
    
      City Council of Charleston v. S. A. Benjamin.
    
    An Ordinance of the City Council of Charleston, making it penal for any person “ publicly to expose to sale, or sell in any shop,” &c. any “ goods,” &c. “ upon the-Lord’s day,” “ commonly called Sunday,” is not a violation of the 1st Section of die 8th Article of the Constitution of this State. „
    
      Before the Recorder, in the City Court of Charleston, 1846.
    REPORT OP THE RECORDER.
    This was a summary process to recover the penalty imposed by the 2d section of an Ordinance of the City Council of Charleston, ratified 2d May, 1801, entitled “an Ordinance for the better observance of the Lord’s day, commonly called Sunday, and for other purposes therein mentioned.” — (See City Digest, p. 272.) That section is in the following words : “ Sec. 11. No person or persons whatsoever, shall publicly expose to sale, or sell, in any shop, warehouse or otherwise, any goods, wares or merchandize whatsoever, upon the Lord’s day, and every person so offending, shall, for every such offence, be liable to be fined, in any sum not exceeding twenty dollars.”
    The process alleged that “ S. A. Benjamin, on the 21st day of December, in the year of our Lord 1845, within the limits of the city of Charleston, in the State aforesaid, and within the jurisdiction of the said City Court of Charleston, in a shop on East-Bay, in the city of Charleston, owned and possessed by the said S. A. Benjamin, did sell to W. C. Gatewood, of Charleston, certain goods, wares and merchandize, to wit: one pair of gloves; and. also, that the said S. A. Benjamin did then and there expose to sale, certain goods, wares and merchandize, to wit: coats, pantaloons, gloves, and other articles of clothing ; by reason whereof the saidS. A. Benjamin violated the second clause of an Ordinance of the City Council of Charleston, ratified the 2nd day of May, Anno Domini, one thousand eight hundred and one, entitled “ an Ordinance for the better observance of the Lord’s day, commonly called Sunday, and for other purposes therein mentioned,” and forfeited, under the same, for the said offence, to the use of the said City Council of Charleston, the sum of twenty dollars for each of the said offences, making in all, for said two offences, the sum of forty dollars, which the said City Council of Charleston are entitled to recover.”
    The defendant, who appeared by his counsel, Mr. Phillips, admitted the fact of selling the pair of gloves, as alleged in the process, but denied the charge of any public exposure of his goods for sale as set forth. On.the part of the plaintiffs, (represented by Wm. D. Porter, the City Attorney,) it was admitted that the defendant is an Israelite, and that he keeps as such the seventh day of the week, or Jewish Sabbath. Upon this statement of facts, the case was argued to the jury by the respective counsel, the defendant contending mainly, that the City Ordinance in question, was contrary to and in violation of the 8th Article of the Constitution of the State of South Carolina, and that this Ordinance was therefore inoperative and void. That section of the Constitution of the State of South Carolina, adopted in 1790,,is in the following words : “ Art. Till. §1. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever, hereafter, be allowed toiihin this Slate to all mankind ; provided, that the liberty of conscience hereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”
    
