|Vol. IV, No. 12
Adar 5607, March 1847
Violation Of Sunday Laws At Charleston
For The Court Of Appeals
City Council Of Charleston,
S. A. Benjamin
This was a summary process to recover the penalty imposed by the 2d section of an ordinance of the City Council of Charleston, ratified 2d of May, 1801, entitled “an ordinance for the better observance of the Lord’s day, commonly called Sunday, and for other purposes therein mentioned.” See City Digest, p. 272. That section is in the following words; See. 11: “No person or persons whatsoever, shall publicly expose to sale, or sell in any shop, warehouse or otherwise, any goods, wares or merchandise whatsoever, upon the Lord’s day, and every person so offending, shall, for every such offence, be liable to be fined, in any sum not exceeding twenty dollars.”
The process alleged, “That S. A. Benjamin, on the 21st day of December, in the year of our Lord, 1845, within the limits of the City of Charleston, in the State aforesaid, and within the jurisdiction of the said City Court of Charleston, in a shop on East Bay, in the City of Charleston, owned and possessed by the said S. A. Benjamin, did sell to W. C. Gatewood of Charleston, certain goods, wares, and merchandise, to wit: one pair of gloves; and also that the said S. A. Benjamin, did then and there expose to sale, certain goods, wares, and merchandise, to wit: coats, pantaloons, gloves, and other articles of clothing, by reason whereof, the said S. A. Benjamin violated the second clause of an ordinance of the City Council of Charleston, ratified the 2d day of May, Anno Domini one thousand eight hundred and one, entitled ‘an ordinance for the better observance of the Lord’s day, commonly called Sunday,’ and for other purposes therein mentioned, and forfeited under the same, for the said offence, to the use of the said City Council of Charleston, the sum of twenty dollars for each of the said offences, making in all for the said two offences the sum of forty dollars, which the said City Council of Charleston are entitled to recover.”
The defendant, who appeared by his counsel, Mr. Phillips, admitted the fact of selling the pair of gloves as alleged in the process, but denied the charge of any public exposure of his goods for sale as set forth. On the part of the plaintiffs, (represented by Wm. D. Porter, the City Attorney,) it was admitted that the defendant is an Israelite, and that he keeps as such, the seventh day of the week, or Jewish Sabbath. Upon this statement of facts, the case was argued to the jury by the respective counsel, the defendant contending mainly, that the City ordinance, in question, was contrary to, and in violation of the 8th article of the Constitution of the State of South Carolina, and this ordinance was therefore inoperative and void. That section of the Constitution of the State of South Carolina, adopted in 1790, is in the following words: (Art. VIII. § 1.) “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall, for ever hereafter, be allowed within this State, to all mankind; provided that the liberty of conscience thereby declared, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”
It was insisted on the part of the defendant, that the ordinance as to him was a direct interference with, and in violation of, that free exercise and enjoyment of religious profession and worship, which was guarantied by the Constitution of the State, without discrimination or preference to all mankind; and that keeping the Jewish Sabbath according to his religious faith, the civil power could not, consistently, with this great fundamental law of religious liberty, compel him to observe or keep the Christian Sunday also. On the part of the plaintiff it was contended that, viewing the ordinance in question as a mere police regulation, it was clearly within the powers delegated to the City Council under the City charter, “to secure peace and good order within the City,” and that in this point of view it was entirely consistent with the liberty of conscience and religious profession and worship, guarantied by the Constitution of the State. The argument of the question involved in the case, and one of much ability on both sides, covered a wide range, various authorities were cited, and analogies suggested, which it is not necessary here to repeat in detail, as the case seemed to be regarded equally by the counsel employed, as one calling for the final and ultimate decision of the highest appellate tribunal of the State.
