400 IN THE SUPREME, COURT
. * .. .
June, 1844 rant against the plaintiff for any crime arising out of this
transaction. And we see no error in the charge of the
Judge. . . .. . . . . * *
Per CURIAM, Judgment affirmed.
º
STATE vs. Joseph J. williams.
A profanation of Sunday, by performing labor on that day, is not an indicta
ble offence in this State. * - -
Appeal from the Superior Court of Law of Martin Coun
ty, at Fall Term 1843, his Honor Judge BAILEY presid
ing. * *- :- . . . - - - , - -
The defendant was tried upon the following indictment,
to wit, “The jurors for the State upon their oath present,
• That Joseph J. Williams, late of Martin, being a common
Sabbath breaker and profaner of the Lord's day, commonly
called Sunday, at and in the county of Martin on the 10th
day of July 1842, the said day being Sunday, and on divers
other days both before and since the said 10th day of July
1842, which other days were also Sundays, unlawfully, wil
fully and with force and arms, for his own lucre and gain,
and not for any charitable purpose or being induced thereto.
by any supposed necessity, did cause certain men'slaves, to
wit, Elias, George and Talbot, being the property of him the
said Joseph J. Willliams and being then and there under his
control to work and labor on the farm of the said Joseph J.
Williams in making and putting up enclosures and fences a
round and about the corn-field and whiskey distillery of him
the said Joseph J. Williams to the common nuisance of the
good people of North Carolina and against the peace and
dignity of the State.” To This indictment the defendant
pleaded not guilty. On the trial, the witness for the State
• OF NORTH CAROLINA. 401
-
swore, that he was the overseer for the defendant during the June 1844
years 1841, 1842 and 1843—that sometime in the year 1842, T State
he, the defendant, having-lost some corn and shoats, and sus V.
Williams.
pecting his slaves, including those mentioned in the indict
ment, of stealing the property or knowing who had stol
en it, directed the witness to put them to work on the Sab
bath day and continue them at work on the succeeding Sab
bath days, until they confessed that they had stolen the pro
perty or discovered who were the thieves—that he, the wit.'
ness, put all the negro men to work on the Sabbath day, and
worked them three Sabbaths in succession—that the work
consisted in putting up fences round his field and whiskey.
distillery—that after working them the thirdSabbath, the de
fendant, discovering who had stolen his property, did not
compel them to work any longer. The witness further stat
ed that the negroes did not work the whole of the days as
before mentioned, but commenced work after breakfast and
ended about 12 o'clock or dinner time, and that their work
was not of much value to the defendant, and that he did not
make them work for the profit arising therefrom, but as a
punishment for not confessing that they had stolen his pro-,
perty or discovering who had done it. It was admitted that
the place where the work was done was at such a distance
from any public highway, that the laborers could not be
seen, by persons passing to and fro. - * * - .
The Judge charged the jury that if they believed the wit
ness introduced on the part of the State, the defendant was
guilty as charged in the bill of indictment. The jury found.
the defendant guilty and judgment being rendered pursu
ant thereto, the defendant appealed.
.Attorney General for the State.
Badger for the defendant.
RUFFIN, C. J. . The conduct of the defendant is contrary
to the usages of North Carolina, the general welfare, and
likewise to the law of the land. It seems to us to be very:
reprehensible; for we perfectly concur in the eloquent pas
402 IN THE SUPREME COURT
June 1844 sage in the Commentaries, on the propriety and political ne
State cessity of keeping one day of the week for the purposes of
v
public worship, relaxation and refreshment. 4 Bl, 63. The
Williams.
institution, wherever it has existed, has proved to be a great
good, promoting private virtue and happiness among all clas
ses, and the public morals and prosperity. It is, therefore,
fit, that every commonwealth, and especially one, in which
Christianity is generally professed, should set apart by law a
day for those purposes and enforce its due observance by such
sanctions as may seem adequate. By a statute in this State, the
profanation of Sunday, by working in a person's ordinary
calling, is punished by a pecuniary fine, recoverable by a
summary proceeding before a justice of the peace. Rev. Stat.
