Justice David Josiah Brewer
and the Holy Trinity Opinion

Some Secular Humanists have argued that the extensive recitation of the history of this Christian nation in the case of Holy Trinity v. U.S. is not relevant to the holding of the case, but is mere obiter dicta -- an off-hand remark by the judge that really doesn't form the basis of the decision, and shouldn't be considered the official opinion of the Court.

Perhaps some people are persuaded that such "obiter dicta" could consume fully half of the Court's opinion. I think it makes more sense to understand the Christian history as the basis or rationale undergirding the case. The Court is saying that an immigration statute ought not to be applied against a church hiring a pastor because "this is a Christian nation." The history of this nation is thus not merely an "off hand" digression from the substance of the case, but is the very basis for the holding.

No Secular Humanist I know has ever cited any legal authority whatsoever to support the claim that the Christian history in Holy Trinity is irrelevant to the holding of the case.

Here is evidence of the Christian character of the Court as well as evidence that no one in that more Christian era considered the Christian history in Holy Trinity to be mere "obiter dicta." It comes from the events surrounding Justice Brewer's death.

"A meeting of the Bar of the Supreme Court of the United States was held in the Court Room on Saturday, April 30, 1910." (218 U.S. vii) Addresses were made by a distinguished panel, and a resolution was presented by the American Society of International Law, of which Justice Brewer was a leading member.

In his tribute to Brewer, Hannis Taylor, a leading scholar in International Law (several of his books can be found on Amazon.com) who also argued a dozen cases before the Supreme Court, said this about J.Brewer:

By a romantic accident [Justice Brewer] was born of American missionary parents in Asia Minor, not so far from that Hellenized Roman province in which St. Paul was born, and in which he passed his boyhood. It is not irreverent to say that the great Apostle of the Gentiles, who was "brought up at the feet of Gamaliel" [Acts 22:3] and who transformed the mystery confided to a despised Jewish sect into a vast Christian theology, has never had a more worthy disciple. While an intellectual fervor very nearly akin to genius lighted the fires of his mind, a deep and tender religious feeling chastened his heart with a softer radiance. Out of the union of those rarely united streams grew the life of an almost perfect man, who was ever mindful of the exhortation of St. Paul to Timotheus: "Charge them to practice benevolence, to be rich in good works, to be bountiful and generous, storing up for themselves a good foundation for the time to come, that they may lay hold on eternal life." [1 Timothy 6:17-19] Fortunate, indeed, it is when the mind that expounds and applies positive law in the midst of vast and conflicting passions and interests is illuminated by the inner light of a noble high-mindedness which spurns all vanities, all prejudices, all revenges.

The judgments of Mr. Justice Brewer, delivered during the last twenty years, and distributed through eighty volumes of the Supreme Court's Reports, involve nearly every question of Federal law, as well as many within that twilight zone of law by analogy, commonly known as international law. If he could comeback to us in order to designate those special parts of his work by which he would prefer to be judged, I cannot doubt that his finger would point at once to those dissertations in which he has so luminously applied the principles of Roman law to the solution of the momentous questions that have arisen in this country of might rivers and inland seas, out of what are generally known as riparian or water rights. Whenever the fickle Missouri or the capricious Mississippi becomes so restless in its bed as to eat away its banks on the one hand in order to add on the other, or in some torrential frenzy suddenly leaps from its old bed in order to seek a new one, the resulting changes in public and private rights thus wrought by accretion or avulsion can only be defined by reference to the principles of that code whose influence has been second only to that of the Christian religion. . . . Of that body of principles drawn from Roman sources, upon which public and private rights in this country so largely depend, Mr. Justice Brewer was a master. 54 L.Ed. 1235.

The committee "prepared and presented resolutions which were adopted, and The Attorney General was requested to present them to the court." On Tuesday, May 31, 1910, the Supreme Court of the U.S. met for "Proceedings on the Death of Mr. Justice Brewer" 218 U.S. vii.

The Attorney General presented the resolutions, and then delivered a eulogy which takes up six pages in the official reports. More than one full page of the six is given to J. Brewer's opinion in Holy Trinity. Here is the first page of The Attorney General's eulogy:

Justice Brewer's period of service in this court covered twenty years. These two decades brought before this court some of the most important and far-reaching questions which have ever been submitted for its decision, and in the solution of these great problems Justice Brewer took a leading part. In the reports of this period there are to be found 719 opinions written by Justice Brewer, in 157 of which he dissented from the conclusions of the majority of the court. The limitations of this occasion will permit only a brief reference to a few decisions which illustrate the characteristics of his mind and the lucidity of his exposition.

One of the earliest of his recorded opinions was that in the case of the Church of the Holy Trinity v. United States, 143 U.S. 457, where the court was called upon to decide whether or not the act prohibiting the importation of foreigners and aliens under contract to perform labor in the United States applied to an English Christian minister who had come to the United States pursuant to an agreement with a Protestant Episcopal Church in the city of New York. The opinion is of especial interest, not merely as a fine discriminating construction of the statute, and the application of the principle that laws must receive a sensible construction, and that where a literal construction leads to an absurd conclusion the letter of the law must give way to the presumed intention of the legislature; but because of the enunciation of the principle that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people."

"If we examine the constitutions of the various States," said the learned justice, "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.

*  *  *  *

"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.

After considering but three other of Justice Brewer's opinions, The Attorney General concluded:

Justice Brewer was a son of a Christian missionary, and the son's life, like the father's was one of service. For six and forty years he served the people, hearing causes and judging "righteously between every man and his brother and the stranger that is with him." And in the discharge of this great office he did ever obey the injunction laid upon the judges of Israel by their great lawgiver:

"Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man, for judgment is God's." (1 Deut. 17).

The Chief Justice responded as follows:

During the years of my occupancy of a seat upon this Bench it has been my sad duty to accept for the court tributes of the Bar in memory of many members of this tribunal who have passed to their reward. As our Brother Brewer joins the great procession, there pass before me the forms of Matthews and Miller, of Field and Bradley and Lamar and Blatchford, of Jackson and Gray and of Peckham, whose works follow them now that they rest from their labors. They were all men of marked ability, of untiring industry, and of intense devotion to duty, but they were not alike. They differed as "one start differeth from another star in glory." [1 Cor 15:41] Their names will remain illustrious in the annals of jurisprudence. And now we are called on to deplore the departure of one of the most lovable of them all.

He died suddenly, but not the unprepared death from which we pray to be delivered.

218 U.S. xv

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