Jan. 21, 1908. land Sunday law of 1723. COURT OF APPEALS OF THE DISTRICT MARYLAND SUNDAY LAW OF 1723 NOT IN FORCE [DECIDED JANUARY 21, 1908.] Mr. Justice Van Orsdel delivered the opinion of the Court. This cause was brought here on writ of error to the Police Court of the District of Columbia. An information was filed therein, charging the defendant with the offense of working on Sunday. The statute, under which the prosecution was sought to be maintained, was an act of the Maryland legislative assembly of 1723, chapter 16, section 10, appearing in Abert's Compiled Statutes D. C., page 176. It is as follows: "That no person whatsoever shall work or do any bodily labor on the Lord's day, commonly called SunThe Mary day, and that no person having children, servants, or slaves shall command or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's day (works of necessity and charity always excepted), nor shall suffer or permit any children, servants, or slaves to profane the Lord's day by gaming, fishing, fowling, hunting, or unlawful pastimes or recreations, and that every person transgressing this act, and being thereof convict by the oath of one sufficient witness, or confession of the party before the Police Court (a single magistrate) shall forfeit two hundred pounds of tobacco, to be levied and applied as aforesaid." 2 1" Washington Law Reporter," February 14, 1908. 2 This law had been incorporated into the laws of the District, along with other Maryland laws, by act of Congress in 1801, when the Never enforced The complaint was in the usual form, signed and sworn to by the corporation counsel. The defendant demurred to the complaint on several grounds, one of which was "that the said act of the Maryland Legislature has never been enforced in this District, in District. and by disuse has become obsolete." The police justice sustained the demurrer and dismissed the defendant. From that judgment the case was brought here on a writ of error by the corporation counsel. We think a consideration of the one ground of demurrer above cited will fully dispose of the questions involved in this case.1 District was taken over by Congress, and remained on the District statute books in codes compiled as late as 1868. But it had never been enforced. A test case, however, was started under it in 1907. In July of that year, General John M. Wilson protested to the District Commissioners against the hauling of dirt along Massachusetts Avenue on Sunday, July 21, by a Mr. Charles Robinson, a driver for J. H. Houser, the District contractor. The complaint was referred to Corporation Counsel Thomas for an opinion as to whether prosecution could be brought, resulting in the exhuming of this old Maryland blue law, and a trial under it in the Police Court before Judge Mullowny, October 29, 1907. Judge Mullowny at once decided that the law was obsolete and inoperative. The case was appealed to the District Court of Appeals, the highest court of the District, where it came up for hearing January 10, 1908. The decision, confirming the opinion of the lower court, was rendered January 21, 1908. In his brief before the latter court, Edward S. Duvall, Jr., attorney for the defendant, said: The Act is unconstitutional because it is plainly a law prohibited by the first amendment to the Constitution." 1 The court here anticipates the ground upon which it set the law aside that of its becoming obsolete through disuse. Upon this ground a large proportion of the Sunday laws of the country could be set aside. A little further on the court alludes to a far better ground upon which it might have based its decision, where it says that if the act was intended to enforce the observance of the Sabbath as a religious obligation," which still further on it admits to be the case, we are of the opinion that it cannot be legally enforced under our present constitutional form of government; " in other words, that it is unconstitutional. But, apparently fearing to upset Test case under law. Unconstitutional yet constitutional. Legisla ture cannot impose reli While it is the legitimate prerogative of the Legislature to impose upon society the civil duty of observing one day in seven as a day of rest, it is beyond its power to impose the observance of Sunday as a purely religious duty. In other words, while the Legislature may very properly prescribe and impose gious duties. upon the citizen obligations of a civil nature, it cannot impose the obligations as religious duties. If, therefore, the act in question was intended to enforce the observance of the Sabbath as a religious obligation, and not a civil duty, whatever power the colonial legislative assembly may have had to prescribe and enforce such a law, we are of the opinion that it cannot be legally enforced under our present constitutional form of government. The Constitution of the United States guarantees to the citizen absolute religious freedom in that it forbids the enactment of any law respecting an establishment of religion, or that will prohibit the free exercise thereof. Law unconstitutional. Object of law shown to be religious. With this distinction before us, let us analyze the manifest object and purpose of the statute before us. The act of which this section was a part was entitled "An Act to punish blasphemers, swearers, drunkards, and Sabbath-breakers, and for repealing the laws heretofore made for punishing such offenders." The first section provided "that if any person