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though some pretences were set up of the incapacity of the testator, that part of the case broke down so completely that the lawyers must evidently have relied principally on the other. They failed, however, to satisfy the jury that the will was actually made on Sunday, and so the question of its inva lidity on that ground was never reached. Had it been, it is not difficult to imagine the course of argument on either side; we will for the reader's amusement briefly indicate it. It would have been attempted to take the case out of the range of Pattee and Greeley, by setting up that the making of a will must always be regarded as a work of necessity. No man knows when he may die. He is as likely to die on Sunday as on any other day in the seven, and if his will remains unmade till the Sunday begins, he must make it then or not at all. It would have been argued besides, that, in this particular case, by reason of the legacy to the observatory, their particular will was a work of charity, as, indeed, all wills, in a certain sense, may be said to be, and we should have had some wondrous flights of rhetoric about the connection between astronomy and navigation, the longitude, ship-wrecks, and tempesttost mariners. On the other side it would have been closely argued, and the argument would have been very hard to get over, that whether or not there was any necessity for ma king a will on Sunday must be tested by the court. That if a man, under apprehension of present death, or impressed with the precariousness of life makes his will on Sunday, and actually dies before Monday comes, or is smitten with a mortal sickness or incapacity of mind or body, which leaves him no secular hours thereafter in which he is in a fit state for business, then, indeed, it may be truly said there was a necessity to make the will on Sunday. But if he survives till Monday, in good health, there was, in fact, no such necessity, and the will is void. Then, again, as to the charity, the acts intended to be excepted by the law, evidently were such as carry with them a certain instant necessity, also, and not such acts as might just as well be postponed to the next day. Something like this would probably have been the line of argument, but, as we have seen, that matter is still left in doubt.
Meanwhile other doubts have been raised of a character truly distressing, liable to overwhelm the tender consciences of amiable formalists with the most poignant alarm, to shake the fortunes of many families, and to sow law-suits broad-cast over the land.
It is well known to have been long the practice in New England, and the same practice exists in other States, for a very considerable proportion of marriages to be celebrated on Sunday. Some very scrupulous ministers we have heard of, worthy to sit at the right hand and to receive the honor of being standing chaplains to our Supreme Court, who, looking upon marriage as the law looks upon it, merely as a civil contract, and withal a somewhat carnal contract too, have refused to marry on Sundays; but these samples have been far from common. The doubt raised, and a very serious doubt too, is whether, according to the doctrine of Pattee vs. Greeley, all these marriages are not void, the parties liable to the state prison as guilty of lascivious cohabitation, the children bastards, not capable of inheriting, and all the distribution of property heretofore made under pretence of inheritance, among the children of such marriages, void and illegal. A learned gentleman who has volunteered in a recent number of the Law Reporter in defence of Pattee vs. Greeley, freely admits that all these horrible consequences must inevitably follow, and the cool composure with which he contemplates them, amply vindicates his claim to a very high seat in the Calvinistic synagogue. He who anticipates with complacency the eternal damnation of infinite thousands is quite raised above the weakness of troubling himself about the little evils of this world. Horrible as these consequences are, it will require more legal ingenuity than we have seen any recent exhibition of, to escape from them as inevitable consequences of the doctrine laid down in Pattee vs. Greeley.
There is, however, one view of the matter which seems wholly to have escaped the attention of the learned court, as well as of the learned gentlemen who have commented on this decision a view which, as it strikes us, must prove fatal not only to the case of Pattee vs. Greeley, but to a considerable number of other cases in the reports of our own and other states, in which the state courts have undertaken to nullify contracts on the ground that they were made in contravention of state laws. It has been very wisely provided in the Constitution of the United States, and this provision has been guarded with watchful jealousy, as one of the Hesperidian apples of that instrument, by the United States Supreme Court, that no state shall pass "any law impairing the obligation of contracts." So far forth, then, as the state Sunday laws operate or are intended to operate, either directly or by implication,
to impair the obligation of any contract binding on the general principles of the law of contracts, such statutes are unconstitutional and void. The states, by consenting to this clause in the federal constitution, relinquished the power of employing the rescindment or nullification of contracts as one of the sanctions of their penal laws. If the states have the power to make a law invalidating all contracts made on Sunday, then, by extending this principle to each day of the week, one after the other, they may invalidate all contracts. If, under cover of a penal law, they can nullify any particular kind of contract, then, by inflicting a penalty of five dollars on the making of any contract at all for the payment of money or the doing of any particular thing in futuro, they may cut up the whole law of contracts by the roots.
