LAW VS. CONSCIENCE

Seventh-day Adventist Publishing Association · Battle Creek, Mich. · Jan 18, 1877

LAW VS. CONSCIENCE.

The Sunday Law Before the Supreme Court.

The Commonwealth vs. Gehring Has.

Brief and Argument of Defendant's Attorney.

[From The Boston Herald.]

Last June a German named Has, of Roxbury, was convicted of keeping his shop open on Sunday for the sale of candy, ice cream, etc., and appealed. He was tried on his appeal in the Superior Court, last September, and was convicted there under the instructions of the court. To this he took exceptions, which are as follows, and

State the Case fully:

COMMONWEALTH OF MASSACHUSETTS.

Superior Criminal Court.

COMMONWEALTH vs. GEHRING HAS.

Defendant's Exceptions.

This was a complaint (a copy whereof is annexed), charging defendant with keeping open his shop for the purpose of doing unlawful business on the Lord's day. At the trial he admitted keeping the shop open to do lawful secular business and traffic with the public therein. And he testified that when he did so, he conscientiously believed that the seventh day of the week ought to be observed as the Sabbath, that he so observed it, and that he disturbed no person. All this was uncontradicted. This was the defense. But the court ruled that it was no defense; that section 1 of chapter 84 of the General Statutes contained two classes of offenses so far as the ninth section was concerned, viz.: 1. Keeping open a shop, warehouse, or workshop on the Lord's day. 2. Doing labor, business, or work, etc., on Sunday. And that section 9 of the same chapter relieved only the second offense from punishment (i. e., the doing of labor, business, or work, on the Lord's day), and made the first offense (keeping open shop for doing such business) absolute. The defendant having admitted that he had committed this offense, the jury were told by the court they must find him guilty if they believed that he kept an open shop on the Lord's day for the purpose of doing business with the public therein, whatever his conscientious scruples about the seventh day might be. To this ruling, defendant excepted; and prays his exceptions may be allowed.

G. HAS.

Sept. 19, 1876. Geo. Sennott, his Attorney.

Examined and allowed.

Wm. S. Gardner, Justice Supreme Court.

On Nov. 27th, the exceptions were argued before the Supreme Court by Mr. George Sennott for Has, and by Mr. Loring, Assistant Attorney-General, for the Government. On the 28th, the Chief Justice sent for Mr. Sennott, and said that his case had some points in it, which were important and new in this commonwealth, and that if he desired he might re-argue it before the full bench, for yesterday there had been barely a quorum present. Mr. Sennott accordingly, on Wednesday morning, presented the following:—

Brief.

COMMONWEALTH OF MASSACHUSETTS.

Supreme Judicial Court.

COMMONWEALTH vs. GEHRING HAS.

Defendant's Brief.

I. Exceptions state the entire case. Now is the defendant punished under General Statutes, sec. 1, chap. 84, for quietly keeping open his shop for business, forbidden on Sunday, but lawful on any other day?

II. Said sec. 1 is said to contain two offenses: First, keeping open shop; second, the transaction of week-day business on Sunday. The second is said to be permitted to be performed to conscientious and quiet observers of Saturday, the other not.

III. The distinction seems to be capricious and absurd. It is not possible to do shop-keeping without keeping a shop open to do it in, or a warehouse or other convenient building. This construction would prevent the Jews from doing anything at all on Sunday except peddling. Keeping the shop is doing the business.

IV. Has' conscientious scruples as to keeping Saturday for his holy day are uncontradicted and must be taken to be true, if that be so, to punish him in any way for doing the business of a shop-keeper on Sunday robs him of one day of the week on account of his religion, and makes the Legislature violate Art. 2 amendatory of Art. 3 of our Bill of Rights. This court will not suffer that.

V. The statute may or may not be grammatically divisible against unconscientious people and unlawful trades. Whether so or not, it is legally and constitutionally one in favor of liberty of conscience. I mean by that, that although you can divide it so as to punish a rum seller twice for the same facts and circumstances—which I never did consider good law—yet you cannot do that, or anything else, to punish a man for his religion; that is, if you care for our Constitution at all. Our Legislature was always in favor of free conscience. Why suppose they ever wanted to take back with one hand what they gave with the other?

VI. Penal laws are always construed liberally against the Government. This construction is strictly against the defendant.

VII. Nothing at all is here in question but liberty of conscience. But our judicial decisions and our legislation may be referred to, to show how constantly they have inclined against oppressive Sunday laws.

Laws Mass., Vol., 1791, c. 58; 1796, c. 89.

13 Mass., 324, Pierce vs. Atwood, 5 R.S., c. 50.

It was thought inappropriate to enter into the general subjects of Sunday laws, or to go at all outside of our own laws before the court.

