A REVIEW OF SUNDAY LEGISLATION IN CENTURY NINETEEN.
By Prof. P. T. Magan
BY PROF. P. T. MAGAN.
All tyranny is bad; but the worst is that which works with the machinery of freedom.—Macauley.
Introductory.
I PURPOSE in this paper to sketch the history of Sunday legislation from the dawn of the present century to the autumn of the third year of its closing decade, at which time this treatise will go before the public. I shall endeavor faithfully to recount the principles to which this government was committed by the founders, whose names have been immortalized by grateful posterity, because they gave birth to a Constitution which has been justly styled by the greatest statesmen of the age as "the most wonderful work ever struck off at a given time by the brain and purpose of man; and among its greatest features none is more interesting than its full provision for complete separation of Church and State." I shall trace the course of innovation upon the inalienable rights of a free people,—rights with which they have been endowed by their Creator, and which in the fundamental law of their land—the Declaration of Independence and the national Constitution, those sacred charters of liberty and historic renown—they have expressly stipulated shall be held inviolate. I shall prove that these innovations have been conceived in the minds of, and persistently advocated by, the ministry of the altar,—a class of men from whom, were it not for the lessons of history, one would least expect them to emanate,—"those subtle prelates, seldom superstitious, but skillful in practicing on the superstitions of others, false, as it is natural that men should be whose desire it is to impose upon all who are not saints the necessity of being hypocrites, more attached to their own creeds than to the welfare of humanity, and ever seeking, though perhaps unwittingly, to guide the politics of the United States with a constant side glance at Rome."
Finally I shall show that Sunday legislation is the chrysalis, from the womb of which is to emerge the death warrant of the grandeur and greatness of the only nation in the history of the world which ever established "a constitution in time of profound peace by the voluntary consent of a whole people."
By Sunday legislation I understand, not merely the enactments of Congress and the different State Assemblies, but also the decisions of judges in courts, both State and national, in reference to Sunday observance. For in these days judicial precedent appears to carry as much weight as written statute; and the aphorism of Dr. Howland that a lawyer is nothing but a bundle of precedents, with red tape in every button-hole, and a green bag, has become nearly, if not quite, true.
I am well aware that the subject is a stupendous one, and that the task of unknotting the tangled labyrinth of its meshes is complicated rather than simplified by the necessary brevity of this paper. The words of Shakespeare can best describe the sentiment of the author as he entered upon his work:—
"Pardon, gentles all,
The flat unraised spirit that hath dared
On this unworthy scaffold to bring forth
So great an object."
THE PRINCIPLES OF THE FOUNDERS OF THE UNITED STATES GOVERNMENT.
"The United States exhibits to the world" not only "the first instance of a nation unattacked by force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they and their posterity should live," but it also may justly lay claim to, if can be a far greater and more sacred honor, namely, that of establishing "the first national government on the earth that accords with the principles announced by Jesus Christ for mankind and for civil government;" for it is a fact that no nation till the United States "ever thought of vindicating religion for the conscience of the individual in accordance with that Voice from Judea which had enjoined to render to Caesar only that which is Caesar's."
The American Revolution consisted of, not merely a separation from the yoke of Great Britain, but the birth and establishment of two principles, unknown to and unadvocated by all the great statesmen who had gone before. With the first of these principles this paper has nothing to do, while the second,—"that government is of right entirely separate from religion,"—is its anatomy.
That such was the sentiment of the framers of the Federal Constitution is clearly evidenced by Article VI of that document: "No religious test shall ever be required as a qualification to any office or public trust under the United States."
And in terms more emphatic, standing out in bold relief, gloriously contrasting with all the constitutions that had ever preceded it, are the words of its first amendment,—"CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF."
This principle is as old as the world, but it had ever been a "sleeping beauty." The human mind may have dreamed of it, but it had never been put into operation. How grandly has it worked, how large and ingenuous a factor has it been in winning for the United States the fulfillment of the prophecy of James Otis: "The world is at the eve of the highest scene of earthly power and grandeur that has ever yet been displayed to the view of mankind. Who will win the prize is with God." Yes, it was with God, and to the United States he awarded it.