The Supreme Court of the United States have taken a just distinction between the obligation of a contract and the remedy for its enforcement. The states have a right to modify the remedy, but they have no right to impair the obligation, either by taking away the remedy altogether, or by declaring such and such contracts not binding, which, but for such special acts of legislation, would have been so. This plainly does not touch the case of bargains which are void because they are against good morals; where the invalidity does not arise out of a particular statute, but out of the general principles of the law. The clause in the Constitution which deprives the state legislatures of the right of nullifying contracts, still leaves that power in the hands of the courts, to be exercised, however, not as the instrument and at the will of the legislature, but by their own inherent authority, and only according to the dictates of eternal justice.
This is not a case which requires or admits of much argument. The whole matter lies in a nut-shell. It is only necessary to put the clause in the Constitution and the Sunday act of our legislature, as expounded and understood by the court, in juxtaposition, to see that they cannot stand together so far as to have any effect upon contracts. Here is a contract binding in foro conscientia, and if there is any thing really sacred or peculiar in Sunday, then for that very reason, in the sight of God, still more binding; here is a contract good according to the general principles of morals, and good by the common law independently of statute modification, and here comes in a state law and declares that contract void! If this is not a law impairing the obligation of contracts, it is exceedingly difficult
to imagine what would be. If this view of the case be correct, and we feel great confidence that the Supreme Court of the United States, on a writ of error, would sustain it, it saves the horse-trades and the marriages; but as a will is no contract, being a mere gift or grant to operate in futuro, Sunday wills would still be left in jeopardy. It is probable, however, if the rest of their doctrine on this subject were thrown overboard, in disgust at this forced abandonment of antiquated austerities, or perhaps secretly rejoicing at it, the Court would discover some way of releasing themselves from the necessity of preventing people from making wills on Sunday.
Apart, indeed, from this objection founded on the Constitution of the United States, it seems to us quite impossible to reconcile the Sunday laws and some others existing on our statute book with the provisions of the Constitution of Massachusetts. We know that the Supreme Court of Pennsylvania have, by a recent decision, sustained the constitutionality of the Sunday laws of that state. We admit, also, that the reasoning of our own Supreme Court, in the case of Commonwealth vs. Kneeland, would go the whole length of sustaining the Sunday laws, and of hanging people for heresy, too, had that old colonial law happened to have remained on our statute book. But in the whole multitudinous volumes of the Massachesetts reports, there is not a worse reasoned or weaker case than Commonwealth vs. Kneeland, as we hope to take some early opportunity to show.
ART. V. European Agriculture and Rural Economy. From Professional Observation. By HENRY COLMAN, Honorary Member of the Royal Agricultural Society of England, of the National Agricultural Society of France, and of the National Agricultural Society of the United States. 1849. Boston: Little & Brown. London: John Petheram. 2nd Edition. 2 vols. 8vo. pp. XXVI. and 492, and XXIV. and 588.
THE agricultural mission of Mr. Colman to Europe we consider as a favorable sign of the times. Much the greater part of Mr. Colman's work is devoted to English agriculture, or that of the United Kingdom, where improvement has advanced with the most rapid pace and on the largest scale.
Mr. Colman's object was to give as full and accurate an account as was practicable of the Agriculture and Rural Economy of the United Kingdom, and of several states on the continent. His residence abroad for more than five years, and his extensive and intimate acquaintance with the most intelligent landholders and farmers, distinguished for their practical skill, and his opportunities for observation, gave him greater advantages for a thorough knowledge of his subject, than have been enjoyed by any of his countrymen. His great care to avoid any approach to a violation of the confidence of social life is very commendable, and forms quite a contrast to the practice of some American tourists.
Mr. Colman has long been well known to the public as an author in more than one department of knowledge; but for some years past he has devoted his attention to agriculture as a practical farmer, and more especially to collecting agricul tural information, and diffusing it among his fellow-citizens by his various publications.
For some years he was the Commissioner of Agriculture for the State of Massachusetts, until, from an ill-judged economy, as we thought, the office was abolished. Perhaps, however, this is not to be regretted, if it has been the cause of his agricultural tour in Europe, to which we owe the two volumes before us. Mr. Colman remarks:
"I am not for the first time on trial before the public. It is now approaching forty years since I first interested myself in the improvement of the agriculture of my country; and during that whole time, few months have passed without some contributions on the subject from my pen to the public press. Whether, therefore, my writings are practical or not, the public have ample opportunity to judge."
"I claim no merit for myself but that of being a careful collector of what I deem valuable facts within my own or the agricultural experience of others; and of stating these facts truly and perspicuously. I have carefully avoided all speculations and theories not fully confirmed; and my constant study has been to make my statements intelligible to the humblest, and, if possible, at the same time, attractive to persons of cultivated minds. I have been most anxious to raise the profession of agriculture from its low estate to its proper dignity, as a humane and intellectual profession."
Many agricultural experiments have been tried in England, of which an accurate account would be highly instructive to an American farmer. The risk and expense of these enter