Sunday legislation; its history to the present time and its results

Preface To New Edition

In view of the immediate attention directed toward Sunday legislation in the State and city of New York, and its increasing and pressing importance in other States where new legislation is being considered or is in progress, and in response to a demand frequently expressed, this volume has been revised and brought down to the current year. The summary of Sunday legislation in the United States since the first edition was published, which appears in Chapter XI, makes the book a timely and complete compendium of Sunday legislation for sixteen hundred and eighty years. No such exposition of the subject exists in popular form in this countr}^ or in Europe, and it is believed that this edition will be found of great practical value in New York and throughout the United States.

The material added shows the status of our Sunday laws at the opening of 1902. In securing these latest facts the *' Session Laws '* of all the States have been examined, and the facts secured thus have been confirmed by personal correspondence with the Governor of each State. This iv Preface to New Edition.

book will be of great value to lawyers and legislators, as well as a popular treatise for the common reader.

The acute and widespread interest in the situation in New York is justified by the gravity of that situation. The late municipal election in that city turned upon the question of Sunday legislation and its relation to the liquor traffic. The widely divergent opinions of those who must meet the issues forced to the front by the present situation, indicate the need of a study of the whole question of Sunday legislation such as has not been made by the American people nor by their legislators. This book furnishes ample and accurate material for such study.

The purity of municipal government in the United States is a potent factor in national politics and destiny. New York city determines the political status of the Empire State in a large degree. Sunday legislation is now a determining factor in the politics of the city. The Reform Party in power came in on that issue, and coming elections will turn around the same issue. It will be possible for the State of New York to decide the next national election ; hence the question of Sunday legislation in the immediate future may determine who shall be the next President of the United States. With such possibilities in sight, the facts spread over the following pages may well command attention and study.

Sunday legislation, unsupported by a State

Preface to New Edition. v

Church, has had no adequate test in history until within the last century in the United States. The organic unity of history and the relation between causes and effects must be recognized in considering the present situation. That situation has not come by accident. It has been evolved through the loss of religious regard for Sunday, compulsory idleness on Sunday, and a system of legislation which has made the liquor traffic a great commercial and political power, protected and legalized on other days, but made criminal on Sunday. Sunday is the harvest-day for the saloon and the brothel, in no small degree, through the causes just mentioned. The powerful liquor traffic will continue to fatten on Sunday by legal permission, or by purchased permission, through blackmail. Leisure demanded by religious convictions is a blessing. Idleness enforced by law \ 1/ is a curse which fosters all the lower vices. These | facts form the crux of the present situation touching Sunday legislation in New York and in the United States. Every man is bound to study such a situation and the causes which have produced it and which will continue it unless new ground is taken. No intelligent consideration of the case, as it is now focalized in New York and as it exists in the country at large, can be made without a knowledge of the sources from which Sunday legislation has come and the results its evolution has produced. Hence the value of this book at this time.

vi Preface to New Edition.

It must also be kept in mind that the present situation is not fortuitous, but inevitable. Adequate and imperative causes lie back of all such results in history. The evolution of fundamental principles creates such crises, and these come with little regard for our choices, though our experiments and mistakes may hasten or retard them. Epochs and crises are the verdicts of history concerning the plans and theories of men. To escape from these verdicts is impossible. To persist in a given course against them is ruinous. Neither prayers, creeds, nor ballots can check the evolutions of history or discount their final results.

Sunday legislation began in the Pagan State Church of the Roman Empire, as the following pages show. To the Romans religion was only a department of civil government. The emperor had absolute power to appoint days in honor of the gods, and the first Sunday edict was purely Pagan in honor of the Sun God. Much of the genius of the Roman Empire passed into the first great State Church — the Roman Catholic. Legislation touching Sunday and many associate days was a prominent feature in the history of that Church through the centuries of its supremacy in Europe. The reformers of the sixteenth century continued such legislation. Puritanism invented a new religious theory of Sunday observance and supported it by rigid civil laws. These were fully enforced under the Theocracy of the Colonial Period in America. From that time to

Preface to New Edition. vii

the present the evolution of Sunday legislation in the United States has gone forward rapidly, and the following verdicts now demand consideration : (i) The successful enforcement of Sunday legislation has never been attained except when men have had conscientious regard for it because imposed by the State Church, as under Roman Catholic rule, or because of divine authority believed to be embodied in the civil law, as under Cromwell and in the New England Theocracy.

