of executing them are. Fuel, and food, and clothing, are not forbidden, yet the usual means of obtaining them, by merchants, manufacturers, carriers, farmers, gardeners and laborers are forbidden.

On the other hand, a special purpose of the day is, that people may enjoy religious worship and instruction, and hence, the functions of the preacher, the religious teacher, the sexton, the organist and the singers, are not forbidden, even though these persons engage in these employments as a means of livelihood. Hence, also, the ordinary means of attending public worship are not forbidden, when used purely for this purpose. In this view of the case, it is the rightness and the exigencies of the purpose that justify the ordinary means of effectuating it. Conducting and attending religious worship are among the very purposes for which the law protects the day, and, therefore, all means which common usage shows to be reasonably necessary for these purposes are not forbidden.

Some worldly employments are expressly allowed, such as removing with one's family, delivery of milk and necessaries of life, and the business of ferrymen and inn-keepers; and, of course, these may be performed by a principal, or by his servants, and by all the ordinary means adopted for these purposes, and which are not themselves forbidden.

And all wordly employments are allowed, which in their nature, consist of acts of necessity or charity; or if they become so for the time being, by reason of famine, flood, fire, pestilence or other disaster. In such cases, necessity and charity demand the work, and with it all the ordinary means of doing it. The whole purpose of some employments is to do works of necessity or charity.

The business of a physician can not be stopped on Sunday, because it is a work of necessity. He must travel in performing it, and he is, therefore, entitled to use all the ordinary means of such travel, and this includes, of course, the labor of his servants, in attending to his horse and carriage, and in driving if he think it needful. The law does not inquire whether he might have done such work himself. It is not the driving, but the principal work that is needful; the driving follows merely as ordinary means.

The business of the apothecary is necessary, so far as it is connected with human sickness, and a man may attend to it by his servants, though that means may not be necessary. Hospitals, in great variety, are necessary, and no one doubts that all the domestic attendants of these institutions may lawfully pursue their usual avocations therein, because they are the ordinary means of a legitimate purpose.

But no one ought to expect sharp definitions of legal duty on such a subject. Modes of living, of business, of travel, and other human customs, are so continually changing, that definitions involving them can.

All that we can Even law, as a defiYet with very few ex

never be universally, but only generally, adequate. expect is truth and accuracy to a general intent. nition of human duty, is subject to this defect. ceptions, it is true, that no one who sincerely respects the customs of society, and strives to maintain them in his social life, can fail to understand the law in all its main features, and to live in conformity with it. It is only in peculiar and exceptional cases, that any difficulties can arise, and even these are made easy of solution, by a sincere disposi tion to conform to the order of society.

Necessity itself is totally incapable of any sharp definition. What is a mere luxury, or perhaps, entirely useless or burdensome to a savage, may be a matter of necessity to a civilized man. What may be a mere luxury or pleasure to a poɔr man, may be a necessity when he has grown rich. Necessity, therefore, can itself be only approximately defined. The law regards that as necessary, which the common sense of the country, in its ordinary modes of doing its business, regards as necessary.

By this test, the business of keeping a livery-stable for the care of people's horses, is a necessary employment in large towns, and, of course, this requires some work and attention on Sundays, and this may be performed to the extent of the necessity, by the ordinary means belonging to the business.

By this test, also, iron and glass are necessaries of life, and they can not be obtained without some work being done on Sunday, if the business is to be performed according to the ordinary skill and science of the country. The law never inquires whether iron and glass generally, or in such large quantities, are really necessary, in the strictest sense of the word, or whether it is not possible to improve the art, so that Sunday may not need to be violated. This is not the province of law, but of individual enterprise and science.

Law, therefore, does not condemn those employments which society regards as necessary, even when they encroach on the Sabbath; if, according to the ordinary skill of the business, it is necessary to do so. And then, the business being recognized as necessary, it may be per formed by means of the services of others, and by all the ordinary means of the business, so far as it is necessary.

But let us consider the statutory definition of what is forbidden. It is " any worldly employment or business whatsoever." What does this word "worldly" mean? Its correlatives help us to its meaning. Very evidently, worldly is contrasted with religious, and the worldly employments are prohibited for the sake of religious ones. Of course, therefore, no religious employments are forbidden. Hence, funerals, as religious rites, are allowed on Sundays, and all the functions of un

dertakers, grave diggers, hearse and carriage drivers, and others; though such persons use such employments as a means of livelihood. Hence, also, while purely civil contracts are forbidden on Sundays, marriage is not so, because it is not purely a civil, but also a religious contract.

But the words domestic, household, and family, are also correlative of the word worldly. If they are so in this law, then worldly employments being alone forbidden, of course these contraries are not. An obstacle to this view is, that cooking victuals in families is excepted, as though the general prohibition of worldly employments included it. Yet this exception is possibly expressed by way of precaution, to prevent a supposed, but perhaps misinterpreted Jewish law, from being misapplied to us, as though repeated in our law. Or possibly, the purpose of the proviso was, to save from the prohibition certain worldly employments, such as cooking victuals in bake-houses, boarding-houses, and inns, and delivery' of milk; and cooking in families was also named merely to prevent a prohibition of it from being implied from the proviso, though not included in the general prohibition. If this is a redundancy, it is not the only one. Cooking victuals in bake-houses and inns is specially allowed, and yet it is understood to be included under the term "works of necessity.' And if "worldly employment" is to be taken in its largest sense, it includes hunting, shooting, and sporting, and yet these are specially forbiddden.

