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    Mr. McKee—MR. CHAIRMAN, AND GENTLEMEN OF THE COMMITTEE: I present this brief in behalf of the National Religious Liberty Association. The name of this organization expresses its character. This order has organizations throughout the different States of the Union, also a national organization. I submit this brief in its behalf. [Presenting paper to Chairman, of which the following is a true copy.]ABSB 51.2

    To the Honorable Committee on the District of ColumbiaABSB 52.1

    GENTLEMEN: In submitting to you this brief, as a statement of some of the considerations why you are asked to report unfavorably upon House Bill 3854, entitled, “A bill to prevent persons from being forced to labor on Sunday,” your attention is called to these propositions:—ABSB 52.2

    1. The legislation asked is unconstitutional, and contrary to the spirit of American institutions.ABSB 52.3

    2. Waiving the question of unconstitutionality, Sunday laws already exist, in force and enforceable, in the District of Columbia, and the measure is one of cumulative legislation.ABSB 52.4

    Article First of the Amendments to the Constitution declares that “Congress shall make no law respecting an establishment of religion.”ABSB 52.5

    House Bill 3854 embodies a measure which Congress is asked to adopt, as a law governing the District of Columbia, over which Congress has sole jurisdiction. Therefore, if this measure has in view the establishment of the observance of a religious dogma, or the enforcement of religious reverence for a particular day, because of the supposed divine origin of the observance required, or because a larger or smaller proportion of citizens observe the day religiously, it is a religious measure, outside the pale of civil legislation, and Congress is incompetent to entertain it.ABSB 52.6

    Three points of internal evidence prove the bill to be religious in its inception, and in its intent:—ABSB 52.7

    First—The word “secular,” in the phrase “to perform any secular labor or business,” betrays the reverential spirit in which the bill is framed. The incongruity of the word, in such a connection, in a purely civil statute, will be perfectly patent if applied to a supposed measure, “To prevent persons from being forced to labor on the 4th of July,” or, “To prevent persons from being forced to labor on the 22nd of February.” The various antonyms—regular, religious, monastic, spiritual, clerical—of the word “secular,” show the character which this term gives to the bill, and unavoidably. No stronger circumstantial evidence could possibly be required than the unconscious testimony of this expression.ABSB 52.8

    Second—The words “except works of necessity or mercy” are subject, in a lesser degree, to the same construction. The character of phrases, as well as of human beings, may be determined by the company they keep, and this phrase is one which carries the mind immediately to the consideration of religious and Biblical exceptions made to the strict application of the divine law for the Sabbath. That is the source of the expression, and its course may be followed through all the religious laws for “Sabbath observance,” and the judicial interpretation of them, which have been had. The effect of this phrase, in connection with the preceding word “secular,” is conclusive.ABSB 53.1

    Third—The exemption clause contains the language, “Who conscientiously believe in and observe any other day.” What has a purely civil statute to do with the conscience of man, as regards his conscientious belief in, and observance of, a day of rest? The moment the domain of conscience is touched, as such, from that instant the measure is no longer civil. And if, as this exemption shows, there be a class to whose conscience this bill would work a hardship, and to whose religious convictions it would stand opposed, then, per contra, there is another class the consciences of whom the measure is intended to favor. It is, therefore, not only legislation on matters of conscience, but class legislation as well.ABSB 53.2

    More than this: What does an exemption clause presuppose? Is it not a civil or legal incapacity to meet the requirements of the law? If the incapacity arise with the domain of conscience, it is without the civil sphere, and the necessary conclusion is that the legislation is outside the jurisdiction of human law.ABSB 54.1

    These three points might be elaborated further, but this statement of them is sufficient to show that the bill bears within itself conclusive evidence of its religious character; and, if religious, it is not within the purview of congressional legislation, as contemplated by the Constitution.ABSB 54.2