(2) The evolution of Sunday legislation under the State-Church system in Europe has resulted in the ** Continental Sunday/' That result was inevitable.

(3) Christians and non-Christians now agree that Sunday laws can not be enforced on religious grounds ; nevertheless, the Sunday laws continue to be self-contradictory by making things which are intrinsically good and desirable up to twelve o'clock on Saturday night criminal for the next twenty-four hours. A law which makes it a crime not to be idle for a specific number of hours in each week can not stand the tests of logic and common sense in this twentieth century.

(4) Enforced idleness, under Sunday laws, strengthens the saloon and the brothel, and makes Sunday their best harvest-time. This is one reason why the saloon seeks for legalized opening.

(5) The worst evils of the present time will continue and increase until idleness on Sunday is made permissive and not compulsory. Comviii Preface to New Edition.

pelling all men to be idle on a given day, when religious convictions do not demand idleness, fosters the lower types of holidayism and debauchery. The situation in New York city is an index of the situation in all our larger cities.

(6) Two alternatives are at the door, and the American people must choose between them :

{a) The strengthening and perpetuating of the liquor traffic and its associate evils, through the present system of compulsory idleness on Sundays, and legalized saloons on all other days.

{p) A new departure which will secure permissive and protected rest to each employed person for one day in the week, the day being determined by the employed person and the employer. Meanwhile, legislation touching the liquor traffic should separate that traffic from all other forms of business,

(7) These are some of the verdicts which history has recorded concerning Sunday legislation ; prayers and politics will strive in vain to evade them or the logical results yet to follow.

A. H. L.

January^ igo2*

PREFAC E.

This book enters a field not hitherto occupied in the literature of the Sunday question. Sunday legislation is more than fifteen centuries old, but the general reader has not hitherto been able to know accurately either its extent, or its specific character. The following pages answer many questions which are pressing to the front. Existing Sunday laws are much disregarded, and many contradictory theories are put forth relative to them. Much that is said concerning them is superficial and impertinent, because men do not understand their origin or their history. The surpassing value of the '' historic argument '' is slowly gaining recognition. History is an organic whole, a series of reciprocal causes and effects. No period can be separated from that which has gone before, nor be kept distinct from that which follows. Herein lies the value of

IX

X Preface.

facts like those which compose this volume. Every effort to remodel existing Sunday legislation, or to forecast its future, must be made in the light of the past. It is not the province of this volume to pursue an argument relative to Sunday legislation, but rather to present those facts on which intelligent conclusions must be based.

The first Sunday legislation was the product of that pagan conception, so fully developed by the Romans, which made religion a department of the state. This was diametrically opposed to the genius of New Testament Christianity. It did not find favor in the Church until Christianity had been deeply corrupted through the influence of Gnosticism and kindred pagan errors. The Emperor Constantine, while still a heathen — if indeed he was ever otherwise — issued the first Sunday edict by virtue of his power as Pontifex Maximus in all matters of religion, especially in the appointment of sacred days. This law was pagan in every particular.

Sunday legislation between the time of Constantine and the fall of the empire was a combination of the Pagan, Christian, and Jewish cults. Many other holidays — mostly pagan festivals baptized with new names and slightly modified —

Preface. xi

were associated, in the same laws, with the Sunday.

During the Middle Ages, Sunday legislation took on a more Judaistic type, under the plea of analogy, whereby civil authorities claimed the right to legislate in religious matters, after the manner of the Jewish Theocracy.

