2 Conn. 541 | Conn. | 1818
The question is, whether the statute, by the words « Lord’s day” means the natural, or solar day.
It is a well known rule of the common law, that a day comprises twenty-four hours, extending from midnight to midnight, including morning, evening and night, and is called the natural day. When a day is spoken of in law, it comprehends that period of time. When an act is to be done on a particular day, it may be done at any time between those hours. 2 Black. Comm. 141. And, of course, a prohibition to do an act on a particular day, must comprise the, same period. If the service of civil process should be prohibited on Monday, the prohibition would reach from midnight to midnight. Of course, when the statute declared, that if any civil process should be issued and served on the Lord’s day, it should be void, and of no effect, it must, ex vi termini, comprehend the whole twenty-four hours, unless something can be collected from the statute itself, to warrant a different construction.
It is contended, that from certain expressions in the statute, it is evident the legislature meant by the Lord’s day, a solar day, including only the time, from the rising to the setting of the sun, In the 6th section of the statute, Innkeepers are prohibited from entertaining people on Saturday night after sunset, on the Lord’s day, or on the evening following, Now, it is said, if the Lord’s day comprehends the whole rime till midnight, then the evening following cannot be the evening of the Lord's day, but of the succeeding day : but as it is manifest, the legislature meant the evening of the Lord’s day, the consequence follows, that they must have considered
It is further objected, that on this construction these words can have no operation ; for the Lord’s day comprehends the everting. This, however, constitutes no objection. It is nothing but a repetition ; and nothing is more common in statutes, than repeated prohibitions of the same thing, in different words. In the statute under consideration, all secular business is forbidden on the Lord’s day, or any part thereof, These last words are but a repeated prohibition, and cannot affect the construction of the statute. Yet in the case under consideration, there seems to he some colour for this prohibition. The statute had prohibited certain things to be done
It may also be remarked, that if the legislature had intended to have prohibited secular business only within the period of the solar day, they would have made use of appropriate and definite language j and it cannot be supposed* that they would have used words proper to express the natural day, and then have left it to be inferred from a verbal criticism, that they intended the solar day. If any doubt, however, can be raised by this section, it is fully removed by another. In regulating the sailing of vessels, they are prohibited to depart from any harbour, &c., on the Lord's day, at any time between the morning light and the setting sun. This language clearly shews, that the legislature did not consider the period of time between the morning light and the setting sun to be the whole of the Lord’s day, but only a part of it. This, then, proves, that they did not in the statute mean the solar day. If the legislature, in the other parts of the statute, had, by the term Lord’s day, meant only a solar day, then there could have been no possible reason for the introduction of these expressions into this section ; for no one will believe, that they intended to restrain sailors between the morning light and sun-rise, when no other persons were restrained during that time. Indeed, it is evident if the legislature had considered the Lord’s day to be the solar day, they would never have made this restriction with Aspect to sailors, but left them on the same footing with every body else. It is, then, conclusive, that they could not have understood by the Lord’s day, the solar day. If the expression had been, between the, rising and the setting sun, then it might, with some plausibility, have been inferred, that the legislature contemplated only the Solar day, in the regulations of the statute ; and that this w as an exposition of their intent. But the extension of the prohibition to the time between the morning light and the rising sun, excludes such an inference, and demonstrates, that they never contemplated the solar day $ for there might be some reason why the prohibition should be
The ease of Carpenter v. Crane, 1 Root 98. has been referred to as an authority in point. Having been of manse! in that case, I am able to say the doctrine that Sunday comprehends only the solar day, was not then promulgated : it is a doctrine of a later date, and was drawn as a consequence from that decision ; which was probably owing to the imposing equity of that particular case; a circumstance, which lots often led to a deviation from principle productive of serious inconvenience in other cases. At any rate, however, a decision of the superior court, repugnant to the express provision of a statute, has never been deemed an authority binding on this Court.
I would not advise a new trial.
This is an action of trespass, charging an assault, battery and false imprisonment. Under the plea of Not guilty, the defendants rely on a justification, by the levy of an execution on the body of the plaintiff. The plaintiff alleges, that the levy was made on the Sabbath, or Lord’s day, in the morning of that day, after midnight, and before day-break; and contends, that this levy, at that time, was unlaw ful and voW.