    In measures, as in men, there is an ancestral spirit by which we may know them. What is the heredity of this bill?—Its progenitor in the Senate is the Blair Sunday-Rest bill, which, on its first introduction in the Senate of the Fiftieth Congress, was plainly entitled, “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;” and in the Fifty-first Congress it is called, “A bill to secure to the people the privileges of rest and of religious worship, free from disturbance by others on the first day of the week.” The body of the two bills is the same, except that the incongruous nomenclature in the first has been harmonized in the second, and “first day,” “Lord’s day,” and “sabbath,” made to read, “first day” and “Sunday.” Although in the last section of the former bill the expression “religious observance of the sabbath-day” is omitted, in the second, a neutrality clause, for it is nothing else, is inserted, which declares that “this act shall not be construed to prohibit or sanction labor on Sunday, by individuals who conscientiously believe in and keep any other day as the Sabbath,” etc. It is the same bill resurrected, and attempts the mingling of incongruous elements which cannot be assimilated,—the Sabbath which is divine, and the Sunday which is human; Sabbath of the moral law, Sunday of the civil law; Sabbath of the Lord thy God, Sunday a religious day by the enactment of Constantine, and a dies non, in the statutory nomenclature of the civil law.ABSB 54.3

    The very next branch of this family tree is entitled, “An act to punish blasphemers, swearers, drunkards, and Sabbath-breakers,” which is openly a religious law. See “Laws of the District of Columbia, 1868,” pp. 136-7-8. The family likeness of these three measures, the old Maryland law adopted into the statutes of the District, the Blair Sunday-Rest bill, and the Breckinridge local Sunday bill, is unmistakable, and, if the original from which the latter two are derived is a religious law, the two descendants certainly must be.ABSB 55.1

    But in the bill before this committee there has been an attempt to separate the civil from the religious, and the claim is made that this measure is consistently for a “civil Sunday.” In making good this claim, what is it necessary to show?—It is necessary to show that the legislative and public mind has been entirely divested of the popular idea that Sunday is a day to which a due religious observance is to be paid. Both those who make the law, and those who are subject to it, must be shown to have placed themselves exactly in the mental position of the civilian whose mind has never harbored the thought of the sacredness of one day above another. Then no other legislative restrictions would be attempted to be placed upon Sunday than could be enacted for Monday, or Tuesday, or any succeeding day of the week. But read this bill, 3854, and insert for the word Sunday the name of a different day of the week, and consider how quickly the sense of the people would reject it. Its propriety as a civil measure would be instantly denied. What should give it a different complexion when it contains the word “Sunday”? What is the magic “presto change” in that name?—It is the religious association; the fact that the consciences of many men for many generations have been trained to reverence Sunday as the holy day of God.ABSB 55.2

    Sunday was first a holiday, dedicated as such to the sun and its worship. So that in its inception it was a day the observance of which was based upon a religious idea; in the accommodation of the forms and observances of the pagan and Christian churches, which, for the sake of temporal power and success, was brought about in the reign of Constantine, the church found it politic, from the point of view which then prevailed, to adopt the pagan holiday, and did so, consecrating it anew, with all the sacredness of the religious forms and beliefs of the church, transferring to it the awful sanctity involved in the commandment of God, “Remember the Sabbath-day, to keep it holy,” and adding to that all the holy sentiment which can be invoked for a day commemorative of the resurrection of our Saviour.ABSB 56.1

    Thus cumulatively religious is the history of this day. The religious idea has never been separated from it. No enforcement of its observance, distinctively from other days, can be divorced from that inbred religious idea, any more than the physical and moral characteristics of the father and mother can be eliminated from the child. This child of the church and a religious holiday (“the venerable day of the sun”) is, by birth, by inheritance, and by unbroken habit throughout its existence, a religious day—nothing else.ABSB 57.1

    Congressmen are here to crystallize into law the highest expression of the will of the people. The “expression of the civilian will must result in civil law. You are here to make civil law then, are you not, not moral law? Why can you not make moral law for the people?—Because you cannot exceed the powers which the people had to give you, who constituted you legislators. And as they had no power to make a rule of moral action one for the other, or for themselves, therefore they had no authority to delegate such power to you.ABSB 57.2

    If, then, you cannot, in your own minds, and in the minds of the people, both in theory and in fact, divorce completely—as utterly as though it had never existed—the religious idea from the concept Sunday, you have no right to legislate upon the use of that day as distinguished from any other day.ABSB 57.3

    Those who are asking for the passage of this bill are urging the members to commit themselves to an unconstitutional act.ABSB 58.1

