|The Constitutional Principle: Separation of Church and State|
|Welcome||Contents||What's New||Search this site||
View Our Stats
Visitors since 7/15/1998
|Links||Guest Book||Contact Us|
|This site is eye friendly: Use your browser's view options to increase or decrease font size|
In 1911, William Addison Blakely annotated the Holy Trinity Decision when he compiled the legal reference book American State Papers Bearing On Sunday Legislation. His notes provide an excellent rebuttal to Justice Brewer's points.
Blakely's notes, shown as footnotes in the original document, are offset to allow you to follow both the actual decision and Blakely's commentary
SUPREME COURT OF THE UNITED STATES
| THE RECTOR, CHURCH
WARDENS, AND VESTRY-
MEN OF THE CHURCH
OF THE HOLY TRINITY,
Plaintiffs in Error,
THE UNITED STATES.
|In error to the Cir-|
cult Court of the
United States for
the Southern Dis-
trict of New York.
[DECIDED FEBRUARY 29, 1892.](1)
Mr. Justice Brewer delivered the opinion of the court.
Plaintiff in error is a corporation, duly organized and incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, 1887, an alien residing in England. In that month the plaintiff in error made a contract with him, by which he was to remove to the city of New York and enter into its service as rector
(1) The Church of the Holy Trinity v. U. S. , 143 U. S. , 457 (1892)
(2). The year 1892 was a remarkable one in the history of the United States, for in that year the national government, in all three of its branches,--judicial, legislative, and executive,--departed from the fundamental principle laid down in the Constitution of separation of religion and the state, and gave sanction to religious legislation and to the union of religion and the state; the Judicial, February 29, in the decision of the Supreme Court declaring this a "Christian nation;" the legislative, July 14 (the Senate) and July 9 (the House), in the legislation conditioning the five-million-dollar appropriation to the Chicago (1893) World's Columbian Exposition upon Sunday closing; and the executive, August 5, in the President of the United States, President Harrison, approving this legislation by attaching his signature to it.
While the real decision in this case, from a legal standpoint, was not that the United States is a "Christian Nation." but rather that; the alien labor law passed by Congress in 1887 referred only to manual labor, and not to professional, skilled, or "brain" labor, and hence could not apply to the case in question, the conclusion drawn from the arguments adduced in the obiter dictum portion of the opinion to prove that this is a "religious people "and "a Christian nation," has been seized upon by the advocates of religious legislation and of a union of religion and the state in this country, as support of the highest order, and as though this was the real question at issue in the case, and the decision of the court. Viewed from the standpoint of the obiter dictum alone, which, it may be observed, constitutes over one half of the entire decision, and from the use that is made of it, this is true. This portion of the opinion does declare that "this is a Christian nation;" and wherever the question of Sunday legislation, religious instruction in the public schools, or a religious amendment to the Constitution has come up since this decision was rendered, this obiter dictum. or so called "decision," of the Supreme Count of the United States, has been cited and appealed to. In effect, therefore, this was the decision of the Court.
And this view of the matter is confirmed by a statement from the justice himself who delivered the opinion. In 1905 Justice Brewer delivered three lectures on "The United States a Christian Nation," before the Haverford College, of Haverford. Pennsylvania. The second paragraph of the first lecture reads:
"This republic is classified among the Christian nations of the world. It was so formally declared by the Supreme Court of the United States. In the case of Holy Trinity Church v. United States, 143 United States, 471, that court, after mentioning various circumstances, added, 'These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.' " "The United States a Christian Nation," the John C. Winston Company, Philadelphia, 1905, page 11.
This is evidence that Justice Brewer himself regarded this declaration in this decision as at least a very conspicuous, if not the leading, feature of it.
and pastor; and, in pursuance of such contract, Warren did so remove and enter upon such service. It is claimed by the United States that this contract on the part of the plaintiff in error was forbidden by chapter 164, 23 Stat., 332, and an action was commenced to recover the penalty prescribed by that act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly (36 Fed. Rep., 303);and the single question presented for our determination is whether it erred in that conclusion.
The first section describes the act forbidden, and is in these words:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever to repay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its Territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories, or the District of Columbia."
It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were, to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added "of any kind;" and, further, as noticed by the Circuit Judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers, and domestic servants, strengthens the idea that every kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule that a thing may be within the letter of the statute and ?let not within the statute, because not within the spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. 'this is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Plowden, 205: "From such cases, it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter, they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances."
