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species of secular labor. They accordingly sustained an action for damages against a justice who had undertaken to issue these Sunday warrants, thus giving a very fair specimen of judicial adroitness in hanging fanaticism with its own rope. Two or three years before, while Parsons still sat on the bench, a person who had been cheated out of a debt in Connecticut, by the decision of the Supreme Conrt of that state that contracts made on Sunday were not binding, undertook to profit by his experience of Connecticut law and gospel, by setting up the same defence in Massachusetts, to a note which he himself had signed on Sunday, very likely with the intention, at the time of signing, of thereby escaping payment. The lawyer who set up this defence - Lincoln, afterwards himself a judge, and subsequently Governor of the state, — (10 Mass. R., 312, Geer vs. Putnam,) seemed rather ashamed of it, excusing himself by the express instructions of his client, founded on his experience in Connecticut; and the Court, apparently without any argument, - Parsons recollecting that the same defence had been raised and overruled in another county, - summarily disposed of the matter by deciding against the objection. This decision was expressly approved in a subsequent case, (16 Pick., 247, Clap vs. Smith); and so in this commonwealth, until very recently, the law was supposed to stand.
There is, in fact, no little need, in democratic as well as in aristocratic or monarchial governments, for learned, judicious, and liberal courts gradually to make those modifications in the law which enlightenment requires. If English jurisprudence has been gradually changed from a system of barbarous usages into a code which, on the whole, will stand favorable comparison with any that ever existed, that change is far more due to the courts than to the legislators. In spite of the ignorance, the negligence, in many cases in spite of the obstinate prejudices and opposition of the legislators, the English courts have gradually transfused into the dry, narrow, technical body of the Saxon-Norman feudal law, those comprehensive principles of equity first clearly expounded by the Roman jurisconsults and transmitted to us in Justinian's code, and along with them the usages of modern commercial Europe, not less admirable for their justice and good sense, which constitute the mass of our mercantile law. To accomplish beneficent purposes like these, and at the same time to escape the imputation of setting the legislative will at defiance, the courts have often been obliged to resort to pretty sharp constructions, indeed to lay down a system of rules for judicial interpretation liable, in certain respects, to the charge of quibbling and hair-splitting; sometimes sadly abused ; but generally made use of for the defence of right and justice against the brute force of absurd or ignorant legislation. Craft, indeed, in the order of nature, is the weapon of the shrewd and weak against the tyranny of the ignorant and strong. But our courts, if they have often been as subtle as serpents, have also, for the most part, to their honor be it said, been as harmless as doves.
There was and is, in the case of the Sunday laws now under consideration, the more justification for the employment of a little legal craft, - just as much a vested right and constitutional authority on the part of the courts, as that of making statutes is on the part of the legislature, because our legislators are actually afraid to do that in the matter to which their own sense of propriety, their own private inclination, and the inclination, in fact, of the great mass of the public, would naturally lead them. Which party soever happens to be in power, it does not choose, by proposing the repeal of these laws and others of a like character, to give to its opponents the opportunity to open against it the floodgates of religious prejudice and objurgation. The fear of party leaders to draw down upon themselves the furious assaults of a small band of fanatics actually keeps on our statute books a very considerable number of laws, unhappy legacies of times past, which, if now attempted to be enacted for the first time, could not get one voice in ten in their favor. A court which supplies the timidity of the legislature by substantially nullifying such laws, does in reality but carry out the will of the people. It is, indeed, this carrying out of the popular will, this embodying into the law the enlightened public sentiment of the day, which forms the true justification of that which some “pseudo-democrats” have denounced under the name of “judicial legislation,” but which, notwithstanding, belongs to the best legislation we have had, and making, as it does, a part of our legal and constitutional system, is just as legal and constitutional as any other.
Timidity, however, is not exclusively the fault of legislators. Judges, notwithstanding the life term for which they hold their offices, are apt to be affected by it. A man of great and surpassing genius,-a Mansfield for instance, - will sometimes march boldly ahead and draw the public after him, but it is very seldom that a Mansfield sits upon the bench ; and
when he does, the common-place judges that come after, often employ themselves in undoing a part of his work by revising and reversing, as far as they dare, his innovating decisions.
It has often been vehemently charged against Chief Justice Parsons, the greatest legal genius that ever adorned the New England bench, that his law was tainted and perverted by his liberal theology. The sticklers for old doctrines can never forgive him for having vindicated the right of our congrega tional churches to change their religious opinions without thereby forfeiting to the use of an orthodox minority, their name, their property, their organization, and their rights. A different decision was made in New Jersey; and by Lord Brougham also, whose strong disposition in favor of minorities, especially if it be a minority of one, has been of late so fully developed; but the substantial injustice of my lord chancellor's decision, though the sufferers by it were the most unpopular sect in the kingdom, to wit, the Unitarians, was so fully apparent, that the mischief of it was speedily remedied by a special act of parliament.