c. 119. s. 1. As that statute does not make the offence in
dictable, it is not punishable in that mode, unless it be so at
the common law. That we have now to enquire of, since,
although we may unite with the great bulk of our fellow-ci
tizens in reprobating an act bringing scandal on our own
people, and giving so much offence to the most moral and
pious among us, we are, nevertheless, not to punish the act,
contrary to the law. - * * * *
The indictment is for compelling certain slaves, belonging
to the defendant, to work on several Sundays in the ordina
ry calling of the defendant on his farm. It lays those acts
to be to the common nuisance and concludes at common
law. * -
We do not find it any where stated, that doing secular
work on Sunday is per se an offence at common law. There
is, indeed, in the Crown Circuit Companion a precedent
(which is also adopted in 2 Chitty. Cr. L. 20) of an indict.
ment against a butcher as a common Sabbath breaker and
profaner of Sunday, for having, within certain times, kept a
common public and open shop in a town on Sunday and
sold therein meat to divers persons. Mr. East also, speaking
of offences against God and religion, remarks, that the pro
fanation of Sunday is by a variety of statutes punishable in
particular instances by summary process before magistrates;
OF NORTH CAROLINA. - 403
and then adds, that “it is also said to be indictable at the June 1844,
common law.” And he cites the precedent just mentioned. Tsº.T
In the precedent
indictment beforethe
[Link]
is laidis however,
as a nuisance; as itdifference
a marked is in the Williams.
.....y
between the cases; the work here not being in a town, nor
such as in itself is likely to annoy any person, except as the
want of a decent respect for the sentiments of our citizens ge- *
nerally and their sense of religious duty might render it offen
'sive to them, whether they saw it or only heard of it. It was in
a rural situation, gathered no crowd, disturbed no body
For working on a farm would not seem in itself a moleste
tion to others, more than cooking meals on that day at one's.
home or taking a journey either to or from one's home, the
latter being, all, customary acts in all Christian Countries, in
‘cluding our own. - -
... The truth is, that it offends us, not so much because it
disturbs us in practising for ourselves the religious duties, or
enjoying the salutary repose or recreation, of that day, as
that it is in itself a breach of God’s law, and a violation of
the party's own religous duty. But we do not perceive how
it can become an offence at common law even when the la
bor is both openly and publickly performed, as in a town,
for example, except upon a process of reasoning of this kind:
That the Christian religion is a part of the common law,that
it forbids work on Sunday, not only as a sin in itself,"but as a
disturbance to others and an injury to the State, and therefore
that the law prohibits such profanation and punishes it.
But we cannot believe that such a principle was established
at the common law. In the first place, the extent of the ob
ligation of the Sabbath under the gospel is a point, on which
the professors and teachers of christianity have been far
from agreeing. Some contended for a strict exclusive dedi
cation of Sunday to public worship and private devotion,
while others thought it not inconsistent with the duties offe
ligion, but rather, as promoting their cheerful and hearty dis
charge to employ a part of the day in sports and pastime,
which are commonly deemed innocent. And others, again,
404 IN THE SUPREME COURT
June, 1844 professed to hold, that the fourth commandment was addres
State ed to the Jews only, and, not being of moral obligation, is
w
now abrogated. It seems, however, to be generally agreed,
Williams.