    
      It was insisted on the part of the defendant, that the Ordinance as to him was a direct interference with, and in violation of, that free exercise and enjoyment of religious profession and worship, which was guaranteed by the Constitution of the State, without discrimination or preference, to all mankind; and that keeping the Jewish Sabbath according to his religious frith, the civil power could not, consistently with this great fundamental law of religious liberty, compel him to observe and keep the Christian Sunday also. On the part of the plaintiff, it was contended, that viewing the Ordinance in question as a mere police regulation, it was clearly within the powers delegated to the City Council under the City Charter, “to secure peace and good order within the City,” and that in this point of view, it was entirely consistent with the liberty ot conscience and religious profession and worship, guaranteed by the Constitution of the State. The argument of the question involved in the case, and one of much ability on both sides, covered a wide range, various authorities were cited, and analogies suggested, which it is not necessary here to repeat in detail, as the case seemed to be regarded equally by the counsel employed, as one calling for the final and ultimate decision of the highest appellate tribunal of the State.
    Being of opinion, that the ground taken by the defendant was sustained by the correct interpretation of the Constitution of the State, and the carrying out into practical effect of its wise and liberal provisions, in behalf"of the entire freedom of religious faith and worship, I charged ■the jury that in my opinion the 2d Sec. of the Ordinance ofc the City Council of 1801, “for the better observance of Sunday, commonly called the Lord’s day,” was, in regard to the present defendant, in clear and palpable violation of the Sth Article of the Constitution of the State, and therefore invalid, inoperative and void. Under these instructions, the City Attorney submitted to a non-suit, with leave to move to set the same aside. As the questions raised by counsel were peculiarly, if not exclusively, for the conside-" ration and judgment of the Court, it may be proper, and due to the importance of the case, that I should give at some length, but at the same time with all the brevity possible, the reasons upon which my opinion and judgment were founded. I may be allowed, I trust, without impropriety, and without wandering from the subject, to premise, that no one entertains a more thorough conviction than myself that the Christian Sunday, or Lord’s day, should be kept in a becoming manner ; and according to my religious faith, that it is a day peculiarly devoted and set apart to Christian worship, and upon which the ordinary secular employments of men, or in the language of the Church, all. servile works, should be suspended. ' But I have great doubts how far, and to what extent, the civil power of the State, under a fundamental law, guaranteeing to all mankind the free exercise and enjoyment of religious profession and worship, without discrimination or preference, can prescribe, by a general law, binding upon all its-citizens, that under certain penalties, for the better observance, in a religious sense, of any particular day, they shall intermit or abstain from any worldly calling, pursuit, labor or employment, innocent in itself, and not coming within the terms or spirit of the exception laid down in the Constitution, and not falling within the legitimate sphere of mere police regulations. Though it may not be necessary to the decision of the precise question involved in this case, I should perhaps be wanting in candor, if I hesitated to avow my opinion, that with certain exceptions, which will be hereafter noticed, not falling within the operation of the general principle, in a community where there is a complete severence between Church and State, and where entire freedom of religious faith and worship is guaranteed to all its citizens alike,,without discrimination or preference, the observance of any particular day, in a religious sense, is a matter of mere ecclesiastical or religious discipline and authority, and in no way pertaining to the civil power or legislative authority of the State.
    By what authority, consistently with the entire freedom of religious faith and worship, guaranteed to all alike, of whatever religious sect or community, whether Jew or Gentile, ■can the civil power ordain, that on the day kept by Christians as a holiday, or day of worship peculiar to them, the Jew shall be made to keep in the same way, or to some extent, at least, the Christian holiday; although, according to his religious faith, he is required to keep another and a different day, as sacred to religion, and in conscientious obedience to the command of the God he worships ?
    But it is said that the evident meaning and intention of this article of the Constitution, as applied to the Jew, is to be considered as carried into full effect, while he is permitted to practice his religion, and to worship God upon the Jewish Sabbath, according to his faith, undisturbed and unquestioned by any; and that it is no violation of its terms or spirit, if, in addition to this immunity, he is required, in common with all the citizens of the State, to pay respect to the Christian Sunday, by abstaining from his worldly occupations. But the Constitution professes to give to all mankind 3.11 entire and perfect equality of freedom in religious faith and worship, without discrimination or preference. Is it no discrimination or preference to select, by the civil law of the State, the day considered sacred in a religious sense by the Christian, and to compel the Jew to unite, externally, at least, ■ in its observance 1 to protect from possible disturbance those who worship on that day, by requiring all others to abstain from every species of labor and employment, while the Jewish Sabbath is protected by no similar regulation ?
    In the view of the Constitution, is not the Jewish Sabbath and the Christian Sunday precisely equal, and those who worship God upon one or the other day, entitled to a perfect equality of immunity and privileges ?
    It is sometimes said, that it is a poor rule which will not work both ways, and applying the principle which seems to be contained in this popular adage to the question before us, it may well be asked whether, in a corporation having all the powers over the subject possessed by the Legislature of the State, if the Jews should happen to have the majority in the Municipal Council, they could, consistently with the Article of the Constitution referred to, require by law, on the part of the rest of the community, $he same observance of the Jewish Sabbath, which is now required of them in regard to the Christian Sunday?
    It is apparent under this clause of the Constitution, that ■the right to enact such a law, may be as rightfully deduced in behalf of the Jew as the Christian, and that if the Jew has no right to complain of the existing law, as in violation' of his religious liberty, the Christian, in the ease supposed, would have no other or further ground of objection. In truth, this great and fundamental provision ■of the Constitution, appears to furnish ample security, and perhaps the only one, against undue encroachments upon religious liberty, by the action of the Legislative power of the State, amidst all the fluctuations of party ; and to place, ■at all times and forever, freedom of conscience beyond the reach of any dominant or preponderating influence, which numbers may, at any time, give to a particular religious sect, or to any prevailing creed of the day.
    The Ordinance in question seems to have been borrowed from a very early statute, enacted as far back as the year 1712, when South Carolina was a British Province, -and when the good people of that day were required under penalty to attend their Parish Church on Sunday, and to ■remain there devoutly during divine service, and were forbid from all travelling by land or water, except to and from ■church, or to pay a visit of charity. Tide second section ■of the Ordinance is a copy in so many words of the third ■section of the Act referred to, with one exception. (See Pub. Laws, p. 19.) That section of the Act, as will be perceived, only forbids the public exposure of goods for sale, whereas under the terms employed in the second section of the Ordinance, a private sale of any article of merchandize would seem to be included in the inhibition. It will not be contended but that the greater portion, if not ■the whole, of this antique statute is absolete; and if operative in any of its provisions down to the glorious Revolution ’which resulted in the independence of the State, and the establishment of civil and religious liberty upon a basis of imperishable and equal justice, the clause of the Constitution' to which we have referred, must be considered as having entirely superseded and repealed it.
    Shall the Ordinance of the City of Charleston, passed in 1801, so soon after the adoption of the Constitution of the State in 1790, be permitted to revive and keep alive, in any of its features, the inequality and injustice, the violation of religious liberty, inflicted by the Act of 17121 But it is said that the Ordinance may be regarded as a mere police regulation, calculated to promote and preserve the peace and good order of the city, and that in this point of view, without regard to any religious faith, and as having no connection with religion, it is clearly within the competency of the City Council, and is binding without distinction upon all citizens equally and alike. Although with regard to this defendant, it seems to me impossible to consider the question presented in any other light than as one affecting the freedom of religious faith and worship, and that the defendant cannot be deprived of the freedom which in this respect the Constitution of the State intended to afford him, it does not follow that all the laws of the State, or the Ordinances of Charleston, passed in virtue of the powers delegated to it, which regard in some respect the observance of Sunday, must be necessarily considered as inoperative, or as affected by this constitutional provision. For while it may be held that, consistently with this provision of the Constitution, no law of the State or of any subordinate corporation, can rightfully require the conscientious Israelite to keep the Christian Sunday, by abstaining on that day from an occupation honest, and in itself innocent and wholesome to society, or even that it does not pertain to the civil power of the State to compel the religious observance of any particular day, by abstaining from labor, or in any other way ; there may be many regulations and enactments by the civil power, founded upon the observance in fact by a large majority of its citizens, of any particular day as a holy day.
    So too, there is no doubt that, within certain limits, the City Council, for the better preservation of order and peace, and the better security of the city, may prescribe certain regulations having regard to Sunday, as an existing holy day i?i fact, but they cannot on the score of being mere police regulations transcend the fundamental and constitutional law of the land. Thus the Ordinance of the city referred to in the argumeut, on the subject of retailing liquor on Sunday, falls within the exercise of a legitimate power, that of granting licenses to retail liquor, which is entirely and exclusively delegated to the City Council. In regard to this matter, they have a right to grant or refuse a license to retail liquor, to prescribe the terms upon which it may be exercised ; and if they may refuse or grant a license to retail liquor for a longer or shorter time, they may clearly provide, that on Sundays or any other particular days named, they shall not retail or sell liquor. There are many Acts of the State having relation to Sunday, which fall within the exercise of a legitimate authority.— All the Acts in relation to slaves, come within this principle. Slavery is exclusively of statutory creation and regulation ; and the power of the master over the slave may be modified or extended, as the Legislature may deem expedient. Thus the Act exempting the slave from labor on Sunday, (necessary occasions of the family excepted,) is an eminently wholesome and humane provision, and liable to no constitutional or well founded objection. So too the Acts forbidding the issuing or service of legal process on Sunday, are free of all exception, both on the score of expediency and legality. The whole process of the law is of mere legal creation, and its machinery may be regulated, as to time and mode, by the law which creates it, without violating any natural right.
    There is also an Act of the Legislature, and an Ordinance of the City Council, inflicting punishment upon those who disturb any religious assembly or congregation engaged iu worship; and as the protection afforded is not confined to Sunday or the Lord’s day, and has no reference to any particular time, in effect, they carry out the very provision of the Constitution, in giving equal security to all sects and forms of religious worship without discrimination or preference.
    