These simple statements of the Constitution are sufficient to show the principles to which this government was committed by the founders. Other public documents drafted by these same men, and private letters written by them, might be cited as further allegation on this point; but such would be superfluous.
THE SENTIMENT OF THE CHRISTIAN MINISTRY AT THE TIME OF THE BIRTH OF THE NATION.
The principles governing the American Revolution were conceived in the Declaration of Independence and given birth to in the Federal Constitution. During the period which is adorned by these two remarkable productions of the genius of diplomacy and statecraft, the ministers of the Christian religion as a rule seemed to have been uncompromisingly opposed to any interference on the part of the civil power in religious matters. They were strenuous advocates of that immortal doctrine that the government of the United States IS AND OF RIGHT OUGHT TO BE FREE AND INDEPENDENT OF ALL ECCLESIASTICAL OR RELIGIOUS CONNECTION, INTERFERENCE, OR CONTROL.
The Declaration of Independence had no sooner been heralded abroad than the Presbyterians of Virginia memorialized the government to "remove every species of religious bondage." Some of the sentiments of that memorable document were expressed as follows:—
We would also represent that dissenters from the Church of England in this country have ever been desirous to conduct themselves as peaceable members of the government, for which reason they have hitherto submitted to various ecclesiastical burdens and restrictions that are inconsistent with equal liberty. . . . In this enlightened age, and in a land where all of every denomination are united in the most strenuous efforts to be free, we hope and expect that our representatives will cheerfully concur in removing every species of religious as well as civil bondage. Certain it is that every argument for civil liberty gains additional strength when applied to liberty in the concerns of religion; and there is no argument in favor of establishing the tenets of Mohammed by those who believe the Alcoran; or, if this be not true, it is at least impossible for the magistrate to adjudge the right of preference among the various sects that profess the Christian faith, without erecting a claim to infallibility, which would lead us back to the Church of Rome. . . .
We beg leave farther to represent that religious establishments are highly injurious to the temporal interests of any community. Without insisting upon the ambition and the arbitrary practices of those who are favored by government, or the intriguing, seditious spirit which is commonly excited by this, as well as by every other kind of oppression, such establishments greatly retard population, and, consequently, the progress of arts, sciences, and manufactures.
Neither can it be made to appear that the gospel needs any such civil aid. We rather conceive that, when our blessed Saviour declares that his kingdom is not of this world, he renounces all dependence upon State power; and as his weapons are spiritual, and were only designed to have influence on the judgment and heart of men, we are persuaded that if mankind were left in quiet possession of their inalienable religious privileges, Christianity, as in the days of the apostles, would continue to prevail and flourish in the greatest purity by its own native excellence, and under the all-disposing providence of God.4Therefore we ask no ecclesiastical establishments for ourselves; neither can we approve of them when granted to others.
The result of these pleadings was that State aid was discontinued to the Episcopalian Church. Soon after an attempt was made to have a law enacted to provide for the maintenance of ministers of all denominations. This was also strenuously opposed by the Presbyterians, Baptists, and the Quakers, whose memorial contained the following statements, worthy of preservation:—
The only proper objects of civil government are the happiness and protection of men in the present state of existence, the security of life, liberty, and property of the citizens, and to restrain the vicious and to encourage the virtuous by wholesome laws, extended to every individual; but that the duty we owe to our Creator and the manner of discharging it, can only be directed by reason and conviction, and is nowhere cognizable 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 own consciences, is an inalienable right.
The synod of the Presbyterians of New York and Philadelphia, a denomination inflexibly devoted to its own creed, in their pastoral letter of May, 1873, published their joy that 'the rights of conscience are inalienably secured and interwoven with the very constitutions of the several States.'