In Pier Co, v. Hannan (3 B. & Ald., 266), C. J. Abbott quotes from Lord Coke as follows: "Acts of Parliament are to be so construed as no man that is innocent or free from injury or wrong be, by a literal construction, punished or endangered." In the case of the State v. Clark (5 Dutcher, 96, 99), it appeared that an act had been passed making it a misdemeanor to willfully break down a fence in the possession of another person. Clark was indicted under that statute. The defense was that the act of breaking down the fence, though willful, was in the exercise of a legal right to go upon his own lands. The trial court rejected the testimony offered to sustain the defense, and the Supreme Court held that this ruling was error. In its opinion the court used this language: "The act of 1855, in terms, makes the willful opening, breaking down, or injuring of any fences belonging to or in possession of any other person a misdemeanor. In what sense is the term willful used? In common parlance, willful is used in the sense of intentional, as distinguished from accidental or involuntary. Whatever one does intentionally he does willfully. Is it used in that sense in this act? Did the Legislature intend to make the intentional opening of a fence for the purpose of going upon the land of another, indictable if done by permission or for a lawful purpose? . We cannot suppose such to have been the actual intent. To adopt such a construction would put a stop to the ordinary business of life. The language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed." In United States v. Kirby (7 Wall., 482, 486), the defendants were indicted for the violation of an act of Congress, providing "that if any person shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense Day a fine not exceeding $100." The specific charge was that the defendants knowingly and willfully retarded the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty, and also in like manner retarded the steamboat General Buell, at that time engaged in carrying the mail. To this indictment the defendants pleaded specially that Farris had been indicted for murder by a court of competent authority in Kentucky; that a bench warrant had been issued and placed in the hands of the defendant Kirby, the sheriff of the county, commanding him to arrest Farris and bring him before the court to answer to the indictment; and that in obedience to this warrant, he and the other defendants, as his posse, entered upon the steamboat General Buell and arrested Farris, and used only such force as was necessary to accomplish that arrest. The question as to the sufficiency of this plea was certified to this court, and it was held that the arrest of Farris upon the warrant from the State Court was not an obstruction of the mail, or the retarding of the passage of a carrier of the mail, within the meaning of the act. In its opinion the court says: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted that whoever drew blood in the streets should be punished with the utmost severity, did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, 'for he is not to be hanged because he would not stay to be burnt.' And we think a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder." The following cases may also be cited: Henry v. Tilson (17 Vermont, 479); Ryegate v. Wardsboro (30 Vermont, 746); Ex parte Ellis (11 California, 220); Ingraham v. Speed (30 Mississippi, 410); Jackson v. Collins (3 Cowen, 89); People v. Insurance Company (15 Johns, 358); Burch v. Newbury (10 New York, 374); People ex rel. v. Comrs., etc. (95 New York, 554, 558);people ex rel. v. Lacombe (99 New York, 43, 49); Canal Co. v. Railroad Co. (4 Gill & Johnson, 152); Osgood v. Breed (12 Massachusetts, 5251 530); Wilbur v. Crane (13 Pick., 284); Gates v. National Bank (100 United States, 239).
Among other things which may be considered in determining the intent of the Legislature is the title of the act. We do not mean that it may be used to add or to take from the body of the statute (Hadden v. The Collector, 5 Wall., 107); but it may help to interpret its meaning. In the case of United States v. Fisher (2 Cranch, 358, 386), Chief Justice Marshall said: "On the influence which the title ought to have in construing the enactment clauses much has been said; and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the Legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration;" and in the case of the United States v. Palmer (3 Wheaten, 610, 631)1 the same judge applied the doctrine in this way: "The words of the section are in terms of unlimited extent. The words 'any person or persons' are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the Legislature intended to apply them. Did the Legislature intend to apply these words to the subjects of a foreign power, who in a foreign ship may commit murder or robbery on the high seas? The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the Legislature. The title of this act is, 'An Act for the punishment of certain crimes against the United States.' It would seem that offenses against the United States, not offenses against the human race, were the crimes which the Legislature intended by this law to punish."
It will be seen that words as general as those used in the first section of this act were by that decision limited, and the intent of Congress with respect to the act was gathered partially, at least, from its title. Now, the title of this act is, "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories, and the District of Columbia." Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title, indicates an exclusion from its Penal provisions of all contracts for the employment of ministers, rectors, and pastors.
Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the Legislative body. (United States v. Railroad Company, 91 U. S., 72, 79·) The situation which called for this statute was briefly but fully stated by Mr. Justice Brown, when, as district judge, he decided the case of United States v. Craig (28 Fed. Rep., 795, 798): "The motives and history of the act are matters of common knowledge. It has become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts, by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level of the assisted immigrant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage."
It appears, also, from the petitions, and in the testimony presented before the committees of Congress, that it was this cheap, unskilled labor which was making the trouble, and the influx of which Congress sought to prevent. It was never suggested that we had in this country a surplus of brain toilers, and, least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of Congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the act.
A singular circumstance, throwing light upon the intent of Congress, is found in this extract from the report of the Senate Committee on Education and Labor, recommending; the passage of the bill: "The general facts and considerations which induce the committee to recommend the passage of this bill are set forth in the report of the Committee of the House. The committee report the bill back without amendment, although there are certain features thereof which might well be changed or modified, in the hope that the bill may not fail of passage during the present session. Especially would the committee have otherwise recommended amendments, substituting for the expression 'labor and service,' whenever it occurs in the body of the bill, the words 'manual labor' or 'manual service,' as sufficiently broad to accomplish the purposes of the bill, and that such amendments would remove objections which a sharp and perhaps unfriendly criticism may urge to the proposed legislation. The committee, however, believing that the bill in its present form will be construed as including only those whose labor or service is manual in character, and being very desirous that the bill become a law before the adjournment, have reported the bill without change." (6059 Congressional Record, 48th Congress.) And referring back to the report of the Committee of the House, there appears this language: "It seeks to restrain and prohibit the immigration or importation of laborers who would have never seen our shores but for the inducements and allurements of men whose only object is to obtain labor at the lowest possible rate, regardless of the social and material well-being of our own citizens, and regardless of the evil consequences which result to American laborers from such immigration. This class of immigrants care nothing about our institutions, and in many instances never even heard of them. They are men whose passage is paid by the importers; they come here under contract to labor for a certain number of years. They are ignorant: of our social condition, and, that they may remain so, they are isolated and prevented from coming in contact with Americans. They are generally from the lowest social stratum, and live upon the coarsest food and in hovels of a character before unknown to American workmen. They, as a rule, do not become citizens, and are certainly not a desirable acquisition to the body politic. The inevitable tendency of their presence among us is to degrade American labor, and to reduce it to the level of the imported pauper labor." (Page 5359 Congressional Record, 48th Congress.)
We find, therefore, that the title of the act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the committee of each house, all concur in affirming that the intent of Congress was simply to stay the influx of this cheap, unskilled labor.(3)
(3). Having shown that the law in question, as indicated by the intent of the lawmakers and all the circumstances attending the legislation, applied only to manual labor, and not to professional or brain labor, the court might well have closed the argument here and rendered the decision. There was really no need for all the lengthy argument which follows, concerning this being a "religious people" and a "Christian nation," in order to reach the conclusion finally arrived at. The case was proved, and the argument was complete, without this. This, therefore, was extra judicial; and. considering its character, coming from a coordinate branch of a government in which church and state are separate, it is not a little remarkable. To cite an array of documents and laws gathered almost wholly from times when, and from nations, colonies, and states in which, church and state were united, to prove that a law passed now by a government in which church and state are separate, could not apply to a certain case, would appear illogical at least.
But beyond all these matters no purpose of action against religion can be imputed to any legislation, State or national, because this is a religious people.(4)
(4). Because a people are religious is no reason why they may not make laws against religion. The most intolerant and persecuting laws the world has ever seen have been made by religious people. Nor because a nation is professedly "Christian" is such legislation impossible. All the leading European nations, save Turkey, are "Christian nations" so called; but which one has not made restrictive religious laws, or laws against religion? And even in a government like the United States, where church and stare are separate, laws may be made, and properly so, restricting certain practices or customs carried on in the name of religion, when those practices or customs are criminal or uncivil in character, as, for instance, laws against polygamy.