      In the examination of this question, I have not thought it important or pertinent to refer to the various English Statutes, requiring the observance of Sunday, nor to the constructions put upon them by the many decisions made by their Courts upon them. Where, as in that country, the Church and State are united, and not only a particular religious faith, but a particular form of worship, prescribed by law, it is in vain to look for illustrations of that feedom of religious faith and worship, which it was the glory of our ancestors to attain after a long and sanguinary struggle, and the enjoyment of which it was evidently the design of the Constitution of South Carolina to secure and perpetuate. Nor do I think other countries, holding a different faith from that to which I have referred, where, to more or less extent, the same union or connection between Church and State exists, present models for our imitation, or for our instruction, unless it be to avoid the errors of such an union. “ Render to Caesar the things which are Caesar’s, and to God the things which are God’s let the civil power concern itself and predominate in its legitimate sphere; but let the worship of God be the homage which He requires, and regulated only by the authority He himself has established.
    It would seem, as far as forms of government or the fundamental laws of society can accomplish this most desirable end, and raise an impenetrable barrier between the civil power on one hand and religious freedom on the other, our own admirable Constitution furnishes all the security that is possible. While this remains inviolate, we have every thing to hope, and on this subject nothing to fear ; but this great barrier broken down or defaced, we may retain the name of freedom, but it will be only a vain shadow, a delusion and a mockery. “ IStat nominis umhraP
    
    I have not thought it necessary or proper to refer to any ecclesiastical or historical authorities, by which the consecration of Sunday, or the Lord’s day, to religious purposes, may. be traced from the earliest ti rues to our own days.— As far as the observance of it, and the manner of its observance, have been prescribed by the civil power, in various countries, it is not important to notice, if, for the reasons already assigned, and under the provision of our Constitution, it does not pertain to that power in this State. If admitted to pertain to religion, and form a part of that freedom oí religious worship which is guaranteed by the Constitution to all the citizens of the State, it is equally unnecessary to trace the history of the day, in the decrees of councils, or in the many regulations established from time to time in the various parts of Christendom, by ecclesiastical authority.
    In this point of view it presents a religious question, in which, as far as the civil power is concerned in this State, as we have seen, all men are free to adopt and act upon their own opinions. Amid the various and conflicting views which may be entertained upon this subject, it may be at least said, that the defendant holds himself bound to obey that solemn command, delivered by God to his ancestors more than 3000 years ago, amidst the thunders of Sinai, “Remember that you keep holy the Sabbath day; six days shall thou labor and shall do all thy works, but on the seventh day is the Sabbath of the Lord thy God ; thou shalt do no work on it, thou nor thy son nor thy daughter, nor thy man-servant, nor thy maid-servant, nor thy beast, nor the stranger that is within thy gates; for in six days the Lord made Heaven and earth, and the sea, and all things that are in them, and rested on the seventh day : therefore, the Lord blessed the seventh day and sanctified it.” This holy day thus set apart by God himself, kept with a fidelity which has outlived the downfall of their once glorious Temple, carried with their scattered people into every quarter of the globe, still claims the veneration, and is consecrated by the worship of the devout Israelite, in our own happy land. Persecuted for so many centuries, the sport of tyranny and oppression in so many climes, shall he not here, at least, be at liberty to worship God in freedom, and find peace and security upon the soil and under the Constitution of South Carolina?
    A motion was made to set aside the non-suit ordered, and to reverse his Honor’s decision, upon the following ground:
    
      Because his Plouor the Recorder erred in ruling that the1 section of the Ordinance, upon which the suit was founded, was contrary to the provision of the 1st section of article VIII of the Constitution of the State, and therefore void and no law.
    Porter, City Attorney, for the motion.
    This Ordinance maybe considered a law of the State, as the City Charter is delegated by the State, and no distinction was insisted on by the counsel below-The Ordinance is a civil and not a religious one. Let us view it in-both lights. It establishes only a municipal regulation — there is' nothing in it like a religious test. The word “ Lord’s day,” no more* than the year of our Lord, involves a confession of faith in its acknowledgment. Its unconstitutionality must be established and shown by the defendant. The day has been set forth ever since the Act of 1712, as a day of rest, without objection. The Ordinance not only establishes no test, but it prohibits the disturbance of any sect, in their worship, and that too, at any time, not Sunday only.— See Digest of City Ordinances, 273. In 4 Black. Com. 63, the observance of the day is lauded, considered merely as a civil institu-tion. In the notes to 2 Stat. 707, Doctor Cooper remarks on the-8th Article of the Constitution. He admits the civil, but denies* the religious object as legal in the appointment of a day of rest.
    If the Legislature has the right to fix a day of rest, the selection must be made by the majority. We are not in a natural state, but in a state of society, and must surrender some of our rights as the price of protection, &c. It is no more than a regulation of industry. Other governments regulate the hours of work. If it is within the competency of the Legislature, the question is settled.
    Christianity is a part of the common law of the land, with liberty of conscience to all. It has always been so recognized, both in England and in this country. In New York, an indictment was sustained for reviling the Sabbath, though no statute existed against it. The punishment was for disturbing the good order of society. 8 John. Rep. 229, 11 Sargt. & Rawls, 408. If Christianity is a part of the common law, its disturbance is punishable at common law. The U. S. Constitution allows it as a part of the common law. The President is allowed ten days, with the exception of Sunday, &e. The Legislature does not sit, public offices are closed, and the Government recognizes the day in all things. There is nothing in our State Constitution to the contrary. The Constitution previous to ours, established the Protestant Religion as the religion of the Colony, and shows that it was the common law of England. Dissenters were subjected to disabilities, &e. The Constitution of 1790 altered and amended this Constitution of 1780, but not to the extent of abolishing the Christian Religion. It only grants toleration to all religions, the Christian Religion still being the law of the land. The Jews are not required to observe ours, or any other religious forms.
    
      The observance of Sunday is one of the usages of the common law, recognized by our U. S. and State Governments. The Act of 1712. enforced its observance. This contested Ordinance is based on this law, eschewing any test. In 8 Stat. 596, it is enacted, that no retail grocer shall keep his shop open on Sunday. It has been held that a verdict rendered on Sunday is void. All process is also void on that day, unless for felony, treason, or breach of the peace.
    Philips, contra
    
