Specht v. Commonwealth

• Decision Date: 08 June 1848
• Citation: 8 Pa. 312
• Parties: SPECHT <I>v.</I> THE COMMONWEALTH.
• Court: Pennsylvania Supreme Court

8 Pa. 312

SPECHT v. THE COMMONWEALTH.

Supreme Court of Pennsylvania.

June 8, 1848.

IN error from the Court of Common Pleas of Franklin county.

June 8.

Stevens and Brady, for plaintiff in error.—This record raises the question of the constitutionality of the act of 22d April, 1794.

At common law it was no offence to transact innocent business on Sunday. It is made criminal by act of Assembly alone. That act of Assembly, we contend, violates the 3d section of the 9th article of the constitution of Pennsylvania.

We are aware that more than thirty years ago, this question was decided against us by the Supreme Court of this state, by two judges, one of whom was just closing a long life of usefulness, and was then of great age. The other was just entering upon his judicial career. But questions of much less importance to the happiness of society, and the unalienable rights of man, have been, not unfrequently, reconsidered by this court. An important principle of the law of evidence, which had stood the test of more than forty years, and of repeated deliberate decisions of this court, was lately reversed and totally changed in Post v. Avery, and subsequent cases, because it was believed to work injustice in questions of property. The legislature, as in this case, had refused to alter the law as established in Steele v. The Phœnix Insurance Company; and the court, in the exercise of an undoubted right, corrected it themselves. We are, therefore, bold to ask them to re-judge and correct the judgment of the Supreme Court in a question which deeply affects and grieves the consciences of inoffensive and pious men, eminent for honesty, peacefulness, and orderly conduct.

Does this act of Assembly "control or interfere with the rights of conscience?" It evidently treats the first day of the week as a holy, a sacred day; and it prohibits labour on that day, not for the purpose of giving rest to man, as a mere civil regulation, but because it profanes the Lord's day.

We have other holidays. We have political Sabbaths, such as the 4th of July, and 22d of February. We reverence them as days of great political events. But we do not enforce their observance by legislation. But the act in question compels all to observe Sunday as a sacred day. To oblige men to refrain from labour out of regard to its holiness, is to "control" their religious observance, as much as if they were ordered to kneel before the altar, or the images of the Saints. And to all those who conscientiously believe that it is not a holy day — that it is not the true Sabbath of the Lord, it is an "interference" with, and a constraint of their rights of conscience. It is no answer to say that the day of rest should be uniform among all. If it were a mere civil regulation, there might be some reason in it; but then it would be made a day of recreation — of relaxation; and most probably those days would not come so frequently. The French, when they discarded its religious character, when they worshipped the Goddess of Reason, and provided only for the rest of the people, fixed the tenth day. But I suppose it requires no other argument than reading the several acts upon this subject, to prove that our legislation looks to enforcing the religious observance of the day. If the legislature can direct that religious observance, then there is no limit to their power over religious subjects. If they can direct the people to stay at home quietly, they can direct them to go to church, and if they can direct them to attend church, they can indicate the church to be attended. In short, if they have any power over religious subjects, they have all power. Such power would be a perfect union of church and state, so much abhorred by the people of this republic. It would inevitably lead to religious persecutions, and finally to civil and religious tyranny.

The doctrine that the "Christian religion is a part of the common law," is, I suppose, the foundation and justification of this act. That doctrine was promulgated in the worst times, and by the worst men of a government that avowedly united church and state; in times when men were sent to the block or the stake on any frivolous charge of heresy. To deny transubstantiation or the supremacy of the Pope, was a capital offence under one reign; and to admit them was a capital offence under another. Men were punished as blasphemers for denying the divinity of our Saviour, because the "Christian religion was a part of the common law." Men were executed in great numbers by the civil power for denying the real presence, because that was a part of the Christian religion — and the Christian religion was a part of the municipal law. When the Protestants gained the ascendancy, to believe in the real presence was contrary to the Christian religion, and therefore a violation of the law, and punished by the secular arm. For it is truly observed: "That no set of men were ever found willing to suffer martyrdom themselves for conscience' sake, who would not inflict it upon others the moment they obtained power."