This cause must be decided upon the true construction of Use words in our statute, which enacts, that “ if any civil process shall be issued or served on the Lord’s day, it shall be void and of no effect; and the officer who serves the same, on said day, shall pay a fine of one dollar, sixty-seven cents, and all damage that shall arise to any person thereby.”
Neither party, in this ease, denies, that the Christian Sal-bath must embrace a complete seventh part of time, viz. a whole day of twenty-four hours ; nor claims, that the question, at what time this Sabbath commences, is precisely determined in any part of the statute.
if the exact hour and minute of the natural day, on which the Subbath begins, be a matter of essential importance, we might certainly expect some explicit directions in the Scriptures. In Leviticus, xxiii. 5T. an express rule was given to the Israelites, as to the day of atonement, which was to-be observed annually, on the tenth day of tin; seventh month—
The English appear to have always divided days into natural and artificial: but at different periods, have affixed contrary meanings to those terms. The time, from the rising to the setting of the sun, was, by ancient authors, called dies Sola-ris, and the night, dies lunaris. The solar day was termed the natural day ; and the whole twenty-four hours, consisting of the solar day and the night succeeding it, was called the artificial day. But afterware», and to the present time, the solar day was termed the artificial day, and the twenty-four hours, commencing from the rising of the sun on one day, and continued through the night succeeding, was styled the natural day. Co. Lift. 135. a. Different nations begin the day at different times. Lord Coke tells us, the Jews, Chaldeans and Babyloneans begin the day at sunrise ; the Umbri in Italy, at mid-day : the Egyptians and Romans, from midnight ; and so doth the law of England, in many cases.
Respecting the custom of holding courts, and serving legal process, on Sunday, Lord Mansfield has given the fullest history, in Ihe case of Swan v. Broome, 3 Burrow, 1595. He informs us, that the ancient Christians not only allowed all kinds of legal process on that day, but held their courts open for the trial of causes, dowm to the beginning of the sixth century ; hut that afterw ards, the practice was prohibited, by sundry ecclesiastical canons. These canons were received and
Lord Coke tells us, (2 Inst. 264.) “ The Lord’s days, are dies nonjuridici; and this was the ancient law of England, and extended not only to legal proceedings, but to contracts.*’ He quotes a sentence from the English laws before the conquest — “ Dacus, si die dominico quicquam fuerit mercafus, re ipsa, el oris preeterea duodecim mulctator ; Jlnglusprwterea triginta solidos numerata.” By this law', whatever article should be purchased on the Lord’s day, was forfeited, and the buyer, if a Saxon, should further pay a fine of twelve orre, (a Saxon coin, of the value of about sixteen pence, sterling.) but if a Briton, of thirty shillings. So by the statute, 27 Henry 6. cap. 5. goods, exposed in fairs or markets for sale, on Sundays, were forfeited to the lords of the franchise. This statute could have effect, as to those hours only in the day, on which fairs and markets were kept open.
From these authorities it seems evident, that neither by the Scriptures, nor by the common law, was the time afer midnight and before the dawn of the morning of the Sab-
The statute of this state, (tit. Sabbath, sec. 2.) forbids all secular business from being done on the Lora’s day, or any part thereof. Our courts, from the earliest times, Lave accordingly adjudged all contracts, whether by parol, or in writing, made, or executed, on that day, to be void, and of no validity in law, Wight v. Geer, 1 Root 474. But they have ever held promissory notes, and other contracts, which were executed on Saturday evening, or after sunset on the evening of the Sabbath day, to be binding and valid. In Carpenter v. Crane, 1 Root 98., a promissory note executed at 2 o’clock on Sunday morning, was judged valid ; and the court decided, on demurrer, th%t it was not given and executed on the Lord’s day. In Mumford & al. v. Buel, 1 Root. 145., an arrest by execution on Saturday night, after the darkness had commenced, and a promissory note executed by the debtor to procure his release, between the hours of eleven and twelve of the same night, were both adjudged valid ; and the court decided, that it is clear the legislature mr mt by the Lord’s day, the artificial, or solar day; that although it is agreed, that the Sabbath includes the whole of the natural day of twenty-four hours, yet as mankind differ about the question, whether it includes the evening and night preceding, or the evening and night succeeding, the law meant to allow them liberty of conscience, in case they do not disturb others. The law of this state, on this point, is thus laid down, 1 Swift’s Syst. 367. “ Contracts are void, which are made on the Sabbath, or Lord’s day. From sundry adjudications, it appears to be the opinion of the courts, that the transaction of secular business is unlawful, only during the time from morning light, till evening.’5