With the brief, Mr. Sennott submitted the following:—

ARGUMENT:

The exceptions are brief—only sixteen lines—not one of which can be left out. They fully describe the case, however, which is one of the highest importance. The question presented is whether our laws allow conscientious and quiet observers of the seventh day of the week to do business on Sunday which would be lawful on any other day. In this case the business done was “keeping open a shop for the purpose of doing week-day business on Sunday.” The government admits that the law allows such people to do week-day work on Sunday. But it contends that the same law forbids them to keep open a place to do it in. This imputes to the legislature

A CAPRICIOUS AND QUIBBLING INTENT

to give with one hand and take back with the other, in matters of conscience. This construction says to the Jews, for instance, “Do any secular (week-day) work you can on Sunday, but take care not to keep any place open to do it in.” What sort of a law is this? Does it not resemble the judgment of Portia against Shylock, which gave him his pound of flesh, provided he could get it without a drop of blood—rather than the law of a liberal Christian legislature? It reminds me of the rabbinical tale of the poor man who found himself begging in the city of the demons. The demon who guarded the gate, with a look of hellish compassion, gave him a brass token stamped with characters which the poor creature could not understand. “Take this,” said he, “and purchase what you can with it.” The beggar went to every house and every shop, but the characters on the token were, “Give this dog nothing.” And he got nothing, but nearly starved to death with the gift of the devil in his hand. From such a constitution as this and such laws, may “God save the Commonwealth of Massachusetts.”

The practical effect of this construction would be a plain violation of Article 1, amendatory of Article 3 of the Bill of Rights, particularly the last clause: “All religious sects and denominations demeaning themselves peaceably and as good citizens shall be equally under the protection of the law, and no subordination of any one sect or denomination to another shall ever be established by law.” Is an “equal protection” afforded by this construction, which robs the Jew or Seventh-day Baptist of one day in the week on account of his religion? Does it or not compel the quiet and conscientious observer of the seventh day to lose the first day of the week, under a penalty if he uses it? Is not this the whole question, and is not the attempt to evade it by dividing the statute a rather feeble attempt to swim against the current of sensible decisions and liberal legislation?

THE QUESTION

might well rest here. If the construction of the government contradicts the plain intent of the legislature, it is no construction. If the intent of the legislature favors the construction, but is against the plain meaning of the Constitution, there is so far no legislation. When a lawyer once said that he had several reasons for not producing a witness, the first reason being that the witness was dead, the court remarked that the other reasons need not be stated. This case, it strikes me, is remarkably like that. To please the government, however, let us consider whether the course of this government opposes or supports their construction of General Statutes, chapter 84, sections 1 and 9.

The act of 1791, chap. 89, sec. 14, expressly repeals every preceding Sunday law. The preamble of that act fully shows its purpose. There is no exception on account of conscientious scruples in that. On the contrary, tithing men, constables, and inferior magistrates, are clothed with extraordinary powers of interference and annoyance. But ere long, as Mrs. Harriet Beecher Stowe advertently remarks in her “Old Town Romance,” “the Sabbath began to abate.” The laws began to feel the movement of the age. The courts felt it long before, and in the famous case of Pierce vs. Atwood, in thirteenth Massachusetts, they expressed the feeling. Then followed the revised Statutes, when free conscience had her first entire legislative recognition and support. The strictness has always been against unconscientious traders or unlawful trades. We find, as in the 7th of Gray, 164, feeble attempts at stringency and close construction in favor of wrong-doers steadily and rather indignantly repressed by this honest court.

Something, I am told, is to be said by the government like this: “Strict Sunday laws are constitutional, because they promote the public trade and the public health.” An assembly of doctors, or a State board of trade, it seems to me, would be

BETTER JUDGES OF THESE SUBJECTS

than the Great and General Court. Besides, when a man keeps Saturday for the love of God, I think it would hardly promote his piety if you made him keep Sunday, too, for the good of his health. Is it not enough that we keep one day in seven, and that on a day selected by law? The fact is that the judge's order to the jury to convict my client if they believed him, no matter what his conscientious scruples might be, is directly against the Constitution of Massachusetts, and is wrong in manner, matter, form, spirit, and intention; is against common sense, good logic, sound morality, plain law, and the Christian religion! In the face of all these, my client was convicted on account of his religion by a judge's order, and if he is punished on that conviction, he might as well be hung! We may divide the statute, but can we divide the conscience? Is the court prepared to say to any Christian, You are to obey man rather than God, no matter what your conscience may be? Whether we are to obey God rather than man, judge ye!