were carried to the extreme, of giving equal protection to the enjoyment of the religious days of every sect, the business prosperity of the country would be seriously impaired. Although the Jew and the Mohamedan have the same right to the quiet and undisturbed enjoyment of his holy day, the public welfare, which likewise is the main spring to the Sunday laws, requires that his enjoyment of his religion should sustain the burden and annoyance occasioned by the general prosecution of trades and occupations on their holy days. [In Charleston, S. C., it is said that an ordinance requires all vehicles on Saturday to pass the Jewish synagogues in a slow walk, in order to reduce disturbance of the worship to a minimum.] The selection of Sunday, as the day of rest to be observed by all, is not justified by its religious character, although its religious character, in the eyes of the masses of this country, suggests the reason of its selection in preference to some other day. The interference of the State is, after all, for the purpose of promoting the public welfare, for the purpose of securing to society the benefits arising from a general periodical cessation from labor; and that object can be best attained by setting apart as a legal day of rest, that day which is looked upon as a holy day by the vast majority of our people. In some of our States, there are statutory exceptions in favor of those who conscientiously observe some other day of the week as a holy day, and abstain from labor on that day, and in Ohio, it has been held that a statute which did not contain such an exception, was for that reason unconstitutional.1 But in other States, it is held that the Sunday law in its application to the orthodox Jew, was not in violation of the article in the State constitution, which declares that no person shall "upon any pretense whatever be hurt, molested, or restrained in his religious sentiments or persuasions." The restraint upon the right to engage in lawful employment and

2

1 Cincinnati v. Rice, 15 Ohio, 225; Canton v. Nist, 9 Ohio St. 439. Frolickstein v. Mobile, 40 Ala. 725.

to do otherwise lawful acts, is reasonable, because necessary to the successful maintenance of a general day of rest.1

While it is claimed that the State can not go beyond the limitations that have been presented, in enacting laws for the observance of Sunday as a day of rest, it rests with the discretion of the legislature how far the enactment should extend within these limitations, and the scope of the legislation has varied with the public policy in each State. We have already noticed exemptions from the operation of the Sunday laws in favor of the Jew. In some of the States only a person's ordinary calling is intended to be sup

1 "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 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 transact, were resting on the day on which he was working. The legislature, 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 religious duty, but because such observance promotes the physical, mental and moral well-being of the community; and Sunday is selected as the 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 Sunday 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. This I conceive is the main object of our law; but it is not its only object." State v. Balt. & O. R. R. Co., 15 W. Va. 362 (36 Am. Rep. 803, 814); an exemption of this kind was declared unconstitutional in Louisiana, because it discriminated between religious sects. Shreveport v. Levy, 26 La. Ann. 67. But it was held valid in Indiana. Johns v. State, 78 Ind. 332. In Simonds' Exrs. v. Gratz, 2 Pen. & Watts, 412, it was held that it was no ground for a continuance that a Jew had conscientious scruples against attendance at the trial of his cause on Saturday.

2

1

pressed; and there is an universal exception in favor of works of charity and necessity. But what constitutes. charity and necessity is not viewed in the same light in every State. It is a common rule that traveling on Sunday, except in cases of charity or necessity, is unlawful, and any one injured while so doing cannot recover damages. But whether a certain act is looked upon as a necessity, will depend largely upon the condition of public sentiment, its mere fitness and propriety being the only standard of right and wrong. We must therefore expect to find contradictory conclusions upon this question of necessity. In Pennsylvania it is not considered a work of necessity for a barber to shave his customers on Sunday,' while it is deemed a necessity in Texas. In some States

the running of railroad trains and the operation of street railroads are held to be necessary. In other States both have been held to be violations of the Sunday laws.' The transportation of cattle received on Sunday, feeding stock and gathering the necessary feed,' the gathering of grain which may be injured if left in the field until Monday, 10 the expenditure of the labor necessary to prevent waste of

1 Mills v. Williams, 16 S. C. 594, 597, approving Hellams v. Abercrombie, 15 S. C. 110, 113; Bennett v. Brooks, 9 Allen, 118.

? Hinckley v. Penobscot, 42 Me. 89; Cratty v. Bangor, 57 Me. 423 (2 Am. Rep. 56); Johnson v. Irasburg, 47 Vt. 28 (19 Am. Rep. 111); Bosworth v. Swansey, 10 Met. 364; Connolly v. Boston, 117 Mass. 64 (19 Am. Rep. 396); Davis v. Somerville, 128 Mass. 594.

3 See Davis v. Somerville, 128 Mass. 594; McClary v. Lowell, 44 Vt. 116 (8 Am. Rep. 366); Logan v. Matthews, 6 Pa. St. 417; Johnson v. People, 31 Ill. 469.

4 Com. v. Jacobus, 1 Leg. Gaz. Rep. (Pa.) 491.

5 State. v. Lorry, 7 Barb. 95.

• Com. v. Louisville & Nashville R. R. Co., 80 Ky. 291; Augusta & S. R. R. Co. v. Renz, 55 Ga. 126.

7 Sparhawk v. Union Passenger R. Co., 54 Pa. St. 401; Com. v. Jeandell, 2 Grant Cas. 506.

8 Phil. & B. R. R. Co. v. Lehman, 56 Md. 209.

Edgerton v. State, 69 Ind. 588.

10 Turner v. State, 67 Ind. 595.

sap in making maple sugar,1 have been held to be lawful because they were works of necessity. In other States similar acts were held to be unlawful, on the ground of not being deemed necessary."

1 Whitcomb v. Gilman, 35 Vt. 497.

2 State v. Goff, 20 Ark., 289; Jones v. Andrews, 10 Allen, 18.

§ 76

CHAPTER VIII.

FREEDOM OF SPEECH AND LIBERTY OF THE PRESSES

§ 81. Police supervision prohibited by the constitutions. A popular goverument, and hence freedom from tyranny, is only possible when the people enjoy the freedom of speech, and the liberty of the press. If the individual is not free to publish by word of mouth or writing, or through the press, the complaints of encroachments of the government or of individuals upon his rights and liberties, he is deprived of his liberty, and he is not a freeman. Even if there were no special constitutional restrictions upon the governmental control of these rights, the State regulation would be unconstitutional, which denied the right of the individual to publish what he pleases, or prohibited the publication of newspapers or other periodicals or books, on the general ground that they would involve the deprivation of liberty and the right to pursue happiness. But the liberty of speech and of the press is not to be confounded with a licentiousness and a reckless disregard of the rights of others. No one can claim the right to slander or libel another, and the constitutions do not permit or sanction such wrongful acts. Liberty of speech and of the press, therefore, means the right to speak or publish what one pleases, the utterance of which does not work an injury to any one, by being false. The common law provided for the due punishment of such trespasses upon the right to reputation, and ordinarily these remedies, which prevail generally, afford sufficient protection to the individual and the public. But sometimes, and oftener in these later days, when the press has acquired extraordinary