WILL SWITZERLAND IMPRISON PASTOR HOLSER?
By W. H. McKee
At the hearing of the appealed case of Pastor Holser, of Basel, before the Federal Court,—the Swiss court of last resort,—the appeal was denied and the penalty of fine and imprisonment for Sunday labor in the publishing house under his charge, affixed by the Basel court, left in full force. The factory law under which Pastor Holser was arrested and convicted is a federal law, and it appears that the Federal Court has no power to construe a federal law, or to decide upon its constitutionality or unconstitutionality. That rests alone with the body that made the law,—the Federal Council. Therefore the result which has been had was a foregone conclusion from the first, there being really no judicial body having authority to revise the decision of the Basel Police Court on the important questions involved in this case, and really no body with authority to open the case at all after its decision by the Police Court, short of the Federal Council which made the law under which the action was brought. Then, however, a wrong which had been done, as in this case, could not be righted. The only thing possible now is for the Federal Council to interpret or repeal the defective law, that no one else may suffer injustice from it. Clearly, therefore, in cases brought before it involving the constitutionality of federal laws—not only those in reference to Sunday labor in factories, but all federal laws—the Police Court is actually the court of last resort. Nevertheless, the matter was given some attention by the federal judges. The sympathies of several of the judges were evidently with the appellant. At least one plainly saw the injustice worked by the law, and, had it been possible, would gladly have put himself on record on the side of justice. His voice was heard on the side of right, though he could do no more. There was a full bench, and all, except the president of the court, expressed their opinions and views on the subject, briefly. Judge Blaesi, of Solothurn, to whom the case had been referred, presented the matter before the court, reading some extracts from the text of the appeal, and giving a synopsis of the remainder. He said that Pastor Holser was not convicted because he was an Adventist, but because he had transgressed the Sunday law. A previous case, decided last summer, had made a precedent, and, according to that case, the court must refuse to hear the appeal. The fact that there is a federal Sunday law shows that Sunday laws are permissible under the Swiss constitution, and so not contrary to its provisions. A clause in the very article 49, which Mr. Holser claimed the Sunday violated, could be used to condemn him, for it was there declared that "religious belief could not free anyone from the performance of civil duties." (This clause was quoted in the appeal, and it was there shown that the observance of a religious rest day was not a civil duty. But of that point the judge made no mention.) The judge then moved that the decision of the Basel Police Court be sustained. Judge Cornaz, of Neufchatel, said that it could not be denied that the Sunday clause of the factory law rested on a religious basis. He argued that the State itself did not rest on Sunday, for it had its military exercises—more than that, much Sunday labor was performed by restaurants, stores, railways, etc., and hunting on Sunday was practiced in many cantons. In principle the Adventists were right, and were it possible to decide this case in their favor, that would be his vote. In view of the fact that all work does not cease on Sunday, that so much work is done, and that they are an orderly people, and in reality meet the intent of the law, the Basel police ought to have known how to have shut one eye in their case. He approved of the factory law in France, which left the rest day optional. But as it was not in the province of this court to remedy the case, the only recourse being to the Federal Council, he sustained the motion to reject the appeal. Judge Bezzola, of Graubuenden, could not agree with Judge Cornaz that Sunday rest stood on a religious basis; its foundation was politico-social, its object being to secure the workingman a rest day. The factory law designates Sunday because, as everybody rests on that day, it is better for the workingman that he should rest at the same time with all the others. We now have Sunday laws everywhere, and Sabbatarians must, "in God's name," accommodate themselves to the European social custom of resting on Sunday, according to the old saying:—
"Schick dich in die Welt hinein;
Denn dein Kopf ist viel zu klein
Dass die Welt sich schickt hinein."
(This triplet might be rendered thus: "Fit yourself into the world, for your head is much too small for the world to fit into it.") In concluding he called attention to the fact that Sunday hunting was already forbidden in several cantons, and said there would yet be a federal law on the subject. Judge Clausen, of canton Wallis, replied to the characterization of article 14 of the factory law as religious, by Judge Cornaz, saying that when the factory law was enacted both religious and politico-social factors were united, and he thought they could still continue to be united; that when the present state of the confederacy was considered, it must be admitted that the church still had something to say. It was not here as in some parts of France, yet even there they had to bow to the demands of Sunday. Judge Stamm, of Schaffhausen, said that his reason for supporting the motion to reject the appeal was that the Federal Court could only follow unconditionally the letter of the federal laws, and it was not within its jurisdiction, however desirable it might be, to consider whether a law is constitutional or not, and the court has nothing to do with the question of the violation of article 49 of the constitution; it is sufficient for it to know that article 14 of the factory law has been violated. Judge Morel, of St. Gallen, declared that it had never occurred to anyone to introduce a Sunday of the English or Puritan pattern into Switzerland; there was, therefore, no law or practice to show that there should be no Sunday work at all, but that the custom prevailed; that, as far as possible, there should be a common rest day. That which was of importance in this case, however, was that the appellant had violated the factory law, and in so doing had also violated the Sunday law of the Baselstadt, which was quite strict. He considered the sentence of the Basel court constitutional, and upheld its decision. Judge Blaesi stated, in addition, that he would have dismissed the case from consideration entirely, for the reasons suggested by Judge Stamm, but he considered "the case one that should be more deeply probed, as it concerned important questions of freedom of conscience, which were set forth in a pamphlet recently circulated in large numbers in all parts of the land." From the thoughts and views offered by the judges in the main, it can be seen that instead of probing the subject deeply the attention given it was so superficial as rather to deserve the name of scarifying than probing. It cannot be doubted, however, that when presented to the Federal Council the question will really be opened and its principles discussed. The court rejected the appeal without a dissenting voice. At this time Pastor Holser was making a circuit of the churches under his charge. When his appointments had been met he returned to his office in the publishing house at Basel, and to his regular duties there. He was there unmolested for five days, preaching on the Sabbath according to his usual custom, and going about the city in the pursuance of his ordinary duties. On the morning of the sixth day a notice was sent him from the police department requiring him to present himself at police headquarters, there being a clause in the order which stated that if voluntary compliance was not rendered the order would be enforced. To this order Pastor Holser replied in these words:— To the Police Department, Basel—
Your order to present myself October 23, 9 A.M., to begin three weeks' imprisonment, is at hand. In response I can only say that I am engaged in the service of the Lord and cannot leave his work without his order. This imprisonment is prescribed in consequence of my keeping the commandments of God as he has given them in his word. In doing this I have wronged no one, and have done nothing worthy of imprisonment. Were it for having committed an unjust act, I would present myself on an order to do so; but I cannot lay down the work of the Lord at the command of men for the misdemeanor (?) of having kept the ten commandments.
Respectfully, HENRY P. HOLSER. During the day the public collector called to collect the fine, but he was told very plainly and simply that a fine for keeping the commandments of God could not be paid. And now comes the answer to the question before written, in the title to this article, "Will Switzerland imprison Pastor Holser?" Just as I write this closing paragraph Pastor Holser comes to the door, in the charge of two officers, for a parting word and shake of the hand before he goes behind the bars of the city prison of Basel. No amount of superficial leniency in the way of non-interference while his case went to the Court of Appeals and to the Federal Court, nor any degree of personal consideration shown him in the manner of his arrest, can be pleaded in extenuation. The fact remains, which cannot be explained away: Switzerland has imprisoned Pastor Holser for keeping the commandments of God.