This is historically true. From the discovery of this continent to the present hour there is a single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, King and Queen of Castile," etc., and recites that "it is hoped that by God's assistance some of the continents and islands in the ocean will be discovered," etc. The first colonial grant, that made to Sir \\'alter Raleigh, in 1584, was from '' Elizabeth, by the grace of God, of England, Fraunce, and Ireland, queene, defender of the faith," etc., and the grant authorizing him to enact statutes for the government of the proposed colony provided that "they be not against the true Christian faith nowe professed in the Church of England." The first charter of Virginia, granted by King James I, in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: "We, greatly commending and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intended Desires."
Language of similar import may be found in the subsequent charters of that colony, from the same king, in 1609 and 1611; and the same is true of the various charters granted to the other colonies. In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant.(5)
(5) The character of the evidence cited in this decision to prove that this is a "Christian nation" and a "religious people" is worthy of note.. The first citation --the commission from Ferdinand and Isabella to Columbus -- is significant. The religion of these rulers was the Catholic religion; and not only so, but the Catholic religion with the Inquisition in full operation, for it was Ferdinand and Isabella who, under the generalship of Torquemada, established the Inquisition in Spain, and who, because Spain was a "Christian nation," sentenced to banishment, and decreed the confiscation of all goods of, every Jew in the nation who would not turn Catholic. This is ·the first historical evidence cited by the court to prove that this is a "Christian nation."
It is true that "the establishment of the Christian religion" was declared to be one of the "purposes" of the grants from Elizabeth and succeeding rulers of England to Sir Waiter Raleigh and others. But are the American people still bound by the purposes and intentions of those British rulers? Does Great Britain still rule America? After all these historical documents were issued, was there not the Declaration of Independence and the American Revolution? And after these was there not a new nation established, inaugurating "a new order of things:" and a national Constitution framed, declaring for religious freedom, and expressly repudiating religious legislation and religious establishments under the national government? What then could these ancient English grants of right have to do with the testing of the constitutionality of a law enacted by the Congress of the United States?
Coming to our own country, it will be noticed that constitutional declarations guaranteeing religious freedom are cited along with provisions and laws defining religious duties, making religious tests, providing for the support of religious teachers, and requiring religious observances, as equally proving this a "Christian nation." Then, referring to all the evidence thus cited, the court says: '' There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. "For the purpose of this decision, State Constitutions requiring religious tests mean the same as the United States Constitution when it says, 'No religious test shall ever be required as a qualification to any office,' etc. Even an English grant, one of whose purposes was "the establishment of the Christian religion." and the constitutional prohibition, "Congress shall make no law respecting an establishment of religion," have "one meaning," says this decision. Between such declarations it says there is no "dissonance." Nor does it fail to mention the laws "respecting the observance of the Sabbath,"-- the very laws which more than any others, have been instrumental in uniting church and state in the past, and been characteristic of such unions, both in America and Europe.
A Remarkable Omission.
That the writer of this decision should have searched and gathered from European documents, from colonial laws, and from State court decisions from the time of Columbus to recent years,-- declarations so utterly at variance with the American doctrine of the separation of church and state--and omitted entirely all reference to those famous state documents, petitions, remonstrances, and memorials bearing on religious liberty produced between the signing of the
Declaration of Independence and the adoption of the United States Constitution when the national government was being formed or to those other prominent State and national utterances touching the same subject since then, such as the famous Sunday Mail Reports adopted by Congress in 1829 and 1830. and the Supreme Court Decision of California in 1858, setting aside the State Sunday law as unconstitutional is indeed most remarkable. During the first period mentioned the national government was founded. During this time was fought out the great struggle for religious freedom which resulted in divorcing religion from civil government in this country, and in founding a nation without an established or legally declared religion. This decision passes this all by as though it were no part of American history, and as though it had never happened. Such an omission seems indeed remarkable.
The language in which Abraham Lincoln characterized a similar omission in Stephen A. Douglas's defense of the decision of the Supreme Court of the United States in 1856, in the Dred Scott case, written by Chief Justice Taney, in which the doctrine was set forth that a colored man "had no rights which the white man was bound to respect," seems eminently fitting here. He said: "I ask, How extraordinary a thing it is that a man who has occupied a seat on the floor of the Senate [or on the bench of the Supreme Court -- Ed.] of the United States, . . . pretending to give a truthful and accurate history of the slavery question [or of the question of religion and the nation-- Ed.] in this country, should so entirely ignore the whole of that portion of our history--the most important of all! Is it not a most extraordinary spectacle that a man should stand up and ask for any confidence in his statements who sets out as he does with portions of history, calling upon the people to believe that it is a true and fair representation, when the leading part, the controlling feature, of the whole history is carefully suppressed?
