Untitled article by W. L. Carter; S. F. Wilson

Untitled article

W. L. Carter; S. F. Wilson

Pacific Press Publishing Company · New York · June 7, 1894

STATE OF TENNESSEE, IN THE # SUPREME COURT. STATE OF TENNESSEE vs. W. B. CAPPS, IN ERROR. JACKSON, APRIL TERM, 1894.

Brief and Argument of W. L. Carter, of Counsel for the Defense.

(Concluded.)

But it has been said so often, and by such eminent authority that “Christianity is part of the law of the land,” that we give the following, which is conclusive of the question. Judge Allen G. Thurman, whose standing as a lawyer and statesman is second to no one, in the case above cited says:—

The Constitution having declared that all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority, whatever, can control or interfere with the rights of conscience; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; and that no preference shall ever be given by law to any religious society or mode of worship,—it follows that neither Christianity nor any other religion is a part of the laws of the State. Bloom vs. Richards, supra.

Continuing he says:—

We sometimes hear it said that all religions are tolerated in this State, but this is not strictly accurate; much less is it accurate to say that one religion is a part of the law and all the rest merely tolerated. It is not mere toleration that every individual has in his belief or disbelief. He reposes, not upon the leniency of the Government, or of any class or sect of men; but upon his natural and indefeasible rights of conscience, which, in the language of the Constitution, are “beyond the control or interference of any human authority.” Same; Lindsey vs. Coates, 1 Ohio State, 343.

In State vs. Chandler, 2 Har. (Del.), 553, Justice Clayton said:—

Even in England, Christianity was never considered as part of the common law so far as that, for a violation of its injunctions and independent of the established laws of man and without the sanction of any positive act of Parliament, any man could be called to answer in a court of common law.

As well stated by an eminent New York judge:—

The maxim that Christianity is a part of the common law has been frequently repeated by judges and text-writers, but few have ever examined its truth, or explained its meaning. If Christianity is a part of the municipal law in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by civil power who fails to embrace its precepts; and if it must be conceded that in this sense the maxim is untrue, it ceases to be intelligible, since a law without sanction is an absurdity in logic and a nullity in fact. 4 Sanford’s Rep., 181.

Justice Welsh says:—

If Christianity is a law of the State, like every other law it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one contends for any such doctrine in this country, and I might almost say, in this age of the world. . . . True Christianity asks no aid from the sword of civil authority. It began without the sword, and whenever it has taken up the sword, it has perished by the sword. To depend on civil authority for its enforcement is to acknowledge its own weakness, which it can never afford to do. It is able to fight its own battles. Its weapons are moral and spiritual and not carnal. . . . It is not the power of man, but the power of God, on which it depends. 23 Ohio State, 211, Board of Education vs. Minor.

And on page 248 he says, “Legal Christianity is a solecism, a contradiction of terms.” The last named case was argued for the Board of Education by the Hon. Stanley Matthews, afterward Associate Justice of the Supreme Court of the United States, and by Gov. Hoadley, afterwards governor of Ohio. The opinion, deciding unanimously in favor of the board, is one of the ablest expositions of the doctrine of the complete separation of the State from in any way interfering or influencing in religious matters, that has ever been given.

And thus authority might be given without limit, almost; and not only of the most eminent jurists, but also of such statesman as Washington (U. S. Stat., Vol. 8, 154), and of Jefferson (“Works of Thos. Jefferson,” Vol. I, p. 45), and others.

James Madison tersely says:—

The same authority that can establish Christianity to the exclusion of all other religions, with the same ease may establish any particular sect. “Writings of Jas. Madison,” Vol. I, p. 162.

We close this part of the discussion by the following quotation from Judge Cooley, whose reputation as a constitutional lawyer is perhaps greater than that of any living man:—

For these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of or base their judgments upon it. “Constitutional Limitations,” 584.

So far, then, as the Parker case is based on the statement of the chief justice that “Christianity is a part of the law of the land,” it is unfounded.

The second proposition is equally unfounded.

IS SUNDAY LABOR IMMORAL?

