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by the oath which they prescribe, we appeal to the Supreme Being so to deal with us hereafter as we observe the obligations of our oaths.

The pagan world were and are without the mighty influence of this principle, which is proclaimed in the Christian system; their morals were destitute of its powerful sanction, while their oaths neither awakened the hopes nor the fears which a belief in Christianity inspires.

While the Constitution tolerates the religious professions and worship of all men, it does more in behalf of the religion of the gospel, and by acknowledging, and in a certain sense incorporating its truths into the laws of the land, we are restrained from adopting the proposed amendment whereby the Christian religion may lose that security which every other Christian nation is anxious to afford it.

In 1861, the Supreme Court of New York sustained and repeated the ancient decisions of the courts of that and other States in favor of Christianity.

DECISION OF THE SUPREME COURT.

February Term, 1861,-Justices Clarke, Sutherland, and Allen. In the case of Gustav Lindenmuller, Plaintiff in Error, vs. The People, Defendants in Error, convicted under the act of April, 1860, of giving dramatic representations on Sunday, the opinion of the court was given May 29, 1861. As the test case, and as involving important principles, the following abstract of the views of the court will command deserved attention and general approbation. The full opinion is very elaborate and voluminous. Judge Allen is understood to be its author:-

Christianity is part of the common law of this State, in the qualified sense that it is entitled to respect and protection as the acknowledged religion of the people. The right of unconstrained religious belief, and the proper expression of it, is guaranteed to all; but it must be exercised with strict regard to the equal rights of others; and when belief or unbelief leads to acts which interfere with the rights of conscience of those who represent the religion of the country as established,—not by law, but by immemorial consent and usage,-their acts may be restrained by legislation. If Christianity were established by law, it would be a civil or political institution, which it is not. It is, in fact, the religion of the people, and ever has been, and has been so recognized from the first by Constitutional Conventions, legislatures, and courts of justice.

It is not disputed that Christianity is a part of the common law of England. By the Constitution of 1777, the common law as it was then in force, subject to legislative changes, and with specified exceptions, was, and ever has been, a part of the law of this State. The claim that the constitutional guarantees of religious liberty are inconsistent with the recognition of Christianity as the religion of the people, is re

pelled by the known character and history of the framers of the Constitution. They would not sacrifice their freedom or their religion. They and their forefathers were the friends and champions of both.

In the several Constitutions of 1777, 1821, and 1846, and in the proceedings of the Constitutional Conventions, there are abundant pro visions and recitals very clearly recognizing some of the fundamental principles of the Christian religion, embodying the common faith of the community with its ministers and ordinances, existing without the aid of or political connection with the State, but as intimately connected with a good government, and the only sure basis of sound morals. These conventions also opened their meetings with prayer, observed the Christian Sabbath, and excepted that day from the time allowed to the Governor for returning bills to the legislature.

The recognition of different denominations of Christians does not detract from the force of the recognition of Christianity as the religion of the people; but it was intended to prevent the unnatural connection between Church and State. It was believed that Christianity would be purer and more prosperous by leaving the individual conscience free and untrammelled; and "wisdom is justified of her children" in the experiment; which could hardly be said if blasphemy, Sabbath-breaking, and kindred vices were protected by the Constitution. They prohibited a Church establishment, and left every man free to worship God according to the dictates of his own conscience, or not to worship, as he pleases. But they did not suppose they had abolished the Sabbath as a day of rest for all, and of Christian worship for those who were disposed to engage in it, or deprived themselves of the power to protect religious worshippers from unseemly interruptions. Compulsory worship is prohibited; and religious opinion is beyond the reach of law; but this liberty of conscience is entirely consistent with the existence in fact of the Christian religion, entitled to and enjoying the protection of the law. The public peace and safety are greatly dependent upon the protection of the religion of the country, and the preventing and punishing of offences against it and acts subversive of it. The claim of the defence, carried to its necessary sequence, is that the Bible and religion with all its ordinances, including the Sabbath, are as effectually abolished as they were in the Revolution of France, and so effectually abolished that duties may not be enforced as duties to the State, because they have been heretofore associated with acts of religious worship or connected with religious duties.

The opinion proceeds to cite the decisions in our own and other State courts in support of the views expressed, and shows that in the Constitutional Convention of 1821 the question was intelligently disoussed and settled by our most eminent jurists, so as to make the interpretation of Chancellor Kent, in the case of The People vs. Ruggles, that the Christian religion was the law of the land, in the sense that it was preferred over all other religions, and entitled to the recognition and protection of the temporal courts as the common law of the State, the fixed meaning of the Constitution. The Christian Sabbath, as one of the institutions of that religion, may be protected from desecration by such laws as the legislature may deem necessary to secure to the

community the privilege of undisturbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society; and this not as a duty to God, but as a duty to society and to the State. Upon this ground the law in question could be sustained; for the legislature are the sole judges of the acts to be prohibited with a view to the public peace, and as obstructing religious worship or bringing into contempt the religious institutions of the people.

CIVIL BASIS OF SUNDAY LAWS.

As a civil and political institution, the establishment and regulation of a Sabbath is within the just power of the civil Government. Older than our Government, the framers of the Constitution did not abolish, alter, or weaken its sanction, but recognized it, as they might otherwise have established it. It is a law of our nature that one day in seven should be observed as a time of relaxation, and experience proves a day of weekly rest to be "of admirable service to a State, considered merely as a civil institution." (4 Bl. Com. 63.) Physical laws accord with the Decalogue. All interests require national uniformity in the day ob served, and that its observance should be so far compulsory as to protect those who desire and are entitled to the day.