    (after some very eloquent remarks). The Constitution of the United States, Article 3, Amendment of 1790, leaves the question free to all the States, to act as they may on all religious matters. Mails go on Sunday, and so do public ships. Acts of war •are not restrained on that day, &c. Every man has religious rights in our country, and he may enjoy them as he pleases, as long as he meddles not with the public order, &e. — Niles's Register, 24th July, 1828. This contested Ordinance is an infringement upon the 8th ■article of our State Constitution. It is to compel him who does not go to the church, to suspend his labors, thus violating his conscience, and it compels the Jew to lose two days instead of one. Who can say, under our Constitution, that I shall .not work? I can do it, if I commit no “act of licentiousness,” &c. But it is not a civil, but a religious Ordinance, and does infringe on the conscience. The Jew may say, you-repeal the laws of God. The Act of 1712 is repealed (2 Stat. 707,) — -it is repealed by the 8th article of the Constitution. The act for which the defendant was brought before the Court was not one of “licentiousness,” &c.
    Dr. Paley, who sums up the biblical authorities, shows that the Sabbath is exclusively of Jewish origin, and not binding on Christians. See also the 23d chapter of St. Luke, 55th and 56th verses. Nor does it enjoin on them the suspension of work, longer than to go to church.
    There is no common law of the United States. It has been received by the States as they chose, by adoption, and cannot act against the Constitution. — 8 Peters, 591; 2 Peters, 144; 3 Peters, 447, and 5 Peters, 233.
    According to the Sunday laws of New York, the Jew and seventh day Baptist are permitted to work on our Sunday, and that State does recognize the common law. The Occident, (pamphlet,) 112, shows that in Ohio those also are excepted from any penalty for working on Sunday, who observe Saturday. In the Occident, vol. 3, a petition is preferred to the City Council of Bichmond, by the Jews, to be exempted from a similar ordinance to the one in dispute, and the committee reported against the enforcement of the ■ordinance against those who do not disturb good morals, &e. The ordinance did not pass.
    All that enters into the common law of England is, that Sunday is not a judicial day. All other acts are to be allowed on Sunday, unless prohibited by Statute — 3 Burrow’s Bep. 1595; 8 Cowen, 27. In 2 Camp. 602 and 3, a delay to protest, on a festival day of a sect, was held to be sufficient exeuse, as reasonable time. If the common law prevails here, why not protect Good Friday as well as Sunday, as is done in England?
    This, as a civil Ordinance, cannot legally prevent me from labor, nor, as a religious one, trample on my rights of conscience. The ordinance against selling liquor on Sunday is not analogous. In that the prohibition may be a part of the contract; besides, the sale of liquor on Sundays tends to bad morals, disorders, &c. Toleration is granted to all mankind alilte. The religion of no sect is known to the Constitution — and the violation of the rights of one man is as much a violation of it as the trampling down of those of a whole seet. — N. Y. Pamphlets, No. 21, and Appendix to the same.
    Petigru, also for the motion.
    Christianity is a part of the law. The 8th article of, the Constitution of 1790, only removes civil disabilities. The Sabbath is still to be supported ; Christianity is part and parcel of the common law.— The Act of 1712, see. 5, 2 Stat. 413, adopts the common law. To speak against religion (the Christian) is breaking down the bond of good government, and tends to subvert the government. King v. Williams, 26 Crown Cases, 654. There is an intrinsic, pre-existing obligation to perform contracts, which the laws enforce. Christianity has reference to the principles of right and wrong; to the obligations of natural justice; it is the foundation of those morals, and manners upon which our society is formed; it is their basis. Bemove this and they would fall, there would be no harmony, the law would be one of force. But it has grown upon the basis of Christianity; Saunders v. Ogden, 12 Wheat. 344.
    In 1712 was passed the first Act for keeping the Sabbath, (2 Stat. 396,) and then in 1785 and 1740, in 1807, 1812 and 1824. (In 1690, the conversion of a slave to Christianity favorably considered.) These Acts all tend to show that Christianity is recognized as common law, and the Constitution of 1778, (1 Stat. 154,) in words, de--dares the Christian religion the religion of the land, &e. In the 1st article, 23d sec. of the Constitution of 1790, it is recognized as part of common law. Persuasion there, only means dissent among those of the same religion, as the Protestant — different persuasion does not mean different religion. The clause only relates to the Christian religion, recognizing it as the law, or part of it. The 8th article of the Constitution of 1790, does contain free toleration, but it does not abolish the Christian religion as a part of the common law. In King a. Evans, 3 Merivale, 375, it is said that dissenters are restored to-legal capacity, subject only to the exceptions made in their favor, by the Act of toleration. The Act of 1704 required a confession of' eonformitytogiveciviltooffice,&c.,andwaslawupto 1778. The disability was finally removed in 1790, and surely that Constitution did not intend to take our State out of Chistendom; it only allowed others-to enjoy their religion with us equally, reserving, in other matters, the-laws in full force which it did not abrogate, and which have not been questioned for sixty years since. It went only to remove disabilities, not to grant'special privileges or exceptions.
    
      The ordinance is within the power of the Legislature, and the Constitution cannot be stretched to prove otherwise.
   O’Neall, J.

delivered the opinion of the Court.

In this case, a deep respect for the ancient people of whom the defendant is one, and a full concurrence in the merited eulogium, bestowed on them in the course of the argument, for their consistency, honesty, industry, and thrift, induced a fuller consideration than the intrinsic difficulties of the case demanded.

I admire the devotion with which the remnant of Israel, scattered among us, and ah the other civilized nations of the earth, have cherished and kept their Sabbath, the 7th day of the week! Well has one of their own gifted and liberal writers said of it, using the words of inspiration, it was given “ for all generations,” “ for a perpetual covenant as a sign between the Lord and the children of Israel forever,” (Exod. 31, 16,) “ and to be wholly independent of times and places.” Mendelsohn’s Jerusalem, 203. No doubt it is as he affirms, binding upon those who believed in the law alone ; while Christians are not called upon, as he freely admits, to its observance. Mendelsohn’s Jerusalem, 209. The Lord’s day, the day of the Resurrection, is to us, who are called Christians, the day of rest after finishing a new creation. It is the day of the first visible triumph over death, hell and the grave ! It was the birth day of the believer in Christ, to whom and through whom it opened up the way which, by repentance and faith, leads unto everlasting life and eternal happiness ! On that day we rest, and to us it is the Sabbath of the Lord — its decent observance, in a Christian community, is that which ought to be expected.

It is not perhaps necessary, to the purposes of this case, to rule and hold that the Christian religion is part of the common law of South Carolina ! Still it may be useful to show that it lies at the foundation of even the Article of the Constitution under consideration, and that upon it rest many of the principles and usages, constantly acknowledged and enforced, in the Courts of justice !

