CORNELL LAW LIBRARY Fi?0* - — MATTmcW sender, LA W B< >• )K PUBLISHER, ALBANY, - N. Y KF a 001 fts$ DATE DUE -^^4^.: j^i OR Si J 1 " I j i QAYLOBD 5 PRINTED IN U.SA KF2009.R C 5T" Un,Ver8,,yUbrary ^mi&Viffi'iiJiSP 60 ' 8 of ,he ,irst "ay of 3 1924 019 356 306 (Qarttfll Sam ^rfymil l&ibtarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019356306 SUNDAY. Legal Aspects OF ?HE First Day of the Week. ^r««- JAMES T.^tNGGOLD OF THE BALTIMORE BAR. "Put up again thy sword. into his place: for all they that take the sword shall perish with the sword.' ' — The Master on the Union of the Church and State. JERSEY CITY, N. J.: Frederick D. Linn & Co., Law Publishers. 1891. Entered according to Act of Congress, in the year 1891, by FREDERICK D. LINN & CO., In the office of the Librarian of Congress, at Washington. THE ELECTRIC PRINTING CO., TRENTON, N. J. THIS BOOK IS INSCRIBED, IN TESTIMONY OF THE AUTHOR'S KINDLIEST REGARD AND ESTEEM, TO Hon. CHARLES G. KERR, STATE'S ATTORNEY FOR BALTIMORE CITY. *'Oiyv» et vita et oratio conseeuta mihi videtur difficilimcm illam socletatem GRAYITATIS CUM HUMANITATE." — Oie Dt Leg. III., 1. (iii) PREFACE. A law book ought to be a working tool. The practitioner should be safe in trusting that he will find in it fairly stated the result of the authorities upon the subject with which it deals. But no good reason is perceived why a law book should not be something more than this — why suggestions as to what the law ought to be should not accompany the statement of what the law is. The lawyer does not earn his living by merely citing cases ; he has to cultivate the faculty of criticism and comparison in his practice. A critical and comparative way of dealing with a legal topic may, therefore, save him labor even when he does not accept the writer's •conclusions. But lawyers have a higher function in society than that of making a living. They are, to a greater extent than any other class, makers of law — in the legislatures by enactment, on the bench by construc- tion, at the trial table by persuasion. They are, therefore, above all -others, the class to whom those should appeal who would have the law made or unmade along certain lines. In this little book the endeavor has been to include every point of technical interest, and at the same time to treat the subject in a manner worthy of its vast political and economical importance. On the success of the undertaking in either direction, others must •decide. J. T. R. (V) CONTENTS. CHAPTER I. CONSTITUTIONALITY OP SUNDAY LAWS IN THE UNITED STATES. In general 1 Cases denying the constitutionality of Sunday laws 2-8 Cases sustaining the constitutionality of Sunday laws — In general 9-12 Cases sustaining the constitutionality of Sunday laws under the Federal con- stitution 12, 13 Cases sustaining the constitutionality of Sunday laws as affecting property rights ...13-15 Cases sustaining the constitutionality of Sunday laws as to religious liberty and equality 15-24 Cases sustaining the constitutionality of Sunday laws when passed by munic- ipal corporations 24-31 CHAPTER II. CONSTITUTIONALITY OP SUNDAY LAWS IN THE UNITED STATES — CONTINUED. Cases sustaining them as religious regulations ,..32-78 CHAPTER III. CONSTITUTIONALITY OP SUNDAY LAWS IN THE UNITED STATES CONTINUED. Cases sustaining them as civil regulations 79-110 CHAPTER IV. What is Sunday. 111-116 (vii) Vlll CONTENTS. CHAPTER V. NATURE OF THE ILLEGALITY OF A SUNDAY CONTRACT. I. In general — Leaving parties where they stand.... 117-121 II. The question of completion 121 When begun on Sunday 121-127 The question of completion, when finished on Sunday 127, 128 III. The question of ratification 129-136 IV. The liability of common carriers 136, 137 V. The question of warranties 137, 138 VI. The question of hired horses 139-142 VII. The question of third persons 142 CHAPTER VI. Effect of the prohibition of Sunday labor in cases of tort 145-150 CHAPTER VII. SUNDAY AS A DIES NON JUEIDICUS. I. Was Sunday a Dies Non Juridims at common law? 151-154 II. Distinction between judicial and ministerial acts 154-156 III. Writs in general 156-161 IV. Arrest without process, taking recognizance, &c 161, 162 V. Keceiving a verdict, giving judgment, &c .' 163-167 VI. Miscellaneous instances 167, 168 CHAPTER VIII. SUNDAY IN THE COMPUTATION OF TIME. I. In general '.. 169, 170 II. When fulfillment of contract due, where time for same expires on Sunday 170, 171 III. When demand, &c., to be made, where time for same expires on Sun- day 171, 172 IV. Computation of time injudicial proceedings 172-179 CHAPTER IX. SUNDAY LIQUOR-SELLING. I. Ab business, &c 180 II. Clubs— What is "A Tippling-house " .....180, 181 CONTENTS. IX III. What is "Intoxicating Liquor" 181, 182 IV. "Keeping Open" 182-185 V. The effect of a license 185 VI. The indictment, evidence, &c 186-191 CHAPTEE X. THE PROHIBITION OF SUNDAY LABOH. I. The Forbidden Acts. In general 192-194 (1) The question whether Sunday laws are to be construed strictly or otherwise 194-201 (2) Distinction between public and private labor 201-205 (3) The words "Ordinary Calling" 205-209 (4) Contracts as labor — The general principle 209-215 (5) Contracts as labor — The question of sustaining fraud, &c 215-217 (6) Contracts as labor — Contracts through agents 217, 218 (7) Contracts as labor — Bills and notes 218-221 (8) Contracts aB labor — MarriageB 221 (9) Miscellaneous instances of labor, business, &c 222-230 II. The Exceptions of " Necessity " and " Charity" (1) "Necessity"— The general principle 230-235 (2) Traveling as a necessity — The principle 236-238 (3) Traveling as a necessity — Particular journeyB 238-240 (4) Agricultural work as a necessity 240-242 (5) Manufacturing, &c, as a necessity 242, 243 (6) Miscellaneous instances of necessity, &c , 243-247 (7) Charity 248, 249 (8) Are necessity, charity, &c, questions of law or fact? 249-252 CASES CITED. A. A. & S. R. R. i). Renz 238 Abel v. Fox 115 Abercrombie v. Hillams 208 Ackerman v. York 166 Adams v. Dohrman 176 v. Gay 48, 57, 128, 214, 260 v. Hamell 202,219, 225 Ahl v. Foreman 47, 117, 123, 213 Alanson v. Brookbunk 156 Albrecht's Case 258 Aldrich v. Blaokstone 245 Alfree v. Gates , 258 Alien v. Deming 129, 133, 217, 219, 226 v. Duffie 52, 232, 248, 250 v. Gardiner : 40, 207, 219 v. Godfrey 166 Alpe v. Bedoe 156 Arab's Case 54, 65, 184, 185 American Co. v. Hammond. ...171, 172 Amis D.Kyle : 45,171, 207 Anderson's Case 259 Anderson v. Berck..... 160 Andover v. Jones 148 Andrews' Case 9, 14, 16 Anonymous 33, 157, 161, 175, 244 Ansley v. Matthews 155, 161 Applegate v. TThler 134 Apsahl v. Yudd 137 Arnold v. Slade 138, 211, 213 Arthur v. Mosby 166 Ashley's Case 186 Atwood v. Pearce 42, 77, 159, 162 Avery v. Stewart 172, 220 B. B. H. Soc. v. Isaacs , 168 B. &0.'s Case 65, 96, 97, 251, 259, 260 Bachelder v. Benedict-. 214 Bacon's Case 174 Bailey v. Johns 143 v. Morgan 208 Baker v. Flagg 219 Baldwin v. Barney 146 Bangor v. Ceralty v 150- Bank v. Thompson 143, 197 of Cumberland v. Mayberry.. 143 Banks v. Werts 128, 133, 211 Barger v. David 126 Barker v. Fogg 113, 213 Barmert). Sheffield 222 Barney v. Baldwin 146 BarHs Case -44 Barrett v. Cleydon 156> Bartlett v. Vinor .'. 210 Bass*>. Irvin 34, 155, 165 Bateman's Appeal 228 Bates j). Blond 168 Bath i). Corey , 41, 220 Batsfordu. Every 225 Baxter's Case 166 Beatty v. King 131 Beaumont v. Walter 173 Bedoe v. Alpe 156 Begbie v. Levi 126, 142, 206, 210 Behan v. Ghio 226, 229 Beitenman's Appeal 246 Beman v. Wessels 125 Benedict v. Bachelder 214 Benjamin's Case 4 (xi) CASES CITED. Bennett v. Brooks 203, 207, 221, 228, 232 Benson v. Dralje 143 Bentley v. Hemmens 166 Berck v. Anderson 160 Berrill v. Smith 215 Berry v. Gilman 143 Biddeford v. Bryant 150 Bird's Case 189 Blahut's Case 183 Blakesley v. Johnson 216 Blanchard v. Crosby 125, 127 Bland v. Whitfield 180 Blaney's Case 261 Block v. McMurray 118, 213 Blond ».Bates 168 Bloom v. Eichards 81, 200, 211, 212 Bloxsome v. Williams 33, 122, 138, 201, 205, 210 Blunt v. Greenwood 175 Bode's Case 186 Booze v. Bryant. 122 Borst i). Griffin 175 Boston E. R. D.Swift 148 Bott's Case 2, 67 Boyer v. Comyns 210 Boynton v. Page 33,214, 226 Bradley* Eea 123, 129, 130, 138, 259 Branch W. & W. Co 170 Bridge's Case 188 Brimhell v. Van Campen 74, 219 Brockettn. Edgerton 39, 226 Brookbunk v. Alanson 156 Brooklyn v. Wood 26, 38, 162, 185 Brooks' Case 189 Brooks v. Bennett 203, 206, 207 v. Minturn 170 Broome v. Swan 152 v. Wellington 176 Brotherton's Case 226 Brown v. Johnston 170 Bryant's Case 159, 186 Bryant v. Biddeford 150 v. Booze... 122, 230 Buck v. City of Biddeford 237 Buel v. Mumford.. 115 Buffington v. Horton 118, 121 Bull's Case 187 Bullock ». Lincoln 157 Bunn v. Cock 175 Burke's Case 12, 20 Burnett's Case 188 Burt!). Salter- 169, 172 Burton v. Chicago 177 Bush w.Drake 127 Busher v. Cheshire E. E. Co 253 Bussard v. Levering 172 . Bustin v. Sogers .. 260 Butcher v. Fitchburg E. E 137, 235, 240, 249 v. Beeves 129, 134, 209, 211, 219 Butler v. Damon 174 v. Kelsey 159 v. Lee 129 Butts v. Sergeant 119 O. C. N. Co. n. Pilling 224 C. E. Co. v. P. S. Co 136 Cal. M. Co.'s Case 151, 155 Callendar v. Finneg 219 v. Finney 258 Campbell v. International Society.. 33, 153, 171, 176, 227 v.Young 134 Canton v. Nist 24 Carlton v. Lee 173 Carpenter's Case 259 Carpenters. Crane 114 Carroll v. Staten Island E. E 137, 195, 240 Carver's Case 199, 234, 242, 243, 247 Cary v. Chiswell 124 Case v. Smith 129, 219 v. Whitney i 125 Catlett t. M. E. Church 130, 211 v. Eay 142, 220 Cavellu. Peck 100 Ceralty v. Bangor 150 Chaffee v. Middlesex E. E 172 Chandler's Case 46 Chapman's Case 151, 167 CASES CITED. Xlll Cheeseborough v. Van Ness 167 Chestnut b. Harbaugh 118 Chicago v. Burton 177 E. W. v. Walch 137 Chiswelltt. Cary.... 124 Chopped. Whelden 139 Chrisman v. Tuttle 259 Church v. Thompson 166 Clapi;. Smith 218, 228 Clappu. Kale 118, 155, 220 Clark's Case 187 Clemens v. Link 177, 211 Cleydon v. Barrett 156 Clifford v. Knox 142, 21S Climer v. Moore 82, 212, 219 Clough v. Davis 129, 217, 219 v. Goggins 258 v. Shepherd 155 Coates v. Kiger.... 151, 154, 168 Cochran v. Hall 141 v. Eetberg 169 Cock b. Bunn 175 Cohoes v. Moran 185 Coken v. Fans 173 Coleman v. Henderson 161 Colton v. Harrison 129 v. Huidekoper 154, 165 Columbus v. Hastings 165, 167 Comyns v. Boyer 210 Conlan v. Peake 123 Connolly v. Boston 239 Cook v. Cox 149 e.Mohney 51, 147, 196 Corcoran v. Hall 140 v. Qointard 185 Corey v. Bath 41 Cornwallis v. Holye... 157 Cory v. Bath 223 v. Silcox 165 Cotton v. Huey 39, 160, 197 Cox's Case 183, 188, 191, 235, 243 Cox v. Cook 149 Crane v. Carpenter 114 Cransons. Goss 125, 142, 206 Creswell v. Green 174 Crewv. Neal 74, 179 Crocket's Case 234, 242 Crockett v. Yanderveer 211 Crombie v. Overholtzer 142 Crosby v. Blanchard 125, 127 Crosman v. Lynn 239 Crowley's Case 257 Crowther's Case 259 Cuffs v. Bainey 37, 132 Cayler v. Stevens ;. 172 D. Dale's Case 256 Dale b. Knepp..... 80, 228, 248 Damon v. Butler 174 Darby v. Byno 129, 130 David v. Barger , 126 Davidson v. Portland 150, 227 Davis v. Clough 129, 217, 219 v. Fish 33, 35, 156, 166 v. Somerville...42, 198, 233, 239 B.Stewart 142, 220, 223 Day v. Hazard 207 v. Johnston 113, 154 v. McAllister 130 Decker v. Troewert 134 De Fontaine b. Drury_ 205, 210 De Forth % W. & M. Co...:.. ..120, 229 Delameter b. Miller 226 Deming v. Allen 129, 133, 217, 219 Desotelle b. Lyons 148 Devries b. Summit 155 Dicken v. Peate 206 Dickerson b. Richmond 131 Dinsmore v. Police ...11, 232 Dixon's Case 256 Dodge's Case 175 Dodge v. Shaw 114 Dodson v. Harris 133 Doherty v. Nodine 142 Dohrman v. Adams.. 176 Dongan's Case 258 Douglas' Case 162 Dowdall v. King 175 Downs v. Merrill 121 Doyle v. Lynn 248 Drake's Case 116, 186 Drake b. Benson 143 v. Bush 127 Drury v. De Fontaine 205, 210 XIV CASES CITED. Duffie v. Allen 52 Dugan s. Sellers 10, 211 Dunham s. Hill 125, 218 Dupuy's Case 43 Duranl s. Rhener 131 Duryea v. Neuendorff. 18, 31, 38 Dutton s. Weare 223 B. Earles. Merritt 137, 151, 153 Easley s. Melvin 46, 49, 52, 67, 92, 96, 138, 200, 202, 216 EaBtwood v. Shippey 129 Eberle v. Mehrbach 214 Edgerton's Case 234, 241, 247, 250, 251 Edgerton s. Brockett 39 Edwards v. Hooper 37, 161, 213 v. Probst 220 Emnger's Case 187 Elkin's Case 173, 256 Elliotts. Levy 155 s. Story 154, 168, 172 Ellis s. Higgina 117 English v. Hiller 165 Ensor s. Witroffsky 167 Eskridge's Case 46, 187, 190 Evansville v. Morris 125, 216 Eyre's Case 35, 38 P. P. P. & S. W. v. Langabier 197 Fans i>. Coken 173 Faucet v. Page 167 Feital v. Middlesex R. E 136, 236, 238, 250 Felt s. Thayer 172, 174 Fenneller v. Ridler 40, 132, 197, 202, 206 Fenton's Case 182 Ferris v. Schreiner 257 Field s. Park 42, 159 Finneg s. Callendar 219 Finney v. Callendar... 258 Fish s. Davis 33, 35, 166 Fisher v. Kyle 142, 240 Fitchburg B. R. s. Butcher 137 Flagg s. Baker 219 s. Milbury 170, 232 Flanagan ». Meyer 125, 200 Flemings. King 125, 128 Flinn s. St. John 128 Fogg j). Barker 113, 213 Foltz's Case 259 Foreman v. Ahl 47, 117, 123, 213, 258 Fort v. Northrop 138, 207 Foster v. Smith 124, 143, 208, 213 v. Way 140 «;. Wooten 254, 255 Fox v. Abel 115 Freeman v. Solomons 173 French v. Robeson 138, 218 v. Varney 204 Friedeborn's Case 256 Frolickstein's Case 23, 67, 84, 92, 96 Frost v. Hull 245, 288 v. Plumb 141 Gr. Galbraith v. Ostertag 179 Galloways. Muir 176 Gangwere's Case..... 222 Gardiner v. Allen 39, 207, 219 Gargile v. Sawyer 167 Gates v. Kuhns 123, 128 Gavin s.Sims 129 Gay v. Adams 48, 57, 128, 214 Geary's Case 227 Geer s. Putnam 218 George s. George 41, 198j 205, 221, 224, 228 Gholston s. Gholston 34, 164 Gilbert v. Voebon 260 Gilman s. Berry 143 Gloster s. Morton 117, 140 Godfrey v. Allen 166 v. Green 117 Goff's Case 242 Gorman s. Lowell 239 Goss s. Cranson 725, 142, 206 Granger v. Grubb 45, 52, 229 Giant s. McGrath 136, 217 CASES CITED. XV •Greeley v. Pattee 213 Green's Case 177 Green v. Creswell 174 v. Godfrey 117 v. King 118 Greenbury v. Wilkins 219 Greenwood v. Blunt 175 Greer v. Wright 219 Gregg v. Wyman 139 Gregory's Case 184 Griffin's Case 29, 185 Griffin v. Borst 175 Grubb v Granger 45, 52 H. Hadley v. Sneviley 48, 130, 215, 259 Hagan v. Moore 39, 45 Hagdock v. Tracy 211 Hale v. Clapp 118, 135, 220 Hall's Case 180, 188 Hall v. Cochran 141 v. Corcoran 140 v. Parker 124 Samell v. Adams 202, 219 Hamilton v. Austin 230, 247 v. Boston 227 Hammond v. American Co 171, 172 Hamon v. Kauffman 219 Hampton v. Sims 176 Hanlon v. Prather 125 Harbaugh v. Chestnut 118 Harboard v. Perrigal 173 Harris v. Dodson 133 v.Morse 126 Harrison's Case 184, 190, 191, 251 Harrison v. Colton.. 129 v. Marshall 141 v. Powers 260 Harvey's Case 183 Has' Case-.... 21, 227 Hassey's Case 180, 183 Hastings v. Columbus 154, 156, 165, 167, 229 Hatch v. Moseley 218 Hayne's Case 15 Haynes v. Sledge 151, 160, 161 Hazard v. Day 207 Heinnsen's Case 186 Heller V.Crawford 225 Hemmens v. Bentley 166 Henderson v. Coleman 161 v. Keynolds 165, 170 Hennersdorf's Case 232, 233, 234, 247 Higgina v. Ellis 117 Hill v. Dunham 125, 218 v. Sherwood 135, 213, 219 v. Wilker 219 Hillams v. Abercrombie 208 Hiller v. English 165 Hinkley v. Tuckerman 130 Hogan's Case. 7 75 Holcomb v. Danby 240, 251 Holye v. Cornwallis 157 Hooper v. Edwards 37, 161,. 213, 246, 252 Hoover's Case 187 Horacek v. Eeebler 211 Hortonv. Buffington .....118, 121 Houliston v. Parsons 142 Howard's Case 168 Hoym's Case 195 Hubbard v. Woodman 140, 141, 211, 223 Huey v. Cotton 39, 160, 197 Huffman's Case 165 Huidekoper v. Colton 154 Hull v. Frost 208 Humphrey v. Schmidt...: 148 Hussey's Case 183 Hyneman's Case 21 I. International Society v. Campbell.. 33, 153, 171, 176 Irasburg v. Johnson 150 Irvin v. Bass 34, 155, 165 Isaacs v. B. H. Soc 168 J. Jackson v. Bichards 172 Jeandelle's Case 18, 33, 45, 48, 52, 53, 63, 196, 238 XVI CASES CITED. Jeflerson v. Wentworth 146 Jenks v. Tracy 124, 167 Jennings v. Nett 173 John's Case 24 Johns v. Bailey 143 Johnson v. Blakesley... 216 v. Brown 170 v. Day 113, 154, 229 v. Irasburg.,150, 236, 240, 250 v.Morgan 158 v. Sanders 215, 221 v. Wills -. 127 Johnston's Case 35, 38, 44, 51, 63, 162, 195, 196, 232, 234, 237 Jones v. Andover 148, 232, 245 v. Perkins 128, 132 v. Sumner 133 Josselyn's Case 241 Jnnemann's Case 179 K. Karwiseh's Case 24, 36, 37, 52 Kauffman v. Hamon 219 Keebler v. Horacek 211 Keefer v. Kepner 208, 213, 219, 221 Keeter v. Same 170 Keith v. Tuttle 159, 229 Kelsey v. Butler 159 Kendall v. Moore 117 Kendig's Case .-123, 213 Kepner v. Keefer 208, 213, 219, 221 Kiger v. Coates 151, 154, 168 Kilgour v. Miles 36, 116, 171 Kimball v. Bichardson 144 King's Case 88, 89, 162, 179, 182, 183, 189, 206, 208, 210 King v, Dowdall 175 v. Fleming 125, 128 v. Green 118 Kinney v. McDermott 118 Klopf v. Shields 135 Klure's Case 182 Knepp v. Dale 80 Knox's Case 223, 236 Knox v. Clifford.. 142, 213 Koser's Case 16, 30, 53, 83, 226 Kountzu. Price 47, 130, 219 Krank's Case 188, 190 Kuhns v. Gates 123, 128 Kurtz's Case 26 Kuttz's Case 183 Kyle v. Amis 45, 171, 207 v. Fisher 142 L. L. & W. E. B.'s Case 233, 234, 235, 236, 238 L., N. O. & C. E. E. Co. v. Buck.... 256 Ladd». Eodgers 130 Lamore v. Frisbie 126, 127 Landers v. E. E. Co 236, 240 v. S. I. E. E 90, 137, 200* Langs. White 150 Langabier v. E. E 161, 197 Larrabee v. Towle 194, 219 Lalhope's Case 182 Latner v. Parker 141 Lee v. Butler 129 v. Carlton 173 Lehman v. P., W- & B 116, 200, 212 Lehritter's Case 186, 188 Leiberman's Case 257 Leowolf v. Stebbins 170, 171 Levering v. Bussard 172 Levi v. Begbie 126, 142, 206, 211 Levy v. Elliott 155 Lewis v. Tassell 172 Lidford v. Thomas. 161 Linck'sCase 10, 24, 25, 66 Lincoln v. Bullock 157 Lindenmuller's Case 9, 10, 15, 18, 24, 35, 38, 43, 48, 74, 80, 91, 96 Lindsay v. City of Parsons..., 165 Link v. Clemens 177, 211 v. Clemmens 229 Linn v. Pope 129, 142 Logan v. Mathews 249 Long's Case 207 Louisville and Nashville E. E.'s Case. 82 Love v. Wells 124, 144 Lovejoy ». Whipple 125, 202, 219 Loveridge v. Plaislon 159 Lundstrom's Case 102 CASES CITED. XV11 Luther's Case 175, 178 Lynch's Case 183, 184, 186 Lynch v. Miller 209 Lyon v. Sands 170 v. Strong 55, 66, 123, 133, 138, 197, 211, 217, 230, 231, 250 Lyons v. Desotelle 148 M. M. E. Church v. Catlett 130, 211 Mace v. Putman 246 Mackally's Case 154 Mane's Case 184 Manhattan Co. v. French 242 Marmont's Case 171' Marre>s Case 188 Marshall v. Harrison... 141 Martin's Case 189 Marx's Case 253 Matthews v. Ansley 155, 16l, 229 Maxwell's Case 187 Mayberry v. Bank of Cumberland.. 143 McAllister v. Day 120 McArthur v. G. B, & M. Co 224 McCarty v. Melchoir 118, 129, 213 McClary v. Lowell... 232 McComb v. Shaw 46, 165 MeCorkie's Case 164 McDermott v. Kinney ._ 118 McGatrick v. Wason...82, 232, 233, 247 McGirnsey's Case.. 166 McGrath v. Grant 136, 217 v. Merwin 149, 243 Mclllhan v. Smith 156 McKi nnes v. Estes 255 McMurray v. Block.... 213 Meaderfl. White ....217, 228 Megowan's Case 185, 187, 188 Mehrbach v. Eberle.... 214 Meinrath v. Myers 132 Melchoir v. McCarty 118, 129, 213 Melvin v. Easley 46, 49, 52, 67, 92, 96, 138, 200, 202, 216 Meng v. Winkleman 176 Merriam v. Stearns 126 Merrill v. Downs 121, 226 v. Webber 164 Merrimack Nav. Co. v. Wallace... 149 Merritttt. Earle 137, 151, 153, 224 v. Robinson 211, 230 Merriwether v. Smith 131 Merwin v. McGrath 149 Meyer v. Flanagan 125 Michie v. Michie 178 Middlesex B. E. v. Chaffee 172 v. Feital 136 Milbury v. Flagg 170 Miles u. Kilgour 171 Millegan v. Wilson 135 Miller v. Lynch , 209 v. Eoesler 37, 200, 214 v. Boessler 225 Mills v. Kilgour.... 36, 116 v. Williams 208 Minock's Case 9, 13 Minor's Case 181 Minturn v. Brooks 170 Mist's Case 26 Mist v. Canton 24 Mitchell v. Smith 211 Mohney i. Cook 51, 80, 147, 196 Monkhouse v. Boberts 158 Moore v. Climer 82, 2-12, 219 v. Hogan 33, 34, 38, 45 v. Kendall 117 Moran v. Cohoes 185 Morgan v. Bailey ...127, 208 v. Johnson..... 158 v. Scarfe 121 Morris' Case 241 Morris v. Evansville 125, 216 Morse's Case 188 Morse v. Harris 126 Mortimer's Case 158 Morton v. Gloster 117, 140 Mosby v. Arthur '. 166 Moseley v.. Hatch 218 Mowrey v. Tucker 129, 132, 213 Muir v. Galloway 176 Muller's Case 232, 234, 235, 244, 250, 251 Mumford v. BueL..., 115 Murdock v. Eussell 135, 136, 216 Murphy's Case 186 Murphy v. Thompson 138, 199, 211 XV111 CASES CITED. Myer v. Flanagan 200 Myers' Case 158, 182, 199, 236, 251 Myers v. Meinroth 132 N. Nabobs Case 165, 179 Nagle's Case 184 Nagle s. Brown 227 Nation's Case 188 Neal s. Crew 74, 179 Nelson's Case 247 Nesbit's Case 20, 37, 38, 44, 48, 63, 185, 232, 234, 238, 247 Nett v. Jennings 173 Neuendorff s. Duryea 11, 18, 31, 78 Newman's Case 8 Nodine v. Doherty 142 Norfolk & W. E. E. Co.'s Case 258 Northrop s. Fort 138, 195, 207 Odell's Case 167 O'Donnell s. Sweeney 47 Ohmer's Case 201, 232, 234, 245 Omit's Case 37, 44, 47, 180, 185, 188 O'Bonrke s. O'Eourke. 260 Ostertag s. Galbraith 179 Overholtzer v. Crombie 142 P. & H. Co. v. P., W. & B. E. E... 146 P. S. Co. v. C. E. Co 136 P., W. & B. s. Lehman 116, 200, 212, 245 E. E. s. P. & H. Co... 146 Paddock s. Van Vechten...42, 151, 159 Page's Case 186 Page v. Boynton 34, 214 v. Faucet , 167 Palmer s. New York 229 s. Plaisted 122, 133 Pancake's Case 182, 188 Parks. Field 42, 159 Parker s. Hall 124 s. Latner 141 Parker s. Pitts.. 135 Parnell's Case ....39, 186 Parsons s. Houliston 142 Pates. Wright 128,233, 245 Pattee s. Greeley 213 Pattersons. Patterson 169 Paul s.Williams 47, 133 Peake s. Con I an 123 Pearce s. Atwood 34, 42, 77, 159 s. Richardson 124 Peate s. Dicken 206 Peck s. Cavell 160 s. Vinton 142 Penley's Case 163 Perkins s. Jones 132 Perrigal v. Harboard 173 Phillips s. Jnnes 232, 245 s. Phillips 260 s. Taylor 158 Piollet s. Simmers 147 Pitts s. Parker 135 Plaisted s. Palmer 122, 133 Plaiston s. Loveridge 159 Plumb s. Frost 141 Plumley s. True 164 Plunkett's Case 182 Police s. Dinsmore 11 Polin's Case 168 Popes. Linn 129, 142 Portland s. Davidson 150 Prather s. Hanlon 125 Presmyer's Case 185 Preston's Case 225 Prices. Kountz 47, 130, 219 Priestman's Case 103 Prisor's Case 156 Probst s. Edwards 220 Pulling's Case 115, 163 Putnam v. Geer , 218 Quickenden s. Roberts 175 Quintard v. Corcoran 185, 190 E. E. v. Langabier 161 CASES CITED. XIX R. R. Co. v. Landles 90, 200 Rainey v. Cuffs 37, 132 Rapp v. Reehling 228, 257 Rau's Case 181, 190 Ray». Catlett 142, 220 Rea i). Bradley 123, 130, 138 Read's Case 178 Reeves v. Batcher 129, 134, 209, 211, 219 Reid's Case 161, 165, 199 Eetberg v. Cochran.. 169 Reynolds v. Henderson 165, 170 v. Stevenson 219 Khener v. Durant 131 Rice's Case 160,162, 211 Richards v. Bloom 81, 200, 211, 212 v.Jackson 172 Richardson v. Kimball 144 v. Pierce 124 Richmond v. Dickerson 131 Rickett's Case ...34, 84, 163 Ridgeley's Case 176 Ridler v. Fenneller 40, 132, 197, 202, 206 Roberson v. French 138, 218 Roberts v. Monkbouse 158 v. Qnickenden 175 v. Sherman 126 Robinson v. Merritt 211 Roessleru. Miller 37, 200, 214 Rogers v. Ladd 117, 130 v. Telegraph Co 133, 211, 224, 247 Rosenbaum's Case 190, 191 Rosenblatt v. Trunsley 121 Rothschild's Case 26, 208 Rover's Case 166 Roy's Case 187, 190 Rucker's Case 257 Ruggle's Case 33, 34, 37, 38 Russell v. Murdock 135, 136, 216 Ryan's Case .'...189, 229, 254, 259 Ryno v. Darby 129 S. Sales v. Smith 79, 167 Salter's Case 249 Salter ». Burt 169, 17.2 v. Smith 26 Saltmarsh v. Tuthill '. 143, 220 Sampson's Case 232, 233, 242 Sanders v. Johnson.... 16, 215, 221, 260 Sands v. Lyon 170 Sawyer ». Gargile 167 Sayles v. Smith 42, 79, 226 v. Wellman 41, 128, 134 Sayrec Wheeler 220, 246 Scale's Case 88,253, 259 Scammon's Case 49, 65, 159, 167 Scarfe ». Morgan 121, 206 Schmidt v. Humphrey... 148 Schnat v. Rigby 255 Schulle's Case 246 Scranton's Case 183, 253, 258 Scribner v. Whitcher 178 Seammon's Case 151, 159, 167, 199 Sellers v. Dugan 10, 211 Sergeant v. Butts 119 Sewell v. Webster 146 Shadwell v. Angell 173 Shanischan's Case 259, 260 Shank v. Shoemaker 167 Shaw's Case 1S1 Shaw v. Dodge 114 v. McComb 46, 165 v. Williams 167, 208 Sheffield v. Banner 222 Shepherd v. Clough 155 Shepler's Case 259 Sherman v. Roberts 126 Sherwood «. Hill 213, 219 Shields v. Klopf 135 Shippey d. Eastwood 129 Shoemaker v. Shank 167 Shaver's Case 49, 52 Shreveport v. Levy 23 Sbuman v. Shuman 117, 124, 211 SHcox v. Cory 165 Simes v. Gwin 129 Simmers v. Fiollet 147 Sims v. Hamptop 176 Slade v. Arnold 138, 211, 213 Sledge v. Haynes 151, 160, 161 Sloan v. Willifrod 167 Smith's Case 181, 258 CASES CITED. Smith v. Berrill 215 v. Boston E. E 236, 239, 250 v. Case. 129, 181, 219 v. Clapp 2, 181 v. Foster.,124, 143, 208, 213, 220 v. Mcllllian 156 v. Merriwether .. 131 v. Mitchell 211 v. N.Y., &c 238 v. Salter 36 v. Sayles 42, 79, 167 d. Sparrow 124, 194, 202, 218 u.Wilcox 227, 246 v. Wilcoxon 42, 195, 211, 217, 222 Sneviley v. Hadley 48, 130, 215 Solomons v. Freeman 173 Somerville v. Davis 42, 198 Sough rbough's Case 259 Sparhawk's Case 238, 246 Sparhawk v. Union E. W 45, 57, 58, 77, 203, 208, 224 Sparrow v. Smith 124, 194, 202, 218 Specht's Case 9, 19, 21, 23, 86, 91 Splain's Case 257 St. John v. Flinn 128 St. Louis Assn. v. Delano 257 Stackpole v. Symonds 131 State v. Railroad 13 Staten Island E. E. v. Carroll..l37, 195 Staunton v. Met. E. Co 238 Stearns v. Merriam 126 Stebbins v. Leowolf 170, 171 Stern's Case 160 Stevens v. Stone 177 v. Wood 143, 218, 260 Stevenson v. Reynolds 219 Stewart v. Avery... 172, 220 v. Davis 142, 220, 223, 251 Stockden's Case 35, 39 Stokes v. Waite 145 Stone v. Graves 246 v. Stevens 177 Story v. Elliott 154, 168 Strong v. Elliott 172 v. Lyon 55, 123, 133, 138, 197, 211, 217 Stryker v. Vanderbilt 171 Studley v. Sturt 172 Sturt v. Studley 172 Suhur's Case 160, 162, 174 Sullivan v. Maine Cent. E. E..236, 251 Summit v. Devries 155 Sumner v. Jones 133 Sundstrom's Case 87, 185, 234, 253 Sutton j». Wauwatosa 147 Swann v. Broome 152 Sweeney v. O'Donnell.. 47 Swift D.Boston 148 Swisher v. Williams 37, 211, 216 Symonds v. Stackpole 131 Tash maker v. Edmonton 248 Tasselln. Lewis 172 Taylor's Case .'. 157 Taylor v. Phillips 158 v. Walgrave 156 v. Young 134 Teaman's Case 199 Telegraph Co. v. Eogers 133, 211 Thayer v. Felt 172, 174 Thomas v. Lidford 161 Thomasson's Case.. 3, 11, 67, 190 Thompsonu. Bank 143, 197 v. Church 166- v; Murphy 138, 199, 211 D.Turner 179 ». Williams 118, 205 Thorr's Case 27 Tieman's Case 37, 44 Tillock v. Webb 130, 141, 248 Tingle v. C, B. &c. E. E. Co 255 Towle v. Larrabee 219 Tracey v. Haddock , 211 Tracy v. Jenks 124, 167 Troewert v. Decker 134, 228, 260 True v. Plumley 164 Trunsley v. Eosenblatt 121 Tucker v. Mowrey 129, 132, 213 v. West 39, 74, 127, 129, 134, 196, 211, 220 Tuckerman v. Hinkley 130, 229 Tuckey's Case 184 Turner's Case 241 CASES CITED. XXI Turner v. Thompson 179 Tuthill v. Saltmarsh 143, 220 U. Uhler v. Applegate 134 Ulster's Case 169 Ungericht's Case 246 TJpdyke v. Wheeler 258 Usener's Case 259 Otter's Case 189 V. Van Campen v. Brimhell 219 Vanderbiltu. Stryker 171 Yanderwerker's Case 168 Van Ness v. Cheeseborough 167 Van Riper v. Van Riper 164 Van Sickle's Case 216 Van Vechten v. Paddock...42, 151, 159 Varney v. French 204 Vinor v. Bartlett 210 Vinton v. Peck 142 Vulcan's Case 177 W. W. & M. Co. v. De Forth 120 •W. W. Co. v. Way 256 Wacker's Case 185 Waf's Case. 43, 90 Walch v. Chicago R. W 137 Waldegrave'-s Case 157 Walgrave v. Taylor 156 Walker's Case.. 86, 102 Wallace v. Merrimack Nav. Co.... 149 Walter v. Beaumont 173 Wason v. McGatrick 82 Walt's Case 162 Watts v. Van Ness 245 Wauwatosa v. Sutton 147 Way d. Foster 140 Weare v. Dutton 223 Webb v. Tillock ISO, 141 Webber v. Merrill 164 Webster v. Sewell 146 Weis' Case 181 Weldon's Case ...34, 165, 196, 249 Weldvogel's Case 184 Wellington v. Broome 176 Wellman v. Sayles 41, 128, K4 Wells v. Love 121, 144 Wentworth v. Jefferson 146 v. Woodside 197, 230 Werner's Case 187 Werts v. Banks 128, 133, 211 Wessels v. Beman 125 West v. Tucker 39, 74, 127, 129, 134, 196, 211, 220 Westerfield's Case 29, 243 Wheldon v. Choppel...". 139 Whitcher v. Scribner 178 Whitcomb v. Gilman 232, 241, 247 White's Case 155 White, Ex parte 151 v. Lang 150 v. Meader 217 v. Wilson 162 Whitfield v. Bland 160 Whitney v. Case 125 Whipple v. Lovejpy..l25, 202, 211, 219 Wilcox's Case 102, 104 Wilcox v. Smith 42, 211, 217, 222 Wilker B.Hill 75, 219 Wilkinson's Case_ 234, 241 Williams' Case 46, 57, 77, 84, 203, 214 Williams v. Bloxsome..33, 122, 138, 205 v. Johnson 127 v. Mills 208 v. Paul 47, 133 v. Shaw 167, 208 v. Swisher 37, 211, 216 v. Thompson 118, 205 Willifrod v. Sloan 167 Wilson v. Millegan 135 u.White 162 Wilton v. Gavin ;. 226 Winkleman v. Meng 176 Witroffsky v. Ensor 167 Wolf's Case 22 Wolforth's Case 190 Wood v. Brooklyn 26, 38, 162, 185 v. Stevens. 218 Woodman v. Hubbard 140, 141, 211, 223, 224 XXII CASES CITED. Woodside v. Wentworth 197 Wright v. Geer 219 v. Pate 128 Wyman v. Gregg 139 Y. York v. Ackerman 166 Young v. Campbell 134 Young v. Taylor 13* Younger's Case 48, 194 r 230, 235, 243, 250 Yudd v. Apsahl 137 Z. Zamplin v. Still 255. SUNDAY. Legal Aspects of the First Day of the Week. CHAPTER I. CONSTITUTIONALITY OF SUNDAY LAWS IN THE UNITED STATES. Ik Genebal. Special regulations for the conduct of citizens on the first day of the week are usually among the first enactments of an American commonwealth. The manner in which such legislation has been treated by the courts forms a most curious and interesting chapter in our constitutional history. What follows is an attempt to digest the decisions on this subject, and to analyze their reasoning, in order to ascertain how far the conclusions reached are defensible in them- selves, and how far they must depend for acceptance on mere weight of authority. For this purpose the points which may be regarded as settled have been arranged in a series of propositions, corollaries, &c., showing their connection and inter-dependence. The following general statement, made in Louisiana in 1879, fitly introduces the subject: "The constitution of the United States forbids the congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof. But this is an inhibition to congress only, leaving to the state governments the whole power over the subject of religion. There are considerable differences in LEGAL ASPECTS OF THE the various state constitutions on this subject, but the general pro- vision of the most perfect equality before the law of all shades of religious belief is common to all of them/ »i PROPOSITION I. Inhibitions of Work, Business, Amusements and Liquor-selling are Constitutional. I. The Proposition Denied. — The constitutionality of inhi- bitions of labor, business, &c., on Sunday has been denied in a few instances. The Supreme Bench of Indiana thus dealt with the question in 1860: " Can the Sunday law be maintained as a mere police regulation, without reference to an institution of religion ? Could the legisla- ture enact a law that no man should labor on New Year's day ? The legislature enacts a law that no man shall compel his children, apprentices or employes to labor more than ten hours a day, and it may be well. Such a law may be a reasonable regulation of labor, to protect the weak from the oppression of the strong, but has the legislature ever attempted to enact a law that the father or employer should not himself labor more than ten hours a day, if he preferred to doso? a So, perhaps, the legislature, on the same principle, might «nact a law that no man should compel those under him to labor more than six days in a week ; that he should allow one-seventh of the days for rest; but could it enact that no individual should labor for himself but six-sevenths of the days ? "We express no fixed opinion on this point, as the case does not require it. Does it not 1 Bolts Case, 31 La. Ann. 663. idleness, which is the precise object and 2 The only legislation limiting the result of Sunday laws. An example power of adult employers to contract may be found in the Maryland statute, with adult employes for so many hours' 1886, ch. I., p. 63, wherein horse rail- work per day as may be agreeable to way companies are forbidden to "re- both, except the Sunday laws, is the quire, permit or suffer " their employes outcome of "labor agitation" — that is to work more than twelve hours in each to say, agitation for the promotion of twenty-four. PIEST DAY OP THE WEEK. 3 involve the patriarchal theory of government?" 1 And the court refers to Newman's Case, in California, cited post. The question was involved in a case at nisi prius, in South Carolina, in 1846. A Jew was arrested for selling goods in violation of an ordinance of the city of Charleston. The recorder who decided the case below declared that, according to his own religious faith, Sunday was peculiarly devoted and set apart to Christian worship, and was a day on which the ordinary secular employments of men, or, in the language of the church, "all servile works" should be sus- pended. But he asked, "By what authority, consistent with the entire freedom of religious faith and worship, guaranteed to all alike, of whatever religious sect or community, whether Jew or Christian, can the civil power ordain that on the day kept by Christians as a holiday 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 holiday; although, according to his religious faith, he is required to keep another and a different day as sacred to religion ? * * * The constitution professes to give to all mankind an •entire and perfect equality of freedom in religious faith and wor- ship, without discrimination or preference. Is it no discrimination ■or preference to select, by the civil law of the state, the day con- sidered 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 requir- ing all others to abstain from every species of labor or employment, while the Jewish Sabbath is protected by no similar regulation? * * * It may well be asked whether, if the Jews should happen to have a majority, they could 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. * * * In truth, this provision appears to furnish ample security, and perhaps the only one, against undue encroachments on religious liberty by the legislative power, amidst all fluctuations, and to place, at all times and forever, freedom of conscience beyond the reach of any dominant or preponderating opinions, which numbers may at any time give to a particular religious sect, or to any prevailing 1 Thomasson's Case, 15 Ind. 449. 4 LEGAL ASPECTS OF THE creed of the day." He then points out that the ordinance was copied almost literally from a section of a statute enacted in 1712, when the people were required, under penalty, to attend their parish church and remain there devoutly during divine service, and for- bidden to travel, except to and from church, or on an errand of charity ; which statute, he thinks, is obsolete, and is repealed by the provision guarding against discrimination between religions. And he holds that this old act was not revived, in any of its features, by the city ordinance. He then considers the argument that the law is a mere police regulation. He says that all laws and ordinances- connected with the observance of Sunday are not necessarily inopera- tive, for, " while it may be held that no law of the state or of any subordinate corporation can require the. conscientious Israelite to keep the Christian Sunday by abstaining 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 labor, or in any other way, there may be enactments founded on the observance in fact by a large majority of its citizens of any particular day as a holy day." And he instances the law against retailing liquor, the act exempting slaves from labor (necessary occasions of the family excepted), the act forbidding the issue or service of legal process, and the act punishing those who disturb a religious corpo- ration, which is not confined to the Lord's day. He adds that he does not deem it pertinent to refer in this connection to the English statutes or decisions, because " where, as in that country, church and state are united, and not only particular religious faith, but a particular form of religious worship prescribed by law, it is in vain to look for illustrations of the freedom of religious faith and wor- ship which it was the glory of our ancestors to attain * * * and it is the design of the constitution to secure and perpetuate." He considers that it is equally unnecessary to trace the history of the day in the decrees of councils, &C. 1 But by far the most im- portant case holding the negative of this question, is that decided in California in 1858. The statute under consideration was entitled "An act for the better observance of the Sabbath," and the body of 1 Benjamin's Case, 2 Strob. 508. This decision was rev-ersed on appeal. See post. FIRST DAY OF THE WEEK. 5 the act alluded to the first day of the week as " The Christian Sab- bath." Terry, C. J., and B&*nett, J., delivered opinions setting forth the views of the majority of the court. The former proceeded to show that it was a "discrimination" between religions, saying, in reference to decisions to the contrary in other states, that, "While we entertain a profound respect for the courts of our sister states, we Ibid. i Amis v. Kyle, 2 Yerg. 31 (1820). * Granger v. Grubb, 7 Phil. 350 (1870). 46 LEGAL ASPECTS OF THE against liquor-selling was to prevent the desecration of the day which by our law is dedicated to, the duties of religion by the sale of an article the use of which is calculated to produce the most shameless disregard of those duties. 1 And we find the Sunday laws of Delaware cited as " legal proofs of what has been, and now is, the religion preferred by the people of Delaware;"* and the court added : " Independent of these, and other evidence existing on the statute book of the state, we are bound to notice, as judges acting under the authority of the people at all times, what is that religion which they have voluntarily preferred. We know not only from the oaths that are administered by our authority to witnesses and jurors, but from that evidence to which every man may resort without these walls, that the religion of the people of Delaware is Christian." * It is also the opinion of the North Carolina court that Sunday is "A day set apart expressly for recreation, and for the worship of Almighty God"* and that Sunday work "offends us not so much because it disturbs- us in practicing for ourselves -the religious duties, or enjoying the salutary repose, or recreation of that day, as that it is, in itself, a breach of God's lay), and a viola- tion of the party's own religious duty;" 1 and the court quotes the passage cited above from Blackstone, and proceeds as follows : " We perfectly concur in the eloquent passage in the commentaries on the propriety and political necessity of keeping one day of the week for the purposes of public worship, relaxation and refreshment. The institution, wherever it has existed, has proved to be a great good, promoting private virtue and happiness among all classes, and the public morals and prosperity. It is, therefore, fit that every com- monwealth, and especially one in which Christianity is generally professed, should set apart by law a day for these purposes, and enforce its due observance by such sanctions as may seem adequate." So, in South Carolina, " all temporal business transacted is void, as the day is set apart by our holy religion for the worship of the Almighty, and the necessary preparations for that purpose ; " 6 and in Mississippi the Sunday law is spoken of as "a statute wisely intended to promote public morals, and to induce the observance of 1 Eskridge's Case, 1 Swan 413 (1852). 4 Melvin v. Easley, 7 Jones 356 (1860). * Chandler's Case, 2 Harr. 553 (1837). 6 Williams' Case, 4 Ired. 400 (1844). 8 Ibid. 6 Shaw v. McCombs. 2 Bav 232 ( 17991. FIBST DAY OP THE WEEK. 47 the duties of religion in society ; " ' and in Alabama its object is de- clared to be "to promote morality, and advance the interests of religion." * PROPOSITION IV. There is a Divine Command that Men Shall be Idle on Sunday; and this Command is an Element of Christianity. It is evident that the reasoning of the preceding cases establishes for the Sunday statutes a position absolutely unique in American jurisprudence. Their sanction is drawn not from the will of the people, but from a " revelation " of the will of Deity. Whether the legislature, in passing them, is itself a sanctifying agent, or whether it is merelv " recognizing " a sanctity already possessed, it is acting as the channel or declarer of divine will, like Moses of old, and not as the representative of the people. For such laws, the phrase " Be it enacted " is a meaningless formula, and " Thus saith the Lord " is their proper mode of introduction. It is no wonder, then, that, in the view of the judges who have adopted this construction of the Sunday laws, "the consent of the governed" disappears altogether as a basis of government, and the right by which kings and emperors claim to reign is postulated as their true foundation. Thus, in England, Park, J., said: "I should be sorry to, be supposed to recede from the cases deeided on this point and the principle estab- lished to enforce the observance of the Lord's day, which tends so eminently to the advantage of society, since no laws can be of any .avail except so far oys they are founded on religion;" 3 and, in Penn- sylvania, we are told, " Rest one day in seven was enjoined by the precept and example of the Author of our existence, and govern- ment, founding itself on divine appointment, has made it a civil institution;" 4 for " worldly employment on the Lord's day is in ■violation of the divine command." 3 But there is a Pennsylvania 1 Kauniz v. Price, 40 Miss. 341 (1866). 6 Foreman v. AM, 53 Pa. 325 (1866). 2 CDonnell v. Sweeney, 5 Ala. 467 In a previous case in this state we find •(1843). the court broadly hinting that an in- ' Williams?. Paul,6Bing. 653(1830). fraction of this "divine" law might * Omit's Case, 21 Pa. 426 (1853). affect one's property rights, independent 48 LEGAL ASPECTS OF THE decision which expressly repudiates jurisdiction of the civil courts in matters of divine law, saying of a defendant, " guiltless before the civil law, by the divine law, as such, we have no authority to- judge him." 1 And the cases generally do not deem it necessary to claim, in express words, a " divine " foundation for civil gov- ernment, in order to justify the statutory requirements of Sunday idleness. The reasoning of most of the decisions which regard such laws as designed to enforce a religious tenet seems to be about as follows: (1) The "observance" of Sunday consists in being idle; (2) this observance is a part of Christianity ; (3) Christianity is a part of the common law ; (4) the common law is a part of our law ; (5) constitutional limitations of the legislative authority in matters of religion and constitutional guaranties of religious liberty are to be construed with reference to these fundamental. principles; (6) so construing them, they do not restrain «the legislature from making idleness on Sunday compulsory. The first of this series of propositions is generally taken for granted, and will be recurred to hereafter. The second is judicially established. An English judge said of Sunday : " It was extremely wise to put a mark on that day ; by observing it Christianity may- be kept alive;" 3 and we are told, in New York, that, "as a civil institution, the selection of a day is at the option of the legislature ; but, for a Christian people, it is highly fit and proper that the day observed should be that which is regarded as the Christian Sab- bath;" 1 and, in Vermont, "whatever might be the feelings of any member of the court in regard to the propriety of observing other days also as religious fasts or festivals, there could be but one opinion in regard to the strict observance of the Lord's day among consistent Christians;"* and, in Pennsylvania, " Christians of all denomina- tions look upon the institution of the Sabbath as of divine origin ;" 6 and, alluding to the discharge of their duties by public officials, the of any statute on the subject. In 1841 * Nesbit's Case, 34 Pa. 398. it was said that zeal for Sabbath ob- 2 Kenyon, C. J., in Younger's Case, 5 servance "cannot avail a defendant, T. K. 449 (1793). who has the possession of property, • Lindenmuller's Case, 33 Barb. 548 without paying for it, unless he proves (1861). that the plaintiff has violated some law, * Adams y. Oay, 19 Vt. 358 (1847). human or divine" [sic/] Hadly v. * Jeandelltts Case, 2 Grant 506 (1859). "y, 1 W. & S. 477. FIKST DAY OF THE WEEK. 49 court said : " These form their worldly business, which the policy of our law, founded on principles of Christianity, interdicts them from performing. If the public functionaries are to open their offices for the transaction of their ordinary employments, I scarcely need to observe that the vestige of a Sabbath would not long remain amongst us;" and the Illinois court considers it " clear, that to per- mit officers to intrude upon families on Sundays, for service of civil process, would be a violation of the spirit and policy of this law, and unbecoming a Christian community;" 1 and, in Arkansas, ^ "Sunday, or the Sabbath, is properly and emphatically called the Lord's day, and is one amongst the first and most sacred institutions of the Christian religion;"* while a North Carolina judge says : " It . is well known that the Christian Sabbath, sometimes called the ' Lord's day,' but more commonly ' Sunday,' is a Christian institu- i tion, and I cannot perceive any good reason why our legislature k may not direct it to be observed by any person, and in any manner ^ which their wisdom may suggest, for the happiness of the people and the welfare of the state, saving and reserving always to every person the right to worship God according to the dictates of his PROPOSITION V. This Divine Command is a Part of American Constitutional Law. Almost all the states have, by the language of their constitutions,, adopted the common law of England, though frequently they add,. " so far as applicable," or some equivalent phrase. The constitu- tions also provide, in language more or less explicit, against any " preference " being given by the state to one form of religion over any other. Under the established rules of construction, both these provisions must stand, if it be reasonably possible for them to do so ; and this can only be accomplished by taking their joint signifi- cance to be that the common law is adopted with the exception of 1 Scammon's Case, 40 Ill.J 146 (1866). • Mdvin v. Easley, 7 Jones 356. * Shover") Case, 10 Ark. 259 (1850). 4 50 LEGAL ASPECTS OF THE that portion of it, if any, which implies a preference of one form of religion to another. But it is settled judicially that Christianity is " preferred " by the common law to such an extent that it is actually a component part of it ; that the common law, again, prefer- ence and all, is a part of the fundamental law of American common- wealths ; and £hat thus the idle Sunday is an " institution " which is beyond legislative control, which legislatures may indeed " recog- nize," but which derives its sanction primarily from a system of religious belief which has been adopted into-the constitutions of the several states. This position of the idle Sunday in American law is established by the following citations : "Christianity, in its enlarged sense, as a religion revealed and taught in the Bible, is not unknown to our law. The statute for preventing immorality consecrates the first day of the week as holy time, and considers the violation of it as immoral. This was only the continuation, in substance, of a law of the colony, which declared that the -profanation of the Lord's day was the great scandal of the Christian faith." x " The Christian Sabbath is one of the civil in- stitutions of the state, to which the business and duties of life are, by the common law, made to adapt and conform themselves. The same cannot be said of the Jewish Sabbath, or the day observed by the followers of any other religion. The respect paid to such days, other than that voluntarily paid by those observing them as days of worship, is in obedience to positive law." * " With us, the Sab- bath, as a civil institution, is older than the government. Thejramers of the first constitution found it in existence; they recognized it in their acts, and they did not abolish it, or alter it, or lessen its sanc- tions, or the obligations of the people to observe it." 8 "In this state, the Sabbath exists, as a day of rest, by the common law, and without the necessity of legislative action to establish it, and all that the legislature attempts to do in the Sabbath laws is to regulate its observance." * "It is no violation of the rights of conscience that the day should be respected by the law-making power. The esdst- 1 People v. Buggies, 8 Johns. 290 • Id. 568. (1811). *IS. 569. ' Lindenmuller's Case, 33 Barb. 548 (1861). FIRST DAY OF THE WEEK. 51 ■enoe of the Sabbath day, as a civil institution, being conceded, as it must be, the right of the legislature to control and regulate it and its observance is a necessary sequence." 1 In Pennsylvania: "The ■common law adopted it (the idle Sunday) along with Christianity, of which it is one of the bulwarks ; " * " the declaration that Chris- tianity is part of the law of the land is a summary description of an existing and very obvious condition of our institutions. We are a Christian people, in so far as we have entered into the spirit of ^Christian institutions, and become imbued with the sentiments and principles of Christianity, and we cannot be imbued with them, and yet prevent them from entering into, and influencing, more or less, all our social institutions, customs and relations, as well as all our individual modes of thinking and acting. It is involved in our social nature that even those who object to Christianity cannot pos- sibly get clear of its influence, or reject those sentiments, customs and principles, which it has spread among the people, so that, like the air we breathe, they have, become the common stock of the whole country, and essential elements of its life. It is perfectly natural, therefore, that a Christian people should have laws to pro- tect their day of rest from desecration. Regarding it as a day, neces- sarily and divinely set apart for rest from worldly employments, and jor the enjoyment of spiritual privileges, it is simply absurd to sup- pose that they would leave it without any legislative protection from the disorderly and immoral. The sentiment that sustains it must And expression through those who are elected to represent the will of their constituents. So far as relates to the criminality of the act, which we are now to consider, the mind of the state is expressed in the law which forbids all worldly employment on the Lord's day, under a penalty of four dollars."* " The right to repose and quiet upon the Lord's day resls upon the same basis with the law which ■declares Christianity to be part of the dbmmon law, and would have existed, though the statutes prohibiting work upon the Lord's day had never been enacted. * * * If Christianity is a part of the oommon law of the state, and the observance of Sunday is a dis- tinctive feature of Christianity; if the ancient colonial, provincial and state legislature, and the constitution itself, are all based on . 1 Id. 570. • Mohney v. Cook, 26 Pa. 342 (1853). 3 Johnston's Case, 22 Pa. 102 (1853). 52 LEGAL ASPECTS OP THE Christianity, as part of the common law, and distinctly recognize Sunday, then it follows that the day itself is clothed with peculiar sanctity, and is intended by law to be a day of extraordinary quiet and repose." * " It has been decided over and over again that Chris- tianity is a part of the common law of the land. Upon this ground, statutes against profanity and blasphemy have been sustained, and upon this also rests, in part, the decisions in support of laws intended to maintain and defend the Christian Sabbath. To enact a by-law, or to make, a rule which falls in with the religious custom of the people; which acknowledges the propriety, if not the duty, of a recognition of the Sabbath ; which secures to the employes of the company an opportunity for rest and worship on that day, cannot be held to be other than in entire accord with the common law, which our fathers brought with them to this country. This com- mon law, which includes a recognition of Christianity, as well aa the Christian Sabbath, was the foundation upon which they built;, and which yet remains the law of the land, except in so far as the statute law has abrogated or changed it."* In Arkansas: "This system of religion (the Christian) is recognized as constituting a part and parcel of the common law, and, as such, all of the institutions growing out of it, or in any way connected with it, in case they shall not be found to interfere with the rights of conscience, are entitled to the most profound respect, and can rightfully claim the protection of the law-making power of the state." s In Michigan r "The Christian religion has largely affected the great body of our laws, and to it we must trace the laws which punish what the Chris- tian regards as the desecration of the first day of the week * * * the general sense of a Christian people has demanded, and secured, the law, and their method of observing the day must be some evi- dence of the sense in which the law is enacted." 4 In North Caro- lina: "It cannot be denied that ours is a Christian country, and that the constitution of North Carolina recognizes the Christian relig* ion as a part of our system of government." 6 In Georgia : " The Christian Sabbath is a civil institution, older than our government." ' In California: "It may be conceded that the acts prohibited are 1 JeanddlJs Case, 3 Phil. 509 (1859). * Alien v. Duffie, 43 Mich. 1. 'Pranyer v. Grubb, 7 Phil. 350 (1870). 6 Melvin v. Eatley, 7 Jones 356 (1860). ^Stover's Case, 10 Ark. 259 (1850) • Karwisch's Case,, 44 Ga. 204 (1871). PIEST DAY OF THE WEEK. 53 «>nly prohibited because they are such as would be offensive to public morals according to the standard of Christianity, but if the prohibi- tion does not interfere with any man's liberty of conscience, it is no valid objection to the law because it prohibits acts to be done which are deemed immoral according to the standard of one religion or another. Doubtless the law was passed under the influence of Chris- tianity. The legislature, in the course and character of legislation, ■can recognize no other standard of moral ideas. As the prevailing religious opinion of the people, public morals are largely dependent upon it." 1 We may here observe, that, as Christianity, in one phase or another, is the religion professed by an overwhelming majority of our people, and compulsory idleness on Sunday is a vital and essential element of Christianity, it follows that permitting people who desire to work on that day to yield to their inclinations would be fraught with the most tremendous consequences. In fact, if the Sunday laws were repealed, it appears that the United States would be in danger of becoming reduced to the condition of the Sandwich Islands when the first missionaries reached them. It is well known that the natives were found to be absolutely destitute of religious belief, having a short time before arrived at a conviction of the fallacy of their ancient creed, and destroyed all their idols. That a similar extinction of Christianity would be threatened by a repeal of the statute which imposes a small fine for Sunday labor is strongly implied in the following extracts. And it will be per- ceived that the social wreck involved is scarcely less complete and horrifying than that of the country's religious faith. In Pennsyl- vania, it is said : " Sunday is a part of Christianity. Upon its peaceful observance Christianity in a great measure depends for its support. Destroy this day, and a revolution of the most astounding character is produced. Whatever conclusion may be arrived at upon the evidence, we cannot assert as law a principle which must lead to the most disastrous results, which must shake Christianity itself." 1 And a picture no less impressive is thus drawn in Mis- souri : "Convert Sunday into a worldly day by law, and what becomes af Christianity f How can we reconcile the idea to our understand- » Kom's Case, 60 Cal. 177 (1882). i Jeanddltts Oast, 3 Phil. 509 (1859). 54 LEGAL ASPECTS OF THE ing that a people professing Christianity would make a fundamental law by which they would convert Sunday into a worldly day ? It would have been an act of deadly hostility to the religion they pro- fessed, exposing it to the danger of being reduced to the condition in which it was before the Roman world was governed by Christian? princes. Though it might not be persecuted by the arm of the civit power, it would be driven by the annoyances and interruptions of the world to corners and by-places, in which to find a retreat for it* undisturbed exercise. How startling would the announcement be to the people of Missouri that, by their organic law, they had abolished Sunday as a day of rest, and put it out of the power of their legislators ever to- restore it as such ; with what sorrow would, the toil-worn laborer receive the intelligence that there was no longer by law a day of rest from his labor. The poor beasts of burden would soon find, by experience, that our laws were no longer tem- pered by the softening influences of Christianity, and all the social advantages which great and good men have attributed to the observ- ance of Sunday as a day of rest would be taken away." 1 Thus far our consideration has been altogether directed to the- prohibitions of labor contained in Sunday laws. This method of dealing with the subject has been followed because all the reasons for sustaining such statutes are at their strongest and best when> applied to the question of work. If the reasons prove insufficient or untenable when so applied, of course they are not worth a mo- ment's consideration as vindication of a prohibition of amusements or games as such. But we have now arrived at a point where Sun- day legislation must be viewed as a whole, and the arguments in its favor must be weighed with reference not merely to its restrictions on work, but also to its no less universal restrictions on play. To- sustain such legislation, as we have it in America, on religious grounds, it is necessary to demonstrate not merely that the idle,, but also that the cheerless Sunday is an " institution " of Chris- tianity. It is clear that the " sacredness " of a day, and the obligation to observe it, may be conceded, and still, in the absence of authorita- tive definition, the exact nature of the observance required may » Amb'i Cede, 20 Mo. 214 (1854). FIRST DAY OP THE WEEK. 55 remain in doubt. One man might say : " I recognize the day as holy ; I will honor it by taking that recreation which I find best calculated to refresh and reinvigorate me for my worldly labors;" another might reason thus : " I have a family dependent on me for support ; I feel no need of idleness ; I will make this sacred clay a marked and distinguished one in my life by doubling my labor and my earnings, and thus rendering a double service to those whom I cherish, and to work for whom is my highest act of love and wor- ship;" a third might fast as an observance; a fourth indulge in a feast, and so on. Now, the Sunday laws prohibit both amusements and work. Viewing them, therefore, as civil adoptions of a religious dogma, the assumption underlying them is, that play is obnoxious to religion and idleness required by it. The legislature, in passing such laws, takes it for granted that a particular religion — which the courts say is Christianity — has not merely required the observanpe of Sunday, but has rigidly defined the nature thereof. Is this a fact? Doubts on this point were thus insinuated in Vermont: "Although the holy observance of the Sabbath, like charity, is a positive duty, yet, like charity, it is undefined ; and different de- nominations of Christians, even as well as individuals, vary much in the degree of strictness with which it ought to be observed ; and, though an admitted duty, yet the manner of its observance is per- haps described with less certainty than almost any other Gospel requirement. How ungracious, then, for a court to mark the law" upon this duty for all denominations to be governed by, and with judges usually belonging to different religious societies. It would be like a synod composed of the dignitaries of several sects. Unanimity could scarcely be expected." 1 And, again, in the same state, noticing the argument that making a contract on Sunday "shocked the moral sense," the court said : " I have no dottbfr-that such is the fact in regard to a portion of the most serious-minded, earnest and strenuously religious of our citizens. And no one can doubt that the feeling's of so considerable and influential a portion of the citizens of the state are entitled to the highest consideration. But, in making inquiry into the state of the moral feeling of the whole community, we must not forget that upon religious matters 1 Mattock's dissenting opinion in Lyon v. Strong, 6 Vt. 219 (1834). 