Law of nature immutable. Enforcement of this principle. Acts against natural rights absolutely void. Law of nature cannot be altered. Unanimity of opinion. make a man judge in his own case, is void in itself; for jura naturæ sunt immutabilia, and they are leges legum." 66 "1 Thus this American principle is simply that which has been declared again and again by the greatest jurists which have ever adorned the English bench. In " Elements of Right and of the Law" (section 520), Mr. Smith says: "It is a well-established principle of the American law, that an act of Congress in excess of the constitutional powers of the federal government is absolutely void; and so far as the direct infringement of private rights is concerned, this principle is in fact enforced by the courts; but in questions merely political, there is in general no practical means of restraining the execution of the law. Nevertheless such a law is void, and not only affords no legal justification to any one seeking to enforce it, but every subordinate officer, and indeed every private individual, has the right to disobey it, and will be vindicated in doing so by the courts." 1 Hobart, page 87; see also Bishop's First Book of the Law, chapter 9, section 90. This principle, it seems, was well established; for Lord Coke cited numerous cases and said: "It appears in our books that in many cases the common law [that is, the courts] will control acts of Parliament, and sometimes adjudge them to be utterly void. For when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void. . . . Because it would be against common right and reason, the common law adjudges the said act of Parliament as to that point void. The opinion of the court (in An. 27, Hilary Term 6, Annuity 41) was that this statute was void." Dr. Bonham's case, 8 Coke's Reports, 118. See also Calvin's case, 7 Coke's Reports, 12-14, 25; 2 Brownlow's Reports, 198, 265; Hardres's Reports, 140; 2 Coke's Institutes, 588. In Calvin's case (page 14) Lord Coke declared emphatically: "The very law of nature itself, never was nor could be altered or changed. And therefore, it is certainly true that jura naturalia sunt immutabilia. And herewith agreeth Bracton, book 1, chapter 5. and Doctor and Student, chapters 5 and 6. And this appeareth plainly and plentifully in our books." Applicarights. The foregoing is a brief summary of the reasons and authorities (though, only a few out of many) establishing the principles which permeate these American State Papers. The individual retains his natural. rights, and government is limited accordingly. And as every individual equally has the natural right to worship whom he pleases and on what day he tion of pleases, so long as he does not interfere with this same liberty in others; or to refrain from worshiping altogether; any human law interfering with this right, is, under our Constitutions, void; it matters not whether it be a Sunday law, a law to compel church attendance, or a law requiring any other religious immaterial. observance; if it interferes with the right of a single individual, it is unconstitutional and absolutely void.1 Nature of interference Contradictory opin It is true that our judiciary have not always had a clear conception of this principle, and numerous ions. decisions are flatly contradictory, as is illustrated by the two positions on the constitutionality of religious laws presented in this work. But this is because in some cases precedents have been followed, not and prinprinciples. Law, by some, has been regarded as a bundle of previous decisions, rather than as a science. founded, like other sciences, on the immutable law of nature. The erroneousness of such a view must be 1 This was the verdict of the twentieth and twenty-first Congresses (1829 and 1830) touching the matter of Sunday legislation, as set forth in the following language: "Congress acts under a Constitution of delegated and limited powers. The committee look in vain to that instrument for a delegation of power authorizing this body to inquire and determine what part of time, or whether any, has been set apart by the Almighty for religious exercises. On the contrary, among the few provisions it contains, is one that prohibits a religious test, and another which declares that Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . It is perhaps fortunate for our country that the proposition should have been made at this early period while the spirit of the Revolution yet exists in full vigor." Precedent ciple. Mans field's statement. Progress in the science of law. obvious to all who have given it reflection. "The law of England," Lord Mansfield observed, “would be an absurd science were it founded upon precedent only." 1 And Lord Coke repeatedly declared that the law "is the perfection of reason." "Reason," said he, "is the life of the law; nay, the common law itself is nothing else but reason." " 2 In the onward march of civilization and in the advancement of science in general, progress has also