By W. L. Carter; S. F. Wilson

Outside of purely religious feelings, or precepts, no one regards Sunday labor as different from labor on any other day of the week. This is shown by the fact that Jews, Sabbatarians, and all others who do not attach any special religious significance to the day, do not regard Sunday labor as immoral. And the Jews are noted as moralists. If the question were asked, Why should not persons labor on Sunday? no reason could be given other than that it is contrary to our religious belief. It is the day, not the deed. And what is there peculiar about the day that distinguishes it from other days of the week, except that it is regarded as sacred by a large part of the people? There is no difference by nature. We could not tell when Sunday came except by the calendar. Nor will it do to say that it is set apart by civil law; for that would not affect the moral aspects of the labor. By

law a thing can be made malum prohibitum but not malum in se. There are many things that are prohibited by law, such as hunting at certain seasons certain game, fishing in streams in certain ways, license and revenue law, etc., in which there is no moral turpitude involved. The law does not affect the morality of an act. It would be just as immoral to steal without a law on the subject as it is with it. It is well shown in the well-known division of crimes into the two classes malum prohibitum and malum in se. But the learned chief justice in the Parker case says that the legislature prohibited Sunday labor because it was immoral. The act of the legislature did not make it immoral, but the law was made because of the immoral character of the act.

Nor can it be immoral because it shocks our religious feelings or belief.

The devout Catholic believes it to be immoral to eat meat on Friday. It is not the eating of the meat, but the day on which it is done that shocks his moral sense. He is taught this by his religion. But it is no more immoral to eat meat on Friday than it is to labor on Sunday. There might be a majority of the citizens of the State Catholics, and they prohibit the eating of meat on Friday (like Sunday laws, for health, or sanitary reasons), but would it be held that repeated acts of eating meat on Friday was immoral because a majority regarded it so, and that it would constitute a nuisance?

Again, the Jews and Sabbatarians regard Saturday as sacred, and it would be a shock to their religious feelings to see the day desecrated, if they were largely in the majority; and if they had the power, they might and probably would set apart the day, as Sunday now is set apart by the majority. Would then a repetition of acts of labor on Saturday become a nuisance? Or in a community composed mostly of Mohammedans would it be immoral to labor on the sixth day of the week, or Friday? And would repeated acts of the kind constitute a nuisance?

It has been held in several cases that Sunday labor is immoral, but the reason given is that it is a desecration of “the sacred institution of the Sabbath” (Sorter vs. State, 5 Eng. [Ark.], 259; Pearce vs. Atwood, 13 Mass., 324; Lyon vs. Strong, 6 Vt., 219; Adams vs. Gay, 19 Vt., 358), and “because not in unison with our holy religion.” Amis vs. Kyle, 2 Yerger, 31; Lindenmuller’s case, 33 Barb., N. Y., 548.

None have ever given any reason for holding Sunday labor immoral on any but religious grounds, and certainly no other can be found.

As before shown, it cannot be so held in this State, because, in order to do so, the courts would have first to decide that Sunday was a sacred or religious day, and thus decide a matter that is in controversy between Christians themselves, as well as against Jews, etc. In other words the courts cannot decide questions of religion at all,—not even as to whether a question is one that is held by any sect to be true or not true.

The courts cannot decide whether Sunday, the first day of the week, is the “Sabbath,” or whether Saturday, the seventh day, is the one to observe. Hence the courts cannot hold that Sunday labor is immoral because it is a desecration of the Sabbath; because they would first have to decide that that day was the Sabbath.

As stated, no case has ever based the

statement that Sunday labor is immoral on other than religious grounds.

But by far the ablest as well as the most numerous authorities have upheld the constitutionality of Sunday statutes on purely secular grounds,—the power of the legislature to forbid labor on one day of the week,—and expressly state that the question of morals and religion is not involved at all.

Of course all persons know that the Sunday laws have always been based on, and are essentially a part of, the teachings of the Church; but while admitting this fact, they are sustained on other grounds.

The following authorities show conclusively that there is no moral turpitude involved in Sunday labor. In New York it was said that:—

In so far as the business is immoral, the permitted sales are just as immoral as those prohibited. Business transactions which are void, are void not because they are immoral, but because they are prohibited by law. Styles vs. Smith, 12 Wendell, 57.

And Judge Thurman, of Ohio, says:—

The act does not, to any extent, rest on the grounds that it is immoral or irreligious to labor on the Sabbath any more than upon any other day. Bloom vs. Richards, 3 Ohio State, 387.

To the same effect are Mahone vs. Cook, 26 Pa., 342; Dale vs. Knapp, 98 Pa., 389; M’Gatrick vs. Newman, 4 Ohio State, 566; L. & N. R. R. case, 80 Ky., 291; Sandstorm vs. State, 25 Tex. App. 133. As stated by Mr. Ringgold, “It is safe to say that anything may be done on Sunday that may be done on any other day unless prohibited by statute.” Ringgold’s “Law of Sunday,” 226; Benham vs. Ohio, 12 So. Reporter, 996.

That Sunday labor is not immoral, is shown by the fact that Sabbatarians are exempted from the penalties for Sunday labor in many States.