56 LEGAL ASPECTS OP THE it is almost infinitesimally divided ; and before we could determine that any given cause shocked the moral feeling of the community, •we must be able to find but one pervading feeling upon that sub- ject — so much so, that a contrary feeling in the individual would denominate him either insane or diseased in his moral perceptions. Now, nothing is more absurd to my mind than to argue the exist- ence of any such universal moral sentiment in regard to the observ- ance of Sunday. It is in no just sense a moral sentiment at all which impels us to the observance of Sunday for religious purposes more than any other day. It is but education and habit in the main, certainly. Moral feeling might dictate the devotion of a por- tion of our time to religious rites and solemnities, but could never indicate any particular time above all others. But this will best be seen by the actual state of opinions among us upon this subject. Some of our citizens are Atheists, perhaps ; a considerable number Deists, or Rationalists ; and among Christians there is almost an infinite diversity of opinion in regard to this subject. The Irish Catholic who may have become a denizen of the republic regards St. Patrick's day, perhaps, as the most sacred in the calendar. The French Catholic is willing to labor every day in the year almost, except on St. Peter's day. If well informed and conscientious, he will hardly forget Good Friday, or Christmas, or Ash Wednesday. The same is true in regard, to these latter days with the consistent members of the Church of England, or of the Lutheran Church, or of the Greek Church, if any such there be among us. Now, all these regard Sunday, but not as more sacred than some other days. It is but in commemoration of the miracle of the Lord's day, the Resurrection. But Easter day, which is the annual festival of the Lord's day, is truly the.great day of the feast — the Sunday of Sun- days, the crowning festival of the year ; and this, with Good Friday, Ash Wednesday, Christmas, and some few other prominent fasts and festivals, is most religiously observed in all ancient churches, and in all the Lutheran Churches — which embrace Holland, Sweden and Denmark, Prussia and Germany, so far as they are Protestant — and all its branches. And so are all the Sundays in the year, but with far less solemnity than the greater fasts and festivals above named. In addition to this, it must be remembered that we have among us some Jews, perhaps, and some Seventh-day Baptists, who FIRST DAY OP THE WEEK. 57 do not regard Sunday at all, and many of the Friends, who regard all days alike. This may be all very unwise, or very unreasonable, in the estimation of some, but it is none the less true, and we must take things as they are." 1 So, referring to a previous decision (Johnston v. Commonwealth, 22 Pa. 109), a Pennsylvania judge said : " The cardinal error is in treating Sunday as set apart by divine command;" and from the whole decision two judges, two-fifths of the court, dissented, in opinions of very great weight and force.' So, in West Virginia : " It is argued that the statute requires this observance of the Sabbath day, as a religious duty, imposed upon us by God, and that, as corporations can owe no religious duty, the statute cannot be construed to extend to them. In this argument, it is assumed as universally admitted that God has imposed on all mankind the duty of keeping the first day of the week as holy. This assumption is far from being conceded. It is, of course, not • admitted by those of our citizens who are disbelievers in the Chris- tian religion. * * * Nor is it true that it is admitted by all believers in Christianity." 8 And, in North Carolina, we are told : " The extent of the obligation of the Sabbath under the Gospel is a point on which the professors and teachers of Christianity have been far from agreeing." 4 If we substitute for " the rational observance of the Sabbath " the words " abstention from labor and amusement on Sunday," in the following extract, we shall find it frankly asserted that the mode of spending the day enjoined by our statutes is not a requirement of Christianity at all, but simply a dogma of one par- ticular school, or communion, or sect of Christians. And, moreover, that the " change " which it involved in the existing and universal practice of Christendom was not made in England until the reign of a king who ascended his throne fifteen hundred years after the founder of Christianity was crucified. It was said in New Hamp- shire : " The toleration of amusements, and the existence of fairs in England, to a greater or less degree, upon the Sabbath, are readily accounted for by their known accordance with the practice of Roman Catholic countries, among which was England, until the reformation in the reign of Henry VIII. With the spread of the 1 Adams v. Gay, 19 Vt. 358 (1847 ). « B. & O.'s Case, 15 W. Va. 362 (1879). 2 Read's concurring opinion in Spar- * Williams' Case, 4 Ired. 400 (1844). hawUs Case, 54 Pa. 401. 58 LEGAL ASPECTS OP THE reformed religion, and the consequent improvement in civilization, the views and manners of the people changed on the subject of the rational observance of the Sabbath, and in all Protestant communi- ties laws were enacted to secure it, varying in their provisions with the peculiarities of the people." 1 Finally, we must quote the pointed words in which a Missouri judge disposes of the underlying principle of the cases which have just been considered. The reader is aware that a certain New England university has, till very recently, made what were called "compulsory prayers" a feature of its course. Compulsory idleness on Sunday this remarkable judge appears to consider on a par with such performances, when regarded as an act of religion. He says the object of the law is tfo compel a cessation of labor, but disposes of the notion that enforceoMdleness can commend the idler to the good-will of his Creator in the follow- ing decided manner : " Such an idea can only be based on the sup- position of an entire ignorance in the legislature of the nature of the worship which God exacts from His creatures. A compliance with the law, induced by a fear of its penalties, could never be regarded as an act acceptable to the Deity. No act of worship, unless dictated by a heartfelt love, can be pleasing to the Almighty. God listens alone to the voice of the heart." 3 We pass now to the consideration of the second subdivision of the first class of cases. Here the courts are still busy with the religious aspect of the question. They still affirm that religion is the justifi- cation and source of laws prescribing Sunday idleness. But they depart altogether from the theory that it is the soul of the unwilling idler which the state is intent upon conserving, and hold that the object in view is to restrict him from disturbing the proceedings of other people for securing the safety of their souls. That is to say,. A is required to be idle not because he thus propitiates the Deity in his own behalf, but because B's devotions would be interfered with if A were to pursue his ordinary avocations on Sunday. A New York case maintains that Sunday restrictions on labor, and the use of property, " rest upon the principle of the preservation of good order and the public morality and peace;" 3 and the court adds: " Bights must be exercised in such a manner as not to affect preju- 1 Allen v. Deming, 14 N. H. 133 * Amb's Case, 20 Mo. 214 (1854). (1843). a Boym's Case, 20 How. Pr. 76 (1860)1 FIRST DAY OF THE WEEK. 59 dicially the tranquility and morality of the local public." 1 So, we read : " The Christian Sunday may be protected from desecration by such laws as the legislature, in its wisdom, may deem necessary; and it .is the sole judge of the acts proper to be prohibited, with a view to the public peace."* These decisions, coupling* "morality" with "peace" and "tranquility," and seeming to imply that it is the breach of the peace involved in Sunday work which constitutes the "desecration" that Sunday laws are designed to prevent, constitute, so to speak, connecting links between those cases which hold that such laws are justified by reason of the ill-effect of the sin on the sinner's own soul, and those which maintain that their only concern is with the " consequential damage " done to the souls of others by interference with the religious devotions of the latter. In Massa- chusetts, it. is said that the law was "enacted for the sole objecC of insuring reverence and respect for one day of the week, in order that religious exercises should be performed without interruption from common and secular employments." 8 And this view of the subject was elucidated in Vermont as follows : " The constitution of this state (and herein it is a transcript from the first constitution of gov- ernment established in this state), while it carefully protects and guards religious freedom, and asserts that the conscience of no one can be controlled, declares 'that every sect or denomination of Christians ought to observe the Sabbath, or Lord's day, and keep up some sort of religious worship which to them shall seem most agreeable to the revealed will of God.' To carry into effect the spirit of this constitution, to enable each religious sect to keep up religious worship on the Sabbath, and to enable all to enjoy the benefits to be derived from a day of religious retirement, the legis- ■ lature, among other first laws, made provision for the prohibition of secular labor on that day. Aware of the benefits to be derived from stated periods of rest from manual labor, and the importance of having the same day observed by all, and recognizing that every denomination of Christians among them regarded the Sabbath as a day set apart for moral and religious duties, they determined that every one should be protected in the enjoyment of his religious privileges and in the performance of his religious duties, and have i Id. 85. 3 Pearce v. Atwood, 13 Mass. 324 3 Neuendorf v. Duryea, 69 N. Y. 557. (1816). 60 LEGAL ASPECTS OF THE made provision that those who are thus disposed may, on that day, perform those great and necessary duties which they believe are required of them, without disturbance from the secular labor of others ; and further, that all, whether high or low, prisoner or free, master or servant, shall be permitted to rest, and that none shall compel them to labor on that day; and, lest, through avarice or cupidity, any one should be disposed so to do, they have enacted that the day shall be observed as a day of rest from secular labor and employment, except such as necessity and acts of charity shall require." 1 And again: "In this state full immunity for all religions and no religion is equally given by the fundamental law of the state. No man can be abridged of his perfect liberty in that respect. And while this does not forbid the legislature from pass- ing general laws against blasphemy, the desecration of the.Lord's day and the disturbance of public worship, it does, impliedly, at least, forbid the adoption of any law which is not necessary for the quiet enjoyment of religious feeling and religious worship. So that all law, which it is competent for the legislature to adopt, must have reference solely to preventing the disturbance of our citizens in their religious feelings or devotions. Beyond this the constitution of the state absolutely prohibits any law."' So, speaking of an early statute of New Hampshire, it was said : " It has both an individual and a general purpose. "While it protects the solemnities of religion from interruption, and secures the public in their peaceful performance, it reminds the individual that he has religious duties to fulfill, and religious duties alone. It tends to secure to^him time and oppor- tunity for their fulfillment by prohibiting him from performing other things, and induces him to turn his attention, for one day in the week, to religious reflection, by refusing him permission to dis- tract his mind by occupying himself with his worldly affairs. It cannot legislate him into a religious man, but it keeps him from business and forbids business to come to. him, and aims at doing what may reasonably be attained, without infringing his freedom of conscience. It is not considered expedient, by the revised statutes, to attempt to attain one object which the act of 1799 had in view, that is, the good effect upon the individual, by prohibiting 1 Lyon v. Strong, 6 Vt. 219 (1834). » Adams v. Gay, 19 Vt. 358 (1847). FIRST DAY OF THE WEEK. 61 him from exercising his secular calling. By the act of 1799, he could not do this under any circumstances. By the revised statutes, he may do it, with a qualification, a condition, and that is, that it be not ' to the disturbance of others.' This provision aims only at protecting the public in their devotions and religious reflections ; others, the law says, shall not be disturbed. It leaves each indi- vidual to employ himself as he may choose, subject only to this limitation. It does not aim at guarding him from himself. It does not seek to interest him in religion by forbidding him to interest himself in things not religious. It leaves him to his own conscience,, and does not attempt to furnish any other guarantee for the religious and devotional employment of his time than such as may be afforded by his own views of his religious obligations. This, then, is an important change in the law. It shows that there is a radical dif- ference in the theories on which the two statutes proceed." 1 It has been said of the New York Sunday statute that " its design is not to enforce the conscience, or compel comformity to any religious rites and ceremonies, but simply to secure to the day that outward respect and observance which is due to it, as the acknowledged Sabbath of the great mass of the people, to protect the religion of the community from contempt and unseemly hindrances, and to its professors the liberty of quiet and undisturbed worship on the day set apart for that purpose." And a sale of newspapers was held to be within the mischiefs which the act was designed to remedy, be- cause " it disturbs the public peace and quiet ; interferes with the proper religious observance of the day; is opposed to good morals, and tends to draw men away from the duties of piety and religion."* And, again, it was said, in the same state : " It is the right of the citizen to be protected from offences against decency, and against acts which corrupt the morals and debase the moral sense of the community. Regarding the Sabbath as a civil institution well established, it is the right of the citizen that it should be kept and observed in a way not inconsistent with its purpose, and the neces- sity out of which it grew, as a day of rest rather than a day of riot or disorder, which would be effectually to overthrow it, and render it a curse rather than a blessing."* And again : " Our fathers, who 1 Varney v. French, 19 N. H. 233. 'Idndenmulkr'e Case, 33 Barb. 548 2 Smithy. Wita, 24 N. Y. 353 (1862). (1861). It was, of course, under the €2 LEGAL ASPECTS OF THE planted in our fundamental law the assertion of those immortal truths, that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences, that no man can be compelled to attend, erect or support any place of public worship, and that no human authority can control or interfere with the rights of conscience, enacted also the statutes for the suppression of worldly employments on Sunday. So far from conflicting with these invaluable rights of conscience, they regarded such statutes as indispensable to secure them. It would be a small hoon to the people of Pennsylvania to declare their indefeasible right to worship God according to the dictates of their consciences amid the din and confusion of secular employments, and the dese- crations on every hand of what they conscientiously believe to be holy time. The statutes, were not designed to compel men to go to church, or to worship God in any manner inconsistent with per- sonal preferences, but to compel a cessation of those employments which are calculated to interfere with the rights of those who choose to assemble for public worship. The day was set apart for a pur- pose, apd the penal enactments guard it, but they leave every man free to use it for that purpose or not. If he wish to use it for the purpose designed, the law protects him from the annoyance of others — if he do not, it restrains him from annoying those who do so use it. Thus, the law, without oppressing anybody, becomes auxiliary to the rights of conscience. And there are other rights, intimately associated with the rights of conscience, which are worth preserving. The right to rear a family with a becoming regard to the institutions of Christianity, and without compelling them to witness hourly infractions of one of its fundamental laws — the right to enjoy the peace and good order of society, and the increased influence of this view of the spirit and coaches, wagons," &c. In 1816 the act objects of Sunday legislation that the was extended to embrace other districts Pennsylvania law-makers passed an act around Philadelphia, and in 1831 both which recited that to grant men the acts were repealed. The iron sockets, right to worship God was nugatory, in which were fixed the posts to which without securing the peaceable and the chains were attached, were still to quiet enjoyment thereof, and authorized be seen opposite some of the old religious societies in Philadelphia to churches in 1867. See Read's concur- fasten chains across the streets during ring opinion in Sparhawk's Case, 54 Pa. divine service, to " hinder and obstruct 401. PIBST DAY OF THE WEEK. 63 securities to life and property, which result from the decent observ- ance of Sunday — the right of the poor to rest from labor, without a diminution of wages or loss of employment — the right of beasts of burden to repose one-seventh of their time from their unrequited toil — these are real and substantial interests which the legislature sought to secure by these enactments; and when has legislation aimed at higher objects?" 1 And again, "By our Sunday laws, and our other laws against vice and immorality, we do not mean to • •enforce religion ; we admit that to be impossible. But we do mean to protect our customs, no matter that they may have originated in our religion, for they are essential parts of our social life. Instinct- ively we defend and protect them. It is mere social self-defence, and not a matter of choice. In doing so, we must be as generous towards those who differ from us as we know how to be, or as cir- cumstances will allow us to be. No more than this can reasonably be expected of us." 2 And yet again : " By the common law of the commonwealth, every citizen is entitled to enjoy the first day of the week in undisturbed quiet and repose, that he may exercise his natural and indefeasible right to worship Almighty God according to the dictates of his own conscience, and whatever actual noise or disorder hinders seriously, or destroys altogether, this inalienable right, is, and always has been, a breach of the peace."* In West Virginia, after dwelling on the importance of providing a day of uniform compulsory idleness, or " rest," as it is called, the court proceeds: "This, I conceive, is the main object of our law; but it is not its only object. While I am thus resting on the Sabbath, in obedience to law, it is right and reasonable that my rest should not be disturbed by others. Such a disturbance by others of my rest is, in its nature, a nuisance, which the law ought to punish, and Sab- bath-breaking has been frequently classed with nuisances, and punished as such. That these are the objects of our statute are, l[«io] to my mind, clearly shown by the wording;" and, after allud- ing to the exception by which those who consent to remain idle on some other day in the week are graciously allowed to pursue their ordinary avocations on Sunday, the court continues : " But, if you Amb's Case, 20 Mo. 214 (1854). * Seaman v. Chicago, 41 111. 146. * Shovels Case, 10 Ark. 259 (1850). 66 LEGAL ASPECTS OP THE hold that violations of the Sabbath, per se, would constitute a nuisance." 1 It remains to cite a few expressions of opinion to the effect that if Sunday idleness is sought to be enforced as a religious duty by law, the statutes requiring it are unconstitutional. The following is the language of a judge who avows himself a strong believer in Puritanism : " In Smith v. Sparrow, Park, J., says the common law is founded on our holy religion, and no law can be good which is not. And other judges often express the same sentiment. Hence the national church, their tithes and their requiring officers to par- take of the sacrament. Whether religion is a safer basis to found a government and the laws upon than liberty and the voice of the people, it is not for us to decide. But it is well known that our government and laws are not founded upon religion, as we have no test, or standard of belief, by law established, and because our government, they believe, is not founded upon the word of God, a portion of the Scotch emigrants in this state, although they submit to, yet refuse to qualify, or vote, or participate in the government, and have made several unsuccessful attempts before different coun- cils to have the constitution amended in this particular." 3 So in Indiana : " It has been held by this court that the law for compel- ling observance of the Sabbath was valid; but the writer of this opinion, speaking on this point for himself alone, wishes to say that farther reflection has led him to doubt the power of the legislature, under our present constitution, to enact such a statute. When our existing government was created, its creators determined that there were some matters in which the majority should not control the minority ; that there were some things over which the legislature should not have authority ; that in some things the people should not be within the power of the legislature. Such is our organiza- tion of government — our constitution. One of the subjects with- drawn by that constitution, in the bill of rights, from legislative interference, is that of religion ; and the writer has no hesitation in saying, highly as he individually values the Sabbath, that, if the Sunday law is upon the statute book for the protection, or enforce- ment of the observance, of that day, as an institution of 'the Chris- 1 LineWs Gate, 12 Tenn. 499 (1883). s Mattock's dissenting opinion in Lyon v. Strong, 6 Vt. 219 (1834). FIRST DAY OF THE WEEK. 67 tian religion, it cannot be upheld, no more than could a law forbid- ding labor on Saturday, the Jewish Sabbath, or on any and all other days of the week, which may be, in fulfillment of a require- ment of a creed, set apart for religious observance by any portion of our citizens, whether Christian, Jewish, Mahoraedan or Pagan. It is not, of course, meant here to trench upon the laws to protect the meetings of those desiring to worship from disturbance on all •days." 1 And Judge Manly, of North Carolina, said: "In North Carolina, it would be clearly contrary to the fundamental law to attempt an enforcement of that part of our statute which enjoins upon all persons a careful application of themselves on the Lord's day to the duties of religion and piety. To enforce such an injunc- tion, it must first be settled by the state what specific duties are embraced in our obligations to God, and all men be then called upon to conform to the state ritual. This is forbidden by our bill of rights, and would be violative of religious freedom, without which society could not be held together by the ties which at present bind it."* And, in Alabama, it is declared that the compelling of a •citizen by law to abstain from work on Sunday " cannot be justified upon the grounds that such abstinence is enjoined by the Christian religion.""' And, if an ordinance forbidding the sale of liquor on Sunday had for its object the enforcement of the observance of the Christian Sabbath, it would be open to assault in Louisiana ; but such an ordinance was held to be manifestly a police regulation, like a similar prohibition in regard to election day. 4 A few general observations may be subjoined, before dismissing finally this branch of our subject. There is, of course, no require- ment on a people that it shall be consistent in the expression of its will ; and, as a matter of fact, statutes do frequently conflict, with- out formal repeal of one by the other. But no inconsistency can be allowed by the courts between a statute and a constitution ; and where repugnancy plainly appears, the statute must give way. Again, an absolutely free people is unrestrained in the establish- ment of its fundamental law ; and American states, in framing their constitutions, are only restrained by the constitution and statutes V 1 Thomaison' » Case, 15 Ind. 449. 8 Frolickstein v. Mayor of Mobile, 40 2 Melvin v. Easley, 7 Jones 356 (1860). Ala. 725 (1867). 4 Botl's Case, 31 La. Ann. 663 (1879). 68 LEGAL ASPECTS OF THE of the United States. Accordingly, as there is nothing in the latter prohibiting distinctions between religions by a state, it would be legitimate to incorporate in a bill of rights a provision that no church should be favored except the Christian, or none tolerated except that and the Jewish. In fact, however, no such exceptions are made, as appears by the Table B. The phraseology of the various guaranties of religious liberty there collected is diverse ; but the spirit of them all is, as has been said, against a " prefer- ence" to any form of religion. Some of the early decisions on the Sunday laws show a disposition on the part of the courts to under- stand the adjective "Christian" before the word " religion " in such provisions. But this is unreasonable, as well as historically wrong. It is unreasonable, because it deprives the provision of its meaning altogether, leaving the majority at liberty to " prefer " and establish at any time as a state institution a church with any creed which it may suit the fancy of the majority to declare to be " Christian ;" they have simply to pronounce other creeds un-Christian, and the hitter's claim to equality before the state is destroyed. And it is historically wrong, because even the earliest provisions of this character were understood to place the religion of the Hebrew on a complete level with that of the Christian, so far as the government of the commonwealth was concerned. The question, then, presents itself, assuming that the idle Sunday is an " institution " of Chris- tianity, does a statute which for that reason requires men to be idle on Sunday give a preference to one particular religion ? How can it be maintained that it does not, unless a similar institution of every other religion be honored with like recognition ? As to the individual aspect of the case, if the law is to assist Christianity by making idleness compulsory on its sacred day, thereby presumably commending it to those who reject it, and strengthening its hold upon its devotees, is there not a " preference " given to a religion, unless the Hebrew and all other faiths have a like recognition extended to their sacred days ? And as to the social aspect, assum- ing that it is an advantage to have other people kept extraordinarily quiet while we pray, and to have an especial " peace " established by law on the day we select for public worship, and that we have the right' to prevent our neighbor from earning his living at a cer- tain time because the practice of his avocation interferes with our FIKST DAY OF THE WEEK. 69 religious exercises, must it not be called a " preference " to do all this for the Christian's benefit, and not to do it for the benefit of the followers of Moses, or Mahomet, or Confucius or Buddha? Notwithstanding that there would seem to be but one possible reply to these queries, it "may be worth while to briefly examine the historical basis for the assumption that the idle Sunday is an " insti- tution " of ^Christianity^ Whatever the origin of the custom of dividing^day^into jveeks,)there is, admittedly, only one record of a divine sanction being given to that particular method of reckoning time, and that is in the Bible. In the common English translation of the Old Testament, we are«told that the creation was completed in six days, and that its author " rested " on the seventh day ; and " blessed and sanctified " it for that reason. And, by the revelation addressed to the Hebrews, through the prophet Moses, four Sab- baths, or periods of rest, were prescribed to that people. One was ■every fiftieth year, which they were commanded to " hallow," * and during which they were forbidden to sow, or reap, or gather grapes, 4 for it was to be " holy " to them." Another was every seventh year, ■during which they were fittbidden to " sow the field or prune the vineyard." 4 A third was the tenth day of every seventh month, which was a day of " atonement," and on which the Hebrews were •commanded to "afflict their souls," and abstain from work — it being proclaimed that the soul which was not afflicted should be "cut off from among his people," and the soul that worked 4< destroyed." * (This Sabbath, by the way, was to be kept from the even of the ninth day to the even of the tenth.) And the fourth -was the seventh day of the week, on which no work was to be done. In one place the death penalty is fixed as the punishment of those who "defile" this day, or do any work thereon; 8 and we have a ■single instance of its infliction, the criminal act being the " gather- ing of sticks." 7 For the establishment of this last " Sabbath," we find two reasons given, as we also find two slightly different ver- sions of the commandment for its observance. According to the 1 Leviticus xzv., 8-10. * Levitieus xxiii., 27-32. 2 Id. 11. 6 Exodus xxxi., 14, 15 ; xxxv., 2. * Id. 12. ' Numbers xv., 32 et seq. * Id. 2-7. Compare Lev. xxvL, 33-35, *nd II. Chron. xxxvi., 20, 21. 70 LECfAL ASPECTS OF THE translation by King James' ministers, in Exodus it is said the Jew* must not work because the Creator made the world in six days, and "rested" on the seventh, "wherefore" He "blessed, and hallowed" it; 1 but in Deuteronomy, the "rest" seems to be enjoined merely as a commemoration of the deliverance of the Jews from th& Egyptians. 2 In the texts just cited, and others, referring to the same subject, we have the only " Divine " recognition , of the- " seventh day." If we were without the benefit of judicial illu- mination of this question, we might grope our way darkly to several conclusions, such as the following : (1) We can attach no- human meaning or significance to the statement that the Deity "rested;" but true reverence may well dismiss the matter withi acquiescence in the negative comment of St. Augustine: " It cannot be- that God was spent in doing the work of His creation, and needed rest, like a man."* (2) The fact that a day has been "blessed" or " sanctified " is no argument that men are under an obligation to be idle on that day ; in fact, idleness would not have served to distin- guish the day from any other for the lower animals, at the time of the Creator's " rest," since mau had not yet appeared to interfere with the unbroken Sabbath of their lives; and the first of our species could have made no distinction in this regard between one day and another, since his "labor" did not begin till he was cursed with it as- a punishment, when, it will be observed, no provision was made for " Sabbaths " of any kind, but he was sentenced to work " all the- days of his life." (3) If, therefore, the " sanctification " of th& seventh day implies that idleness is a duty thereon, we must seek elsewhere for a revelation of that fact. (4) As the only " observ- ance " prescribed for the seventh day consists in abstention from work, no amount or kind of recreation, allowable on any other day, could constitute a " violation " of the seventh — and, in thus determ- ining, we should feel fortified by such texts as that which speaks of - 1 Exodus xx., 8-11. and Deliverer. All creation should 2 Deuteronomy v., 12-1.5. Dean Mil- rest, because on that day the Creator man, in his "History of the Jews," rested ; Israel more particularly, be- thus combines the two statements : cause on that day they rested from " The double sanction, on which the their bondage in Egypt." Harper's ed. r observance of the day rested, reminded I., 97. every faithful Israelite of his God, » Homilies on St. John xvii., 269 (Ox- under His two-fold character of Creator ford, 1848). FIEST DAY OF THE WEEK. 71 "mirth, new moons, Sabbaths and solemn feasts;" 1 that which says that, when the Levites told the people that the day was " holy," they proceeded to "eat, drink and make great mirth," "because they understood the words ;"' by the custom in the time of the founder of Christianity, even among that strictest of Jewish sects, the Pharisees, of entertaining guests on the Sabbath,* and by the high authority of Milman, who says that in later times among the Jews "rich and poor, young and old, master and slave, met before the gates of the city, and indulged in innocent mirth, or in the pleasures of friendly intercourse." 4 (5) The Sabbath or "rest" of the seventh day is no more an " obligation " than that of the fiftieth year, or the seventh year, or the tenth day of the seventh month ; whoever is bound by one of these prescribed rules of life is bound by all. (6) All four of these regulations were for Jews alone, and expressly intended to mark out and distinguish them from other people — and, in arriving at this conclusion respecting the institution of the seventh day, we should feel assisted by the phraseology of the commands, e. g. the introductory adjuration, "Hear, O, Israel," 6 the total lack of evidence that any other people practiced such observ- ance, 6 the construction put upon the language by the Jews them- selves, who actually punished "proselytes of the gates" for keeping the Sabbath, 7 by the texts which say " it shall be a sign between me and you," 8 and "it is a sign between me and the children of Israel forever,"* and " the adversaries saw her, and did mock at her Sabbaths." 10 (7) Whatever the difficulty in ascertaining that day of our week which corresponds with the day of " rest " from the work of creation, 11 there is no doubt that the Jews accepted the 1 Hosea ii., 11. Chronicle," of London, issue of Febru- * Nehemiah mil., 11-12. ary 3d, 1865. ' Lake xiv., 1 et seq. 6 Deuteronomy v., 1. As to "strangers- * 1 History of Jews (Harper's ed.) 97. within thy gates," &c., see Orotius See, also, Philo Judaeus, De Vita Mosis; (Hugo), App. I., 34, 46 (London, Josephus, Cont., App. I., 1. An accurate 1679). statement of the practice of the modern 6 See "Sunday," Hessey, 139, 142, 415 Jews to abstain only from "product- (London, 1860). ive " work on Saturday, and a scholarly ' 2 Harrington Theol. Wks. 265-358. vindication of the position that they 8 Exodus xxxi., 13. thus literally fulfill the Hebrew words * Jd. 17. See Ezekiel xx., 12, 9, 20. of the Fourth Commandment, may be 10 Jeremiah Lam. 1, 7. found in an article in the "Jewish 11 On the "Patriarchal Sabbath," see 72 LEGAL ASPECTS OF THE instructions of Moses as applying to the day which we call Satur- day, and, in the absence of proof that they misunderstood him, or that he acquiesced in such a misconstruction of his message, we are safe in drawing the inference that the day was Saturday, and that the Fourth Commandment has no relation, either for Jews or any one else, to any other day of the week. (8) The Hebrew founder of the Christian religion appears to have rendered obedience to all the ordinances of his people. Submission to constituted authority was one of the principles of his philosophy of life ; and without a careful observance of the ceremonial law, he could never have gotten a hearing among the formalists to whom his preaching was addressed. For these two reasons he antagonized no portion of the Mosaic code ; and his utterances ou Sabbatarianism were confined to a gentle pleading that in this, as in all other things, there should be observed what Mr. Matthew Arnold has well styled a " sweet reasonableness" and sensible moderation. But it was written that Christianity should not be limited to the Hebrew race. And when the Apostles came to lay down rules of conduct for their Gentile converts, one of the first difficulties with which they were confronted was the disposition — inherent in the nature of all men — to substi- tute outward ceremony for internal purity. To take the instance with which we have to deal, it is much easier to be idle one day in the week than to be honest, good-natured, kind and liberal all Jhe time; just as it is much easier to go to church occasionally than to tell the truth under all circumstances. And the early Gentile Chris- tians, like the rest of us, were prone to find a way to balance their accounts on the eternal books by privately indulging in pleasant or profitable sins and publicly displaying an extraordinary zeal for matters of ritual. They had not merely the Hebrew example for observing days ; any one who has read Ovid's " Fasti " will remem- ber how the Roman calendar was burdened with dates sacred to this God or that — times when it was "lucky" to do one thing and dangerous to attempt something else. But there was nothing in which the Apostles more thoroughly imbibed and earnestly enforced the spirit of the Master's teaching than in this thing of cleansing the inside of the platter ; and the burden of their speech is incessant Mede Whs., Dis. XV., 55-57 ; Heylin's 2, 3 ; "Holmes' Essay on Sabbath" (Lon- "History of the Sabbath," Pt. I., ch. 3, U don, 1673). FIRST DAY OP THE WEEK. 73 that there is nothing meritorious in the form, and that the motive is the all essential. And while they were contending against other superstitions, the innate immorality of this superstition of days did not escape their anxious attention. They plainly discerned its dan- gerous tendency to be two-fold: first, in the false idea that the time of an act could have anything whatever to do with its moral nature, other things being the same ; and, secondly, in the inevitable result of its acceptance to foster the notion that it was possible, by being extraordinarily good for a certain number of hours, to purchase immunity for naughtiness the balance of the time. The moral system of Christianity would be fatally incomplete if its sacred books did not contain emphatic condemnation of this, one of the most common and apparently ineradicable weaknesses of the human heart. It is immaterial to the point that so many modern Chris- tians have wandered, as did their predecessors of the Apostolic time, away from the path in this, as in many other things. It is pointed out clearly enough for all in the fundamental Charter of Christian Liberty, from which it is necessary to make no more than the follow- ing extracts : "Let no man therefore judge you in meat, or in drink, or in re- spect of an holy day, or of the new moon, or of the Sabbath days ; which are a shadow of things to come ; but the body is of Christ." * " One man esteemeth one day above another ; another esteemeth, every day alike. Let every man be fully persuaded in his own mind. He that regardeth the day, regardeth it unto the Lord ; and he that regardeth not the day, to the Lord he doth not regard it." a " Howbeit then when ye knew not God, ye did service unto them which by nature are no Gods. But now, after that ye have known God, or rather are known of God, how turn ye again to the weak and beggarly elements whereunto ye desire again to be in bondage ? Ye observe days, and months, and times, and years. I am afraid of you, lest I have bestowed upon you labor in vain." * (8) We might dismiss the consideration of the religious aspects of the Sunday-law question with the remark that these laws, viewed with reference to their origin, constitute one of the most curious and surprising chapters in the history of ideas. The conception originated 1 Col. it., 16-17. ' Qal. iv., 8-11. 3 Rom. xiv., 5, 6. 74 LEGAL ASPECTS OP THE with a sect which denounced the observance of Christmas, of Easter, of the Ascension Day, of Good Friday, and of every other Chris- tian anniversary, as base and degrading "Popish" superstition; which repudiated and considered an easy death all too light a penalty for the slightest deference to what it styled "tradition." Yet these people seem to have concentrated, as it were, upon the first day of the week all the solemn awe and respect which Chris- tians generally distributed among other occasions ; and for doing this they had no warrant but the flimsiest of traditional authority,, and in order to do it they were obliged to defy the very letter, no less than the whole spirit, of what they professed to regard as the " Written Word," and the only rule of faith and action. But from all such erroneous views upon this subject, whether resulting from the text of Scripture, the evidence of history, or the force of reason, we are happily saved by judicial exposition. A Pennsylvania judge informs us that idleness is prescribed by " the positive law, promulgated at Sinai; " l and by an Arkansas case the transaction of business on Sunday by a Christian is brought within the prohibitions of the decalogue, as follows : "A female witness,: who was present when the note was executed, stated that the parties were all members of the church, and that she knew that they were doing wrong at the time. She perhaps knew nothing of the statute, but was, no doubt, familiar with the Ten Commandments;" 1 and Judge Flandrean, in Minnesota, said : " The act can have no other object than the enforcement of the fourth of God's Commandments, which are a recognized and excellent standard of both public and private morals. A violation of the act, therefore, is contra bonos mores, and cannot be sustained by the courts."' So, it was said by Judge Lumpkin, of Georgia : "All agree that to the well-being of society, stated intervals of rest are absolutely necessary. We should not tempt mankind, therefore, to yield obedience to municipal arrange- ments which overlook and disregard the moral law of the great Jehovah who, from the smoking top of Mount Sinai, proclaimed to- all the world [st'c] " Remember the Sabbath day, to keep it holy y in it thou shalt not do any work." * And Judge Loehrane, of the 1 Lindenmuller's Case, 33 Barb. 548 * Brimball v. Van Campen, 8 Minn. (1861). 13. 1 Tucker v. Wot, 29 Ark. 386. * Need v. Orew, 12 Ga. 93 (1852). FIKST DAY OF THE WEEK. 75 same state, so late as 1871, said he felt sustained in presuming the law of Kansas to be the same as that of his own state in this regard, because the contrary view would suppose the people of Kansas to have annulled the decalogue, and to have permitted by law the disregard of Christian obligation, and not only forgotten, but violated the injunction, "Remember the Sabbath day, to keep it holy ; on it thou shalt do no manner of work." l By which high authorities we have established the propositions that Sunday, and not Saturday, is the day referred to in the Fourth Commandment, and that the Jews have erred in their interpretation of its words during all the ages ; that its injunctions are not for that race alone, as they have fondly imagined, but for all time and all men ; and that what is, on its face, a mere requirement of a cere- monial or ritual observance is really a " moral " duty, such, for example, as veracity or honest dealing. These points are still more clearly elucidated in the extract which follows. " In Campbell v. The International, &c, I have expressed my own views upon this subject. I repeat them in language far better than my own : The dedication of one day in seven to religious rest, and the worship of Almighty God, is of divine authority, and perpetual obligation, as a characteristic of revealed religion during all its successive periods; having been enjoined upon men at the creation, recognized and con- firmed in the most solemn manner in the Ten Commandments, vindi- cated by our Divine Lord from unauthorized additions and impositions of the Jewish teachers, and transferred, upon the abrogation of the ceremonies of the Mosaic law, to the first day of the week, in com- memoration of the resurrection of Christ, and, on that account, called the Lord's day. Rev. D. Wilson, Bishop of Calcutta : It is enough to say that this conclusion has not been lightly formed ; nor without attention to the arguments of the eminent men who have doubted or contested it." a The language here quoted, and given judicial sanction, is taken from a work entitled " The Divine Authority, &c, of the.Lord's Day " (London, 1830; Boston, 1831), which must be consulted for the authorities on which the Bishop relies. It will be observed that several distinct propositions are embraced within this brief extract. The writer speaks of "religious 1 Hill v. Wither, 41 Ga. 449. 2 Hogan'a CSase,20 How. (N.Y.) Pr. 76 (1860). 76 LEGAL ASPECTS OF THE rest," a phrase found nowhere in the Bible; of Sabbath "worship," as enjoined upon men at the creation, the fact being, as already noted, that at the time of the Creator's "rest" there were no men on ■whom such an injunction could operate, and of course the Bible contains no record of such an injunction having been then delivered; •of the primeval dedication of one day in seven to rest and worship having been "recognized and confirmed" in the Ten Command- ments, whereas, so far from indicating that the "Sabbath" was existent or universal when the Commandments were promulgated, the language and context seem to indicate that it was a new thing, and, as previously remarked, that one of the great objects of its institution was to distinguish the Jews from the people around them; 1 of a "transference" of the obligation of "rest and worship" to the first day of the week by authority unmentioned, 3 "in com- memoration of the resurrection of Christ, and on that account called the Lord's Day" — by what authority so designated we are left uninformed. 8 It is proper to observe that the adoption of these theological positions of the Bishop of Calcutta into the law has not met with universal assent. A Pennsylvania judge has said : "I am deeply 1 See, on this point, Whites " Treatise ia proven by Dr. Reichle in "The Lord's of the Sabbath Day" 40-46; Milton's Day Not the Sabbath" (Dublin, 1859). "Christian Doctrine," Bk. II., ch. 7. Nowhere in the five Books of Moses is ■" The most ancient fathers affirm that there found any precept in reference to none of the patriarchs before Moses ob- prayer. served the Sabbath day," says Bishop 2 Because unmentionable, see Heylin, White, and cites his proof. See, also, Pt. II, ch. 1. That no " days " were Hughes' "Letter," in "The Pamphleteer," to be "separated" according to the vol. 27, p. 214 ; Heylin' s "History of the apostolic view is sufficiently apparent Sabbath," Pt. I, ch. 1. As to whether from the texts previously cited. That the Jews were required by Moses to it was the practice of the Apostles to assemble for worship, or perform any preach on Saturdays, appears from Acts special devotions on Saturday, see Jo- xiii., 14, 42, 4.4 ; mi., 13 ; xvii., 2 ; xviii., 4. sephus, art. I, i, 1 ; III, v, 5 ; xvi, 2, See, also, on this question, Foley's "Phi- 4 ; second book Ag. Apion, g 18 ; Bishop losophy," ch. VII. ; Milton's "Christian White's "Treatise of the Sabbath Day" Doctrine," Book II, ch. 7; "Sunday (London, 1635), and the text cited on Questions," in "Christian Reformer," page 143 ; British Quarterly Review, for April and May, 1856. January, 1885, 109. That " except at *" The Lord's Day " and " the Day the Tabernacle or the Temple, no re- of the Lord " are phrases occurring in Jigious ceremony distinguished the the Bible. But in no instance is there Sabbath according to the law of Moses," the slightest foundation for the assump- FIRST DAY OF THE WEEK. 77 impressed with the necessity of a proper observance of Sunday, as a day of worship and prayer and of rest from labor, but, living under the new dispensation, and not under the old, I feel no inclina- tion to turn the Lord's day into a Jewish Sabbath ;' n and a judge in North Carolina spoke of Sunday as " a day set apart by the Author of our religion, for His peculiar service," 2 wherein the allu- sion is, apparently, to some declaration of the founder of Chris- tianity, though "chapter and verse" are strangely omitted. Parker, C. J., of Massachusetts, observes : " It is true that from the Fourth Commandment in the decalogue it may be inferred that one day in seven was, according to the divine will, to be set apart as a day of rest from labor, but none will contend that the day therein sancti- fied is the day which Christians are bound to keep as holy time, or that any of the rigid laws of Moses, relative to the observance of that day, are now in force. It is enough to observe that, by the universal consent of Christians, another holy day has been substi- tuted, and that works of necessity and charity are not profanations of the Christian Sabbath ; so that a poor man in these days would not be stoned to death -for gathering sticks on the Sabbath, although that was the punishment inflicted in the time of Moses, and although some among our ancestors so far regarded the laws of Moses as of perpetual obligation as to propose for their code the punishment of death for the crime of disregarding or carelessly observing the Sabbath. All arguments drawn from the Jewish law respecting the Sabbath are, therefore, out of place ; except so far as any provision, of that law may have been recognized and promulgated by our Saviour, or by the legislative authority of our own commonwealth. We are not aware that there is upon record any express precept of our Saviour, or of his Apostles, enjoining the observance of one day as more holy than others; and. yet we are far from questioning the religious obligation which all Christians are under to separate to religious uses the first day of the week, since that is the time which, from the days of the apostles, was set apart for that purpose, and since the legislative power, or the uniform usage of every Christian state, has exacted the observance of it as such." 8 tion that they refer to Sunday. See J SparhawVs Case, 54 Pa. 401. Milton's "Christian Doctrine," Book II, 2 Williams' Case, 4 Ired. 400 (1844). oh. 7. * Pearce v. Alwond, 13 Mass. 324. 78 LEGAL ASPECTS OF THE With which extract concludes our discussion of the religious aspect of the Sunday laws. If this deserves consideration at all, it surely ought to be treated with reasonable exhaustiveness. The chapter has been a failure if it has not been demonstrated that, viewed under this aspect, such laws are anti- American, immoral and un- christian. FIRST BAY OF THE WEEK. 79 CHAPTER III. CONSTITUTIONALITY OF SUNDAY LAWS IN THE UNITED STATES— CONTINUED. Cases Sustaining Them as Civil Regulations. We now leave the religious aspect of the question altogether, and take up the physical and social sanction which has been claimed for the Sunday laws. And, first, we cite the decisions which, without elaborating the temporal or worldly reasons for such laws, ■distinctly affirm that on those reasons alone can they be sustained. The Massachusetts court says of the Sunday law, that it "is essentially a civil regulation, providing for a fixed period of rest in the business, the ordinary avocations, and the amusements of the community. If there is to be such a cessation from labor and amusement, some one day must be selected for the purpose; and even if the day thus selected is chosen because" a great majority of the people celebrate it as a day of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the community, and provide for its moral and physical welfare. The act imposes upon no one any religious ceremony, or attendance upon any form of worship, and any one who deems another day more suitable for rest or wor- ship, may devote that day to the religious observance which he deems appropriate ; " ' and the moral aspect of Sunday business has been thus repudiated in New York : " In so far as the transaction of business is in itself immoral, the permitted sales and purchases are just as immoral as those which are prohibited. Business transactions, therefore, which are void, are void not because they are immoral per se, but because they are prohibited by law ;"' and so with its religious aspect : " The constitutionality of the law does not depend on the question whether or not Christianity is a part of 1 Hwt Case, 122 Mass. 40 (1877). 2 Sayles v. Smith, 12 Wend. 57 (1834). 80 LEGAL ASPECTS OP THE the common law of this state. As a civil and political institution, the establishment and regulation of a Sabbath is within the just powers of the civil government ; " 1 and in Pennsylvania " the law relating to the observance of Sunday defines a duty of the citizen to- the state and to the state only." 2 And Judge Thurman, of Ohio, in a case often referred to, thus elucidates the subject : " The statute upon which the defendant relies, prohibiting common labor on the Sabbath, could not stand for a moment as the law of this state, if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty. For no- power over things spiritual has ever been delegated to the govern- ment, while any preference of one religion over another, as the statute would give upon the above hypothesis, is directly prohibited by the constitution. Acts evil in their nature, or dangerous to the public welfare, may be forbidden and punished, though sanctioned by one religion and prohibited by another; but this creates no- preference whatever, for they would be equally forbidden and pun- ished if all religions permitted them. Thus, no plea of his religion could shield a murderer, ravisher or bigamist ; for the community would be at the mercy of superstition, if such crimes as these could' be committed with impunity, because sanctioned by some religious delusion. We are, then, to regard the statute as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day. It was within the constitutional competency of the General Assembly to require this cessation of labor and to name the day of rest. It did so, and, in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected. But regarded merely as an exertion of legislative authority, the act would have had neither more nor less validity than had any other- day been adopted. The legislative power in Ohio has never extended to the enforcement of religious duties, merely because- they are religious; and politically and legally, considered, the power to prescribe a day of rest is simply a municipal power, and the injunction a civil regulation, and nothing more. 'But to 1 Lindenmulle^s Case, 33 Barb. 548 See, also, Dale v. Knapp, 98 Pa. 38&< (1861).' (1881). 2 Mohney v. Cook, 26 Pa. 342 (1853). FIRST DAY OF THE WEEK. 81 allow men to make bargains on the Sabbath is to let them desecrate that holy day, and it should not be granted that the legislature would suffer that.' This is the language of the modern English cases, and perhaps it is consistently used in a country where Chris- tianity is a part of the law, and in which there is an established church and an omnipotent parliament. But the General Assembly of Ohio is not, as we have shown, a guardian of the sanctity of any day. If it may protect the first day of the week from desecration, because it is the Christian Sabbath, it may, in like manner, protect the sixth day because it is the holy day of the Mahomedan, and the seventh day because it is the Sabbath of the Jew and the Seventh-day Baptist. Nay, more, it may protect the various festi- vals, which, by some of the churches, are considered scarcely less sacred than the Sabbath day. But, were the power conceded to the legislature, it has not attempted to exercise it. It would, in the opinion of most Christians, be a far greater desecration of Sun- day to go to an infidel lecture on that day than to buy a tract of land, and yet the former is certainly not unlawful. The statute leaves a man to study atheism or the Bible, as he may see fit, although, in the judgment of most men, the former occupation is as vicious as the latter is laudable. There are various religious duties the performance of which on Sunday is considered peculiarly appro- priate ; various occupations or amusements, harmless in themselves, but deemed by most Christians irreligious, if indulged in on the Sabbath ; yet the law neither enforces the one nor forbids the other. In a word, we repeat that, legally considered, Sunday is merely a day of rest. To the Christian it is &r more. With him it has a sanctity not derived from human laws, but stamped upon it by the Almighty. His observance of it is not the mere performance of a civil duty, but an obedience to a precept of the Most High. In this faith he is protected ; the faith itself is protected ; but the law does not enforce it." 1 And again he says: "We must always keep in mind that it is no part of the object of the act to enforce the observance of a religious duty. The act does not, to any extent, rest upon the ground that it is immoral or irreligious to labor on the Sabbath, any more than upon any other day. It 1 Bloom v. Richards, 2 Ohio St. 387 (1853). 6 82 LEGAL ASPECTS OP THE simply prescribes a day of rest, from motives of public policy, and as a civil regulation ; and, as the prohibition itself is founded on principles of policy, upon the same principle certain exceptions are made, among which are ' works of necessity and charity.' - Unless we keep constantly in mind that the act rests upon public policy alone, we will be in great danger of giving it a wrong construction ; and, instead of reading it in the light of the constitution, which prohibits all religious tests and preferences, find ourselves led away from its meaning by the influence of our own peculiar theological tenets." 1 So we are told in Missouri : " In this country the legis- lative power, since the formation of our Federal Government, has never extended to the enforcement of religious duties merely because they are religious. The rules of human conduct prescribed by the Christian religion find no vindication in the civil authority, except in so far as they have become visibly incorporated in our constitutions and laws. To these constitutions and laws, then, and not to any mere sentiment of piety, however commendable, must we look for the means and measures whereby the courts are required .to preserve good order and the well-being of society. It may be sinful to make loans and promissory notes on Sunday. But if we do not find the acts clearly forbidden by the laws which we are authorized to enforce, we must leave the sin to be dealt with by a higher power."' And in Kentucky : "The statute is only a civil regulation, enacted from motives of public policy, and to discuss it in a religious point of view would be to attribute to the legislature the exercise of a power it does not possess ; that is, the power to enforce the performance of religious duties."* And in California: *' The policy of the law is fully committed to the secular phase of the subject only," and the requirement of compulsory idleness on Sunday is considered as " an exercise of police power ; " and the court adds, that to say the state may not set apart Sunday, because to do so discriminates in favor of Christians, " seems to interpose the authority of churches against the power of the state," for, in guaranteeing religious freedom, she " did not relinquish to religious 1 McOatrick v. Wason, 4 Ohio St. 566 8 Louisville and Nashville B. R.'s Com, (1855). 80 Ky. 291 (1882). 2 Moore v. Climer, 12 Mo. App. 11 (1882). PIEST DAY OF THE WEEK. 83 bodies, nor divest herself of, the power to establish a day of rest as a municipal institution;" that the day is set apart not as a holy day, but as a holiday ; that the acts under consideration were not prohibited as offences against any religion, and, conceding that they were prohibited because offensive to public morals, according to the standard of Christianity, was no valid objection, for, as that is the prevailing religious opinion of the people, public morals are largely dependent on it. 1 And in North Carolina, it was said of Sunday work : " We do not perceive how it can become an offence at com- mon law, even when the labor is both openly and publicly per- formed, as in a town, for example, except upon a process of reasoning •of this kind : That the Christian religion is a part of the common law ; that it forbids work on Sunday, not only as a sin in itself, -but as a disturbance to others and an injury to the state, and, there- fore, that the law prohibits such profanation and punishes it. But -we cannot believe that such a principle was established at the common law. In the first place, the extent of the obligation of the Sabbath [sic] under the Gospel is a point on which the professors and teachers of Christianity have been far from agreeing. It would not, then, be likely that the temporal judges would, without the enactment of parliament, assume to punish the violation of Sunday as being a breach of Christian or religious duty. We should rather expect them to leave that to the censure of the spiritual judge, who was charged peculiarly with the office of enjoining on all subjects the duties' of religion and obedience to the canons of the church. Although it may be true that Christianity is a part of the common law, it is not so in the sense that an act contrary to the precepts of •our Saviour, or Christian morals, is necessarily indictable. Those which were merely against God and religion were left to the cor- rection of conscience, or the religious authorities of the church. Such, necessarily, must be the character of acts which are criminal only in respect to the day on which they are done, being a day set apart by the Author of our religion for His peculiar service. There is reason to doubt, as before said, whether work on Sunday was held to be contrary to the Christian dispensation, as early held in the English church. But, if it was, it became an offence against 1 Koser>a Case, 60 Cal. 177. 