In 1788, when the proposed Constitution was at bar before the Massachusetts Convention, 'a farmer of Worcester County complained: 'There is no provision that men in power should have any religion; a Papist or an infidel is as eligible as Christians.' John Brooks and Parsons spoke on the other side; and Daniel Shute, the minister of Hingham, said: 'No conceivable advantage to the whole will result from a test.' William Jones, of Maine, rejoined: 'It would be happy for the United States if our public men were to be of those who have a good standing in the church.' Philip Payson, the minister of Chelsea, retorted: 'Human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. A religious test, as a qualification for office, would have been a great blemish.'
On February 1, in the same convention, Rev. Isaac Backus, the minister for Middleborough, and one of the finest of New England historians, arose and said: 'Mr. President, I have said very little to this honorable convention; but I now beg leave to offer a few thoughts upon some points in the Constitution proposed to us, and shall begin with the exclusion of any religious test. Many appear to be much concerned about it; but nothing is more evident, both in reason and the holy Scriptures, 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 essential prerogatives of our Lord Jesus Christ.'
It will be seen from the above statements that it was the Christian ministry which steadfastly opposed the entrance to the domain of morals by the civil power. This fact is rendered the more remarkable on account of the great deflection from that immortal platform that there has since been among Christian ministers of the same denominations.
AGITATION FOR RELIGIOUS LAWS COMMENCED.
During the period between 1810-15 petitions and protests came pouring into Congress with reference to the handling of the U. S. mails on Sunday. On account of the disturbed state of the country, the war with England, and the generally dangerous political aspect, comparatively little notice was taken of these petitions. The government however refusing to alter the existing law, which provided for the opening of post offices and the transfer of mails on Sunday.
In the year 1829 a vigorous warfare was inaugurated by the clerical fraternity to induce Congress to prohibit the handling of the U. S. mails on the first day of the week, commonly called Sunday. Their memorials to Congress were referred to the Committee on Post-offices and Post-roads, and when the report of this committee was brought before the Senate, Richard M. Johnson, the chairman of the committee, stated that he believed that these petitions and memorials in regard to Sunday mails were but the entering wedge of a scheme to make this government religious, instead of a social and political institution, and that nothing was more improper than the interference of Congress in this matter. Some denominations, said he, considered one day most sacred, and some looked to another, and these petitions did in fact call upon Congress to settle what was the law of God. It was but the first step toward legislating upon religious grounds, and it made no sort of difference which was the day asked to be set apart, which day was to be considered sacred, whether it was the first day or the seventh, the principle was wrong.
From the report I quote the following paragraphs:—
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 molestation. Whatever may be the religious sentiments of citizens, and however variant, they are alike entitled to protection from the government, so long as they do not invade the rights of others. The transportation of the mail on the first day of the week, it is believed, does not interfere with the rights of conscience. The petitioners for its discontinuance appear to be actuated by a religious zeal, which may be commendable if confined to its proper sphere; but they assume a position better suited to an ecclesiastical than to a civil institution. They appear in many instances to lay down as an axiom that the practice is a violation of the law of God. Should Congress in legislative capacity adopt the sentiment, it would establish the principle that the Legislature is a proper tribunal to determine what are the laws of God. It would involve a legislative decision on a religious controversy, and on a point in which good citizens may honestly differ in opinion, without disturbing the peace of society or endangering its liberties. If this principle is once introduced, it will be impossible to define its bounds.
Among all the religious persecutions with which almost every page of modern history is stained, no victim ever suffered that for the violation of what government denominated the law of God. To prevent a similar train of evils in this country, the Constitution has wisely withheld from our government the power of defining the divine law. It is a right reserved to each citizen; and while he respects the rights of others, he cannot be held amenable to any human tribunal for his conclusions. Extensive religious combinations to effect a political object, are, in the opinion of the committee, always dangerous. This first effort of the kind calls for the establishment of a principle, which, in the opinion of the committee, would lay the foundation for dangerous innovations upon the spirit of the Constitution, and upon the religious rights of the citizens. If admitted, it may be justly apprehended that the future measures of the government will be strongly marked if not eventually controlled by the same influence. All religious despotism commences by combination and influence; and when that influence begins to operate upon the political institutions of the country, the civil power soon bends under it; and the catastrophe of other nations furnishes an awful warning of the consequence. 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 portion of citizens, however small. Despotic power may invade those rights, but justice still confirms them.