As a civil institution the sanction of the day is at the option of the legislature; but it is fit that the Christian Sabbath should be observed by a Christian people, and it does not detract from the moral or legal sanction of a statute that it conforms to the law of God, as recognized by the great majority of the people. Existing here by common law, all that the legislature attempts to do is to regulate its observance. The common law recognizes the day; contracts, land-redemption, &c., maturing on Sunday, must be performed on Saturday or Monday. Judicial acts on the Sabbath are mostly illegal. Work done on Sunday cannot be recovered for, &c.

The Christian Sabbath is, then, one of the civil institutions of the State, to which the business and duties of life are by the common law made to conform and adapt themselves. Nor is it a violation of the rights of conscience of any that the Sabbath of the people, immemorially enjoyed, sanctioned by common law, and recognized in the Constitution, should be respected and protected by the law-making power. The existence of the Sabbath 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. Precedents are found in the statutes of every Government really or nominally Christian, from the period of Athelstan to the present day. Even the "Book of Sports" of James I., to which our attention has been called, prohibited, as unlawful, certain games and sports on Sunday, "interludes" included: so that Lindenmuller's theatre would have been proscribed even by the Royal "Book of Sports."

Nearly all the States of the Union have passed laws against Sabbathbreaking, and prohibiting secular pursuits on that day; and in none have they been held repugnant to the Constitution, with the exception of California; while in most States the legislature has been upheld by

the courts and sustained by well-reasoned opinions. As the Sabbath is older than the Government, and has been legislated upon by colonial and carly Staté authorities, if there were any doubt about the meaning of the Constitution securing freedom in religion, the cotemporaneous and continued acts of the legislature under it would be very good evidence of the intent of its framers, and of the people who adopted it as their fundamental law. From 1788 downward, various statutes have been in force to prevent Sabbath-desecration, and prohibiting acts upon that day which would have been lawful on other days. Early in the history of the State Government, the objections made to the act of 1860 were taken before the Council of Revision to an act which undertook to regulate Sabbath-observance. The Council overruled the objections, and held them not well taken. The act now complained of compels no religious observance, and offences against it are punishable not as sins against God, but as injurious to society. It rests upon the same foundation as a multitude of other statutes,-such as those against gambling, lotteries, horse-racing, &c.,-laws which do restrain the citizen and deprive him of some of his rights; but the legislature have the right to prohibit acts injurious to the public, subversive of the Government, and which tend to the destruction of the morals of the people and to disturb the peace and good order of society. It is exclusively for the legislature to determine what acts should be prohibited as dangerous to the community. Give every one what are claimed as natural rights, and the list of mala prohibita of every civilized state would disappear, and civil offences would be confined to those acts which are mala in se; and a man may go naked through the streets, establish houses of prostitution, and keep a faro-table on every street-corner. This would be repugnant to every idea of a civilized government. It is the right of the citizen to be protected from offences against decency, and against acts which tend to corrupt the morals and debase the moral sense of the community. It is the right of the citizen that the Sabbath, as a civil institution, should be kept in a way not inconsistent with its purpose and the necessity out of which it grew as a day of rest, rather than as a day of riot and disorder, which would be to overthrow it and render it a curse rather than a blessing.

But it is urged that it is the right of the citizen to regard the Sabbath as a day of innocent recreation and amusement. Who, then, is to judge and decide what amusements and pastimes are innocent, as having no direct or indirect baneful influence upon the community,-as not in any way disturbing the peace and quiet of the public,-as not interfering with the equally sacred rights of conscience of others? May not the legislature, like James I. cited to us as a precedent, declare what recreations are lawful and what are not lawful, as tending to a breach of the peace or a corruption of the morals of the people? That is not innocent which may operate injuriously upon the morals of old or young, which tends to interrupt the quiet worship of the Sabbath, and which grievously offends the moral sense of the community, and thus tends to a breach of the peace. It may well be that the legislature thought that a Sunday theatre, with its drinking-saloons and its usual

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inducements to licentiousness and other kindred vices, was not consistent with the peace, good order, and safety of the city. They might well be of the opinion that such a place would be a nursery of vice, a school of preparation to qualify young men for the gallows and young women for the brothel." But, whatever the reason may have been, it was a matter within the legislative discretion and power, and their will must stand as the reason of the law.

We could not, if we would, declare that innocent which they have adjudged baneful and have so prohibited. The act, in substance, declares a Sunday theatre to be a nuisance, and deals with it as such. The Constitution provides for this case, by declaring that the liberty of conscience secured by it" shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State." The legislature place Sunday theatres in this category, and they are the sole judges. The act is clearly constitutional as dealing with and having respect to the Sabbath as a civil and political institution, and not affecting to interfere with religious belief or worship, faith or practice.

It was conceded upon the argument that the legislature could entirely prohibit theatrical exhibitions. This, I think, yields the whole argument; for, as the whole includes all its parts, the power of total suppression includes the power of regulation and partial suppression. The conviction was right, and the judgment must be affirmed.

As the solemnity of an oath and its administration more properly belongs to the judges of courts than to any other class of civil officers, we insert in this place the form of an oath prescribed by an act of Congress :—

CHAP. CXXVIII.-An Act to prescribe an Oath of Office, and for other

purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation:-"I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended Government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best

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