84 LEGAL ASPCETS OF THE the state by being contrary to the 1 religion which the state had established. In this state, however, although recognized as an existing, and as the prevalent, religion, it is not, and cannot be, estab- lished by law in any form, nor as consisting of any particular doc- trines, or imposing any special duties of worship, or of worship at particular places or periods. Therefore, however clearly the profa- nation of Sunday might be against the Christian religion, it is not,, and could not here be made, merely as a breach of religious duty, an offence ; and much less can it be held an offence at common law;" 1 and accordingly a levy was held void, not because it was void at common law, or upon the idea that the day ought, upon religious or moral doctrines, to be kept holy, but because a statute made the service of process on that day unlawful. And the court said : " What religion or morality permit, or forbid, to be done, is not within our province to inquire. In different Christian coun- tries, and in different ages in the same country, very differing opinions have prevailed upon this question." In this state, in general, every act may lawfully be done which may lawfully be done on any other day, unless there be some act of the legislature forbidding it to be done on that day."' And the doctrine is thus stated in Alabama : " The legislation on the subject of abstaining from worldly employments on the first day of the week is referred to the police power. It has a sanction in the teaching of experience that the general welfare and the good of society require a suspen- sion of labor and business for one day in seven, and that that day should be one of uniform observance. The exercise of the power to- enforce this thepry of the public good would not infringe the con- stitution, whether the designated day should be the Christian or the Jewish Sabbath." s ' The historical fact is, of course, just as well known to the pun- dits of the bench as to other scholars, that the Sunday laws were intended by those who passed them as the assertion of a religious dogma, and designed to force an external compliance with a por- tion of their ritual upon those who did not believe in the dogma or approve the ceremonial ; that the men who concocted such laws were religious enthusiasts, and not physiologists ; that they felt and pro- 1 Williams' Case, 4 Ired. 400 (1844). « Frolickstein's Case, 40 Ala. 725 » Bkketts' Case, 74 N. C. 187 (1876). (1867). FIRST DAY OF THE WEEK. 85 fessed a supreme contempt for the physical body and its welfare, and. that they would have destroyed for heresy in the early days, and laughed to scorn in the more recent times, any person who suggested that they were making idleness on Sunday compulsory because it would lengthen life and benefit the tissues and organs of men, or because it was a social advantage to have everybody loafing ou the same day. But this historical consideration has been pro- nounced irrelevant, and even where the phraseology of the act plainly shows its spirit and purpose to be as is here stated, this is •held immaterial, and the right is asserted in the courts to sustain Sunday laws on grounds admittedly not present to the minds of the legislators, and for reasons which, as we have said, every student of history knows that they would have repudiated if presented to them. That the acknowledged and specified purposes of a statute may be ■disregarded in deciding upon its constitutionality was thus distinctly laid down in Pennsylvania : " Though it may have been a motive with the law-makers to prohibit the profanation of a day regarded by them as sacred — and certainly there are expressions used in the statute that justify this conclusion — it is not perceived how this fact •can vitally affect the question at issue. In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labor, it is not surprising that that day of the week should have received the legislative sanc- tion, and, as it is also devoted to religious observance, we are prepared to estimate the reason why the statute should speak of it as the Lord's day and denominate the infraction of its legalized rest ■a profanation. Yet this does not change the character of the enact- ment. To say that one of the objects of the legislature was to assert the sanctity of the particular day selected is to say nothing in proof of the unconstitutionality of the act, unless, in this, the religious conscience of others has been offended and their rights invaded. The phraseology used may indicate a conviction of the holy char- acter of the day, but as this simple expression of an abstract opinion carries with it no obligation, beyond the influence attendant upon the expression itself, it cannot be said that the primary object of the act was authoritatively to assert the supremacy of Sunday as of divine appointment. Had such been the intent, its framers would have commanded the performance of religious rites, or, at least, some 86 LEGAL ASPECTS OF THE express recognition of the day as the true Sabbath. Such a requi- sition, we agree, would be a palpable interference with the rights of conscience. Its operation is secular, just as much as the business on which it bears is secular, and it is purely a civil regulation. The- title of the act is 'for the observance of the Sabbath.' But even if the title could be looked to as furnishing decisive evidence of its- purpose, we see nothing in these words which indicate [sic] that the- phrase was designed to imply a requirement of a religious character,, or that the act was, in any respect, designed to subserve a religious purpose. The act itself, in the body of it, explains in what manner the day was to be observed, and shows that the object was only to require duties purely civic or secular ; but, even if it were other- wise, it would be difficult to maintain, as the Supreme Court of Pennsylvania observed in the case in 8 Barr, from the circumstance- that the act shows one of the motives of its framers was to enforce a religious respect to the Sabbath, that this invalidated it on the ground of its unconstitutionality — the body and substantive pro- visions of the law showing a purpose and prescribing duties or for- bidding acts merely secular in their character." l So, in Louisiana, it has been said : " If the object were to compel the observance of Sunday as a religious institution because it is the Christian Sabbath, to be kept holy under the ordinances of thfr Christian religion, we should not hesitate in declaring it to be vio- lative of the constitution. It would violate equally the religious liberty of the Christian, the Jew and the infidel. The law in ques- tion makes no reference to Sunday as a religious holy day, and indeed the exceptions expressly made to the general prohibition conclusively show that the statute is not designed to enforce the Christian idea of the Sabbath, or to apply the rules of any religious sect to its observance. The statute is to be judged precisely as if it had selected for the day of rest any day of the week other than Sundays and its validity is not to be questioned because, in the exercise of a wise discretion, it has chosen that day which the majority of the inhabitants of the state, under the sanction of their religious faith, already voluntarily observe as a day of rest." 2 And in Texas the court adopted the view of the assistant attorney-general, who said, 1 Speches Owe, 8 Pa. 312 (1848). 2 Walkers Case, 39 La. Ann. 132 (1887). FIRST DAY OF THE WEEK. . 87 among other things : " I do not base the validity of the Sunday law under discussion on the ground of morality or religion, but simply on the broad ground of a police regulation, free from any question •of religion and entirely independent of religious ideas as such, except as those laws may not interfere with such religious questions. With an ingenuity worthy of a better cause counsel for the com- plainant has sought to give this case a religious phase, thereby avoiding the real issue. Does the article of the Penal Code propose to dictate or control the religion of any citizen of the state ? It does not. It prohibits selling on Sunday, as therein set forth ; it refers not to religion ; it does not prohibit or control religion. What religion or religious creed or dogma is inculcated in that statute? Or what religion is prohibited? Does it demand any religious act or service of or from any religionist or non-religionist ? Does it require any professed Christian of any faith, order or de- nomination to do any religious act? Does it require any non- Christian or non-religionist to do any act of worship or to support any minister, build any church or other place of worship, or to con- tribute thereto, or to subscribe to any creed ? Does it oblige any Christian,, Jew, Mahomedan, Greek, Infidel, Atheist, Spiritualist^ Agnostic, ' Scythian, bond or free,' to observe any 'religious form, rite or ceremony, or demand of him that he shall bow the knee to any Deity? If so, what or where or when? Does it enjoin upon anybody that he or she or they shall do anything religious at any time or place ? Does it ask that any citizen shall believe in the God of the Bible or its teachings, or the doctrines of the Bible, the Koran, or of Confucius, or the Talmud, or the Old or New Testa- ment ? Certainly not. * * * If the legislature has the power to pass a law setting apart a day of rest, and to call the citizens off from the pursuits and avocations of life for their own protection and require the law to be observed, does it not follow as the night the day that the same body can select and set apart the day by virtue of their police powers?" 1 1 Sundstrom's date, 25 Tex. App. 133 the dual functions of Moses, but not the (1888). The following extract thus American idea of government: "The succinctly exhibits the "common law" Creator instituted the Sabbath as a day as at once the exponent of revelation of rest, as experience has shown the ne- of the hygienic regulations of society — cessity of its observance by mankind 88 LEGAL ASPECTS OF THE Having settled, by the preceding cases, the principle that Sunday laws are mere civil regulations, we have next to examine the grounds on which their constitutionality is justified when regarded exclus- ively from this standpoint. By observing the dates of the decis- ions previously cited, it will be seen that some of the most radical religious views of the subject have been taken in recent years. Yet the weight of later authority is decidedly in favor of the secular reasoning. And if religious liberty is to be more clearly understood as time passes on, and we are to discard the word and idea of " toler- ation" in jurisprudence altogether, as Judge Thurman says Ohio has done, it would seem that, in order to sustain Sunday laws, it will be necessary to find reasons altogether mundane for their justifica- tion. This necessity has been manfully grappled with by the judges who have recognized its existence, and discarded the religious aspect of the subject. Facts have been assumed, of which no evidence exists ; phraseology and history have been ignored, and logic strained without hesitation, wherever the good end seemed to require, such methods. And, in more than one instance, there is a manifest con- sciousness of the fallacies maintained which suggests that the reasoner is suffering an intellectual martyrdom as sublime in its way as any physical sacrifice of the olden time. To appreciate this, the opinions now to be cited must be read in full, and " between the lines." Only the nature of. the reasoning, and not the desperate attempts at self-deception as to its sufficiency, can be understood from the mere " extracts " to which we are confined. And first, we may notice, as it stands, practically, alone in its theory, the attempt of an Arkansas judge to sustain the validity of Sunday laws by likening them to the statutes which name certain days as " holi- days" in various states. It was said in Arkansas : "The power of the legislature to select a day as a holiday is everywhere conceded. This state, from the beginning, has appropriated Sunday as such." And after mentioning the closing of the public offices, &c, the court adds : " The principle which upholds these regulations underlies the right of the state to prescribe a penalty for the violation of the Sun- day law." 1 Under the Arkansas theory, the state says to its citi- generally as a means of preserving full 1 Scale's Case, 47 Ark. 476 (1886). mental and physical vigor." Stale v. King, 37 N. W. Eep. 310 (1888). FIRST DAY OP THE WEEK. 89 zens : "You must be merry on Sunday, under a penalty of dollars for each and every offence." So Mr. Squeers, marking a depressed look on the face of his pupil, Master Mobbs, " moistened the palm" of the hand in which he held his stout rattan and observed : " Cheerfulness and contentment must be kept up. Mobbs, oome here I" Now, the power of the state to close institutions which she con- trols and operates and to allow her own employes to remain idle on any day she chooses, if they desire to do so, is not in dispute ; nor is her authority to extend the time for carrying out contracts, as by making protest, &c, illegal on certain days, in the least involved. The question is not, may she allow her employes to refrain from her own work, but may she compel them and all others to refrain from working either at her business or at business of their own ? — not, may she enact that notes shall not be presented at a bank on Sun- day, but may she fine the bank officials for looking into its affairs on that day ? In a word, may the legislature, besides allowing and encouraging idleness in its citizens, actually force it upon them ? The learned judge in the opinion just cited shows by his own' quota- tions the difference between Sunday " holidays " and all others, in that the first are compulsory, the latter optional. A distinc- tion has been attempted in Nebraska between holiday laws and Sunday laws, as follows : " The Creator instituted the Sabbath as a day of rest, and experience has shown the necessity of its observance by mankind generally as a means of preserving full mental and physical vigor ; hence at common law, courts are prohibited from transacting business on Sunday. No such reasons exist however in favor of holidays. They are established usually to commemorate some event, show respect to some person or persons, or to express gratitude for favors received. In many cases they are liable to inter- fere with private rights; and while the legislature has undoubted authority within certain bounds to declare certain days legal holi- days and prevent the courts from transacting business on such days, yet the courts could not extend such days by implication." 1 It is doubtful whether the " no such reason " here mentioned refers to the " Creator's institution " or the " experimentally demonstrated " 1 State v. King, 37 N. W. Rep. 310 (1888). 90 LEGAL ASPECTS OP THE necessity for Sunday idleness. If the latter, the reasoning cannot, apparently, afford a tangible distinction between the justification for compulsory idleness on Sunday and that for permissible idleness in certain classes on other days (the extent of true " holiday laws "),. except on the grounds that human nature is so curiously constituted that its highest development can only be attained where men are compelled to be idle one day in the week, while to even allow them to be idle oftener would be injurious to the race. 1 But there is little disposition among the authorities generally to- compare Sunday laws with those establishing holidays — probably because the compulsory feature of the former has been generally felt to be a fatal objection to such an analogy. We pass, therefore, to the consideration of those cases which sustain them on secular grounds, but rightly deal with them as absolutely unique in Ameri- can jurisprudence, having no kinship in their spirit or effect with any other law of our country, and of necessity to stand or fall by their own desert alone. Here, as in the other cases, two things are re- garded, namely, the individual and the body politic ; and Sunday laws are held to be constitutional because Sunday idleness is bene- ficial to the idler, and because his idleness is an advantage to the community — the latter being considered not as an aggregate of in- dividuals, necessarily advantaged by whatever is useful to its com- ponent parts, but as a separate entity, receiving a distinct benefit to itself as a whole. According to these authorities, " the evident ob- ject of the statute was to prevent the day from being employed in servile work, which is exhausting to the body, or in merely idle pas- time, subversive of that order, thrift and economy which is necessary to the preservation of society." 3 And "the laboring part of the community must feel the institution of a day of rest as peculiarly adapted to invigorate their bodies for fresh exertions of activity. A wise policy would naturally lead to the formation of laws calculated to subserve these salutary purposes." 1 " It is a law of our nature 1 See the citation post, frankly assert- suit his convenience or inclination, re- ing the proposition that the "precise" quiring him, so to speak, to take it all amount of idleness necessary is that " at one dose." prescribed in the Decalogue. Of course 2 Landers v. S. R.Oo., 13 Abb. Pr. this applies to all men, and debars any (n. s.) 338 (1872). one from distributing his twenty-four > Wtrf's Case, 3 S.&R. (Pa.) 48(1817). hours of idleness through the week, to *ir FIRST DAY OF THE WEEK. 91 that one day in seven must be observed as a day of relaxation and refreshment if not for public worship. * * * We are so constituted, physically, that the precise portion of time indicated by the decalogue must be observed as a day of rest and relaxa- tion, and nature, in the punishment inflicted for a violation of our physical laws, adds her sanction to the positive few promulgated at Sinai." 1 Idleness on one day in each week, then, is not merely advisable, but an absolute requirement of nature, like the principle of gravity. The legislature is authorized to add penalties of its own to those already established by nature for the violation of her laws ; and as it may require each citizen to neglect his business one- seventh of his time, because nature will punish him if he fails to do so, it may require every citizen to be idle on the same one-seventh of the time, because business will be facilitated and the convenience of society subserved by having the necessary idleness of everybody indulged in on the same day, instead of having the lawyers idle one day, the doctors another, the carpenters on a third, the bricklayers on a fourth, and so on. The following citations lead us easily and naturally from the individual to the social considerations involved in this view of the Sunday laws. Thus, we are told in the case just cited, that "experience has shown that the observance of one day in seven as a day of rest is of admirable service to a state, considered merely as a civil institution." "The stability of government, the welfare of the subject, and the interests of society have made it necessary that the day of' rest observed by the people of a nation should be uniform, and that its observance should be, to some extent, compulsory ;"* and by other authority it is stated : "All agree^ that to the well-being of society periods of rest are absolutely neces- sary. To be productive of the required advantage these periods must recur at stated intervals, so that the mass of which the commu- nity is composed may enjoy a respite from labor at the same time. They may be established by common consent, or, as is conceded, the legislative power of the state may interfere to enforce the time of their stated return and enforce obedience to the direction ; " s and the Sunday law " has its sanction in the teaching of experience that the general welfare and good of society require a suspension of labor and 1 LindenmuUer>s Case, 33 Barb. 548 * Id. 568, (1861). * Specht's Case, 8 Pa. 312 (1848). 92 LEGAL ASPECTS OF THE business, for one day in seven, and that it should be a day of uniform observance;" 1 and the courts are "well convinced there is nothing more essential to the physical, social and religious elevation of a people^th&n the institution of a weekly day of rest — a day set apart «specially for recreation and for the worship of Almighty God;"' and this view of the subject is well summarized as follows : "In construing our statute, it would be our duty to give it a meaning consistent with our constitution, if its meaning were doubtful, and such meaning could reasonably be attached to its language. Its meaning is not, however, doubtful. It was obviously not intended by our statute to enforce the observance of the Sabbath as a religious duty. The legislature obviously regarded it as promotive of the mental, moral, and physical well-being of men that they should rest from their labors at stated intervals, and in this all experience shows they were right. If, then, rest is to be enjoined as a matter of public policy at stated intervals, it is obvious that public con- venience would be much promoted by the community generally resting on the same day 5 for, otherwise, each individual would be much annoyed and hindered in finding that those with whom he had business to transact were resting on the day on which he was working. The legislature, in holding these views, in selecting the particular day of rest, doubtless selected Sunday because it was deemed a proper day of rest by a majority of our people, who thought it a religious duty to rest on that day, and, in selecting this day, for these reasons, the legislature acted wisely. The law requires that the day be observed as a day of rest, not because it is a re- ligious duty, but because such observance promotes the physical, mental and moral well-being of the community ; and Sunday is se- lected as this day of rest, because, if any other day had been named, it would have imposed unnecessarily onerous obligations on the community, inasmuch as many of them would have rested on Sun- day as a religious duty, and the requirement of another day to be observed as a day of rest would have resulted in two days being observed instead of one, and thus time would have been uselessly wasted." The court then quotes the exception in the state statute of 1 Frolickstein v. Mayor of Mobile, 40 J Manly, J.'s, dissenting opinion in Ala. 725 (1867). Melvin v. EasUy, 7 Jones (N. C.) 356 (1860). FIRST DAY OF THE WEEK. 93 any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath, and does not compel an apprentice, or servant, not of his belief, to do secular work, and does not disturb others, and adds : " This, in effect, says rest on Sun- day is not required of any one on the ground that it is a religious duty, but because the well-being of men require [sic] that they should rest the one-seventh part of their time, and public convenience requires that this rest should be taken on the day when a majority of the community would, even without a law on the subject, rest, as they regard it as a religious duty to do so, and it would be preju- dicial to the public, and tend to idleness, if two-sevenths of the time was devoted to rest. If, then, any portion of the community should regard it as their religious duty to rest on some other day than Sun- day, and .do so rest, they are not required to rest on Sunday, as one-seventh of time is all that the public good requires to be devoted to rest." 1 It will be perceived that most of the reasoning which relies on the consideration of the individual's physical welfare is confined to a demonstration of the expediency of a day's idleness at certain intervals, and implies that once a week is about the proper fre- quency for the general loafing time. But Idndenmuller's Case* assures us that the "precise portion of time indicated by the decalogue" must be spent in idleness or nature will punish us. We have here a reference to an extraordinary and awe-inspiring chapter in nature's code. And it is deeply to be regretted that the learned judge to whom we are indebted for the citation has not favored us with the tables of vital statistics or extracts from the writings on hygiene which he examined before arriving at so remarkable a conclusion. This is the more unfortunate because there are facts that seem to bear directly against his position, as well as that of the " expediency men," and to show that nature not only neglects to punish breaches of her law in this regard, but that she bestows no reward on those who observe it, in the way of especial health or longevity. And, though these are mere negative propositions, and the burden of their demonstration ought not, in law or logic, to be on those maintaining them, a few considerations in their support are here submitted. 1 B. &OhCate, 15 W.Va. 362 (1879). 'Ante, — . 94 LEGAL ASPECTS OF THE Without entering upon the question of the origin and universality of the division of days into weeks, 1 we may observe that even if a " seventh day " was known from the creation, and " observed " by any people, there is no evidence in the Bible, or anywhere else, that idleness was considered a part or the whole of such observance by any one, prior to the date of Moses' command to the Israelites upon this subject. And, yet, the record which has come down to us of the great ages attained by the patriarchs, to whom no such injunc- tion was delivered, seems to prove that tenacity of life does not bear a fixed relation to weekly idleness. And some further light on this point is perhaps to be derived from the case of the Greeks, to whom the week was unknown, 8 and who yet attained a very respectable degree of physical development, their statues remaining models for all time; and from the case of the Romans, who bor- rowed the week from Egypt in the second century, 8 but were powerful and sturdy of frame for many generations before, unless all accounts belie them, and the greatest glories of whose career of conquest were achieved before they began to use the weekly division •of days ; whereas, the famous edict of Constantine, making idleness compulsory for certain persons " on the venerable day of the sun," 4 was passed A. d. 321 , when the Roman Empire was perhaps at its jzenith, but still a process of decay in men and manners had begun, which neither the Christian religion nor the very partial Sunday idleness which was thereby first established was able to arrest. 6 Coming down to the present time, we find the very existence of a " seventh day," and consequently, of course, any necessity for its ob- servance by remaining idle, unknown to the American aborigines, 6 1 See Bessey's "Bumpton Lectures," robust. Spain, Gaul, Britain and Illyr- 139, 142, 415 ; Potter's "Arch. Groeca," icum supplied the legions with excel- Bk. II., 126; Adams' "Roman Ant." lent soldiers, and constituted the real (ed. 1819) 303. strength of the monarchy." 1 Gibbon's 2 Potter's "Arch. Grceca," Bk. II., ch. Decline and Fall of Roman Empire 26 - (Milman's ed.), ch. 2, p. 70 (Lippincott, 8 Adams' "Roman Ant." (1819) 303 1866). «« wg. 8 1 Humboldt's Researches 283-6 ; # Id. i See Table B. 110, 123 ; 1 Prescoll's Conquest of Mexico 6 "The military spirit evaporated. Ill (Harper's, 1843). The natives of Europe were brave and PIEST DAY OF THE WEEK. 95 the Chinese, 1 Japanese, 2 and Polynesians. 8 But the observation of travelers has failed to note any physical weakness or brevity of exist- ence among any of these races, evidencing the wrath of nature at their ignorant infraction of one of her " fundamental laws." The average height of the Chinese and Japanese is probably less than that of Englishmen ; but their capacity for steady labor is certainly as great as the capacity of white men, if it does not exceed the latter. Perhaps many among the Indian and Polynesian tribes are the equals in physical development of the most highly civilized of the Caucasian race ; but as the males, at least, of those fortunate branches of the human family do little work beyond hunting arid fishing on any days, and substantially enjoy the blessings of a perpetual Sabbath, even if statistics in relation to their endurance of work or longevity were obtainable, they would be valueless for purposes of comparison with our own. If it be said that the exactions of civilization and the hard ■conditions which it imports into the struggle for existence make a weekly recurrence of an idle day essential, or even desirable, the answer might be .that the Chinaman survives and develops under a fiercer competition than ours. But it is not necessary to go to China for data. We have among us many thousands of persons — literary men, students, lawyers, &c. — who make little or no difference be- tween Sunday and the rest of the week in the matter of labor ; many hundreds of overtaxed clergymen, whose only method of distin- guishing the day is to work considerably harder than on others, and the vast army of the medical profession, the very nature of whose •occupation forbids their resting at any certain interval. Yet there is absolutely not a single fact to show that the vigor of any one of "these is impaired or the number of their years on earth abridged by their failure to yield obedience to the " law of our nature," which requires idleness on Sunday. And the farmer, who, as a rule, con- scientiously neglects his business as much as possible every Sunday, is among the shortest lived of men, and, as a soldier, compares un- favorably in ability to stand prolonged duty and resist the attacks •of disease with recruits from other classes ; whereas, the physicians, !0 Dams' Chinese, eh. 18, p. 290 '"Sabbath," "Westminster Review," (London, 1836). October, 1850. 1 Thundberg's "Voyage au Japan" 317. 96 LEGAL ASPECTS OF THE "who know no Sabbath," are notorious for their longevity, endur- ance, and resistance to contagion. Doubtless every member of the- classes above enumerated as disregarding Sunday idleness needs and, if he is wise and careful, takes both rest and recreation ; rest, and plenty of it, he should take in the night hours ; recreation, whenever nature seems to an unbiased judgment to demand it, and in "quan- tities to suit." The only point at issue is the physical necessity or advisability of idleness for everybody during twenty-four hours in each week. The social considerations in favor of Sunday idleness remain now to be reviewed. In dealing with these we find the courts sometime* merely dwelling on the expediency of Sunday idleness and at othei- times proclaiming its absolute necessity, just as we have seen that they do when they are concerned with the relation of Sunday idleness to the- do individual idler. Thus, we are told that " public convenience would be much promoted by the community generally resting on the same- day ; for, otherwise, each individual would be much annoyed and hindered in finding that those with whom he had. business to trans- act were resting on the day on which he was working ; " * and that this uniformity is enjoined by the " teaching of experience ; " 2 and we then pass to cases which assure us that " there is nothing more- essential to the physical, social and religious elevation of a people than the institution of a weekly day of rest;"' and that "the sta- bility of government and the interests of society have made it nec- essary that the day of rest observed by the people of a nation should be uniform, and that its observance should be, to some extent, com- pulsory ; "* and we are thus prepared to receive the opinion of that West Virginia judge, who is convinced (like the one in New York, whose opinion has just been quoted,) that there is a magic potency in idleness on one day in seven, so that to idle less — say for one day in ten— would be an injury, and to idle more a superfluity ; but, as- in LindenmuUer's Case, no authorities are given for this assumption,, in its relation to the individual, so, here, we find none referred to for its vindication in the social aspect ; no instance is recalled of a ; 1 P. agreement for the use and occupation of land, under which it was subsequently occupied, the court said : " It was either a ratification and adoption of a previous imperative contract, or was the founda- tion of a mere implied provision to pay for the use of the land what the same was reasonably worth." 6 It was said in Indiana, in 1866 : " The question is, will a promise be implied from the mere retention of the money paid on the con- tract ? It is evident that the English authorities have not gone to this extent. The common law binds us, as we have adopted the common law by statute." 6 But, in an earlier case, in the same state, where the terms of a sale were agreed on, and the property delivered to the vendee on 1 Bainey v. Caffs, 22 Ala. 288 (1853). » Fenneller v. Bidier, 5 B. & C. 406 2 Tucker v. Movrrey, 12 Mich. 378. (1829). 8 Myers v. Meinrath, 101 Mass. 366. • Perkins v. Jones, 26 Ind. 499 (1866). * Block v. McMwrray, 56 Miss. 217. FIRST DAY OP THE WEEK. 133 Sunday, and he retained possession until it was levied on by the sheriff under an execution against the vendor's property, and, in the meantime, with the assent of the vendor, re-sold portions of it, in the ordinary course of business, and, in addition, he, on a day sub- sequent to the sale, paid, and the vendor received, at least one-half the consideration for which the property was sold, it was held that the contract had been ratified, so as to render it valid. 1 It was said in Vermont : "A refusal to have the contract rescinded, followed by a retention of the property, cannot be considered a stronger or more unequivocal ratification of such contract than, in this case, are the several payments, which have been made on the note, followed by the same act in retaining the property. If there had foeen no subsequent payments, and the case had stood upon the mere retention of the property, whether that circumstance alone would ratify the contract we are not called upon to decide. Evidently, it would not have that effect in the English courts." s In Alabama it has been held that the fact that a party retains possession of the property does not imply a promise to pay the con- sideration ; it is necessary that there should have been a demand and refusal of the property, or a promise to pay for it, or something •equivalent to a promise.' Where the defendant sold a horse, and the plaintiff gave his ■check for the price, and, at the same time, a bill of sale was made, and deposited with a third person, who was to hold the same till the check was paid, and the check was paid Monday, and the horse and bill of sale were delivered to the plaintiff on a secular day, it was held that the plaintiff could not rescind the contract, on account of a deceit, practised on him by the defendant, and recover, in an action for money had and received, the price paid. 4 In an action to enforce a penalty provided for the failure of a telegraph company to transmit and deliver a message, it was held that a retention of the message and the consideration paid for its sending did not constitute a new contract.' 1 Banks v. Werts, 13 Ind. 203 (1857). 8 Dodtson v. Harris, 10 Ala. (1846); See, also, Lyon v. Strang, 6 Vt. 219 TfJ«iamsv.Pa««,6Bing.653(1830). (1834) ; Allen v. Deming, 14 N. H. 133 * Plaisted v. Palmer, 63 Me. 576 el seq. <1843). (1874.) 1 Sumner v Jones, 24 Vt. 317. * Rogers y. Telegraph Co., 78 Ind. 169 (1881). 134 LEGAL ASPECTS OP THE Where a loan, for which a note was given, was partly in cash, and partly in a check, it was held that by collecting the latter and retaining the money, and also that advanced on Sunday, the parties reaffirmed the contract ; and a surety, who took an active part in getting the money from the principal, informed the lender that he- would be mostly paid through himself, and acquiesced in the col- lection of the check and retention of the money gotten on Sunday, was regarded as having affirmed the contract. 1 A subsequent payment on account is a sufficient ratification of a Sunday contract ; a but payment of interest on a note is not sufficient to validate it." Where A and B met and agreed on a measure of damages for an injury, and A on a week day paid what was agreed on, the court said the settlement was valid. 4 Where a creditor agreed with his debtor that, if the latter would* pay a certain sum by a future date, he would wait a year for the balance, it was held that no action could be maintained on th& agreement, nor could it answer as a defence ; but, when a sum agreed on was paid, the contract was held perfect, and on valid consideration, and free from objection, arising from the previous- conversation. 6 The mere fact that a person borrowing money on Sunday retains- it and converts it to his own use does not raise an implied promise, binding in law, and upon which an action can be maintained. 6 In this case the defendant made default in the service of the writ, which he was bound to serve. On Sunday he agreed with the plaintiff that if the latter would bring another suit, summoning a certain person as- trustee, it should not discharge him from liability for the default.' After sunset the parties arranged to discontinue that suit, had a new writ made, and, immediately after twelve o'clock at night, gave notice of discontinuance, and served the new writ, the defendant assisting the officer who served it. In case for the default, the court said : " We entertain no doubt that this was a ratification of the- contract." 1 Campbell v. Young, 9 Bush 240. * Taylor v. Young, 61 Wis. 314. 2 Tucker v. West, 29 Ark. 386 (1874) ; » UUer v. ApplegaU, 26 Pa. 140 < 1856). :« v. WeUman, 10 R. I. 465 (1873). « Troewert v. Decfar, 51 Wis. 46(1881). 'Reeves v.Butcher,31 N. J.224(1865). FIRST DAY OF THE WEEK. 135 A surety, who signed a note, afterwards told the payee, who called to see him about the payment of it, that the principal had certain property he might sell and apply on the note, and, after the princi- pal had done so, paying part of the note, met the payee on the road, and asked how he and the principal were "getting along" with the note, and the payee answered that he could not wait much longer, whereupon the surety asked him not to sue till he (the surety) could see the principal, as none of the consideration for which the note was given was received by the surety. It was held that there had been no ratification by the latter. 1 The question has arisen whether a Sunday payment on account . of a previous contract will take the debt out of the operation of the statute of limitations. It was held that it will not, because " the payment is a link in the chain of evidence, necessary to sustain the action. When an act essential to complete the right of recovery is in violation of the statute, the plaintiff cannot demand the assist^ ance of the judiciary — the delivery of goods or payment of money may vest the property therein or extinguish an existing obligation so far as the property or money has passed from one party to the other, but cannot be applied to any other purpose." 2 Where a party bought property, in consideration of antecedent debts, and, during the week subsequent, sent a receipt for the prop- erty, as well as the debt, it was held a sufficient ratification of the agreement. 3 Suit was brought on a promise to indemnify the plaintiff for be- coming surety on a promissory note. The whole transaction occurred on Sunday, and, holding both note and agreement of indemnity void, the court said : " The defendant might have made this defence to the suit against him on the note. But, failing to do so, judgment was rendered against him. This has no tendency to give efficacy to the agreement of indemnity, which was void in its inception." 4 A Sunday payment, if retained, discharges a debt. 5 Payment by one joint contractor ratifies the contract so as to bind the others, being presumed to be with the latter's approbation and operating for his benefit.' 1 Parker v. Pitts, 73 Ind. 597 (1886). * Hill r. Sherwood, 3 Wis. 343 (1854). 1 Clapp v. Hale, 112 Mass. 368 (1873). 'Shields v. Ktopf, 70 Wis. 69. « Wilson v.MUlegan, 75 Mo. 41 (1881). . "Russell v. Murdoch (Tex.), 44 N. W; Eep. 237 (1890). 136 LEGAL ASPECTS OF THE Where a note paid on Sunday is secured by a mortgage also executed on Sunday, "the payment, whether made and applied upon the notes or mortgages, is a ratification of both instruments." * In a suit on a warranty, where the representation which induced the sale was made on Sunday, and the horse sold was delivered on Sunday, it was held in Connecticut that it was "a mere evasion of the statute to regard the sale as made on Monday, because payment was then made." ' A Sunday contract in Iowa " will be regarded as valid from the date of its ratification." 8 IV. The Liability of Common Carriers. A steamboat company running from Baltimore to Richmond and stopping at " City Point " gave receipts for goods to Petersburg ; the goods were delivered at City Point to a railroad company. The latter, receiving a shipment on Sunday, stored it in its warehouse to remain till Monday. Sunday evening, it was' destroyed by fire. The steamboat company being compelled to pay for the shipment, sued the railroad company. The Supreme Court of the United States held that the tatter's duty to keep the goods safely was not a violation of the Virginia code, and that the plaintiff was entitled to recover. 4 In a suit for injuries occasioned by the negligence of a passenger- railway corporation, it was said : " It is unnecessary to consider what relation may have existed between other' passengers and the defendant. If the plaintiff was lawfully traveling, then the defend- ant had a right to carry her, and it is enough that between them alone the relation of carrier and passenger existed." 6 By an act passed in Massachusetts in 1877, it was provided that the prohibition of travel should not constitute a defence to an action against a common carrier of passengers for any tort or injury suf- 1 Russell v. Murdoch (Tex.), 44 N. W. * P. 8. Co. v. C. R. Co., 24 How. 247 Rep. 237 (1890). (1860). The opinion is long and elab- 1 Grant v. McOratt, 56 Conn. 333 orate, and discusses every aspect of the (1888). case with great thoroughness. 'Russell v. Murdoch, 44 N. W. Rep. 5 Feital v. Middlesex R. R., 109 Mass. 237 (1890). 398 (1872). FIRST DAY OF THE WEEK. 137 fered by a person or traveler. This statute has been held not retro- active. 1 Where an accident occurred while a steamer was lying at her 41 slip," and before she started on a Sunday excursion, an injured party was allowed to recover in New York. The court said: " These are not the cases of travelers on a turnpike, out of condi- tion, by reason of which they meet with an accident upon a Sunday, while upon an errand forbidden by law, for, in that case, the travel- «rs would be trespassers, having no right to enter upon the road. The deceased, however, were not trespassers upon the boat ; on the contrary, they were there upon the express solicitation and permis- sion of the defendants. The defendants themselves were, on their own theory, in violation of the law, but the idea is the same. They invited and induced the deceased to come on their boat ; they failed to perform their contract to convey them to Staten Island, and to this extent the statute gives them protection. But to hold that they had the right to imperil the lives of passengers by gross negligence, such as was found by the jury to have existed, is a proposition which strikes the mind at once as unreasonable. It would seem useless to look for authorities on this point. It is enough to con- sider the reason of the case, for nothing is law that is not reason." a In this state, it is now established that the liability of a common carrier is not affected by the fact that he is working under a Sun- day contract, because it does not grow out of his contract. 8 But a railroad company is not bound, as a common carrier, to convey passengers on Sunday, and though, where their purpose was to attend the laying of a corner stone of a church, recovery was allowed on a contract to do so, it was held that no damages could be claimed for " annoyance, vexation of mind, mental distress, or sense of wrong." V. The Question of "Warranties. How does the invalidity of a Sunday contract effect recovery on a warranty contained therein ? 1 Batcher v. Fitchburg R. R., 131 S. C, 29 N. Y. 115; Carroll v. Staten Mass. 156. Island R. R., 58 N. Y. 126 (1874). 1 Landers v. S. I. R. R., 15 Abb. Vr. * Walsh v. Chicago R. W., 42 Wis. 23 (n. s ) 338 (1872). (1877). See, also, Apsahl v. Yudd, 30 8 Merrill v. Earle, 31 Barb. 38 (1872) ; Minn. 126 (1813). 138 LEGAL ASPECTS OF THE In England, the doctrine seems to be that the defrauded party may recover. It will be observed that, in the following case, the plaintiff, suing on the warranty, was held not to have violated the law, but the language is general, that the contract being void " would not prevent the plaintiff from recovering." Whether this applies only to contracts which, like that under consideration, are illegal on the part of the warrantor, but lawful as far as the war- rantee is concerned, or whether it states a universal rule, as to Sun- day contracts, is uncertain. The action was on a warranty in the sale of a horse. The purchase was not within the plaintiff's " ordi- nary calling," and there was no evidence that he knew the sale was within that of the defendant. The court said : " The contract may have been void, but that does not prevent the plaintiff from recov- ering back his money paid upon a contract, the consideration for which has failed. If it be not void, then he is clearly entitled to recover for the breach of it, the horse not being sound, according to the warranty." 1 The North Carolina statute is in very nearly the same words as 29 Car. II., and under it the Supreme Court of that state held that a sale of a horse by a dealer, at private sale, though the vendee knew it was within his ordinary calling, was not such a violation of the statute as to prevent recovery in an action by the vendee for deceit and false warranty. This was decided by two judges against one. 8 Butler, J., holding that the contract was void, as within the "ordinary calling" of the vendor, and that the vendee was. " particeps' criminis, because he knew it to be so." It is held that there can be no recovery on such a warranty in Massachusetts, 8 and Vermont, 4 and Kentucky, 6 and New York. 4 So, where an operation was performed upon a horse with a warranty of recovery, and the animal died from the effects of it, it was held that no recovery could be had on the warranty. 7 1 Bloxsome v. Williams, 5 Dowl. & By. could not be enforced, action would lie 84 (1824). on the warranty where the swopping 1 Mdvin v. Easley, 7 Jones 356. had been completed. Id. 230. 3 Robeson v. French, 12 Mete. 24 ■ Murphy v. Thompson, 14 B. Mon. (1846). See Bradley v. Ben, 103 Maes. 419 (1854). 188 (1869). « See, also, Northrop v. Fort, 14 Wend. *Ly behalf of a party whose traveling on the highway was illegal. 1 White v. Lang, 128 Mass. 598 (1880). Bat see Davidson v. Portland, (1880). 69 Id. 116 (1879). *Bryant v. Biddeford, 39 Me. 103 'Johnson v. Irmburg, 47 Vt. 28- (1855) ; Cerally v. Bangor, 57 Id. 423 (1874). FIRST DAY OF THE WEEK. 151 CHAPTER VII. SUNDAY AS A "DIES NON JURIDICUS." I. "Was Sunday a Dies Non Jukidicus at Common Law? The assertion that it was has been frequently made in Amerioa. 1 In the Mirror of Justice, published in English in 1768, we find enumerated among the "abuses of the common law" the fact "that pleas hold upon Sunday ; " a and Lord Coke says : " In the com- mon law there be dies juridiei et dies- non juridici the Lord's days throughout the whole year, so called because the Lord and Saviour of the world did arise again on that day ;" and that this was the ancient law of 'England, and extended not only to legal proceedings, but to contracts, &c, and he quotes the words of the statute. 8 And, again, "There be also in the term dies non juridiei ; as in all the four terms the. Sabbath day is not dies juridieus, for that ought to be consecrated to divine service." 4 In his "ample and most judicious discourse" on the subject of "the Original of the Terms" (London, 1698, ch. 3, p. 75), Sir Henry Spelman observes: "To beat down the Roman super- stition touching observation of days, against which Saint Augustine and others wrote vehemently, the Christians at first used all days alike for hearing of causes, not sparing (as itseemeth) the Sunday itself, thereby falling into another extremity. Yet they had some precedent for it, from Moses and the Jews. For Philo Judseas, in the life of Moses, reporteth that the cause of him that gathered sticks on the Sabbath day was, by a solemn council of the princes, 'See Veehten v. Poddock, 12 Johns. (N. Y.) 177 j Merrill v. Earle, 31 Barb, 38 ; Seammon's Case, 40 111. 146 (1866) Chapman's Case, 5 Blaekf. Ill (1839) Kiger v. Coates, 18 Ind. 153 (1862) ; 265. Nevada v. Cal. M. Co, 13 Nev. 203 « Co. Litt. a [g], (1878); White, ex parte, 15 Id. 146 (1880) ; Saynes v. Sledge, 2 Port. 530 (1835). 2 L. C. 244. •27 Henry VI., ch. 5; Coke's Inst. 152 LEGAL ASPECTS OF THE priests, and the whole multitude, examined and consulted of on the Sabbath day. And the Talmudists, who were best acquainted with the Jewish customs, do report that their judges, in the couneil called Sanhedrim, sate on the week-day from morning to night in the gates of the city ; and on the Sabbath day and solemn festivals, in the walls. So the whole year then seemed a continual term, no day exempt. And they that seek the original of our modern laws among them do but spend their time in vain ; unless for some things imposed on them by the Roman emperors when they became subjects. How this stood with the Levitical law, or rather the moral, I leave to others." Lord Mansfield said : " When the terms were first framed, and so many return days were made on Sunday, can it be supposed that the court did not then usually sit on Sun- day ? I myself have sat in Parliament on a Sunday. In "Venice they sit on Sunday to administer justice. The Koto sits on Sun- day." The distinguished judge also calls attention to the practice of the early Christians to hold their courts on Sunday, and says : "They had two reasons for it ; one was in opposition to the heathens, who were superstitious about the observation of days and times, con- ceiving some to be unlucky and others lucky; and, therefore, Christians laid aside all observations of days. A second reason they had was that by keeping their own courts always open they prevented the Christian suitors from resorting to the heathen courts." He then referred to the canons, &c., mentioned by Spel- man, and added : " These and other canons and constitutions were adopted by the Saxon kings of England. They were all confirmed by William the Conqueror and Henry the Second, and thus became part of the common Jaw of England." 1 Now, several definitions have been given of this phrase, "the com- mon law;" but, by "the common law of England " Lord Mansfield must here intend simply the general law, as distinguished from the local or particular law, for it cannot be supposed that he would so 1 Swarm v. Broome, 1 W. Black. 496 Queen Anne, but, the Lord Stewart not (1764) ; 8. C, 3 Burrows 1575. In a appearing to administer the oath, they note on this case, it is stated that on the departed without proceeding to busi- sudden death of George II. both houses ness or making any formal adjourn- of Parliament met on Sunday, October ment. 26th, 1760, pursuant to the statute of FIRST DAY OF THE WEEK. 153 oonfuse distinctions as to refer to " the common law " in its strictest sense of " the law for which no enactment can be found," a usage prescribed by express rules, the date and manner of whose estab- lishment are mentioned by himself. It is not quite clear whether the Mirror intends by " abuses of the common law," violations of it, or practices under it, that ought to be prohibited. But it is evident that Sunday was not a ■dies nonjuridicu8 by English common law, as adopted in America, because that law is always, in this connection, distinguished from English statutory law ; and Sunday has derived its character as a dies non juridicus in England from certain easily cited statutes, whose regulations were borrowed from the ecclesiastical or canon law, and whose enactment was one of the many results of that English union of church and state which is nominally repudiated among our people. Thus, it was well said in New York, that the prohibition of legal proceedings on Sunday "is not strictly on grounds of morality, or of the Christian religion, as recognized by the common law, nor was it the original practice of the Christian Church. It was intro- duced, like very many other doctrines and practices, some of which are, perhaps, less commendable, into popular Christianity, and thence into common law and usage by the influence of the clergy. It is well known, to lawyers, at least, that until the year 500 the Christian courts were open and legal business transacted in the ordinary way on Sunday as on other days." ' On the other hand, Judge Hoffman, of New York, referring in 1859 to Spelman's mention of the early custom of keeping open the Christian courts, says that if it ever existed it was checked at a far earlier period than 517, and he refers to the edicts of Constantine and Valentinian, and various canons, acts of Parliament, &c* It was said in Indiana: "Prior to the establishment of the Christian religion, all acts valid on any day were valid, when per- formed on the first day of the week. After the establishment of that religion, acts done on the first day of the week were valid, until the rule was changed by law. The Church changed the rule, as matter of discipline, in 517, so far as to prohibit judicial acts on 1 Merritt v. Earle, 31 Barb. (N. Y.) 2 See Table A; Campbell v. Inter- 38 (1859). national, 4 Bos. 298. 154 LEGAL ASPECTS OF THE that day. This rule subsequently became part of the common law; but this did not apply to ministerial acts ; writs still continued to- be returnable." 1 So it was said in Pennsylvania: "Decrees of councils of the Church, and of the emperors, and governments, forbade holding courts on Sunday; but they went further, and included many other days — Lent, and other fasts of the Catholic Church, Christmas, Easter, and several days before and after. These were, many of them, established by the civil authority in England, but were never part of the law in this state. Every denomination of Christians in our country has its own regulations for its own members ; but we have no general ecclesiastical law, and our courts have no power in such matters, except what is expressly given by legislative enactments.* If the views here maintained be correct, it follows that in one of the United States Sunday is not made a dies non jundicus by a declaration in the constitution that " the inhabitants are entitled to the common law of England," or the like. And that with us legal proceedings are valid on Sunday, unless declared otherwise by express terms of constitution or statute. II. Distinction Between Judicial and Ministekial Acts. This distinction was taken very early ; and it was settled that ministerial acts of a court might be done on Sunday.' In 1835 the question was mooted, but not decided, whether the filling up of a blank writ, and delivering it to an officer, was a judicial or ministerial act. 4 The distinction has been uniformly observed by our courts. It was held that, under the Nevada provision allowing reception of a verdict, &c, the preparation and execution of an undertaking to perfect an appeal was not prohibited; and, after remarking that it was sometimes difficult to discriminate between judicial and minis- terial acts, the court added : " It would hardly be claimed that the preparation of the undertaking by the notary on Sunday, so it 1 Kiger v. Coales, 18 Ind. 153. 8 Conway 27 ; Hastings v. Columbus, 42 2 Huidekoper v. Cotton, 3 Watts 56 O. S. 585. (1834) ; Hastings v. Columbus, 42 O. S. 'MackaUy's Case, 9 Coke R. 61. 585 (1855). See, also, Story v. Elliott, * Johnson v. Day, 17 Pick. 106. FIBST DAY OF THE WEEK. 155 could be executed and filed early Monday morning, would be a judicial act, because it was in aid of a court proceeding." 1 The Nevada statute provided that courts should not be open, except, among other things, for the issue of attachments on a certain affi- davit. Held, that the exception was to be liberally construed, aud authorized not merely the. issuance of the writ, but also the com- mencement of the action." Later, considering the provision " for the exercise of the powers of a magistrate in a criminal action," &c, the court said : "A justice of the peace, acting as a magistrate, may prosecute judicial business, issue warrants for the arrest of a party charged with crime, proceed with the preliminary examination, and commit, discharge, or release on bail. In the present case the justice, in receiving the plea of guilty, passing and rendering judgment, acted in the exercise of his powers as a justice of the peace. In this respect he acted without any authority of law. The judgment rendered is void."* The service of a writ of attachment, and the arrest of a defendant is in violation of the North Carolina statute/ and in Georgia there can be no attachment, or bail process, unless by authority of special law, and then only under special circumstances. 8 But in Alabama, it is held that the service of the process of attachment is a purely ministerial act ; and by common law no valid objection can be urged to its execution, though the issue by the clerk is judicial. And it was held, that while the issue on Sunday was irregular, and if it appeared on the face of the attachment, it would justify the courts in quashing it ; the court had no power to order the clerk to change the date, "without intending to decide," said the court, "that the defendant is without remedy." * It was said in Ohio: "Process issued by a ministerial officer in the ordinary course of official duty is not process awarded by a court within the meaning of that phrase in Swan v. Browne. 7 "While at common law a judgment could not be rendered, process 1 Cal. M. Co.'s Case, 13 Nev. 203 * Demos v. Summit, 86 N. C. 126 (1873). (1882). 'Levy v. Elliott, 14 Ner. 435. 'Bass v. Irvin, 49 Ga. 436. * White's Case, 15 Nev. 146 (1880). 'Mathews v. Ansley, 9 Ala. 20 (1857). T Was shown in Ctough v. Shepherd. 156 LEGAL ASPECTS OF THE awarded by a court on Sunday, an arrest in a civil cause, and service of process of any sort, they being merely ministerial acts, were perfectly valid." ' Finally, we may observe that the distinction between ministerial and judicial acts has been repudiated in Iowa.' III. Writs in General. English Cases. — In 1558 it was assigned for error that the teste of a scire facias was on Sunday.* In 1628 an information was exhibited in the Court of Ex- chequer against a party for " forestalling," and it was held good. 4 In 1641 a process for good behavior was served on. Sunday, and the court said "it was not well awarded according to the statute."* It was heJd in 1798 that a rule nisi for an attachment for non- payment of money pursuant to the Master's allocutur could not be served. Lord Kenyon said the statute of 29 Car. II. was equally applicable to the service of process as to an actual arrest. 6 In 1691 a citation on a party "in a case for incontinency " was held valid under 29 Car. II. 7 In the report of this case in Salkeld's reports it is stated that the citation was fixed upon the church door, and that Holt said : " The statute extends not to those processes nor to summons at the church, but only to such processes which may be as well executed at any other time." 8 In 1701 a motion was made to set aside a judgment in trespass after a judgment by default and a writ of inquiry had been exe- cuted, because the declaration was delivered on Sunday. > It is reported : " Holt, C. J., seemed to incline that the delivery was ill because 29 Car. II. intended to restrain all sorts of legal proceed- ings; but Powys and Gould, J J., contra, because such delivery was but quasi a notice, and as a letter and not a process. -But, it appearing to the court that the defendant had appeared, and that the writ of inquiry had been executed, they would not intermeddle, and said that that had made all good." 8 1 Hastings v. Columbus, 42 O. S. 585 s Prism's Qase, Cro. Car. 602. <1885). 'M'lleham v. Smith, 8 T. R. 86. 'Davis v. Fish, 1 Green 406 (1848). 'Alarum v. Brookbunk, Corth. 504. 'Barrett v. Cleydm, 2 Dyer 168. e Salk. 625. *Bedoe v. Alpe, Sir W. Jones 156. • Walgrave v. Tuylor, 1 Ray 706. FIRST DAY OF THE WEEK. 157 A declaration was delivered on Trinity Sunday, and it was doubted whether such delivery were not void by 29 Car. II., ch. 7. Holt, C. J., said : " Strongly it is ; for, first, it is no act of neces- sity, as putting of ecclesiastical process upon the church, or making a tender to save a penalty." And he said he would take the word process for " proceeding," and such construction as tends to a better observation is to be made. And this declaration as delivered could not be taken notice of without breaking the Sabbath till Trinity term, for that, by statute 32 Hen. VIII., ch. 21, begins on Mon- day ; but Quind. Pasch. is indeed always on the Sunday, but is; kept on the Monday. And, per lui, if an arrest of the person that skulks all the rest of the week be void on Sunday, a fortiori this- will be. But Gould et Powis, JJ., dubitabant." 1 The question was whether the service of an ejectment were good upon the statute;' and per curiam, it is not, for "it is a. process, though not a judicial one; for it is compulsive on the party to- appear, and it may as well be said that the service of a summons in a real action may be good."* The execution of a writ of inquiry is void, and the court is bound to take notice of it, without its being specially assigned for error.* The notice of signing judgment for want of a plea was left with the defendant's attorney upon a Sunday, which the counsel said was irregular, and, therefore, he moved to set aside the judgment,. But the court said that this was not within the statute of 29 Car. II.,. though, if it had been upon the late act of Parliament of vexatious arrests, they admitted it would ; for then it would have been in the nature of protest. 6 The latitat was returnable on the Wednesday, and upon debate- it was held that the bail bond could not be assigned till after Monday ; and where the fourth day was Sunday the party has all the next day to put in bail. 8 In 1764 a case of common recovery was brought before Lord Mansfield on a writ of error, assigning that the day of the return 1 Waldegmve's Que, 12 Mod. 606 *Holye v. Comwallis, 1 Stra. 387; (1702). 8. C., Fort. 373 (1720). a 29 Car. II., ch. 3. 'Anon., 1 Bar. 139 (1720). • Taylor's Cage, 12 Mod. 667 (1702). 'Bullock v. Lincoln, 2 . Stra. 914 (1732). 158 LEGAL ASPECTS OP THE of the writ of summons was a Sunday, on which day the vouchee died without issue male. His Lordship discussed the relation of a judgment to the " essoign day of the term," and held that as ■certain forms were necessary to validate this action, and as the deceased died before the return of the writ, and before he did or. could appear, inasmuch as, though the writ was in words return- able on Sunday, the court could not sit, and he could not appear before Monday, and no judgment could be given against him till he had appeared, therefore the action could not be supported ; and on appeal to Parliament this judgment was affirmed. In 1791, under the statute, 1 the court was clearly of opinion that the service of notice of a declaration was bad, and that the defend- ant could not, by acceptance, waive the irregularity. In 1802 the defendant was served with a copy of a latitat on Sunday, and it was held to be an irregularity that could not be waived.* In 1807 service of a notice of a plea filed was held void.* The service of a declaration in ejectment was made upon a servant of the tenant in possession, with an affidavit of acknowledgment by the tenant on Sunday that he received the declaration. Held, that the service was insufficient. 4 If the vouchee die on the return day of the writ of summons, being Sunday, shall the common recovery be good ? This is the query in the syllabus of the case of Swann v. Broome, as reported in 1 W. Black. 