We may be mistaken, but two recent decisions of our supreme Court, (Pattee vs. Greeley, Robeson vs. French, the one in 1818, the other in 1846, not yet officially reported, but to be found in the monthly Law Reporter for October, 1848, and January, 1849,) look to us very much like a judicial attempt to propitiate the three-headed Cerberus of Massachusetts orthodoxy. These two decisions overturn, at least for the present, the doctrine above referred to, laid down by Parsons, and supported by the Supreme Court of his time, that a contract made on Sunday is just as binding as that made on any other day. It was held in the first of these cases, (the second in order of trial,) that a bond executed on Sunday, there being nothing to show that its execution on that day was a work of necessity or charity, was void ; and in the second, that no action would be sustained on a warranty of a horse sold on Sunday, the sale on that day being prohibited by statute, and therefore not a bargain for the enforcement of which the courts would interfere, - a decision of which doubtless horse-jockeys will extensively avail themselves to make their trades on Sunday.
The statute which has been made the occasion of these innovations upon our Massachusetts law prohibits " any person from keeping open his shop, warehouse, or workhouse, or doing any manner of labor, business, or work, except only works of necessity and charity, or being present at any dancing or any public diversion, show, or entertainment, or taking part in any sport, game, or play on the Lord's day," under a penalty of ten dollars.
The argument of the Court is, that executing a bond, or making a contract falls under the category of“ labor, business, or work”; and is therefore prohibited, and that, according to a well-established principle of the law, all contracts contrary to morality, or made in the face of express statutes are ipso facto void, and of course not to be enforced. In the application of this principle to contracts made on Sundays, the court is sustained, not only by the practice of Connecticut, (2, Conn. R., 560, Fox vs. Abel,) but by decisions of the courts in several other states. In New York, a different doctrine is held; but the New York statute is different from that of Massachu. setts in its phraseology, referring only to “servile labor” and
exposing goods for sale.” Vermont, (6, Verm. R., 219, Lyon vs. Strong, 19th, 352, Adams vs. Gay); New Hampshire, (9, New Hamp. Clough vs. Davis,) and Pennsylvania, (6, Watts 231, Kefner vs. Keefer; 2 Miles, 402, Burrell vs. Smith; and 3, Watts and Serg. 402, Fox vs. Minch,) go with Connecticut; and the same is the case with Alabama. The like doctrine is also upheld by several recent English decisions, though prior to the enactment of the English Sunday statutes in Charles II.'s time, it had been held during the reign of Elizabeth, that contracts made on Sunday were, by the common law, good and binding. Had the court been really desirous of upholding the former doctrine on the subject; had they been totally unswayed by the tempting opportunity of exhibiting in the eyes of their orthodox fellow-citizens, their judicial and theological impartiality, it would not seem to have required any great stretch of legal acuteness to have sustained them in doing so. First, they had two decisions of our now Supreme Court, and one in New York quite equal here in Massachusetts in weight of authority to Connecticut, New Hampshire, Vermont, Pennsylvania and Alabama, reinforced though they are by similar decisions on the part of some recent English “evangelical ” judges. As to the argument, it might have been said that this was a penal statute; a statute in abridgement of the natural liberty of mankind, trenching, also, very close on the constitutional provisions in favor of relig. ious liberty, and therefore not to be stretched beyond the very letter. The intention of the framers, very likely, was to prohibit every thing on Sunday except praying, preaching, and godly meditation. Indeed, as this enactment may be traced back on our statute book, even to the very days of the Blue Laws, probably enough of the original framers of it might have considered the very caressing of wives and children, above referred to, as included under the head of “ sport, game, or play.” It is even quite likely that stern old Wilson, and hard old Davenport would have pronounced the Sunday services in some of our Orthodox churches of to-day, in which a hired choir of perhaps theatrical singers is followed by a studied and elaborate specimen of evangelical rhetoric, as little better than 66
a public diversion, show, or entertainment,” and therefore as falling within the prohibition of this law. But in construing such a statute as this, it is quite sufficient to follow the letter. That letter has imposed no penalty on bargains or contracts made on the Lord's day. It is the physical labor, the weighing or measuring of the goods, the writing or signing of the contract, which the law prohibits, not the mere mental consent in which the essence of the contract consists. Thus, for example, our law prohibits a marriage without the publication of bans, and imposes a penalty on the person celebrating it; but the marriage is good and valid nevertheless. In this case of Sunday contracts, as in that of the marriage, the argument based on the inconvenience of the opposite decision is very strong. We know it has been said to be a maxim of the courts, and has even been avowed by some great jurisconsults, that decisions ought to be made not merely with a view to right and justice, but also with an eye to the benefit of the profession. Hence, the courts have been apt to insist, in matters of convey. ances, for instance, on certain niceties and quibbles which render it impossible for such documents to be safely made without the assistance of some gentleman learned in the law. Nevertheless it might have been argued that the manifold doubts and uncertainties, and the multiplication of lawsuits likely to grow out of the contrary doctrine, was a sufficient reason for upholding the position hitherto maintained in this Commonwealth as to the validity of Sunday contracts. Some fruits of those doubts, we have already begun to reap. Thus we have recently seen a remarkable attempt to upset a will, in which the property at stake amounted to half a million or more, including a donation of a hundred thousand dollars to the observatory at Cambridge, on the sole ground that the will was executed on Sunday. We say the sole ground, for