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the conscience, and such a person's testimony was therefore unworthy of belief. The growth of public opinion towards the complete recognition of religious liberty is exerting its influence upon this rule, and in many of the State constitutions there are provisions which abolish this and every other religious qualification of witnesses. Mr. Cooley says, “wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinctions.” But it would appear to us that the enforcement of such a law would violate the constitutional guaranty of religious liberty, and hence the enactment of this constitutional provision was an implied repeal of the common-law requirement.


§ 76. Sunday laws. The most common form of legal interference in matters of religion is that, which requires the observance of Sunday as a holy day. In these days, the legal requirements do not usually extend beyond the compulsory cessation of labor, the maintenance of quiet upon the streets, and the closing of all places of amusements; but the public spirit which calls for & compulsory observance of these regulations is the same which in the colonial days of New England imposed a fine for an unexcused absence from divine worship. Although other reasons have been assigned for the State regulation of the observance of Sunday, in order to escape the constitutional objections that can be raised against it, if it takes the form of a religious institution, those who are most active in securing the enforcement of the Sunday laws do so, because of the religious character of the day, and not for any economical reason. While it is not true that the institution of a special day of rest for all men is “a purely religious idea," 1 it is because of the strong influence of the religious idea that there are active supporters of such laws. Whatever economical reasons may be urged in favor of the Sunday laws, requiring the observance of the day as a day of general rest from labor, their influence upon the people would be powerless to secure an enforcement of these laws. The effectiveness of the laws is measured by the influence of the Christian idea of Sunday as a religious institution. 6. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohamedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication, and in most of the States of our confederacy, the aid of the law to enforce its observance has been given under the pretense of a civil, municipal or police regulation.”' ?

1 Such a provision is to be found in Arkansas, California, Florida, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Nevada, New York, Ohio, Oregon, Wisconsin.

3 See Perry's Case, 3 Gratt. 632.

3 See pust.

But Sunday, as a religious institution, can receive no legal recognition. It is manifest that the religious liberty of the Jew or the infidel would be violated by a compulsory observance of Sunday as a religious institution. While such a regulation, if it did not extend to a prohibition of the Jew's religious observance of the seventh day, or to a compulsory attendance upon Christian worship, may not amount to a direct infringement of his religious liberty, he may

still reasonably claim that it operates indirectly as a discrimination against his religion, by requiring him to respect Sunday as a day of rest, while his conscience requires of him a like observance of Saturday. But the legal establishment of Sunday as a religious institution, would violate the Christian's religious liberty, as much as that of the Jew. The compulsory observance of a religious institution against conscience is no more a violation of the constitutional limitations than a like compulsion in conformity with one's religious convictions. 6. The fact that the Christian voluntarily keeps holy the first day of the week does not authorize the legislature to make that observance compulsory. The legislature caupot compel a citizen to do that which the constitution leaves him free to do, or omit, at his election.") We therefore conclude that Sunday laws, so far as they require a religious observance of the day, are unconstitutional, and cannot be enforced. If these laws can be sustained at all, they must be supported by some other unobjectionable reasons. But there have been decisions in favor of the compulsory observance of Sunday as a religious institution.s Notwithstanding the strictly religious aspect the observance of a general day of rest has always assumed among all people, and under all systems of religion ; although the observance of such a day has always been taught to be a divine injunction ; it is claimed, with much show of reason, that this custom, even as a religious institution, was originally established as a sanitary regulation, designed to procure for the individual that periodical rest from labor so necessary to the recuperation of the exhausted energies : and the religious character was given to it, in order to secure its more universal observance. In the primitive ages of all nations, theology, medicine and law were administered by the same body of men, and it was but natural that they should apply to a much needed sanitary regulation, the spiritual influence of theology and its obligation of law. Under this view of the matter, the observance of a day of rest was, in the order of history, primarily a sanitary regulation, and secondarily a religious institution. Under our constitutional limitations, it is only in its primary character that an observance of the law can be exacted.