496. 6 A party convicted under a Lottery act, and sent to the house of correction, " for want of sufficient distress," asked to be discharged because he was arrested on Sunday. The court said : "There is no case exactly in point. It is most similar to an action for a penalty on the same statute. And it is clear that upon an execution in such an action the defendant could not have been taken; this is to recover a penalty given by the statute, and the effect the same, whether that penalty is to be recovered in a summary proceeding before a justice . or in an action." 6 Capias was returnable in three weeks, and the 1 29 Car. II. »& G, 3 Burrows 1595. See, also, 'Taylor v. Phillips, 3 East 155. Morgan v. Johnson, 1 H. Bl. 628. 'Roberts v. Monkhouse, 8 East 547. 6 Myers' Case, 1 T. E. 265 (1786). ^Mortimer's Case, 2 D. & E. 232 (1822). FIRST DAY OP THE WEEK. 159 last day fell on Sunday. A party arrested on it on a Monday was ■discharged. A note to this case says : " Writs, therefore, which are returnable on a Sunday, must be executed at the latest on the Sat- urday before." 1 American Oases. — In Massachusetts a justice cannot receive a ■complaint and issue his warrant for a violation of the law by traveling; and an officer cannot serve notices and papers in the progress of a suit, or execute a writ of inquiry of damages.* And in New York it is unlawful to make out a capias and deliver it to a coroner for service on a debtor who has escaped from prison. 8 On the other hand, it has been said in Maine : " There is no pro- hibition, either at common law or by statute, of the service of pro- cess in criminal cases, except in so far as the service of the same might be unnecessary," and where the punishment for a breach of a statutory provision was a fine, in default of payment the prisoner must be committed ; and it was held to be immaterial whether the fine was payable for the use of an individual or of the state ; the statute was still penal, not remedial, and that the same penalty might be recovered in a civil action could make no difference. 4 The Illinois statute forbids any to " knowingly disturb the peace by labor," &c. The court said : " To permit officers to intrude upon families for service of civil process would be a violation of the spirit and policy of this law, and unbecoming a Christian com- munity." 6 A deputy sheriff seized a party's horses on Sunday and put them in a stable. The owner retook them. It was held that, under the ■circumstances, he could not be convicted of "resisting an officer."' It was held in Michigan that, under the statute forbidding the service of civil process, &c., the service of a writ of certiorari on a justice was absolutely void. And the court added : " The payment 1 Loveridge v. Plaistow, 2 H. Bl. 29 Keltey, 15 Johns. (N. Y.) 177 ; Meld v. <1792). Park, 20 Johns. (N. Y.) 146. 'Pearce v. Atwood, 13 Mass. 324 * Keith v. Tattle, 28 Me. 326 (1848). (1818). *Scramnon v. Chicago, 40 111. 146 >Ven Vechtrn v. Paddock, 12 Johns. (1866). /s Case, 80 H. C. 377. ITKST DAY OP THE WEEK. 167 nected with the cause submitted to them till the verdict is rendered or the jury discharged. A jury retired at nine o'clock Saturday night, and at three Sunday afternoon the judge, of his own motion, had them brought in and corrected a supposed error in his former charge. Held, that there was no impropriety in his so doing. 1 An error in giving judgment on Sunday may be proven by an examination of the almanac. 3 VI. Miscellaneous Instances. The publication of a legal notice has been held valid in Ohio 8 and South Carolina, 4 and invalid in Illinois, 6 Indiana' and Georgia. 7 Where a judge by mistake appointed Sunday to hear an insolvent debtor's petition for the benefit of the act " for the relief of honest debtors," and the court met and adjourned over until next day, doing no other business, it was held that the hearing would have been necessarily postponed until Monday, " the next working day," without the meeting and adjournment for that purpose, and there- fore the meeting and adjournment was a mere nullity, and no injury was done. 8 In North Carolina it was held that a deposition taken on Sunday in Louisiana was inadmissible, and the court said it was immaterial whether or not Sunday were dies non juridicus in Louisiana. 9 A justice cannot examine and decide a bastardy case on Sunday. 1 * The making or giving a mortgage is not civil process, or the service of civil process ; u and the proceeding to effect a statute fore- closure of a mortgage is not a judicial proceeding, and is not pro- hibited by any law. u It has been said in New York, that a settlement between parties to a litigation would be valid, 18 and an award by arbitration is not 1 Odell's Case, 1 Dak. 197. • Vheeseborough v. Van Ness, 12 Ga. *Page v. Faucet, Cro. Eliz. 227 (1591). 380 (1853). 'Hastings v. Columbus, 42 Ohio 585 'Sloan v. WUUfrod, 3 Ired. (N. C.) 307 (1885). (1843). *Ensor v. Witroffsky, 29 S. C. 239 10 Chapman's Case, 5 Blackf. Ill (1881). (1839). 'Seammon v. Chicago, 40 111. 146 "Tracy v. Jenks, 15 Pick. 465 (1834). (1866). 12 Sales v. Smith, 12 Wend. 57 (1834). 'Shaw v. Williams,*,! Ind. 158 (1882). » 'Shank v. Shoemaker, 18 N. Y. 489 'Sawyer v. Gargile, 72 Ga. 290 (1880). (1859). 168 LEGAL ASPECTS OF THE void in Vermont, 1 though it is so in New York; 3 but even in the latter state, where arbitrators sat, heard the parties and witnesses, and signed the award on Sunday, but it was dated as of the next day, and was delivered to the parties on Monday, the court said the proceedings would not invalidate the award, which purported on its face to have been made, and was actually delivered and pub- lished, on Monday. 3 And it was said in Indiana, where an award was made and signed, and copies drawn on Saturday giving notice of the award, that this "not being an act of common labor, not being a judicial act and not being specially prohibited by any statute, but being simply a ministerial act in connection with a judicial pro- ceeding, would seem to be valid, especially as the notice seems to have been received without objection." 4 Where a jury was discharged on Saturday because they could not agree, and another venire was issued, and the court was not actually opened, and did not transact business, but the justices suspended business until the return of the second venire on Monday, and con- sidered their court open, in contemplation of law, so far as not to lose jurisdiction of the case, it was held no violation of the New York act. 5 In Indiana, courts may adjourn "to and on Sunday." 6 It was claimed in Nebraska that, under the statute of that state, an adjourn- ment of court to Thanksgiving day was a nullity, as also the formal opening of the court on that day ; but the court said that, although there was no actual adjournment, but practically only a recess, the objection was strictly technical and entirely devoid of merit, and the prisoner could not have been prejudiced by it in the slightest degree. In this case the trial did not proceed until the next day. 7 In North Carolina the statute required an adjournment, where the jury could not agree, "from day to day." An exception was taken to an adjournment from Saturday till Monday "while the jury had a prisoner in charge," and it was overruled. 1 Blond v. Bates, 31 Vt. 147. 5 Vanderwerker's Case, 5 Wend. 530 "Story v. Elliott, 8 Cow. 27 (1827). 1830; Howard's Case, 82 N. C. 623. *Isacs v, B. B. Soe., 1 Hilt. 469 "Kiger v. Goats, 18 Ind. 153. (1857). *Poliris Case, 14 Neb. 540 (1883). *Kiger v. Coats, 18 Ind. 153 (1862). FIRST DAY OF THE WEEK. 169 CHAPTER VIII. SUNDAY IN THE COMPUTATION OF TIME I. Inr General. In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the day of per- formance falls on Sunday it is not to be taken into the computation. 1 Where a party is to be paid by the day, Sunday is not included, "though parties may agree to pay for seven days a week, or thirty in a month, as well as for six or twenty-six; " * and where a statute prescribes that one officer shall fix the compensation for another, if the services to be rendered therefor are necessary on Sunday this day should be included in the estimate of time to be compensated for. 8 The clause respecting demurrage was a memorandum in the margin of a bill of lading "to be discharged in fourteen days or pay five guineas a day." The ship arrived on December 9th ; De- cember 15th was Sunday, and December 21st was a holiday (St. Thomas' day); Christmas day and the three following days were all holidays. The goods were discharged on December 30th. In an action to recover the demurrage, Eldon, J., said : " If no evidence had been offered, but I was to decide on the clause itself, I should have been of opinion that it meant running days ; as the law, how- ever; stands, usage may be admitted to establish the meaning of the words. * * * If this was a case of inland trade, the word 'days' must mean working days, as the law of the country pro- hibits working on such days as those which formed part of the fourteen days." 4 By a charter party twenty-five "running days" were allowed for lading, &c. The court said: "I think the words 'days' and 'ran- kling days' mean the same thing, viz., consecutive days, unless there 1 Salter v. Burt, 20 Wend. (N. Y.) 205 'People v. Ulster, 91 N. Y. 672 (1883). (1838). 'Cochran v. Betberg, 3 Esp. S. P. 121 2 Patterson v. Patterson, 2 Phil. 170. (1800). 170 LEGAL ASPECTS OP THE be some particular custom. If the parties wish to exclude any days from the computation they must be expressed." 1 In California, it was said, in the absence of any custom to the contrary, Sundays are computed in the calculation of lay days at the port of discharge; but where the contract specifies working lay days, Sundays and holidays are excluded in the computation." A statute provided that a railroad company should not allow freight to remain unshipped for more than five days, &c. Held, that the act meant running days, and that a final Sunday was one of them. 3 This was afterwards affirmed. 4 In Connecticut, a party died October 2d, 1841, and devised land on condition that "within one year" after his decease the devisee should give a certain sum of money to A. The court said : "We think that the defendant had, by the terms of the devise, a full year allowed him for paying the money, and, therefore, that he was not bound to pay it on the Saturday preceding the day on which the year expired." 6 "Where it was necessary to prove that a defect in a highway had existed for twenty-four hours, in order to enable one injured in consequence of it to recover against a town, it was held that Sunday was not to be excluded in the computation of time.' "Standard time" cannot be substituted for local, so as to make hours which by latter belong to Sunday a part of Saturday. 7 Where a statutory holiday falls on Sunday, the following Mon- day is not a holiday, except as to commercial paper. 8 II. When Fulfillment op Contract Due when Time fob same Expires on Sunday. There has not been an entire uniformity in the various judicial tribunals, in their decisions as to the time of performance of a con- tract when the day of maturity, on the face of the contract, falls on a Sunday. 9 1 Brown v. Johnson, 10 M. & W. 331. "Flagg v. Milbury, 4 Cush. 243 (1849). 1 Brooks v. Minium, 1 Cal. 481 (1851). ''Henderson v. Reynolds, 84 Ga. 159 'Branch W. & W. Co., 77 N. C. 347 (1889). (1822). 'King's Case, 37 N. W. Eep. 310. *Keeter v. Same, 86 N. C. 346. *Stebbins v.Xcoiooi/,3Cush.l37(1849). 'Sands v. Lyon, 18 Conn. 18 (1846). FIRST DAY OF THE WEEK. 171 It was held in Massachusetts, that where a contract vjas entered into in New York, by parties resident there, and to be performed there, it was governed by the rules of law of that state in reference to the question of the time of performance where, on its face, the day of maturity fell on Sunday. 1 It was observed in Maryland, that where the day appointed by a contract of sale for delivery falls on Sunday, this does not annul the contract, but the execution is due on another day, and the court said: "We have found much difficulty in determining whether the delivery must be Saturday or Monday. In the commercial com- munity the usage is established in banking transactions, drafts, bills of exchange and negotiable paper. Amongst mercantile men, the pecuniary engagements becoming due on Sunday according to the letter of agreements, are discharged on the previous Saturday, and we think that both analogy and convenience will be consulted by deciding that the same rule shall govern other cases. 3 But this is contrary to the general view, which distinguishes between negotiable instruments and other contracts in this regard.* Thus, in Massachusetts, when the time for paying an insurance pre- mium expired on Sunday, it was held that the tender on Monday was sufficient. 4 And so it was said in New York, that "when, from accident, or mutual error, the day of fulfilling an agreement falls, upon Sunday, there is enough of principle and authority to justify the party in deferring his performance till the Monday ensuing." ' And in New Jersey, where, by the terms of a contract, a deed was to be delivered and purchase-money paid on May 1st, and this fell on Sunday, it was held that compliance -with the contract on Monday was a legal performance. 8 III. When Demand, &c, to be Made, Where Time for Same Expires on Sunday. In a case where the time for paying a quarterly premium on an insurance policy expired on Sunday, the Supreme Court of Massachusetts said : " We have, on the one hand, the rule as to 1 Stebbinsv.Leowolf,SCash.\37(l8i9). ^Campbell v. International Soc, 4 Bos. *KUgour v. Miles, 6 G. & J.268 (1834). 298 (1849). 'Hammond v. American Co., 10 Gray 'Stryker v. Vanderbilt, 3 Dutch. (N. 306. J.) 68. Sae, also, Amis v. Kile, 2 Yerg. *Ibid. 31 (1821). 172 LEGAL ASPECTS OF THE commercial paper or negotiable notes, payable with grace, requiring payments to be made on Saturday, where the third day of grace falls on Sunday, and the other rule, generally adopted as to other contracts to pay money, or perform other specific duties on a certain day named, that if such day falls on Sunday the day of perform- ance is postponed till Monday." ' It was observed in New York: "If a note falls due on Sunday in Connecticut it must be paid on Monday; in this state on Satur- day." 3 Among the "points resolved" by Holt, C. J., we find: "If the last of the three days of grace is a Sunday, or great holiday, as Christmas day, upon which no money used to be paid, there the party ought to demand money on a foreign bill of exchange upon the second day, and protest' it thereon."' It was said in Massachusetts : " The rule respecting days of grace depends altogether on the custom of merchants, and the estab- lished usage, as early as the time of Lord Holt, in the case of foreign bills, has since been extended equally to inland bills and notes of hand, 4 but, if demand is made on Saturday, notice to the indorser on Monday is sufficient." 6 The rule as to ordinary contracts has been applied to coupon bonds,* and to a check " without grace," which, where falling due on Sunday, was held not presentable till Monday; 7 and so where a non- negotiable note was payable sixty days after date, and the sixtieth day was Sunday, it was held that a tender of the amount on Mon- day following was sufficient ; this was settled by a bench of nine judges in Connecticut, of whom three dissented. 8 IV. Computation of Time in Judicial Pkoceedings. Where the writ was returnable on Wednesday, and the bail-bond was assigned on the Monday following, the court held the party was too soon by a day, for that Sunday was not to be reckoned.' 1 Hammond v. American Co., 10 Gray 'Jackson v. Richards, 2 Caines (N. Y.) 306. 343 (1821) ; Ouyler v. Stevens, 4 Wend. ^Strong v. Elliott, 8 Cow. 27 (1827). 566 (1830). ■ Tassell v. Lewis, 1 Eay. 743 (1699). 'Chaffee v. Middlesex R. R., 146 Mass. ^Thayer v. Felt, 4 Pick. 354. See, 224 (1888). also, Jackson v. Richards, 2 Caines 343; ''Salt v. Burl, 20 Wend. 205 (1838). Bussard v. Levering, 6 Wheat. 102 'Avery v. Steuart, 2 Conn. 69 (1816). (1821). *Studley v. Sturt, 2 Str. 782 (1727). FIRST DAY OF THE WEEK. 173 A rule of court allowed eight days for pleading. " It seems to have been allowed that two intervening Sundays were not to be counted." 1 It was determined that Sunday was not to be esteemed one of the four days to be allowed for motions in arrest of judgment, and the practice was said to be the same on the criminal as on the civil side of the court. 8 Where a defendant has four days to plead, " the Sunday is one." * A defendant had till the fourth day after the return of a clausum /regit to appear. The return day was a Sunday. Held, he must appear by Wednesday. 4 Where a declaration was filed on the 17th and the defendant had four days to plead, the 21st coming on Sunday, the plea was filed on Monday. The comt held it was too late, " because the four days are reckoned exclusively, and the time expired on the Saturday." 6 The court was of opinion that if the last of the four days allowed for pleading happen on a Sunday the defendant may plead in abate- ment the next day ; otherwise, as no plea can be filed on a Sunday,, the time would be limited to three days in such cases, aud Buller, J., added that the note referred to in Jennings v. Webb, 1 T. R. 278, meant that Sunday should only be considered as one of the days when it was not the last. " For, that in some instances, when any act is to be done by a party in a limited number of days, as in a case of a motion in arrest of judgment, the party has four law days when the court is actually sitting in which to do it, and in those eases Sunday is not one, though it be an intervening day." 6 In 1792 it was said, if a plea be demanded on Saturday, the de- fendant has twenty-four hours to plead, exclusively of Sunday. 7 In 1809, after reference to the master, Lord Ellenborough said that " it appeared to be the settled practice in all rules for pleading against bail in scire facias to exclude Sundays and holidays from the computation of time given, though not happening on the last day;" 8 but he is reported as having said in 1811 that "whatever 1 Shadwell v. Angel, 1 Burr. 55 (1756). 'Harbord v. Perrigal, 5 T. E. 210 'Elkin's Ouse, 4 Burr. 2129. (1793). 'Jennings v. Nett, 1 T. B. 277 (1786). °Lee v. Carlton, 3 T. R. 642. *Fano v. Co/ten, 1 H. B. 9 (1788). 'Solomons v. Freeman, 4 T. R. 557. » Walter v. Beaumont, 11 Bast 271. 174 LEGAL ASPECTS OP THE the general rule may be, the grammatical construction of the rule of court accords with the practice of reckoning Sunday when inter- vening as one of the eight days given to the bail to render their principal." And Bailey, J., added that if the proceedings had been by original, the bail would have had till the quarto die post, which day would not be altered by the intervention of Sunday. 1 The following appears among the Regulae Generates of 1832: ** In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the courts, the same shall be reckoned exclusively of the first day and inclus- ively of the second day, unless the last day shall happen to fall on a Sunday, Christmas day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also." * In Backus on Sheriffs, &c. (New York, 1812), it is laid down ■" if the return day of a writ be Sunday, and the return appears to be made on that day, it will be bad, nor can it be made on any day subsequent." 8 Where the lien of an attachment is limited to thirty days, the last day is not excluded because it is Sunday ; and this applies to other statutes, unless a contrary intention is apparent. 4 Where an officer was allowed to adjourn a sale under execution for three days, it was held Sunday was not included, and the court added : " If it were required that adjournments should only be made from day to day, still no one would doubt that an adjournment from Saturday to Monday would be legal, for every statute must have a reasonable construction." 6 * In Florida, where the time fixed by an order for settling a bill of exceptions expires on Sunday, the settlement may be made on Monday. 6 It was said in Maine that, even without a statutory exception of Sunday from the time allowed for an appeal, such an exception would be implied.' In the same state, where, by statute, a writ of error might defeat an execution, if issued within four days after 1 Greswell v. Green, 14 East 536. 'Thayer v. Felt, 4 Pick. 364. 2 1 Dowl. Pr. C. 200. « Bacon's Case, 22 Fla. 46 (1886). 8 1 Back. Sher. 259. * Suhur's Case, 33 Me. 539 (1852). *Butler v. Damon, 14 Mass. 225 (1818). FIRST DAY OF THE WEEK. 175 judgment perfected, it was held this meant four clear judicial days, and where Sunday was the second of the four it was excluded. 1 But it was held in New York, that Sunday was to be included when the last of the number of days allowed for appealing from a jus- tice's decision had expired, the court saying: "Sunday has, in no case, we believe, been excluded in the computation of statute time," 2 and the reason of this decision was afterwards said to be that, the day be- being dies nonjuridicus, the sheriff was not bound to attend to the ■discharge of the ordinary duties of his office on that day. 8 In this state, where the rule to plead expires on Sunday, the defendant has the next day in which to plead. 4 So, where the last day of a rule to plead in an ejectment happens on Sunday, default is prematurely entered on Monday.* And, in the same state, where a claim of property was interposed in an action of replevin on Saturday, and a statute allowed two days to elapse before the claim must be tried, the court said the statute meant law days, and Sunday was properly •excluded in the computation/ And again, the court said : " We know of no rule or principle by which Sunday is to be excluded from the computation where it is an intermediate day," and, accord- ingly, where the time for the return of a summons was four days by statute, and it was made returnable in five days, of which Sun- day was one, it was held this objection was fatal.' And in another New York case, it was said that, " in computing statutory time, when the last day for compliance falls on Sunday, that day is , included in the computation, and the act must be done on the pre- ceding day," though it was held that this was not the case where the time was fixed by a rule of court, and, accordingly, that where 1 Blunt v. Greenwood, 1 Cow. 15(1823). except it be the last; but in roles for 'Dodge's Case, 7 Cow. 147 (1827). judgment a Sunday or a holiday does l lMthei } s Case, 1 Wend. 42 (1828). not reckon, though it be not the last *Cock v. Bunn, 6 Johns. 325 (1810). day; and in proceedings on scire facias The following note is appended : " In against bail, the rules for pleading are Roberts v. Quickenden, 50 6a. Ill, this assimilated to and operate in this respect case was explained as not meaning to as rules for judgment, and are entered extend the like mode of computation to as such in a separate book in the office." rules for pleading in actions in general. B Borst v. Oriffin, 5 Wend. 84. The practice appears to be this: in _ 'Anon., 2 Hill 375 (1842). rules of pleading in action in general, ''King v. Dowdall, 2 Sand. (N. Y.) the Sunday or holiday reckons as a day, 131 ( 1848). 176 LEGAL ASPECTS OF THE the time for putting in special bail expired on Sunday, it could be put in on Monday. 1 In Pennsylvania, where the last day for an appeal was Sunday, one judge thought it unnecessary to decide the point whether one more day was allowed, but the other expressed the opinion that it should be. 2 A Wisconsin statute allowed twenty-four hours for an appeal from a magistrate's conviction. Where a party was convicted Sat- urday, and appealed Monday, it was held in time. 8 In the same state, the statute allowed a justice, when taking time to consider a cause, to continue the same for not more than seventy-two hours- The court said : " We are entirely satisfied that it was the intention of the legislature to give the justice seventy-two hours of secular time," and held that the hours of an intervening Sunday were excluded. 4 It was held in California that, where Sunday was the last day of the period of extension fixed by a court's order for preparing a state- ment on a motion for a new trial, it should be excluded. 6 The constitution of California provides that the Supreme Court " shall always be open for the transaction of business," and the Superior Court shall be so, " legal holidays and non-judicial days excepted;"' and the former provision is inserted among the general exceptions to the rule that no court shall transact judicial business on Sunday. It is also provided, that an order that a judgment of one depart- ment of the Supreme Court be heard in bane, must be made within thirty days after the judgment of the department. Where the thirtieth day fell on Sunday, an order made on the following Mon- day was vacated, and the court added: "In point of fact, we believe the universal custom has been to make no distinction where Sunday intervenes, and where it does not. Sunday is always counted as one of the days when the statute has declared that an act shall be performed within a given number of days, whether the number of days specified by the statute is longer or shorter than, a week." 6 1 Broome v. Wellington,! Sand. (N.Y.) A Meng v. Winkleman, 43 Wis, 41. 664 (1847). See, also, Campbell v. Inter- (1877). national Soe., 4 Bos. 298 (1859). 5 Muir v. Oaloviay, 61 Gal. 498 (1882)- 2 Sims v. Hampton, 1 S. & E. 411 "Adams v. Dohrmann, 63 Gal. 417" (1815). (1883). 'Ridgeletfs Case, 7 Wis. 661 (1859). FIRST DAY OF THE WEEK. 177 In Connecticut, Sunday is excluded within the computation of time within which motions to set aside a verdict, &c, must be filed. 1 It was held in Indiana, that the day was not counted where a statute required a replevin bond to be executed within twenty-four hours after the replevy. 3 The charter of Chicago provides that notice of the filing of a special assessment rule in the clerk's office shall be given by six days' publication in a newspaper, and confirmation be applied for at the next regular meeting of the council after the expiration of the publication, and that objections shall be filed in writing in the city clerk's office at least one day prior to the meeting of the coun- cil. The six days of publication ended on Sunday, and a certain assessment was confirmed on Monday. The court said : " It thus appears, Sunday being dies non juridicus, and the clerk's office not open for the filing of papers, no opportunity was .given parties in- terested to file objections. As the law requires objections to be filed at least one day prior to the " meetings of the council, it must be construed as intending that a day shall intervene between the last publication and the action of the council." 3 And this case was; afterwards affirmed where the last day of publication was Sunday. Whether the publication on Sunday would have been counted if' the council had met Tuesday instead of Monday following does not appear. 4 In Missouri, the time for a prisoner to make his challenges after the list of jurors was furnished him was limited by statute. It was provided that Thanksgiving day, when appointed by the gov- ernor, should be a public holiday ; and that such holidays should be considered the same as Sunday, as regarded the presenting for payment or acceptance of bills, notes, &c. The court said : " If such holidays are to be considered as Sunday for all general purposes, they would still be counted in computing statute time unless expressly excepted." 8 And in New Hampshire, a person against whom judg- ment has been rendered for a fine under the militia laws is entitled y 1 S(nnev.Ste»en«,12Conn.219(1852). 'Chicago v. Vulcan, 93 111. 222 (1869). 'Link y.Clemens,7 Blackf.479 (1845). 'Green's Case, 66 Mo, 631 (1877). * Burton v. Chicago, 53 111. 87. 12 178 LEGAL ASPECTS OP THE to two full days, exclusive of Sundays, after the day when judgment was rendered, to pay the fine and costs. 1 Where the last day of the fifteen months during which a creditor had a statutory right to " redeem " lands sold under an execution happened on Sunday, it was held that tender must be made on Saturday to entitle the creditor to a deed from the sheriff. 2 But later, where a statute required a judgment to be rendered within four days after the submission of a cause, it was held that Sunday must be included. Where a party served notice on another that he would move for an order " on the tenth day of the term," the court said the question what day of the month that was depended " on whether Sunday, which intervened between the first and tenth days of the term, ought to be counted as one of the days of the term, and the court is of opinion that it ought not," which opinion the court based on the general understanding and usage in such matters in Virginia, while admitting that a different view might be taken in England^ 8 The law provided that if a judge should not attend on the first day of a term of the court, the same should stand adjourned from day to day till a court should be formed, " if that shall happen be- fore four o'clock of the third day." The first day of the term was Saturday. It was held that the judge's presence at four o'clock on Tuesday was sufficient. In a subsequent Virginia case, where a statute provided that a term should not exceed fifteen days, was- construed, the day on which judgment was passed was the sixteenth from the commencement of the term, counting the two Sundays which intervened, and the fourteenth, not counting them. The •court said that the fifteen days were judicial days on which the court may lawfully sit, and did not include Sundays. 4 In 1866, in the same state, notice was given that a certain motion would be made on the " tenth day of the term." A Sunday intervened be- tween the first and tenth days of the term. It was held that it •ought not to be counted. In a Georgia case, the question whether the service of a writ was sufficient depended on whether or not, when the sheriff had five days to serve writs and the last was Sun- 1 Scribner v. Whitcher, 6 N. H. 63 'Michiev. Michie,l7 Grat. 109 (1880). 0832). 'Read's Case, 22 Grat. 924 (1872). 'Luther's Case, 1 Wend. 42 (1828). FIEST DAY OF THE WEEK. 179 day, it should be counted ; it was held that it should not be. 1 And it was said in another case : " While we hold that Sunday is not to be disregarded, whether it be the first or the last, or an intervening day, in counting the various times presented by law for the service of writs, notice and all such matters, still we think that a different rule should obtain in relation to appeals ; and whether Sunday be the first or last, or an intervening day, it is not to be counted."' The Alabama act directing that the court shall be held one week, as dis- tinguished from six judicial days, "does not intend a change with respect to the Sabbath." s When the return day of a summons falls on Sunday, it is not void but voidable, and next day is return day. 4 Where an adjournment falls on Sunday, the court does not lose jurisdiction, but the case is continued till next day.* A term of court which begins Monday and is to last four weeks, expires at twelve o'clock midnight of the last Saturday.' 1 2Vner v. TAompson, 23 Ga. 49(1857). sRintfs Case, 37 N. W. Rep. 410. *Neal v. Grew, 12 Ga. 93 (1852). *Juneman's Case (Tex.), 13 S. W. 'Nabobs Case, 6 Ala. 200 (1844). Eep. 783 (1890). *Ostertag v. Galbraith, 37 N. W. Kep. 637 (1888). 180 LEGAL ASPECTS OP THE CHAPTER IX. 8 UNJDA Y LIQ UOB-SELLING. I. As " Business," &c. Before the passage of laws specially forbidding the sale of liquor on Sunday, attempts were made to punish the act in Delaware and Pennsylvania. The Delaware case was decided in 1844. 1 It was held by a majority of the court that liquor-selling by an inn-keeper was not "worldly business," nor a "sale of goods," within the statute; and that a resident of the town might be served, as a "guest," with a drink, Harrington, J., dissented, distinguishing between an " inn " and a " tavern," and holding that the inn-keeper was bound to entertain " travelers " only, and that a resident call- ing for a drink at the bar was not a " guest." In 1847 a Delaware statute was passed, declaring Sunday liquor-selling by inn-keepers to be " worldly business." In 1853 it was held in Pennsylvania that liquor-selling by an inn-keeper was " worldly employment and labor," and not excepted under the words "dressing victuals."* II. Clubs — "What is "A Tippling-House." It was laid down in Georgia, in 1882, that " it makes no differ- ence in law whether the place be called a bar-room, or a glee club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sabbath day, with a door to get into it, so that anybody can push it open and go in and drink, the proprie- tor of it is guilty of keeping open a tippling-house on Sunday." 8 In Indiana, in 1874, where a society, with initiation fees, monthly dues and officers, held regular meetings to which none were ad- mitted but members, and these were furnished with pass-keys, and, 1 HaWs Case, 4 Harr. 132. 'Sassey's Case, 69 Ga. 54. *Omit's Case, 21 Pa. 426. FIRST DAY OF THE WEEK. 181 «n each Saturday, the treasurer, by the society's order, purchased a keg of beer with its money, and each member who desired a glass -delivered the treasurer five cents, which was placed in the treasury,, and of which the treasurer got no part, but which was disbursed by a standing committee for rent, relief of sick members, &c., it was held a " sale " within the statute, made by the society to its mem- bers, through the treasurer, as its agent, and it was said to be suf- ficient that a gain accrued to the principal, the society. 1 In 1879, in Georgia, the court below was requested to charge that a tippling-house is "a house, kept for the purpose of selling liquors by the dram, or small quantities, to the public, and where men are accustomed to tipple," and in lieu thereof, it charged that if liquors were given away by the drink, or other small quantity, ■every Sunday, and it was a usual thing, it was a tippling-house, whether pay was received for the drink or not ; and this was ap- proved on appeal.' The articles of association in this case expressed a knowledge that it was against the law for a liquor dealer to sell, and declared that they needed Sunday drinks, and that, in order to •comply with the law, the members would pay the sums opposite their names every Saturday night to the treasurer " for the purpose of purchasing the liquor necessary for the use of the club the fol- lowing Sabbath." s III. What Is "Intoxicating Liquoe." It was said in New York, in 1875, that the courts, " acting upon their own knowledge, derived from observation," would take notice that " whiskey, brandy, gin, ale and strong beer " were intoxicat- ing, but would not do so with reference to lager beer, and that where such notice was not taken the question of the intoxicating character of the liquor was one of fact. 4 In Indiana, it was held that the courts " could not, from their general knowledge, say that all malt liquors are intoxicatiug," ' ■and, later, that beer was not, necessarily, a "malt liquor;" 6 that the court would not judicially notice that "common brewer's beer" 1 Marmouts Cage, 48 Ind. 21. * Ram's Case, 63 N. Y. 277. 'Miner's Case, 63 Ga. 318. l 8hmits Case, 56 Ind. 188 (1877). • See, also, Smith's Case, 102 Mass. 144 « Wets' Case, 33 Ind. 204. <1869). 182 LEGAL ASPECTS OP THE was intoxicating, and that " the mere naked opinion of the witness that the liquor sold is intoxicating, founded upon no knowledge of its effects, of what it is composed or how it is made, is not suffi- cient." * But later, in the same state, where a witness said " he- bought beer, and beer is an intoxicating liquor," it was held that the fair inference was that the beer, concerning which he was testi- fying as having been sold him, was an intoxicating liquor. 2 But an instruction that if a witness testified that he bought beer of the defendant, and is asked if beer is intoxicating and says it is, and no different beer is spoken of by the witness or others, it is a legiti- mate inference for the jury to draw that the witness, in saying beer was intoxicating, had reference to the beer he purchased, was held to be an invasion of the jury's province. 8 Finally, on an in- dictment for selling intoxicating liquors, it was held that evidence that the liquor sold was beer was sufficient ; 4 and that, if other than malted and fermented beer was wanted at a bar, it was to be ex- pected " that the qualifying words would be used, such as spruce beer, root beer, small beer, ginger beer and the like, thus attaching a remote and secondary meaning to the word ' beer,' as descriptive of particular beverages." 6 In 1884, it was said: "Brandy is ranked as an intoxicating liquor by writers upon the general sub- ject, and that it is a liquor of that character is generally and com- monly known. The fact is, therefore, one of which the courts will take judicial knowledge. The addition to the term 'brandy' to the word ' blackberry,' does no more than designate it as a particu- lar kind of brandy ; it does not indicate that the liquor was not brandy of some kind. The natural and reasonable presumption is that the basis of the liquor was braDdy, and, therefore, intoxicating* If it was not, the appellants should have shown it.'" IV. "Keeping Open." A statute which provides that saloons must be " closed," means that the sales shall be stopped, and will be construed in a common 1 Khre's Case, 43 Ind. 483 (1873). 'Ibid. See, also, Lalhrope's Case, 50 Id. 555 *Myer's Case, 93 Ind. 251 (1883). (1875); PlunkeU's Case, 69 Id. 68; 'Ibid. King's ease, 79 Id. 488 (1881). 'Fenton's Case, 100 Ind. 598. "Pancake's Case, 81 Ind. 93 (1881). FIRST DAY OP THE WEEK. 183 sense way. 1 A saloon is " open," of which the outer door is closed, but unfastened, and can be opened from the outside ; a and so where a back door is open •* and so where the door was kept open, so that persons had ingress and egress thereto, and persons did go in and out, and the back room was kept for a sleeping-room, and there was a partition between the sleeping-room and grocery, where the liquors were kept, with a door without a shutter,- so that persons could pass from one to another. 4 A saloon is open where a gate is open in a " high paling " around it, as well as door of the saloon itself; and it matters not for what purpose (as to dry fruit, &c.) — "the open door is the crime." 6 The front room was used as a " card-room ;" it opened at the rear into a room where cigars were sold ; this communicated by a door with a room where the proprietor of three apartments vended liquor. This door was locked on Sunday ; there was evidence that parties were seen coming out of a rear entrance to the third room. Held, it was for the jury to say what rooms constituted the " saloon," and whether it was " open." • To keep the door open " but for a moment" is a violation of the statute.' And where the keeper's " living-rooms " were connected with his saloon by " inward " doors, and people passed through the former into the latter, and occasionally drank in the latter, it was held that the " living-rooms " were a part of the saloon, and could not be "opened, except to the family of the saloon-keeper." 8 x Kutbts Case, 37 Mich. 279. reason why he was not visible to the i Lynch's Case, 8 Gray 384 (1857). keen eye of the law, which penetrates See, also, Hussej/s Case, 69 6a. 54. The and despises all subterfuge and deceit, facts of this last case are thus vigor- But one witness, though the canvass oualy set forth by the court: "The tried to hide the bird's head, actually counter where, on other days, drinking did see poked out through a sort of could be done, was covered by a canvass aperture or window the bill or beak from the ceiling to the floor, so as to be which let out the liquor from the bar invisible itself and to conceal the bot- to servants in the restaurant. So that ties on shelves behind it, and on it, in the foolish bird did not even keep all brazen letters, was the announcement, his head hid all the time, 'bar closed,' and all the drinking was 3 Blahut's Case, 34 Ark. 447. carried on in the rear and restaurant * Harvey's Case, 65 Ga. 568 (1880). room. This fact that the ostrich thus * King's Case, 77 Ga. 734 (1886). hid his head in the sand, and thereby 'Scranton's Case, 61 Mich, 244(1886). imagined that his body was all covered, ''Morse's Case, 78 Ga. 110 (1886). too, is absolutely assigned as the legal 8 Cox's Case, 38 N. W. Rep. 235 (1888). 184 LEGAL ASPECTS OF THE An inn-keeper may keep open a room for supplying meals, 1 but it has been said : " The evidence shows that the plaintiff kept his saloon open in order to supply customers with drinks at his bar. This was not a lawful purpose, and it is no excuse that he may also have furnished meals to boarders at the same place. The lawful business — if it was one — cannot protect the unlawful."' In 1882, where the defendant claimed that his saloon was open without the selling of liquor, and with no intention of selling it, and that the persons seen in it were washing and cleaning it, the court said the question of intent was wholly immaterial. 8 In 1880, in Arkansas, the court said : " The jury hardly believed that the saloon was kept open for the purpose of airing it. Persons were collected there playing billiards, and the defendant stood at the Open front door, with his apron on — business fashion — and appar- ently ready to wait on customers. It is immaterial whether the defendant or his brother was the owner or proprietor of the saloon ; the defendant was there, seemingly in charge, with a business ap- pearance, and the front door was open. If he was merely a clerk or servant in the saloon, and was serving in it as such when the door was open on Sunday, he was a participant in the offence." 4 In the Massachusetts statute, the words "except works of necessity and charity," qualify only the clause " does any manner of labor, business or work," and have no reference to keeping open a shop, or being present at dancing, &c. ; and, though it is necessary to allege and prove that a shop was unlawfully kept open, or kept open for unlawful business, the ordinary business of a liquor shop was unlaw- ful, and it is sufficient to prove that the defendant kept open his shop for ordinary traffic with the public indiscriminately. 6 On an indictment for " keeping open " a shop, evidence is ad- missible which was previously offered under an indictment for selling liquor. 8 In Missouri, keeping open and selling are different offences.' Where a witness could not remember what Sunday the place 1 Gregory's Case, 47 Conn, 276 (1879). 6 Harrison's Case, 11 Gray 308 (1858). * Lyneh's Case, 16 Mich. 472 (1868). See, also, Tuckey's Case, 13 Allen 559 8 Weldvogel's Case, 49 Mich. 337. (1866). * Mane's Case, 36 Ark. 222. T Amb's Case, 20 Mo. 214 (1854). * Nagltts Case, 117 Mass. 142. PIEST DAY OF THE WEEK. 185 was open, but knew it was before a certain trial, tne record of the trial was admitted to prove the date of the opening. 1 V. The Effect of a License. A. license gives no right to sell liquor on Sunday." Though a party has paid for a license for carrying on his business during a whole year, a city ordinance prohibiting its sale on Sunday is no violation of a contract, and not invalid as divesting vested rights, 8 for " the city council has the same power over the subject within the city limits that the legislature has within the state." 4 A municipal provision for cancellation of a license for selling liquors by boards of excise, if they find a party holding such to be violating the law relating to their use, &c, is not unconstitutional, as authorizing a conviction without a trial by jury. 6 An injunction will lie against the enforcement of a city ordinance so as to prevent inn-keepers from selling liquor to lodgers, &c, as allowed by statute.* A city ordinance allowing the opening of a saloon from nine to four is void, as conflicting with the state statute requiring them " to be closed during the day." ' Where a general statute declares a place where liquor is sold to, be a public nuisance in violation of law, a Sunday sale by a licensed saloon-keeper, in the absence of a city ordinance prohibiting the sale of liquor, does not render the place of sale such a nuisance. 8 Where a state law forbids selling liquor on Sunday, this may not 1 Quintard v. Corcoran, 50 Conn. 34 questions that might arise on that state (1882). of the case are not presented for our 1 Omit's Case, 21 Pa. 426 (1853) ; decision." Jfesbifs Case, 34 Id. 36 (1859) ; Amb's » Presmyer's Case, 59 N. Y. 92 (1874). <7ose, 20 Mo. 214 (1854) ; Griffin's Case, 6 Wood v. Brooklyn, 14 Barb. 425 1 Idaho (N. 8.) 476. (1852). A case where the law of the * Bolt's Case, 31 La. Ann. 663 (1879). state and a village regulation were held * Megowan's Case, 2 Mete. (Ky.) 3. not inconsistent arose in New York in In this ease the court said : " The time 1863. Cohoes v. Moran, 25 How. Pr. when the appellant obtained his license 385. as a tavern-keeper is not stated in the * Sundstrom' s Case, 25 Tex. 133 (1888). record. It does not appear, therefore, » Wader's Case, 38 N. W. Rep. 189 that the ordinance was passed after he (1888). had been licensed, consequently the 186 LEGAL ASPECTS OF THE be done under a municipal ordinance passed by virtue of the city's authority to " regulate," &c., the liquor business. 1 VI. The Indictment, Evidence, &c. "Where the prohibitions apply only to a class, the indictment must show on its face that the accused belongs thereto (as that he is a " retail liquor dealer "). 2 Indiana has a law providing for permits to sell liquor, but with the reservation that they shall not authorize sales on Sunday, under which it was held, in 1873, not necessary for an indictment to aver that the defendant had a permit," since, if he had one, it would not authorize him to sell on that day. 4 Under the New York statute, a person not a hotel-keeper can- not, without a license, sell in quantities more than five gallons, or give away liquor in less quantities. The question arose whether a person keeping a hotel without a license was within the prohibition, and the court held that the section was specially designed to prevent hotel-keepers, whether licensed or not, from selling or giving away liquors on Sunday ; admitting, however, that the unlicensed keeper would not have been included, if, instead of " hotel-keeper," &c., or " person licensed," &c, the law had read, " hotel-keeper," &c., or " other person licensed," &c. B In an indictment for " keeping open " a saloon it is not necessary to negative the fact that the accused kept it open in order to supply meals to boarders and lodgers; 6 and the court said it was "some- what doubtful " whether the exceptions " relative to quiet and good order " were applicable to saloon-keepers like the accused.' An indictment need not state the names of the persons to whom the liquor was sold, or that their names were unknown to the grand jurors; 8 but it is sufficient to aver in an indictment that the name of such person is unknown. 9 1 Heinnsen's Case (Col.), 23 Pac. Eep. * Murphy's Case, 5 Park. (N. Y.) Cr. 995 (1890). 130 (1861). 2 Bode's Case, 7 Gill (Md.) 326 (1848). « Lynch's Case, 16 Mich. 472 (1868). See, also, Page's Case, 3 Park. (N. Y.) ' Id. 477. Cr. 600 (1857). » Parnell's Case, 16 Ark. 506 (1855). * Lehritter's Case, 42 Ind. 383. » Ashley's Case, 92 Ind. 559 (1883). *ld. 384. See, also, Brake's Case, 64 N. C. 589 (1870) ; Bryson's Case, 90 Id. 747 (1884). FIRST DAY OF THE WEEK. . 187 An indictment under the Massachusetts statute against an inn- keeper for entertaining persons must allege that they were not " travelers, strangers or lodgers," and it must allege how many were entertained, that the court may know how to punish the defendant according to the provisions of the statute. 1 It has been said that it is not sufficient to state that the selling was " on or about the day of , which was the first day of the week, commonly called Sunday," a and that a statute which provided that the precise time of the commission of an offence need not be stated in an indictment, but it should be sufficient if shown to have been within the statute of limitations, except where time was an indispensable ingredient of the offence, " did not dispense with the necessity of stating the day on which the offence was committed, but was declaratory of what was the law before, viz., that the state is not bound by the day stated, but may prove any other day within the limitations," &c. 3 The indictment must aver that the day was Sunday, 4 but it is not necessary to name the day of the month ; and if the day of the week is properly set out, the indictment will be good, though the day of the month given in it falls on some other day of the week. 5 The only case discovered holding a different doctrine from this last arose in Georgia, where an indictment charged the defendant with keeping open a tippling-house on "April 4, 1873, being the Sabbath day," and the 4th of April in that year was Friday. The indictment was held bad, and the court said : " In this case, keeping open a tippling-house is not an offence prohibited by law. It be- comes penal only by its being done on the Sabbath day. It is the time when — the character of the day on which the act is done — that constitutes the offence." 6 In an Indiana case the year was laid in the indictment, and the evidence showed that liquor was sold on the 4th day of May, and on Sunday, as charged, but failed to show in what year it was sold. The court held that there was a defect in the indictment, and said : 1 MaxweWs Case, 2 Pick. 138 (1824). 5 Eskridge's Case, 1 Swan 413. See, 2 Claris Case, 34 Ind. 436 (1870). also, Bull's Case, 42 Barb. 324 (1862) ; . ' Ibid. See, also, Effinger's Case, 47 Megowan's Case, 2 Mete. £ (1859) • Ind. 235. Hoover's Case, 56 Md. 584 (1881). * Boy's Case, 91 Ind. 417 (1883). e Werner's Case, 51 tia. 426 (1874). 188 LEGAL ASPECTS OF THE " We know the 4th of May in this year was Sunday, but this does not show that the year 1873 was intended. It may have been on some Sunday in some other year, which was the 4th of May to which ' the witness referred." 1 Proof of the precise time at which the liquor was sold is immaterial, provided it was within the time lim- ited for prosecutions, and on some Sunday within the same.' The charge was selling without license on July 3d ; the proof was of a sale on July 4th, which was Sunday. Held, that the variance was immaterial. 3 Where the prohibition was against keeping open "tippling- houses," it was held in Georgia to be sufficient to charge keeping open "one tippling-house." 4 The Missouri statute forbids the sale of fermented "or" distilled liquors. An indictment charged the sale of fermented " and " dis- tilled liquors. The court said this did not vitiate the indictment.' It was held in Arkansas that but one offence was charged in an in- dictment where the first count charged it to have been committe by selling on Sunday a pint of whiskey, and the second by selling on the same day a pint of alcohol ; that alcohol is embraced in any one of the terms " goods, wares or merchandise," and that to sell by sample, parcels or quantities, and not in the gross, is to "retail." 6 Under a Michigan statute against " keeping open," but a single offence is committed where a saloon is opened and closed many times during the day. 7 The forfeiture of a license is not a "fine" for which an indict- ment may be sustained under the Missouri statute. 8 It was held in Missouri that a warrant under a city ordinance need not specify the quantity of whiskey sold, nor the place where it was drank, and the court said: "Selling whiskey on Sunday constituted the offence. The quantity sold, as well as the place where it was drank, were wholly immaterial." 9 In Pennsylvania, some of the court were of opinion that a con- 1 Lehrittei's Case, 42 Ind. 383. 6 Nation's Case, 75 Mo. 53 (1881). * Pancake's Case, 81 Ind. 93 (1881) ; 6 Bridge's Case, 37 Ark. 224 (1881). Male's Case, 36 Ark. 222 (1880). ' Cox's Case, 38 N. W. Rep. 235 (1888). 'KranUs Case, 46 Hun 632. • Burnett's Case, 77 Mo. 570 (1883). * Hall's Case, 3 Kelly 18 (1843). » Megowan's Case, 2 Mete. 3 (1859). FIEST DAY OF THE WEEK. 189 viction before a justice for liquor-selling was defective, because it did not set out that the sale was not a work of charity or necessity, while others thought the averment that it was " contrary to the act of assembly " sufficient. 1 The reputation of a house as one where liquors are sold, and whether it applies to the whole house, or only a part thereof, are for the jury. If the latter, the defendant is entitled to an acquittal ; but the reputation of one room may be foundation for ascribing the same to the whole house.* The'defence that a bar was kept as a part of the business of a hotel cannot be made under a habeas corpus.' The principal is guilty, though not present, when a sale is made by his authorized agent, 4 but, in order to convict of the offence of selling liquors on Sunday, proof must be made of the intent on the part of the defendant to violate the statute. Where the sale is not made by the defendant personally, or in his presence, the presumption of his inuoceuce is not overcome by merely showing that the sale was made on his premises, by his bartender, unless the evidence also shows that the defendant in some manner par- ticipated in it, connived at it or assented to it. The question whether he assented is one of fact, and not of legal presumption,, and belongs to the jury. 6 In Georgia, it was said : " If the clerk be guilty and keeps the door open, to free himself from crime, the employer of the clerk must show not only that he did not consent, but that he did not know. He might consent by private arrangement to do the thing by the clerk, and yet not know it was done at the time it was done ; so that, to shield himself, the proprietor must show, at all events, not only no knowledge of the door's being open, but no consent to it, express or implied." 6 Where the evidence was conflicting, but one witness swore that she purchased intoxicating liquor on Sunday, though her cross-ex- amination threw some doubt on her evidence, and she was contra- 1 Omil's Case, 21 Pa. 426 (1853). * Utter** Case, 44 Barb. (N. Y.) 170 a Ryan's Case, 5 Conn. 411 (1883). (1865). See, also, Burke's Case, 15 R. ' Bird's Case, 19 Cal. 130 (1861). I. 324. *Martin's Case (Neb.), 46 N.W. Kep. 'King's Case, 77 Ga. 734 (1886). 621 (1890). 190 LEGAL ASPECTS OF THE dieted by the defendant, yet the court, on appeal, would not say the evidence did not authorize a conviction. 1 The fact that the words " ale and beer " were used in one section, and omitted in another, of the New York statute " to regulate the sale of intoxicating liquors," &c, has been held immaterial.' In one section of the Tennessee act for licensing the sale of liquor, it was provided that nothing in the act should be so con- strued as to authorize the sale of liquors on Sunday, and in a sub- sequent section it was provided that nothing in the act should be so ■construed as to prevent the sale thereof by the quart or larger quantity, not to be drank on the premises. The court said that the proviso against the " sale " on Sunday applied without regard to the quantity, and the prohibition of the first section applied to the second with as much force as though the proviso of the first had been subsequent to the second. 3 Where druggists are forbidden to sell except on prescription, the argument of emergency is of no avail. 4 The question of whether a penalty provided in one section of a statute applies to offences mentioned in others has arisen in Indiana. 8 A different penalty was provided for selling without a license and for selling on Sunday. Held, that a party indicted under the first prohibition must be acquitted where the evidence showed that an offence was also committed by him in making the sale on Sunday. 6 The nature and liability of a liquor dealer's bond has been con- sidered in Connecticut, 7 and the duties and rights of " prosecuting agents " under the laws of that state. 8 What constitutes " delivery" as evidencing a sale was discussed in Massachusetts in 1858. 9 The defendant made a motion to quash the indictment, which was overruled, and he then pleaded guilty. The court said that the plea cured the defect in the indictment, in not alleging the price at which the liquor was sold, and added : " Perhaps the same 1 Boy's Case, 91 Ind. 417 (1885). 'KranKs Case, 46 Hun (N. Y.), 632 2 Ban's Case, 63 N. Y. 277 (1875). (1887). 3 Eskridge's Case, 1 Swan 415 (1882). ' Quintard v. Corcoran, 50 Conn. 34. * Burton's Case, 99 Ind. 89 (1884). 8 Wolforth's Case, 42 Conn. 155. 4 See Bosenbaum's Case, 4 Ind. 599 9 Harrison's Case, 11 Gray 308. (1853) ; Thomasson's Case, 15 Ind. 449 (I860). FIRST DAY OF THE WEEK. 191 doctrine might be beneficially carried still further. It may be doubtful whether, by the plea, the defendant has not shown affirmatively that he is not within any of the provisos or excep- tions in the statute." 1 Where the court below had used language calculated to prejudice the jury against the occupation of a liquor dealer, the Appellate Court said : " This had better have been omitted \sic\. The liquor business is as lawful as any other business under the laws of this state, when it is carried on within the restrictions established by the .legislature, and rights thereunder should be respected and protected by courts as carefully and to the same extent as those existing." It was held, in Kentucky, that evidence that the defendant sold liquor on a Sunday subsequent to the date of the warrant was in- admissible. 2 The state having proven that certain persons were seen in the saloon, may prove in rebuttal that others were seen there. 8 In Massachusetts, a charge, in general terms, of " unlawful sell- ing " of liquor, is sustained by evidence of a sale on Sunday. 4 » Rosenbaum's Case, 4 Ind. 599 (1853). » Corf a Case, 38 N. W. Rep. 235 (1888). 1 Meyowan's Case, 2 Mete. 3 (1859). * Harrison's Case, 11 Gray 310 (1858). 192 Legal, aspects of she CHAPTER X. THE PROHIBITION OF SUNDAY LABOR. I. THE FORBIDDEN ACTS. The Puritan "Sabbath" is an original institution. All recogni- tion of "Sabbaths" being especially denounced in the New Testa- ment, 1 it can of course find no support in that portion of the Scriptures. But it is equally inconsistent with what we know of the " Sabbath " of the Old Testament. It is of course " kept " on an altogether different day ; but, passing by this, in the manner of its observance it differs quite as completely from the Sabbath of the Jews. The latter was a day of feasting and rejoicing, not of gloom and cheerless lounging. 2 It was a day, moreover, on which the labor of all classes of the community was alike prohibited. The . priest, as well as the people, "rested." There were no church "services" to overtax clergymen or fret the mothers of large fami- lies with morning preparations for the weekly "dress parade." 3 In a word, there were no "exceptions" in the Hebrew statute. But the Puritan was not prepared to accept the Hebrew Sabbath. There were certain things which he like.d to do on Sunday, and as to which he was therefore fully persuaded that it was the will of the Deity they should be done on that day; 4 and accordingly it became necessary for him to make exceptions in his version of the Fourth Commandment. It is evident that a total prohibition of labor is comparatively easy to understand and enforce. The distinction between the activity of work and other forms of activity is pretty generally recognized and 1 See texts cited, page 73. something as far removed as anything a 1 Milman's Hist. Jews 97 (Harp- could well be from the usual ideas of er"s ed. 1855). either "necessity" or "charity." See "lb. Table A. 4 Such as the cooking of hot dinners — FIEST DAY OF THE WEEK. 193 understood. But when we come to make exceptions of any kind to our prohibitions of labor, we at once launch out on a sea of hopeless uncertainty. We may, indeed, name certain specific labors as allowable, and certain other labors as not allowable. But the field of human exertion is so vast that we cannot cover it all explicitly; and hence the effort to classify the exceptions under some general terms. The terms adopted by the Puritans are "necessity" and "charity." It is safe to say that the vagueness of these words, and the impossi- bility of applying them with anything like uniformity to every-day life would cause the courts to hold the whole law void for uncer- tainty if it were anything else but a Sunday law. Moreover, we shall see presently that the necessity need not be that of the person who does the work, but it is sufficient if his work is necessary for another. This disposes of the claim that, Sunday idleness in enforced for the sake of its beneficial effect on the unwilling idler ; for it is obvious that his energies are quite as likely to be dissipated in the rendering of services which may chance to be required by another as they would be in work required by or simply advantageous to himself. The same remark applies to- the word "charity." If the state's real object in compelling her citizens to be idle on Sunday was their bodily welfare, she certainly would not permit her clergymen, one of the most desirable class, among her citizens, to destroy themselves by their reckless defiance of the "law of nature," which demands of all human creatures absolute idleness on one day in every seven. Again, take the case of the doctor. Plainly his services may be sometimes necessary and sometimes not, on Sunday. Who is to decide this question ? If the patient, will his belief in the neces- sity protect the doctor ? If the doctor, then must not every other man be allowed to determine, as well as he, when the service he renders to another is necessary and when it is not? How these and similar problems are dealt with by the courts,, will appear below. 