There are nineteen States that expressly exempt from the operation of the statutes against Sunday labor, persons who from religious motives keep sacred some other day of the week: Ark. Act. 1884, chap. 45; Conn. 1888, chap. 99; Ill. Rev. Stat. 261; Ind. Rev. Stat., 2000; Iowa Code, sec. 5438; Kans. Gen’l. Stat., 2396; Ky. Gen’l. Stat., chap. 21, sec. 10; Maine Rev. Stat., chap. 124, sec. 223; Mass. Gen. Stat., chap. 28, sec. 13; Mich. Howells Anno. Stat., sec. 2015–22; Minn. Acts, Vol. 2, p. 2984; Neb. Comp. Stat., sec. 241; N. J. Rev. Stat., p. 1227, sec. 33; N. D. Comp. Stat., 6243; Ohio, Rev. Stat., sec. 7033; R. I. Pub. Stat., chap. 244, sec. 18; Va. Code, sec. 3800; W. Va. Code, chap. 149, sec. 17; Wis. Anno. Stat., sec. 4596.

If Sunday labor is immoral, these States grant the right to certain of their citizens to do that which is immoral, and if a succession of such acts constitutes a nuisance, those States permit nuisances because of the religious belief or acts of the exempted class.

California, Idaho, and Arizona have no Sunday laws at all; and if the Sunday nuisance theory is to prevail, they allow as a right the carrying on of that which is a nuisance, without let or hindrance.

Other States (Kansas, Nevada, etc.) prohibit games, amusements and the like, but allow honest labor on Sunday. These statutes show that in the minds of the legislatures of the States, Sunday laws rest not upon moral grounds at all, but are purely religious regulations.

A moment’s observation will at once show that there is no question of morals involved in Sunday labor. We see street cars, omnibuses, and other means of travel or transit in cities carried on every Sunday. And so far from regarding it as immoral, there are few people, indeed, who will not patronize them. And should there be one who does not, it is from strict religious scruples. The question of morals is never thought of.

The same might be said of the railroads, steamboats, livery stables, news agents, etc., etc. Did the thought ever occur to one that when he buys his Sunday newspaper he is guilty of an immoral act? or when he takes a car and travels to his place of business in order to be ready on Monday to commence his labors, that he has been guilty of that which, if repeated, becomes a nuisance and indictable as such?

It having been as we claim, demonstrated that there is no question of morals involved in Sunday labor, if then, such labor does not interfere with nor disturb others, a succession of such acts cannot become a nuisance.

It follows that as the acts of defendant, in laboring on his farm on Sunday were not immoral in themselves, and as no one was molested, disturbed, or interfered with thereby, the two separate acts or any number of such, did not become a public nuisance. And he is amenable only to the penalty prescribed by the statute, sec. 2289, for having followed his usual avocation on Sunday.

In 1890, in the case of R. M. King, this question was again before this court, and without giving any written opinion the decision of the lower court convicting the defendant was affirmed. He afterwards applied to the U. S. Court, Judges Hammond and Jackson, for discharge on habeas corpus. Judge Hammond, in an ably written opinion, said that if the question were on its merits before him he would have no difficulty in deciding that King had not been convicted of violating any law. But he dismissed the case on the ground that the courts of the State had jurisdiction to try and determine the case, and having done so, the Federal courts could not interfere with the sentence, however erroneous it might be.

Then, in the language of Chief Justice Nicholson, “to hold that labor becomes a nuisance, simply because it is carried on on Sunday is a perversion of the term nuisance.” This is true, both on principle and authority, and the defendant if amenable at all to law, could only be proceeded against under the statute.

It is a fact, worthy of remark, that if the Sunday law against labor were enforced, the consequences would be destructive to all interests, to an extent not usually thought of. Suppose the railroads, steamboats, street cars, and all other public carriers were stopped; the sale of papers, books, magazines, etc., punished; livery stables and messengers indicted as nuisances; and, as was once done in Massachusetts, persons were indicted for gathering sticks to make fires,—and all because of the day being Sunday,—would not consternation spread to such an extent that laws would be speedily passed that would put a stop to such relics of barbarism?

It is also worthy of remark that while the labor as enumerated above, is openly, publicly, and notoriously carried on every Sunday, and has been at all times in the past, there has never yet been a case of a single conviction for Sunday labor in the State since its foundation, except the person convicted was a member of the sect known as Seventh-day Adventists; and in no instance has the labor complained of been such as to molest or interfere with the comfort, well-being, or rights of others. For this reason, the prosecution smacks so strongly of religious persecution, that it should be repelled from the courts.

W. L. CARTER, Counsel for Defendant.

S. F. WILSON, W. L. CARTER, Counsel for the Defense.