The Continental reformation made little change in the civil legislation concerning Sunday. The English reformation introduced a new theory, and developed a distinct type of legislation. Here we meet, for the first time, the doctrine of the transfer of the Fourth Commandment to the first day of the week, and the consequent legislation growing out of that theory. The reader will find the laws of that period to be extended theological treatises, as well as civil enactments. The Sunday laws of the United States are the direct outgrowth of the Puritan legislation, notably, of the Cromwellian period. These have been much modified since the colonial times, and the latest tendency, in the few cases which come to direct trial under these laws, is to set forth laws of a wholly different character, through the decisions of the courts.

In the Sunday legislation of the Roman Empire the religious element was subordinate to the xii Preface,

civil. In the Middle Ages, under Cromwell, and during our colonial period, the Church was practically supreme. Some now claim that Sunday 'legislation is not based on religious grounds. iThis claim is contradicted by the facts of all the centuries. Every Sunday law sprung from a religious sentiment. Under the pagan conception, the day was to be *' venerated" as a religious duty owed to the God of the Sun. As the resurrection-festival idea was gradually combined with the pagan conception, religious regard for the day was also demanded in honor of Christ's resurrection. In the Middle-Age period, sacredness was claimed for Sunday because the Sabbath had been sacred under the legislation of the Jewish Theocracy. Sunday was held supremely sacred by the Puritans, under the plea that the obligations imposed by the Fourth Commandment were transferred to it. There is no meaning in the statutes prohibiting *' worldly labor," and permitting '' works of necessity and mercy," except from the religious standpoint. There can be no '' worldly business," if it be not in contrast with religious obligation. Every prohibition which appears in Sunday legislation is based upon the idea that it is wrong to do on Sunday the things prohibited. Whatever

Preface. xiii

theories men may invent for the observance of Sunday on non-religious grounds, and whatever value any of these may have from a scientific standpoint, we do not here discuss ; but the fact remains that such considerations have never been made the basis of legislation. To say that the present Sunday laws do not deal with the day as a religious institution, is to deny every fact in the history of such legislation. The claim is a shallow subterfuge.

Let the reader note that specific legislation against the liquor-traffic and its evils upon Sunday does not come under this head. Such legislation is no more pertinent to Sunday than to any other day, except that as a day of leisure Sunday offers greater opportunity for rioting and criminality. This is reason enough for the most stringent legislation against the liquor-traffic on that day.

The writer is not unaware that the just and unavoidable conclusions to which the following facts compel, will overthrow many pleasant theories, and destroy some cherished hopes connected with Sunday legislation. Some minds will deem it sacrilegious to oppose these facts of history to revered notions, so long untouched. Such considerations are of little weight, when xiv Preface.

one remembers '' that no question is settled until it is rightly settled/' Facts are stubborn because they are eternal ; and the theory which attempts to ignore them insures its early destruction.

A. H. L.

Plainfield, N. J., January, 1888,

CONTENTS,

CHAPTER PAGE

I, — The Origin and Philosophy of Sunday Legislation . , I

II. — Sunday Legislation under the Roman Empire , i8 IIL — Sunday Legislation after the Fall of the

Roman Empire 50

IV. — Saxon Laws concerning Sunday „ . . * 70 V. — Sunday Laws in England . » . . .81 VL— Sunday Laws in England during the Puritan

Supremacy 115

VII. — Early Sunday Laws of Scotland ; Law of Holland ; Early Sunday in Ireland and Wales 143 VIIL — Sunday Legislation in America — Colonial

Period 160

IX. — Sunday Legislation in America — Colonial

Period — {^Continued) 184

X. — Sunday Laws of the States and Territories of

the United States ,(^^.?^ , . , « 209 XI. — Changes from 1888 to 1902 257

XV

SUNDAY LEGISLATION.