    Sunday laws, and the whole line of religious legislation which goes in the same category, are alien to the letter of American fundamental law and to the spirit of American institutions. They are a survival of the English Church establishment, and should not have existed after the Declaration of Independence and the adoption of the Constitution any more than the laws governing the control of livings, and the maintenance of the Church of England. They have rightly no more place in our statutes than have laws for the regulation of the royal succession.ABSB 58.2

    But the legal and judicial indolence of bar and bench has permitted this alien brood an entrance into our statute-books through precedent and not principle. And the precedent can be relied upon, in every case, to prove its principle wrong.ABSB 58.3

    A clause of Article Fourteen of the amendments to the Constitution says that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” but, when “legislating for the District of Columbia, Congress is bound by the prohibitions of the Constitutions;” and, as otherwise expressed, it is the purpose of this government to defend the personal rights and privileges of all its citizens, that, as the preamble states, the blessings of liberty may be secured to our- selves and to our posterity. Yet, suppose for a moment that you are able to divest yourselves of the religious heredity acquired since your ancestors first heard Sunday preached, and you proceed upon a civil basis entirely. How far may you, as legislators, proceed in this special legislation without trenching upon individual and absolute rights? To determine that, let us go back again to the source from which legislative authority is derived,—the people.ABSB 58.4

    A citizen holds the right and title to his life in fee-simple. Of what is a man’s life composed?—Threescore years and ten, no more, if by reason of strength he may attain to it. In other words, it is time—that is the stuff of which the web of his life is woven. That time is his, possessed by him in indefeasible right. May he take, civilly, one-seventh of his neighbor’s time, ten years of his life? May his neighbor take one-seventh of his life, ten years of his time, and devote it to any purpose whatever? If not, then have they the right to delegate to you the power to take away one-seventh of the life-time of all the people? For, if it be true that they have that right, and may therefore give it to you, then the representative of the Knights of Labor who spoke at the late Sunday Convention at Washington, was on the right track when he said, “We go farther than you, and demand two days in the week, Saturday for play and Sunday for rest;” and it may properly be made a penal offense to labor on Saturday and Sunday; and if for two days, then for three, four, five, six, seven; and the State may properly dictate what shall be the works of necessity and mercy permissible for any and all days of the week. Then a man’s life-time is not his, but has been absorbed into the being of a vampire of his own creation. If this can be so, what then becomes of the “inalienable rights” of “life, liberty, and the pursuit of happiness,” which the Declaration of Independence asserts?ABSB 59.1

    It is therefore by the inexorable logic of their position that those who are promoting the passage of Sunday laws are compelled to deny the soundness of the foundation principles of our government, “All men are created equal,” and, “Government derives its jut powers from the consent of the governed,” declaring them to be untrue and dangerous doctrines. At a joint convention of the Sabbath Union and National Reform Association, held at Sedalia, Missouri, last summer, Rev. W. D. Gray said, in open convention, “I do not believe that governments derive their just powers from the consent of the governed, and so the object of this movement is an effort to change that feature of our fundamental law.” The assent of the convention to these views was shown by the election of Mr. Gray to the secretaryship of the permanent State organization. Col. Elliott F. Shepard, president of the American Sabbath Union, in a speech made at Chautauqua last summer, said: “Governments do not derive their just powers from the consent of the governed. God is the only lawgiver. His laws are made clear and plain in his word, so that all nations may know what are the laws which God ordained to be kept.”ABSB 60.1

    These open statements show that the Sabbath Union and National Reform Association are, by the utterances of their representative men, traitors at heart. They unblushingly declare their disrespect for the principles of the Declaration of Independence, as a preliminary to the request to Congress for the passage of laws in violation of the Constitution. They are at enmity with the Declaration and Constitution because they desire to ignore rights which the one specifies and the other secures to the people.ABSB 60.2

    In this nation every individual is subject to the government, and this government derives its authority from no foreign power. The just powers of this government, then, if not from the governed, must be derived directly from God. We can understand how that the people express their highest civil conceptions in voicing human law; but if there be no human law, and all law is the expression of the perfection of God, what medium shall give voice to it? Upon this point hear Rev. W. F. Crafts, secretary of the Sabbath Union, in the convention lately held in the city of Washington. The following is verbatim:—ABSB 61.1

    Mr. Hamlin—Is it proposed that an end should be put to the running of the street-cars on Sunday?ABSB 61.2