The i S. of the 8th Article of the Constitution of this State, declares that !i the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind ; provided that the •liberty of conscience, thereby declared, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

What gave to us this noble safeguard of religious toleration, which made the worship of our common Father as free and easy as the air we breathe, and his temple as wide, capacious, and lofty as the sky he has spread above our heads ? It was not that spirit of infidelity, which deiñed reason, denied God and was stained with more blood than ever flowed upon the altars of the Aztec Idols! It was Christianity robed in light, and descending as the dove upon our ancestors, which gave us this provision ! It was that same spirit which, when the war of the revolution was about to commence, sanctified a fast, and prostrated a nation before the Lord of Hosts, to ask his blessing and assistance ! It was that same glorious spirit of mercy and love, which proclaimed the birth of the Saviour, and as its consequence, “ peace, good will towards men.” It was that same Christianity, which sought its promulgators among the humblest of the Jews, and taught them, “ love your enemies, bless them that curse you, do good to them which hate you, and pray for them which despitefully use you and persecute you.” But this toleration, thus granted, is a religious toleration; it is the free exercise and enjoyment. of religious profession and worship, with two provisos, one of which, that which guards against acts of licentiousness, testifies to the Christian construction, which this section should receive J What are acts “ of licentiousness” within the meaning of this section ? Must they not be such public Acts, as are calculated to shock the moral sense of the community, where they take place ? The orgies of Bacchus, among the ancients, were not offensive ! At a later day, the Carnivals of Venice went off without note or observation. Such could not be allowed now ! Why ? Public opinion, based on Christian morality, would not suffer it! Here, in this city, an open play house or Circus, on Sunday, could not exist for a day! Why ? Your streets on Sunday, answer the question! Your people love the house of God” more than the tents of wickedness.”

These hints are enoug-h to show the spirit which breathes in the Constitution. But the law which we are called upon to administer, will be found to come to ns imbued and blessed with the same holy influence. Crimes are classed into mala in se and mala prohibita. What gives them that character ? We cannot answer, as the Israelite would do, by pointing to Mount Sinai, and saying, the Lord God commanded' us, saying “thou shalt not kill,’7 “ thou shalt not steal.”

The authority of these divine precepts comes to us through Christianity; wo are “ the wild olive tree grafted,” In place of the broken branches of the original tree, Israel; and hence the law delivered at Mount Sinai, maybe by us appealed toas pointing out that which is “ evil in itself.”

Again, our law declares all contracts contra bonos mores, as illegal and void. What constitutes the standard of good morals? Is it not Christianity? There certainly is none other. Say that cannot be appealed to, and I don’t know what would be good morals. The day of moral virtue in which we live would, in an instant, if that standard were abolished, lapse into the dark and murky night of Pagan immorality. • In this State, the marriage tie is indissoluble — whence do we take that maxim? It is from the teaching of the New Testament alone.

In the Courts over which we preside, we daily acknowledge Christianity as the most solemn part of our administration. A Christian witness, having no religious scruples against placing his hand upon the book, is sworn upon the holy Evangelists — the books of the New Testament, which testify of our Saviour’s birth, life, death, and resurrection; this is so common a matter, that it is little thought of as an evidence of the part which Christianity has in the common law.

All blasphemous publications, carrying upon their lace that irreverent rejection of God and his holy religion, which makes them dangerous to the community, have always been held to be libels, and punishable at common law.'— Here they would also be plain acts of licentiousness, having no warrant of protection whatsoever in our Constitution. This, however, never could extend to free and manly discussion on these holy subjects. For I agree with Mr. Jefferson, in his notes on Virginia, 235, “ our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we never could submit. We are answerable for them to our God.” But I should hesitate long in pushing the argument as far as he does, by saying, as he does, that “in its exercise, it does me no injury for my neighbor to say there are twenty Gods, or no God.” While the argument rests only in words, it would be so evanescent that it might be no injury. But when it 'comes to be put in print, to be read, like Paine’s Age of Reason, by the young and the unwary, where is the parent who would say, “ it does me no injury ?” I agree fully to what is beautifully and appropriately said in Updegraph v. The Commonwealth, 11 Sergt. Maule, 394 — Christianity, general Christianity, is, and always has been, a part of the common law: “ not Christianity founded on any particular religious tenets; not Christianity with an. established church, and tithes and spiritual Courts ; but Christianity with liberty of conscience to all men.”

But I have said all which need be said on this interesting subject. It was not necessary for the decision of this case; it has only been said, to prevent silence from being interpreted into a want of confidence in the proposition, that Christianity maybe justly appealed to as part of our common law.

The case before us presents the very simple question, is a law, punishing the sale of goods on the Lord’s day, Sunday, a violation of the 1st § of the 8th Article of our Constitution, herein before cited and set out. To satisfactorily answer this question, it would be, perhaps, well to ascertain what was the sense in which the framers of the Constitution used the words, “ the free exercise and enjoyment of religions profession and worship, without discrimination or preference.” Reading over the words, one would say, the venerable men who framed that article meant to say, that a man might be of any order of religious worshippers, or of none at all; that he might worship God, or not, as he pleased ; that his worship might be in any form, at any time or place, or none at all; and that for these differences in faith or practice, no difference in civil condition should ever be made by law. ' It was an abolition of all disabilities — the Christian, Israelite, Mahometan, Pagan and Infidel, all stand alike, in the Government and people of S. Carolina. To ascertain, however, more precisely the sense, we may appeal to various other sources. To the 1st Article of the amendments of the Constitution of the United States, we may very well refer to ascertain the then acknowledged sense : “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This was the general law for all the Union, as standing under the legislation of Congress. Theie could be no union of Church and State ; no religion established by law ; nor could there be any law prohibiting any man from worship-ping God, as he pleased. These plainly pointed to the evils from which we had escaped, in our separation from England. The Church of England, as an established State religion, had been felt as a great grievance, in at least one of the States of the Union. Against it, had been poured the mighty torrent of Henry’s resistless eloquence, when “ he pleaded agaiust the Parsons’ cause.” All had felt the pains and penalties imposed by English enactments, on all who sought to worship as conscience, not law, dictated. These evils were forever removed, by the amendment above referred to. In the same sense, our Constitution was adopted. This may be further illustrated by reading the draught the Virginia bill of Rights in ’76. The 16th Article of the first draught by Geo. Mason, will be found in Niles’s collection, called the Principles and Acts of the Revolution, 124. It declares that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by form or violence, and that therefore, all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under color of religion, any man disturb the peace, the happiness, or the safety of society, “And that it is the mutual duty of all to practice Christian forbearance, love and charity toiuards each other?' The proviso is very much like that in our own Constitution, and its closing declaration of duty shows how much these constitutional principles of toleration rested on Christianity. The general definition of toleration, embraced in it, is but an amplification of the words of our Constitution, which were very probably condensed from it. Again, William Livingston, Governor of New Jersey, in ’78, (See Niles’s Acts and Principles of the Revolution, 306.) gives a definition of religion: “By religion I mean,” he says, “an habitual reverence for, and devotedness to the Deity, with such, external homage, public or private, as the wor-shipper believes most acceptable to him." “According to this,” he says, “it is impossible for human laws to regulate religion, without destroying it.” It was to secure this privilege of worship, as he has beautifully described it, and this alone, that our Constitutional provision was adopted. The sense in which the fathers of liberty used the words “the free exercise and enjoyment of religious profession and worship, without discrimination or preference,” has, I think, been sufficiently shown. What abridgment of religious profession and worship is to be found in a law forbidding a shop to be kept open, or goods to be sold, on Sunday? I confess I can see none ; if there were any, I presume it will be readily admitted it hardly would have escaped the experienced eye of Dr. Cooper. Yet in his notes to 2d Stat. 707, speaking of this very article of the Constitution, he says : “This does not interfere with the right of the Legislature to incorporate religious societies for civil purposes, nor with the right of appointing a Sabbath, or day of rest from labor, as a municipal institution, conducive to <civil expedience.” The legislation objected to, on this occasion, is no more than what he allowed to be proper and legitimate. It is simply an Ordinance for the better observance of the Lord’s day, as a day of rest; it simply requires a cessation of public employment, in the way of trade or business.

