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day; and such would undoubtedly be the 1csult. It cannot wisely appoint two rest days in each week, and it certainly cannot change the day to meet the case of that small minority of the people who keep a different day.
The Revised Statutes of New York State, however, provide that those who keep "the last day of the week, called Saturday, as holy time, and do not labor or work upon that day," shall be exempted from the statute against labor on the first day of the week, with the single qualification that their labor shall not "disturb other persons in their observance of the first day of the week as holy time.” The law of the same State still further provides that those who keep Saturday "as the Sabbath of rest from labor" shall not on that day "be subject to perform military duty or jury duty in a justice's court," or on that day have any process from such a court in a civil suit served upon them or made returnable thereon. This would seem to be about as far as the law can reasonably go in accommodating its general regulations to the peculiar circumstances of Jews or other persons who observe the seventh day of the week as holy time. Such provisions show very clearly that it is not the religious element of the Sabbath which the law undertakes to decide or control, whether in respect to the Christian or the Jew.
No inference, surely, can be drawn from Sabbath legislation in respect to the question of Bible-reading or other religious-exercises in our public schools.
If the legislation established the Sabbath as a sacred day and enforced its religious observance, and especially if it made that observance Christian in its form, then it might with some plausibility be said that a State doing thus much could with equal propriety engage in the work of religious propagandism in the public school. Both might be wrong; yet one would be a precedent for the other. Such, however, is not the state of the facts. There is no religious element in the Sabbath legislation of this country and no attempt to put any such element there, as there could not be without contradicting the theory of our political system.
Those who appeal to this legislation as an argument to support the doctrine of religious instruction and worship in the public schools, either do not understand the character of the legislation as expounded by the courts, or are lacking in logical candor. They might just as well appeal to police regulations or those that relate to banking institutions as the means of sustaining their conclusion. The fatal objection to their reasoning is that there is no connection between the conclusion and the premise.
THE CIVIL OATH.
Bouvier, in his "Law Dictionary," defines an oath to be "an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God." He quotes Starkie as declaring it to be "a solemn invocation of the vengeance of the Deity upon the witness if he do not declare the whole truth, so far as he knows it." Dr. Webster says that it is "a solemn affirmation or declaration, made with an appeal to God for the truth of what is affirmed,” and then adds that "the appeal to God in an oath implies that the person imprecates his vengeance and renounces his favor if the declaration is false; or, if the declaration is a promise, the person invokes the vengeance of God if he should fail to keep it.” John Milton, in his "Christian Doctrine," says: "An oath is that whereby we call God to witness the truth of what we say, with a curse upon our selves, implied or expressed, should it prove false."
These definitions refer not to extra-legal or extrajudicial attestations, which involve no relation to
law, but rather to the oath when administered by some person legally authorized, and in proceedings provided for by law. The latter only is the civil oath.
The fact that the National Government and all the State governments of this country make use of this oath, and that they employ the Bible, either the whole or a part of it, in administering an oath, is sometimes referred to as showing that the Christian religion, in at least a qualified sense, is a constituent element of our political system. Those who wish to incorporate Christianity into our public schools find, or rather think they find a precedent in the civil oath for their demand. If we have the oath, then why not also have the Bible and religious services in our public schools? The purpose of this article is to inquire whether the use of the oath authorizes the inference sought to be drawn from it. And, in order to determine this point, we need to know what are the provisions of our constitutions and laws in respect to the civil oath. Let this, then, be our first inquiry.
The Constitution of the United States provides that the President, before entering upon the duties of his office, shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and defend the Constitution of the United States." It also provides that Senators
and Representatives in Congress, the members of the several State legislatures, and all the executive and judicial officers of the United States, and of the several States, shall be bound by oath or affirmation to support the Constitution. Congress has enacted a series of laws respecting the oath, and the occasions of its administration, the persons by whom it shall be administered, and the penal sanctions by which it shall be enforced. This whole system of legislation provides for the alternative stated in the Constitution. The party may, at his own option, be sworn, or merely affirm, as its legal equivalent. The Revised Statutes of the United States (Section I.) declare that the "requirement of an oath shall be deemed complied with by making affirmation in due judicial form." Simple affirmation may, therefore, in every case be substituted for the oath.
Some of the State constitutions contain provisions relating to this subject. Thus the constitution of Arkansas (I., 21) declares that "the mode of administering an oath or affirmation shall be such as shall be most consistent with and binding upon the conscience of the person to whom such an oath or affirmation may be administered." The constitution of Indiana (I., 8) and that of Oregon (I., 7) contain a similar provision. The constitution of Missouri (II., 12) provides that "if any person shall declare that he has conscientious scruples against taking an oath or swearing in any form, the said