"And now he asks the community to believe that the men of the Revolution were in favor of his 'great principle,' when we have the naked history that they themselves dealt with this very subject matter of his principle, and utterly repudiated his principle -- acting upon a precisely contrary ground. It is as impudent and absurd as if a prosecuting attorney should stand up before a jury, and ask them to convict A as the murderer of B, while B was standing alive before them."
Though a decision of the Supreme Court of the United States, Lincoln said that that decision was wrong in principle. and that it should be reversed. So it may be said now of the "Christian nation's" decision of 1892. It is wrong in principle, and should be reversed. It certainly does not voice the religious liberty principles of the founders of the national government. In principle and as precedent it is pernicious and mischievous. This has been clearly demonstrated by the use that has already been made of it.
The celebrated compact made by the Pilgrims in the Mayflower, 1620, recites: "Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid."
The fundamental orders of Connecticut, under which a provisional government was instituted in ''1638-1639, commence with this declaration: "Forasmuch as it hath pleased the Almighty God by the wise disposition of his diuyne pruidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford, and Wethersfield are now cohabiting, and dwelling in and uppon the River of Conectecotte and the Lands thereunto adjoyneing; And well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouernment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Commonwealth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confereration togather to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the discipline of the Churches, wch according to the truth of the said gospell is now practiced amongst as."
In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: "Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare," etc.
Coming nearer to the present time, the Declaration of Independence recognizes the presence of the divine in human affairs in these words: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty, and the pursuit of happiness." "We, therefore, the Representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by authority of the good people of these Colonies, solemnly publish and declare," etc.; "And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually; pledge to each other our lives, our fortunes, and our sacred honor."
If we examine the Constitutions of the various States, we find in them a constant recognition of religious obligations. Every Constitution of every one of the forty-four States contains language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well being of the community. This recognition may be in the preamble, such as is found in the Constitution of Illinois, 1870: "We, the people of the State of Illinois, grateful to Almighty God for the civil, political, and religious liberty which he hath so long permitted us to enjoy, and looking to him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations," etc.
It may be only in the familiar requisition that all officers shall take an oath closing with the declaration "so help me God." It may be in clauses like that of the Constitution of Indiana, 1816, article 2, section 4: "The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to God." Or in provisions such as are found in articles 36 and 37 of the Declaration of Rights of the Constitution of Maryland, 1867: "That, as it is the duty of every man to worship God in such
manner as he thinks most acceptable to him, all persons are equally entitled to protection in their religious liberty: wherefore, no person ought, by any law, to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace, or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil, or religious rights, nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship, or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness or juror on account of his religious belief, provided he believes in the existence of God, and that, under his dispensation, such person will be held morally accountable for his acts, and be rewarded or punished there for, either in this world or the world to come; that no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in tile existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution." Or like that in articles 2 and 3 of Part I of the Constitution of Massachusetts, 1780: "It is the right as to well as the duty of all men in society, publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe. . As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the Public worship of God and of public instructions in piety, religion, and morality, therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the Legislature shall, from time to time, authorize and require the several towns, parishes, precincts, and other bodies Politic or n religious societies to make suitable provisions, at their own expense, for the institution of the Public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily." Or as in sections 5 and 14 of article 7 of the Constitution of Mississippi, 1832: "No person who denies the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this state. . . . Religion, morality, and knowledge being necessary to good government, the : preservation of liberty, and the happiness of mankind, schools, and the means of education, shall forever be encouraged in this State." Or by article 22 of the Constitution of Delaware, 1776, which required all officers, besides an oath of allegiance, to make and subscribe the following declaration: "I, A. B., do profess faith in God the Father, and in Jesus Christ his only Son, and in the Holy Ghost, one God, blessed forevermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration."
Even the Constitution of the United States, which is supposed to have little touch upon the private life of the individual, contains in the first amendment a declaration common to the Constitutions of all the States, as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," etc. And also provided in article I, section 7 (a provision common to many Constitutions), that the Executive shall have ten days (Sundays excepted) within which to determine whether he will approve or veto a bill.