Chapter I. The Origin And Philosophy Of Sunday Legis- Lation

The Sunday question is coming to the front. Some men demand a better enforcement of the Sunday laws. The masses almost universall}^ disregard them. The hour demands careful investigation concerning them.

The original character of laws and institutions is not easily lost. History is a process of evolution, whereby original germs, good or bad, are developed. In the process of development modifications take place, and methods of application change, but the properties of the original germ continue to appear. Neither legislation nor the influence of the Church have been able to prevent the development of holidayism and its associate evils in connection with Sunday.

One of two causes must account for this. Either the people in the churches and out of them increase in wickedness, and therefore disregard rightful authority, or else there is something radically defective in the claims by which Sunday observance is supported. The explanation lies in this last fact. It is wise, therefore, to seek the origin and the philosophy of Sunday legislation as they appear in history. Outside of Christianity, all religions have been ethnical. The Gospel is a message to the whole world. Christianity is the universal religion. It knows neither ethnic, social, nor intellectual distinctions. Rich and poor, bond and free, learned and unlearned, old and young, meet on a common level in the kingdom of Christ. This truth lies at the core of Christianity, and is its essential characteristic. Christ said : ** My kingdom is not of this world.*' He taught that while his followers must be in the world, mingling with men and doing the duties of citizens, they were yet under supreme obligation to his spiritual kingdom. Neither he nor his disciples sought aid from civil government beyond the mere protection due to citizenship. They submitted to wrong rather than rebel against earthly government, because of their allegiance to the higher law. The great apostle to the Gentiles suffered persecution, bonds, and imprisonment rather than be disloyal to the kingdom of Christ. As a citizen, he demanded protection at the hands of civil government. If this were denied, he accepted whatever punishment, even unto death, the civil law chose to inflict, that he might obey the law of God.

Christianity stood between the Judaic theocracy and the Roman pagan state religion, far above them both. As Christianity moved westward, and gained social and moral power, the Roman state at length granted it legal recognition. The character of that recognition can only be understood in the light of the Roman conception of religion. Romans regarded all religion as a contract between the gods and the state. Religion was a department of the government. The individual was nothing, except as a citizen. *' To be a Roman was greater than to be a king.'* The relation of the individual to the gods was lost in the relation which the citizen sustained to them. This contract between the gods and the state, bound the citizen to do certain things, and the gods to do certain other things in return. What the citizen should do was decided by civil law. When he should worship, and how ; what he should offer, and how much ; when he should pray, and what should be his prayer; this was the Roman idea.

Speaking of the religion of pagan Rome and of its consequent effect upon Christianity, Ernest Renan says :

It was in the full force of the word a civil religion. It was essentially the religion of the state ; there was no priesthood distinct from the state functions ; the state was the true god of Rome. The father had over the son the right of life and death ; but if the son held the least important office, and the father met him on the road, he dismounted from his horse and bowed down before him.

The consequence of this essentially political character of Roman religion was that it always remained aristocratic. A man became pontiff as he became pretor or consul ; when he was a candidate for religious office, he underwent no examination, he passed no period of probation in a seminary, he was not asked if he had an ecclesiastical vocation. He proved that he had served his country well, and had fought bravely in this or that battle. There was no sacerdotal spirit ; these civil pontiffs continued to be what they had been, cold, practical men, without the slightest idea that their functions at all cut them off from the rest of the world. In every respect the religion of Rome was the reverse of a theocracy. The civil law regulates actions ; it does not occupy itself with ideas ; and so one result of Roman religion was that Rome never had the faintest conception of dogma. The exact observance of rites compels the Deity who, if the petition be presented in proper form, has no inquiry to make into piety or the feelings of the heart. More than this, devoutness is a defect ; it implies a dangerous exaltation in the popular mind. Calm, order, regularity — this is what is wanted. Anything beyond this is excess (super stitio), Cato absolutely forbids that slaves should be allowed to entertain any sentiment of piety; ^^ know," he says, *^that the master sacrifices for the whole household." Can anything be more civil, lay, peremptory than this ? Men must not fail to do what is due to the gods ; but they must not give them more than is their due ; that is the super stitio which the true Roman abhorred as much as he abhorred impiety.