Resolved, That the committee be discharged from any further consideration of the subject.
The report and resolution were concurred in by the Senate.
This took place during the second session of the twentieth Congress.
In 1830, during the first session of the twenty-first Congress, the agitation concerning Sunday mails was renewed, and again Congress proved faithful to its trust and refused to legislate in the matter. Hon. R. M. Johnson, who was at this time chairman on the Committee on Post-offices and Post-roads, in the House, in his report stated that the committee might pass the argument of the petitioners, on the ground that the question referred to them 'does not come within the cognizance of Congress; but the perseverance and zeal with which the memorialists pursued their object seem to require a further elucidation of the subject.' And this Congress also concurred in the report of the committee. The sentiments of that patriotic body are well set forth in the following extracts from the report:—
If Congress shall, by the authority of law, sanction the measure recommended, it would constitute a legislative decision of a religious controversy, in which even Christians themselves are at issue. . . .
If the measure recommended should be adopted, it would be difficult for human sagacity to foresee how rapid would be the succession, or how numerous the train of measures which follow, involving the dearest rights of all,—the rights of conscience. . . .
If a solemn act of legislation shall, in one point, define the law of God, or point out to the citizen one religious duty, it may with equal propriety proceed to define every part of divine revelation, and enforce every religious observation, even to the forms and ceremonies of worship, the endowment of the church, and the support of the clergy. . . .
Do the petitioners allege that they cannot conscientiously participate in the profits on the mail contracts and post offices, because the mail is carried on Sunday? If this be their motive, then it is worldly gain that stimulates to action, and not virtue or religion. Do they complain that men less conscientious 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 observances, then their efforts ought to be resisted, as in their tendency fatal both to religious and political freedom. . . .
Resolved, That the committee be discharged from the further consideration of the subject.
Such was the action of Congress; but the spirit of the clergy was aroused to a point of irascibility which illy became followers of the meek and lowly Jesus. In Philadelphia they went so far as to stretch chains, secured by padlocks, across the roads on Sunday to prevent the passage of the mail coaches. And we have seen in print this very summer that the iron posts to which these chains were fastened are still to be seen by the side of some of the main roads entering Philadelphia.
The action of Congress in refusing to enter the domain of conscience was highly commended everywhere throughout the land, and the idea contained in the memorials of the so-called Christian people—ideas more befitting the twilight of despotism than the noonday of liberty—suffered the defeat which they deserved.
Such was the spirit of the times in 1829-30, and guided by faithful hands the ship of State sailed safely and proudly on.5The theory of the agitators at that time seemed to be that the promulgation of religious truth is one of the duties of government, as such. In the opinion of such, to say that the ends of the government are temporal and not spiritual, is equal to saying that the temporal welfare of the human race is of greater importance than the spiritual welfare. But this is a palpable error. 'The question,' says Macaulay, 'is not whether spiritual interests be or be not superior in importance to temporal interests, but whether the machinery that happens at any moment to be employed for the purpose of protecting certain temporal interests of a society be necessarily such a machinery as is fitted to promote the spiritual interests of that society. Without a division of labor the world could not go on. It is of very much more importance that men should have food than that they should have pianofortes. Yet it by no means follows that every pianoforte maker ought to add the business of a baker to his own; for if he did so, we should have both much worse music and much worse bread. It is of much more importance that the knowledge of religious truth should be wisely diffused than that the art of sculpture should flourish among us. Yet it by no means follows that the Royal Academy ought to unite with its present functions those of the Society for Promoting Christian Knowledge. . . . For the effect of such folly would be that we should have the worst possible Academy of Arts and the worst possible Society for the Promotion of Christian Knowledge. The community, it is plain, would be thrown into universal confusion if it were supposed to be the duty of every association which is formed for one good object to promote every other good object.'