There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons; they are organic utterances; they
speak the voice of the entire people. While, because of a general recognition of this truth, the question has seldom been presented to the courts, yet we find that in Updegraph v. The Commonwealth (11 Serg. & Rawle, 394· 400)1 it was decided that "Christianity, general Christianity, is and always has been, a part of the com mon law of Pennsylvania; . . . not Christianity with an established church, and tithes, and spiritual courts, but Christianity with liberty of conscience to all men." And in The People v. Ruggles (8 Johns., 290,
294, 295), Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: "The people of this State, in common with the people of this country, profess the general doctrines of Christianity as the rule punish at all, or to punish indiscriminately, the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors." And in the famous case of Vidal v. Girard's Executors (2 How., 127, 198), this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: "It is also said, and truly, that the If Christian religion is a part of the common law of Pennsylvania." (6)
(6). In the case of ex parte Newman, 9 California, 502, Justice Burnett, of the Supreme Court of California. said: "We often meet with the expression that Christianity is a part of the common law. Conceding that this is true, it is not perceived how it can influence the decision of a constitutional question. The Constitution of this State will not tolerate any discrimination or preference in favor of any religion; and, so far as the common law conflicts with this provision, it must yield to the Constitution. Our constitutional theory regards all religions, as such, equally entitled to protection, and all equally entitled to any preference. Before the Constitution they are all equal." While Christianity may be the religion of many or even of a majority of the people of the country, this, under the American system of government, gives no authority or warrant to any court, State or national, to say that Christianity is the religion of the nation or a part of the law of the land. See Jefferson and the Supreme Court of Ohio on the subject, ante pages 208 and 460.
If we pass beyond these matters to a view of American life as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath; with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. (7)
(7).. How this declaration on the part of the Supreme Court of the United States was received, and the light in which it has been regarded ever since by the National Reformers and other advocates of a union of church and state in this country, may be gathered from the following:
In the "Christian Statesman" of June 25, 1892, the official organ of the National Reform Association, one of the secretaries of the association said:
"Is not this the time to remember that the United States Supreme Court has officially declared (in a document that reads as if largely gathered from the National Reform Manual) that this is a Christian nation?"
The "Pearl of Days," the official organ of the American Sabbath Union, of May 7, 1892, said that this decision "establishes clearly the fact that our government is Christian," and added:
"This decision is vital to the Sunday question in all its aspects, and places that question among the most important issues now before the American people. . . . And this important decision rests upon the fundamental principle that religion is imbedded in the organic structure of the American government--a religion that recognizes, and is bound to maintain, Sunday as a day for rest and worship."
In its issue of May 21, 1892, the "Christian Statesman" said: "Christianity is the law of the land." "This is a Christian nation." U. S. Supreme Court, February 29, 1892. The Christian church, therefore, has rights in this country. Among those is the right to one day in seven protected from the assaults of greed, the god of the world, that it may be devoted to worship of the God of heaven and earth."
And just before Thanksgiving of that year. the same paper, under date of November 19, 1892, printed the following article:
"The Supreme Court Decision.
"The Greatest Occasion for Thanksgiving.
"This is a Christian nation.' That means Christian government, Christian laws, Christian institutions, Christian practices, Christian citizenship. And this is not an outburst of popular passion or prejudice. Christ did not lay his guiding hand there, but upon the calm. dispassionate, supreme judicial tribunal of our government. It is the weightiest, the noblest, the most tremendously far-reaching in its reconsequences of all the utterances of that sovereign tribunal. And that utterance is for Christianity, for Christ. 'A Christian nation!' Then this nation is Christ's nation, for nothing can be Christian that does not belong to him. Then his word is its sovereign law. Then the nation is Christ's servant. Then it ought to, and must, confess, love, ·and obey Christ. All that the National Reform Association seeks, all that this department of Christian politics works for, is to be found in the development of that royal truth, 'This is a Christian nation.' It is the hand of the second of our three great departments of national government ·throwing open a door of our national house, m one that leads straight to the throne of Christ.
"Was there ever a Thanksgiving day before that called us to bless our God for such marvelous advances of our government and citizenship toward Christ?