13 194 LEGAL, ASPECTS OF THE I. The Question Whether Sunday Laws are to be Con- strued Strictly or Otherwise. The question whether any particular act is within the exception to the statutory prohibitions of Sunday labor depends, to some extent, on whether the statutes are to be construed strictly or other- wise. This point has been considered in three classes of cases : (1) where the illegality of a contract, because made on Sunday, has been set up, in defence ; (2) where the service of process on this day has been impeached ; and (3) where parties have been indicted for violation of the Sunday law. By observing the nature of the issue involved in each case, we may obtain some clue to the inspira- tion which has controlled the deliverances now to be quoted, although it still remains impossible wholly to reconcile them with •each other. In the case of an indicted baker, Kenyon, C. J., said of 29 Car. II., c. 7 : "I think we should construe it equitably, so that it may answer the purpose of public convenience, taking care, at the same time, that Sunday should not be profaned. I agree with Mr. Foster (2 Burr. 780), that I am for an observation of the Sabbath, but not for a Pharasaical observation of it. The most laborious part of the community, who are entitled to some indulgence for the labors of the past week, fare harder on that than on any other ■day." 1 Where an attempt was made to repudiate a contract, Best, C. J., referred to the opinion of Bayley, J., in Fennell v. Ridler,* decided one year previously, and said : " In one of the most able judgments ever delivered, he says that the most liberal construc- tion must be put on that statute, because it is in affirmance of the religion which is the basis of the law of this country." And with this Parker, B., agreed." In a suit on a note it was said : " There can be no excuse for any attempt to destroy, by a forced construc- tion of the language, the effect of an enactment so suited to enable man to derive the benefit designated to be bestowed upon him by Providence, in the consecration of the Lord's day to the duty of doing good, and of seeking endless happiness, in accordance with the precepts of the gospel of our Lord Jesus Christ." 4 In an 1 Younger's Case, 5 T. R. 449 (1792). 'Smith v. Sparrow, 4 Bing. 84 (1827). *5 Barn. & C. 406. * Towle v. Larrobee, 26 Me. 464 (1847). FIB9T DAY OP THE WEEK. 195 action for deceit in the sale of a horse, it was considered that the Sunday law is " a remedial statute, and should be liberally con- strued." 1 And in a suit for the price of an advertisement, it was said that it is " remedial, and to be construed liberally in respect to the mischiefs to be remedied." 2 And the religious view of the matter has been vigorously sustained as follows, in the case of a party indicted for giving a theatrical exhibition : " The learned •counsel for the plaintiffs has entered largely into the question of •the origin and sanction of the Christian Sabbath. It may not be ■essential, but it is far from being irrelevant to sustain the divine authority of its institution. * * * This would throw light upon the nature of legislative provisions, and furnish a guide to a rigorous, or expanded rule of construction."* And the court pro- ceeded to give a very broad construction indeed to the law. But later, in the same state, where a Sunday traveler was suing a rail- road company for damages on account of an injury, it was observed that " the law subjects the offender to a trivial punishment. The legislature has not seen fit to mark the violation of the statute as a grave offence against the state." 4 Where the offence was the driving of an omnibus on Sunday, the court said : "Our duty requires us to construe the statute so as to accomplish its purpose, which was to enforce the observance of Sunday, instead of obliterating it. We are resolutely opposed to a course of judicial construction which would cheapen its demands and impair its power for good." 6 Where the plaintiff's boat was descending a creek, and was injured by a dam erected by the defendant, the court in the same state said that the Sunday statute " being a law to enforce and protect a general and most valuable custom, it is not to be subjected "to a narrower interpretation." Nevertheless, it held the defendant liable, observ- ing that " important as is a day of rest for man ; important as are the religions institutions connected with it, and the civilization and moral refinement that grow out of and depend on it and its insti- tutions ; important and necessary for all man's highest and noblest 1 Northrop v. Foot, 14 Wend. (N. Y.) i Carroll v. Staten Island R. B., 58 N. 248 (1835). Y. 126 (1874). 'Smith v. Wilcox, 24 N. Y. 353, 355-6. 5 Johnston's Case, 22 Pa. 102 (1853). 'Hoym's Case, 20 How. (N. Y.) Pr. 76 (1860). 196 LEGAL ASPECTS OP THE aims as is the religion which, on that day, sends forth its strongest, influence, we cannot protect it by any such latitudinarian interpre- tation of the law we are appointed to administer as is expected of us here." 1 Where a party was on trial for driving a horse-car, the- court said : " While we are ready and willing to sustain the law, whenever it is violated, we will not strain the law, or the facts. * * * A liberal sentiment has prevailed and conservative men- have united in sustaining the spirit of the law, while they have- accommodated themselves to the wants and necessities of a populous- city." 2 But in another case, the same year, it was said : " While this act remains unaltered by the legislature, it is not to be frittered away by judicial construction." 8 The religious aspect of the matter has also strongly influenced the court in Arkansas, where, in a suit- on a note, it was said: "One great object of all the American statutes, though varying in their expressions, is to prevent the- desecration of the Sabbath by the doing of ordinary work, or secular business." A narrow and literal construction of statute- would leave open a wide door for the desecration of the Sabbath, And the court proceeded to give what it called " examples of the- numerous instances, in which the Sabbath could be desecrated with impunity, if the words of the statute were narrowly construed."* So, in Georgia, the question being whether a bail-bond, executed for the purpose of releasing a prisoner from jail, was valid, the court said : " We think this statute should be rigidly enforced. Independently of the moral obligation resting upon all men to obey the law of the Lord, and to observe by abstention from all secular business the day set apart for His worship, the rest of one day in seven from all physical and mental labor is a great con- servative, refreshing, invigorating means, designed by Almighty wisdom for the preservation of health and the recreation of our mental and bodily faculties." 6 The current of decision by this- court has been pro-sabbatic in full measure, and with that current runs, we think, the true law, as well as the general moral sentiment of the people. 6 Where an attachment was levied, and the law for- 1 Mohney v. Cook, 26 Pa. 342 (1835). *Tucker v. West, 29 Ark. 386 (1874). tjeandelle's Case, 3 Phil. (Pa.) 509 s Ga. (1875). (1859). « Weldcm'-s Case, 62 Ga. 449 (1879). 'Johnston's Case, 22 Pa. 102. FIRST DAY OF THE WEEK. 197 hade the service of " process," &c, the court said : " The obvious •design of the legislature was to prevent the spread of vice and im- morality by the desecration of the first day of the week to common ■secular purposes, unless justified by the necessities of the case" 1 The Connecticut statute providing that a consideration received tnust be restored before suit on contract can be defended on the ground that it was made on Sunday, "is broad and remedial and should be liberally construed to prevent fraud or injustice." 2 In a case involving a sale, the Vermont court repudiated any reference to religious considerations, as affecting the decision of the question whether any particular act was or was not within the ipurview of the Sunday statute; and said "this is purely a question ■of law, to be decided by the constitution and statute of this state, •and by the application of those principles of law which have been •acknowledged and never controverted." 8 Where the validity of an injunction was involved, all reference either to the ecclesiastical •or the common law view was repudiated by the Illinois court, whidh said : " So long as our own statute is not violated — so long as nothing is done which it forbids, there can be no reasonable 'ground for complaint." 4 It has been said that Sunday laws will be •construed on the same principles as those restraining the sales of liquor. 5 By holding that the statute was intended to apply to private, as well as public conduct, 6 the English courts have given it a liberal •construction; but although the use of the words "ordinary calling" would seem to have compelled them to confine its prohibitions to •acts fairly to be included under that phrase, the New Hampshire court considered this a narrow view of that statute. In a case where the validity of a will made on Sunday was in issue it said it was apparent from the preamble to 29 Car. II. "that it was the policy of the law to promote the observance of the Lord's day by all classes of persons, without distinction of class or occupation. The construction given by the English courts was probably much influenced by the ancient rule, which was suppose to require a strict 1 Cotton v. Huey, 4 Ala. 56 (1842). *Langabhr v. F. P. & S. W., 64 111. • ' Wentworth v. Woodside, 79 Me. 156 243 (1872). <1887). 'Bank v. Thompson, 42 N. H. 369. 'Lyon y.Slrong, 6 Vt. 219 (1835)1 'Fennel v. Bidter, 5 Barn. & C. 406. 198 LEGAL ASPECTS OF THE interpretation of penal statutes. In this state, before the decisions- of our courts upon the statute in question, this rule had been materially modified." 1 It is a point of some interest whether a Sunday law is to be con- strued with reference to the sentiments prevailing at the time of its- passage, or from the standpoint of present society, as manifested by actual practices prevailing at the time when the construction be- comes necessary. It has been said : "It is to be remembered that it is the duty of the court merely to give a true interpretation to- the language of a human statute, so that it shall speak according to the intention of its framers, and not according to the fluctuating opinions of the schools, leaving it to the legislature, alone, to make- such changes in the law, from time to time, as the altered condition of things may demand." 2 This is a deep and far-reaching principle* The inconveniences which might result from its application to many statutes are obvious, but not pertinent to the subject in hand. No- case has been found which has considered its effect on the meaning to be given to the word "necessity" in a Sunday law. Yet one can- easily imagine the commotion which would be created by an attempt to restrict the Sunday activity of a citizen of one period to sucb proceedings as would have been deemed necessary by the stern politico-theologians who framed prescriptions for Sunday idleness a century before he was born. The Massachusetts court, however,, seems to adhere to this principle. In a suit against a town for injury from a defective highway, received while traveling on Sunday, it said: "Whatever inconveniences might result at th& present day from the literal and general enforcement of the act, and whatever hard cases may have arisen under it, it is still the law of the land, to be judicially interpreted, and administered according to- ils true intent and meaning, and upon the same rules as would govern us in the interpretation of any other statute." 8 So in Penn- sylvania : " It is the duty of courts to uphold the institutions aDd laws, under which our liberties have grown and prospered. Whether these institutions and laws are sufficiently liberal to meet the require- ments of modern advancement, it is not for us to determine. Those, 1 Oeorgev. George, 47 N. H. 27 (1866). 3 Davis v. Somerville, 128 Mass. 594 'Ibid. (1880). FIRST DAY OF THE WEEK. 19£ who consider them insufficient should, instead of disregarding them, endeavor to have them amended,, to suit the exigencies of the times." ' Where a party was indicted for letting a carriage for a purpose not of necessity or charity, and alleged that his informa- tion led him to believe the purpose lawful, the court held that proof of information to that effect exonerated him, and that he could not be required to prove its lawfulness in fact ; and Gould, J., "applied the general rule in construing penal statutes, that the construction must not be strict, as against the defendant, but liberal in his favor j" and also the maxim "actus nonfacit reum, nisi mens sit rea." a In a case involving the validity of a notice published in a Sunday paper, the court in Illinois said : " If the wise lawgiver, whatever may be his own opinions, or habits, concurs in this setting apart one day in seven, it would ill become the judiciary to give to such enactments a restricted operation. They should be so construed as to accomplish their purpose." 8 We now pass, via cases holding a middle ground in favor of a "reasonable" construction, to those at the opposite extreme from the preceding, which contend for a strict interpretation. In a suit on a warranty given in a horse trade the Kentucky court said : " The statute should not be extended by construction, to embrace cases which are not clearly within its obvious meaning, but, at the same time, it should be fairly construed, with a view to the accom- plishment of the objects, contemplated by the legislature, in its enactment." 4 Holding that a verdict might be received, the court in Alabama said : " The Sunday laws must have a reasonable inter- pretation." 6 Where a party had been indicted for selling cigars, the Indiana court said : "In the United States, where religion can be neither opposed nor supported by law, and where Sunday, under the law, is viewed purely in a secular light, the tendency is naturally to relax the restrictions of the Sunday laws in all things, which do not interfere with the rights of others." 6 It was held in North Carolina : " Considering the act as passed exclusively for pro- moting public decency, the case of a private sale would not come 1 Teaman's Case, 1 Phil. (Pa.) 460 i Murphy v. Thompson, 14 B. Mon. (1853). (Ky.) 419 (1854). 2 Myers' Case, 1 Conn. 502 (1866). i BeiaVs Case, 53 Ala. 402 (1875). 'Seamon v. Chicago, 40 111. 146 (1866). 'Carver's Case, 69 Ind. 61 (1879). , 200 LEGAL ASPECTS OF THE within its operation, and it was only by extending its object to the regulation of private conduct and the enforcement of religious duties that such a sale was brought within its operation. This latter purpose is prohibited by our constitution. Cases cited from the New England states have no bearing. Their statutes prohibit all secular labor, and the notions, there entertained, are far more strict and intolerant, than the sentiments that have hitherto prevailed in this state." 1 The New York Court of Common Pleas, in a suit for the price of horse sold, said : " Where parties wish to bring a case within a statutory prohibition, they should produce satisfactory evidence that the facts are such as to make the statute applicable, and not leave to mere inference what should be established by proof, where the intent is to take away a common-law right." 2 The court in Ohio, holding that a contract was good, said : " The law is penal, and is, therefore, to be construed strictly. Such statutes are not to be extended by construction." 3 And the Supreme Court of New York, in a suit by a traveler injured on a steamer, said of the Sunday law : " The fact that a violation has been committed must be established, affirmatively, by him, who claims the protection of the statute." 4 And where suit was brought on a note, the court in Ala- bama said the provisions of the Sunday law " being penal in their character, must receive strict interpretation." 6 Where a railway company was sued for damages caused by its delay in transporting cattle, the Maryland court spoke as follows : " Of these laws, there has been great diversity of interpretation, some courts holding to them with great strictness, while others have construed them with considerable liberality, and, especially, in cases where, by strict con- struction, impediments and embarrassments would be raised to the great carrying business of the country." 6 Whether the courts have much regarded the question of convenience in this matter, we shall be better prepared to judge after we see how they have practically 1 Melvin v. Easier/, 7 Jones (N. C.) 356 English parliament, and those of the (1860). American legislature. It was delivered 2 Miller v. Boesaler, 4 E. D. Smith (N. by Judge Thurman. Y.) 234, 236. 'Landens v. B. B. Co., 13 Abb. (N. "Bloom v. BieharaU, 2 Ohio St. 387 Y.) Pr. (n. 8.) 338 (1872). (1853). The whole opinion in this case 'Flanagan v. Myer,41 Ala. 132 (1867). is well worth reading for its clear dia- *P.,W. & B. v. Lehman, 56 Md. 209 crimination between the powers of the (1881). FIRST DAY OF THE WEEK. 201 applied the general principles considered. The following statements are justified by the citations just given : 1. No clear distinction has been made between civil and criminal cases, in regard to the rigidity or liberality of construction • but, 2. The view of this subject has depended largely on whether the court considered the law as designed for the enforcement of a religious tenet, or as a mere civil regulation. 3. The weight of authority is in favor of a liberal con- struction. 4. There is a conflict of authority in Alabama, and between the higher and lower courts of New York, on the subject. 5. (Already enumerated) — The words used are to be construed as understood when the statute was passed, and it may be added, that the law is to be so construed as to operate equally on all, and, hence, not so as to allow hotels to sell cigars when others cannot do so. 1 II. Distinction Between Public and Private Labor. In defining the words "labor," "business," &c, the courts are, of course, much influenced by the view which is taken of the Sun- day law's scope and purpose. If it is intended to regulate private conduct, the act of labor, &c, is criminal in itself; but if it is designed merely to prevent one person from disturbing another, the act must be judged with reference to its effect, and labor of one kind may be innocent, while that of another sort is punishable. The English courts have maintained consistency in this matter, and, holding that Sunday laws were passed in order to compel a religious observance, they logically conclude that it is immaterial whether or not the attention of others is drawn to an act forbid- den to be done on that day. It is true that in an early case wherein suit was brought on a warranty of soundness in a horse sold on Sunday, Bayley, J., after quoting the provisions of the statute 29 Car. II., c. 7, said : " I apprehend the object of that part of the statute was to prevent handicraftsmen, laborers and others from exercising their ordinary callings in a manner offensive to the «ye and with reference to the decent observance of the Sabbath day.'" And Littledale, J., said: "It is unnecessary to decide 1 0hmer's Case, 34 Tex. 115. *Bloxsome v. Williams, 5 Dowl. & Ey. 82, 86. 202 LEGAL ASPECTS OP THE whether the statute 29 Car. II. extends to contracts entered into by merchants or other persons making no show of business; but it seems to me that the object of the statute was to prevent persons keeping open shop and disregarding the decency of the Lord's day by a public show of their ordinary trades and occupations." 1 But later it was held, that " the spirit of the act is to advance the inter- ests of religion, to turn a man's thoughts from his worldly con- cerns, and to direct them to the duties of piety and religion ; and the act cannot be construed according to its spirit unless it is so con- strued as to check the career of worldly traffic." And accordingly it was held to apply to a private, as well as a public sale.* And some American cases adopt the English doctrine, as thus announced, and repudiate the distinction between public and private labor, &c. 3 On the other hand, in North Carolina, the private sale of a horse was held not within the operation of the statute, though within its words ; and the court added : " So the case of a lawyer who sits in his rooms, and reads a law book, or writes a deed, or a merchant who, in his counting-room posts his books, or a,n old lady who sits by her fireside and knits, if done on Sunday, comes within the words of the statute. But my opinion is that the statute is void, and inoperative, in respect to cases of this kind, and that its operation is confined to manual, visible, or noisy labor, such as is calculated to disturb other people." 4 It was said in Massa- chusetts that the legislature did not intend to carry the prohibition further than to restrain the exercise of those occupations aod employments which make up the common and daily business of mankind — callings carried on for gain and profit, &c.j and this conclusion was based on the subsequent designation in the statute of "keeping open a warehouse," &c, as an employment which would subject the person to the penalty imposed ; on the preamble, which spoke of the " damage to members of a Christian society," the " disturbance of well-disposed persons," &c. ; and on the con- sideration that a narrower construction would not promote the 1 S. C, 5 Dowl. & By. 82. 73 (1845); Lovejoy v. Whipple, 18 Vt. 'Fennel v. Ridltr, 5 Barn. & C. 406. 379 (1848). See, also, Smith v. Sparrow, 4 Bing. 84 i Melvin v. Eaeley, 7 JoneB (N. C.) (1827). 356(1860). 'Adams v. Hamdl, 2 Doug. (Mich.) FIRST DAY OF THE WEEK. 203 object, "bat woald produce serious inconvenience, by impeding or preventing the performance of the common and ordinary duties and offices of domestic life." 1 And the idea that "disturbance" of per- sons was what the legislature meant to prevent was thus assumed in Pennsylvania: "Most of the plaintiffs, if not all, have places of business on streets where passenger cars are passing every few minutes, and no one has complained that they have ever interfered with his addition of items to a bill, &c. * * * The greatest nuisance is the driving up of carriages during the sermon, to take home at the close of the service the rich members of the congrega- tion ; * * * as to disturbing persons in private dwellings on Sunday, it is an absurdity which requires no answer."' So, the South Carolina court has asked, "Why are we to hold any labor indictable except it might be such as actually to interfere with the rights of conscience, and worship of others, as by disturbing con- gregations assembled in churches, in their devotions, or the like? If the act of the accused in fact disturbed others in the performing of their duties of piety, that will itself be a specific offence, whether committed on Sunday or any other day. If the particular work or trade be not, in its nature, a nuisance, as prejudicial to the health or comfort of the public, it does not become so by being performed or carried on on one day more than another." 3 The legislature which concocted the Sunday law for New Hampshire seems to have been disposed to concede greater personal liberty than was enjoyed under the laws of the neighboring communities. It permitted work, &c, to be done, provided it was not "to the disturbance of others" — thus using a word which, by construction, the opinions just cited, have imported into the statutes of other states. But in this connection, we encounter a remarkable instance of judicial definition nullifying an intention which the legislature expressed with apparent clearness and distinctness. What is a disturbance? Webster says that, in law, it is the hindering or disquieting of a person in the lawful and peaceable enjoyment of his right, the interruption of a right, as the disturbance of a franchise of com- 1 Berni£tt v. Brooks, 9 Allen (Mass.) * Williams' Case, 4 Ired. (N. C.) L. 118, 120. 400 (1844). 'Bead's concurring opinion, Spar- hawk's Case, 54 Pa. 401 (1867). 204 LEGAL ASPECTS OF THE mon, of ways and the like." 1 Blackstone says it is "usually a -wrong done to some incorporeal hereditament, by hindering or dis- quieting the owners in their regular and lawful enjoyment of it."* Bouvier repeats this definition. 8 And Abbott, also. 4 Burrill adds : ■"The hindering of that which, in right, belongeth unto one to do." 5 Thus we see that the idea of a wrong done and a right invaded is involved in the legal definition of a disturbance. Now, it is a fun- damental maxim, volenti non fit injuria. 8 And it would seem to follow that a man cannot be, in a legal sense, disturbed by the act of another, to which he assents, and in which he participates. But this train of reasoning was explicitly repudiated by the New Hampshire court. In considering what is a "disturbance of others," the court said it was difficult to lay down a general rule; that it might depend on the party's existing pursuit; that the fact that people willingly submitted to and took part in a thing did not make it no disturbance; and that it was safe to give the word a comprehensive meaning; that the object of the statute was to pre- vent the distracting of people from religious observances, and "nothing should be tolerated that tends to defeat it;" and accord- ingly, it was held that a proposition to buy a horse was a disturb- ance of the owner, and that the latter's willingness to be disturbed could not make the contract valid; and the vendee's taking a wit- ness along with him, when he went to make this proposition, was held a further violation of the act in regard to the witness, as was also the additional interruption to the plaintiff's wife (who was in the room at the time reading a newspaper). The result that a person- present at a transaction might allege that it disturbed him, however quietly conducted, the court said was a necessary hardship, such as must result in some cases from the application of all general rules; that if disturbance to a solitary individual were not enough, it would be impossible to draw the line; and that the question was the application of a principle, and not one of convenience or incon- venience. 7 And later, in the same state, the court defined disturb- ing acts as "acts calculated to turn the attention of those who are 'Webs. Diet, 8. v. *Tbid. *3 Com. 16. «Whart. Max. 99 ; Broom Max. 268. "Diet., 8. v. 'Varney v. French, 19 N. H. 233 *lbid. (1848). FIRST DAY OF THE WEEK. 205 present from their appropriate religious duties to matters of mere worldly concern," and held that the execution of a will in the presence of others was to their disturbance, and added: "It has been urged that the question whether the act under consideration was to the disturbance of others must always be one of fact and should be submitted to the jury ; but, if business has been trans- acted of a secular character and not within the exceptions and in which two or more persons have taken a part, and there be no con- troversy as to these facts, then upon the interpretation which has been given to these terms, the disturbance is a conclusion of law." l And, in a yet later case, this view was sustained. 2 "X The Words "Ordinary Calling." The use of the words "ordinary calling" in the English statute 29 Car. II. has given rise to some subtle judicial distinctions. A was a horse auctioneer. B came to his stable, and, after trying a horse, asked leave to show it to C; A consented, on condition that, if C did not return it by two o'clock, it should be B's horse. As it was not returned till a later hour, A refused to receive it, and sued for the price. The court said "the sale of horses by private contract was not A's ordinary calling nor was it B's, and, there- fore, though it is to be lamented, yet the sale must be held good." 8 A very often quoted English case is that of Bloxsome v. Williams, supra (1824). A's son bargained with B for a horse, upon a war- ranty of soundness, giving nothing in earnest. The horse was- delivered on Tuesday, and proved unsound. A sued on the war- ranty. B was a horse dealer, but there was no evidence that A or his son knew this. "We must assume the plaintiff has not know- ingly concurred in enabling the defendant to contravene the law,, because there is no evidence of his having been aware that the defendant was a horse dealer at the time of this transaction; and f if the defendant were allowed to insist on this objection, it would be permitting him to take advantage of an illegality for which he alone is culpable." 4 In another report of the same case, Bailey, J., 1 Oeorgev. Qeorge, 47 N". H. 27 (1866). i Bloxsome v. Williams, 5 Dowl. & By. 'Thompson v. Williams, 58 Id. 248. 82, 84. 'Drury v. Defontaine, 1 Taunt 130. 206 LEGAL, ASPECTS OF THE is represented as saying: "It is not competent to the defendant who alone has been guilty of a breach of the law to set up his own contravention of the law as an answer to this action at the suit of an innocent person." 1 But, if the purchaser was a horse dealer, he cannot sue on such a warranty. 2 An attorney entered into an agree- ment for the settlement of his client's affairs, thereby rendering himself personally liable. Held, that he was not exercising his ordinary calling; and Lyndhurst, B., said : "Has it ever been held that an attorney is within the statute of 29 Car. II.?" * * * and Alderson, B., asked : "Can it be contended that an attorney is a tradesman? * * * The words 'other persons' mean persons ejusdem generis." 3 * * * Still later, the question arose whether a pauper had acquired a residence in a certain parish by virtue of a contract of hiring made with a farmer therein whose labor was intended to be prohibited, and it was held that the hiring of a serv- ant was not within the farmer's "ordinary calling," 4 and still later it was said " the cases show that the act to be illegal within the statute must be done in the exercise of the party's ordinary calling, and that the statute does not apply to all persons, but to persons having such ordinary callings which they exercise on the Sunday. Had the statute intended to prevent the doing of any business on a Sunday, it would have enacted that no one should enter into a contract on that day." 6 A mare was sent to a farm to be served and the ser- vice was performed. The farmer claimed a lien on the mare for his charges. Held, that the statute did not apply to a case where the defendant, in the ordinary calling of a farmer, happens to be in the possession of a stallion, occasionally covering mares. 6 It is held in Massachusetts that "upon a contract in the exercise of the ordinary calling of one party, the other may sue, if it was not within his own ordinary calling, and he did not know, when he entered into it, that it was within the ordinary calling of the defendant." 7 But later it was observed that, previous to 1791, all the acts in Massachusetts were framed like the English statute, so as to prohibit only the exercise of a person's ordinary calling, and 1 S. C, 3 Bam. & C. 232. *King v. Whitnash, 7 Barn. & C. 596. 2 Fennell v. Ridley, 5 Id. 406 (1826). 'Begbie v. Levy, 1 Tyrw. 130 (1830). 'Peate v. Dicken, 5 Cromp., M. & K. "Scarfe v. Morgan, 4 Mees. & W. 270. 422 (1834). 'Oarusonv. Ooss, 107 Mass. 439 (1871). FIRST DAY OF THE WEEK. 207 it was said that the existing statute was intended to have a broader application. 1 In a Massachusetts case involving the construction of the Rhode Island statute, which was taken from 29 Car. II., it was observed that to say, as suggested in behalf -of the plaintiff, that a contract should not be held void if made through an agent, which would have been valid if made by the owner of the estate in person, would leave professional agents free to pursue their ordinary callings. "A broker or factor is commonly employed to do something which is not within the ordinary calling of his principal, but is within his own ordinary calling. A man who follows his ■ordinary calling as agent for others is not less within the words of the statute, or the evils which it was intended to prevent, than one who follows his ordinary calling on his own account. The fact that the parties to this action met on the Lord's day at the defend- ant's request does not estop him to set up this defence. The plaint- iffs in meeting the defendant on that day were in equal fault with the defendant, who requested them so to meet him ; indeed, more in fault, inasmuch as dealing in real estate was their ordinary calling, and was not his, and the plaintiffs were, therefore, acting in direct violation of the statute." 2 The execution of a release by a creditor to the assignee of a voluntary assignment was held valid in Rhode Island as not within the creditor's "ordinary calling." 3 In 1835, in New York, attention was called to the fact that the qualification ^'ordinary calling" had influenced the decisions in England, and the court added, "but our statute, in terms, seems confined to ser- vile laboring or working." 4 The English restriction of the prohi- bition to the "ordinary calling" is adopted in Tennessee. 8 Atten- tion was afterwards called to the fact that a later Tennessee act made "any of the common avocations of life, acts of real necessity or charity excepted," illegal. 6 The word "ordinary" is used in the Indiana statute. The court in that state said the execution of a mortgage does not fall under the prohibition of the South Carolina statute which forbids the exercise of a tradesman's "ordinary call- 1 Bennett v. Brooks, 9 Allen (Mass.) i Northrup v. Foot, 14 Wend. (N. Y.) 118, 119. 248, 250. "Hazard v. Say, 14 Allen (Mass.) 5 Amis v. Kyle, 2 Yerg. (Tenn.) 31 487 (1867). (1821). "Allen v. Gardner, 7 E. I. 22. "Lorry Qase, 7 Baxt. (Tenn.) 95. 208 LEGAL ASPECTS OF THE ing," &c. x The words "ordinary calling" are used in the Georgia statute. But, by construction in one case, they were given a much wider application than they obtained in England. As we have seen, the English courts are strict in confining the prohibition to acts themselves within the ordinary calling; and thus they have held that the hiring of a servant by a farmer is not illegal. 3 But the- Puritanism of Georgia has extended the illegality to things which a party does with a view to afterwards pursuing his ordinary call- ing, or, to aid himself therein. In a suit on a farmer's note for the purchase-money of land, it was said "the defendant was a farmer and it was a part of his ordinary business and calling to purchase land and pay for it, in order that he might pursue his ordinary business and calling as a farmer * * * the facts bring this- case within the true intent and meaning of the statute, and the note was therefore illegal." 3 In New Hampshire attention was called to the fact that a later statute of that state had substituted the word "secular" for the word "ordinary," and the court said: "We are inclined to think that, if our forefathers had supposed (hat the word 'ordinary' in the statute of 29 Car. II. had the force and effect which it has been decided in England to have, they would not have copied it into our urovisional act." 4 And later, the New Hampshire court has declined to be bound by the English con- struction. 6 The Pennsylvania act has been spoken of as much more comprehensive than 29 Car. II., and "sufficient to embrace every species of worldly business, not therein specially excepted, whether it appertains to a person's ordinary calling, or not." 6 So it was- said of the English decisions in New Jersey : "An individual, so far as the secular magistrate was concerned, could, with entire im- punity, desecrate the Sabbath, provided he did so in a business- affair, disconnected with his ordinary avocation. A regulation thus- mutilated does not appear to have recommended itself to the framers- of our statute, and hence the inhibition of all 'worldly employ- 1 Hellams v. Abererombie, 15 S. C. 110 » Morgan v. Bailey, 59 Ga. 683, 685. (1880); Shaw v. Williams, 87 Ind. 158. 'Frost v. Hull, 4 N. H. 153 (1827). . See, also, Mills v. Williams, 16 S. C. 593 'Smith v. Foster, 41 N. H. 215. (1881). 'Kejmer v. Keefer, 6 Watts (Pa.) 231 'King v. Whilnash, 7 Barn. & C. 596, (1837). See, also, Sparhawk v. Union. 599, see infra. Co., 54 Pa. 401 (1867). FIRST DAY OF THE WEEK. 209" ment, or business.'" 1 And the court in Mississippi observed that the statute in that state was broader than 29 Car. II., inasmuch as it forbade " laboring at one's own, or any other calling," &c, and added, "In the absence of all proof, it must be presumed that the transactions thus settled pertain to the ordinary calling of the plaintiff; for a man's business transactions generally arise from the calling in which he is engaged. Hence, when he settles his accounts with a party with whom he has had several dealings, it must be presumed that the transactions were in the course of his ordinary calling, and that the settlement pertained to his usual bnsiness, or employment. Such a settlement necessarily requires 'labor' within the meaning of the statute, and comes fully within its prohibition."* But a different view of the burden of proof appears to have been taken in Georgia, where, considering a city ordinance which pro- hibited the pursuit of a laborer's ordinary business and the selling of merchandise, the court said "the evidence does not show what was the daily avocation of the plaintiff in error, or that he opened any store for the sale of merchandise on Sunday. Indeed, it does not bring him within that portion of the ordinance that the- municipal authorities are empowered to enforce; all that it shows- ' is that shoes were sold and exchanged on Sunday ; this does not establish any violation of that portion of the ordinance which the- authorities of Darien can enforce. It therefore follows that the case should have been sent back to the Police Court for further- proceedings." 3 IV. Contracts as Labor — The General Principle. One of the most important questions which have arisen in con- nection with the Sunday law is this : Are contracts void, under a prohibition of "labor," "business," &c. ? In this connection, two- kinds of contracts are to be considered — those made on Sunday, and those made on a previous day, to be executed on Sunday. With one exception, the following cases belong to the first class. In England, in a case involving the validity of a purchase in market overt, the purchaser alleged a prescription to hold the fair 1 Beeves v. Butcher, 31 N. J. 224 *MMer v. Lynch, 38 Miss. 344 (1860). (1865). *RothachM't Case, 69 Ga. 503 (1882). 14 210 LEGAL ASPECTS OF THE yearly on August 29th, and the court said "a fair holden upon a Sunday is well enough; although, by the 27 Hen. VI., c 5, there is a penalty inflicted upon a party who sells upon that day, but it makes it not to be void." 1 But afterwards it was laid down by Holt, J., in a usury case, that "any contract for or about any matter or thing which is prohibited and made unlawful by any statute, is void, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute." 3 Lord Holt is not reported as giving any authority for this doctrine, and its application to cases under the Sunday law was, as just stated, denied nearly a hundred years pre- viously. But, later (1808), it was re-asserted, in that connection, and, alluding to the ruling in the Fair Case, the court said, " The law is since changed, and, if any act is forbidden under a penalty a contract to do it is now held void." 3 But, though this general principle is settled in England, the early statutes there have been so construed as to admit many Sunday contracts. In the case just ■cited, it was said that a contract, to be void, must be within the •contractor's " ordinary calling," and the court added : " Lord Coke, 2 Inst. 22, cites the law of Athelstane, and observes, ' here note, by the way, that no merchandise could be sold on the Lord's day.' But it does not appear that the common law ever considered those contracts as void, which were made on a Sunday." In a later case ■of horse-selling, this view was endorsed, and Bailey, J., said : " I entertain some doubts whether the statute applies at all to a bargain of this description. I incline to think that it applies to manual labor, and other work, visibly laborious, and the keeping of open shops. But I do not mean to pronounce any decision upon that point." * So, it was said, still later, " the act ought to be so con- strued as to advance the objects contemplated by the legislature, but not so as to make every work or business, done on the Lord's day, illegal." 6 In 1830 an action was brought by the endorsee against *Comym v. Boyer, Cro. Eliz. 485 l Blwaome v. Williams, 3 Barn. & C. (1596). 596 (1824). 2 Bar0ett v. Vinor, Carth. 251 (1693). *King v. Whitnash, 7 Barn. & C. 596 a Drury v. Defontaine, 1 Taunt. 130 (1827). (1808). FIEST DAY OF THE WEEK. 211 the acceptor of a bill of exchange. Defence that the bill was •drawn on Sunday. The court said if any contract had been entered into on the Lord's day, done in the defendant's ordinary calling, and the plaintiff knew it, they would hold the bill void." 1 In the report of this case in another volume, the court is represented as having said, that, had the statute intended to prevent the doing of any business on Sunday, it would have enacted that no one should enter into a contract on that day. 2 Holt's doctrine has been adopted in Vermont, 8 and New Hampshire, 4 and Pennsylvania, 6 and Ohio. 8 It has been held that Sunday contracts are void in New Jersey, 7 and Kentucky, 8 and Indiana, 9 and Arkansas. 10 But to the con- trary are cases in New York, 11 and Nebraska; 18 and in Ohio a Sunday deed has been held valid ; ia but, later, the court had occa- sion to consider an ordinance of the city of Cincinnati, which pro- vided that no one should engage in any "trading, bartering or selling or buying any goods, wares, or merchandise, or at any com- mon labor," and it was held that buying and selling merchandise were "common labor," though the latter words were also used, and it was observed, as to the general law, that it prohibited "common labor," but not "buying and selling" in terms, 14 and this view was afterwards approved. 1 * But, in a later case, Judge Thurman, de- livering the, opinion that contracts were not " common labor," said : 1 Begbie v. Levi, 1 Cromp. & J. 180. 'Link v. Clemmens, 7 Blaokf. 479 2 S. C., 1 Tyrw. 130, J 31. (1845) ; Banks v. Werts, 13 Ind. 203 'Lyon v. Strong, 6 Vt. 219 (1834) ; (1857) ; Outlett v. M. E. Church, 62 Id. Lovejoy v. Whipple, 18 Id. 379 (1846). 365 (1878). It was said by Elliott, C. 4 Woodman v. Hubbard, 5 Fost. 67 J., in 1881, that, of the Indiana cases '(1852). holding contracts incapable of enforce- 6 Shumanv.Shuman, 21 Pa. 90; Mitch- ment, "some have carried the doctrine ■eli v. Smith, 4 Yeates 84 (1804) ; Hag- very far, possibly too far." Rogers v. dock v. Traeey, 3 Wils. & S. 507 (1842). Telegraph Co., 78 Ind. 169. s Bloom v. Richards, 2 Ohio St. 387 1( 'Tucker v. West, 29 Ark. 386 (1874) ; (1853). Merrill v. Robinson, 43 Id. 483 (1880). 11 Crockett, v. Vanderveer, Penn. 626 11 Smilh v. Wilcox, 24 N. Y. 353 (1862), (1811); Van Riper v. Van Riper, 1 1 2 Horacek v. Keebler, 5 Neb. 355. South. 156(1819); Reeves v. Butcher, 31 la Swi«her v. Williams, Wright 754 N. J. 224 (1865). ■ (1834). *Slade v. Arnold, 14 B. Mon. 287 li Oineinnati v. Rice, 15 Ohio 225. (1853) ; Murphy v. Thompson, Id. 419. 1 6 Sellers v. Dugan, 18 Id. 489 (1849). 212 LEGAL ASPECTS OF THE "It follows that we do not agree with the decision in Seders v. Dugan. That judgment was given by a majority only of the court, and is contrary to the former decision, pronounced by two of the judges in Swisher v. Williams. It thus appears that three- judges have been of one, and an equal number of the contrary opinion, upon this question;" the judge added that the popular meaning of toilsome, manual exertion must be given to the word in the statute, unless plainly used in a more enlarged, or restricted sense, that it is obviously not used in its most enlarged sense, for mere thought, writing a letter of friendship, or studying mathe- matics, or metaphysics, might be laborious, but were still lawful,, that a marriage, which, in a legal point of view, is a contract, and nothing more, would be valid on Sunday, and continued : " It i& not to be understood, however, that, because a Sunday contract may be valid, therefore business may be transacted upon that, as upon other days ; as, for instance, that a merchant may lawfully keep open store, for the disposition of his goods. To wait upon his customers, and receive and sell his wares, is the common labor of a merchant, and there is a broad distinction between pursuing thi& avocation, and the case of a single sale, out of the ordinary course of business." 1 In Missouri, Judge Thurman's distinction between the prohibitions of "labor" and "business" in this connection has been approved. 2 Under a statute prohibiting "lab^or" only, whether, if a railway company held itself out as a common carrier of live-stock on Sunday, as on other days of the week, it would be bound to accept for carriage, for an owner, or a connecting road, stock offered on Sunday, the court in Maryland declined to decide- in 1881.' It may be observed, here, that there is reason for holding con- tracts void in states where " business " is forbidden, not because of Holt's doctrine, but simply because it may plausibly be maintained that making a contract is "business," and another well-established principle operates, namely, that the law will not enforce a contract which it forbids to be made. 4 The occasion for the application of 1 Bloom v. Richards, 2 Ohio St. 387 3 P., W. & B. v. Lehman, 56 Md. 209, (1853). 226. 'More v. Clymer, 12 Mo. App. 11, 15 * Chit. Cont., eh. 4, § 1 ; Pars. Coot. et Kq. (1882). 807 (bottom), ed. 1886. FIEST DAY OF THE WEEK. 213 Holt's doctrine arises where the prohibition is of labor, &c, only and where it is admitted that making a contract is not labor. Then the question is, is it "for or about" the labor which is forbidden? It must be remembered that this labor is Sunday labor; and tience, there seems to be some point in the suggestion that the doc- trine applies in this connection to contracts made on some other day to do on Sunday an act which is then unlawful, as such a contract would be, to use Holt's expression, " a contract for or about a thing which is prohibited," whereas, a contract made on Sunday, to be executed on another day, can hardly be said to be " for or about" Sunday labor. Moreover, thus construed, the principle has a reasonableness which is lacking in any other acceptation of it. A man, it says in effect, shall not be cast in damages for refusing to ■do an act which the law forbids, or which it will punish him for doing, even though he has expressly agreed to do it ; nor, if he carries out h'is agreement, will the law allow him to recover the consideration. " Business " is used in the Massachusetts act. In that state, it has been said that " the legislature intended to pro- hibit secular business and did not confine the prohibition to manual labor, but extended it to the making of bargains, and all kinds of trafficking." 1 The same word is used in the New Hampshire statute. But there it is necessary, for the labor or business to be illegal, that it be to the "disturbance" of others. Yet the court of that state, in 1860, said that it was not a question whether the others were "disturbed," "annoyed," &c; and it cited the "com- prehensive" meaning given to the word "disturbance" in Varney v. French* and added : " We understand from this decision that a valid contract cannot be made if it relates to the business of one's secular calling, because two or more must necessarily be engaged," and each would disturb the other, or others.' 1 Pattee v. Greely, 13 Mete. (Mass.) 56 Miss. 217 (1878) ; Hooper v. Edwards, 284 (1847). But see post, p. — , el sea., 18 Ala. 280 (1850) ; S. C, 25 Id. 528 as to the present Massachusetts doctrine. (1854); Hill v. Sherwood, 3 Wis. 343 See, also, Barker v. Fogg, 34 Me. 391 (1854) ; Melchoir v. McCarly, 31 Id. 252 (1852); Tucker v. Mowrey, 12 Mich. (1872); Knox v. Clifford, 38 Id. 651 378 (1864) ; Kepner v. Kee/er, 6 Watts (1875). Boynlon v. Page, 13 Wend. (N. Y.) B Williams' Case, 4 Ired. (ST. C.) L. 425. See, also, Miller v. Roessler, 3 E. 400, 406. D. Smith (N. Y.) 234 (1855). 'Benedict v. Bachelder, 24 Mich. 42& (1872). FIRST DAY OF THE WEEK. 215 sylvania, where a party sued for the hire of horses, which had been let on Saturday to be used on Sunday. The court said the contract for the performance of an illegal act on Sunday, being so founded on an illegal consideration, and standing in the same relation as a contract for gambling, is void. 1 v. contracts as labor — the question of sustaining Fraud, &c. Some cases have been influenced in their view of Sunday con- tracts by the fact that to hold them void in toto would enable a party to take advantage of his own wrong. It was said in Eng- land : " The defendant was the only person who had violated the statute, and it would have been against justice to have allowed him to take advantage of his own wrong to defeat the rights of the plaintiff, who was innocent. These cases, therefore tend to support the present objection. * * * The expression that the contract would be void, probably meant only that it would be void so as to prevent a party who was privy to what made it illegal, from suing upon it in a court of law, and not so as to defeat a claim upon it by an innocent party; and so it was considered by this court in Blox- some v. Williams. And in Pennsylvania, in a suit for the price of a horse sold, it was observed : " Zeal for religious observance of the Sabbath is commendable, but it may exhibit itself in a very ques- tionable shape. It cannot avail a defendant, who has the possession of property, without paying for it, unless he proves that the plaintiff has violated some law, human or divine." 2 So it was said in Geor- gia, " it is difficult to suppose that any legislature could intend to aid dishonesty, by allowing parties to repudiate their obligations, merely because incurred on Sunday. Encouraging crime is a poor way to punish crime." 3 The parties to a pending suit before a jus- tice made an agreement on Sunday by which the plaintiff received a certain amount in full and agreed to discontinue the suit. The de- fendant failed to appear, and the plaintiff prosecuted the suit to judgment, of which proceeding the defendant had no knowledge l BerriU v. Smith, 2 Miles 402, 403 2 Hadly v. Snevily, 1 Watts & S. (Pa.) (1840). 477 (1841). 'Sanders v. Johnson, 29 6a. 526. 216 LEGAL ASPECTS OF THE till the time for appeal had expired. On the defendant's applica- tion for an injunction against the judgment, the court said that the plaintiff " having obtained it by making an unjust use of an agree- ment for a settlement, even though void in law, yet acted on by the other party, who was thereby prevented from appearing, the judg- ment ought not to stand." 1 So, in North Carolina, an attempt being made to escape liability for a warranty on the sale of a horse by alleging it took place on Sunday, Judge Manley said : " The defence is a novelty in North Carolina, and it has the singular demerit of being unconscientious,' and, at the same time, wearing a garb of Christian morality." 3 And it was given as a reason for hold- ing that a subsequent payment would validate a Sunday contract, that otherwise " the payee would receive and hold money paid him without consideration." 3 So, in Ohio, the Supreme Court said to a grantor : " The objection that the deed was executed on Sunday will not avail you. Both parties partook of the sin of violating the Sab- bath, and the law does not require of us to enable either party to add to the sin, by breaking the faith pledged on that day, and com- mit a fraud out of assumed regard for the Sabbath day." 4 And the Indiana court gave, as a reason for holding that a surety, who signed a bond on Sunday, and authorized his principal to deliver it on another day, was bound by such delivery, the fact that, if the law were otherwise, "it would shield the guilty, and punish the innocent."' In Michigan, on a trial under au information, alleging that a forged certificate of acknowledgment was made and uttered January 13th, when the prosecution produced the certificate, it appeared that it was dated January 14th, which was Sunday ; the defendant objected to its admission on the ground that, purporting to have been made on this day, it was on its face invalid, and hence incapable of being the basis of a prosecution for forgery ; but the court held it admis- sible.' On the other hand, some judges, while regretting the result, have felt themselves obliged to disregard this question in applying 1 Blakesley v. Johnson, 13 Wis. 530 ' Russell v. Murdock (Iowa), 44 N. W. (1861). Rep. 237 (1890). 2 Melvin v. Easley, 7 Jones (N. C.) 356 *Swisher, &c, v. Williams, &c, Wright (1860). In this case, recovery was (Ohio) 754 (1834). allowed on the warranty, because the b EmnsvUU v. Morris, 87 Ind. 269. sale was private. « Van SickUts Case, 29 Mich. 61 ( 1874). FIRST DAY OF THE WEEK. 217 the law. In Maine, while holding that money borrowed could not be recovered, the court said: "It is an unfortunate condition of the law when the violator of its commands is rewarded by it for such violation. Juvenal indignantly says: Multi committunt eadem diverso ■crimina fato. Me crucem pretium sceleris tulit, hio diadema. So now, of two criminals, guilty of the same offence, one is punished and the other rewarded by the law which creates the offence." 1 So, it was said in New Hampshire "with considerations of its policy and expediency, this court has nothing to do. To declare any con- tract, or any class of contracts, void, may involve consequences which it would be desirable to obviate. The application of a prin- ciple often causes individual hardship, but where the law is plain, it must be declared."' So, in Vermont, Williams, C. J., deliver- ing the opinion of the majority of the court that an action would not lie on a warranty given in an exchange of horses, said " it be- comes our duty to declare the law as we find it, without regard to ■consequences." 8 So, in New York, in refusing to allow recovery on a contract to publish an advertisement in a Sunday paper, the court said: "It is a strange mode, it will be said, to support religion by sheltering bad faith. Laws involving public policy can seldom be made effectual in any other way." 4 VI. Contracts as Labor — Contracts Through Agents. It was said in England, as to the argument that the contract, if effected on a Sunday, was so effected without the plaintiff's knowl- edge, and that therefore he was not liable to the consequences of his agent's misconduct, — "if we were sitting in another court to decide whether or not under the circumstances the plaintiff should be amenable to ecclesiastical censure, perhaps he might be holden not liable ; but here we are deciding on the validity of the contract, and if the contract entered into by the broker be void, there is no 1 Meader v. White, 66 Me. 90 (1876). in the New Testament much better de- 'Clwgh v. Davit, 14 N. H. 133. See, fined, and much more frequently en- also, Allen v. Deming, Id. (1843). joined than the observance of that holy 'Lyon v. Strong, 6 Vt. 219 (1834). In day." But se« Grant v. McQrath, 56 this case, Mattocks, J., in a dissenting Conn. 333 (1888). opinion, observed, " Eternal justice is a i Smilh v. Wilcox, 19 Barb. (N. Y.) principle older than the Sabbath, and 581 218 LEGAL ASPECTS OF THE contract on which the plaintiff can sue, for he stands on a contract which his agent could not make." 1 An agent accepted a guaranty, which was to take effect on delivery and acceptance ; it was held that his principals could maintain no action on it, "having, through their agent, participated in the illegal contract," and this, though it was dated on a secular day, and the principals had no knowledge that it was signed on Sunday, till long afterwards.' Where a party's agent, to collect the money on a note or get a new one, received a new one, dated on a secular day, and delivered it to his principal, who endorsed it to another, and neither the principal, nor the endorsee was aware that the delivery was on this day; and the maker's purpose, in then taking up his first note, was to defraud, the first note being, as a result of his conduct, barred by limitation, the court held the principal could not sue ; that the contract was incapable of ratification ; that, as the defence was allowed not for the defendant's benefit but because the court could not aid the plaintiff the defendant's motive in the illegal contract was imma- terial. 8 VII. CONTEACTS AS LABOB — BlLLS AND NOTES. Under the Massachusetts statute, though "business" is prohibited, yet, in 1813, it was held in a case in which no opinion is reported, that it was no bar to the recovery of a judgment on a note that it was made on this day. 4 Later, it was said that this case was im- perfectly reported, and was decided on the insufficiency of the plea. 6 But still later it was formally endorsed. 6 And afterwards, in the same state, it was held to be no ground for arresting a judgment on a note that it was dated on Sunday, and the court said (1) that the fact that the date was Sunday must be proven to the jury; (2) that if it was, it would not be concluded that it was made on the day of its date, and (3) it took effect from delivery, and (4) that if it was made on Sunday, it might have been made after sunset, and so unaffected by the Massachusetts statute. 7 All of which seems to 1 Smith v. Sparrow, 4 Bing. 84 (1827). 'Robeson v. French, 12 Mete. (Mass.) 'Moseley v. Hatch, 108 Mass. 517 24 (1846). (1871). *Olap v. Smith, 16 Pick. (Mass.) 247 *St.evensv.Wood, 127 Mass. 123 (1879) (1854). *Geer v. Putnam, 10 Mass. 317. ''Hill v. Dunham, 7 Gray (Mass.) 543 (1856). PIEST DAY OP THE WEEK. 219 imply that the court did not regard a Sunday note as valid. Yet, that it is» so in Massachusetts is generally held elsewhere, on the strength of Geer v. Putnam, supra. Thus, it was said in Rhode Island, "in Massachusetts it has been held that a promissory note is valid." 1 Under the New York prohibition of labor a note was held not to be void.' The Missouri court, in considering the Illi- nois statute which forbids any one to "disturb the peace and good order of society by labor," said: "It is inconceivable that the making of a loan, or a promissory note, could have disturbed the peace and good order of society." 8 So it was held that under the Missouri prohibition of labor, a note given for an antecedent debt is valid. 4 But it has been held that a note is void under the statutes of Maine, 6 and New Hampshire, 4 and New Jersey, 7 and Michigan,* and Wisconsin, 9 and Minnesota, 10 and Georgia, 11 and Oregon, 12 whose statutes forbid " business ;" and under the statutes of Vermont, 18 and Connecticut, 14 in which the phrase is "secular business," and in Pennsylvania, under a prohibition of "worldly employment, or business." 16 It has also been held that a note is void under the Indiana prohibition of "common labor," the court saying: "We think the statute intended to prohibit every description of secular business not within the exceptions ;" 16 and that the making of a note 1 Allen v. Gardner, 7 E. I. 22 (1861). Code is quoted, with a reference to the 2 Greenbury v. Wilkins, 9 Abb. (N. Y.) number of the section, the Code of Pr. 206, note (1859). 1874, which alone is accessible to the 'Moore v. Climer, 12 Mo. App. 11. writer, contains no provision against *Kauffman v. Samoa, 30 Mo. 387 " business," but only one against keep- (1860). ing open store, &c. And it says that s Towle v.Larrabee, 26 Me. 464 (1847); this latter is from an act which took Baker v. Flagg, 34 Id. 391 (1852). effect March 19th, 1866, so that it would 'Clough v. Davis, 9 N. H. 500 (1838) ; appear to have been the only law on the Allen v. Denting, 14 Id. 133 (1843). subject when the case cited was decided. ''Beeves v. Butcher, 31 N. J. 224 The point was said to be " conceded by (1865). counsel" in Mississippi in 1866. Kounlz 'Adams v. Harnett, 2 Doug. 73 (1845). v. Price, 40 Miss. 341 , 345. 'Hill v. Sherwood, 3 Wis. 343 (1854). la Lovejoy v. Whipple, 18- Vt. 379 1 "Brimhell v. Van dampen, 8Minn.l3 (1846). (1862); Finneg v. Callendar, Id. 41 14 Wright v. Geer, 1 Root 474 (1792)., (1862). "Kepner v. Keefer, 6 Watts (Pa.) 231 "tfttf v. Wilker, 41 Ga. 449 (1871). (1837). "Smith v. Case, 2 Oreg. 190 (1866). 1 "Reynold> v. Stevenson, 4 Ind. 619 Although this case was decided in Sep- (1853). tember, 1866, and the provision of the 220 LEGAL ASPECTS OP THE is " labor " is settled in Iowa, 1 and Arkansas." The Kentucky act of 1801 was curiously phrased. It seemed to prohibit both labor and business. But the court, considering the prohibition of labor only, said : " We are not prepared to decide that the mere execu- tion and delivery of a note or its mere acceptance is laboring in any trade or calling, unless it be a part of some other transaction which may be regarded as labor in some trade or calling. And, if the mere execution and delivery of a note could be deemed such labor, we are satisfied that its mere acceptance could not."' A few more points remain to be noticed in this connection. It was said by Swift, J., in Connecticut : " If a note should be made payable on Sunday, in express terms, it would be void, because it would be a contract to do an unlawful act. But, if it be payable at a future day, which by calculation is found to be Sunday, and the parties did not intend to make it payable on Sunday, then it would not be void." 4 " The buying, and receiving, and selling, •endorsing and delivering of a promissory note must be business as much as the executing and delivering of one and the receiving it would be ; it is also business of one's secular calling, as much as the other." 6 So, the endorsement of a bill, and delivery of it to the acceptor, to be used for his accommodation, is "worldly busi- ness," though the acceptor may not negotiate it until some subse- quent day. 6 And the fact that an endorsement of part payment, dated on Sunday, was made in the presence of both parties, with ovidence that it was cotemporaneous with the payment, warranted the jury in " inferring that the date of the payment was correct, and known and assented to by both parties to be correct at the time it was written, and that the payment was, therefore, made on the Lord's day." ' Where a bill did not, in terms, purport to have been given in pursuance of a contract entered into on a previous day, nor to be the consummation of such a contract, giving the bill on Sunday, with a date of the preceding day, was held not to be >Sayre v. Wheeler, 31 Iowa 112 (1870). 