can fairly and rationally be treated as a legitimate police regulation, and thus treated it is a valid law. There is a wide difference between keeping a day holy as a religious observance and merely forbearing to labor on that day in one’s ordinnary vocation or business pursuit.” Hennington v. The State, 90 Ga. 396, 397, 399. AMS June 18, 1896, page 197.12
In quoting and adopting this language of the Supreme Court of Georgia, as he does, Justice Harlan shows a most astonishing lack of appreciation of the essential difference between paying debts and observing a religious ordinance. The payment of debts is not made a civil duty because it is a religious duty; while it is admitted that abstinence from labor on Sunday is made a “civil duty” because it is supposed to be first of all a religious duty. On the other hand, the payment of debts is a religious duty because it is first of all a natural civil duty. Peoples knowing nothing of the ten commandments recognize the obligation to pay debts, and enforce it by civil law; but we find the so-called civil Sabbath only where its observance has first been enjoined as a religious duty. But so well satisfied is the Supreme Court with the reasoning of the Georgia Court on this point, that the learned justice continues:— AMS June 18, 1896, page 197.13
Assuming, then, that both upon principle and authority the statute of Georgia is, in every substantial sense, a police regulation established under the general authority possessed by the legislature to provide, by laws, for the well being of the people, we proceed to consider whether it is in conflict with the Constitution of the United States. AMS June 18, 1896, page 197.14
The defendant contends that the running on the sabbath day of railroad cars, laden with interstate freight, is committed exclusively to the control and supervision of the National Government; and that, although Congress has not taken any affirmative action upon the subject, State legislation interrupting, even for a limited time only, interstate commerce, whatever may be its object and however essential such legislation may be for the comfort, peace and safety of the people of the State, is a regulation of interstate commerce forbidden by the Constitution of the United States. Is this view of the Constitution and of the relations between the States and the General Government sustained by the former decisions of this court? ... If the people of a State deem it necessary to their peace, comfort and happiness, to say nothing of the public health and the public morals, that one day in each week be set apart by law as a day when business of all kinds carried on within the limits of that State shall cease, whereby all persons of every race and condition in life may have an opportunity to enjoy absolute rest and quiet, is that result, so far as interstate freight traffic is concerned, attainable only through an affirmative act of Congress giving its assent to such legislation? AMS June 18, 1896, page 197.15
The court holds that such is not the case, and concludes the opinion thus:— AMS June 18, 1896, page 198.1
Local laws of the character mentioned have their source in the powers which the States reserved and never surrendered to Congress, of providing for the public health, the public morals and the public safety, and are not, within the meaning of the Constitution, and considered in their own nature, regulations of interstate commerce simply because, for a limited time or to a limited extent, they cover the field occupied by those engaged in such commerce. The statute of Georgia is not directed against interstate commerce.... It simply declares that, on an during the day fixed by law as a day of rest for all the people within the limits of the State from toil and labor incident to their callings, the transportation of freight shall be suspended. AMS June 18, 1896, page 198.2
We are of opinion that such a law, although in a limited degree affecting interstate commerce, is not for that reason a needless intrusion upon the domain of Federal jurisdiction, nor strictly a regulation of interstate commerce, but, considered in its own nature, is an ordinary police regulation designed to secure the well-being and to promote the general welfare of the people within the State by which it was established and therefore, not invalid by force alone of the Constitution of the United States. AMS June 18, 1896, page 198.3
The judgment is Affirmed. AMS June 18, 1896, page 198.4
It will be observed that in all this, while there is a careful guarding of “the powers which the States reserved and never surrendered,” there is not so much as a suggestion of any rights for the individual. The State is supreme over the time, health, and morals of the people. They have no reserved rights. AMS June 18, 1896, page 198.5