"‘O sing unto the Lord a new song; for he hath done marvelous things: his right hand, and his holy arm, hath gotten him the victory... Sing unto the Lord with the harp; with the harp, and the voice of a psalm.' "
This shows that these National Reformers and "Christian politicians" recognized in this decision a national judicial sanction for all they had ever asked in the way of religious legislation, and particularly in the way of Sunday legislation. And the fact that within only a few months after the rendering of this decision Congress passed its first Sunday legislation (see pages 370-377), and, that since then over fifty Sunday-law bills and something like half a dozen religious constitutional amendment bills have been introduced in Congress, is some evidence of its far-reaching effects and of how it helped to set the tide in this government in the wrong direction -- in the way of religious legislation.
And that Justice Brewer, who wrote the opinion, considered Sunday legislation as vitally connected with his conception of a "Christian nation," is evident from the fact that, in his little work of ninety-eight pages entitled "The United States a Christian Nation" published in 1905, after starting out with a citation to this decision of the Supreme Court, he refers to Sunday and Sunday laws no less than thirty-three times, and justifies the enforcement of Sunday observance by law upon the ground that "respect for Christianity implies respectful treatment of its institutions and ordinances;" that "the citizen who does not attend [church],--does not even share in the belief of those who do,-- ought ever to bear in mind the noble part Christianity has taken in the history of the republic;" and that, "the American Christian is entitled to his quiet hour." (Pages 54, 55) As well might the Jew, whose ancestors fought in the war of the Revolution, and through whom came to us the Bible and even the Christ, demand, upon the same ground, respect for Jewish institutions and ordinances, laws enforcing the universal observance of Saturday, and thus the American Jew's right to his "quiet hour."
In this same book Justice Brewer traces the origin of American Sunday laws in general to the Sunday law of Charles II, thus:
"By the English statute of 29 Charles II no tradesman, artificer, A workman, laborer, or other person was permitted to do or exercise any worldly labor, business, or work of ordinary calling upon the Lord's day, or any part thereof, works of necessity or charity only excepted. That statute, with some variations, has been adopted by most if not all the States of the Union." Pages 28, 29.
Every one who has ever read the law of Charles II knows that it is religious. And Justice Brewer was candid enough to admit the religious character of the American Sunday laws, based, as they are, upon this English law of Charles II, in the following words:
"Indeed, the vast volume of official action, legislative and judicial, recognizes Sunday as a day separate and apart from the others, a day devoted not to the ordinary pursuits of life. It is true in many of the decisions this separation of the day is said to be authorized by the police power of the State and exercised for purposes of health. At the same time, through a large majority of them there runs the thought of its being a religious day, consecrated by the commandment, 'Six days shalt thou labor, and do all thy work: but the seventh day is the Sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy man servant, nor thy maid servant, nor thy cattle, nor the stranger that is within thy gates.' " Id., pages 29, 30.
But if Sunday laws are religious, as here admitted, they are unconstitutional, and a correct, unbiased, and impartial application of American principles would so adjudge them in every State in the nation as well as under the national Constitution itself.
The whole trend, therefore, of the latter part of this decision, justifying and upholding religious laws and Sunday legislation, was away from American principles and from both the spirit and the letter of the Constitution of the United States, by which the Supreme Court is created, and the principles of which that Court is supposed to correctly interpret, uphold, and defend. No power is conferred by the Constitution upon any branch of the national government to make any pronouncement as to the religious character of the nation.
As Madison said: "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." Declaring, as it did, the national "creed," it did more than merely to "intermeddle" with religion. So far as could be done by a court decision, it united church and state in the United States, and created a religious establishment.
The reference in next to the last paragraph of the decision to a Jewish synagogue in this country contracting with some eminent foreign rabbi, and the repudiation of the idea that such contract would be void under the law in question, shows that it was not because this is a Christian nation any more than because it is a Jewish nation that no such ruling should hold; but because of the fact that labor of this kind was not the kind of labor the law referred to.
It is evident, therefore, that all this extended argument and array of proofs to show that this is a Christian nation was not only unnecessary, but irrelevant,--a gratuitous sandwiching in of a lot of National Reform, church and state argument because of the character of the case seemed to afford a convenient opportunity to do so,-- a revoicing in a national judicial decision, of the Un-American position taken by Justice Field in his dissenting opinion in the ex parte Newman case in California, in 1858. See page 434·
It may be a matter of interest just here to state that Justice Field was not only an uncle of Justice Brewer, but that both were members of the Supreme Court of the United States when this case came before that body.