But it is said this violates the free exercise and enjoyment of the religious profession and worship of the Israelite. Why 1 It does not require him to desecrate his own Sabbath. It does not say, you must worship God on the Christian Sabbath. On the contrary, it leaves him free on all these matters. His evening sacrifice and his morning worship, constituting the 7th day, he publicly and freely offers up, and there is none to make him afraid. His Sundays are spent as he pleases, so far as religion is concerned. No one dare say to him, in the circle of his own fireside, what doest thou ? None, as he walks the street, would dare say to him, turn in hither, and worship as we do !

It is however fancied that in some way this law is in derogation of the Hebrew’s religion, inasmuch as by his faith and this Statute, he is compelled to keep two Sabbaths. There is the mistake. He has his own, free and undiminished! Sunday is to us our day of rest. We say to him, simply, respect us, by ceasing on this day from the pursuit of that trade and business in which you, by the security and protection given to you by our laws, make great gain. This is a mere police or municipal regulation. If the Israelite were allowed to make the objection that he would not be constitutionally restrained from .pursuing a public business on Sunday, the Infidel would say, as Duke said — -“all days are alike to me, and therefore I will at all times pursue my business.” Such an assumption is so preposterous, that no one would tolerate it. Yet, in the case of the Town Council v. C. O. Duke and Alexander Marks, the Infidel and the Israelite placed themselves on the same platform, the 1st section of 8th article of the Constitution. It is true, the alliance was altogether unnatural. Still, both together invoked the decision of that good man and good Judge, the late Judge Martin, on the very question now before us — and he, with his accustomed clearness and power, decided that the Constitution did not prevent the passage of an ■ ordinance to prevent shop-keepers from keeping their shops open on the Sabbath day, and from that decision the parties dared not further pursue their complaint by appeal. It was feared that, like its noble, gifted author, it was no more; but I rejoice to find it has been preserved, and I hope, with this opinion, aiid as one of its main pillars of support, it will be given to the world.

If it were true that the commandment to keep the Sabbath day holy also required the Israelite to work six days, as closely and faithfully as he is to observe the 7th day as a day of rest, then indeed there might be a ground to say that the ordinance which requires him to desist, during Sunday, from a public business, the sale of goods, was unconstitutional. Let us read the commandment, beginning Bxod. xx. 8, “Remember the Sabbath day, to keep it holy. Six days shalt thou labor, and do all thy work, but the seventh day is the Sabbath of the Lord thy God; in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy man servant, nor thy maid servant, nor thy cattle, nor the stranger that is within thy gates. For in six days the Lord made heaven and earth, the sea and all that in them is, and rested the seventh day: wherefore the Lord blessed the seventh day, and hallowed it.” In Deuteronomy, chap. 5, beginning at the 12th verse, we have the same commandment again set before Israel:. “Keep the Sabbath day to sanctify it, as the Lord thy God hath commanded thee. Six days thou shalt labor, and do all thy work, but the seventh day is the Sabbath of the Lord thy God ; in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy man servant, nor thy maid servant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy man servant and thy maid servant may rest as well as thou. And remember that thou wast a servant in the land of Egypt, and the Lord thy God brought thee out thence, through a mighty hand and by a stretched out arm: therefore the Lord thy God commanded thee to keep the Sabbath day.” Leviticus, 23 and 3, contains, as I conceive, the commentary of the inspired Law Giver on, and the explanation of, this command. “ Six days shall work be done; but the seventh day is the Sabbath of rest., an holy convocation; ye shall do no work therein ; it is the Sabbath of the Lord in all your dwellings.” The meaning of the commandment is so plain, that I almost fear to add any explanation of my own. In six days, tbe Israelite is to do the work he may have to do: on the seventh he must not work — it is his day of rest. No one ever supposed it could go further. I fancy few among Israel worked every day in the six. If such had been the commandment, it would have been hard indeed. But it was intended to set apart a day of rest, and not to give a command to labor. The Savior said, “The Sabbath was made for man, and not man for the Sabbath.” So it remains, and so it is intended ever to remain-one day out of seven, as a day of rest — and as such, it is essential to every one who labors, be it man or beast, and hence its institution and observance. There is therefore no violation of the Hebrew’s religion, in requiring him to cease from labor on another day than his Sabbath, if ho be left free to observe the latter according to his religion. It is the seventh day which is to him a holiday, made so by his religion, and to be observed, at his peril. All other days are to him indifferent. Hence he can find no abridgment of his religion in being compelled to abstain from public trade, employment, or business on one of them.

If the Legislature, or the city of Charleston, were to declare that all shops, within the State or city, should be closed, and that no one should sell or offer to sell any goods, wares, or merchandize, $n the 4th of July or 8th January, in each year, would any one believe such a law was unconstitutional 1 It could not be pretended religion had anything to do with that! What has religion to do with a similar regulation for Sunday 1 It is, in a political and social point of view, a mere day of rest. Its observance, as such, is a mere question of expediency.— But, says the argument on the other side, we would not object to it if it did not give a Christian a preference over an Israelite. Where is such a provision 1 There is none such in the law. It is general, operating upon all. The Constitution, in the respect under consideration, considers all the people of "South Carolina, on whom the government is to operate, as citizens merely ; it does not divide them into Christians and Hebrews, or any other classifica-tiou. If the law is according to that, there is no objection. It is true the Israelite must cease from business on Sunday; so do all others. His religion makes him also observe Saturday ! That is not the effect of our law. It is the result of his religion, and to enjoy its cherished benefits, living in a community who have appointed a different day of rest, he must give to its law obedience, so far as it demands cessation from public employment.

The motion to reverse the decision below, is granted.

Richardson, J. Evans, J. Frost, J. Johnston, Ch. Dtjnkin, Ch. Caldwell, Ch. and Dargan, Ch. concurred.