'Hay v. Catlett, 12 B. Mon. (Ky.) 522 The particular business of " buying and (1851). selling land " is mentioned. * Avery v. Stewart, 2 Conn. 69 (1816). *Tucker v. West, 29 A.rk. 386 (1874) ; ^Smith v. Foster, 41 N. H. 215. Stewart v. Davis, 31 Id. 518 (1876) ; *Saltmarsh v. TuthUl, 13 Ala. Edwards v. Probst, 38 Id. (1882). 'Clapp v. Hale, 112 Mass. 368 (1873). FIEST DAY OF THE WEEK. 221 any evidence from which a jury could draw the conclusion that a contract was made between the parties on the latter day ; and it was said that, even supposing it to be equivalent to an admission by the party giving it that a parol contract for the payment of the same sum was made on that day, this would not avail the plaintiff in an action on the bill. 1 It may be observed that the English doctrine that, after an enumeration of certain classes, such a phrase as "other persons whatsoever" must be confined to other persons ejusdem generis with those mentioned, is disregarded in the Georgia cases, cited above. For, in that state the prohibition of " business," like that of " labor," is put upon " tradesmen," " artificers," &c.,. and "other persons whatever," but the courts have never thought of holding that the " other persons " must be of the same class with the "artificers," &c. Finally, it is held in Georgia that the fact that the making of a note was not in the " ordinary calling " of the makers, must be proven in defence. 3 VIII. Contracts as Labor — Marriages. It has been held in Massachusetts that a Sunday marriage is valid, though "purely a civil contract." 8 And the court in New Hampshire, referring to the above case, said with respect to the mar- riage contract, "its validity may be put upon the ground that the contract has been executed, and the status of the parties changed by it, and, therefore, as in other cases, where certain acts are forbidden- by statute, but not expressly declared void, the law will not inter- fere, but leave the parties as it finds them." And it gave, as a further reason for sustaining such a marriage, "the idea that the act was not wholly secular, but rather of a solemn nature, ordained of God, and properly to be celebrated with religious rites and cere- - monies." 4 The court added : "The conclusion we have reached in respect to marriages will apply with equal, if not greater, force to funerals, which, in all civilized communities, are occasions of great solemnity, and attended with imposing religious exercises ; and, in l Kepner v. Keefer, 6 Watte (Pa.) 231 ''Bennett v. Brooks, 9 Allen (Mass.) (1837). 118 (1864). "Sanders v. Johnson, 29 Ga. 526 * George v. George, 47 N.H. 27(1866). (1859). 222 LEGAL ASPECTS OF THE our own country, are universally esteemed to be in Harmony with the duties of the Christian Sabbath." On the question whether a marriage contract, securing the woman an interest in the man's real estate is valid, the court of Pennsylvania was divided, in 1850. 1 IX. Miscellaneous Instances of Labor, Business, &c. In New York, under the statutory prohibitions of labor, and the sale of merchandise, &c, it was held that a contract to publish an advertisement in a Sunday paper was a contract to do a prohibited act, and the price stipulated for could not be recovered ; for the court said, that, though work on the paper were not done on Sun- day, its sale wa3 a violation of the law.' And this view was sus- tained on appeal, when it was added that the sale "was servile work, in the same sense that the service of the attorney's clerk was, or that of a salesman in a dry goods store would be." 8 On" the other hand, considering similar prohibitions, in a suit on contract for publishing an advertisement in a Sunday edition of a newspaper, the Supreme Court of Missouri said that the contract did not require Sunday work, and it would not assume such was intended ; and, as to the sale, "it is contended that the evidence shows that copies of this edition of the paper were sold on Sunday, and that such sale was in violation of the statute. I will not stop to inquire whether such sale of newspapers comes within the prohibitions contained in the statute, or not. It is enough for the present purpose to see, that, by the terms of the contract, no such sale is required by the plaintiffs, or even remotely referred to. No one, after looking over this contract, will say that the plaintiffs could not completely per- form the contract on their part, without ever selling a single paper, either on Sunday, or any other day. All that is contemplated by the contract is that the advertisement shall be published in the paper, and sent to the subscribers thereto." 4 It is settled in Arkansas that not every contract for hire by a livery-stable keeper is void; and the court said: "It is necessary that both he and the hotel keeper should, as far as they can, abstain *ln re Qangwere, 14 Pa. 417. >S. C, 24 N. Y. 453 (1862). *Smith v. Wilcox, 19 Barb. (N. Y.) ^Sheffield v. Barmer, 52 Mo. 474 581 (1855) ; £'. C, 25 Id. 341. (1873). FIRST DAY OF THE WEEK. 223 from all employment not strictly necessary," and held that the necessity of any particular service was a question of fact, and should be ascertained by the keeper "upon information and inquiry." 1 It is not indictable for a carrier, under contract with the post- master-general to carry the mail on each day of the week, to carry the same on Sunday; and it was said in this connection "when the traveling is necessary to execute a lawful contract, it cannot be con- sidered as unnecessary traveling against the prohibition of the statute. But let it be remembered that our opinion does not pro- tect travelers in the stage-coach, or the carrier of the mail in driv- ing about any town to discharge or to receive passengers; and much less in blowing his horn, to the disturbance of serious people, either at public worship, or in their own houses. The carrier may pro- ceed with his mail on the Lord's day to the post-office ; he may go to any public house to refresh himself and his horses ; and he may take the mail from the post-office, and proceed on his route. Any ■other liberties on the Lord's day our opinion does not warrant." 2 In New Hampshire, it was said that a man had "an undoubted right to drive his team on the highway, provided that, in so doing, he wrought no disturbance to others." 8 But later a doubt was intimated, as follows : " Whether every ride or drive for mere relaxation and exercise must be regarded as an unlawful recreation it is not necessary to decide." 4 Still later, in the same state, it was ■said : "Our cases are far from going the length of including a visit which a son makes to his parents under the head of work, labor, or business of his secular calling, and it cannot be held that such a •visit is within that provision." 5 And the court expressed the further opinion "that traveling, in an orderly and decent manner, to visit a parent, is not to be regarded as a criminal recreation." Whether traveling was a disturbance of others was considered in New Hampshire in 1866. The court cited the case of Dutton v. Weave, and said : "It was held that there was no evidence of a disturbance, although the traveler started with a heavy team from his hotel, taking with him two men, and an extra horse and sled, to enable him to get through a snow-drift which he expected to encounter, ^Stewart v. Davis, 31 Ark. 518 (1880). i Woodman v. Hubbard, 5 Fost. (N. 'Knots Case., 6 Mass. 76 (1809). H.) 67 (1852). 'Button v. Weare, 17 N. H. 34 (1845). 6 Corey v. Bath, 35 N. H. 530 (1857). 224 LEGAL ASPECTS OF THE and which occupied them all for several hours. In deciding that here was no evidence of disturbance to others, it is clear that the court did not take the view which we have adopted ; but it will be- perceived that the point was not discussed in the opinion reported." 1 As will be seen elsewhere, the view adopted in this case was, that anything is a "disturbance" which tends to distract one's mind from religious pursuits, and that the fact that the party disturbed made no objection did not affect the question of the disturber's guilt. Authority was given a canal company to make rules, &c., for " orderly navigation and the government of boatmen," &c. In an action by the company against a party who broke a chain across the canal on Sunday, a by-law closing navigation on that day, except in cases of necessity, and forbidding boats to pass under a penalty, &c., was held illegal. 2 An action was brought against a canal company for delay from the stranding of a vessel. The defence was, that the vessel had attempted to pass a lock on Sun- day. An effort was made to show the existence of a regulation that no boat should pass a lock on that day, without a written per- mit from the superintendent, &c, which was not to be granted,, except in cases of necessity. The court said it was held that "neither the superintendent nor directors had power to make such a regulation." 5 In New York, a doubt was expressed whether the- business of a common carrier, by means of a steamboat, came within the term "servile labor." 4 But it was held in Pennsyl- vania that the business of running passenger cars was a violation of the act. 6 The New Hampshire court said : " Whether the letting of a horse is necessarily, and in all cases, a work or busi- ness to the disturbance of others, it is not necessary to decide." 6 Indiana has a statute imposing a penalty of $100 for the failure of a telegraph company to transmit and deliver a message; in an action to recover this penalty, it was held a sufficient answer that the contract for the transmission of the message was made on Sunday. 7 1 George v. George, 47 N. H. 27, 35. *&parhawk v. Union B. W. Co., 54 Pa. 2 C. N. Co. v. Pilling, 14 M. & W. 76 401. (1845). • Woodman v. Hubbard, 6 Fost. (N. 'McArthur x. G. B. & M. Co., 34 Wis. H. 67 (1852). 139 (1874). 7 Bogers v. Telegraph Co., 78 Ind. 169- *MerriU v.Earle, 31 Barb. (N. Y.) 38 (1859). FIRST DAY OP THK WEEK. 225 Where a man signed an application for insurance, and executed the premium notes, and the parties knew the day was Sunday, and, to avoid illegality, post-dated the application and the notes, and there was no evidence of subsequent ratification, the contract was held illegal. 1 A private sale of a horse is not void in New York, and the court added : " The fact of the parties having driven the horse before they made the bargain, but on the same day, does not alter the case. There is no evidence that this was done even for the purpose of trying the horse, preparatory to the bargain, nor that any nego- tiation was then on foot for the purpose." 8 And, in a later case, where the vendee went in search of some horses to the vendor's place, and the vendor caught a span in a field, and there made them "show off" to the vendee, in the morning, and, in the even- ing, drove them in a wagon before the vendee, exhibiting them to him, and the latter then purchased, the court observed : " It can- not, I think, be said that the transaction between the parties in the case at bar was necessarily a public exposure of goods and chattels for sale."* But, where two horses exchanged were examined by the parties, and were driven up for that purpose, and were tried by them, and the trade was consummated, and a note for the difference agreed upon on the exchange was given, all on Sunday, the note was- declared void, and the court said " no case could be more clearly a matter of business within the statute, and no business transaction more evidently demoralizing in its tendency and example." 4 On petition to supersede a commission in bankruptcy, the Lord Chancellor said : " The act of bankruptcy, on which the petition is grounded, is a denial to a creditor on Sunday. If the petitioner had assigned Sunday for settling the account, it was not an act of bankruptcy by him to say he would not keep that appointment to transact business on that day." And the commission was super- seded. 6 A party is not bound to regard a demand made on this day for 1 HeOer v. Crawford, 37 Ind. 279 'Batsford v. Every, 44 Barb. (N. Y.) (1871). 618 (1865). 'MiUer y. Homier, 4 E. D. Smith (N. * Adams v. Hamell, 2 Dong. (Mich.) Y.) 234 (1855) 73 (1845). 'Preston's Case, 2 Ves. & B. 311 (1813). 15 226 LEGAL ASPECTS OF THE the fulfillment of a contract. 1 So, demand for wheat sold under a contract is a nullity, with which it would be a violation of law to comply ; and neither the vendor, nor the warehouseman could vali- date this (as, by waiver, in putting a refusal to deliver on other grounds), because " the law is not enforced for the benefit of either, but to prevent a desecration of the day ; the demand was void, not merely voidable." a An owner of land, calling at another's house, to make a propo- sition to sell it, was held a disturber within the statute of New Hampshire. 3 The enlistment of a recruit in the English army is not void, since recruiting is not a part of the "ordinary calling" of the soldiers detailed for that service. 4 It is, perhaps, safe to say that anything may be done on Sunday which may be done on any other day, unless it is prohibited by some statute. 6 We have seen that it is susceptible of historical de- monstration that Sunday was dies juridicus, until made otherwise by express enactment. The'New Hampshire court has noticed various canons by which judicial proceedings were forbidden, and which were adopted in England, and added, " But the canons extended no further than to prohibit judicial business ; for fairs, markets, sports and pastimes might still take place." 8 And, erroneously assuming that judicial proceedings are void at common law, two New York cases affirm that any business, other than judicial, can be done, unless prohibited by statute in that state.' So, it was said in England that exercising the trade of a butcher is no offence at common law, and that an indictment for so doing must lay the offence contra formam statuti? So, in California, keeping open store, bar, &c, was said to be malum prohibitum, and, independent of statute, not an offence. 9 It was said in New York that the term "working" is used in the statute of that state " as the most comprehensive that the ^Delameter v. Miller, 1 Cow. (N. Y.) s See Behan v. Ghio, 12 So. Eep. 996. 75 (1823). < Allen v. Denting, 14 N. H. 133 (1843). 2 Brackelt v. Edgerton, 14 Minn. 174, ''Sayles v. Smith, 12 Wend. (N. Y.) 57 190. (1834) ; Boynton v. Page, 13 Id. 425 ^Merrill v. Downs, 41 N. H. 72. (1835). 4 Wilton v. Gavin, 16 Q. B. (71 Eng. *Brotherton's Cage, 1 Str. 702 (1726). Com. L.) 48 (1850). »Koser'a Case, 60 Cal. 177 (1882). FIKST DAY OF THE WEEK. 227 language can supply, to cover the action, and employment of mind or body, in the pursuit of business." l But later, in the same state, it was observed that "acts not interfering with the benevolent ■design of the Sabbath by disturbing and hindering those who, for themselves and families, desire to enjoy and improve it, are not prohibited."* In Massachusetts, one clause of the statute forbids keeping open a shop, &c, and another doing business, &c, after which come other prohibitions, and then a section providing that one conscientiously observing the seventh day shall not be liable to penalties for performing secular labor, &c. j held, that this excep- tion applies only to the clause against business, &c, and does not authorize an observer of the seventh day to keep open shop, or violate the other express prohibitions. 8 In Rhode Island, a city ordinance which prohibited the opening of places of trade, &c, was held to create two offences — keeping such a place open, and selling in it. 4 In Maine "walking in the open air, for exercise, is not against the statute." 6 And it was said in Ohio: "It is not unlawful in this state to travel upon public highways for pleasure merely. * * * The only possible doubt is as to the meaning of the word * sporting;' but, whatever may be included within the meaning of that word, we do not believe that the legislature intended to inhibit the quiet, peaceful, and invigorating exercise of either walking, or riding, although no urgent necessity, or charity may prompt the exercise." 6 In Massachusetts, the courts have a distinction between traveling and ordinary walking in the streets, and it has been said: "We are of opinion that a person walking with a friend on Sunday evening less than half a mile, with no apparent purpose of going to, or stopping at any place but his own house, much less of pass- ing out of the city, and no object of business or pleasure, except open air, and gentle exercise, is not guiky of traveling, or liable to punishment." 7 It has been held in Massachusetts that signing, declaring, and 1 Campbell v. International, 4 Bosw. 'Davidson v. Portland, 69 Me. 116 8 Case, 5 T. R. 447, 451 'Merritt v. Robinson, 35 Ark. 783 (1793). (1880). "Hamilton v. Austin, 62 N. H. 575- ' Wentworih, v. Woodside, 79 Me. 156. (1883). 'Lyon v. Strong, 6 Vt. 219, 228 (1834). FIRST DAY OF THE WEEK. 231 of laymen into an ecclesiastical council, for 'necessity and charity,' in connection with the Sabbath, must very much depend upon the creed or religious belief of the individual to whom the question is submitted. Although the holy observance of the Sabbath is a positive duty, yet, like charity, it is undefined; and different denominations of Christians even, as well as individuals, vary much in the degree of strictness with which it ought to be observed. How ungracious, then, for a court to mark the law upon this duty for all denominations to be governed by, and with judges usually belonging to different religious societies ! It would be like a synod composed of the dignitaries of several ;sects. Unanimity could scarcely be expected. And if it was to be regarded as a mixed question of law and fact, it still would be a vexed one, as the pro- pensities (query, prosecutions?) for traveling on Sunday have formerly shown, when scarcely two justices or two juries would agree upon the validity of an excuse or what constituted a neces- sity for traveling. So much confusion was there upon the subject, that it is believed most pious persons think that such prosecutions do religion more harm than good. And suppose the question of what was necessity or charity was to be decided independent of sectarian views. How extremely embarrassing many cases would be ; for instance, a man borrows a considerable Sum of money on the Sab- bath ; it was, perhaps, to pay a debt at a distance on Monday and save a bill of costs ; to redeem a mortgage or save an estate, or he so represented, but it was not so. Another sends to a butcher for meat. Are these matters of necessity? Should the meat have been prepared on Saturday, like the manna ? Or should the money have been procured before? Or if it was expected and the person disappointed, will that be an excuse ? Or if he lied to the lender, will that be as if a necessity existed ? And how difficult to arrive at all the facts and motives, and what cases shall per se be adjudged Decessary or charitable. How with marriage, the greatest of all contracts here among Protestants ? It is no sacrament, or other religious rite, but a mere civil contract. Is this void or voidable, or does it come under the saving clause?" 1 And in Ohio it is said : "It is a task of much difficulty, and one that a court ought 1 Lyon v. Strong, 6 Vt. 236, 237. 232 LEGAL ASPECTS OP THE not unnecessarily to attempt, to draw a line that shall clearly dis- tinguish works of necessity from those that are not." 1 It seems, indeed, to be pretty generally conceded that "necessity, like charity, is incapable of definition at once accurate, and sufficiently compre- hensive to accomplish the object of this enactment," 3 for "no one ought to expect sharp definitions of legal duty on such a subject."* Nevertheless, from the mass of judicial expositions of the subject, some canons of interpretation may be plausibly framed. 1. The first of these is that, startling as it may appear, the Sun- day law is one thing for one man, and another thing for another. It has been considered the great glory of our system of jurispru- dence that it is no respecter of persons; but it has been expressly said, in reference to the Sunday law, that necessity may be one thing for the savage, and another for civilized man, and (sic) one thing for the rich man, and another thing for the poor one ! And again : " The individual condition and necessities of each man may go far to determine whether it is his duty to labor on Sunday to save property from destruction. The saving of a piece of property to one man might prevent great misery and suffering to himself and family — to another it might be of no consequence." 4 2. Though the necessity must be "imperious," 'yet it is certain that it need not be " absolute." 6 And " it will not do to limit it to dangers to life, health or property, which are beyond human foresight, or control." ' But it is sufficient that the act is one " morally fit and proper to be done on the Sabbath ;" 8 though it has been noted that *' this phrase may itself require some explanation." * 3. It is not enough that the act is merely " convenient ; " l0 that it 1 McGatriek v. Wason, 4 Ohio 566 * Hetmersdorfs Case, 25 Tex. 597 (1855). (1888). 'Mullet Case,76Ind.310,312(1881); 'Bennett v. Brooks, 9 Allen (Mass.) Dinsmore v. Police, 12 Abb. (N. Y.) N. 118 (1864) ; McOlary v. Lowell, 44 Vt. Cas. 436 (1882) ; Johnston's Case, 22 Pa. 116 (1881) ; Johnston's Case, 31 111. 469 102 (1853). (1863). 'Nesbit's Case, 34 Pa. 398, 408. ^Sampson's Case, 97 Mass. 407 (1867). * Whitcomb v. GUman, 35 Vt. 297. 1° Phillips v. Innes, 4 CI. & F. 234 t Ohmer's Case, 34 Mo. App. 115 (1837); Jones v. Andover, 10 Allen (1888). (Mass.) 18 (1865) ; Johnston's Case, 22 *Flagg v. Milbury, 4 Cash. (Mass.) Pa. 102 (1853); Allen v. Duffie, 43 243 (1849). Mich. 1 (1880). FIRST DAY OF THE WEEK. 233 Is more convenient or profitable if then done, or than it would be to defer, or omit it ; * or that it is advantageous for business. 3 4. Yet the necessity may grow out of or be incidental to a par- ticular trade or calling;' or, as it is said, may arise from the "exi- gencies of society or trade," and Judge Thurmau, in so holding, observed : " In using the expression ' exigency of trade,' I have been speak- ing of trade generally, and not of a necessity created by a particu- lar contract a man may have made. It is true that a man might be ruined by a failure to deliver an article he had contracted to deliver, if he could not ship it upon a Sunday, and this might be without any fault of his ; in which case, it would become the duty of the court to consider whether he could save himself only by a violation of the law. And when that question shall arise, it may possibly be found difficult to say that a man may lawfully labor all day to drag a sheep out of a pit, and yet cannot perform one-tenth of that labor to save himself and his family from pecuniary destruction — that he may lawfully work to save one dollar's worth of property, in the shape of an animal, but that he violates the law, if he save all his property by fulfilling his contract." 4 But in Indiana the loading of a vessel was held not a work of necessity, and the court said : " If the vicissitudes of trade and speculation were allowed to fix the rule as to what are works of necessity, there could be no ob- servance of the Sabbath. There are, as a general thing, dangers attending every enterprise, which may be avoided by expedition ; but the Sabbath is not the day for common labor, although by such labor dangers may be avoided." 6 Yet it was later observed in the same state that " it is the exigencies of the object to be accomplished that determines to a great extent the means to be resorted to." 8 1 Sampson's Case, 97 Mass. 407 (1867). gard the "saving of necessity" as one 'Davit v. Somerville, 128 Mass. 59 which might well be treated as "void (1880). for uncertainty." In this case, the 'Hennersdorf's Case, 25 Tex. 597 question was whether the danger of a (1888). closing of navigation by cold weather *McOatnck v. Wason, 4 Ohio 566 justified loading a vessel, and it was (1855). In the course of his able and held that it did. learned discussion of the subject, Judge 6 Pate v. Wright, 30 Ind. 476 (1868). Thurman incidentally affords strong e L. & N. B. JS.'s Case, 89 Ind. 291 support to the position of those who re- (1882). 234 LEGAL ASPECTS OF THE 5. There is no doubt that necessity may be determined by custom. The court in Pennsylvania said: "The law regards that as necessary which the common sense of the country, in its ordinary modes of doing its business, regards as necessary." 1 And work may be a necessity in one state which is not so in another. 2 So, it was said in Indiana : " "We are not to seek the physical, meta- physical, philosophical, scientific, moral, or theological meaning of the word ' necessity,' but its legal meaning, as applicable to the rights, duties, and conduct of men."* And in Kentucky, "We shall adopt the language in its construction to the manners, habits, wants and customs of the people it is to affect ; and, in many cases, the rights and duties of those charged with a public or private duty, and the obligation they are under to others must also be considered."* So, among lawful things is " supplying the ordinary demands of our physical natures." 6 But, on the other hand, though " fuel, and food, and clothing are not forbidden, yet the usual means of obtain- ing them, by merchants, manufacturers, carriers, farmers, gardeners and laborers are forbidden." 6 6. In Texas, one may engage in " such labor as is a necessary incident to the accomplishment of a lawful purpose;" 7 and it was laid down in Indiana that " the purpose being lawful, the labor was lawful." 8 And again, it was said that lawful labor was "such as may be necessary to the accomplishment of a lawful purpose under the circumstances of any particular case." 9 And this doctrine was afterwards twice endorsed. 10 But it was finally repudiated, as " a rule which cannot be practically applied without nullifying the law." 11 7. " Generally speaking, it ought to be an unforeseen necessity, or if foreseen, such as could not reasonably have been provided against or foreseen." 12 1 Nesbiea Case, 34 Pa. 398 (1859). 'Crocket's Case, 33 Ind. 416 (1870). ■'Sundstrom's Case, 25 Tex. 133 9 Wilkinson's Case, 59 Ind. 416, 417 (1888). (1877). *Edgerton's Case, 67 Ind. 588 (1879). ^Edgerton's Case, 67 Ind. 588, 590; 4 i & N. R. B.'s Case, 80 Ky. 291 Carver's Case, 69 Id 61, 67. (1882). "Mueller's Case, 76 Ind. 310 (1881) 5 Johnston's Case, 22 Pa. 102 (1853). li Ohmer's Case, 34 Mo. App. 115 "NesbU's Case, 34 Pa. 398. (1889). , Hennersdorfs Case, 25 Tex. 597 (1888). FIRST DAY OF THE WEEK. 235 8. It must not be the party's own creating. Thus, where an in- jured plaintiff had been traveling to meet a letter which would inform him whether or not he would have to go to a certain point to meet an invalid sister, no questions were made as to his errand's being one of charity, but it was held an insufficient defence "that it was more convenient for the plaintiff to postpone his traveling to obtain the letter from his sister, in order that he might perform his private business." 1 The same principle, it would seem, might well apply to the purchase of bread, milk and many other articles, which may be " kept over," with more or less trouble. So a liquor-drinker (and, apparently, a tobacco-smoker — query, chewer, also?) must anticipate his wants by previous purchases."' 9. And, finally, the act need not be a work of necessity to him who does the labor, for " if so, why protect the apothecary who sells his medicines for the relief of the patient, or the dairyman who fur- nishes the milk for his customers, or the hotel-keeper who furnishes his guests with food and lodging?" 8 But this would seem not to be the modern English doctrine. Where the question was whether a barber could compel his apprentice to shave customers on- Sunday, it was said, " the necessity contemplated was a necessity of the per- son who worked, and not of him who compelled the work." 4 And yet, in an earlier case, where a baker was charged with baking meats, Lord Mansfield "hinted his opinion that the Sabbath would be much more generally observed by a baker staying at home to bake the dinners of a number of families than by his going to church and those families, or their servants, staying at home to dress din- ners for themselves." 6 And afterwards, Ashhurst, J., said: "The case of bakers, though not particularly mentioned in the exception of the act (29 Car. II.), is within the reason of it. Though, by this means, some few journeymen bakers are kept to work on a Sunday, it is for the general convenience of the public, because it enables the rest of the community to attend public worship, which they could not have an opportunity of doing, if they had no means of having their dinners dressed from home." 6 1 Butcher r. Fitchburg R. R., 131 ^Phillips v. Innes, 4 CI. & F. 234 Mass. 156, 158. (1837). 'MneUei>s Gate, 76 Ind. 310 (1881). i CMa Case, 2 Burr. 785 (1759). *L. & N. R. R.'» Case, 89 Ind. 291 • Yomger's Case, 5 T. E. 449. (1882). 236 • LEGAL ASPECTS OF THE II. Tbaveling as a Necessity — The Principle. The necessity here need not be physical. 1 But is, " to a great «xtent, determined by its moral fitness and propriety." 2 And " rid- ing for exercise " is lawful in Maine ; to hold otherwise, it is said would be " contrary to the letter as well as the spirit of a statute which expressly excepts from its prohibition works of necessity or ■charity." 3 And, in New York, it was said in this connection that " the evident object of the statute was to prevent the day from being employed in servile work, which is exhausting to the body, or in merely idle pastime, subversive of that order, thrift and economy of health and substance, which is necessary to the preservation of so- ciety. It was never intended to prohibit such a use of the day as would be conducive to the health and necessary recreation of the •citizen." 4 Which would seem to throw either on court or jury the burden of settling just how much and what kind of recreation is necessary for the individual citizen who may chance to be indicted for " desecrating the Sabbath." It seems that the necessity may be one thing at one time and another at another, for " the change in the habits and customs of the people, and the mode and character of transportation and travel, makes that a necessity at this day that half a century since would not have been so regarded." * How far is the party's belief in the necessity of the travel a justification of it? It was said in a civil case in Vermont that " the necessity for travel- ing must be a real, not a fancied, necessity. It is not an honest be- lief that a necessity for traveling exists, but the actual existence of the necessity, which renders traveling lawful." 8 But in Connecticut, where the owner of a hack was charged with allowing persons to travel in it " not for necessity or charity," it was held that, if he really believed a case of necessity or charity existed, he was not criminal. 7 It should be noted that this was a case under a special l Knoi?s Case, 6 Mass. 76, 77 (1809). 'Landers v. B. B. Co., 13 Abb. (N. 2 Feital v. Middlesex B. B., 109 Mass. Y.) Pr. (u. s.) 338. 398 ; Smith v. Boston B. B., 120 Id. « L. & N. B. B.'s Case, 80 Ky. 291 490 (1872). (1885?). 'Sullivan v. Maine Cent, B. B., 19 "Johnson v. Irasburg, 47 Vt. 28 Atl. Rep. 169 (1889). (1874). Myer's Case, 1 Conn. 502 (1816). FIRST DAY OF THE WEEK. 237 statute forbidding proprietors of coaches, &c, to allow travel in them, except for " necessity," &c. Perhaps it is reconciled with the Vermont doctrine, which was applied to the general statute against work, &c., in the proposition that the responsibility of the carriage- owner is primarily determined by his information as to the hirer's purpose ; but, having learned this, in letting his carriage, he takes the risk of that purpose being considered a proper one by the law. This case leads us to another branch of our subject. Closely con- nected with the question of a person's right to travel on Sunday, is that of the right of another to transport him. We have seen al- ready that the necessity need not be on the party, doing the labor, but it is sufficient if his labor be necessary for another. Thus, a woman visiting at plaintiff's house on a cold, windy Sunday in De- cember, informed him that she had to go home that night, a distance of two miles. He thereupon took her home with his horse and sleigh. Held, that the act was not unlawful, it' being justifiable on the ground of necessity or as a deed of charity ; and plaintiff was not precluded from recovering for damages caused by his horse slip- ping on a street. 1 The conclusiveness, if not the application, of this test, in the case of a common carrier, has been disputed in Pennsylvania. A person was tried in that state for running an om- nibus, and the court held that he was a common carrier, pursuing his ordinary occupation, and the motives of his customers could not determine the character of his business, which was declared to be a worldly employment, actually contributing to idleness, dissipation and disorder (sic). And the defence 'that the travelers might be riding to church or the cemetery was denounced as " a specious pre- text, to make the most of it, to cover up a palpable violation of the law," for, though it was admitted that, " had the persons riding to- church, or the cemetery, been prosecuted, they might have alleged a proper and necessary work, or had the defendant been engaged specifically in carrying them and running his omnibus for no other purpose, he would have been blameless; yet, granting that the parties in the omnibus were lawful travelers, the driver was engaged in furnishing them contraband means of conveyance." 8 And this 1 Buck v. City of Biddeford (Me.), 19 ' Johnston's Case, 22 Pa. 1Q2 (1853). Atl. Bep. 912. Black, C. J., and Lewis, J., dissented. 238 LEGAL ASPECTS OF THE was reiterated later and extended to horse ears. 1 And the court thus dealt with another principle considered above : " It is said judicial construction has established that traveling is not a violation of the act, and then it is argued, with an appearance of logical precision, that if the end be legitimate, all the means which are appropriate, which are adapted to that end, may lawfully be employed to carry it into effect * * * the conclusion, however sound in some cases, is too broad for this occasion." a But later, in the same state, it was said that a man might drive his own family to church, or a hired man his employer's family, though they be not "travelers;" this on the ground of uniform custom.* And, finally, the necessity of horse cars was recognized, as well as that of steam cars. 4 The New Jersey prohibition of traveling, except for necessity or charity, has a proviso that a railroad may "run one train each day for the accommodation of the citizens of the state." In a suit by a party injured, the court said that to limit the act to the carrying of passen- gers in such trains traveling from necessity or charity would prac- tically make it a vain one ; that the statute was designed to amend the old law in its total prohibition of general traveling, and that it was the evident legislative intention to permit the use in ordinary travel of the specified trains. 6 III. Traveling as a Necessity — Particular Journeys. A party who proceeded in a street car from Charlestown entirely across the city of Boston, in which he resided, to Roxbury, on the opposite side, was held to have been traveling, and not from neces- sity or charity ; the facts being that he bad left Boston on the morn- ing of the same day, and spent the greater part of the day in Charlestown, for the purpose of collecting a debt. 8 " It would be erroneous to rule, as matter of law, that traveling for the purpose of attending a Spiritualists' camp-meeting is not within the excep- tion." ' A party going to see his " boss," with the view of induc- 1 JeandelVs Case, 2 Grant (Pa.) 506. "Smith v. N. Y., Sea., 46 N. J. L. 7. 2 Id. 114. ^Staunton v. Met. B. Co., 14 Allen 3 Nesbit's Case, 34 Pa. 398. (Mass.) 485 (1867). *Sparhawk's Case, 54 Pa. 401 (1867) ; ''•Feital v. Middlesex B. B., 109 Mass. A. & S. B. R. v. Rem, 55 Ga. 126 398. (1875). See, also, L. & N. B. B.'s Case, 88 Ky. 291 (1582). FIRST DAY OF THE WEEK. 239 ing the latter to change his hours of labor from night to day-time, is not traveling from necessity. 1 A woman lived at Chelmsford, but was temporarily employed at Lowell. She went on Saturday morning to visit her children in Chelmsford, where she found one of them sick, and she attended it till Sunday evening, when it was better. A doctor lived near her, but she did not call him. Sunday evening she started for Lowell, designing to get a medicine she had previously tried with success for a same complaint in the child, not intending to go back to Chelmsford that night, but to send the physic by another. Held to be traveling from necessity. 3 A party who walked from his home in Boston, for the purpose of ascertain- ing from the person of whom he had hired a house whether it had been cleaned so that he could move into it with his family next day, was held not to have been traveling from necessity, or charity. 8 A maid-servant, without any fault on her part, was prevented from returning from her mother's house to her employer's on Saturday night, and returned early on Sunday morning for the purpose of preparing needful food for her employer's family. This was held a work of necessity, which justified her in traveling, and her employer or his man-servant in driving her over in the former's carriage. 4 A party may travel to go and return from a funeral, and need not re- turn by the same, or the shortest, route, unless the road taken was so unreasonable and inconvenient as to show a purpose outside of the alleged necessity, or charity ; but cannot go to another place, not upon the return route, to enable his companion to make a social call, or go to a remote place, occupying a greatly increased time, or make an additional journey for the transaction of business. The court added that if he had taken his companion from her residence, and gone with her to make the visit, without attending the funeral st all, it would have been a clear violation of the statute, and that it made no difference that the determination to make that journey was formed after he had attended the funeral, and was about to re- turn. 6 Where a party, traveling on business, expected that a letter to him would reach Boston in a week, informing him whether he 1 Connolly v. Boston, 117 Mass. 64 1 Orosman v. Lynn, 121 Mass. 301 {1875). (1877), 2 Gorman v. Lowell, 117 Mass. 65 6 Davie v. Sumerville, 128 Maes. 594 {1875). (1880). 'Smithy. Boston, 120 Mass. 490 (1876). 240 LEGAL ASPECTS OP THE would have to go to another place to meet his sister, who was ill, for the purpose of taking her home, or whether a friend of hers- would escort her thither, and continued his business travels for a fortnight, and, missing a connection of trains, by which he would have reached Boston Saturday night, took passage on a freight train Sunday morning, and was injured ; in a suit against the railroad company, it was held that his traveling was not an act of necessity. 1 A party (" who had no wife living," says the reporter,) may travel to see his sons. 2 Where a man and his wife were going to Staten Island for the benefit of a sick child, " that he might have the air,"' it was held to be clearly a work of necessity,' and duty, on the part of the parents ; and the court added : " Kelly and Maddern, it is- contended, were on a pleasure excursion, but it was also for the purpose of recreation and rest, and our courts have not yet decided that such rest is unnecessary to the overworked laborer." * But, later, a party who was going from New York to Staten Island for " innocent recreation and the enjoyment of the sea air " was held not to be going in a case of necessity, or charity, or for any purpose within the exceptions of the New York statute. 4 An arrangement between a plaintiff and her brother for traveling on this day, so that the latter might have all the week-days for other work (he being a teamster and jobber at farming, and the like), did not con- stitute a necessity. 6 Where a party hired a horse to convey an officer, who was taking a prisoner to jail, under legal process, the' purpose was held one of necessity. In this case the hirer was not himself an officer. 6 IV. Agricultural Work, as a Necessity. Where a party worked as a shoemaker, in co-operation with others, who were obliged to remain idle, unless his work was promptly performed, when ready for him, and expected to go to work at shoeruaking on Monday, but worked in his own garden Friday and Saturday, and on Sunday " hoed " a few hills, which l Butcher v. Filehburg B. R., 131 Mass. i CarroU v. Staten Island B. B., 58 156 (1881). N. Y. 126 (1872). 2 Johnson v. Irasburg, 47 Vt. 28, 32. *Holeomb v. Danby, 51 Vt. 42* 'Landers v. B. B. Co., 13 Abb. (N. (1879). Y.) Pr. (n. s.) 338. "Fisher v. Kyle, 27 Mich. 454 (1873). PIEST DAY OF THE WEEK. 24T had been left Saturday evening unfinished, in a very bad condition- and suffering for want of hoeing, the court said there was nothing to show necessity. 1 In Vermont, it was held necessary to work in making maple sugar " in order to save a great waste of sap. a Where a farmer's watermelons were ripening and decaying much faster than, with the facilities and labor at his command, he could get them to market, the court held that he was justified in starting with a wagon-load of melons for his market on Sunday, the market being twenty-six miles away, though he might, by getting up at midnight on Sunday night, and driving all the remainder of the night, have- reached the town in time for the Monday market. 8 Feeding hogs- is work of necessity, and hauling corn for that purpose, where "ac- cording to the practice of good husbandry," &c., is lawful. 4 Where the defendant, having no reaper, joined with a person who had, and they commenced cutting wheat, beginning with the ripest, and the defendant's wheat was prevented from being cut by a rain, and was- "dead ripe," so that another rain would have seriously injured it,, its cutting was held a work of necessity. 6 On the other hand, in Massachusetts, it was said : " The work was gathering and taking away sea-weed from a beach, on which the tide had deposited it, and from which the next tide might sweep it away. The supposed! necessity arises from the fact that the sea-weed was valuable, and that, if not then secured, it might be lost. We think that taking the sea-weed was not a necessity, within the meaning of the law."' The court added : " If a vessel had been wrecked upon the beach, it would have been lawful to have worked for the preservation of the property, which might be lost by delay. But if the fish in the bay, or the birds on the shore, happened to be uncommonly abund- ant, it is equally clear that it would furnish no excuse for fishing or shooting. How it would be if a whale happened to be stranded on the shore, we need not determine. Whether a case wholly excep- tional, and involving a large amount of accessible value, would re- quire any modification of the rule is not now in question. The deposit of sea-weed upon the shore by the waves, if not constant, 1 Josselyn's Case, 97 Mass. 411 (1867). 3 Wilkinson's Case, 59 Ind. 416 (1887). » Whilcomb v. Oilman, 35 Vt. 297 *Edgerton's Case, 67 Ind. 588 (1879). (1862). See, also, Morns' Case, 31 Ind. "Turner's Case, 67 Ind. 595 (1879). 189 (1869). 16 242 LEGAL ASPECTS OP THE is frequent. It is not property which has been reduced into posses- sion, and afterwards been exposed to loss or hazard. There was no certainty, or strong probability, that equally good opportunities of gathering it would not often recur on other days. The collecting of it on the beach, as it is found there from time to time, is one of the ordinary branches of agricultural labor." l A similar view was taken in Arkansas. In this case, for a week previous to cutting his wheat, the defendant was " swapping work " with his neighbors, who were afterwards to help him. He was poor, had no cradle of his own, and waited to get one from his neighbor, which he did Saturday night. His wheat was very ripe, and waiting, and from appearance, had been ripe enough to cut four or five days before. Held, that instructions that " he had a right to preserve his property from waste on the Sabbath, and, if it was likely to be lost from un- forseen or unavoidable circumstances, he was justified in laboring to preserve it," and that " if the jury believed he could not have saved it on any other day, and it was necessary either to do so on, Sunday, or suffer it to be lost, if correct, were abstract, and well cal- culated to mislead the jury; that there was not a necessity for the work, under the statute, and that the husbandman should look for- ward to the ripening of his grain as an event which must happen, and make such timely provision for the harvest as not to violate the Sabbath." » V. Manufacturing, &c, as a Necessity. " Large manufactories, blast-furnaces, salt-works, oil-wells, and other pursuits wherein heavy machinery is used, and where a stop- page is attended with loss or inconvenience, are seldom interfered with in their operations by legal restriction." 8 And it is lawful to replenish the fires of a blast-furnace, which could not otherwise be maintained, for "the use of iron is essential to civilization."* And the manufacture of beer is lawful, and working at a malt-house, in turning a heap of barley, for the purpose of malting the same, as a neglect to handle the barley for twenty-four hours would spoil it* 5 ^Sampson's Case, 97 Mass. 407. ^Manhattan Co. v. French, 12 Abb. 1 Oofs Case, 20 Ark. 289 (1859). (N. Y.) N. Cas. 446. 'Carver's Case, 69 Ind. 61 (1879). "Crocket's Case, 33 Ind. 416 (1870). FIRST DAY OF THE WEEK. 243 Where the work was digging out sand from a wheel-pit, in order to enable a pump to be used to clear it of water, which frequently settled into the pit so as to impede the action of the wheel, and the only reason for doing the work was that it would obviate the neces- sity of stopping the machinery in future, the court said : " The whole import of this is that it was more convenient and profitable to repair the wheel-pit than it would be to do it on any secular day. This does not make it a work of necessity or charity." And it held that the fact that the plaintiff (who was suing the defendant for in- jury sustained from his negligence) was doing the work gratuitously, at the defendant's request, " did not take the case out of the letter or spirit of the statute." l VI. Miscellaneous Instances of Necessity, &c. Baking meats by a baker is lawful.* In a case arising in 1880, baking bread was said to be necessary in California, though that was not the principal point involved. 8 In Indiana, it was once held that a hotel might sell cigars, as they were a necessity to those who had acquired a habit of smoking them. 4 Later this decision was expressly repudiated, though the case was one where the sale of cigars, &c., was made in an ordinary store, and not in a hotel. The court said that the monopoly of the tobacco trade on Sundays which would result to hotel-keepers " ought to condemn the interpretation ■of the law that leads to it. Whether the hotel-keeper may provide and furnish cigars and tobacco on Sunday to his traveling guest, who may reasonably be supposed to have had no opportunity to supply himself for the day, need not be decided, as the question is not before us. But that he may not keep open a stand, bar or other place for the purpose of general sales to resident customers, or boarders, who, like other citizens, ought to anticipate and furnish a supply for their Sunday wants, seems clear. There should be no 1 McOralh v. Merwin, 112 Mass. 467 does not appear in the report of this ■(1873). case whether the party purchasing the ' Cox's Case, 2 Burr. 785 (1759); cigars was a guest of the hotel, or not ; Youngrfs Case, 5 T. K. 449 (1793). but from the drift of the decision, and 3 Westerfieltfs Case, 55 Cal. 550, 551, especially the last paragraph, it may £52. he inferred that the court would not re- *Carver's Case, 69 Ind. 61 (1879). It gard the question as material. 244 LEGAL ASPECTS OP THE privilege allowed to the hotel-keeper of selling to his boarders and resident customers which is not allowed to the keeper of a board- ing-house or restaurant, or to other classes of dealers." And of the claim that smoking was a necessity to those who had acquired the habit, the court said : " Upon what principle the court can take judicial knowledge of such a fact, if it be a fact, is not plain. It is hardly probably that the law-makers contemplated that the crav- ings of a morbid and unnatural appetite should be deemed to create such an imperious necessity for appeasement as that the general re- quirement for Sunday observance should yield to it, while the sup- plying of the ordinary necessities of life, like food and clothing, by purchase and sale out of the stores, should be forbidden." The court added that a drink was necessary to a drinker in the same sense in which a cigar was so to the smoker, but the sale of liquors was specifically forbidden, and " he who uses them must, therefore, . anticipate his necessity, and provide beforehand a supply for Sun- day use. If it were conceded that an appetite or craving creates a necessity, it does not appear that Smith was suffering, or bought, for the purpose of immediate use. For all that is shown, he may have made the purchase as a matter of convenience only, in antici- pation for future wants." * It has also been held in New York that " so broad a construction of the word ' necessity ' as to include cigars would abrogate the statute." a So in Missouri it was said that the use of an article as a " drug or medicine " under such a statute must be " a general or primary one ; " and that tobacco is not such because it " may have some medical or curative qualities,, and be used occasionally by the medical profession," being, in fact, "sold as a luxury." And the court said of the position that tobacco was a necessity to its habitual users, " Conceding this to be correct, the evidence shows that defendant exposed his cigars to general sale, and did sell them to any and every one who applied to- purchase, and there is no evidence that defendant only sold to those who had acquired the habit of smoking to such an extent as to- make a cigar a ' necessity,' nor is there any proof that the parties to whom the cigars were sold had no opportunity to purchase a supply the day before." The court added : " Tobacco is not ' food/ l MueUer>s Case, 76 Ind. 310 (1881). • Anonymous, No. 3, 12 Abb. (N. Y.) N. Cas. 458 (1882). FIRST DAY OF THE WEEK. 245 Food is a substance which promotes the growth of animal or •vegetable, life. There is no nutriment in tobacco. It is merely a narcotic. It is not generally regarded as an article of food. It •could hardly be said that an indictment for selling unwholesome food could be sustained by proof that defendant sold a bad or un- wholesome cigar." * It was held in Massachusetts, in 1865, that a •temporary inconvenience, through a party's inability to supply meat on Monday to his usual customers, did not justify his servant's mak- ing delivery of the same on Sunday. 8 Where a contract of sale re- quired the delivery of flour on board a steamer, it was held in Indiana (1868) that in the absence of a contract to deliver it on Sunday, performance could not be demanded on that day, on the .ground that a delay would subject the vendee to a pecuniary loss ; there was held to be no " moral fitness " in such a require- ment.* Forwarding a shipment of cattle by railway has been 'held a work of necessity. 4 The seizure of swine found at large, by :a hogreeve, is work belonging to a secular calling, and not of necessity, or charity, and makes the party seizing a trespasser. 6 " It is the duty of overseers of the poor to make immediate provision for the relief of the sick and suffering paupers under their care, and 'the performance of that duty is not a violation of the letter or spirit of the statute." 8 An attorney's clerk cannot recover, over and above his weekly salary, for labor in the office on Sunday, for this is no work of necessity, or charity. 7 A barber cannot compel his apprentice to work on Sunday. 8 In this case, the Magistrates of Dundee's Court of Sessions said that a barber's apprentice was Abound to work up to ten o'clock only on Sunday and not bound to work at wig-making at all on that day. Lord Brougham said, in the house of lords, on appeal : " This is rather making an act of parliament than construing an act." 9 The Massachusetts court de- clined " to say, as a matter of law, that it was not morally fit and 1 Ohmer's Cage, 34 Mo. App. 115 "Aldrkh v. Blackstone, 128 Mass. <1889). 148, 151. 'Jones v. Andover, 10 Allen (Mass.) ' Walts v. Van Ness, 1 Hill (N. Y.) 18, 19. 76 (1841). 'Pate v. WHght, 30Ind. 476, 48L 'Phillips v. Innes, 4 CI. & F. 234 *P., W. B. v. Lehman, 56 Md. 209 (1837). <1881). 'Id. 246. "Frost v. Hull, 4 X. H. 153 (1827). 246 LEGAL ASPECTS OP THE proper " to shave at his own house an old man " whose shoulder had been injured and who could not well shavq himself." 1 It is held? in Indiana that the necessity of a Sunday shave is for the jury under instructions,* while it was the opinion of an Ohio judge at nisiprius that though shaving may be a convenience it is not at necessity. 8 A had worked for B, and there was due him about $50. As A was about to leave, and B had not on hand the means of im- mediate payment, it was arranged that A should draw an order on> B in favor of C, which, being accepted, C was to pay A. This ar- rangement was carried out, and C brought suit on the order (1880)- Recovery was refused, on the ground that the work was one neither of necessity nor charity. 4 A creditor overtaking his absconding debtor in the evening, need not wait till Monday to take a bill of sale ; for watching the debtor the whole night might amount to a greater desecration of the day. 6 The execution and delivery, of a promissory note is not prima facie a work of necessity and charity. If any special facts exist to make it such, they should be introduced in evidence. 6 Where a man about eighty-five years of age signed a will, the court was not prepared to say it was not a work of neces- sity, as, though he was in ordinary health, " death was certain, at the furthest, by a general law of nature, very soon, and might occur at any moment." r It has been held in New York that the publica- tion of an advertisement in a newspaper is not a work of necessity,. or charity ; and neither is the sale of the " most unexceptional re- ligious newspaper." 8 But the contrary view was taken in Pennsyl- vania, and it was said : " You must bring the Monday's issue of every daily paper within the exception, for the types are set, and all the work is done, on Sunday, whilst on a Sunday paper all the work is done on Saturday." ' It was said in Indiana : " Courts cannot declare, as matter of law, that the business of telegraphy is a work 1 Stone v. Graves, 145 Mass. 353 'Sayre v. Wheeler, 32 Iowa 55* (1888). (1871). 'Ungericht's Case, 119 Ind. 379 , JBeitenman's Appeal, 55 Pa. 183 (1889). (1867). 'SchvMe's Case, 23 Week. L. Bui. 450 'Smith v. Wilcox, 24 N. Y. 353: (1889). (1862). *Mace y.Putman, 71 Me. 238 (1841). 'Read's concurring opinion, Spar- 'Hooper v. Edwards, 18 Ala. 280 hawKs Case, 54 Pa. 401 (1867). (1850). FIRST DAY OF THE WEEK. 247 of necessity. There are doubtless many cases in which the send- ing and delivery of a message would be a work of necessity within the meaning of our statute. * * * Whether the contract is within the exception must be determined, as a question of fact, from the evidence in each particular case." And it was held that a message reading " Come up in morning ; bring all " upon its face implied a friendly invitation to visit the sender, and sending it could not be regarded as a work of necessity. 1 It has been said in Indiana that among lawful things are the usual avocations of " superintendents, engineers, firemen, conductors and breakmen, while operating railroads, laborers in depots and stock-yards, herdsmen and feeders of cattle." * And again, in the same state : " Sailing ships, running steamboats, and railroad trains,, carrying the mails, operating telegraph lines, keeping up water- works and gas-works, carrying on distilleries, breweries, and run- ning flouring-mills, are not prohibited, we believe, anywhere in the civilized world, and seldom regulated any differently than on a week-day ; and large manufactories, blast-furnaces, salt-works, oil- wells, and other pursuits wherein heavy machinery is used, and where a stoppage is attended with loss or inconvenience, are seldom interfered with in their operations by legal restriction." 3 Operat- ing an ice-factory is a necessity. 4 "The saving of a week-day for employer and employed," does not make the repair of the mill on Sunday a work of necessity in New Hampshire. 6 The ordinary domestic duties may be performed ; and persons and brutes rescued from danger, 6 as well as property. 7 Public worship, and traveling to attend it, with all incidental labor connected therewith, as the care of horses, &c., is allowable; and so with funerals and mar- riages, and all the functions of undertakers, grave-diggers, hearse and carriage-drivers, and others ; and the work of a physician, and apothecary, and of a livery-stable keeper " in large towns," and the care of hospitals, 8 and the shoeing of horses.' 1 Roger> v. Telegraph Co., 78 Ind. "McGalriek v. Wason, 4 Ohio 566 169(1881). (1855). *Edgerton's Case, 67 Ind. 588, 593. 7 Whitcomb v. Oilman, 35 Vt. 297 •Owner's Case, 69 Ind. 61 (1876). (1862). *Hennersdorf's Case, 25 Tex. 597 'Nesbit's Cose, 34 Pa. 398. (1888). 'Nelson's Cose, 25 Tex. 599 (1888). 'Hamilton v. Auston, 62 N. H. 575 (1883). 248 LEGAL ASPECTS OF THE VII. Chaeity. " Charity is active goodness. The means which long-established and common usage of religious congregations show to be reasonably necessary to advance the cause of religion are not forbidden and may be deemed works of charity, within the meaning of the statute. It is not essential that they be purely charitable ; it is sufficient if they so far partake of that character as to be recognized by the con- gregation as part of its active goodness, and are not expressly for- bidden by the statute." So, a contract of subscription to the erec- tion of a church is binding. 1 And a contract with a preacher, singer, sexton, &c, of a church, for "the support of religious societies, is in itself a charity." But " it would be unsafe to take the statute of charitable uses, 43 Eliz., c. 4, as the test of what might be done, for it enumerates many objects which are only charitable in the sense that private provision for them tends to re- lieve the general public of a burden." 2 Traveling to church is lawful.' But, where a hiring of a horse was not for necessity or charity, the contract, which was indefinite as to time and distance, is not made legal because the hirer did a kind act by conveying a young lady home who had been to meeting dur- ing the day. 4 " Charity must include everything which proceeds from a sense of moral duty, or a feeling of kindness and humanity, and is intended wholly for the relief or comfort of another, and not for one's own benefit or pleasure. That a visit to a sick child, or other near relative, is within the exception is well settled. The same rea- son extends to the case of a sick friend." And where a party was traveling for the purpose of visiting a friend whom he knew to be sick, and thought might need assistance, it was held that evidence of the grounds of his knowledge or belief was immaterial, except as a circumstance to be considered by the jury, in determining whether the real purpose of the journey was as the rest of the evi- dence tended to show.' But, in order to constitute an act of charity, 1 Dale v. Knepp, 98 Pa. 389, 392 » Taskmaker v. Edmonton, 1 Cow. (N. (1881). Y.) 354 (1721). 'Ibid.; Allen v. Duffie, 43 Mich. 1 i TiUotk v. Webb, 56 Me. 100 (1868). (1881). *Doyle y. Lynn, 108 Mass. 195 (1875). FIKST DAY OF THE WEEK. 249 the act which is done must be itself a charitable act. The act of ascertaining whether a charity is needful is not the charity ; and if a party be under an obligation to perform a contract,' which it was his duty to complete before going on a charitable journey, and for that reason perform secular labor all day Sunday, such labor would be neither necessary nor charitable. 1 In this case, it was said : ■" The same duty of ascertaining whether an act of charity towards his sister was to be done had been resting on the plaintiff for two weeks. It would be an extraordinary proposition that he could elect to do an act on Sunday which he could have done equally well on any other secular day within that fortnight, and which he had postponed because he had considered it subordinate to his secular business. Suppose he had traveled the previous Sunday, in order the sooner to finish his business, and reach Boston and ob- tain this letter, it could not be contended that traveling on the pre- vious Sunday was an act of charity. It is apparent that the plaintiff's duty to his sister was made subservient to his secular business. We are therefore of opinion that the ruling should have been given that there was no evidence which would justify the jury in finding that the plaintiff was traveling from charity." 3 The hiring, of a carriage by a son to visit a father created a legal con- tract, being in discharge of a filial duty. 8 A bail-bond, on which a prisoner was released from jail, is good, as a work not in the ordi- nary business of the security, and as an act of charity. 4 And the place or mode of the prisoner's confinement, so that he be in actual legal custody, is not essential. 5 Till. Are Necessity, Chakity, &c, Questions op Law ok Fact? Notwithstanding the elaborate attempts to define "necessity" and " charity," as used in the Sunday laws, it remains an unsettled point whether the determination of the matter in a given case is within the province of the court or the jury. , l Butcher v. Fitchburg R. R., 131 Maes. 3 Logan v. Mathews, 8 Burr. 421 156 (1881). (1824). a/d. 160. Salter's Case, 55 Ga. 244 (1875). • Weldon'8 Case, 62 Ga. 449 (1879). 