But we are altogether ignorant of religious history — a fact which, I hope, some other lecture will prove to you at a future time — if we do not lay it down as a fundamental principle that Christianity at its origin is no other than Judaism, with its fertile principles of almsgiving and charity, with its absolute faith in the future of humanity, with that joy of heart of which Judaism has always held the secret, and denuded only of the distinctive observances and features which had been invented to give a character of its own to the peculiar religion of the Children of Israel.

^^ Influence of Rome on Christianity," etc., "Hibbert Lectures for 1886," pp. 16, 17.

Before the advent of Christianity there was a strong tendency in the Roman Empire toward religious syncretism. It was deemed a matter of courtesy to recognize the religion of other nations, and to grant that religion the protection of the empire, especially when a nation was friendly to the empire, or was subdued by it. A prescribed form of prayer was to be used by the military representatives of Rome, who, having conquered a nation, and made them citizens of the empire, were thereupon to pray the gods of that nation to transfer their allegiance and abidingplace to the Capitol of the empire. The ** Pantheon *' in Rome still stands, showing how the empire provided a home for all the gods. It is on record that when Christianity, which was looked upon as a type of Judaism, had gained sufficient influence, a niche was offered in the Pantheon for a statue of Christ and a statue of Moses, that they might stand among those representing the religion of Egypt and of the Orient. It was not possible that Rome should recognize any religion, except as wholly subordinate to the state ; to be protected and regulated by the civil law. When, therefore, at the beginning of the fourth century, circumstances combined to bring about a recognition of Christianity, it was such a recognition as had been granted to the ethnic religions whose influence had already become interwoven with Roman thought and practices. Christianity did not conquer the empire by subduing it to Christ. It gained recognition as having a right to the protection and the privileges which the state might choose to accord. This recognition demanded, on the other hand, the right of the state to legislate concerning Christianity, and to treat it as one of many other religions, neither greater nor less, except as its influence might be greater or less than others. This general recognition was given early in the reign of Constantine the Great. It is not needful to delineate at length the character of Constantine, nor to prove what none deny, that his attitude toward Christianity was that of a shrewd politician rather than of a devout adherent. The empire was decaying under a combination of adverse influences. It was dying in spite of all the gods had promised. Certain success had attended his father, who had shown some favor to Christianity. Christianity evinced great vigor, espedaily in giving to its adherents supreme power of endurance under persecution. Constantine saw what seemed to him a greater power for good to the empire in the protection which this new religion might give, than any which paganism had granted ; hence the recognition which came, under the normal operation of the Roman idea. The emperor, as pontifex maximus, had full power to legislate concerning all matters of religion.

The influence of the emperor in his double office as emperor and pontifex maximus, was immeasurably increased by his deification. He was not only the supreme authority in all religious matters, but he was worshiped as a god. Some of the more noble of the emperors demanded less of these honors, while others demanded much reverence. One of the most infamous is described as follows :

Caligula, however, who appears to have been literally deranged, is said to have accepted his divinity as a serious fact, to have substituted his own head for that of Jupiter on many of the statues, and to have once started furiously from his seat during a thunderstorm that had interrupted a gladiatorial show, shouting, with frantic gestures, his imprecations against heaven, and declaring that the divided empire was indeed intolerable ; that either Jupiter or himself must speedily succumb.

Heliogabalus, if we may give any credence to his biographer, confounded all things human and divine in hideous and blasphemous orgies, and designed to unite all forms of religion in the worship of himself.