that the rigor of the Mosaic law, at least according to
Pharisaic srictness, was much softened under the Christian
dispensation, as well as the day of rest charged. We know,
too, that very liberal, perhaps lax, sentiments on this point
prevailed among those in authority in Church and State in
the ancient days, when the foundations were laid of the com
mon law of England. It would not, then, be likely, that
the temporal judges would, without the enactment of Parlia
ment, assume to punish the violation of Sunday, as being a
breach of Christian or of religious duty. We should rather
expect them to leave that to the censure of the Spiritual
Judge, who was charged peculiarly with the office of enjoin
ing on all subjects the duties of religion and obedience to the
canons of the Church. Such was the course of both Parlia
ment and of the temporal courts in respect to some acts,
which are, at least, as scandalous as that now before us, For
example, the act of 1 Car. I c. 1, prohibits certain sports on
Sunday under pecuniary penalties, and then provides, that
the Ecclesiastical Jurisdiction shall continue, and those of:
fences be punished as if the act had not been made. To
this day the crimes of personal impurity have been left to
ecclesiastical censure alone; and though, all agree that in
continence is opposed both to the Christian and Mosaic dis
pensations neither Parliament has to this day enacted that it
shall be punished by the temporal Judge, nor have those
Judges ventured to assume the jurisdiction without the au
thority of Parliament. Although it may be true, that the
Christian religion is a part of the common law, it is not so
in the sense that an act contrary to the precepts of our Savi
or or Christian morals, is, necessarily, indictable. Those
which are merely against God and religion were left to the
correction of conscience, or the religious authorities of the
State, Such, necessarily, must be the character of acts
which are criminal only in respect of the day on which they
OF NORTH CAROLINA. º. .* . 405
are done, being a day set apart by the author of our religion”, 1944
for his peculiar service. As offences against religion merely, sº
they were interfered
Parliament the subjects
andofbyecclesiastical
an act madejurisdiction, unless Williams,
them the subjects ...Y
of the jurisdiction of the temporal Judges. - .."
* That to some extent would follow from the establishment
of a particular religion or church in the State, as it thereby
would be criminal to deny and deride the establishment made
by law, or its distinguishing doctrines. But we do not find,
that, at the common law, the holiness of the Sabbath was
held to be one of those doctrines of the established churches,
so far as to make its violation a crime by the municipal law.
In Reac v Brotherton, 1 Str. 702, it was held upon demurrer,
that selling meat on Sunday was not indictable, at the com
mon law. In Rew v Coac, Bur. 785, an information was mo
ved for, because the defendant, as a magistrate, had refused
to receive an information against a baker, who baked pies
and puddings on Sunday. But the Court refused it; be
cause that sort of baking did not come within the St. 29,
Car. II, c. 7, and it was not pretended, that it was punisha
ble without the Statute. Indeed that statute itself, besides
the exception under the general terms, “works of charity or
necessity,” expressly provides, that the act shall not extend
to the dressing meat, in families, nor dressing nor selling
meat in inns and cooking shops, nor the crying of milk be
tween certain hours—which shews, that before the act, that
is, at common law, those acts were not deemed offences a
gainst God and religion or the establishment, or the civil gov
- ernment, So as to be indictable: And if they were not so,
why are we to hold that any other labour was, unless it might
be such as actually to interfere with the rights of conscience
and worship of others, as by disturbing congregations assem
bled in churches in their devotions, or the like. At all e.
vents it clearly appears therefrom, and from may other acts
of Parliament, that Sunday was not regarded in the law as
a Sabbath, to be kept strictly; and that its violations were to
be punished or tolerated according to the Legislative will, as
W.
sº - ****
… we
406 . IN THE SUPREME COURT
June, 1844 the sole rule for acting on that day, as a civil duty, and not.
State according to particular interpretations of Holy Scripture.
v
Williams.
Beyond the requisitions of the statutes, each person was left
to his consience and understanding of the divine law, and
the judgment and censure of his spiritual superiors. It is
clear, for example, that the making of bargains on Sunday
was not a crime against the State. For eontracts made on
that day are binding. It has been often so ruled in this State,
and, after elaborate argument and time to advise, it was, con
trary to the inclination of the Court at first. So held by the
Court of Common Pleas in Drury v Defontain, 1 Taunt.