    Mr. Crafts—Well, whatever the law may be, I suppose the consciences of the people, and the officers, will carry out the law; otherwise, I suppose the citizens will form a law and order league, to aid in the enforcement of the law; for, even independent of police, local influence, a law and order league is useful in connection with the officers. As to newspapers and street-cars, these would come either under ‘secular work’ or ‘works of necessity and mercy,’ and that is a matter of interpretation by the courts.ABSB 61.3

    But the question of horse-cars and newspapers will undoubtedly be discussed by the courts, and something will either be put into the law or decided by the courts shortly after the law is passed.”ABSB 61.4

    See also “Notes of Hearing,” before the Senate Committee (of the Fiftieth Congress) on Education and Labor, on the joint resolution (S. R. 86) proposing an amendment to the Constitution of the United States, respecting establishments of religion and free public schools, p. 90:—ABSB 62.1

    Senator Payne—Let me inquire whether Unitarianism is within the principles of the Christian religion? ...Is not Unitarianism a direct denial of the divinity of Christ and the Christian church? and is that to be prohibited, or is it to be allowed?ABSB 62.2

    The Chairman—The court would have to settle that wherever the question was raised.”ABSB 62.3

    There is, then, no controversy but what these questions raised by this line of legislation must come before the courts for adjudication. If this is to be “the American sabbath,” and these the necessary measures for its “preservation,” who will be the “American god” Jehovah? the courts? or the theological instructors behind the bench?ABSB 62.4

    This is not a new subject in the committee-rooms of Congress. The Twentieth Congress was largely petitioned for the stoppage of Sunday mails, and it was then said that “these petitions did in fact call upon Congress to settle what was the law of God.” The measure was reported upon adversely, the Senate concurring. See “Register of Debates in Congress,” vol. 5, p. 43, and “Abridgments of Debates of Congress,” vol. Io, p. 232. The report of Mr. Johnson, of Kentucky, from the Senate Committee on Post-offices and Post-roads, to whom these petitions had been referred, is germane to the present issue. It is submitted that the committee of the District of Columbia would in this instance be justified in presenting a similar report on H. R. 3854, on similar ground.ABSB 62.5

    As to the point that the District of Columbia already has Sunday laws in force, and enforceable, see “Laws of the District of Columbia, 1868,” p. 137, sections 10 and 11 (re-adopted in 1874). Section 92, p. 9, of the “Revised Statutes of the District of Columbia,” says: “The laws of the State of Maryland, not inconsistent with this title, as the same existed on the twenty-seventh day of February, 1801, except as since modified or repealed, continue in force within the District.” The authority so to legislate is shown in “Laws of Maryland, 1791” (I Dorsey, p. 269, chapter 45, section 2), in connection with the clause in section 8, Article 1, of the Constitution of the United States, where, in citing the powers of Congress, it says: “To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of government of the United States,” etc.ABSB 63.1

    The district being thus under the jurisdiction of Congress, and the Maryland law adopted, the “Revised Statutes of the District of Columbia” (section 1049, p. 122) determines what court has jurisdiction of cases coming under this law. It is there found to be the Police Court, and section 1054, same page, provides that “the court may enforce any of its judgments or sentences, by fine or imprisonment, or both.”ABSB 63.2

    Therefore, although the penalty affixed to the Maryland law may have become obsolete or difficult of determination, authority is lodged in the court having jurisdiction to affix its penalty by “fine or imprisonment, or both;” and in evidence of the fact that the law survives, although the penalty may become obsolete, see “United States vs. Royall, 3 Cranch, Circuit Court Reports,” pp. 620-25.ABSB 64.1

    If Congress ever had the power to adopt such a law the Maryland Sunday law of 1723 is still in force, and enforceable, in the District of Columbia, and to adopt another would be simply cumulative legislation.ABSB 64.2

    But, on the other hand, if it be true that, when “legislating for the District of Columbia, Congress is bound by the prohibitions of the Constitution,” see “United States vs. More, 3 Cranch 160,” and Congress never rightfully adopted this law into the statutes of the District, then Congress would be guilty of cumulative unconstitutionality in passing the law contemplated in House Resolution 3854.ABSB 64.3

    Respectfully submitted,” W. H. MCKEE,
    For the Nat’l Religious Liberty Ass’n.

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