Withers, J. did not hear the case.

'Wardlaw, J.

concurring in the result.

I agree to the result. The defendant has submitted no question but the abstract one, concerning the constitutionality of the Ordinance. Without looking to the religious obligation of a Sabbath, or even to the reasons, moral and political, which sustain the propriety of having certain portions of time set apart as seasons of common rest, I think that established usage of itself, may well justify a distinction between Sunday and other days. Sunday is a holiday, kept by the great mass of our people ; such a public profanation of it, as might reasonably be supposed to interfere with the good order of the community, may be constitutionally prohibited. A City Ordinance for this purpose, is a mere police regulation, standing upon the same footing as an Ordinance to prevent the opening of shops after a certain hour at night.

Motion granted. 
      
       It will bo found at the end of this case.
     
      
      
         Opinion of Judge Martin, in the case of the Town Council of Columbia vs. C. O. Duke and Alexander Marks, for keeping their shop doors open on the Sabbath.
      
      
        Ex-Parte C. O. Duke and Alexander Marks.
      Martin, J.
      The relators have brought their applications before me, for prohibitions, in a very informal way, and had counsel been concerned, I should, in all probability, have refused to consider them until made more technical, or more in harmony with established forms. But as I believe I understand the object of the parties, I do not feel at liberty to refuse a decision on them. ■
      
