Arguments on the Breckinridge Sunday Bill

AN ACT TO PUNISH BLASPHEMERS, SWEARERS, DRUNKARDS, AND SABBATH-BREAKERS, AND FOR REPEALING THE LAWS HERETOFORE MADE FOR THE PUNISHING OF SUCH OFFENDERS

Be it enacted, By the right honorable, the lord proprietor, by and with the advice and consent of his lordship’s governor, and the Upper and Lower Houses of Assembly, and the authority of the same, that if any persons shall hereafter, within this province, wittingly, maliciously, and advisedly, by writing or speaking, blaspheme or curse God, or deny our Saviour Jesus Christ to be the Son of God, or shall deny the Holy Trinity, the Father, Son, and Holy Ghost, or the Godhead of any of the three persons, or the unity of the Godhead, or shall utter any profane words concerning the Holy Trinity, or any of the persons thereof, and shall be thereof convict by verdict, or confession, shall for the first offense be bored through the tongue and fined twenty pounds sterling to the lord proprietor, to be applied to the use of the county where the offense shall be committed, to be levied on the offender’s body, goods, and chattels, lands or tenements, and in case the said fine cannot be levied, the offender to suffer six months’ imprisonment without bail or mainprise; and that for the second offense, the offender being thereof convict as aforesaid, shall be stigmatized by burning in the forehead with the letter B, and fined forty pounds sterling to the lord proprietor, to be applied and levied as aforesaid, and in case the same cannot be levied, the offender shall suffer twelve months’ imprisonment without bail or mainprise; and that for the third offense, the offender being convict as aforesaid, shall suffer death without the benefit of the clergy. ABSB 69.4

SEC. 2. And be it enacted, That every person that shall hereafter profanely swear or curse in the presence and hearing of any magistrate, minister, the commissary-general, secretary, sheriff, coroner, provincial or county clergy vestry-man, church-warden, or constable, or be convicted thereof before any magistrate, by the oath of one lawful witness, or confession of the party, shall, for the first oath or curse, be fined two shillings and sixpence current money, and for every oath or curse after the first, five shillings like money, to be applied to the use aforesaid. ABSB 70.1

Sections 3 to 9 relate to drunkards and the enforcement of the law. ABSB 70.2

SEC. 10. And be it enacted, That no person whatsoever shall work or do any bodily labor on the Lord’s day, commonly called Sunday, and that no person having children, servants, or slaves, shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord’s day (works of necessity and charity always excepted), nor shall suffer or permit any children, servants, or slaves, to profane the Lord’s day by gaming, fishing, fowling, hunting, or unlawful pastimes or recreations; and that every person transgressing this act, and being thereof convict by the oath of one sufficient witness, or confession of the party before a single magistrate, shall forfeit two hundred pounds of tobacco, to be levied and applied as aforesaid. ABSB 70.3

SEC. 11. And be it likewise enacted, That no housekeeper shall sell any strong liquor on Sunday (except in cases of absolute necessity), or suffer any drunkenness, gaming, or unlawful sports, or recreations, in his or her house, on pain of forfeiting two thousand pounds of tobacco to his lordship, one-half to the use aforesaid, and the other half to him that will sue for the same, to be recovered by action of debt, bill, plaint, or information, wherein no essoin, protection, or wager of law shall be allowed. ABSB 71.1

SEC. 12. And be it enacted, That every parish clerk within this province shall procure a copy of this act, which the county clerks are hereby required to suffer the parish clerks to take without fee or reward, for which he shall be allowed in the parish fifty pounds of tobacco, and that the same shall be read four times in a year, viz., on some Sunday in March, in June, in September, and in December, by every minister within this province, in their respective parish churches, between divine service and sermon, on pain of forfeiting one thousand pounds of tobacco for every omission, one-half to the lord proprietor, for the use aforesaid, and the other half to him that will sue for the same, to be recovered by action of debt, bill, plaint, or information, wherein no essoin, protection, or wager of law shall be allowed.—Laws of the District of Columbia, pp. 136-138. ABSB 71.2

These statutes have never been either repealed or modified by any act of Congress. On the contrary, provision has been made for their strict enforcement. The “Revised Statutes of the District of Columbia” says:— ABSB 71.3

SEC. 335. It shall be the duty of the board of police at all times of the day or night within the boundaries of said police district. ABSB 71.4

.... .... .... .....

Ninth, To see that all laws relating to the observance of Sunday .... are promptly enforced; and, ABSB 72.1

Tenth, To enforce and obey all laws and ordinances in force in the District, or any part thereof, which are properly applicable to police or health, and not inconsistent with the provisions of this chapter.—Revised Statutes District of Columbia, p. 40. ABSB 72.2

It is perfectly plain therefore that the District of Columbia has a full and sufficient Sunday law. But there is a serious difficulty about its enforcement. Although, according to the act of Congress, all these laws are of force, they cannot all be enforced. The first one—the one relating to blaspheming—is clearly and doubly unconstitutional, in that (1) in forbidding a denial of the Trinity it presupposes an established religion and prohibits the free exercise of religion, and (2) it inflicts cruel and unusual punishments. ABSB 72.3

Then the Sunday statute being an inseparable part of the act, bears upon its very face the distinct religious features of all such legislation. The Sunday-law advocates therefore have not the courage to undertake the enforcement of a Sunday law that stands so distinctly and inseparably connected with the barbarisms of a religious despotism. Consequently they hope to get the provisions of this Sunday section separated from its original and proper connection, by advocating the civil Sunday, and securing the passage by Congress of an act to prevent persons being forced to labor on Sunday. ABSB 72.4

By comparing the Blair and the Breckinridge Sunday bills with the foregoing Sunday section, it is easy to see the family likeness. The Blair bill, section 5, reproduces that feature of the old law, section II, which proposes to hire people to sue the man who works on Sunday, with this difference, however, that whereas the old law gave half the fine imposed for Sunday work, the Blair bill gives all the money that a person receives in payment for Sunday work. There is another point, in this reproduction of the old law that is worthy of notice; if it is not an intentional re-production, it is to say the least ABSB 72.5