Civil Government and Religion

CHAPTER V. RELIGIOUS LEGISLATION

THE proposed religious amendment to the national Constitution. Introduced into the United States Senate by Senator Blair, is not the only attempt that is being made to commit Congress to course of religious legislation. The proposed religious amendment to the Constitution was introduced May 25, 1888, but on May 21, 1888, the same Senator had introduced the following bill, which was read twice and referred to the Committee on Education and Labor.
“50th CONGRESS,
1st SESSION. S. 2983. CGRAS 65.1

“A Bill to secure to the people the enjoyment of the first day of the week, commonly known as the Lord’s day, as a day of rest, and to promote its observance as a day of religious worship. CGRAS 65.2

“Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That no person, or corporation, or the agent, servant, or employee of any person or corporation, shall perform or authorize to be performed any secular work labor, or business to the disturbance of others, works of necessity, mercy and humanity excepted; nor shall any person engage in any play, game or amusement, or recreation, to the disturbance of others, on the first day of the week, commonly known as the Lord’s day, or during any part thereof, in any territory, district, vessel, or place subject to the exclusive jurisdiction of the United States; nor shall it be lawful for any person or corporation to receive pay for labor or service performed or rendered in violation of this section. CGRAS 65.3

“SEC. 2. That no mail or mail matter shall hereafter be transported in time of peace over any land postal route, nor shall any mail matter be collected, assorted, handled, or delivered during any part of the first day of the week: Provided, That whenever any letter shall relate to a work of necessity or mercy, or shall concern the health, life, or decease of any person, and the fact shall be plainly stated upon the face of the envelope containing the same, the postmaster-general shall provide for the transportation of such letter. CGRAS 66.1

“SEC. 3. That the prosecution of commerce between the States and with the Indian tribes, the same not being work of necessity, mercy, or humanity, by the transportation of persons or property by land or water in such way as to interfere with or disturb the people in the enjoyment of the first day of the week, or any portion thereof, as a day of rest from labor, the same not being labor of necessity, mercy, or humanity, or its observance as a day of religious worship, is hereby prohibited; and any person or corporation, or the agent, servant, or employee of any person or corporation who shall willfully violate this section, shall be punished by a fine of not less than ten nor more than one thousand dollars, and no service performed in the prosecution of such prohibited commerce shall be lawful, nor shall any compensation be recoverable or be paid for the same. CGRAS 66.2

“SEC. 4. That all military and naval drills, musters, and parades, not in time of active service or immediate preparation therefor, of soldiers, sailors, marines, or cadets of the United States, on the first day of the week, except assemblies for the due and orderly observance of religious worship, are hereby prohibited; nor shall any unnecessary labor be performed or permitted in the military or naval service of the United States on the Lord’s day. CGRAS 66.3

“SEC. 5. That it shall be unlawful to pay or to receive payment or wages in any manner for service rendered, or for labor performed, or for the transportation of persons or property, in violation of the provisions of this act, nor shall any action lie for the recovery thereof, and when so paid, whether in advance or otherwise, the same may be recovered back by whoever shall first sue for the same. CGRAS 66.4

“SEC. 6. That labor or service performed and rendered on the first day of the week in consequence of accident, disaster, or unavoidable delays in making the regular connections upon postal-routes and routes of travel and transportation, the preservation of perishable and exposed property, and the regular and necessary transportation and delivery of articles of food in condition for healthful use and such transportation for short distances from one State, district, or Territory into another State, district or Territory as by local laws shall be declared to be necessary for the public good, shall not be deemed violations of this act, but the same shall be construed so far as possible to secure to the whole people rest from toil during the first day of the week, their mental and moral culture, and the religious observance of the Sabbath day.” CGRAS 67.1

The first section of this bill is contrary to the word of Christ. In enjoining the observance of the Lord’s day, it demands that men shall render to Caesar that which is the Lord’s. But Christ said, “Render therefore to Caesar the things which are Caesar’s and unto God the things that are God’s. That which is the Lord’s is not to be rendered to Caesar, but to the Lord. Caesar is civil government; therefore, we are not to render to civil government that which is the Lord’s; with that which is the Lord’s Caesar has nothing to do. Consequently no civil government can ever of right have anything to do, in legislative capacity, with the Lord’s day. Senator Blair’s bill, in legislating upon that which pertains to the Lord, plainly sets itself against the word of Christ, and is, therefore, anti-Christian. CGRAS 67.2

Again, this section declares that no person shall do any work, nor “engage in any play, game, or amusement, or recreation, to the disturbance of others, on the first day of the week, commonly known as the Lord’s day, or during any part thereof.” This leaves it entirely with the other man to say whether that which you do disturbs him; and that is only to make every man’s action on Sunday subject to the whim or caprice of his neighbor. And everybody knows that it requires a very slight thing to make a man an offender in the eyes of one who has a spite or a prejudice against him. At the Illinois State Sunday-law convention for 1888 (Nov. 20, 21), Dr. R. O. Post, of Springfield, made a speech on the subject of “Sunday Recreation,” in which he laid down the following rule on the subject:— CGRAS 67.3