1 Terry, Ch.J., in Ex parte Newman, 9 Cal. 509. 2 Opinion of Terry, Ch. J., 9 Cal., p. 509. s Cooley's Const. Lim. *476.

1 Burnett, J., in Ex parte Newman, 9 Cal. 510.

2 “Under the constitution of this State, the legislature cannot pass any act, the legitimate effect of which is forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When therefore a citizen is sought to be compelled by the legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance, the act is unconstitutional.” Burnett, J., in Ex parte Newman, 9 Cal. 510. See, also, Com. 0. Has, 122 Mass. 40; Com. v. Specht, 8 Pa. St. 312; Com. v. Wolf, 3 Serg. & R. 48; Com. v. Nesbit, 34 Pa. St. 398; Hudson, v. Geary, 4 R. I. 485; State o. Balt. & O. R. R., 15 W. Va. 362 (36 Am. Rep. 803); Charleston v. enjamin, 2 Strobh. 508; McGatrick v. Wason, 4 Ohio St. 566; Johns v. State, 78 Ind. 332; Bohl v., State, 3 Tex. App. 683; State o. Bott, 31 La. Ann. 663 (33 Am. Rep. 224).

3 Scott, J., in State 0. Ambs, 20 Mo. 214, 216, uses this language: “Those who question the constitutionality of our Sunday laws seem to imagine that the constitution is to be regarded as an instrument formed for a State composed of strangers collected from all quarters of the globe, each with a religion of his own, bound by no previous social ties, nor sympathizing in any common reminiscences of the past; that, unlike ordinary laws, it is not to be construed in reference to the State and conditionof those for whom it was intended, but that the words in which it is comprehended are alone to be regarded without respect to the history of the people for whom it was made. It is apprehended, that such is not the mode by which our organic law is to be interpreted. We must regard the people for whom it was ordained, It appears to have been made by Christian men. The constitution on its face shows that the Christian religion

All sanitary regulations operate directly upon the individual, and from the medical standpoint, their primary object is the benefit to the individual. It is so likewise with the observance of a day of rest. It is the individual which is primarily benefited by the cessation from labor, and the community or society is only remotely and indirectly bene


was the religion of its framers. * They, then, who engrafted on our constitution the principles of religious freedom contained therein, did not regard the compulsory observance of Sunday, as a day of rest, a violation of those principles. They deerned a statute compelling the observance of Sunday necessary to secure a full enjoyment of the rights of conscience. How could those who conscientiously believe that Sunday is hallowed time, to be devoted to the worship of God, enjoy themselves in its observance amidst all the turmoil and bustle of worldly pursuits, amidst scenes by which the day was desecrated, which they conscientiously believe was holy ?" See also, Stover v. State, 10 Ark. 259, 263; Lindenmuller o. People, 33 Barb. 568.

fited by the increased vitality of his offspring and possibly relief from the public burden of an early decrepitude, the result of overwork. The failure to observe this law of nature, calling for rest from labor on every seventh day, — for this has been demonstrated by the experience of ages to be a law of nature,— is, like every other inordinate gratification of one's desires, a vice, and not the subject of law. The possible evil, flowing from this “ vice,” will not justify the State authorities in entering the house and premises of a citizen, and there compel him to lay down his tool or his pen, and refrain from labor, on the ground that his unremittent toil will possibly do damage to society through his children. How can it be proved a priori that that man needs the rest that the law requires him to take? He may be fully able to continue his labor, at least during a portion of the Sunday, without doing any damage to anybody. Furthermore, it may be shown that he has for special reasons, or because his religion requires it, abstained from labor for the required time on some other day. And having done so, from the individual standpoint, he has substantially complied with the requirements of the law. Then must the conclusion be

1 “Again it may be well considered that the amount of rest which would be required by one half of society may be widely disproportionate to that required by the other. It is a matter of which each individual must be permitted to judge for himself, according to his own instincts and necessities. As well might the legislature fix the days and hours for work, and enforce their observance by an unbending rule which shall be visited alike upon the weak and strong; whenever such attempts are made, the law-making power leaves its legitimate sphere, and makes an incursion into the realms of physiology, and its enactments like the sumptuary laws of the ancients, which prescribe the mode and texture of people's clothing, or similar laws which might prescribe and limit our food and drink, must be regarded as an invasion, without reason or necessity, of the natural rights of the citizens, which are guaranteed by the fundamental law.” Terry, Ch. J., Ex parte Newman, 9 Cal. 508.

3 " It appears to us that if the benefit of the individual is alone to be considered, the argument against the law which he may make, who has already observed the seventh day of the week, is unanswerable.” Cooley's Const. Lim. *476, *477.

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