Being of opinion that the ground taken by the defendant was sustained by the correct interpretation of the Constitution of the State, and the carrying out into practical effect, of its wise and liberal provisions, in behalf of the entire freedom of religious faith and worship, I charged the jury that in my opinion, the 2d sec. of the ordinance of the City Council of 1801, “for the better observance of Sunday, commonly called the Lord’s day,” was in regard to the present defendant, in clear and palpable violation of the 8th art. of the constitution of the State, and therefore invalid, inoperative, and void. The jury under these instructions, found a verdict for the defendant, and I received notice of an appeal on the part of the plaintiffs, a copy of which is annexed. As the questions raised by counsel were peculiarly, if not exclusively for the consideration and judgment of the Court, it may be proper and due to the importance of the case, that I should give at some length, but at the same time, with all the brevity possible, the reasons upon which my opinion and judgment were founded. I may be allowed, I trust, without impropriety and without wandering from the subject, to premise, that no one entertains a more thorough conviction than myself that the Christian Sunday, or Lord’s day should be kept in a becoming manner; and according to my religious faith, that it is a day peculiarly devoted and set apart to Christian worship, and upon which the ordinary secular employments of men, or in the language of the Church, all servile works, should be suspended. But I have great doubts how far, and to what extent, the civil power of the State, under a fundamental law, guaranteeing to all mankind the free exercise and enjoyment of religious profession and worship, without discrimination or preference, can prescribe, by a general law, binding upon all its citizens, that under certain penalties, for the better observance, in a religious sense, of any particular day, they shall intermit or abstain from, any worldly calling, pursuit, labour, or employment innocent in itself, and not coming within the terms or spirit of the exception laid down in the constitution, and not falling within the legitimate sphere of mere police regulations. Though it may not be necessary to the decision of the precise question involved in this case, I should perhaps be wanting in candour, if I hesitated to avow my opinion, that, with certain exceptions which will be hereafter noticed, not falling within the operation of the general principle, in a community where there is a complete severance between Church and State, and where entire freedom of religious faith and worship is guarantied to all its citizens alike, without discrimination or preference, the observance of any particular day, in a religious sense, is a matter of mere ecclesiastical or religious discipline and authority, and in no way pertaining to the civil power or legislative authority of the State.
By what authority, consistently with the entire freedom of religious faith and worship, guarantied to all alike, of whatever religious sect or community, whether Jew or Gentile, can the civil power ordain, that on the day kept by Christians, as a holy day or day of worship, peculiar to them, the Jew shall be made to keep in the same way, or to some extent at least, the Christian holy day; although, according to his religious faith, he is required to keep another and a different day, as sacred to religion, and in conscientious obedience to the command of the God he worships.
But it is said that the evident meaning and intention of this article of the constitution, as applied to the Jew, is to be considered as carried into full effect, while he is permitted to practise his religion, and to worship God upon the Jewish Sabbath, according to his faith, undisturbed and unquestioned by any; and that it is no violation of its terms or spirit, if in addition to this immunity, he is required, in common with all the citizens of the State, to pay respect to the Christian Sunday, by abstaining from his worldly occupations. But the constitution professes to give to all mankind an entire and perfect equality of freedom in religious faith and worship, without discrimination or preference. Is it no discrimination or preference, to select by the civil law of the State, the day considered sacred in a religious sense by the Christian, and to compel the Jew to unite externally, at least, in its observance; to protect from possible disturbance those who worship on that day, by requiring all others to abstain from every species of labour and employment, while the Jewish Sabbath is protected by no similar regulation?
In the view of the constitution, are not the Jewish Sabbath and the Christian Sunday precisely equal, and those who worship God upon one or the other day, entitled to a perfect equality of immunity and privileges?
It is sometimes said that it is a poor rule which will not work both ways, and applying the principle which seems to be contained in this popular adage, to the question before us, it may well be asked, whether in a corporation, having all the powers over the subject possessed by the Legislature of the State, if the Jews should happen to have the majority of the Municipal Council, they could, consistently with the articles of the constitution referred to, require by law on the part of the rest of the community, the same observance of the Jewish Sabbath, which is now required of them in regard to the Christian Sunday?