While this decision was hailed with delight by National Reformers and the advocates of a union of church and state in this country, it is not all they wish. Thus, Dr. David McAllister, in the preface to his "Manual of Christian Civil Government," p.9, third ed.. says: "While our Supreme Court in the above-quoted decision has said incidentally that 'this is a Christian nation,' and while multitudes of our people also say so, the nation itself has not said so. It speaks directly in its fundamental law, the written Constitution of the United States, in which it proclaims its own character. And in that authoritative instrument there is no acknowledgment of Christ. In that confession of its political and moral character it does not say that it is Christian."
Only a complete overturning Of the great principle of religious liberty upon which he national government was founded will satisfy these American advocates of a national established religion. And when they succeed in accomplishing this, they may learn, when it is too late, that they have sold their birthright, and that there are others claiming priority of rights here, both as regards country and religion. But this decision meant a long step in the backward, downward course.
In an address on "The Church and the Government." delivered in the Foundry Methodist Episcopal Church, Washington, D. C., March 13, 1910, Bishop Earl Cranston, D. D., said: .' Suppose this were to be declared a Christian nation by a constitutional interpretation to that effect. What would that mean! Which of the two contending definitions of Christianity would the word " Christian indicate! -- The Protestant idea, of course, for under our system majorities rule, and the majority of Americans are Protestants. Very well. But suppose that by the additions or certain contiguous territory with twelve or more millions of Roman Catholics, the annexation of a few more islands with half as many more, and the same rate of immigration as now, the majority some years hence should be Roman Catholics.--who doubts for a moment that the reigning Pope would assume control of legislation and government?
He would say with all confidence and consistency, 'This is a Christian nation. It was so claimed from the beginning and so declared many years ago. A majority defined then what Christianity was, the majority will define now what Christianity now is and is to be.'
That 'majority' would be the Pope." "The Church and the Government," by Bishop Earl Cranston, pages 6, 7.
But this is just what the Supreme Court did in this decision. In so many words it declared this "a Christian nation," and, after citing first, Catholic. and then English church and state authority, cited the Constitution itself in support of the declaration.
And that the Papacy has its eye on this country, and is bending its energies to swing this nation back into the fold of the Catholic Church, is well known to all intelligent and observing men. And that the Papacy still holds to the doctrine of a union of church and state is also well known. In his letter to the bishops of France, dated February 11, 1906, Pope Plus X, opposing the position of the French government upon this question, said:
"That it is necessary to separate church and state is a thesis absolutely false,--a most pernicious error. Based in fact upon the principle that the state ought not to recognize any religious faith, it is, to begin with. deeply insulting to God; for the Creator of man is also the founder of human societies, and he maintains them as he does us. We owe him, therefore, not only private worship, but also a public and social worship in his praise." "Readings in Modern
European History," by Professors James Harvey Robinson and Charles A. Beard, of Columbia University, N. Y., page 229.
What reasoning! that public and social worship must be done through the store, or requires a union of church and state !
Regrettable as is the fact, and unintentional as it may have been, into the hands of an ecclesiastical power holding such views regarding church and state and religious liberty, was the Supreme Court playing when it declared this a "Christian nation."
In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?
Suppose in the Congress that passed this act some member had offered a bill which in terms declared that, if any Roman Catholic Church in this country should contract with Cardinal Manning to come to this country and enter into its service as pastor and priest; or any Episcopal Church should enter into a like contract with Canon Farrar; or any Baptist Church should make similar arrangements with Rev. Mr. Spurgeon; or any Jewish synagogue with some eminent rabbi, such contract should be adjudged unlawful and void, and the church making it be subject to prosecution and punishment, can it be believed that it would---have received a minute of approving thought or a single vote? Yet it is contended that such was in effect the meaning of this statute. The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the Legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts: under those circumstances, to say that, however broad the language of the statute may he. the act. although within the letter, is not within the intention of the Legislature, and, therefore, cannot be within the statute.
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.
Source of Information:
American State Papers Bearing On Sunday Legislation, Revised and Enlarged Edition, Compiled and Annotated by William Addison Blakely, Revised Edition Edited by Willard Allen Colcord, The Religious Liberty Association, Washington D.C. 1911, pp 487- 513.
Is the United States a Christian Nation? Holy Trinity and the Christian Nation Dicta, By Susan Batte, Esq.
The Supreme Court has Declared that the United States is a Christian Nation
Getting to Know Supreme Court Justice David J. Brewer
1892 U.S. Church of the Holy Trinity v U.S., 143 U.S. 457