SOME people insist that Sunday laws are civil, but we herewith furnish the judicial and historic proof from incontrovertible sources that they are religious laws, and therefore void and inoperative in America, where the church and the state are separated.

The fact that there are many conflicting decisions upon this question by jurists of equal rank and intelligence shows clearly that judges find themselves between the upper millstone of popular prejudice and the nether millstone of constitutional law; but too often the opinions and the reasons given in their supposed justification show that the courts are influenced more than they ought to be by popular religious opinion.

The following opinion in a case before. the supreme court of North Carolina, strikes at the root of this question, and expresses the view that the LIBERTY MAGAZINE has consistently maintained. from its first number. It is gratifying to learn that we have such eminent jurists on our side:

In the case of Melvin vs. Easley 52, North Carolina Reports, page 382, the question was whether the sale of horses on Sunday was valid in North Carolina, and the court ruled that the Sunday law based on the English law of 29 Charles II was a religious law, void and inoperative in North Carolina, where there was not a union of church and state, and that consequently horse selling or merchandising in private was not prohibited.

The North Carolina Sunday statute under which the case was decided, reads as follows:

water, do, or exercise any labor, business or work, of their ordinary calling (works of necessity and charity only excepted) on the Lord's Day aforesaid, or any part thereof, on pain that every person so offending, being of the age of fourteen years and upwards, shall forfeit and pay the sum of one dollar." This statute is taken from 29 Charles II, chap. 2, sec. 1, which was enacted in this colony in 1741, and reenacted after the adoption of the constitution.

Judge Pearson, one of the presiding judges of the supreme court, said, concerning the relation of the Sunday law of North Carolina to the sale of horses on Sunday:

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 or noisy labor, such as is calculated to disturb other people; for example, working at a blacksmith's anvil, or crying an auction in a town. The legislature has power to prohibit labor of this kind on Sunday, on the ground of public decency, and to prevent public devotion from being disturbed; in the same way as the exhibition of animals, or the sale of spirituous liquors within a certain distance of a religious assembly, is prohibited. But when it goes farther, and on the ground of forcing all persons to observe the Lord's Day, and carefully apply themselves to the duties of religion and piety on that day, prohibits labor which is done in private, and which does not offend public decency or disturb the religious devotions of others, the power is exceeded, and the statute is void for the excess, by force of the Declaration of Rights, sec. 19: "All men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences." Ours is a Christian country; but Christianity is not established by law, and the genius of our free institutions requires that "church" and "state" should be kept separate. In England, religion is established by law. The head of the church is the head of the state, and the statute 29 Charles II, has full force and effect. Here, is a different condition of things, and only such part of the statute as is necessary to enforce public decency is of force and effect. The English courts have held that "the spirit of the Act of 29 Charles II, is to advance the interest of religion — to turn a man's thoughts

from his worldly concerns and to direct them to the duties of piety and religion," and that "there was nothing in the act to show that it was passed exclusively for promoting public decency, and not for regulating private conduct. Labor may be private and not meet the public eye, and so not offend against public decency; but it is equally labor, and equally interferes with a man's religious duties."

The cases cited from the New England States have no bearing. Their statutes prohibit all secular labor on the Sabbath, and the notions there entertained are far more strict and intolerant than the sentiments that have heretofore prevailed in this State.

Judge Manly concurred with Judge Pearson, and made the following significant statements concerning the Statute of 29 Charles II, which was incorporated into the North Carolina statutes: —

An absolute and entire suspension of all secular employment, which would be implied in the prevention of these, and in a strict construction of our statute, has never been supposed to be compulsory in any part of our country, except, perhaps, at one time in New England, by force of their peculiar laws. 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 injunction, 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 (sec. 19), and would be violative of religious freedom, without which society could not be held together by the ties which at present bind it. So we are of opinion it is against the spirit of our legislation. . . .

I am well convinced there is nothing more essential to the physical, social, and religious elevation of a people than the institution of a week day of rest. . . . But this is not the point. . . .

The leading idea in the original framework of our government, and in the subsequent legislative and executive action under it, has been to leave men as free as is consistent with safety to interfere no more with social liberty, by law, than is needful to secure order and the rights of each and every one. Outside of this, it is left to the individual citizen to govern himself, guided by the religious and moral teachings to which he is accustomed to resort; and hence the spirit of individual responsibility, of independence and self-reliance, which is so remarkably characteristic of the American people, and which has given such

force and effect to our institutions. Of all the classes of human rights, those which belong to conscience, in the worship of God, are held the most sacred. They cannot be touched without arousing public attention and censure, and it is the last subject on which the State would resort to legislation, not actually needed for political safety and repose.