2

These considerations seem to demand some limitation of the term "worldly business," and we are aided in making it, by the act of 1705, where it is treated as "work of their ordinary callings." So also it is explained in the statute 29 Car. II.3 We think that the terms were not intended to include such household or family work as pertains directly to the proper duties, necessities, and comforts of the day; and this work may be done by any member of the family, including domestics.

The most convincing proof that this is the true interpretation of the law, is, that it has always been so understood. It has never been regarded as applying to the proper internal economy of the family. It does not except the ordinary employments of making pies and beds, cleaning up chambers and fire-places, washing dishes, feeding cattle, and harnessing horses for going to church, because these were never regarded as worldly business of the family, and, therefore, not forbidden to the head of the family, or to any of the domestics. It is probable, however, that the most of these occupations may have been regarded as works of necessity, or as means of performing such works.

The uniform practice of the country, in all times, proves at least, that such employments are not forbidden by the law. It certainly never was intended, that the law should enter as a spy into every man's family, in order to inspect his domestic arrangements, and ascertain whether he is improperly employing his domestic servants there, or is himself doing work which religious principles would forbid. Law does not and can not direct the division and apportionment of labor among the members of the family. Our law has always considered a man's home too sacred to be subject to such espionage. Law can not descend to such functions, and surely religion can neither require nor perform them.

These domestic employments being necessary for every day, and not worldly employments in the sense of the law, may be exercised in the ordinary modes, and with the ordinary freedom of the family, without any violation of the law. Such is the act of which this defendant was convicted, and in so acting he was guiltless.

Guiltless before the civil law; by the divine law, as such merely, we have no authority to judge him. This, in many, not to say all of its elements, consists of moral and religious ideals, that are much above our present acquisitions, and, therefore, we can not enforce it. Whereas law, civil law, in its truest character, expresses the common sense and common morality of the country, and, therefore, is easily understood, obeyed, and enforced. We recognize in thought, that law and faith, or law and religion, consist of distinct classes of principles, and are enforced by essentially different means; yet it is as impossible to make a complete separation of them, as it is to separate reason from sentiment in actual humanity. Law can never become entirely infidel; for it is essentially founded on the moral customs of men, and the very generating principle of these is most frequently religion. Our civil law does not condemn the defendant.

The conviction is reversed.

SABBATH BREAKING-NECESSITY NEED NOT BE ABSOLUTE.

WILKINSON v. STATE.

[59 Ind. 416.]

In the Supreme Court of Indiana.

1. The Necessity to Excuse Sunday Labor need not be absolute; but if necessary to accomplish a lawful purpose it is enough.

2. A Fruit Grower May Pick his Fruit on Sunday and haul it on that day to Monday's market if otherwise it would be spoiled.

Howk, J. The appellant was indicted at the August term, 1877, of the court below. The indictment charged that on the 29th day of July, 1877 at Gibson County, Indiana, the appellant, who was at that time over fourteen years of age, said day being the first day of the week commonly called Sunday, was found unlawfully at common labor, and employed at his usual avocation to wit, then and there loading and hauling melons, such common labor and usual avocation not being then and there work of charity or necessity, and the appellant not being then and there one who conscientiously observed the seventh day of the week as the Sabbath, nor a traveler, a family removing, a keeper of a toll-bridge or a toll-gate, or a ferryman, acting as such; contrary to the form of the statute, etc.

Afterward, at the January term, 1878, of the court below, the appellant appeared, and, for plea to said indictment, said he was not guilty; and the issues joined were tried by a jury, and a verdict was returned, finding the appellant guilty as charged in the indictment, and assessing his fine in the sum of one dollar and fifty cents.

The appellant's written motion for a new trial was overruled by the court, and his exception to this decision was duly reserved, and judgment was then rendered on the verdict, from which judgment this appeal is now here prosecuted.

The only error assigned by the appellant, in this court, is the decision of the court below in overruling his motion for a new trial. In this motion, the causes assigned for such new trial were that the verdict of the jury was contrary to law, and that it was not sustained by sufficient evidence.

It will be seen that the question for our decision in this cause is this: Were the verdict of the jury, and the judgment of the court below thereon, sustained by sufficient legal evidence? The evidence on the trial is properly in the record; and we find it necessary to the proper understanding of this cause, and of our decision thereof, that we should set out the substance of the evidence in this opinion.

But, before doing so, we will first give the section of the statute under which the indictment was found against the appellant. The section referred to is the first section of an act entitled, "An act for the protection of the Sabbath, and providing penalties for the desecration. thereof," approved February 28th, 1855. Omitting the enacting clause, this first section reads as follows: "That if any person, of

the

age of fourteen years and upwards, shall be found on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarreling, at common labor, or engaged in their usual avocations, works of charity and necessity only excepted, such person shall be fined in any sum not less than one nor more than ten dollars; but nothing