250 LEGAL ASPECTS OF THE In Vermont, the validity of an exchange of horses is purely a question of law. 1 And so in Michigan with the validity of a church subscription.' And in New Hampshire with the question of " dis- turbance." After enumerating the English exceptions of " neces- sity," charity," &c, the court said these expressions are extremely loose and no certain line can be drawn, as a question of law. 8 It has been said in Massachusetts that " it is not easy to define- as a matter of law what state of facts will make traveling an act of necessity or charity, and the question should in most cases be submitted to a jury." 4 "In this case," said the court, "there is no evidence which would justify a verdict for the plaintiff." So- later, in the same state, where the question as to the legality of traveling to and from a Spiritualists' camp-meeting, it was held that "it was for the jury to say whether the meeting was of the- character claimed by the plaintiff, and whether she attended it for the honest purpose of divine worship, and religious instruction." *■ It is laid down in Indiana that what labor would be work of neces- sity, is a question of fact for the jury." And so it was said later, in the same state : " Much of the confusion and doubt upon the sub- ject has arisen probably from attempts made to determine and de- clare, as by a rule of law, that which was properly determinable- only as a matter of fact, or at most of combined law and fact." ' A purchased some fish for B and left them at C's house. Satur- day he sought B to tell him where the fish were. B, being a " Seventh day man,' was at church. Sunday, A undertook to- drive to his house, as he claimed, to notify him of the whereabouts- of the fish ; other witnesses swore that he actually delivered the fish to B. He was injured on the highway, and sued the town which was responsible for the condition of the road. He claimed that the fish were liable to injury unless put in a cooler place, but B testi- fied that the keg kept without taint, and what was not used was sweet a year after. A Vermont jury " under proper instructions " found the traveling was not necessary. 8 But, on the other hand, in 1 Lyon v. Strong, 1 Vt. 219 (1834). 6 Feilal v. Middlesex B. B., 109 Maes. 2 Allen v. Duffie, 43 Mich. 1. 398 (1872). » Younger>8 Case, 5 T. R. 447 (1793). 'Edgerton's Case, 68 Ind. 588 (1879). *Smith v. Boston B. B., 120 Mass. ''Mueller's Case, 76 Ind. 310. 490. 'Johnson v. Irasburg, 47 Vt. 28. FIRST DAY OF THE WEEK. 251 the same state, where the party suing a town on account of an in- jury received on a highway had no reason for traveling, except that she and her brother had arranged to travel some weeks before, and Sunday was fixed as the day to do so, in order that her brother might have all the week-days to work in, he being a teamster and jobber at plowing, &e., the court said it should have been ruled as a matter of law that no justifying necessity for the traveling existed. 1 Of keeping open a shop, &c, it was said in Massachusetts : " It is for the jury to decide, on the whole evidence, whether the acts were of necessity, and charity." ' In West Virginia, where a railway company was indicted for dispatching trains, it was held to be for the jury under instructions to say whether the dispatch was neces- sary. 3 So, in Arkansas, it was said to be a question of fact, whether a service, rendered by a hotel livery-stable keeper, was necessary, and proper, or otherwise." * And in Connecticut Whether the owner of a hack had reasonable ground for believing that the purpose for which it was hired of him was one of necessity, or charity, was held to be for the jury. 6 And it was said in Maine, in a case of traveling, "as a general rule, the jury, under proper instructions from the court, must determine the question from the circumstances presented to them." 6 It was held in Indiana in 1879 that the question whether gather- ing corn in the field, hauling it to a feeding-place and there feeding it to hogs was a work of necessity or not was for the j ury.' Of the case of manufacturing maple sugar, it was said in the same state, " the necessity of gathering the sugar-water as it runs is manifest, but whether the boiling of it is necessary may depend on the means of storing and saving it which the party has on hand, or under the circumstances ought to have had ready. The necessity in any such case is to be determined evidently as a matter of fact." * Where a party fled from one county into another, and was over- 1 Holeomb v. Bandy, 51 Vt. 428 *Steuart v. Davis, 31 Ark. 518 (1870). (1879). *Myer's Case, 1 Conn. 502 (1816). 'Harrison's Cage, 11 Gray (Mass.) 'Sullivan v. Maine Cent. R. B., 19 308 (1868). Atl. Bep. 169 (1889). >B. & 0. Co.'s Case, 24 W. Va. 783 ''Edgerton's Case, 67 Ind. 588 (1879). (1884). 'Mueller's Case, 76 Ind. 310 (1881). 252 LEGAL ASPECTS OF THE FIEST DAY OP THE WEEK. taken by an agent of a deputy sheriff, and in consideration of the hitter's assuming certain debts, executions for which were in the deputy's hands, &c, gave the agent a bill of sale for certain slaves, with the slaves themselves, it was said in Alabama, "whether it was necessary, under the circumstances, for the party to do what he did was for the jury, under the direction of the court." 1 ^Hooper v. Edwards, 25 Ala. 528, 532 (1850). ADDENDA. Constitutional Law. It is not a " discrimination " to require all places of business to be closed on Sunday, with exceptions, as drug stores, &C. 1 It is immaterial to the question of constitutionality that persons who " observe other days " are not excepted by a Sunday law. 2 The Sunday law is not " a local law " under the Texas constitution.* The Massachusetts view, that there can be no recovery for injuries received while traveling on Sunday, binds the Supreme Court of the United States, 6n writ of error from a court of that state, though not according with the Supreme Court's views.* The constitutional right to a jury trial does not extend to the pro- ceeding before a justice against one who works on Sunday in Vir- ginia. 5 Contracts — The Question of Completion of a Contract. Where a tenant was served on Sunday with notice that he would be charged an increased rent after his term expired, and remained in possession after that time, it was held that he was not liable for the increase. The court said : " I do not forget that the contract was not completed on Sunday. It would have arisen only by the fact that re- tention of possession was an acceptance of the landlord's proposal or demand. But in proving the contract it was essential to prove a business matter occurring upon Sunday. Without proof of the motive the retention of possession had no significance whatever. It l Seranlon's Case, 61 Mich. 244. *Busher v. Cheshire B. B. Co., 8 So. 'Scales' Case, 47 Ark. 476 (1886). Car. 974. "Sundstrom's Case, 25 Tei. App. 133 'Marx's Case, 9 S. E. Rep. 475 (1889). (1888). 253 254 ADDENDA. is unlike those cases in which a preliminary conference held on Sun- day has been merged into a contract made upon a secular day. Here the most important circumstance out of -which the contract grew was done upon a Sunday by the person who is now seeking to ■enforce it. In the present case the landlord is the actor, and he has no case against the prosecutor, unless his act of notification is recog- nized as a legal proceeding." 1 It was said in New Jersey, in 1887 : " The absolute avoidance of all contracts made on Sunday does not arise from any express words in the statute declaring such contracts void. It rests upon the statutory inhibition of all worldly employment or business on Sun- day, and comes about from the policy of the courts in refusing to recognize any act or word which, being a part of worldly employ- ment or business, is done on Sunday. I am unable to see how worldly business done upon Sunday can afford any support to a contract. Whether all the negotiations and acts which would make up the completed agreement take place on Sunday, or only a part of them, if such part is essential to the contract, the statutory prohibi- tion is encountered. In the last, as well as the first, condition of affairs, the court, to support the contract, would be compelled to Tecognize with approval the transaction of worldly business on Sun- day."' The execution of a bill of sale on Sunday, where the actual sale was on a preceding day, does not affect the sale; "it is only the manufacture of the evidence " thereof. 3 In Minnesota a deed is void if delivered on Thursday to a grantee, with the understanding that it was not to go into effect till a certain contingency, which contingency occurred on Sunday. The "con- tingency" was a conference by the grantee with his partner. It seems he anticipated its occurrence on Sunday, and accepted the deed with that view. Query. Would his expectation that the confer- ence would occur on some other day, the degree of its " necessity " on Sunday, or the fact that the contingency was one over which neither party had control, and which happened without (a) the knowledge, or (b) the aid, or (c) the anticipation of either, be material? These points serve to illustrate the beauties of a Sunday law in operation, and the honorable part such statutes play in our jurisprudence. 1 Ryan's Case, 49 N. J. L. 314 (1887). . "Foster v. Wooten (Miss.), 7 So. Eep. 'Ibid. fiOl (1890). ADDENDA. 255 It is irrelevant that negotiations were had on Sunday when the contract was completed on another day; 1 though signed and sealed on Sunday, a deed afterwards delivered is valid. 3 Contracts — Leaving Parties Where They Stand. In Mississippi the rule of law as to Sunday contracts is " absolute non-action. It will give neither party to the contract any assistance, nor listen to any complaint. It will leave the parties where it finds them." And an attaching creditor of a party will no more be helped than the party himself. 3 Though a Sunday loan might be non-recoverable, action will lie for money deposited for safe-keeping on Sunday. 4 Gases of Tort. The liability of a railroad company for the killing of cattle on Sunday is the same as if the killing occurred on a secular day. 6 By usage the receiver of a telegraphic acceptance of his offer was not bound by the acceptance unless delivered to him within twenty- four hours after the receipt of the offer. Such an acceptance was delivered to the company late on Saturday, and to come within the required time it had to be delivered to him on Sunday. The court said: "The contract to transmit the message was wholly made on Saturday, and its validity is not destroyed by a condition that in order to bind it must be delivered within a limited time, though com- pliance therewith may require a delivery on Sunday. The mere delivery of a telegram on Sunday is not an act prohibited by either statutory or common law; and in the absence of proof we cannot as- 1 McKinnesv.Estea (Iowa), 46 N. W. ^Foster v. Wooten, 7 So. Eep. 501 Eep. 987 (1890). (1890). i Sehnat v. Bigby (Minn.), 38 N. W. i Zamplin v. SHU, 77 Ala. 374. Rep. 101. 6 2%{e v. C, B. &c. B. B. Co., 60 Iowa 333. 256 ADDENDA. sume that such delivery is prohibited by the laws of Germany. The* defendant cannot set up that the compliance with the condition would necessitate a delivery on Sunday to avoid the consequences- of an entire breach of a valid and legal contract." l The family of a brakeman who was fatally injured while on Sun- day duty may recover. 2 The court said that the fact that the defective appliances which produced the injury were used on Sun- day rather than Monday " neither contributed to nor was the efficient cause of the injury." "Keeping Open," Etc. The offence of "keeping open store" is not shown by a single- sale because of sickness in vendee's family." s One who has charge and control of a " shop " may be convicted of keeping it " open," though shop and business belong to another, and it may be properly described as the shop of the former.* One who keeps his shop open and makes several sales is guilty of but one offence against the Sunday laws. 5 A druggist who sells liquor must close on Sunday.' Miscellaneous Gases of Business, Etc. A "baker" excepted under the Massachusetts statute is "one- whose occupation is to bake bread and other articles of food." The- word does not include " all who deal in the products of bakeries," and a man who " keeps a shop for the purpose of selling groceries, fancy, articles, bread, pastry and milk," is not within the exception, be- cause " he has a small stove in the rear part of his shop, in which his. i W. U. Co. v. Way, 83 Ala. 542 'Dixon's Case, 76 Ala. 89. (1887). i Dale's Case, 144 Mass. 363. 2 118 Ind. 18 ; L., N. 0. & C. B. B. Co. s Fnedeborn's Cane, 113 Pa. St. 242. v. Buck, 116 Id. 566 (1888). »ElkM Case, 63 Miss. 129. ADDENDA. 257 wife sometimes bakes a few cookies and ginger snaps, which he placed in his show cases and sold with the bread and pastry." ' One who believes that the seventh day is the " religious day of rest," but does business on that day, cannot claim the benefit of the Nebraska exception to the obligation of Sunday idleness.' Selling soda water in connection with drugs is " worldly employ- ment." 3 " Games " prohibited by the Mississippi statute are only " such sports or contests as are exhibited as spectacles to the people, and not such private diversions as card playing, chess playing and the like." 4 "Common labor," or "usual avocation," within the Indiana Sun- day law, is "not an act commonly done, but rather an uncommon act," and " no evil tendencies were growing out of such work on the Sabbath day which required legislation to correct." 6 . In Missouri " the exhibition of athletic games and sports " is not prohibited as " labor," nor are such included among " horse-racing, cock-fighting or playing at cards or games of any kind." It was said: "This court is - of opinion that this prohibition is against games of chance, or other games of an immoral tendency, and that it does- not involve a prohibition of athletic games or sports which are not of an immoral tendency, but which tend to the physical development, of the youth, and are rather to be encouraged than discouraged. Penal statutes are to be construed strictly. It is an established prin- ciple of construction, that where general words follow particular ones, they are to be construed as applicable to the things or persons particularly named. * * * The word ' game ' is no doubt sus- ceptible of being usqd in a sense large enough to embrace any con- trivance or institution intended to furnish sport, recreation or amusement. But this is not its usually understood meanings when employed in a statute which constitutes it an indictablo offence. In such a case it is usually understood to imply some species of gambling." ' 1 Crowley's Case, 145 Mass. 430(1888). will to be executed on Sunday" (pre- 'Leiberman's Case, 42 N. W. Rep. sumably writing, as well as contem- 419 (1889). plating its execution on that day), 'Splain's Case (Pa.), 12 Atl. Rep. could no more be indicted than a min- 431. ister solemnizing a marriage. Ferris v. *Rucker>s Case, 7 So. Rep, 223 (1890). Schreiner, 43 Minn. 149 (1890). l Bapp v. Reehling, 23 N. E. Rep. e St. Louis Assn. v. Delano, 37 N. E. 777 (1890). In this case the court said Rep. 284 (1889). that a lawyer "engaged in writing a 258 ADDENDA. An agreement that a party shall receive compensation for every day, " Sundays and all," while he is absent, looking after lands in a distant state, is valid. 1 It is lawful, in Indiana, to carry persons to and from a pleasure party. 8 While a druggist is allowed to keep his place of business open for "necessary purposes," he would not be allowed to engage in the sale of soaps, canes, combs, toilet-boxes and cigar-holders. " While a drug store may be kept open for necessary purposes, it is not pro- vided that the proprietor may engage in indiscriminate trade on Sunday, but evidently that he may sell such medicines, and only such, as are necessary in any other kind of business." s Miscellaneous Points of Practice, Evidence, Etc. Each act of selling merchandise on Sunday is a separate offence. 4 Railroads are included in the West Virginia provision that pas- sengers and baggage may be earried, &c, " by any person having the right to do so under the laws of the United States or of this state." 5 To shoot at a dog in wantonness and mischief is "Sabbath breaking." 6 t ' Fifteen mules were bought on Sunday and thirteen delivered; the other two were delivered Monday. In action on money counts it was held error to allow the jury to consider but liability for the two.' The defence that a note was made on Sunday may be raised by demurrer. 8 In suit on a note it is sufficient to allege in defence the date of its making without alleging that the day was Sunday. 9 In Missouri the affidavit for a Sunday attachment must state that the debtor " is about fraudulently to secrete or remove his effects." w ^■Alfree v. Gates (Iowa), 47 N. W. 'Smith's Case, 50 Ala. 159. Rep. 993. ''Foreman v. AM, 55 Pa. St. 355. *Dongaris Case, 25 N. E. Eep. 171. 'dough v. Ooggins, 40 Iowa 325. a Scranton's Case, 61 Mich. 244 'Finney v. Callendar, 8 Minn. 41. (1886). 10 Updyke v. Wheeler, 37 Mo. App. . *AlbreeU's Case, 8 Tex. App. 315. 680 (1889). ^Norfolk & W. B. B. Co.'s Case, 10 S. E. Kep. 813. ADDENDA. 259 • An indictment charging that a party was found " unlawfully at labor, and engaged in his usual avocation, to wit, selling," &c, suffi- ciently alleges that the selling was the party's usual avocation. 1 In an indictment for " keeping open shop, &c," the added words "and place of business," are surplusage. "At F., in county of'B," ■sufficiently states locality of shop; "not then and there travelers, strangers or lodgers " sufficiently describes persons served in place.' "Unlawfully did labor," &c, "by then and there hunting," &c, -was held insufficient in a Missouri indictment.* An indictment for Sunday card-playing need not name the game, 'but the name, if given, must be proven. 4 Where exercise of one's " usual avocation " in selling merchandise is charged, it is not necessary to state the kind sold, or to whom it was sold, or the price. 5 The indictment must not merely mention day of the month, but •also allege that it was Sunday." Exceptions in a subsequent statute need not be negatived.' It is sufficient to charge that defendant was "found laboring" under the Arkansas statute. 8 That the vendee received a chattel on Sunday does not conclus- ively imply that the sale was on that day. 9 Whether the evidence of delivery and acceptance on Monday is sufficient to overcome other evidence that the bargain was made on Sunday is for the jury. 10 Judicial notice will be taken of the fact that a written notice from * surety to a payee was given on Sunday. 11 It is presumed that a Sunday law was passed with the requisite ■formalities. 12 The acts of labor need not be proven to have been done on the Sunday named in the indictment. 13 The defence that a note was made and" delivered on Sunday, is available against a payee whose agent received it. on that day, and I Foltfs Case, 33 Ind. 215. °Hadley v. Sneviley, 1 Watts & S. 3 0rowlher's Case, 117 Mass. 116. (Pa.) 477. II Carpenter's Case, 62 Mo. 594. 10 Bradley v. Bea, 10S Mass. 188. * Anderson's Case, 30 Ark. 131. 11 Chrisman v. Tuttle, 59 Ind. 155. "Soughrbough's Case, 122 Ind. 208 See, also, Ryan's Case, 49 N. J. L. (1889). 1887. "Shepler's Case, 114 Ind. 194 (1887). 1 z Usenet's Case, 8 Tex. App. 177. 'Shanisehan's Case, 145 Mass. 99 li B. & 0. B. B. Co.'s Case, 15 W. (1888). Va. 362. 'Scales' Case, 47 Ark. 476 (1886). 260 ADDENDA. against the payee's endorsee, though the note was dated on a secular- day, and the payee and endorsee were ignorant of the Sunday mak- ing and delivery, and these were designed by the maker to defraud the payee. 1 It is not necessary to prove that cars run over a company's tracks on Sunday were under its control; but mere proof of the transpor- tation of part of a load of coal does not prove its assent without evi- dence of recurrence of act.* Where charges on plaintiff's day-book, evidence of his claim, show Sunday sales, he must prove the dates wrong to recover." The burden is on the party who relies on the Sunday law to show that the contract was within the " ordinary calling " of the parties.*' The Sunday law of another state must be proven in defence like other facts; production of the statute book is insufficient. 5 "Where one witness swears a deed Was delivered on Sunday, and: another that it was delivered on Sunday, a verdict in accordance with the latter statement will not be disturbed; the burden of proof is oni him who claims a Sunday delivery." Pleading, Practice, Etc. A complaint for violation of a Sunday statute need not negative- the exceptions of a later statute. 7 To the plea by a surety that he executed a note- on Sunday, the answer by the payee that he received the note on Monday in good faith and on assurance from the other maker that it was all right as to both makers, is insufficient. 8 In a suit on a foreign note, as it is not invalid at common law, the statute invalidating it must be proved. 9 The burden is on a party claiming to be within the exception of a Sunday statute to prove that he is so. 10 1 Stevens v. Wood, 127 Mass. 123. « PhiUips v. Phillips, 47 V. W. (Ind.) • Contra, Harrison v. Powers, 76 Ga. 218. 110 (1890). *B. & O. B. R. Go.'s Case, 15 W. ''Shanischan's Case, 145 Mass. 99. Va. 362. 8 Gilbert v. Voebon, 69 Ind. 372. 'Butlin v. Sogers, 11 Cush. 346. 'O'Rourke v. QRourke, 43 Mich. 58.. *Sanders v. Johnson, 29 Ga. 526. 10 Troewert v. Decker, 51 Wis. 46. » Adams v. Gay, 19 Vt. 358. ADDENDA. 261 Sunday as a Dies Non Juridicus. A coroner may hold an inquest, and commit an accused mur- derer to jail on Sunday. 1 1 Blaney's Case, 21 Atl. Rep. 547. Note to Paob 70. — The statement that " Man had not appeared to inter- fere with the unbroken Sabbath of the lives of the lower animals, when the Creator ' rested,' " applies to the Jah vis- tic account, as set out in the second ■chapter of Genesis. The Elohistic version, as contained in the first chap- ter, states that all the work of creation was completed by the sixth day. But at any rate the curse of labor, for which the Sabbath was designed as a special mitigation in favor of the "chosen people," was not pronounced at the time of the " rest." APPBNDIX. TABLE A. Chronological View of the Decrees of Councils, Emperors, Etc., Respecting Sunday Observance. 1. Ecclesiastical provisions for the observance of Sunday are found in what are called the "Apostolic Constitutions." Among these is a provision, that if any clerk fast on the Lord's day or the Sabbath on more than one occasion, he shall be deposed. If a layman do so, he shall be separated from the congregation. 1 Labbe 39. Severinus Binius, in a note on this canon, informs us that the reason why the early Catholic Church does not fast on Sundays is for the discomfiture of the unbelievers, who deny the resurrection, and spend that day in mourning and fasting. Id. 60. We also find an injunction to attend church on Saturday and Sunday, saying prayers standing, in honor of the resurrection, on the latter day (Id. 300) ; a prohibition of fasting (Id. 426) ; a warning against neglect of " assem- bling together" on Sunday (Id. 432, 31) ; another to remain at church services all of Saturday night (Id. 365), and an exception of one (Easter eve) Saturday night is afterwards made to this last requirement. Id. 371' ad fin. The " Constitutions " also contain, a canon in the name of Peter and Paul, ordering that servants work five days, but rest on the Sabbath and Lord's day, that they may attend church, because the Sabbath commemorates the creation of the world, Sunday the resur- rection (Id. 498) ; another to keep a Sabbath in honor of Him who ceased from His labor, but not His providence, in meditation on His laws, not idleness of hand, but casting out wicked desires and wrath (Id. 273), and a prayer declaring the Sabbath day is a day of rest, but observing that the Lord's day rises above it. Id. 438. It is further stated that the Deity has dedicated the " Sabbath " to the memory of His work in making the world, because on that day He rested ; and that we observe Sunday because (1) on that day He conquered death, and (2) gave us the light of life and immortality. Id. 440, 37. And we are told that we should fast on Saturday, not because God rested on that day, but because the maker of the world lay that day in the grave. Id. 361. On the other hand, " every Satur- day but one " is pronounced to be a day of rejoicing, like Sunday ; and it is declared to be sinful to fast on Sunday or spend the day in mournfulness — "moestitia." Id. 372. And, again, after fixing the fast days, it is said that Saturday and Sunday 263 264 APPENDIX. are to be kept as feast days, because the first commemorates the completion of the world and the second the resurrection; but one Saturday, the anniversary of Christ's burial, must be observed as a fast, and not a feast ; for then the maker of the world was in the grave, and the grief for His death overcomes the joy at the finishing of the world, as the Creator is greater than the creature. Id. 425, 24. As to the date of the "Apostolic Constitutions," see Smith & Cheatham Die. Christ. Ant., V. One of the reasons why scholars are generally agreed that these provisions are not of the apostolic time, is the fact that they contain these regula- tions respecting Sunday. " lis ont forge' les OonstUiUions Apoatoliques" says Vol- taire, flippantly, in his " Essay on Miracles," but of deliberate forgery there is no proof. 2. In a paper (Apologia pro Christianis ad Antoninum Pium, ch. 67) written between A. d. 139 and 150, Justin Martyr says that the assemblings of the Chris- tians for prayer, &c., took place " on the day of the Sun, as it is called ; " and he advances as reasons for selecting that day, the facts (1) that upon it God made the world, and (2) Christ rose from the dead, and (3) appeared to His disciples. In another passage, Justin observes that the elements keep no Sabbath, and adds, that there was no need of the observation of the Sabbath before Moses ; neither now is there any need of it, after Christ. Id., ch. 23. 3. In a discussion as to the proper time of celebrating Easter, which is reported by Beda (De Ordinatione Feriarum Paschalium) to have taken place at a Council held A. D. 198, it is said that the creation was begun on Sunday, and that it is blessed (1) because the light then appeared ; (2) because the Israelites then passed through the Red Sea ; (3) because the manna was then given ; (4) because Moses commanded the Israelites to observe the first day (Ex. XII., 16 ; Lev t XXHI., 7, 8), as well as the last ; (5) because of certain expressions in the Psalms, and (6) because the Lord then arose. Concerning this canon, in his letter to Clement VIII., Ferd. Mendoza observes that it applies to laymen ; that people living in the country were not at first under such an obligation, because of the danger of persecution, &c. ; but that afterwards, as Christianity spread, according to a canon he cites from Burchard (Decretorum, Lib. II., cap. 71), it was ordered that the priests should exhort the people to compel or permit their shepherds, ploughmen, &c., to come to mass, and that the arrest of Christians going to church to worship, remaining there, or returning, was forbidden in 932. 9 Labbe 593, 3. 4. At a Council held at Illiberis (now Elne), in Gaul, in 305 (1 Labbe 973, 21), it was decreed that any one remaining in a city — ("Ci vitas," see Du Cange, Glos. Med. et Inf. Lat, s. v.) — three Sundays without attending church should be arrested. At the same'Council, the erroneous supposition that a special fast was to be observed on Saturday was corrected. I Labbe 973, 26. (" Superpositio " — " a special fast." On the distinction between "fasting" and " abstinence," in the Boman Church, see McClintock & Strong's Cyclo. Bib., &c., Lit., s. v. "Fasting.") The Bishop of Orleans, in a note on this canon, refers to an early practice in the East, and parts of Spain, to make a feast day of Saturday (with the exception of the day before Easter Sunday). Labbe 995, 26. He also gives a dissertation on the name of the day (dies dominicm), and comes to the conclusion that Christians should abstain from work, " as the Apostles wished this day to be no less honored than the Jewish Sabbath." Id. 1162 acq. See Ferd. Mendoza's letter on this canon. Id. 1181, 26. APPENDIX. 265 5. There is no evidence of a Sabbatical observance of Sunday in any part of Christendom, prior to the celebrated edict of Constantine (Code Just., III., XII., 3), A. D. 321, " That all judges, people of the cities and artificers rest on the ven- erable day of the Sun ; but husbandmen may labor freely, and at pleasure, at the ■work of the fields, as it often happens that the sowing of corn and planting of vines cannot be so advantageously performed on another day, lest, by neglect of •opportunity, the bounty granted by Divine foresight be lost." (Another version of the text reads, in the first sentence, instead of "judges and people of the cities," ■"judges of the people of the cities," but the Greek follows the first reading.) 6. Constantine, however, " by a pious provision," expressly appointed markets to he held on Sunday, as we learn from an inscription in a bath rebuilt by him. Gruter's Inscriptions Antiquse Orbis Komani, CCXIV., 2. 7. Later, in the year 321, Constantine forbade any legal business except the emancipation of slaves, and suits growing out. thereof. Code Theo., II., 8, 1, and Code Just., III., 12, 2. 8." In 325, at the Council of Nicsea, it was declared not proper to kneel in prayer on Sunday, but proper to pray standing and bending the head. 2 Labbe 299, 29 and 326, 32. We find an allusion to this practice in a letter written in the same .year by Constantine to the church of Nicomedia, the reason given for standing being that it commemorates the Lord's rising. 2 Id. 69. Other edicts of Con- stantine, not in the codes, are mentioned by Eusebius, in* his Vita Const, IV., 18' 19, 20. 9. During Constantine's reign, at the Council of Laodicea, of uncertain date, it was declared that Christians ought not to "Judaize" by resting on the seventh •day, but to work on that day, preferring, as Christians, to rest, if they could, on Sunday, and if they did Judaize, they were to be " anathema." 1 Labbe 1501. 10. In about 368, under Valentinian and Volens, it was forbidden for Christians to be visited by the tax collectors on Sunday. Code Theo., VIII., 8, 1. 11. In 386, under Gratian, Valentinian and Theodosius, it was decreed that all litigation and business should cease; that neither regular judges nor arbitrators should try causes, and that a violation of these provisions should be adjudged not only infamous, but sacrilegious. Id. 8, 3. 12. In the same year giving shows was prohibited. Id. XV., 5, 2. 13. It was again made a forensic holiday under Theodosius in 389. Id. II., 8, 2. 14. Among the canons of the African Church, digested about 390, is found one against theatrical and other diversions. 2 Labbe 1085, 61. 15. Fasting was prohibited in 398 at a Council held at Carthage. Id. 1205, 64. 16. In 409, under Honorius and Theodosius, a law was made requiring the judges, on Sunday, to have prisoners brought from jail, and examine them as to their proper treatment in prison, to see that the poor among them are provided with food, and sefcl them to the bath under proper guards, and a fine of twenty pounds of gold was imposed on the judge and his clerk, and three pounds on the, provost, for neglect of this duty ; and the bishops were enjoined to admonish its performance. Code Just., I., 4, 9. 17. Among the doctrines laid down in a letter of Pope Innocent I., written in the last year of his papacy (416), is that Saturday should be observed as a fast •day, as " it shares the sadness and the joy of Sunday, and the Apostles were in great affliction on that day ; " and that Sunday ought to be observed as a most fes- 266 APPENDIX. tive day, on account of the joy it brought to the immediate followers of Christ. 2 Labbe 1246, 4. 18. At Gangra, in Asia Miner, in 424, the penalty of " anathema " was denounced against those who fasted on Sunday, Id. 423, 18, and 426, 18. 19. In 425, under Theodosius the younger, abstinence from theatricals and the- circus was enjoined, and it was declared that even the honoring of the Emperor should not interfere with this observance. Code Theo., XV., 5, 5. 20. About 432 we find, in a " Collection of Various Canons," a strong protest against the dancing women who shocked the modesty of Christian females on their way to church. 2 Labbe 1649, 27. 21. In 469, under Leo and Anthemius, it was enacted that the feast days of the Most High should not be spent in carnal pleasures, nor collecting of debts, and that the Lord's day be had in honor, and there be no executions of criminals, nor summons; nor holding to bail ; that the constable should be still, the lawyer silent, trials be suspended, the crier's voice not heard, litigants should cease from their controversies, and have an interval of agreement, and that enemies should not fear to meet each other, but feelings of regret and sacrifice should pervade their spirits, so that they should talk over their differences and arrange them ; and that no one should abuse the leisure of the day and waste his time in obscene delights, nor attend the theatre or the circus, or the wild-beast shows ; that if the Emperor's, birthday should fall upon Sunday, its celebration should be postponed, and that any one then attending a show, or any constable violating this law under pretext of public or private business, should lose bis office and his property. Code Just., III., 12, 11. 22. Burchard gives a canon which he says was passed by a Council presided over by St. Medard (457-545), by which it is forbidden to administer oaths on feast days, except for the preservation of the peace. Burch. Dec., XII., 20. (Not- withstanding, Spelman (Orig. Term 771), says this means " try law causes, or hold pleas," the context, in which it appears here in Gratian, seems to indicate a literal translation. It is given in connection with canons as to the manner of adminis- tering oaths, the age at which they may be administered, &c., and appears to. have no reference to any other legal proceedings than the actual swearing of wit- nesses. See Grotian Decret., II., 22, 5, 17. As to what were " feast days " within the meaning of this canon, see Spel. Orig. T. 78.) 23. In 506, at a Council held at Agatha (now Agde), in Gaul, it was ordered that masses should be specially celebrated on Sunday, and the people should not leave the church before the benediction. 4 Labbe 1391, 47. 24. In 511, at a Council held at Orleans, it was decreed that every bishop, unless too infirm, should attend his nearest church. Id. 1409, 31. At a second Council held at Illiberis, in 516, it was decreed that no bishop, priest or clerk should give judgment in any cause ; but on other days they might execute*judicial functions, ,except in criminal cases. Id. 1564. [25. In 529, under Justinian, the bishops were ordered to visit the prisoners on Wednesdays or Fridays' Code Just. 14, 22.] 26. In 538, at a Council at Orleans, " because the people had been persuaded that it was not proper to drive horses or oxen, or travel in vehicles, or prepare anything for eating, or attend to any matter concerning the advancement of their homes or persons (which rules evidently pertain to Jewish rather than to Christian APPENDIX. 267 observance)," it was ordained that everything previously permitted on Sunday should still be lawful j but that work at the plough, or in the vineyard, and cut- ting, reaping, threshing, tilling and hedging should be abstained from, that people- might more conveniently attend church ; and the matter was declared to be ex- clusively one of ecclesiastical jurisdiction. 5 Labbe 302, 28. 27. At the fourth Council of Orleans, held in 541, it was forbidden to any but invalids to break the Lenten fast on Saturday. Id. 381, 2. (See, also, the notes of Binius on this canon (1 Id. 94), and on the Greek in-istance that Saturday was not a fast day. Id. 984.) [28. In 549, at a Council at Orleans, prisoners were required to be visited by the- archdeacon, or propositus of the church, as formerly by the bishop, on Wednesdays or Fridays. 5 Id. 396, 20. See ante, 25.] 29. King Cheldebirt of France, son of Clovis, in 555, forbade dancing girls travelingfthrough the towns " on the approach of the Lord's day." Id. 811. 30. In 578, at the Council of Antissivodurrum (now Auxerre),'in Gaul, it was forbidden to yoke cattle, or do other work, except for good reasons ( constitute causis). Id. 959, 16. In 585, at the Council of Matisco (now Macon), in Gaul, " because Christians were rashly scorning the day, and pursuing their business as on others," the priests were instructed to admonish them of this matter ; and the laity were warned to " watch the day ; " the trial of causes was forbidden, and the " making of occasions " to yoke up beasts of burden ; the singing of hymns and attendance at the church, if there should be one near, and the uplifting of the hands and eyes to God during the entire day were prescribed; the day was declared to be perpetually one of rest, " as we know from the image or type of the- seventh day, in the law and the prophets ; " and if a pleader should violate this canon, he was to lose his case ; if a peasant or slave, he was to be well lashed ; if a priest or monk, to be excluded six months from intercourse jnth his fellows ; and it is enjoined that the preceding night be spent not in sleep but prayer. Id- 980,1. 31. About 590 Pope Gregory, in a letter to the Roman people, denounced as the prophets of anti-Christ those who maintained that work ought not to be done- on the seventh day ; declared that this would not Judaize the people ; that after Christ's coming the precepts of the law which had been figuratively announced were not to be literally observed; that to hold otherwise would involve the- restoration of carnal sacrifices, &c. ; that we receive in a spiritual sense what is written of the Sabbath ; that the word means " rest ; " and that Christ is our Sab- bath. The Pope was also particularly severe on those who maintained that a man- ought not to wash himself on Sunday, observing that on no day should we wash for mere luxurious enjoyment, but that not only the face but the rest of the body might be carefully cleansed on the first day. But he says we ought to abstain from worldly labor, and be diligent in prayers, that we may expiate the short- comings of the other six days. Id. 1511, 3. 32. In 650, at the Council of Cabillonum (now Chalon sur Saone),»" as in former canons determined," it was forbidden to do farm work, as ploughing, cutting, gathering the harvest, &c., or anything pertaining to the culture of the farm. 6 Labbe 391, 18. 33. In 680, at the third Council of Constantinople, "because (1) on this day manna fell in the desert, (2) He was born, (3) the star shone on the magi, (4) five 268 APPENDIX. thousand were fed on five loaves and two fishes, (5) He was baptized by John in the Jordan, (6) He rose, and (7) the Spirit descended on the Disciples," it was de- creed that nothing shall be attended to save prayers and masses, and the matters necessary for eating ; that Christians should meet at the Saturday night vigils or the morning office, and should bring their offerings to the mass ; and while attend- ing church, there should be no pleading or hearing of causes, or quarrels, but only prayers, and praises, and charities, and praising of God, and spiritual feasting with relations and sojourners. Id. 1206, 8. 34. In 692 it was decreed that hymns should be sung (apparently by priests only and in churches) on Saturday evening, and the festival be prolonged till daylight, that one entire day and night might be given to the celebration of the resurrec- tion. Id. 90. 35. In 721, among the " Capitularies " of Pope Gregory II., we find the pro- hibition of fasting repeated. Id. 14, 54, 10. - t 36. In the " Selections from the Canons," made by Egbert, Archbishop of York- from 732 to 767, it is said that Saturday was sanctified because of its reference to the suffering of Christ, and His rest in the grave ; that the Deity did not rest, like a tired man on the first Saturday (see St. Augustine on this point, loc. cU.), but that He is still making men and animals, as Christ says, " My Father worketh litherto, and I work," and the archbishop adds that we should keep a spiritual Sabbath on Sunday, which has been sanctified by the resurrection. Id. 1589, 36. 37. In 747, at the Council of Cloveslio, in England, it was decreed that the day -should be observed with proper respect by all ; that abbots and presbyters should remain in their monasteries and refrain from business or traveling, unless neces- sary ; and that the people be summoned to church by their priests, and be present at masses and sermons. Id. 1577. 38. In " Egbert's Poenitential " (732-736), we find that conjugal pleasures were interdicted on Saturday and on Sunday night. ("Dominica Node et in Sabbato." See Haddon & Stubb's Councils, &c., Eel. to Great Britain, &c., III., 423, 7.) 39. At the Council held at Wormatia (now Worms), it was decreed that the day should be had in such honor as already prescribed in the law and canons, and any one offending should be punished as prescribed. 6 Labbe 1794, 1. 40. Among the Capitularies of Pope Hadrian I., published 785, was a prohibi- tion against bishops and their subordinates giving judgments upon Sunday. Id. 1837, 64. 41. In 789, Charlemagne promulgated a law that all should abstain from servile "work and farm work — that is, cultivating the vineyard, ploughing, reaping, cut- ting hay, setting out hedges, digging up roots, cutting down trees, working in store or building houses ; also attending court and hunting (but wagons might be used for the army, or for food supplies or funerals) ; and he decreed that women •should not weave, or cut out or sew their garments, or work embroidery, or card wool, or beat flax, or wash their clothing in public, or shear sheap, " in order that the honor and rest of the day might be observed," and he commanded that all should attend mass. The same year the people were admonished by Capitularies of Charlemagne to attend church, and not to invite the priests to their homes to celebrate mass. 8 Labbe 990, 9. 42. At the Council of Friuli, in Italy, in 791, the " Sabbath " was spoken of as a •" day observed by the Jews and our rustics." 7 Labbe 1009, 9. At this Council it APPENDIX. 26& was commanded that the observance of Sunday should begin at the hour of the- Saturday evening office, not for the honor of the Sabbath, but for that of the Lord's day ; that Christians should abstain from sin, from all exercise of the body (" etiam propriis corryjugibus") and worldly labor, and should be busy about nothings save prayer, going to church, and ceasing from clamor and contentions. The- customs of giving charitable gifts is mentioned, and reasons, such as the descend- ing of the Spirit on the Apostles, &c, are enumerated for the sanctity of the day, which is declared to be the " Sabbath of the Lord," to which reference is made by Moses (Ex., XXXV., 1), when he says " whosoever doeth work therein shall be put to death." {"Semite opus," the canon has it, which is interpreted as meaning- " a work of sin," and it is added that other feasts are to be honored as well as- that of Sunday. Id. 1007, 13.) 43. In 794, at the Council of Francofordia (now Frankfort-on-the-Main), it was ordained that the day should be observed "from evening to evening." Id. 1061, 21. 44. The day was excepted out of the Lenten fast, and declared to be one of obli- gation, in 797, by a Capitulary of Theodolph, Bishop of Orleans. Id. 1146, 37. He also ordered, because (1) God then gave us light, (2) the manna fell in the- desert, (3) the Redeemer arose, and (4) the Spirit descended on the Disciples, that nothing else should be attended to on Sunday save prayers, masses and the matter of eating ; but he gave permission to sail and travel, if necessary, provided mass and sermon were not neglected for that purpose ; Christians he enjoined to attend the Saturday night vigils, or the matins, and to bring their offerings to the mass ; and he directed that while attending church no cause should be pleaded or heard, and no quarrels carried on, but that in the service of God every man should feast spiritually with his friends, relatives and sojourners. Id. 1142, 24. 45. In the same year Charlemagne enjoined on the Saxons of his kingdom that they should not hold meetings, nor attend to matters of public interest on Sunday, unless great necessity, or the hostility of enemies compelled them, but should attend church and be busy with sermons and good works. Id. 1132, 17. 46. During 813 no less than six canons on Sunday observance were adopted. In one, passed at the Council of Aries, it was decreed that there should be no pub- lic markets, nor pleadings, nor disputes, and that rural and servile labor should altogether cease, and only things be done which appertained to the service of God. Id. 1237, 16. 47. Again, at the Council of Mentz, it was decreed that the day should be- respectfully observed and servile work abstained from, and that there should be no markets, nor courts whereat any one should be. sentenced to punishment. Id.. 1250, 37. 48. Afterwards, at the Council of Beims, it was decreed, according to the Lord's commandment, that no one should do any servile work, or attend court, or make donations in public, or open markets. Id. 1257, 35. 49. At the Council of Tours, markets, courts and servile labor were prohibited, and Christians were enjoined to spend the day in giving praise and thanks " till the evening." Id. 1267, 40. 50. Finally, at Chalon sur Saone, "because the observance of the day was. greatly neglected," it was declared that it ought to be authoritatively regulated in accordance with the Imperial edict. Id. 1283, 50. (This was possibly intended 270 APPENDIX. •as an ecclesiastical sanction of rules prescribed by the reigning Emperor, Charle- magne. It appears from the canons that the early church insisted on exclusive jurisdiction over offences against the Sunday laws.) See ante, 26. 51. In 826, at a synod held in Home, it was decreed that none should engage in business or merchandising, except in preparing food for travelers, so that all might attend church according to their opportunity, and be busy only with prayer to the Deity, and that Christians might conveniently discharge their duty as such ; and that persons committing offences might be held to bail, or imprisoned till trial. 8 Id. Ill, 30, 31. 52. In 829, at the sixth Council of Paris, it was observed that the Pagans set apart certain days for the honor of their Gods ; that the Jews, whose manners were of a worldly sort, kept the Sabbath in a worldly fashion, and that a custom had grown up among Christians as a matter of religious observance, based on an accredited apostolic tradition, and certainly on the authority of the church, to honor Sunday (1) in memory of the I/Ord's resurrection;' (2) as it was in that day God gave light to the world ; and (3) the Holy Spirit descended upon the Apostles, and (4), " as some doctors hold," the manna fell from heaven. It was said that these things, and other things of similar character, plainly showed that this day was more to be respected than others, &c. It was further stated that some had fallen away from the Christian religion in this regard, and were in the habit of indulging in worldly pleasures on Sunday, and customs of this sort had grown to be considered as having the force of laws, and respect for Sunday had died out in a considerable portion of Christendom. Then it was told how many of the assem- bled fathers had seen with their own eyes some people who were engaged in farm work on Sunday struck dead by lightning, others stricken with " constriction of the muscles " (lockjaw), and others again suddenly consumed by fire, so that nothing remained of flesh or bones save the ashes, and how other fathers, though they had not witnessed such occurrences, had heard of them. And it was concluded, not ^unnaturally, that such miracles showed that the Deity was offended at the dese- cration of so great a day ; wherefore priests, kings and princes we exhorted to see that the day is more devoutly observed, and that there were no markets or courts held, or farm work done. 7 Labbe 1629, 50. 53. By the same Council, the faithful were admonished to pay honor and reverence to the day, since its dishonor is inconsistent with Christianity, and in- volves danger to the soul of the desecrator. Id. 1660, 5. 54. In 836, at the Council of Aquisgranum, fasting, court sessions and marriages were prohibited and the communion was ordered to be celebrated. Id. 1725, 18, 22. 55. In one of the letters of Pope Nicholas I., who took his seat in 858, it is stated that the Greek Church reproached the Eomans because they fasted on Saturday (8 Id. 471 A) ; and the practice is defended. Id. 472 B. 56. Pope Nicholas declares that the doctrine of Saturday idleness is the doc- trine of anti-Christ, and adds that idleness on Sunday and the pretermission of legal proceedings are obligatory ; still he seems to think it better for a man to work than dissipate on the holy days of the church. Id. 521, 10; 522, 11, 12. 57. Pope Nicholas answers the question whether it is wrong to engage in battle on any particular day ; and he says ordinary business should be let alone on the Christian holy days, except in case of necessity, and then it may be attended to ; APPENDIX. 271 and adds that we must trust in God, and not in the observance of days, and that it was for their superstition in this matter that thousands of Jews were slaughtered, when they refused to fight their enemies on Saturday. Id. 529. 58. In 858, among the Capitularies of Herard, Archbishop of Tyre, which are said to be taken from the canons (8 Labbe 627), is one excluding from the Easter communion those who do not fast till the beginning of the Saturday night before that festival. Id. 633, 83. 59. In 853, at the Council of Soissons, the holding of courts by officers of the state was forbidden. Id. 94, 7. 60. Conjugal pleasures during the day and night were interdicted by Pope Nicholas about 858, for, says he, " the day and night are one, and embrace twenty- four hours." Id. 538, 63. 61. Constantine's exception of agricultural labor was expressly annulled by the Eastern Emperor Leo VI. (54 Const.) in 884, and he reflects severely on the motives of his predecessor in making it. 62. In 895, " according to the Statutes of the Fathers," it was ordained that no count or secular person should hold court, or compel the people to attend him, on Sunday, but the day should be spent in vigils and prayers and offerings and given up to God ; nor should any count compel one doing penance to come to court, nor •come himself while so doing. 9 Id. 458, 35. 63. The selling of merchandise was forbidden in 928, at the Council of Gratelia, England, during the reign of King Athelstane, the penalty being the forfeiture of the goods sold and thirty pieces of gold besides. Id. 584, 6. 64. In 932, by one of the Capitularies of Pope John XL, secular courts were forbidden on this and other feast and fast days. Id. 592, 2. This canon Spelman says he takes " to be one of the foundation stones to our terms." Orig. Terms 77. 65. In 952 secular courts were forbidden. 9 Labbe 592, 2. 66. In 1009, or thereabouts, it was ordained that the feasts of the church should be celebrated on Sunday in the most creditable manner {crnn, summo kcmore magno- pere) ; that no servile work should be done, and that secular business and public trials should be suspended. 9 Id. 800, 15. 67. In 1050, at the Council of Coyaco, in Spain, it was decreed that Christians should go to church Saturday evening and Sunday morning, and should do no servile labor (at either of those periods, apparently), nor travel, except to church or a funeral, or to visit the sick, or on public business, or in case of an assault by the Saracens. Id. 1065, 6. So that the Spanish Sabbatarians were not willing to go to the extent of inaction preserved by the Jews, who allowed themselves to be slaughtered rather than fight on Saturday. 68. In 1072, at the Council of Eotomagus (now Eouen), among regulations of ■service, fasting, &c., it is declared that Saturday night belongs to Sunday. Id. 1227, 8. 69. " Because the day ought to be observed with all reverence," it was, in 1255, at the Council of Copriniacum (now Cognac), decreed that the parishioners should be diligently admonished in the churches to abstain from the public meat-houses, and celebrations and feasts, and not to go to the stores and markets to sell or buy ; and the penalty for disregarding the injunction should be excommunication ; and in order that the people might not be able to plead ignorance of these require- ments, the admonition was required to be frequently repeated. 11 Labbe 752, 36. 272 APPENDIX. 70. Secular judges were forbidden to try cases on this and other enumerated! feast days, under pain of excommunication, in 1299, at another Council of Eouen. Id. 1428, 2. 71. The Holy Saint Gregory, in his response to Marcus of Ephesus, enumerates, among the things abolished as " figures," sacrifices, the Sabbath, &c. 13 Labbe- 814 d. 72. In 1368, at the Coun*il of Lavauer, in France, it was decreed that the priests- should fast every Saturday except Christmas day, in honor of the Virgin, unless- necessity prevented. Id. 2010, 90. 73. In 1473, " following the footsteps of our predecessors," it was decreed by the Council of Toletum (now Toledo) that there should be abstinence from servile- labor, and farm and trade work, and cultivation of the fields, unless there was- urgent necessity, or an evidently pious purpose, and then only with the priest's- license. This applied to the faithful. Unbelievers were prohibited only from publicly attending to their business ; punishment to be by the proper officers ; and, if violation occurred through negligence, to be severe ; if through deliberation, to- be no less than excommunication. Id. 1452. 74. It was stated in 1581, at another Council of Eouen, that Sunday was free- from the interruptions of business, which frequently interfered with other feasts, but that processions originally religious in character had degenerated into mere- revels, and all markets and servile works were prohibited, though sacred proces- sions were still approved ; all manual labor, in city and country, was forbidden, and the dedication of churches prescribed. A striking allusion to existing abuses- is found in the declaration then made that the house of prayer should not on this- day be used as a place of trade, or secular courts ; and the complaint concerning^ the interference with Divine service by the lietors, and the auctioneers of goods. Judges were commanded to hold sessions elsewhere, and the serving of summons on people while going to or from church, or while in the same, or arresting, or otherwise annoying them at such times, was prohibited, and the want of evening masses in some places for servants was lamented. 15 Labbe 825, 5, 6, 8 ; 848, 20, 21.. 75. An interesting dissertation on the " first and second Sabbaths " is found in the address of Archbishop Stephens to the Lateran Council of 1515. 14 Labbe 263, 4, 5. 76. According to the catechism of the Council of Trent (published A. D. 1567),. " when the ceremonies of the law were removed, the Sabbath also, as a ceremonial,, was removed" (ch. IV., quest. 5), and "the sanctification of the Sabbath is a ces- sation from bodily labor and business" (Id., quest. 10) ; and "the Sabbath we ob- serve fully and perfectly when we afford to God the duties of piety and religion " (Id.) ; and " the proper meaning of the Fourth Commandment tends to this, that a man give himself up at some fixed time, so that, disengaged from bodily labor and business, he may piously worship and adore God." Id., quest. 2. The- whole of chapters I. and IV. of the catechism may be profitably read in this con- nection. 77. The above is believed to be a pretty fair summary of the regulations made by Councils, Popes and Emperors during the first sixteen centuries for the " ob- servance " of Sunday. The only " official statement " of the Continental Protest- ant doctrine on the subject is, perhaps, that found in the " Confession of Augs- burg," drawn up by Melancthon. This, in the edition of 1540, says " the Scripture- APPENDIX. 273 allows that the observation of the Sabbath is now a matter of discretion" (Scriptura concedit ut obeervatio Sabbati mime sit libera, Articuli de Abusibus, &c, VII. "De potestate Ecdesiastica"),bxit the first edition of that work, 1530, declared that the Sabbath was abrogated. " Scriplwa abrogavit Sabbatum, quce docet omnes cerimonias Mosaieas post revalatum evangelieum omitti posse." See Op. Mel. Schwet- schke, Brunsvigne, 1858, p. 409. Id., Ed. Lipsise Baumgardneii, 1866, p. 183, note. The German of the confession reads: "Denn die Kirche hat den Sabbat nicht verrucht oder aufgehoben, sondern Gott hat selbat gelernt das wir in neuem Testament nicht sollen verbunden sein zum Gesetz Mosi. Darum haben die Gos- pel den Sabbat fallen lassen, nns damit zu erlnnern das wir nicht zum Gesetz Mosi verbunden sind." First E. Cit., p. 661. 78. Luther says : "Apostolus OaJatas argwit quod dies et menses observarent et tern- pora et annos secundum, riium Judaicum, id est, externe tantum. Idea istud prceceptum cessavit proprie immo quoad perfectos Christianos quinjusto rum est lex posita." Op. Lut. Erlangen, 1844, vol. XII., pp. 70, 71. See, also, Calvin's Just. 8, 32, and Hessey, " Sunday," &c., HI. 79. The regulation of Sunday conduct attracted the attention of the English authorities at a very early period. Among the laws -of King Ina, the Anglo- Saxon, promulgated about 692, is found a provision that if any slave work on Sunday by his master's order he shall be free, and the master shall be fined thirty pieces of gold ; but if he work of his own volition, the slave shall be chastised or fined ; if a freeman work without his lord's order, he must either be reduced to slavery or fined sixty gold pieces ; and the punishment of a priest shall be twice as great. 6 Labbe 1325. 80. Among the laws of Wihtred, another Anglo-Saxon monarch, enacted in 696, was a provision that if a serf do servile labor, contrary to his lord's commands, from sunset on Sunday eve to sunset on Monday eve, he should pay his lord eighty shillings ; if he did so by his own accord, six. Haddon & Stubbs Coll., III., 235, 9, 10. 81. In 885, in a treaty made between Kings Guthrum and Edward the Elder, it was prescribed that if any one presumed to sell merchandise on Sunday he should forfeit it, and be fined twelve " uni," among the Danes, and thirty " solidi " among the Angli ; that if a freeman should work at home on a feast day he should lose his liberty, or pay a fine ; and a serf so doing should be flogged, with the same alternative ; and that if a mas.ter compelled his slave to work on such a day, he should suffer the penalty ; ordeals and oaths were forbidden, and criminals were not to be executed on the Lord's day, but captured and held. "Wilkins Leg. Ang. Sax. 52, 7 ; 53,. 9. 82. In the time of Edgar the Peaceable, about 958, it was enacted that the feast of the Sunday should be kept from the afternoon of Saturday to the dawn of Monday. Id. 77, 5. 83. In 1032, among the laws promulgated by King Canute, we find one declar- ing that wrong, though always culpable, was especially so on feast days, and days consecrated to the Lord. 9 Labbe 922, 7. 84. Another enacted that no criminal should be put to death, unless in flight or resisting arrest, and that a freeman working on feast days shall be fined enough to exempt him from the pillory. See Toller's Anglo-Sax. Die, s. v. A slave so doing should be thrashed or fined, and if a master compelled his slave so 18 274 APPENDIX. to do, the latter should be free and his master be punished. This was promulgated in the same year. 9 Labbe 933 ; 934, 10-13. 85. In 1201, Eustachius, an abbot, preached bitterly in England against the desecration of the day, and he maintained that it ought to be observed from the ninth hour (six o'clock in the evening) of Saturday until sunset on Monday. This clergyman was particularly severe on those who sold goods. 11 Labbe 24, Jin. et seq. 86. Among the laws of Edward the Confessor, was one prescribing, among other " days of peace," all Saturdays, from the ninth hour, and the whole of the next ■day till Monday, and putting within the peace people going to or returning from church, going to dedications, synods, &c. William the Conqueror confirmed the laws of Edward the Confessor. Lombard de Pri. Ang. Leg. 172. 87. In the " Customary " of the Normans is found a provision making a forensic holiday the time from nine o'elock Saturday night to sunrise the follow- ing Monday. Custom., cap. 80. 88. " Feast days " were so made by Henry I., except as to swearing fidelity to the Lord of the manor, or to keep the peace. Leg. Hen. I., c. 2. 89. A similar exemption to that under Henry I. was made by the laws of Henry II., and Sunday was declared to be no day for the payment of debts or the punishment of criminals. VI., cap. 62. 90. "Ancient laws" were confirmed by Stephen in the charter of Malmsebury. W. Malmes 179. 91. In 1552 it was enacted by the English parliament that Sunday and other days named should be kept "Holy Days" (5 & 6 Edw. VI., c. 3, s. 1); that when the evens of days on which fasting was enjoined (Id. 52) should occur on Sunday, Saturday should be the fast day (Id., s. 5) ; and that it should be law- ful for every husbandman, laborer, fisherman and every other person, on holy days, in harvest, or at any other time in the year when necessity shall require, to labor, ride, fish, or do any kind of work (Id., s. 6). 92. In 1558, all persons " having no lawful or reasonable excuse to be absent," were required to resort to their Parish church, or, " upon reasonable let thereof," to some usual place where common prayer and such service of God shall be used." 1 Eliz., c. 2, s. 14. 