A noticeable feature in this decision is the matter-of-fact tone employed in referring to Sunday “laws.” Their propriety is beyond question! “From the earliest period in the history of Georgia it has been the policy of that State, as it was the policy of many of the original States, to prohibit all persons, under penalties, from using the sabbath as a day of labor and from pursuing their ordinary callings.” The argument amounts to no more than this: it has long been so, therefore it must be right. And this “policy” and the “laws” enacted in preservance of it are purely “civil,” the court asserts, notwithstanding the admitted fact that “religious views and feelings” “had a controlling influence” in the framing of “laws” requiring Sunday observance! AMS June 18, 1896, page 198.6
It is assumed that Sunday “laws” are necessary for the preservation of “health and morals.” We have not time now to discuss the question of health; but submit that Sunday labor or business cannot be shown to be immoral, and it will not ever be claimed that it is immoral, on any other ground than that it is irreligious. It inevitably follows that the Supreme Court has upheld a “law” prohibiting Sunday work because it is irreligious, for if it were not irreligious it could not be immoral, and if it were not immoral it could not be prohibited by law. AMS June 18, 1896, page 198.7
In our opinion this decision from which only two Justices (Justices Fuller and White) dissented, dashes to the ground all hope of a decision by the Supreme Court of the United States adverse to Sunday “laws.” The fiction of Sunday sacredness has now received the seal of approval from the Supreme Court, for only on the supposition that it is a sacred day can Sunday labor or business be regarded as immoral; but it is on this very ground that the Supreme Court sustains not only the Georgia statute prohibiting the running of freight trains but the whole Georgia Sunday “law” as well as the Sunday “laws” of all the States. AMS June 18, 1896, page 198.8
The learned Justice delivering the opinion of the Court talks of the power of the State to fix a day of rest for all the people, and intimates that the choice of Sunday was only incidental; but does anybody suppose that the Supreme Court would sustain a statute enacted by any State which would undertake to stop interstate commerce upon any other day of the week than Sunday? Suppose that Utah instead of being settled by Mormons had been colonized by Mohammedans, and that they had passed a “law” prohibiting the running of freight trains on Friday, does anyone suppose for a moment that seven out of nine of our learned Supreme Court Justices would have sustained the “law”? Does anyone suppose that a single justice could have been found to champion such a statute? Certainly not. AMS June 18, 1896, page 198.9
The truth is that while it was the purpose of the founders of this Government to establish on this continent a State without a Church, yea, even without any officially recognized religion, we have to-day and have long had a recognized religion, namely, Christianity, according to the general acceptation of that term. President Washington declared that the Government of the United States was not in any sense founded upon the Christian religion, but a Supreme Court has arisen that knows not Washington. In 1892 it declared that this is “a Christian Nation,” and found evidence of this in Colonial Charters and State Constitutions from the very beginning of our history to that very moment; and now in 1896 it is assumed that labor or business upon the “Christian sabbath” is immoral and therefore properly prohibited by the police power of the States! AMS June 18, 1896, page 198.10
It is true that no question was raised before the court upon the right of the individual to have and exercise his own individual conscience, being answerable only to God for the abuse of that privilege so long as in so doing the individual does not intrench upon the equal rights of others; but the opinion delivered by Justice Harlan leaves no room to doubt what the decision would have been had the question been upon the right of a State to forbid private Sunday labor by the individual. The court has held that the guardianship of morals is within the legitimate police power of the State, and on this ground the court sustains the Sunday “law” of Georgia; it follows that in the opinion of the learned justices Sunday labor and business are immoral; and as before shown that is the same thing as to hold that Sunday work is irreligious; for on no other possible grounds can it be held to be immoral. AMS June 18, 1896, page 198.11
Every department of the Government is now fully committed to the support of the Sunday institution; but the Judiciary has gone further than either the Legislative or the Executive. Until now there has been a question whether Sunday legislation would be sustained by the Supreme Court; whether that tribunal would not hold it to be in violation of the First Amendment; but that question is now settled. The Supreme Court has said that even though it be a religious institution, and even though religious convictions are the potent influence in securing the legislation, it is within the legitimate power of legislatures and must be sustained as a civil institution. Processes of the mind are alone free from governmental regulation; and religious liberty in the United States is only a name. AMS June 18, 1896, page 198.12