A curious consequence of the apotheosis was that the images of the emperors were invested with a sacred character, like those of the gods. They were the recognized refuge of the slave or the oppressed, and the smallest disrespect to them was resented as a heinous crime. Under Tiberius, slaves and criminals were accustomed to hold in their hands an image of the emperor, and being thus protected, to pour with impunity a torrent of defiant insolence upon their masters or judges. Under the same emperor, a man having, when drunk, accidentally touched a nameless domestic utensil with a ring on which the head of the emperor was carved, he was immediately denounced by a spy. A man in this reign was accused of high treason for having sold an image of the emperor with a garden. It was made a capital offense to beat a slave or to undress near a statue of Augustus, or to enter a brothel with a piece of money on which his head was engraved, and at a later period, a woman, it is said, was actually executed for undressing before a statue of Domitian.

Leckey, *' History of European Morals," vol. i, pp. 274-276, New York, 1869.

The pagan religion of Rome had many holidays, on which partial or complete cessation of business and labor were demanded. The following extracts will illustrate the attitude of Constantine, and the legislation which preceded his Sunday law :

Constantine, the first Christian Caesar, the founder of Constantinople and the Byzantine Empire, and one of the most gifted, energetic, and successful of the Roman

Origin and Philosophy. g

emperors, was the first representative of the imposing idea of a Christian theocracy, or of that system of poUcy which assumes all subjects to be Christians, connects civil and religious rights, and regards church and state as the two arms of one and the same divine government on earth. This idea was more fully developed by his successors. It animated the whole middle age, and is yet working under various forms in these latest times ; though it has never been fully realized, whether in the Byzantine, the German, or the Russian Empire, the Roman church-state, the Calvanistic republic of Geneva, or the early Puritanic colonies of New England. At the same time, however, Constantine stands also as the type of an undiscriminating and harmful conjunction of Christianity with politics, of the holy symbol of peace with the horrors of war, of the spiritual interests of the kingdom of heaven with the earthly interests of the state.

But with the political he united also a religious motive, not clear and deep, indeed, yet honest, and strongly infused with the superstitious disposition to judge of a religion by its outward success and to ascribe a magical virtue to signs and ceremonies. His whole family was swayed by religious sentiment, which manifested itself in very different forms — in the devout pilgrimages of Helena, the fanatical Arianism of Constantia and Constantius, and the fanatical paganism of Julian. Constantine adopted Christianity first as a superstition, and put it by the side of his heathen superstition, till finally in his conviction the Christian vanquished the pagan, though without itself developing into a pure and enlightened faith.

At first Constantine, like his father, in the spirit of the Neoplatonic syncretism of dying heathendom, reverenced all the gods as mysterious powers, especially lo Sunday Legislation.

Apollo, the god of the sun, to whom, in the year 308, he presented munificent gifts. Nay, so late as the year 321 he enjoined regular consultation of the soothsayers in public misfortunes, according to ancient heathen usage ; even later he placed his new residence, Byzantium, under the protection of the god of the martyrs and the heathen goddess of Fortune ; and down to the end of his life he retained the title and the dignity of a pontifex maxtmus, or high-priest of the heathen hierarchy. His coins bore on the one side the letters of the name of Christ, on the other the figure of the sun-god, and the inscription " Sol tnvictus.'* Of course these inconsistencies may be referred also to policy and accommodation to the toleration edict of 313. Nor is it difficult to adduce parallels of persons who, in passing from Judaism to Christianity, or from Romanism to Protestantism, have so wavered between their old and their new position that they might be claimed by both. With his every victory over his pagan rivals, Galerius, Maxentius, and Licinius, his personal leaning to Christianity, and his confidence in the magic power of the sign of the cross increased ; yet he did not formally renounce heathenism and did not receive baptism until, in 337, he was laid upon the bed of death.

Schaff, " Church History " (revised edition), vol. iii, pp. 12, 14, 15.

Uhlhorn says of Constantine :

At the beginning of A. d. 312, he seemed, to say the least, cool and non-committal. He had issued the edict of Galerius, and the orders concerning its execution, which, as we have seen, were but little favorable to Christianity. He was no doubt even then a monotheist ;