        On the 18th of July last, the Intendant and Wardens of Columbia passed an Ordinance, so much of which as is complained of by the applicants is in the following words, viz:
      “ That immediately after the passing of this Ordinance, if any merchant, store-keeper, grocer, shop-keeper or keeper of a porter or drinking house, or keeper of a confectionary, shall open their store for the transaction of business on Sunday, or are convicted of selling to negroes on that day within the town, shall he subject to a fine of $12 for every such offence.”
      For a violation of this Ordinance the relators have been fined.— They admit they are shop-keepers, and do not deny that they have incurred its penalties by opening their doors and selling on Sunday, if the Ordinance be Constitutional. But they insist that the Council have no authority to pass such an Ordinance, but are positively prohibited by that amendment of the Constitution of the United States, which ordains that “ Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof,” as well as by the first section of the 8th article of the Constitution of this State, which declares that “ The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall hereafter be allowed in this State to all mankind.”
      The question therefore submitted for my decision is, whether the Intendant and Wardens have the power to pass such an Ordinance. It is not controverted, that the Legislature have conferred on the corporation full power “ to make all such Ordinances, rules and regulations” and “ to establish such by-laws as may tend to preserve the quiet, peace, safety and good order of the inhabitants.” See Act of Assembly 1805, and Ordinances of the Town, page 16. But the relators, if I understand them correctly, insist either that this Ordinance goes further than is contemplated by the Act, by undertaking to enforce the religious observance of Sunday, or that .if it does not exceed the authority granted, then the Legislature itself had no power to legislate in regard to the character and duties of that day, and having none, the attempt to delegate it is void.
      In examining the questions here presented, it is unnecessary to say more in relation to the inhibition contained in the Constitution of the United States, than that it is confined to the powers of Congress. The object and effect of the provision is to prevent legislation by Congress on subjects which might tend “to the establishment of religion” or interfere with the free exercise of the rights of conscience. So far, therefore, as the parties to this question are concerned, they are wholly unaffected by the Constitution of the United States. The one claims no authority under the powers of Congress, the other cannot complain that the security afforded by that article has been interrupted by those on whom alone the Constitution in this particular operates.
      The relators rely, principally, on the 1st section of the 8 th article of the Constitution of this State, already quoted. The earnestness and confidence with which they have insisted that they are protected by the Constitutional provision, have induced mo to consider it attentively. But I. am wholly unable to discover its application in this instance. It cannot be pretended that this ordinance interferes with “the free exercise and enjoyment of religious worship,” or that it makes any “ discrimination” or “ gives any preference”— or that “ all mankind” are “ not allowed” all that was intended to he secured by the Constitution. The o dinance neither exacts nor imposes any religious duty or obligation — it requires no sacrifice on the part of any one, unless closing their doors and suspending their business (of which I will speak presently) be so considered. It is general in its character, and therefore every class of citizens is embraced “without discrimination or preference.” It enjoins no profession of faith, demands no religious test, extorts no religious ceremony, confers no religious privilege or “ preference”. The error consists in supposing that this regulation of the Corporation gives a “ preference,” or makes a “ discrimination” in favor of all who conceive it to be a duty to keep this day holy; and while one of the re-lators contends that it does no violence to religion to keep open shop and soli on that day, the other, who is an Israelite, denies that it is the true Sabbath.
      If obedience to our laws be left to depend not on their constitutionality, but on the opinions we may form of their authoritative character, legislation would become an idle name.
      Arguments, and ingenious ones too, as numerous at least as the number of those whose interests arc affected, would be advanced to shew that very many of our Statutes are unconstitutional.
      Every Act requiring the performance of a public duty, which one may fancy at war with his notions of religion, and all which restrain others in the pursuit of an honest and profitable trade, without paying a heavy license, are considered oppressive, and no argument or even suggestion is necessary to convince those who are subject to such laws, that they are unconstitutional. Yet a certain class of citizens, who refuse to serve on juries, pay their fines, and hawkers and pedlars pay a heavy license for the privilege of trading within certain limits; and it has never occurred to any one, that these laws are unconstitutional.
      Now if the Ordinance in question required either of the relators to observe Sunday as a sacred day, or to conform to the notions of others as to its holy character, then it would be giving a “ preference,” or making a “ discrimination” in contravention of the Constitution. But it is manifest that the nearest approximation which this Ordinance makes to religion or religious subjects, is to be found in the probability of its securing very partially to those, who do observe that day, an undisturbed and quiet performance of what they ponceive an imperative obligation. That those who do thus worship are entitled to this protection, and that the council have authority to secure it to them, I shall not stop to illustrate.
      I ain wholly at a loss to conceive how such a regulation can be said to possess the character attributed to it, when it neither compels the relators nor any other to observe or perform devotional exercises on that or any other day. nor forbids nor interferes with their doing so, on any other day which their creed may suggest as more sacred. The Constitution certainly does secure to all the right to worship God when and as they may please, and none “ shall make them afraid.” But will it be seriously said, that because the corporate authorities have declared that porter houses, drinking-houses, stores, &c. shall be closed on a given day, and not opened for trade or business, that they have interfered with the religion of any one — that this is making a “ discrimination” or giving a “ preference” to any class or sect ? It may, and no doubt does seriously affect the trade or busines of individuals who think proper to pursue their ordinary occupations on that day, but it cannot bo offensive to their notions of religion, let them be what they may. Nor would such an idea have occurred, or. such an argument been used, if the operations of this Ordinance had been confined to any other day — Saturday for instance. The expediency alone of such a law would have been the subject of animadversion. Mr. Marks, one of the relators, could not have complained, because he now observes that day, and would have been placed more on an equality as to the advantages of business; and it would not have occurred to Mr. Duke that the Council had it in contemplation to give the Israelites apreference” or make any “ discrimination” in their favor over Christians. As Saturday is not observed among Christians as holy, it would have suggested itself to Mr. Duke, that this Ordinance was penal and exclusively a municipal regulation, and however he and others might have protested against the policy of such a measure, it would not have been attacked on the constitutional grounds now urged.
      But I can easily suppose a case where the Council would not only be justifiable, but recreant to their duty, if they did not pass and enforce an Ordinance, where it might not only affect, but actually prevent one from exercising what he might call a religious duty, and still be justified under the Constitution. Theories in religion are so numerous, and the varieties of worship so great, that any one might well be considered rash who would undertake to define the former or number the latter. Let any of these theories be ever so wild and visionary, our laws can make no' “discrimination” in favor of, nor give any “preference” to any other over then, so long as they do not amount to “licentiousness,” or justify “practices inconsistent with the peace or safety of the State.” But one might rise up and insist that true piety is to be found in devoting six days of the week to spiritual concerns, and that they are too holy for any of the temporal concerns of life. He has a right to the enjoyment of that opinion, and no one could complain if he put his faith into practice. But if his belief extended still further, and he believed that what is now the Christian Sabbath should be devoted to rioting, drunkenness and every species of debauchery, offensive to decency and good order, and destructive of the peace and harmony of society, and with a view of living up to his faith, he opened his house every Sunday morning, which, as soon as opened, is filled with slaves, free persons-of color, or other idle and dissolute persons, who immediately engage in all the scenes which I have supposed constitute his faith — will it be said that these things are to be tolerated — that he cannot be restrained, because this is his religion, and to prevent him in the exercise or enjóyment of it, would be making a “discrimination” against him or giving a “preference” to others over him ? None I believe will deny the power of the Council, if such a case were to occur. They certainly possess it as an incident belonging to all municipal authorities from whom is required a preservation of the peace, good order and decency of society, and because it is an offence against all these. Nay, more — the latter clause of that section of the constitution on which the relators rely ordains that “the liberty of conscience thereby declared, shall not be so construed as to authorise acts of licentiousness or justify practices inconsistent with the safety of the State.” It proves nothing to say that such a case is not likely to occur. Theories little less extravagant, if in no way analogous, have not wanted adherents:
      I have thus far endeavored to show that the supposition that this ordinance is in violation of the constitution cannot be sustained.— As a municipal or police regulation, the ordinance would seem to be wholly unobjectionable. Men may have a natural right to do any thing which their inclinations may suggest, if it be not evil in itself, and shall in no way impair the rights of others. But when societies or governments are formed, every one surrenders certain rights, and as an equivalent for that surrender, has secured to him the enjoyment of certain other rights appertaining to his person and property, without the protection of which civilized society cannot exist.— All legislation, therefore, is a restraint on individuals, but it is a restraint which must be exercised by all who would enjoy the benefits derived from the institutions of society. The right to exercise these restraints must, of necessity, be vested in the supreme authority of the community. In this State the people are sovereign, (or at least claim to be so) and they act by their representatives assembled as a legislature under the constitution. The legislature, therefore, have the power to do all that the people themselves can do in their aggregate character, except in those instances where they find prohibitions in the constitution., That the legislature have the authority to prescribe the terms on which licenses to retailers, store keepers and all others embraced in the ordinance now under consideration, shall be granted, never has been and cannot, at this day, be seriously questioned by any one ; and it is equally clear, that if they thought it advisable and expedient, they might, by legislation, close them altogether. If, then, it be true that the legislature may make it penal to keep such establishments without a license — if it may prescribe the terms and conditions of their retailing, and even refuse all license whatever, surely it can say whenever, in their wisdom, expe-dieney and. policy suggest, that they shall be closed on a given day of every week.
      If society, by one consent, or by law, designate any 'day of the ■week as one of leisure and rest and on which all the ordinary and laborious occupations and pursuits of life are suspended, the recurrence of that day necessarily throws upon the community, for the time, servants, apprentices and other laborers, ready to embrace every opportunity which presents the means of indulgence. To lessen these temptations or render such as do exist as innoxious as possible, is a duty incumbent on all the municipal authorities, paramount to all considerations of the exclusive interest of any individual or class of individuals. And if it be called a restraint on individual or personal liberty in not allowing every one to pursue his own interest, as it may be presented, the answer is, it is a restraint which the benefit of society imposes, and the right to impose it has been yielded by the individual himself — or, in other words, it is one which those “in whom all power is originally vested” (among whom he is himself numbered) have prescribed for the common benefit. No member of society has the right to pursue any trade, occupation or pursuit, from which society suffers a positive injury or is exposed to imminent danger ; and it isfor those in authority to decide on the policy of prohibiting or removing such evils, when the case presented is within their jurisdiction.
      The pursuit or occupation may be perfectly harmless, or but partially so, in one situation and under particular circumstances, while at another place and under a different state of thing, the evil might be so great, or the danger so obvious as to be wholly insufferable.— Take, for examples, an establishment for slaughtering all sorts of animals, or one for the manufacture of gun-powder, in the centre of a populous city and directly on a principal street, what would either of the relators say, if an establishment for either of those purposes was about to commence business next door to him ? What would the whole community say? Would any one then doubt that the corporate authorities had power to prevent them altogether, to say nothing of the power to restain their operation for one day in the week ? And yet, perhaps, there are not wanting those who believe, very conscientiously, that neither of the establishments to which I have alluded would be positively so injurious to society as one for retailing spirituous liquors every day in the week. This variety of opinion shews the absolute necessity that a right to decide, and the power to enforce their decisions, should exist somewhere else than in the opinions of those who may be personally interested, or who may be laboring under a morbid sensibility on such subject. The Legislature possesses the power from the people ; and, with it, the right and authority to delegate it to such agents as they may select. By the Act of 1805, before referred to, they have conferred on the Council (and that Council is chosen by those who are affected by their ordinances) power “to establish such by-laws as may tend to the quiet, peace, safety and good order of the inhabitants.” This grant would seem to embrace all that the Council contend for, if words can convey what they insist they possess.
      I entertain no doubt they do possess it, and possessing it, they are ■ to determine for themselves and the “inhabitants,” when it may be judiciously exercised. Having determined that this is a proper time, I have no control over them. The motions for prohibitions are therefore refused.
      September 14, 1833.
     