It is apparent under this clause of the constitution, that the right to enact such a law, may be as rightfully deduced in behalf of the Jew as the Christian, and that if the Jew has no right to complain of the existing law as in violation of his religious liberty, the Christian in the case supposed, would have no other or further ground of objection. In truth, this great and fundamental provision of the constitution appears, to furnish ample security, and perhaps the only one, against undue encroachments upon religious liberty, by the action of the legislative power of the State, amidst all the fluctuations of party; and to place at all times, and for ever, freedom of conscience beyond the reach of any dominant or preponderating influence, which numbers may at any time give to a particular religious sect, or to any prevailing creed of the day.
The ordinance in question seems to have been borrowed from a very early statute, enacted as far back as the year 1712, when South Carolina was a British Province, and when the good people of that day were required under penalty to attend their Parish Church on Sunday, and to remain there devoutly during divine service, and were forbid from all travelling by land or water, except to and from church, or to pay a visit of charity. The second section of the ordinance is a copy in so many words of the third section of the act referred to, with one exception. See Pub. Laws, p. 19. That section of the act, as will be perceived, only forbids the public exposure of goods for sale, whereas under the terms employed in the 2d section of the ordinance, a private sale of any article of merchandise would seem to be included in the inhibition. It will not be contended but that the greater portion, if not the whole of this antique statute is obsolete; and if operative in any of its provisions down to the glorious Revolution which resulted in the independence of the State, and the establishment of civil and religious liberty upon a basis of imperishable and equal justice, the clause of the constitution to which we have referred must be considered as having entirely superseded and repealed it.
Shall the ordinance of the City of Charleston, passed in 1801, so soon after the adoption of the constitution of the State in 1790, be permitted to revive and keep alive in any of its features, the inequality and injustice, the violation of religious liberty, inflicted by the act of 1712? But it is said that the ordinance may be regarded as a mere police regulation, calculated to promote and preserve the peace and good order of the city, and that in this point of view, without regard to any religious faith, and as having no connexion with religion, it is clearly within the competency of the City Council, and is binding without distinction upon all citizens equally and alike. Although with regard to this defendant, it seems to me impossible to consider the question presented in any other light, than as one affecting the freedom of religious faith and worship, and that the defendant cannot be deprived of the freedom which in this respect, the constitution of the State intended to afford him: it does not follow that all the laws of the State or the ordinances of Charleston, passed in virtue of the powers delegated to it, which regard in some respect the observance of Sunday, must be necessarily considered as inoperative, or as affected by this constitutional provision. For while it may be held that, consistently with this provision of the constitution, no law of the State or of any subordinate corporation, can rightfully require the conscientious Israelite to keep the Christian Sunday, by abstaining on that day from an occupation honest, and in itself innocent and wholesome to society, or even that it does not pertain to the civil power of the State, to compel the religious observance of any particular day, by abstaining from labour, or in any other way: there may be many regulations and enactments by the civil power, founded upon the observation in fact by a large majority of its citizens, of any particular day as a holy day.
So too, there is no doubt, that within certain limits the City Council, for the better preservation of order and peace, and the better security of the city, may prescribe certain regulations having regard to Sunday, as an existing holy day in fact; but they cannot on the score of being mere police regulations transcend the fundamental and constitutional law of the land. Thus the ordinance of the city referred to in the argument, on the subject of retailing liquor, on Sunday, falls within the exercise of a legitimate power, that of granting licenses to retail liquor, which is entirely and exclusively delegated to the City Council. In regard to this matter, they have a right to grant or refuse a license to retail liquor, to prescribe the terms upon which it may be exercised, and if they may refuse or grant a license to retail liquor for a longer or shorter time, they may clearly provide, that on Sundays or any other particular days named, they shall not retail or sell liquor. There are many acts of the State having relation to Sunday, which fall within the exercise of legitimate authority. All the acts in relation to slaves, come within this principle. Slavery is exclusively of statutory creation and regulation; and the power of the master over the slave may be modified or extended, as the Legislature may deem expedient. Thus the act exempting the slave from labour on Sunday (necessary occasions of the family excepted) is an eminently wholesome and humane provision and liable to no constitutional or well-founded objection. So too the acts forbidding the issuing or service of legal process on Sunday, are free of all exception, both on the score of expediency and legality. The whole process of the law is of mere legal creation, and its machinery may be regulated, as to time and mode, by the law which creates it, without violating any natural right.