93. And increased penalties were provided for those failing to comply with requirement in 1582. 23 Id., c. 1, s. 5. 94. " But it was not," says Hallam, " till about 1595 that the founders of the English Reformation began to place Sunday very nearly on the footing of the Jewish Sabbath, interdicting not only the slightest action of worldly business, but even every sort of pastime." 2 Const. Hist. Eng. 286. 95. James I. published a " Declaration," dated May 24th, 1618, " to be read in churches," permitting all lawful recreations after Divine service, such as dancing, archery, May games and morrice dances, but with a prohibition of bear-baiting. It was addressed to his subjects in Lancashire, whence complaints as to the vigor- ous enforcement of Sunday observance had come to him. Hallam adds that the provision for reading this in the churches was not carried into effect, and that the declaration was not enforced till the following reign. A bill was, moreover, in- troduced "for the better observance of the Sabbath, usually called Sunday" (1621), which the king requested parliament not to pass, as being against his APPENDIX. 275 proclamation. Hallam, vol. I., p. 391, note — edition of Crosby & Co., Boston, 1861. As to the application of the name "Sabbath" to Sunday, see Hallam, vol. I., p. 389, note. 96. The catechism of the English Church contains the Decalogue, but, among the things which are enumerated as " chiefly learned " thereby, the observance of Sunday or the Sabbath is not enumerated, nor does it appear in the summary of the "duty towards God." Neither in her canons nor her homilies, does the church make any reference to abstinence from secular pursuits. See the Canon XIII., which puts all holy days on a level, and refers to religious duties, acts of •charity, &c., and the " Homily of the Time and Place of Prayer." 97. Nothing can be found in the works of John Knox indicating that he deemed Sunday recreations sinful. He drew the confession which formed, the standard of faith in the Scottish Church from 1560 to 1647, when the Augsburg confession was adopted, and it contains no mention of the duty of Sunday observ- ance. See the " Enumeration of Christian Duties Prescribed by the Decalogue," Knox's works, by Laing, II., 107. 98. But the Cromwellian Church Militant went far beyond the ideas of Luther, Calvin and Knox, and it is to them that we are indebted for " our American Sun- day," in its full and complete beauty as a day of idleness and gloom, enforced by act of legislature. 99. " Forasmuch as the Holy Keeping of the Lord's day was profaned- by a disor- derly sort of people in exercising and frequenting bear-baiting, bull-baiting, inter- ludes, common plays, and other unlawful exercises and pastimes, and many quarrels and bloodsheds had grown by the concourse of people going out of their own parishes to such disordered and unlawful exercises and pastimes, neglecting Divine service, both in their own parishes and elsewhere," it was, in 1625, enacted that there should be no meetings, assemblies, or concourse of people out of their own parishes on the Lord's day,' nor any bear-baiting, bull-baiting, interludes, ■common plays, or other unlawful exercises and pastimes used by any within their own parishes ; but of meetings or lawful sports by any within their parishes no prohibition was made. 1 Car. I., c. 1, s. 1. 100. This appears to have been designed merely as a temporary concession to the prevailing spirit of Puritanism, as it was provided that the regulations should continue in force " until the end of the first session of the next parlia- ment." But by the succeeding parliament (1627) the act was again continued in force " until the end of the first session of the next parliament." 3 Car. I., c. 4, s. 22 ad fin. 101. And " forasmuch as the Lord's day, commonly called Sunday, was much broken and profaned by carriers, wagoners, carters, wain-men, butchers, and drovers of cattle," it was enacted that no carrier with horse, or wagon-man with wagon, or carman with cart, or wain-man with wain, or drover with cattle, should travel on that day ; and that no butcher, or any other for him, by his privity or consent, .should kill or sell any victual on the same. 102. And a like continuance of the provisions of the act quoted in paragraph 99 was made in 1640. 16 Car. I., c. 4. 103. By ordinance dated April 6th, 1644, parliament required all persons to apply themselves to the sanctification of the Lord's day, by exercising themselves in the duties of piety and true religion, publicly and privately ; and that no per- 276 APPENDIX. son should publicly cry, show forth or expose to sale, any wares, merchandise, &c. ; or, without reasonable cause, travel, carry burthens, or do any worldly labor or work ; or use, exercise, keep, maintain, or be present at any wrestling, shooting, bowling, ringing of bells, for pleasure 'or pastime, masques, &c., dancing, games, sport or pastime ; and it was enacted that all having care, government, tuition or education of children under fourteen, should forfeit twelve pence for every offence- against the law committed by such ; and because profanation of the day hath been occasioned by May poles, all such were ordered to be taken down, and no more- erected, and the "Declaration" already mentioned was commanded to be sup- pressed and burned, as well as all other books and pamphlets " against the morality of the Fourth Commandment or of the Lord's day;" "provided that nothing in this ordinance shall extend to the prohibiting of dressing of meat in private families, or the dressing and sale of victuals in a moderate way in inns or victualing-houses, for the use of such as cannot otherwise be provided for ; or to- the crying or selling of milk before nine o'clock in the morning or after four in the evening, from September 10 till March 10, or before eight o'clock or after five, from March 10 to Sept. 10." Scobell's Collection of Acts of Long Parliament, pp. 68, 69; 104. King Charles I. reissued, on Octo"ber 18th, 1663, the proclamation of James. 105. In the reign of Charles II., in the year 1676, a statute was passed providing that the laws in force concerning the observation of the Lord's day and repairing to church thereon be carefully put in execution ; that all persons should apply ' themselves to the observation of the day by exercising themselves in the duties of piety and true religion, publicly and privately, and that no tradesman, artificer, workman, laborer, or other person should exercise any worldly labor, business or work of their ordinary callings (works of necessity and charity only excepted) ; that no person should publicly cry, show forth or expose to sell any wares, mer- chandises, fruit, herbs, goods or chattels ; that no drover, horse-owner, wagoner, butcher, higgler, or any of their servants, should travel or come to their inn or lodging; that no person should use, employ, or travel with any boat, wherry, lighter or barge, except upon some extraordinary occasion, to be allowed by some- justice of the peace, &c. ; but that nothing in the act should extend to the pro- hibiting of dressing of meat in families, or dressing or selling of meat in inns, cook-shops or victualing-houses for such as otherwise could not be provided, nor to the crying or selling of milk before nine in the morning or after four in the- afternoon ; that if any person traveling should be robbed, no hundred or its in- habitants should be answerable, if, after notice, pursuit was made ; and that no- person should serve or execute, or cause to be served or executed, any writ, pro- cess, warrant, order, judgment or decree (except in cases of treason, felony or breach of the peace), but such service should be void, and the person serving or executing be liable as if done without any writ, &c. 29 Chas. II., c. 7. 106. An act in reference to the sale of fish was, in 1699, declared not to pro- hibit the selling of mackerel before or after Divine service on Sunday. 10 & 11 Wm. III., c. 24, s. 14. Note. — For a discussion of the various kinds of Councils, of the authority of their decrees, and of their relations to the Papacy, the reader is referred to the introduction to Hefele's " History of the Christian Councils." The citations of APPENDIX. 277 decrees of Councils given above are chiefly taken from the compilation of the Jesuit Labbe, who died in 1667, before completing the work. Tiie ponderous volumes of Lab'oe's collection give force to the words of Milman : ■" Council followed Council. Though we may not concur with the Arian bishops in ascribing to their adversaries the whole blame of this perpetual tumult and con- fusion in the Christian world caused by these incessant assemblages of the clergy, there must have been much melancholy truth in their statement : ' The East and the West are in a perpetual state of restlessness and disturbance. Deserting our spiritual charges, abandoning the people of God, neglecting the preaching of the Gospel, we are hurried about from place to place, sometimes to great distances, some of us infirm with age, of feeble constitutions or ill-health, and are sometimes obliged to leave our sick brethren on the road. The whole administration of the «mpire, the Emperor himself, the tribunes and the commanders, at this fearful •crisis of the state, are solely occupied with the lives and the conditions of the bishops. The people are by no means unconcerned. The whole brotherhood -watches in anxious suspense the event of these troubles; the establishment of. post-horses is worn out by our journeyings ; and all on account of a few wretches, Tvho, if they had the least remaining sense of religion, would say with the prophet Jonah, " Take us up and cast us into the sea ; so shall the sea be calm unto you ; for we know that it is on our account that this great tempest is upon us." ' " Hist. Christ, pp. 343-4 (Harper's ed. 1856). The above summary shows : (I.)- That the " observance " of Sunday is entirely a matter of ecclesiastical origin, and that it is historically as well as physiologi- •cally false to affirm that Sunday idleness and gloom have ever been required on hygienic grounds. (II.) That, in general, the early guardians of the faith did not •connect the Fourth Commandment with Sunday, and were not aware of the theo- logical truth judicially established in America, that Sunday idleness was pre- scribed " from the smoking top of Mount Sinai," but, on the contrary, that among the many reasons adduced for the " observance " of the day, this fact finds no place (see, particularly, paragraphs 1, 2, 3, 17, 33, 44, 52 and 75), with the single •exception of the Council of Friuli. (See paragraph 42.) (III.) That Constantine's ■edict, the first " Sunday law," was among the first fruits of the baneful union of church and state which began for Christianity with the conversion of that Em- peror, and to which it owes every blot upon its history, including the plunder of pagans, the slaughter of infidels and the burning of heretics, as well as the Sun- day laws. Up to that time it had spread, as it began, by soft persuasion, irresisti- bly, yet without reproach. Dr. Kurtz, in his " Church History," thus portrays the evil results which fol- lowed the conversion of Constantine : " When Christianity became the religion ■of the state, a large number of unconverted and worldly persons made a profession •of Christianity for the sake of the temporal advantages which it entailed. This influx of the world into the church necessarily exercised a most detrimental in- fluence, and the earnestness, power, devotedness and purity by which the ancient heathen world had been conquered greatly declined in consequence. The world and the church became more assimilated and conformed to one another; discipline became lax and powerless, and the general decline of public morals made rapid progress. The hot discussions, the dissensions and divisions among the bishops and the clergy led to corresponding effects among the people. Party spirit and 278 APPENDIX. bitterness characterized the adherents of different views ; the demoralization of the court exercised its pernicious influence on the capital and the provinces, while the inroads of the barbarians increased the general decay. Even in the case of those who sought other than merely earthly things, work-righteousness- and bigotry too often took the place of genuine piety, while the great mass con- soled themselves with the idea that everybody could not be a monk." Lippincott's ed. 1888, p. 239. No wonder that fifty years after the Emperor Julian was able to defend his; " apostasy " by demonstrating the appalling degeneracy of Christian teachers and leaders. It was natural that the Christians should be pleased with the material resources of wealth and power thus placed at their command, and that they should forget the Master's warning that His kingdom and Caesar's could never be united. It was inevitable that the result of an attempt to join them should be as He fore- saw it. If the practical emasculation of the church as a moral agent had been* the sole result of this unnatural connection, men's minds might more slowly, or not at all, have been aroused to its evil work. But it has been made fearfully apparent that the state suffers no less than the church, under such conditions, and that, as religion cannot retain its effective influence over the hearts and minds of men, so neither can government rightly discharge its functions in the regulation of their conduct, while a union of church and state subsists. Hence, from sheer necessity, the tendency of modern civilization is towards a complete separation of Church and state. In America, we have set this complete separation before us as a political ideal, and we have practically attained it, with the following ex- ceptions : (1) certain qualifications in the way of belief required in some states of office-holders; (2) the same as to witnesses; (3) the manner of applying the law of "blasphemy;" (4) Sunday laws. With these exceptions, Christianity is no longer permitted to wield " the sword of Peter " in the United States. Those who- love and believe in her work may well congratulate themselves that she has. proven herself now, as in the past, able to dispense with such assistance. Just as informations for " heresy " in the olden time were most frequently the outcome of private animosity, s" nearly every prosecution under our Sunday laws is the result of petty spite, meanness and malice ; and thus, just as of old we have- the secular power invoked in the name of the Master to gratify the vilest and most despicable impulses of the human heart. The advocates for the relegation of the Sunday laws to the limbo of the stake and the thumbscrew, have a right to- claim that the accomplishment of their purpose will free the Christian religion from a great reproach, and materially help on the good work of restoring it to- those conditions of absolute independence of the state under which for more than three hundred years it lived and grew, and " kept itself unspotted from the world." APPENDIX. 279 TABLE B. Comparative View of Provisions Regarding Religion, Sun- day Observance, &c, in the United States. I. Constitutional Provisions as to Religious Freedom: in the United States. ALABAMA. No person within this state shall, upon any pretence whatever, be deprived of the inalienable privilege of worshipping God in the manner most agreeable to his- own conscience ; nor be hurt, molested or restrained in his religions profession, sentiments or persuasions, provided he does not disturb others in their religious worship. 88, 3. No religion shall be established by law ; no preference shall be given by law to any religious sect, society, denomination, or mode of worship ; no one shall be compelled by law to attend any place of worship, nor to pay any tithes, taxes or other rate for building or repairing any place of worship, or for maintaining any minister or ministry ; no religious test shall be required as a qualification to any office or public trust under this state, and the civil rights, privileges and capaci- ties of any citizen shall not be in any manner affected by his religious principles. Id. 4. " " , ARKANSAS. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences ; no man can of right be com- pelled to attend, erect or support any place of worship, or to maintain any minis- try against his consent. No human authority can, in any case or manner what- soever, control and interfere with the right of conscience, and no preference shall ever be given by law to any religious establishment or mode of worship above any other. 45, 24. Religion, morality and knowledge being essential to good government, the general assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own worship. Id. 25. No religious test shall ever be required as a qualification to vote or hold office, nor shall any person be rendered incompetent to be a witness, on account of his religious belief; but nothing herein shall be construed to dispense with oaths or affirmations. 46, 26. 280 APPENDIX. CALIFORNIA. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall be forever allowed, and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so con- strued as to justify practices inconsistent with the peace or safety of this state. 20, 4. COLORADO. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed, and no person shall be de- nied any civil or political right, privilege or capacity, on account of his opinions concerning religion ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship. 33, 4. CONNECTICUT. The exercise and enjoyment of religious profession and worship, without dis- crimination, shall forever be free to all persons in this state, provided that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness or to justify practices inconsistent with the peace and safety of the state. 45, 3. No preference shall be given by law to any Christian sect or mode of worship. Id. 4. DELAWARE. Although it is the duty of all men to frequently assemble themselves together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depend, are thereby promoted ; yet no man shall, or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent; and no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere or in any manner control the rights of conscience in the free exercise of religious worship, nor a preference be given by law to any religious societies, denominations or modes of worship. 23,1. No religious test shall be required as a qualification for any office or public trust. Id. 2. FLORIDA. The free exercise and enjoyment of religious profession and worship shall for- ever be allowed, and no person shall be rendered incompetent as a witness on account of his religious opinions, but the liberty of conscience hereby secured shall not be so construed as to justify licentiousness or practices subversive of the peace and safety of the state. 21, 4. APPENDIX. 281 GEORGIA. All men have a natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should in any case ■control or interfere with such rights of conscience. 100, 483. No inhabitant of this state shall be molested, in perspn or property, or pre- vented from holding any public office or trust, on account of his religious opinions, but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. Id. 484. No money Bhall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religionists, or of any sectarian institution. Id. 485. . IDAHO. The exercise and enjoyment of religious faith and worship shall forever be guaranteed, and no person shall be denied any civil or political right, privilege or capacity on account of his religious opinions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or -excuse acts of licentiousness, or justify polygamous or other pernicious practices inconsistent with morality or the peace or safety of the state, nor to permit any person, organization or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime. No person shall be required to attend or support any ministry, or place of worship, religious sect or denomination, or pay tithes against his consent ; nor shall any preference be given by law to any religious denomination or mode of worship. Bigamy and polygamy are forever prohibited in the state, and the legislature shall provide by law for the punishment of such crimes. ILLINOIS. The free exercise and enjoyment of religious profession and worship, without ■discrimination, shall be forever guaranteed ; and no person shall be denied any civil or political- right, privilege or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices incon- sistent with the peace or safety of the state. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship. INDIANA. All men shall be secured in their natural right to worship Almighty God according to the dictates of their own consciences. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or inter- fere with the rights of conscience. No preference shall be given by law to any ■creed, religious society or mode of worship ; and no man shall be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent. No religious tests shall be required as a qualification for any office of trust or profit. No money shall be drawn from the treasury for the benefit of any religious or theological institution. No person shall be rendered incompetent 282 APPENDIX. as a witness on account of his opinions on matters of religion. The mode of administering an oath or affirmation shall be such as may be most consistent witb and binding upon the conscience of the person to whom such oath or affirmation, may be administered. 47, 53. IOWA. The general assembly shall make no law respecting an establishment of re- ligion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship or pay taxes, &c, for building or repairing such or the maintenance of any minister, &c. ; no religious test should be required as a qualification for office, and no person shall be deprived of any of his rights- or be disqualified from the performance .of any public or private duty or be in- competent to give evidence on account of his religious opinion. KANSAS. The right to worship God according to the dictates of conscience shall never be- infringed ; nor shall any person be compelled to attend or support any form of worship ; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test shall be required for any office of public trust, nor for any vote at any election ; nor shall any person be incompetent to- testify on account of religious belief. 89. KENTUCKY. All men have a natural and indefeasible right to worship Almighty God acsording to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious societies or modes of worship. The civil rights, privileges or capacities of any citizen shall in no wise be diminished or enlarged on account of his religion. 120, 5, 6. LOUISIANA. No law shall be passed respecting an establishment of religion or prohibiting- the full exercise thereof. MAINE. All men have a natural and inalienable right to worship Almighty God accord, ing to the dictates of their own consciences, and no one shall be hurt, molested or restrained in his person, liberty or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience, nor for his relig- ious professions or sentiments, providing he does not disturb the public peace, nor obstruct others in their religious worship ; and all persons demeaning them- selves peaceably as good members of the state shall be equally under the protec- tion of the laws, and no subordination or preference of any one sect or denomi- nation to another shall ever be established by law, nor shall any religious test be APPENDIX. 283 required as a qualification for any office or trust under this state ; and all religious societies in this state, whether incorporated or unincorporated, shall at' all times have the exclusive right of electing their public teachers, and contracting with them for their support and maintenance. 33, 3. MARYLAND. 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 re- ligious liberty ; therefore no person ought by any law to be molested in his per- son or estate on account of his religious principles or profession, or for his religious practice, unless, under a color of religion, he disturb the good order, &c, of the state or infringe the laws of morality, or injure others in their natural civil or religious rights ; nor ought any person be compelled to frequent or main- tain or contribute, unless on contract* to maintain any place of worship, &c. ; 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 a God, and that under His dispensation such person will be held morally responsi- ble for his acts, and be rewarded or punished therefor either in this world or in that to come. No religious test ought ever to be required as a qualification for any office of profit or trust other than a declaration of belief in the existence of a God. MASSACHUSETTS. It is the right as well as the duty of all men in society, publicly and at stated seasons, to worship the Supreme Being and great Creator and Preserver of the universe. And no subject shall be hurt, molested or restrained in his person, liberty or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace or obstruct others in their religious worship. 18, 2. It was formerly commanded that the legislature should' require towns to pro- vide for the support of " Protestant teachers of piety and religion," &c, where such arrangement was not made voluntarily ; and that it should enjoin upon " all the subjects " attendance on the instruction of those teachers ; but that every denomination of Christians who demean themselves peaceably, &c, should be equally under the protection of the law, and no subordination of one to the other- should be established by law. 18, 3. Betaining the latter provision, the former was so amended as simply to authorize religious societies, incorporated or otherwise, to elect and contract with their own teachers, &c. 39, II. MICHIGAN. The legislature shall pass no law to prevent any person from, worshipping Almighty God according to the dictates of his own conscience, or to compel any person to attend, erect or support any place of religious worship, or pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. 48, 39. 284 APPENDIX. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the state be appropriated for any such purpose. Id. 40. The legislature shall not diminish or enlarge the civil or political rights, privileges or capacities of any person on account of his religion or belief concern- ing matters of religion. Id. 41. MINNESOTA. No religious test as a qualification for office shall ever be required, and no preference shall ever be given by law to any religious sect or mode of worship, but the free enjoyment of all religious sentiments and the different modes of ■worship shall ever be held sacred ; provided, the rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state. 20, 23. The right of every man to worship God according to the dictates of his own conscience shall never be infringed, nor shall any man be compelled to attend, -erect or support any place of worship, or to maintain any religious or ecclesias- tical ministry against his consent ; nor shall any control of or interference with the rights of ponscience be permitted or any preference be given -by law to any religious establishment, or mode of worship ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state; nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries. 18, 16. No religious test shall be required as a qualification for any office of public trust under the state, or of a voter; nor shall any person be incompetent to give evidence in any court in consequence of his opinion upon the subject of religion. Id. 17. MISSISSIPPI. No religious tests shall be required as a qualification for office, and no prefer- ence shall be given by law to any religious sect or mode of worship, but the free enjoyment of all religious sentiments and the different modes of worship shall be forever held sacred ; provided, that the rights hereby secured shall not be con- strued to justify acts of licentiousness injurious to the morals or dangerous to the peace and safety of the state. MISSOURI. All men have a natural and indefeasible right to worship God according to the dictates of their own consciences ; no person shall, on account of his religious opinions, be rendered ineligible to any office of trust or profit, nor be disqualified from testifying, or from serving as a juror; no human authority can control or interfere with the rights of conscience ; no person ought by any law to be molested in his person or estate on account of his religious principles or profession ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of this state, or with the rights of others. 55, 5. APPENDIX. 285 No person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion ; but if any person shall voluntarily make a contract for any such object, he shall be held to the perform- ance of the same. Id. 6. No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, teacher or minister thereof, as such ; and no preference shall be given to, nor any discrimination made against, any church, sect or creed of religion, or any form of religions faith or worship. 56, 7. No religious corporation shall be established, except such as may be created under the general law, for the purpose only of holding title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries. Id. 8. NEBRASKA. All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship against his conscience, and no preference shall be given by law to any religious society, nor shall any inter- ference with the rights of conscience be permitted. No religious test shall lie required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality and knowledge, however, being essential to good government, it shall be the duty of the legisla- ture to pass suitable laws to protect every religious denomination in the peaceable- enjoyment of its own mode of public worship, and to encourage schools and the means of instruction. 15, 4. NEVADA. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state, and no person shall be rendered incompetent to be a witness on account of his opinion on mat- ters of religious belief; but the liberty of conscience hereby secured shall not be- so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state. 49, 4. NEW HAMPSHIRE. Among the natural rights some are in their very nature inalienable, because no equivalent can be given or conceived for them ; of this kind are the rights of conscience. 21, 4. Every individual has a natural and inalienable right to worship Almighty God according to the dictates of his own conscience and reason ; and no subject shall be hurt, molested or restrained in his person, liberty or estateifor worship- ping God in the manner and season most agreeable to the dictates of his own con- science, or for his religious profession, sentiments or persuasion, provided he doth not disturb the public peace of others in their religious worship. 21, 5. 286 APPENDIX, As morality and piety, grounded on Evangelical principles, give the best ■security to government, the legislature is empowered to authorize towns, &c., to provide, at their expense, for the support and maintenance of public Protestant teachers of piety, religion and morality, but the towns may elect their own teachers, and no persons of any one particular religious sect or denomination shall be compelled to pay for the support of teachers for another ; and every de- nomination of Christians demeaning themselves quietly and as good subjects of the state shall be equally under the protection of the law ; and no subordination of any one sect or denomination to another shall ever be established, by law. Id. 6. t NEW JERSEY. No person shall be deprived of the inestimable privilege of worshipping Al- mighty God in the manner most agreeable to the dictates of his own conscience ; nor, under any pretext whatever, be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay ■tithes or taxes, or other rates, for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily -engaged to peforin. 33, 3. There shall be no establishment of one religion in preference to another ; no religious test shall be required as a qualification for any office or public trust, and no person shall be denied the enjoyment of any civil right merely on account of his religious principles. Id. 4. NEW YORK. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed to all mankind, and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief ; but the liberty of conscience hereby secured shall . not be so construed as to excuse acts of licentiousness, or justify practices incon- sistent with the peace or safety of this state. 82, 3. NORTH CAROLINA. All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority should in any case whatever control or interfere with the rights of conscience. 685, 26. NORTH DAKOTA. Perfect toleration of religious sentiment shall be secured, and no inhabitant shall ever be molested in person or property on account of his mode of religious worship. OHIO. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship, or maintain any form of worship against his consent, and no preference shall be given by law to any religious APPENDIX. 287 society. Nor shall any interference with the rights of conscience be permitted. No religious test shall be required as a qualification for office, nor shall any per- son be incompetent to be a witness on account of his religious belief, but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality and knowledge, however, being essential to good government, it shall ■be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instrnction. 1725, 7. PENNSYLVANIA. All men have a natural and indefeasible right to w.orship Almighty God according to the dictates of their own consciences ; no man can of right be com- pelled to attend, erect or support any place of worship, or to maintain any min- ister, against his consent; no human authority can in any case whatever control ■or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship. 23, 3. No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to bold any office or place of trust or profit. Id. 24, 4. RHODE ISLAND. Whereas Almighty God hath created the mind free, and all attempts to influ- ence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness ; and, whereas, a principal object of our venerable ancestors in emigrating to this country was, as they expressed it, to hold forth a lively experiment, that a flourishing civil state may stand and be best maintained with full liberty in religious concernments : we, therefore, declare that no man shall be compelled to frequent or to support any religious worship, place or minister whatever, except in fulfillment of his own voluntary contract ; nor enforced, restrained, molested or burdened in his own body or goods ; nor ■disqualified from holding any office, nor otherwise suffer on account of his religious belief; and that every man shall be free to worship God according to the dictates of his own conscience, and to profess and by argument to maintain his opinion in matters of religion ; and that the same shall in no wise diminish, enlarge or affect his civil capacity. 20, 3. SOUTH CAROLINA. No person shall be deprived of the right to worship God according to the ■dictates of his own conscience, provided that the liberty of conscience hereby declared shall not justify practices inconsistent with the peace and moral safety of society. 26, 9. No form of religion shall be established by law, but it shall be the duty of the general assembly to pass suitable laws to protect every denomination in the peaceable enjoyment of its own mode of worship. Id. 10. No person who denies the existence of the Supreme Being shall hold any office. 47,6. 288 APPENDIX. SOUTH DAKOTA. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or possession on account of his religious opinion, but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, or the inva- sion of the rights of others, or to justify practices inconsistent with the peace and safety of the state. No person shall be compelled to attend or support any min- istry or place of worship against his consent; nor shall any preference be given to any religious establishment or mode of worship. No money or property of the state shall be appropriated for the benefit of any sectarian or religious society or institution. TENNESSEE. All men have a natural and indefeasible right to worship Almighty Go65 according to the dictates of their own consciences ; no man can of right be com- pelled to attend, erect or support any place of worship, or to maintain any minis- try, against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishment or mode of worship. 66, 3. No religious test shall be required as a qualification to any office or public trust under this state. Id. 4. TEXAS. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent. No human authority ought, in any case whatever, to control or inter- fere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of worship. 1, 6. No money shall be appropriated or drawn from the treasury for the benefit of any sect or religions society, or theological or religious seminary ; nor shall property belonging to the state be appropriated for any such purpose. Id. 7. VERMONT. All men have a natural and unalienable right to worship Almighty God accord- ing to the dictates of their own consciences and understandings as in their opinion shall be regulated by the word of God ; no man ought to, or of right can, be com- pelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to the dictates of his conscience ; nor can any man be justly deprived or abridged of any civil right as a citizen on account of his religious sentiments or peculiar mode of religious worship. No power van or ought to be vested in or assumed by any power whatever that shall in any case interfere with or in any manner control the rights of conscience in the free exer- cise of religious worship ; nevertheless, every sect or denomination of Christians APPENDIX. 289 ought to observe the Sabbath, or Lord's day, and keep up some sort of religious worship which to them shall seem most agreeable to the revealed will of God. VIRGINIA. Religion, or the duty which we ow»to our Creator, and the manner of discharg- ing it, can be directed only by reason and conviction, not by force or violence ; and therefore all men are equally entitled to the free exercise of religion accord- ing to the dictates of conscience ; it is the mutual duty of all to practice Christian forbearance, love and charity towards each other. 69, 18. WEST VIRGINIA. No religious test-oath shall be required as a prerequisite or qualification to vote, serve as a juror, plead, appeal, or pursue any profession or employment. 8,11. No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened in his body or goods, or otherwise suffer on account of his religious opinion or belief; but all men shall be free to profess and by argument maintain their opinions in matters of religion; and the same shall in no wise affect, diminish or enlarge their civil capacities ; and the legislature shall not prescribe any religious tests whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this state to levy on themselves or others any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to seleot his religious instructor, and to make for his support such private con- tract as he shall please. 9, 15. No religious tests shall ever be required as a qualification for any office of public trust under the state, and no person shall be rendered incompetent to give evidence in any court of law or equity in consequence of his opinions on the subject of religion. 18, 19. WISCONSIN. The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any place of worship, against his consent ; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious estab- lishments or modes of worship ; nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries. 18,18. 19 290 APPENDIX. II. "What is Sunday. ILLINOIS. "From midnight to midnight. 424, 260. MAINE. From twelve o'clock Saturday night till twelve o'clock Sunday night. 906, 22. MASSACHUSETTS. From midnight to midnight. 621, 16. From Saturday evening to Sunday evening, in provision against being present at game, public diversion, &c. 519, 1. Begins evening before, in provision against allowing people not travelers to spend time idly at or about inns, &c. (and ends when ?) MICHIGAN. From midnight to midnight. 2022. MINNESOTA. From midnight to midnight. 922, 21. NEW YORK. From midnight to midnight. Penal Code 259. UTAH. From midnight to midnight. 1986. VERMONT. As to service of process, from sunset on Saturday till twelve o'clock on Sunday ■night. 870. As to work, traveling and sports, twelve o'clock Saturday night to sunset Sun- dav. 4315, WASHINGTON. As to work, from midnight till midnight. 4595. III. Sunday in the Computation of Time, &c. ALABAMA. If the last day of time within, which an act is provided by law to be done, excluded. II. APPENDIX. 291 ARKANSAS. Commercial paper falling due payable the day preceding, and may be then noted and contested, but notice need not be given till next day. 465. CALIFORNIA. A holiday. 10. If another holiday fall on it, the Monday following is a holiday. 11. Same provision repeated. 5007, 5008. COLORADO. Commercial paper falling due is payable and may be protested the preceding markets or dealers in merchandise selling before nine o'clock A. M. Id. 186. Nor to the selling of drugs or medicines. Id. 187. Forbidden— Horse-racing, allowing use of ten-pin alley, match shooting, gaming within the limits of any town ; penalty not less than $20 nor more than $50. Id. 185. The chaplain of the penitentiary shall preach at least once on Sunday to the- convicts. 3544. No labor shall be required of the convicts; 3560, 3591. Holidays are considered as Sunday in regard to presenting, protesting and giving notice as to paper. 2835. If a holiday happens on Sunday, Monday is a holiday ; and paper may be pre- sented the Saturday preceding, and proceeded on accordingly. 2837. Municipal corporations may close drinking places and places of amusement. 391. UTAH. Forbidden. — Keeping open workshop or place of business for the purpose of transacting business therein ; penalty not less than $5 nor more than $100. 1980. This not to apply to hotels, boarding-houses, baths, restaurants, taverns, livery stables, or retail drug stores, or manufacturing establishments usually kept in continued operation. 1981. Forbidden. — Unnecessary labor ; penalty not more than $25. 1984. This not to apply to mills or works usually kept in constant operation, or used in irrigating. 1985. Forbidden. — The exhibition, &c, of bull, bear, cock or prize fighting, horse- racing, circus, or any barbarous or noisy amusement, opening gambling-house or saloon or theatre, where liquors are sold, and purchasing tickets for such show ; misdemeanor. 1979. VERMONT. Forbidden. — Business or employment, except works of necessity and charity, being present at any public assembly, except for social and religious worship and moral instruction, traveling, except from necessity or charity, visiting from house to house, except from motives of humanity or charity or for moral or religious edification, holding or resorting to a ball or dancing, exercising, game or sport, resorting to inns, &c., for amusement or recreation ; penalty not more than $2. 4315. Forbidden. — Hunting, discharging fire-arms, except in defence of person or property, or performance of military or police duty ; penalty $10. 4316. WASHINGTON. Forbidden. — Keeping open shop, &c, labor and business, except works of necessity and charity, being present at a dance dr public diversion or show, taking part in sport, game or play ; penalty not more than $10. 4595. Forbidden. — For tavern-keepers or other persons to sell or give away intoxi- cating liquors. 1564. Any person who conscientiously believes any other day ought to be observed APPENDIX. 311 as the Sabbath, and refrains from labor, Ac, on that day, may labor, unless he willfully disturbs some other person or some religious assembly. 4596. -WEST VIRGINIA. Forbidden. — Laboring at any trade or calling, or employing children, appren- tices or servants, except in household or other work of necessity or charity; penalty not less than $5 for each offence (each child, Ac, employed, Ac, a separate offence) ; hunting, shooting or carrying fire-arms ; penalty not less than $5. 809, 16. "This not to prevent transportation of the mails, passengers and their baggage, running trains and steamboats, carrying fire-arms or shooting by a person having the right to do so under the laws of the United States or of the state; and one may labor who conscientiously believes the seventh day ought to be observed as a Sabbath and actually refrains from secular business and work thereon; provided he does not compel an apprentice or servant not of his belief to work, and does not disturb another person in his observance of the day, and no contract shall be deemed void because made on Sunday. Id. 176. Forbidden. — Laboring at any trade or calling, or employing apprentices or servants, except in household or other work of necessity or charity ; penalty $2 (each servant, Ac, a distinct offence). 1209, 17. LATE ENGLISH SUNDAY LEGISLATION. I. In General. Exclusion in computing time, 45 and 46 Vic. c. 50, \ 230. Prosecutions, restrictions on, 34 and 35 Vic. c. 87. Remission of penalties, 38 and 39 Vic. c. 80, \ 1. Warrants granted on, 11 and 12 Vic. c. 42, g 4; 12 and 13 Vic. c. 69, \ 4; 14 and 15 Vic. c. 93, \ 11. II. Particular Cases. Billiards, 35 and 36 Vic. c 109, | 10, sch. 30. Bills of exchange, 34 and 35 Vic. c. 17. Brewing and distilling, 43 and 44 Vic. c. 24, § 24. Burials, 43 and 44 Vic. c. 41, \ 3. Factories, children and women in, 41 and 42 Vic. c. 16, \ 21. Factories, Jews in, 41 and 42 Vic. c. 16, \\ 50, 51. Methylated spirits, selling, 52 and 53 Vic. c. 42, I 26. Pawnbrokers, 35 and 36 Vic. c. 93, % 32. Public houses, 25 and 26 Vic. c. 35, g 2, sch. A; 39 and 40 Vic. c. 26, § 17; 41 and 42 Vic. c- 72. • - Rectifying, 43 and 44 Vic. c. 24, \ 43. Water, supplying, 34 and 35 Vic. c. 84, {! 24. SUBJECT INDEX. IAn a following a reference indicates that successive pages should be consulted.] A. Abatement, plea in 173 Aborigines. See Indians. Acceptance 130 Acknowledgment. See Bail. Acquiring property. See Property. Adjournment 162, 166 s., 174, 178 s. Adult, labor of. 2 Advertisement. See Newspapers. Affidavit 155, 158 Affray 145 Afterthought of courts, to sustain Sunday laws 101 Agency 122, 124, 127, 217 s. See Vendor's Lien. Agricultural labor 240 Ale. See Beer. Almanac 167 Amusements 10 g., 14, 17 s., 54 s., 79 s., 81 s., 98 s., 104 n. Annoyance of Sunday work...-. 64 s., 197 s., 213 Apostles as opposers of " days ". ... 72 Apothecary 235, 247 Appeal 154, 162, 174, 176 Apprentices, labor of. 2 See Employes. Arbitration 126, 167 Arrest 113 s., 155, 157 a., 1.61 s. Ascension day 74 Ash Wednesday 58, 107 Assault 115, 149 s. Assessment 177 Assignment 228 Assignor and assignee 143 Athenians beginning the day 112 Attachment 155, 161, 174, 196, 229 Attorney -..204, 206 See Agency. Award. See Arbitration. Babylonians beginning the day 112 Bail 157, 161, 172 s., 176, 196 Bailment 140 See Pledge. Bakers 29, 194, 235, 243 Bankruptcy 225 Barbers 31, 235, 245 Bastardy 167 Beer 180 s., 190, 242, 247 Belief in necessity 236 Bill of rights, as affecting Sunday laws 19 Bills. See Signing Bills. ■ Bills of exceptions 174 See Appeal. Bills of exchange. See Notes. Bills of sale 122, 246, 252 Birds 241 Blackberry brandy 182 Blasphemy 60, 162 See Profanity. Blast furnace. See Furnace. < Bonds ...127, 177,216, 229 Bonds, liquor-dealers' 190 See Bail. Brandy 182 Breach of the peace 163 Breweries. See Beer. Broker 127, 207, 217 Brutes 54, 63,70, 241 313 314 SUBJECT INDEX. Business. 212 s., 218 s. See Work. Butchers 231 O. Canal 224 Capias 158 8. Carriage 199 Cases of tort 255 Catholic. See Roman Catholic. Cattle 13, 15, 115 See Brutes. Certiorari 159 Chaldeans beginning the day 112 Challenging jurors 177 Charter party 169 Charge to jury 164, 191 Charity..82, 162, 184, 193 s., 230 s,, 248 s. Children, labor of. 2, 6, 64 Children, selling liquor to 11 Children, traveling for benefit of... 240 Children, visiting 248 Chinese 95 Christianity, as involving Sunday laws 48 s., 73 a., 81, 83, 152 s. Christianity, as part of American law 50 8. See Religious Duty, &c. Christmas.. 56, 74, 107, 154, 174 Church, compulsory attendance at.. 4, 9 Church, traveling to, &c 248 Church, union with state 4, 39 s. 103, 153 Church door, fixing summons on... 156 Civil regulations, Sunday laws as.. 7 See Religious Regulations. Clausurn] regit 173 Clergymen as Sunday idlers 95 Clubs, sale of liquor by 180 s. Commerce between states, Sunday laws as affecting 10 n., 12 Common carriers 136, 147, 223, 237 See Railroads. Common law 151 s., 165, 210, 226 Common recovery 157 Completion of Sunday contract. ..121 s. Consecration of Sunday, &c 34 s. Consent of the governed as a basis for Sunday laws 47*. Constantine's edict 94, Ills. Constitutional law 253 Constitutionality of Sunday laws... 2 s. Construction 129 8., 194 Contents, as proving purpose of Sunday laws 101 Contracts 117 8., 209 s. Contracts, the question of comple- tion of a contract 253 Contracts, leaving parties where they stand. 255 Convenience 91, 96, 232 Corn gathering*. 251 Coroner. See Inquest. Corporations 57, 64 See Municipal Ordinances. Council 177 Court-house 22!> Courts. See Dies Non Juridicus. Creation, of necessity 235, 249, 251 Creditors 143 Criminal cases...l55, 159, 163, 166, 173 Cross examination 139 n. Customs, as affecting " necessity ".. 234 Danger 233 Day, what constitutes 112 8. Days of grace 172 Death, for "Sabbath desecration," 69, 77 Death of vouchee 158 Deceit 195 Declaration 156 8. Deeds 124, 144, 171, 211, 216 Delivery 125 s., 144, 171, 190, 218 s., 245 s. Demand 225 s. Demurrage 169 Denominations of Christians 16, 56 Deposition 167 Desecration of Sunday 38 8., 81 8., 85, 196 Dies non juridicus, Sunday as 89, 151, 226 Digging land 148, 243 SUBJECT INDEX. 315 Disorderly houses 14 Distilleries 247 Disturbance.. .41, 61 a., 107 s., 159, 162, 202 a., 213, 219, 223, 226 Divine law 7, 47 a., 69 a., 75 s., 81 Doctors 95, 193, 247 Driving horse car 196 Driving omnibus 195 Druggists 190 E. Ease of creation, as ground of Sun- day laws 44 Easter day 56,74, 154 Ecclesiastical process 157 Edict of Constantine 94, 111 s. Egyptians, as to "the week" 94 Egyptians beginning the day 112 Ejectment 157 s., 175 Election-day laws 15 Emergency 190 See Exigency. Employes, labor of. 2, 6 s., 63 s., 105 n., 147, 169, 189 Employes, Sunday liquor selling by 184 Employes, payment by day 169 Endorser. See Note. English law. 9, 38 a., 83, 89, 102, 138, 145 s.,. 156 s., 197s, 201 s., 205, 221, 226, 250 Enlisting . 226 Equality of religious beliefs 2, 3 See Preference ; Uniformity. Essoign day 158 Evidence 184 s., 189 a. Exchange...ll8, 128, 199, 225, 230, 250 Execution 160, 174, 178 Exhibition of merchandise by im- porter - 10 Exigency 233 See Emergency. Expedition 233 Express companies 12 F. Fairs 209 «., 226 Farmers 95, 206, 208 Fasts and feasts, various 56 8. Federal constitution. See Com- merce Between States. Felony 163 Fieri facias. See Execution. Fine 159, 178, 188 Fish 241, 250 Forestalling 156 Forgery 162, 216 Fourth Commandment. ..21 s., 64, 74 a., France, " Sabbath breaking " no cause of crime in 10O Fraud 147, 215 s. Freedom of conscience 16 s., 52, 62 s., 115, 203 Friends 57 Funerals...: 221, 228, 239, 242, 247 Furnace Future state, belief in necessary to enforcement of laws..... 4 s. G. Gambling laws, Sunday laws com- pared to 14 Gentiles 72 Good behavior 156 Good Friday 56, 74, 107, 174 Government, as dependent on Sun- day idleness 97 8. Governor. See Signing Bills. Greece, customs of 20 Greek Church, fasts and feasts...... 56 Greeks, no knowledge of weeks.... 94 Grocery 65 Gross negligence. See Negligence. Guaranty 126 See Warranty. Habeas corpus 189 Hack 251 316 SUBJECT INDEX. Health. See Sanitary, &c. Hebrews, Sunday laws derived from 6 Hebrews, their Sabbath day 3 s., 7, 21 s , 56, 67 s'., 81,94,151,192 Hebrews beginning the day 112 s. Highway 146 s., 170, 198, 250 Hired horses 139 s., 199, 214 s , 222 s., 236 Hogs 241, 245, 251 Holiday, Sunday as a 38, 45, 88 a., 104 to., 170 Holiday, in computing time. ..173, 177 Holiday, when falling on Sun- day 170 Holiness, of Sunday, as recognized by idleness 54 s. Holy day, Sunday as 33 8., 81 Horse cars. See Street Cars. Horse racing .14 Horse trade. See Exchange. Hospitals 247 Hotel. See Inn. Hours, limiting adult labor to cer- tain 2 Hue and cry 145 Hunting 64, 116 Ice delivery 31. Ice factory 247 Idleness, as a vice 5 Idleness, as an act of holiness 39 s., 54 8. Idleness, as a Christian "institu- tion" 69 s. Idleness, as a benefit to the idler and to others 90 s. Immorality. See Morality. Immunities. See Special Legisla- tion. Incest laws, Sunday laws com- pared to 16 Inconsistency of constitution and statutes, &c 67 Incontinency 156 [nconvenience, as argument against Sunday laws 7, 21 Indians 94 s. Indictment, in liquor selling 186 s. Industry, alleged danger of excess- ive... 5 Infidelity in law 44 Injunction.... 161, 197 Inn, lodging, &c, in 235 Inn, lost goods of traveler in 149 Inn, selling liquor in 180, 186 Inn, selling cigars, &o 243 8. Inquest 163 Insolvency 167 Instructions 166 Insurance 171, 225 Insurrection — 145 Intent in " keeping open" 184 Interest 134 Interstate eommerce. See Com- merce Between States. Intoxicating liquor 181 s. See Inn. Iron 242 J. 95 Joint contractor 135 Judgment...l55, 157, 163 s., 176 «., 218 Judicial acts. See Ministerial Acts. Judicial proceedings. See Dies Non Juridicus. Jurors. See Challenging, &c. ; Verdict. Jury, judgeB of " keeping open "... 183 Justice of the peace. ..13, 155, 158, 162, 166, 175, 189, 215 K. " Keeping open " 27,28,33,65, 182 s., 186, 202, 251, 256 Knowledge, in one of potter's call- ing, &c 205 s., 215«, 237 Knowledge, as affecting visit to sick friend 248 SUBJECT INDEX. 317 Labor. See Work. Latitat 157 Law and fact 249 s. Lawyer's clerk : 245 Lawyers... 95 Lay days 170 Leaving parties where they stand.'. 117 8. Legislative discretion 8 8., 28, 50 s. Legislature, acts as evidence of intent 17 Legislature, ecclesiastical func- tions of. 37 s. Lent 154 Letter , 229 s. Levites 71 License 11, 184 8., 188 n. Limitations 135 Liquor, Sunday laws compared with liquor laws 141, 197 Lifuor, no necessity 244 Liquor dealers allowing loiter- ing 114 Liquor sales 21, 38, 67 Liquor sales, city ordinances as to.. Liquor sales, as business, &c 180 s. Liquor sales, arrest for 162 Literary men 95 Livery stable 247, 251 See Hired Horses. Loan 130, 132, 134, 217, 228, 231 Longevity, as dependent on Sun- day idleness 93 s. Lord's day, Sunday as., 4, 16, 18, 34, 69, 76 n. Lottery 158 See Gambling. Lutheran fasts and feasts 56 Lycurgus, laws of, imitated by American Sunday laws 102 M. Mail 223 Mala prohibUa, &c 15 Malt liquor. See Beer. Manufacturing 242 Maple sugar 241, 251 Mare, service of. 127, 206 Market overt 209 s. Marriages 64, 212, 221 s., 228, 231, 247 Meat 245 Medical men. See Doctors. Militia laws, Sunday laws com- pared to 177 . Mill 247 Mining laws, Sunday laws com- pared to 14 Ministerial acts 154 8. Minors. See Children. Miscellaneous cases of business, &c „ 256 Miscellaneous points of practice, evidence, &c 258 Misdating 142 Mistake 167, 171 Mistrial 166 Moral aspect of Sunday laws. ..37 8., 64, 79 a., 98, 119 8., 196 Mortgage 167, 207 Moses. See Hebrews. Motion in arrest 173, 218 Motion to set aside verdict 177 Motion of party to contract 218 Municipal ordinances, Sunday laws of 24s., 185, 188, 211 N. Nature, penalties of, for Sunday work.... .-91 8. Necessity 82, 146, 160, 162, 184, 193 s., 230 Negligence 136 8., 145 8. New England. See Puritans. New trial 176 New Year's day 2 Newspapers, advertisements in 217, 222, 246 Newspapers, selling 61, 222 Notary 154 Notes, &c 28 s., 89, 114, 122 s., 134, 142, 171 s., 194, 200, 210, 246 318 SUBJECT INDEX. Notice, as to plea, &c 158 8. Notice, publication of. 167, 177 Notice to tenant 229 Nuisance 64, 185 O. Observance. See Sanctity. Obstruction in streams 195 See Highway. Offer. See Acceptance. Oil wells 247 Omnibus 195, 239 Ordinances. See Municipal Ordi- nances. Ordinary calling 197 «., 205 s. P. Paganism 67, 111, 190 Parliament 152 Particular trade, &c 233 s. Passenger cars 224 See Railroad ; Street Cars. Patriarchal Sabbath.... 71 n., 76n. Patriarchal theory 3 Patriarchs, ages of 94 Paupers, relieving 245 Payment 134 Peace, Sunday laws as enforcing... 10 8., 15, 102 Perjury., 162 Pharisees 36,71, 194 Phraseology of Sunday laws..7, 85 s., 88 Physical aspect of Sunday laws 79 s. See Sanctuary, &c. Physicians. See Doctors. Pleading, practice, &c 260 Pledge 118, 121 See Bailment. Police magistrate 229 Police power 84 s., 102 s. Police regulation, Sunday laws as..4, 6 Polygamy 14 Polynesians 95 Powder magazines 14 Prayer-meetings 107 Preacher 248 Preference among religions.. .3 s., 15 »., 21, 49 s., 68, 80, 82 See Equality of Religious Be- liefs. Private conduct 197 s., 202 s., 225 Privileges. See Special Legisla- tion. Privity, &c. See Knowledge. Process. See Writs. Profanation. See Desecration. Profanity... 14, 16 Property, right to, interfered with, laws 6 8., 138. Property, use of. Propositions, &c. — Chapter I. — Proposition 1. In- hibitions of work, business, amusements and liquor-selling are constitutional 2 Corollary 1. Inhibitions of work do not violate the constitution of the United States 12 Corollary 2. Inhibitions of work do not interfere with rights of property 13 Corollary 3. Sunday laws do not infringe religious liberty, nor do they give any preference to one religion over another 15 Proposition 2. Sunday laws may be passed by municipal cor- porations 24 Chapter II. — Proposition 1. Sun- day is a holy day 33 Proposition 2. The holiness of Sunday is to be recognized by remaining idle on that day ; and not to so remain is to be immoral 37 Proposition 3. Sunday idleness is enforced as a religious duty in the individual 39 Proposition 4. There is a Divine command that men shall be idle on Sunday ; and this com- mand is an element of Chris- tianity. 47 SUBJECT INDEX. 319 Proposition 5. This Divine com- mand is a part of American constitutional law 49 Proselytes 71 Protection of others as justifying Sunday laws 8 Public health laws, Sunday laws compared to 14, 25 Public library 229 Public peace. See Peace. Public policy 28, 82, 117, 120 See Legislative Discretion. Puritans, time of Sunday 112 Puritans, view of the Sabbath. 42, 84 s., 101, 192 a., 200 Purpose, as affecting necessity 234 See Intent. Q- -Quakers. See Friends. B. Railroad 12, 136, 146, 148, 170, 195, 200, 212, 224, 238 a., 245, 247, 251 Ratification 129 «., 218 Reasonableness of special Sunday legislation 30 Seasons of legislature for passing Sunday laws immaterial 6 Reasons of Hebrew "Sabbath" day 69 s. Recess 168 Recognizance 162 See Bail ; Bond. Recreation 96 s., 240 Redemption 178 Release- 207 Religious duty 39 «., 60, 66 «., 80 a., 104 n., 195 a. Religious liberty 15 Religious regulations 32 8. See Preference. Religious rest. See Rest. Remission 214 Rent ...131 s. Repeal of Sunday laws, its danger..53 a. Replevin 118, 175, 177, 229 s. Repugnancy. See Inconsistency. Reputation 189 Resisting officer 159 "Rest" 5,69 s. Retailing liquor 188 Retention of money, &c 132 8. Return day 174 a., 179 Rights of conscience. See Free- dom of Conscience. Rights of property. See Property. Robbery 145 Roman Catholic 107, 154 Romans, customs of... ...20, 72, 94, 152 Romans beginning the day 112 s. Rule of court, &c 175 Running days 169 S. Sabbath, Sunday as 116 See Hebrews ; Puritans ; Sev- enth Day Believers. Sales .117 a., 246 See Contracts ; Liquor ; War- ranty, &c. Salt works 247 Sanctity of Sunday 54 s., 70 a. Sanitary aspect of Sunday laws 72, 96, 196 Saviour 36, 72, 77, 83, 194 Saxons 152 Scire faeiaa 173 Scotch in Pennsylvania 66 Sea weed 241 Servants. See Employes. Settlement of accounts 209 Seventh-Day Believers 16, 21 a., 26, 81, 227, 248 Sexton 248 Shaving. See Barbers. Sheriff. 128, 174, 175 See Writ. Shoeing horses 247 Shooting 64 Signing bills'. 7, 18 Singer 248 Slaves 6 320 SUBJECT INDEX. Smoking. See Tobacco. Societies. See Clubs. Society, aspects of Sunday idle- ness 91 s., 96 s. Soldiers, farmers as 95 Special legislation 28 s. Special peace 102, 107 Spiritual wrongs 108 s. Spiritualists, camp meeting 238, 250 St. Peter's day 56 Stability of government. See Gov- ernment. Standard time 170 Steamboat company 136, 137, 147, 200, 224 Street cars , 196, 203, 238 Students 95 Summons 156 s., 175 See Writ. Sumptuary law 5 Sunday as a dies non juridicua 261 Surety. 124, 155 See Bail ; Bond. Surgical operation 138 T. Talmud 22, 152 Taxation laws, Sunday laws iu re- lation to 24 8. Telegram 247 Telegraph company 133, 224 Term of court 165, 178 s. Teste 161 Thanksgiving day 177 Theatre ... 42 See Amusements. Third persons 142 s. Tide-water , 13 Time, of Sunday Ill Time, as element in injury 147 s. Time, Sunday in computation of..7, 169 Time, in indictments for liquor selling 187 8. Time of passage, as affecting con- struction of Sunday laws 198 8. Tippling-house 180 s., 187 s. Title 7 s, 11, 31 Tobacco 235. 243 s. Toleration 8S Torts .139 «., 140 a., 145 s. Towns. See Highways. Traveling, time of.. 114 Traveling, as to injury on high- way 146 8. Traveling, as "disturbance" 41 Traveling, process for loif Traveling, as "labor," &c 195V 200, 223 s. Traveling, as "sport"..; 227 Traveling, as "necessity" 236 8. Traveling, as "charity," &c 248- See Inn. Treason 163 Trespass 105™., 156, 160, 173 Trover 143 Turnpike company 137 U. Umbrians beginning the day 112 Uncertainty, of exceptions to Sun- day laws 230 s. Uniformity ...'.91 s., 96, 201, 232. See Preferences, &c. See Customs. V. Vaccination 104 Vendor's lien 127 Venice... 152 Verdict 115, 154, 163, 174 Vessels 146 s- See Steamboat Company. Vice. See Morality. Visiting 248 8. Vouchee 15$ W. 147 Wages See Employes, Ac. Walking 227 Warranty 122, 136 a., 201 s., 205 s., 216 s. SUBJECT INDEX. 321 Watermelons 241 Weeks 69, 94 s., 241 Whale 241 Wheat 241 s. Wills 205, 227 «., 245 Withdrawing juror 166 Work, inhibitions of constitu- tional 2,12 Work, inhibitions by city 26 Work, as an object of Sunday laws 43 «. Work, in England 83 Work, time of. 113 Work, process as 162,. 164 Work, awards as 168 Worship 43, 62, 68, 97, 203 s, 247 Writs 113 «., 154 s., 161, 174 «., 178, 228 s. 21