been made in our system of jurisprudence; - not that principles have changed, for the law of nature is both. unchangeable and immutable, but in this advancement clearer views of the principles of justice have been obtained. Progress is especially seen in connection with religious legislation and religious decisions. In America the dogma that Christianity is ideas repudi a part of the common law has, by eminent jurists Law of nature immutable. Churchand-state ated in America. Cases overruled. and statesmen, been repudiated. Sunday laws have been declared to be unconstitutional. Religious proclamations by national executives were held by Jefferson and Madison to be out of place; and the latter also contended that public chaplaincies were an illegitimate departure from American principles. To the extent that judges and legislators incline more to justice and 1 Cited by Kent in his "Commentaries on American Law," volume i, page *477. 2 Coke upon Littleton, section 976. Mr. Justice Powell, in Coggs v. Bernard, 2 Lord Raymon's Reports, 911, makes a similar statement: "Let us consider the reason of the case, for nothing is law that is not reason." 3" One rule can never vary, viz., the eternal rule of natural justice." Chief Justice Lee, in Omychund v. Barker 1 Atkinson's Reports, 46. 4 This is strikingly illustrated in the fact that "there are over one thousand cases to be pointed out in the English and American books of reports which have been overruled, doubted, or limited in their application." Kent's "Commentaries on American Law," volume i, page *477. reason, and less to the precedents dictated by bigotry and custom, government will become still more liberal, and Sunday laws, and all other religious laws, will go the way that similar laws have gone. In order to fulfil the objects of government, every man must be insured "the fullest liberty to exercise his faculties compatible with the exercise of like liberty by every other man." Discussing the Federal Constitution in the Virginia convention, Patrick Henry said: "You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government. The great and direct end of government is liberty. Secure our liberty and privileges, and the end of government is answered. If this be not effectually done, government is an evil.” 1 Objects of government. Departures from funda ciples. This is the principle asserted in the Declaration of Independence, when it says, "All men are created equal;" and the repeated departures from it in our religious laws which discriminate against the Sab- mental prinbatarian and the unbeliever are a standing reproach to our government, and a constant travesty on justice. So long as the idea prevails that there must be some legal connection between church and state,that the state cannot exist without religion, nor religion without the state, we may expect that such laws will remain upon our statute books. So long as men read history so little, or to so little purpose, as not to learn that any union of religion and the state 1 Elliot's "Debates on the Federal Constitution," volume iii, page 43 et seq., 53 et seq., 651. See pages 146, 147. 2"The Jew who is forced to respect the first day of the week when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief." Cooley's Constitutional Limitations," page *476. Injustice to Sabbatarians. Until lessons of sacred and profane history are learned, in persecution will be seen. - any prescribing of men's faith by human laws — is a dangerous experiment, and an illicit and contaminating alliance, and, in the end, can result only in evil, we may expect to see a repetition of the bigotry and intolerance which have disgraced the history of past ages. And so long as men who profess to believe the Bible, read it so little, or to so little purpose and tolerance and profit, as not to learn from the record of the deliverance of Israel from Egyptian bondage and oppression, the three Hebrews from the fiery furnace, and Daniel from the lions' den, the lesson that God abhors religious intolerance and oppression; that with religion civil government can of right have nothing whatever to do further than to protect liberty of conscience; and that, as Adam Clarke says, "the church which tolerates, encourages, and practices persecution, under the pretense of concern for the purity of the faith, and zeal for God's glory, is not the church of Christ, and no man can be of such church without endangering his salvation; so long as this is so, we may expect to see professed Christians making use of the power of the state for the furtherance of their ends, and for the suppression of views not in accordance with their own. A perusal of past and present American Sunday laws shows A perusal of the early Sunday laws of the American colonies will demonstrate how little acquainted were the first settlers of this country with the genuine old error still principles of religious liberty and separation of church retained. and state. See Part I. 1 Comments on Luke 14: 23. |