There is also an act of the Legislature, and an ordinance of the City Council, inflicting punishment upon those who disturb any religious assembly or congregation engaged in worship; and as the protection afforded, is not confined to Sunday or the Lord’s day, and has no reference to any particular time, in effect, they carry out the very provision of the Constitution, in giving equal security to all sects and forms of religious worship without discrimination or preference.
In the examination of this question, I have not thought it important or pertinent, to refer to the various English Statutes, requiring the observance of Sunday, nor to the constructions put upon them by the many decisions made by their Courts upon them. Where, as in that country the Church and State are united, and not only a particular religious faith, but a particular form of worship prescribed by law, it is in vain to look for illustrations of that freedom of religious faith and worship, which it was the glory of our ancestors to obtain after a long and sanguinary struggle, and the enjoyment of which it was evidently the design of the Constitution of South Carolina to secure and perpetuate. Nor do I think other countries, holding a different faith from that to which I have referred, where to more or less extent, the same union or connexion between Church and State exists, present models for our imitation, or for our instruction, unless it be to avoid the errors of such a union. “Render to Caesar the things which are Caesar’s, and to God the things which are God’s:” let the civil power concern itself and predominate in its legitimate sphere; but let the worship of God be the homage which He requires, and regulated only by the authority He himself has established.
It would seem as far as forms of government or the fundamental laws of society, can accomplish this most desirable end, and raise an impenetrable barrier between the civil power on one hand and religious freedom on the other, our own admirable Constitution furnishes all the security that is possible. While this remains inviolate, we have every thing to hope, and on this subject nothing to fear; but this great barrier broken down or defaced, we may retain the name of freedom, but it will be but a vain shadow, a delusion and a mockery, “stat nominis umbra.”
I have not thought it necessary or proper to refer to any ecclesiastical or historical authorities, by which the consecration of Sunday, or the Lord’s day, to religious purposes, may be traced from the earliest times to our own days. As far as the observance of it, and the manner of its observance has been prescribed by the civil power, in various countries, it is not important to notice, if, for the reasons already assigned, and under the provision of our Constitution, it does not pertain to that power in this State. If admitted to pertain to religion, and form a part of that freedom of religious worship which is guarantied by the constitution to all the citizens of the State, it is equally unnecessary to trace the history of the day, in the decrees of councils, or in the many regulations established from time to time in the various parts of Christendom, by ecclesiastical authority.
In this point of view it presents a religious question, in which as far as the civil power is concerned in this State, as we have seen, all men are free to adopt and act upon their own opinions. Amid the various and conflicting views which may be entertained upon this subject, it may be at least said, that the defendant holds himself bound to obey that solemn command, delivered by God to his ancestors, more than 3000 years ago, amidst the thunders of Sinai, “Remember that thou keep holy the Sabbath day; six days shalt thou labour and shall do all thy works, but on the seventh day is the Sabbath of the Lord thy God; thou shalt do no work on it, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maid-servant, nor thy beast, nor the stranger that is within thy gates; for in six days the Lord made heaven and earth, and the sea and all things that are in them, and rested on the seventh day; therefore the Lord blessed the seventh day and sanctified it.” This holy day thus set apart by God himself, kept with a fidelity which has outlived the downfall of their once glorious Temple, carried with their scattered people into every quarter of the globe, still claims the veneration, and is consecrated by the worship of the devout Israelite, in our own happy land. Persecuted for so many centuries, the sport of tyranny and oppression, in so many climes, shall he not here at least be at liberty to worship God in freedom, and find peace and security upon the soil and under the Constitution of South Carolina?
His Honour the Recorder, will please take notice, that in pursuance of leave of the Court, a motion will be made at the next sitting of the Court of Appeals, upon the following ground:
Because his Honour the Recorder ruled that the section of the ordinance, upon which the suit was founded, was contrary to the provision of the first section of article eight of the Constitution of the State, and therefore void and no law.
W. D. Porter,