The English cases cited are in exposition of the 29 Charles II, chap. 7, and establish the conclusion that the statute was intended to act upon the private conduct of the subject. The force of this conclusion, in its bearing upon our case, is impaired by important differences between the statutes in the two cases, and by important differences in the constitutional power of the two governments, affecting the construction. The cases referred to

are Bloxome vs. Williams, 10 E. Com. L., 60; Fennell vs. Ridler, 10 Do., 261; Smith vs. Sparrow, 13 Do., 351; Williams vs. Paul, 19 Do., 192; Scarfe vs. Morgan, 4 Mees. ar.d Welsby (Ex), 270.

In England there is a Christian ritual established by law, with parliamentary provisions for inculcating it privately and publicly, and a consequent right in the government to decide matters of faith and matters pertaining to established rites. In our State there is nothing of the sort. . . . The State confesses its incompetency to judge in spiritual matters between men or between man and his Maker, and leaves all a perfect religious liberty to worship God as conscience dictates, or not to worship him at all, if they can so content themselves. Both peoples are equally Christian, and governed in their affairs, national and personal, alike, by the principles of Christian morality; but the one, through its government, deems it proper to cooperate with the ministers of religion in fostering and enforcing; the other abjures all power to interfere, and leaves spiritual matters exclusively in the hands of the teachers of religion.

Hence, the English cases are not regarded as entitled to the weight of authority here. Their judges are interpreting a different statute, in many important particulars, from that which we are called upon to expound. Their constitution and parliamentary powers and usages are different, and in the light of such differences, the same minds would probably come to different conclusions.

The defense 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.- Vol. LII, North Carolina Reports, pages 378-388.'

1 Briefly stated, the case was one in which one man had entered into a contract on Sunday for the purchase of certain horses. Subsequently he sought to escape the obligations he had assumed, by pleading that the contract was void because made on Sunday.

CHIEF JUDGE CLARK of the supreme court of North Carolina shows clearly that the United States is not a Christian nation in a legal sense, and consequently religious institutions have no legal status. with the government. We commend the decision of the supreme court of North Carolina on Sunday laws to the Oklahoma court.

The Sunday laws of both Oklahoma and North Carolina are based on religion; that is, their object is to foster religion. The Sunday law of Oklahoma gives a religious reason why the day. should be observed. The North Carolina "Revised Statutes," chap. 118, sec. I, says:

That all and every person and persons whatsoever shall, on the Lord's Day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that no tradesman, artificer, planter, laborer, or other person whatsoever, shall, upon the land or water, do or exercise any labor, business, or work, of their ordinary calling (works of necessity and charity only excepted) on the Lord's Day aforesaid or any part thereof, on pain that every person so offending, being of the age of fourteen years and upward, shall forfeit and pay the sum of one dollar.

This statute," remarks the judge, "is taken from 29 Charles II, chap. 2, sec. I, which was enacted in this colony in 1741, and reenacted after the adoption of the constitution." Consequently, the decision of Judge Clark of the supreme court of North Carolina, in Rodman vs. Robinson, 134 North Carolina Reports," page 508, ought to have weight in the Oklahoma case of State vs. Krieger. Both involve the question of whether a business transaction is legal, or valid, on Sunday. Judge Clark, in delivering his opinion, said:

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Counsel for defendant contend that Christianity is a part of the law of the land, and hence, independent of any statute, the contract is invalid. If the observance of Sunday were

commanded by statute as an act of religior or worship, such statute would be absolutely forbidden. The Founder of the Christian religion said that his kingdom was "not of this world," and under our constitutions, both State and federal, no act can be required or forbidden by statute because such an act may be in accordance with or against the religious views of any one. The First Amendment to the federal Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and the constitution of this State. Art. I, Sec. 26, reads: "All men have a natural and inalienable 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." If, therefore, the cessation of labor or the prohibition or the performance of any act were provided by statute for religious reasons, the statute could not be maintained. The Seventh-day Baptists and some others, as well as the Hebrews, keep Saturday, and the Mohammedans observe Friday. To compel them or any one else to observe Sunday for religious reasons. would be contrary to our fundamental law...

It is incorrect to say that Christianity is a part of the common law of the land, however it may be in England, where there is union of church and state, which is forbidden here. The beautiful and divine precepts of the Nazarene do influence the conduct of our people and individuals, and are felt in legislation and in every department of activity. They profoundly impress and shape our civilization. But it is by this influence that it acts, and not because it is a part of the organic law which expressly denies religion any place in the supervision or control of secular affairs. As a contemporary construction of the federal Constitution, it may be well to recall that one of the first treaties of peace made by the United States,- that with Tripoli,- which was sent to the Senate with the signature of George Washington, who had been president of the convention which adopted the United States Constitution, began with these words: "As the government of the United States is not in any sense founded on the Christian religion." This treaty was ratified by the Senate.