As late as the nineteenth century, this pernicious doctrine led Lord Eldon to decide that Unitarians may be punished as blasphemers at common law, and not treated as Christians, notwithstanding the repeal of the statute of 9 and 10 Will. 3: 3 Merivale, 353, Atty. Genl. v. Pearson.

How dangerous, therefore, is the apparently pious doctrine that the "Christian religion is a part of the common law!" If it be true, all who disbelieve that religion are habitual breakers of the law. The Jew, the Hindoo, the Pagan, are perpetual malefactors. They, of course, are beyond the protection of the law, or continually subject to punishment for conscience' sake. These consequences of the doctrine were very satisfactory to the English government, in its origin. They enabled the tyrants of the fifteenth and sixteenth centuries to find a convenient excuse for sending to the block any one who became obnoxious to them. If such tyrant were a Roman Catholic, the heresy of the reformation was sufficient. If he were a Protestant, adhering to the church of Rome was equally so. This lauded principle found ready advocates in such bloody tools of tyrants as Jeffries, Audley, and Rich.

What else was it but the doctrine "that the Christian religion was a part of the law," and to be enforced by the civil arm, that gave the Holy Inquisition such horrid force, and placed the civil and religious liberty, and the lives of nations of men, at the mercy of the bloodiest power that ever inflicted misery upon the human race, in the name of Demons or of Gods!

This convenient doctrine enabled Henry the Eighth to dispose of all whom he chose to call his enemies, whether they were learned and conscientious gentlemen, like Sir Thomas More, or were wives of whose beauty he was weary. His successor, after robbing all the Jews of the kingdom of all their wealth, either sent them to death or banished them from the empire. And he was right, if this principle be right, for they were always violating the law, and of course deserved punishment.

If this doctrine is to be the rule of action, where do you find its interpretation? Where are to be found adjudged decisions of what this law teaches, so that the people may escape the perils of its violation? Are they to be seen in the doings of the Council of Nice or the Diet of Augsburg? Are they in the bulls of Hildebrand or the writings of Luther? in the rigid doctrines of Calvin, or the more liberal opinions of Wesley? Does this part of the "common law" (adopted in Pennsylvania) command us to bow down before the image of the Virgin and the Saints; or, discarding all visible symbols, to worship the Unseen God? This doctrine must drive us for refuge to the infallible church of Rome, where the decrees of the Pope are the unerring rule of this part of the "common law."

The constitution of almost every state in the Union contains a section securing liberty of conscience.

The constitution of the United States, as originally adopted, had no such provision.

But the first Congress that met under it, added the following amendment: —

"Art. 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

This article is not as comprehensive as the one in the constitution of Pennsylvania.

It has already received a construction by both the Senate and House of Representatives of the United States, which has a strong bearing on the present question.

I think I may safely say, that the constitutions of the United States and of Pennsylvania are founded on no religion, but on purely civil considerations — on the unalienable rights of man; one of which is that man shall not interfere with the rights of conscience.

The constitution of South Carolina contains the following provision: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall hereafter be allowed within this state to all mankind: Provided, That liberty of conscience thereby declared, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state."

This provision, qualified by the proviso, is not nearly as strong as ours.

The city councils of Charleston passed an ordinance prohibiting, under penalty, all worldly employment on the Lord's day — "to preserve peace and good order within the city" — thus proposing to bring it within the proviso. In 1836, a Jew sold goods on Sunday, and was prosecuted under this ordinance. Judge Rice, a very able and learned jurist, decided that the ordinance was unconstitutional and void. The opinion is elaborate and able, but has since been reversed, on the strength of the proviso, in an opinion more pious than able: Law Rep. for May, 1848, p. 7.

Virginia had previously declared a similar ordinance of Richmond void.

The Supreme Court of Ohio, in the 15th vol. of her...