The natural day has no fixed time of commencement,Jn which mankind in general, or the different denominations of Christians, are agreed. It is not the busines of human lawgivers to determine what is the true time ; their only object and duty, in enacting penal statutes, is, not to settle theological disputes, but to guard and protect the rights and morals, the peace and welfare, of society. The solar day is ascertained by fixed and known limits ; it is subject to no difficulties, respecting its commencement and close; and is al-
In 1692, a statute was passed in Massachusetts, for the better observation of the Lord's day. This act, after forbidding all persons to exercise any labour or business, use any game or sport, or travel on unnecessary journies on that day, goes on in these words : “ That no person, keeping any public house of entertainment, shall suffer any of the inhabitants of the respective towns where they dwell, to abide and remain in their houses, drinking, or idly spending their time, on Saturday night after the sun is set, or on the Lord’s day, or the evening following.” In this clause, the Lord’s day is expressly distinguished, as a different part of time from the Saturday night preceding, and the evening following it, and can only mean the solar day. This statute was, soon after, and certainly before the year 1698, adopted in substance, and nearly in the same words, by the legislature of Connecticut. It appears in the edition of 1702; and w as, for many years aftei’, the only statute relative to this subject. It has been kept in force in every subsequent revision. The same distinction between the Lord’s day, and the nights preceding and subsequent, is preserved ; and the clause just quoted, constitutes the fifth section of our act, for the due observation of the Sabbath. According to the rules of construction, the words, Lord’s day, must be understood in the same manner, in every part of the statute-— must exclude the Saturday and Sunday nights, and can mean only the solar day. This construction has been put upon the statute, by our courts, from the earliest period to which we can trace their decisions j particularly, on the sections, which prohibit all persons from assembling in companies, travelling on journeys, or going from their places of abode, except to attend public worship, on the Lord’s day.
I am of opinion, that a new trial should be granted.
The only question for consideration in this case, is, whether service of civil process before day-light on Sunday morning, is a violation of the -statute entitled “ An act for the due observance of the Sabbath, or Lord’s day.”
This, in my view, does not depend on the common law of England; nor on discovering when the Jewish Sabbath began, or ended.
As little does it depend on the time of beginning or ending the Christian Sabbath, as an article of religious faith and practice.
The intention of the legislature is, in my opinion, perfectly manifest, from the statute itself ; and it is a little remarkable, that the same phraseology is adopted in the other parts of the statute, when prohibiting the great variety of acts therein mentioned. I would, then, attend to the statute, and see from thence what is the meaning of the legislature.
And I would here remark, that the same phrase must have a similar construction whenever found in the same statute.
I think, it will fully appear, that the day time only of the Christian Sabbath, or that period between the rising and setting of the sun, was intended to be comprised within the prohibitory clauses of the statute. For this we find a strong reason in the different opinions which prevail among Chris« tians as to the proper evening to be kept as a part of the Sabbath; so that neither evening could be sanctioned by law as a part of the Christian Sabbath, consistently with that spirit of toleration, which has ever characterized the people of this state. With the utmost propriety, then, in my opinion, has the legislature confined its coercive sanctions, to that period of time in which Christians generally unite. In opposition to this opinion, the court on the circuit,, decided, that by the Lard’s day is intended the whole of a common law day, beginning and ending at midnight. Which of these opinions is correct, I think, will clearly appear by a particular attention to the statute.
By the 1st section of the statute, all persons, of every description, are required carefully to apply themselves to the duties of religion and piety, during the Lord’s day. But I
By the 2d section, all secular business is prohibited, except only works of necessity and mercy, on the Lord's day, or any part thereof. The latter words in this section were inserted, probably, to prevent any conclusion, that the prohibition might be confined to the period of divine service. But will it be contended, that this section extends to Sabbath evening, so that those Christians, who consider themselves bo..ml in conscience to abstain from all secular business on Saturday evening, shall become offenders against the laws, and be subjected to penalties, for attending to the least trille of secular business on Sabbath evening ?
The 3d section prohibits all travelling on the Lord’s day, under a penalty. But was it ever supposed, that a roan became an offender by travelling on the evening of such day ?
