p. 125 | Untitled article by Kaintuckee

Pacific Press Publishing Company · New York · April 21, 1892

FromThe American Sentinel, Vol. 7, No. 16

The Christian Religion Not a Part of the Common Law of the Land.

By Kaintuckee

The Sunday closing of the Kentucky exhibit at the World's Fair, by the Legislature, seems to have become an accepted fact, and it does not seem to have occurred to the honorable legislators that this matter is one not within their province.

The writer would respectfully suggest that the Legislature of Kentucky can not, constitutionally, make any law upon any religious matter whatever, the Constitution of the State declaring that “no preference shall ever be given by law to any religious societies or modes of worship.” Now, the keeping of Sunday as the Christian Sabbath is a part of the mode of worship of Christians, in contradistinction to the modes of worship of the Jews, of the Seventh-day Baptists and Adventists, of the Mohammedans, and of the Chinese, who worship their God in Chinese fashion. Any law, therefore, made to enforce the observance of the Christian Sabbath, is a law made to “give preference” to the Christian mode of worship, and must of necessity be unconstitutional.

“But,” some may say, “the Christian religion is a part of the common law of the land. Learned judges have so decided; and by their decision we must abide.”

If this were so, of course, the Legislature could properly pass any laws it pleased in regard to religion. But if the learned judges had taken the trouble to look a little beyond the narrow groove of their statute books, they would have found this idea all a mistake, and that it grew out of the fact that the old English laws were engrafted upon her Colonies, and the old common law of England remained the common law of most of the States after their independence had been achieved. And Blackstone says that “the Christian religion is part of the common law of England.” But America is not England. We do not live under a monarchy, nor have we an established church; but on the contrary we repudiated kings, queens, and nobility, and founded our Republic distinctly on the idea of the total separation of Church and State.

The first impulse given to the American Revolution was by the electric eloquence of Patrick Henry in his defense of the people of Virginia against the payment of the tax to support the clergy of the Church of England. And not only Henry, but Washington, Jefferson, Madison, Adams, Franklin, and every other true American concerned in the formation of the American Government, advocated total separation of Church and State; and many of them have left on record, in their writings, evidence of the same. In the Federal Constitution, the instrument of their making, they say:

“No religious test shall ever be required as a qualification to any office or public trust under the United States.”

And, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

And nearly every State in the Union has the same provision against religious legislation as has the State of Kentucky, their Constitutions all being in accord with the Federal Constitution, in that matter.

Doubtless the reason the States failed to erase the old laws from their statute books, was, simply, that all laws in conflict with the Constitutions of the several States and of the United States became null and void and of no effect, and it was never dreamed that they could, a century later, be revived, and used as an engine of oppression for a free people. So dear, then, was Liberty, it was supposed the American people would always cherish her and adore her very footprints.

If the learned judges aforesaid had looked into the history of their country, they would have found in the treaty of Tripoli, made in 1796, when General Washington was President, and signed by him, this declaration:—

THE GOVERNMENT OF THE UNITED STATES IS NOT IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION.

This shows plainly that the Christian religion was not then “a part of the common law of the land.” And by what process it has since become so would be difficult to define.

If the learned judges had looked into the writings of Madison they would have found ample proof of repudiation of anything looking to the establishment of it by law in the remotest manner. Space forbids quotations, but this one sentence is so striking it will be its own excuse:—

Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish, with the same ease, any particular sect of Christians, in exclusion of all other sects?

And the ideas of Madison, of Washington, of Jefferson, and of all good and true men, prevailed over the few relics of monarchy left in the country, and the new dispensation abolished the old laws of tyranny and proclaimed freedom to man everywhere in this broad land—freedom of speech, freedom of thought, freedom of action—entire freedom so long as he did not trespass on his neighbor's rights.

Now, which shall prevail? which is most valid? the separation of Church and State, as decreed by the our American lawgivers, or the union of Church and State derived from the English monarchy where the Christian religion was “a part of the common law of the land”—handed down through the ages from Constantine, who first forced the early Christians into the giving up of their rightful Sabbath, and who first corrupted the early Church by uniting it to the State—making religion a part of the law of the land and forsaking the teachings of Jesus Christ, the first great expounder of separation of that which is God's from that which is Cæsar's?

Shall General Washington or Constantine be our prototype? Shall Washington, Jefferson, Madison, and the Constitution remain our authorities in this matter, or must we bow down to the verdict of the “learned judges,” and meekly accept their antiquated opinions derived from musty old English monarchical laws as our rule of action?

The truth is, religion is a matter of faith, law a matter of reason; religion is between man and his God, law is between man and man; religion is purely spiritual, and belongs to the individual; law is actual and belongs to the community; religion looks to the preservation of man's happiness in the next world, law looks to the protection of his rights in this world. They are entirely separate and should be kept so, in the interest of the purity of each.

The Legislature has no right to make any law in respect to any religious observance. It is a matter of comparatively small importance whether the exhibit be open or closed on Sunday; that might well be left to the Commissioners to decide; but it is of paramount and vital importance that there should be no legislation at all upon such a subject—that the Constitution be not violated, oaths of office not broken, a dangerous precedent not established.

Those men who disregard, or are ignorant of, the plain teachings of the history of their own country, are taking upon themselves a fearful responsibility in acting as lawgivers and advisers, and would best pause lest they aid in casting the most precious jewel of liberty, freedom of opinion, out upon the raging waves of passion and prejudice never to be again restored. For there is no tyranny like religious tyranny, and once admit that religion can be controlled by law, or that it can control law, and freedom is gone—freedom of religion is gone if law can control it, and freedom of the citizen is gone if religion is to control the law.—“Kaintuckee,” in Henderson (Ky.) Sunday Reporter.