“There is no kind of recreation that is proper or profitable on Sunday, outside of the home or the sanctuary.” CGRAS 68.1

Only let such a law as is embodied in this bill of Senator Blair’s, be of force where R. O. Post, D. D., is, and any kind of recreation outside of the home or the sanctuary would be sure to disturb him, and the one engaged in the recreation could be arrested and prosecuted. But, it may be argued, that no judge or jury would uphold any such prosecution. That is not at all certain, as we shall yet see; but whether or not it is so, it is certain that if your neighbor should say that what you did disturbed him, under such a law as that he could have you arrested, and put to the inconvenience and expense of defending yourself before the court. In 1887 the city of San Francisco, Cal., had an ordinance on another subject that embodies the very principle of this clause of the Blair Sunday bill. It read as follows:— CGRAS 68.2

“No person shall in any place indulge in conduct having a tendency to annoy persons passing or being upon the public highway, or upon adjacent premises.” CGRAS 68.3

It is easy to see that the principle of this ordinance is identical with that of the clause in the first section of the Blair bill, which forbids anything “to the disturbance of others.” CGRAS 68.4

While that San Francisco ordinance was in force, a man by the name of Ferdinand Pape was distributing some circulars on the street, which “annoyed” somebody. He was arrested. He applied to the Superior Court for a writ habeas corpus, claiming that the offense charged against him did not constitute a crime, and that the ordinance making such action an offense was invalid and void, because it was unreasonable and uncertain. The report of the case says:— CGRAS 68.5

“The writ was made returnable before Judge Sullivan, and argued by Henry Hutton in behalf of the imprisoned offender. Disposing of the question, the Judge gave quite a lengthy written opinion, in which he passed a somewhat severe criticism upon the absurdity of the contested ordinance, and discharged Pape from custody. Said the Judge:— CGRAS 69.1

“‘If the order be law, enforceable by fine and imprisonment, it is a crime to indulge in any conduct, however innocent and harmless in itself, and however unconsciously done, which has a tendency to annoy other persons. The rival tradesman who passes one’s store with an observant eye as to the volume of business, is guilty of a crime, because the very thought of rivalry and reduction of business has a tendency to annoy. The passing of the most lenient creditor has a tendency to annoy, because it is a reminder of obligations unfulfilled. The passing of a well-clad, industrious citizen, bearing about him the evidences of thrift, has a tendency to annoy the vagabond, whose laziness reduced him to a condition of poverty and discontent. The importunities of the newsboy who endeavors with such persistent energy to dispose of his stock, has a tendency to annoy the prominent citizen who has already read the papers, or who expects to find them at his door as he reaches home. He who has been foiled in an attempted wrong upon the person or property of another, finds a tendency to annoy in the very passing presence of the person whose honesty or ingenuity has circumvented him. And so instances might be multiplied indefinitely in which the most harmless and inoffensive conduct has a tendency to annoy others. If the language of the ordinance defines a criminal offense, it sets a very severe penalty of liberty and property upon conduct lacking in the essential element of criminality. CGRAS 69.2

“‘But it may be said that courts and juries will not use the instrumentality of this language to set the seal of condemnation on unoffending citizens, and to unjustly deprive them of their liberty and brand them as criminals. The law countenances no such dangerous doctrine, countenances no principle so subversive of liberty, as that the life or liberty of a subject should be made to depend upon the whim or caprice of judge or jury, by exercising a discretion in determining that certain conduct does or does not come within the inhibition of criminal action. The law should be engraved so plainly and distinctly on the legislative tables that it can be discerned alike by all subjects of the commonwealth, whether judge upon the bench, juror in the box, or prisoner at the bar. Any condition of the law which allows the test of criminality to depend on the whim or caprice of judge or juror, savors of tyranny. The language employed is broad enough to cover conduct which is clearly within the Constitutional rights of the citizen. It designates no border-line which divides the criminal from the non-criminal conduct. Its terms are too vague and uncertain to lay down a rule of conduct. In my judgment, the portion of the ordinance here involved is uncertain and unreasonable.’” CGRAS 70.1

This decision applies with full force to Senator Blair’s proposed national Sunday law. Under that law, all that would be necessary to subject any person to a criminal prosecution, would be for him to engage in any sort of play, game, amusement, or recreation on Sunday; because the National Reformers are as much in favor of this Sunday law as they are in favor of the Blair religious amendment to the Constitution, and there are many of those rigid National Reformers who would be very much “disturbed” by any amusement or recreation indulged in on Sunday, however innocent it might be in itself. And it is left entirely to the whim or the caprice of the “disturbed” one, or of the judge or jury, to say whether the action really has or has not disturbed him. CGRAS 70.2