shall hereafter, within this province, wittingly, maliciously, and advisedly, by writing or speaking, blasSunday legislation altogether, the court here goes on at 'some length to argue upon the rightful authority of the state, in the exercise of its "police power," to make laws "prohibiting labor on the Sabbath," as "a rule of civil duty," and "for the health, the morals, and the general welfare of its people;" and, on the ground that "our nation and the States composing it are Christian in policy," to select Sunday, the first day of the week, as such, citing, in support, Justice Field's dissenting opinion in ex parte Newman, 9 California, 502, and Judge Thurman, in 2 Ohio St., 387, and closing this line of argument with the statement that "the constitutionality of this class of legislation can no longer be questioned." On "police power," see page 520. pheme or curse God, or deny our Saviour Jesus Christ to be the Son of God, or shall deny the Holy Trinity; the Father, Son, and Holy Ghost, or the Godhead of any of the Three Persons, or the unity of the Godhead, or shall utter any profane words concerning the Holy Trinity or any of the Persons thereof, and shall be thereof convict by verdict, or confession, shall, for the first offence, be bored through the tongue and fined twenty pounds sterling: . for the second offence . . shall be stigmatized by burning in the forehead with the letter B, and fined forty pounds sterling; .. and that for the third offence, the offender, being convicted as aforesaid, shall suffer death without the benefit of the clergy." The second section related to profane swearing in the presence of certain officers, named, among which were ministers, vestrymen, and church. wardens. The third section prohibited drunkenness. The other sections, aside from the one here under consideration, related to the manner in which trials should be conducted, and the manner of enforcing the collection of fines and the infliction of punishment. The act then provided for the repeal of certain acts providing for "Sanctifying and Keeping Holy the Lord's Day, commonly called Sunday, and for the Punishment for Blasphemy, Profane Swearing, Cursing, and Drunkenness." Forced to conclusion of law. Taking the entire act into consideration, we are forced to the conclusion that the object of this statute undoubtedly was to prevent a desecration of the by setting Lord's day, as it was called in the act, and not primarily to enforce a day of rest, which is the present policy of such laws as defined by the courts. The statute before us is part of a peculiar class of legislation that was enacted in many of the colonies during the seventeenth and the early part of the eighteenth centuries. The object of such legislation was not to of colonial bring about the purpose sought to be accomplished by the legislation of the present day, providing for a cessation from labor on one day in seven, but to enforce a strict religious observance of the Sabbath day. Such laws were the outgrowth of the system Outgrowth of religious intolerance that prevailed in many of the colonies. They prescribed religious and not civil duties. With the adoption of the Constitution and the establishment of constitutional governments in the States of the Union these laws dropped into disuse, and any attempt to enforce them was frowned upon by the courts.1 religious intolerance. Object of all Sunday laws. Johnston Sunday bill 1 Taking the entire history of Sunday legislation into consideration, every honest man is forced to the conclusion that every Sunday law that has ever been made is religious, the Maryland law of 1723 no more so than any other. The primary object of every one of them from first to last is "to prevent the desecration of" Sunday, and not simply to enforce a day of physical rest, which means simply to enforce a day of idleness. After admitting that the Maryland Sunday law, along with the other laws of this kind, was "the outgrowth of the system of religious intolerance that prevailed in many of the colonies," and that these laws "prescribed religious and not civil duties," is it not a little strange that the court, in the face of the first amendment to the Constitution, to which it alluded, should fail to set this law aside upon the ground of its unconstitutionality? That the old Maryland-District Sunday law of nearly two centuries ago is no more religious than more modern Sunday legislation and attempted Sunday legislation, compare it with the Johnston District Sunday bill which passed the Senate May 15, 1908, and again, with slight modifications, January 27, 1910. See page 398. One prohibits "bodily labor on the Lord's day, commonly called Sunday;" the other "labor at any trade or secular calling" "on the first day of the week, commonly called Sunday." One prohibits unlawful pastimes or recreations; " the other 'any circus, show, or theatrical performance." One prohibits any one to suffer his children, servants, or slaves .. to do any manner of work or labor on the Lord's day, works of necessity and charity always excepted; " the other forbids any one to "cause to be employed his apprentice or servant in any labor or business, except in household work or other work of necessity or charity." One forbids any one to permit any one under him to "profane the Lord's day; " the other, as first introduced, exempts any one from keeping Sunday provided he is a member" of a religious society who observe as a Sabbath any other day |