130. Now, it would be a solecism. to hold the contract val
id, and at the same time to hold that the making of it was,
by the common law, against good. morals, or religion, and
therefore, an indictable crime. In that case several earlier
ones were eited, which occurred before the statutes, in which
it was held, that open fairs might be held on Sunday by pre
scription. Consequently, the common law could not have
deemed it an offence; for no prescription could be good,
which involves in its enjoyment a crime. Then our own
statute and the numerous statutes, which have been passed
in England from that of 27 Hen.6, prohibiting fairs on Sun
day, down to the present times, and various others which
punish divers acts of vice and immorality, all under small.
pecuniary penalties, form a body of evidence, not to be resis
ted, that, without such legislative authority, the temporal
Courts could not punish such acts. - -
We do not perceive, that laying the act as a common hui
sance ean vary the result, iſ, perse, the profanation of Sun.
day be not an offence. If the act of the accused in fact dis
turb others in the performing of their duties of piety, that
will, itself, be a specific offence, whether committed on Sun
day or any other day. If the particular werk or trade be
not in its nature a nuisance, as prejudicial to the health or
comfort of the public, it does uot become so by being per
formed or carried on on one day, more than another. If the
precedent of the indictment against the butcher at commen
… .. . .
of NORTH CAROLINA, . ** 407
law can be supported at all, it must be on the ground, that June,1844. .
in England the Christian Religion is established by law, State
and that, according to its principles, as established, the pro V
fanation of Sunday is criminal. There is reason to doubt,"
as before said, whether work on Sunday was held to be con
trary to the christian dispensation, as early held in the En
glish church. But if it was, it became an offence against . ſº
the State by being contrary to the religion which the State
had established; and since the introduction of christianity.
into England, or very soon afterwards, there has been no
time, in which it has not been established, as the national re
ligion, in some form, held, for the time being, to be the true
religion of Christ. In this state, however, although recog
nized as an existing, and as the prevalent religion, it is not,
w
and cannot be established by law in any form, nor as con
sisting of any particular doctrines, or imposing any special
duties of worship or of worship at particular places or peri
ods. Therefore, however clearly the profanation of Sunday
might be against the christian religion, it is not and could
not here be made, merely as a breach of religious duty, an
offence; and much less can it be held an offence at common
law. The Legislature, deeming it, as it does many other
violations of christian duty, detrimental to the State, may
prohibit it, and then it will be punishable to the extent and
in the manner pointed out by the Legislature. There are
many offences against God, which are not offences against
the State. An act is punishable in the temporal courts, not
as being prohibited by ecclesiastical authority, or, even by
the Divine Head of the church, but as being forbidden by
the civil power of the State, residing in the Legislature.
The Legislature has hitherto thought the penalties given in
the act of 1741, sustained by public sentiment, adequate se
curities for the decent observance of the day. The event.
has, upon the whole, justified that opinion. There are very
few examples of such acts as those of the defendant in this case.
For even the few persons, whose own principles, as moral and
religious persons, might not have restrained them from the
profanation of the day, have been restrained by a willingness
- 25 -
40s IN THE SUPREME court .
June, 1844 to obey the law, as enacted in the statute of 1741, or by a
State
Tjust respect for the opinions and ſealings of their fellow citi
w zens, to wholm, as a body, secular labor on Sunday is a scan
W* dal and offence. -Probably the very few cases of flagrant.
violations of this law, and of the customs of our times, and
the difficulty of laying down any precise rule on the subject,
that might not, on the other hand, be abused and distorted,
as the traditions were by the Pharisees, may lead to the con
clusion, that no change of the law is called for. But that is
with the Legislature. If they think it needful, higher pen
alties may be laid, or the profanation of Sunday may be pro
hibited in general terms, and thereby it will become a mis
demeanor, and indictable. Until that shall be done, howev
er, the courts can only exact the penalties the Legislatu re:
has been pleased already to impose. - . . . . . .”
PER CTRI AM. Judgment reversed, and venire de
- - 710770, .