The California decision is, that such a statute “sets a very severe penalty of liberty and property upon conduct lacking in the essential element of criminality.” California courts “countenance no such dangerous doctrine, countenance no principle so subversive of liberty,” or which so “savors of tyranny,” as that which is embodied in the Blair Sunday bill. CGRAS 70.3

Section 4 is directly in the line of Constantine’s Sunday legislation. He, however, went a step farther, and caused his soldiers to parade expressly for worship on Sunday, and wrote out a prayer which he had them all repeat at a given signal. Something like this might appropriately follow, should this bill become a law; because, as religious observance and religious worship are the objects of the bill, why should not the soldiers be required to pray on Sunday as well as otherwise to observe the day religiously? CGRAS 71.1

We shall not undertake to comment on every section of the bill, but Section 5 deserves to be particularly noticed. This section provides that if any person works for any other person on Sunday, and receives payment for it at any time, then any person in the wide world, except the parties concerned, can enter suit, and recover the money so paid. If you work for me on Sunday, and I pay you for it, then the first man that finds it out can sue you and get the money. That is what the bill says. When wages are paid for Sunday work, “whether in advance or otherwise, the same may be recovered back by Whoever shall first sue for the same.” Whoever is a universal term. Therefore, this bill deliberately proposes that when any man who is subject to the exclusive jurisdiction of the United States, receives payment for work done on Sunday, except for work of necessity or mercy, he may be sued for that money by whoever first learns that he has received it, and that person shall get the money. CGRAS 71.2

To think that any such legislation as is embodied in this section should ever be thought of by any sane person is sufficiently astonishing; but that it should not only have been thought of, but should have been embodied in a bill, and soberly introduced into the United States Senate, is simply astounding. It almost surpasses belief. But here are the facts which demonstrate that such things have been done in this land of liberty, in this year of the nineteenth century. When the time of a United States senator is employed in such legislation as that, then whose liberties are secure? CGRAS 71.3

The last section shows the object of the entire bill; and that is, “to secure to the whole people rest, ...and the religious observance of the Sabbath day.” No one, therefore, need attempt to evade the force of objections against this bill by saying that it is not the religious, but the civil, observance of the day that is required; because it is plainly declared in the bill itself, that it is not only to secure rest to all the people, but that it is also to secure the religious observance of the Sabbath day. There is not a single reference in the bill to any such thing as the civil observance of the day. The word civil is not used in the bill. It is a religious bill wholly. The title of the bill declares that its object is to secure to the people the enjoyment of the Lord’s day as a day of rest, “and to promote it observance as a day of religious worship.” The first section defines the Lord’s day; the second section refers to the day as one of worship and rest; the third section refers to it as a day of religious worship; the fourth section refers to its observance as that of religious worship; and the sixth section plainly declares, what is apparent throughout, that the object of the bill is “to secure to the whole people rest, ...and the religious observance of the Sabbath day,” on the first day of the week. CGRAS 72.1

It is the religious observance of the day that its promoters, from one end of the land to the other, have in view. In the Washington Sunday convention, Dec. 12, 1888, Dr. Crafts said:— CGRAS 72.2

“Taking religion out of the day, takes the rest out.” CGRAS 73.1

In the “Boston Monday Lectures,” 1887, Joseph Cook, lecturing on the subject of Sunday laws, said:— CGRAS 73.2

“The experience of centuries shows, however, that you will in vain endeavor to preserve Sunday as a day of rest, unless you preserve it as a day of worship. Unless Sabbath observance be founded upon religious reasons, you will not long maintain it at a high standard on the basis of economic and physiological and political considerations only.” CGRAS 73.3

And in the Illinois State Sunday convention held in Elgin, Nov. 8, 1887, Dr. W. W. Everts declared Sunday to be “the test of all religion.” CGRAS 73.4

Sunday is a religious institution wholly; Sunday legislation, wherever found, is religious legislation solely; and as we have seen, Senator Blair’s Sunday bill does not pretend to be anything else than religious legislation. Being therefore as it is, religious legislation, it is clearly unconstitutional. In proof of this, we submit the following considerations:— CGRAS 73.5

All the powers of Congress are delegated powers. It has no other power; it cannot exercise any other. Article X. of Amendments to the Constitution expressly declares that.— CGRAS 73.6