If it was presumption in Uzza to put forth his hand to stay the tottering ark of God at the threshing floor of Chidon, it is equally forbidden under our severance of

church and state for the civil power to enforce cessation of work upon the Lord's Day in maintenance of any religious views in regard to its proper observance. That must be left to the conscience of men, as they are severally influenced by their religious instruction. Churches differ widely, as is well known, on this subject; the views of Roman Catholics and Presbyterians, for instance, being divergent, and the views of other churches differing from both. Even if Christianity could be deemed the basis of our government, its own organic law must be found in the New Testament, and there we shall look in vain for any requirement to observe Sunday. . . . The Master's references to the Sabbath were not in support but in derogation of the extreme observance of the Mosaic day of rest indulged in by the Pharisees. The Old Testament commanded the observance of the Sabbath, . . . and it designated Saturday, not Sunday, as the day of rest.

Sunday was first adopted by Christians in lieu of Saturday long years after Christ, in commemoration of the resurrection. The first "Sunday law" was enacted in the year 321 after Christ, soon after the emperor Constantine had abjured paganism, and apparently for a different reason than the Christian observance of the day. It is as follows: "Let all judges and city people and all tradesmen rest upon the venerable day of the sun. Let those dwelling in the country freely and with full liberty attend to the culture of their fields, since it frequently happens that no other day is so fit for the sowing of grain or the planting of vines; hence, the favorable time should not be allowed to pass, lest the provisions of heaven be lost." "Given the seventh of March, Crispus and Constantine being consuls, each for the second time (321)."-Codex Justin., lib. 3, tit. 12, i. 3.

Evidently Constantine was still something of a heathen. As late as the year 409 two rescripts of the emperors Honorius and Theodosius indicate that Christians then still generally observed the Sabbath (Saturday, not Sunday). The curious may find these set out in full in Codex Justin., lib. 1, tit. 9, ex. 13. Not till near the end of the ninth century was Sunday substituted by law for Saturday as the day of rest by a decree of the emperor Leo. (Leo Cons., 54.)

The Saxon laws under Ine (about A. D. 700), forbade working on Sunday, but under Alfred (A. D. 900) and Athelstan (A. D. 924) the prohibition was merely against marketing on Sunday, and there seems to have been no statute against working on Sunday (whatever the church may have enjoined) until the abovecited statute, 29 Charles II, chap. 7 (A. D. 1678), the first part of which is almost verbatim our statute. (Code, sec. 3782.) This statute is the foundation of nearly all the

Sunday legislation in this country. Indeed, it appears from the records of Merton College, Oxford, that at its manor of Ibstone, in the latter part of the thirteenth century, contracts with laborers provided for cessation from work on Saturdays and holidays, but it was stipulated that work should be done in regular course on Sunday. (Thorold Rogers's "Work and Wages," chap. 1.) Indeed, it seems that this was usual in England till the time of the Commonwealth and the rise of the Puritans to power, but the change was not enacted into law till the above-cited statute of Charles II, in 1678.

The first Sunday law in this country was enacted in Virginia in 1617 (three years before the landing at Plymouth), and punished a failure to attend church on Sunday, with a fine payable in tobacco. This was reenacted in 1623. (Henning's "Statutes at Large," Va., 1619-60, Vol. I, page 123.) Plymouth Colony made it punishable by imprisonment in the stocks to go to sleep in church (Records, Vol. XI, page 214), and on June 10, 1650, the same colony made it punishable by whipping to do "any servile work or any such like abuse" on the Lord's Day. "So any sin committed with an high hand, as the gathering of sticks on the Sabbath day [Sunday], may be punished with death, when a lesser punishment might serve for gathering sticks privily and in need."— Records of Massachusetts Bay," Vol. II, page 93.

Publicity did not then have the virtue attributed to it as now, but the reverse. "Divers other offenses were made capital punishments, viz., profaning the Lord's Day in a careless or scornful neglect or contempt thereof," says Hutchinson's "History of Massachusetts," Vol. I, page 390. "The New Haven Colony Records," 1653-55, page 605, contain a similar provision that profaning the Lord's Day by "sinful servile work or unlawful sport, recreation, or otherwise, whether willfully or in a careless neglect, shall be duly punished by fine, imprisonment, or corporally, according to the nature or measure of such sin and offense; " providing further that if "the sin was proudly, presumptuously, and with a high hand committed," such person "shall be put to death." On May 19, 1668, after the union of New Haven and Connecticut in one colony, unnecessary travel or playing on Sunday, or keeping out of the meetinghouse, was made punishable by imprisonment in the stocks, adding, "And the constables in the several plantations are hereby required to make search for all offenders against this law, and make return thereof."-" Colonial Records of Connecticut," 1665-67, page 88. Similar laws, but of less severity, were enacted in some other provinces.

We hold that our statute does not make void the contract here sued on. In the lan