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” CGRAS 73.7

In all the powers thus delegated to Congress, there is no hint of any power to legislate upon any religious question, or in regard to the observance of any religious institution or rite. Therefore, Senator Blair’s Sunday bill, being a religious bill, is unconstitutional; and any legislation with regard to it will be unconstitutional. More than this, Sunday being a religious institution, any legislation by Congress in regard to its observance, will be unconstitutional as long as the United States Constitution shall remain as it now is. Nor is this all. The Nation has not been left in doubt as to whether the failure to delegate this power was or was not intentional. The first Amendment to the Constitution, in declaring that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” shows that the failure to delegate such power was intentional, and makes the intention emphatic by absolutely prohibiting Congress from exercising any power with regard to religion. It is impossible to frame a law on the subject of religion that will not in some way prohibit the free exercise of religion. Therefore the first Amendment to the Constitution absolutely prohibits Congress from ever making any law with regard to any religious subject, or the observance of any religious rite or institution. Senator Blair’s bill, being a religious bill, is shown by this second count to be unconstitutional. CGRAS 73.8

The National Reformers know and have been contending for twenty-five years that for Congress to make any Sunday laws would be unconstitutional. Yet the National Reform Association is one of the most prominent agencies in urging forward Senator Blair’s national Sunday bill. And this only shows that they are willing to resort to unconstitutional means to secure their coveted power, and to accomplish their purposes. As for Dr. Crafts and his fellow-workers, the W. C. T. U., etc., whether or not they know it to be unconstitutional, we do not know. Whether they would care, even though they did know, we are not prepared to say, for this reason: In the announcements of the Washington national Sunday convention, Dec. 11-13, 1888, it had been stated that the church in which the convention was to meet would be festooned with the names of six millions of petitioners; but at the very beginning of the first meeting, it was stated that there were fourteen millions of them. A question was sent up asking how the number could have grown so much larger so suddenly. Mrs. Bateham was recalled to the platform to answer the question, and when she answered it, the cause of such a sudden and enormous growth was explained by the fact that Cardinal Gibbons had written a letter indorsing the Blair bill, and solely upon the strength of his name, seven million two hundred thousand Catholics were counted as petitioners. CGRAS 74.1

This was not an entire answer to the question, because the Cardinal’s letter did not authorize any such use of it as they had made, at least so much of it as was made public did not. The whole of the letter was not made public, because, Dr. Crafts said, it was for the Senate Committee. But so much of it as was read merely referred to the action of the Baltimore Council in commanding a stricter observance of Sunday, and said:— CGRAS 75.1

“I am most happy to add my name to those of the millions of others who are laudably contending against the violation of the Christian Sabbath by unnecessary labor, and who are endeavoring to promote its decent and proper observance by judicious legislation.” CGRAS 75.2

This was all. He said, “I am happy to add my name,“ etc. He did not say that he added, or that he wished to add, seven million two hundred thousand others with his name, or in his name. But the overweening anxiety of these Christian Protestant (?) Sunday-law workers for petitions, was so great that, without a twinge, they could and did multiply one Catholic name into seven million two hundred thousand and one. Yet this was not so much to be wondered at, because the same principle had been acted upon before throughout the country, and when five hundred petitioners could be made out of one hundred, and two hundred and forty thousand out of two hundred and forty, it was perfectly easy and entirely consistent to make seven million two hundred thousand and one out of one. CGRAS 75.3

This thing was perfectly consistent also with the principle in another point. The petition read: “We, the undersigned, adult residents of the United States, twenty-one years of age or more, hereby petition,” etc. In counting these seven million two hundred thousand petitioners in behalf of the Sunday law, they thereby certified that all these were Catholics “twenty-one years of age or more.” But there was not a man in that convention, and there is not a woman in the Woman’s Christian Temperance Union, who does not know that there are not that many Catholics in the United States “twenty-one years of age or more.” They virtually certified that all the Catholics in the United States are “twenty-one years of age or more,” for they distinctly announced that “all the Roman Catholics” were petitioning for the Sunday law. But when they had virtually certified the same thing of the Protestant churches throughout the country, why should they not go on and swing in “all the Roman Catholics” in the same way? They could do the one just as honestly as they could do the other. When men and women professing themselves to be Protestant Christians will do such things as that to carry the Catholic Church with them, it is not to be wondered at if they should be willing to resort to unconstitutional means to make their religious zeal effective in national law. CGRAS 76.1

But when people professing to be Protestant Christians will do such things as that to carry with them the weight of the Catholic Church, is it not time they ceased to call themselves Protestants? And when they will do such things for any purpose, is it not about time they should cease to call themselves Christians? Christianity means honesty. CGRAS 76.2

One more consideration just here: Is it consistent with either Protestant religious principles or American Constitutional principles to recognize the propriety of one man’s absorbing into himself the personality of seven million two hundred thousand people, as they have granted to Cardinal Gibbons in this case? CGRAS 77.1

By the evidences, logical, legal, Constitutional, and scriptural, which we have presented in this chapter, it is demonstrated that the Blair national Sunday bill is uncertain and unreasonable; that it is subversive of liberty, and savors of tyranny; and that it is unconstitutional and anti-Christian. CGRAS 77.2