The 4th section provides, that no person shall go from his or her place of abode on the Lord’s day, unless to attend the public worship of (ion, or to do some work of necessity and mercy : and it is well known, that a very numerous and respectable portion of our citizens have been scrupulously exact in keeping Saturday evening, who would feel the highest repugnance at leaving their homes to visit a neighbour or friend, on any portion of time, which they suppose constitutes apart of the Christian Sabbath, but who have been in the constant habit of making and receiving visits, on Sabbath evening. The decision in this case, determines whether all such have been offenders against the laws of the state, and exposed to public justice.
In the 5th section, the intention of the legislature is still more conspicuous ; and with a small degree of attention to its contents, I cannot persuade myself, that a doubt will remain. We here find it made penal to convene and remain at public houses, drinking, or idly spending time, on Saturday night, after sun-set, or on the Lora’s day, or on the evening following. Now, after reading this section, will any one ask what period of time was intended hv the Lord’s day, in this statute ? Is it not a period altogether distinct from the evening ? If not, why add a provision for the evening ?
This section, so full of absurdities, upon the hypothesis, which I oppose, harmonizes, most perfectly, with my own views on the subject : for while the statute leaves all denominations of Christians to the exercise of their own conscience, as to the proper evening to spend in the duties of religion and piety, and which to devote to the ordinary concerns of life, it takes special care that no noise or disturbance shall be permitted to interrupt the devotions of any.
Of the same character is the 10th section, which inflicts a penalty for disturbing any assembly of people met for the worship of God, on the Lord’s day, or any other time.
And in the 9th section, where an earlier period was intended to be embraced than had been contemplated by the other parts of the statute, we find a variation in the language and the sailing of vessels is prohibited any time after the morning light. This became necessary $ otherwise, a vessel getting out of harbour before sun-rise, might sail the whole day, without violating any law.
It has been said, that it must be highly improper to permit the arresting people immediately before and alter the rising and setting of the sun on the Sabbath. Whether this be an evil greater than that of affording protection to fraudulent debtors, I very much doubt. In England, it has been decided, that arrests may be made, in civil process, on the Sabbath, on the ground that it is a ministerial act. differing from judicial proceedings | and that it is a work of necessity, Mackally’s case, 9 Co. Rep. 66. S. C. Cro. Jac. 280. But how this may he, as a point of policy, I .shall not undertake, at present, to decide. The legislature tan make any regulations, whirl; may he deemed necessary. .Hut whatever protection may he afforded by law, to those Christians, who kc< p the evening succeeding the Lord’s day, I presume will be extéhded equally to those who keep the pmeding evening :
Were this opinion unsupported by any adjudged case, l should have no douht of its correctness. But as early as the year If85, this statute came under the consideration of the superior court, in the case of Carpenter v. Crane, reported in the 1st volume of Boot’s Reports, page 98. when it received the construction which I now believe the correct one. That was decided, if I mistake not, during the period when Law, Sherman and Ellsworth composed a part of the court; a period, when the decisions of that court were entitled to as high respect as they ever were at any period. It is true, the question has never been decided by this Court, until now. But this has been, because the decision in the case of Carpenter v. Crane, has been universally acquiesced in, and has governed all the cases which have come before the superior court, wherein the question has arisen.
The questions are, What is the Christian Sabbath ? And, What, in Connecticut, is the Sabbath ? Whether the Christian Sabbath comprehends one seventh part of time, one seventh part of a week ; and if it does, whether the Sabbath of Connecticut, is, by law, the same ?
That the Christian Sabbath consists of one seventh part of time, the religious observance of which is of moral and perpetual obligation on the consciences of all professing Christians, I think, there can be no doubt.
In six days the Lord made the heavens and the earth, and rested the seventh. On the completion of this stupendous work of Omnipotence, in six days, God blessed the seventh, and sanctified it.
In reference to time,God, to declare, by his divine command, what portion should be observed as holy, divided it into days, each consisting of an equal number of hours. On the seventh day, God rested from his work, and blessed and sanctified it.
Did this seventh day, which God blessed and sanctified, consist of the same portion of time, as each of the six preceding days, in which, according to language adapted to our comprehension, God is said to have made the heavens and the earth ?
Whoever reads and believes the concise and sublime account given by Moses of this astonishing work of creation,
This is expressly confirmed in the decalogue. “ Six dais shalt thou labour, but the seventh is the Sabbath of the Lord, thy God ; in it thou shalt not do any work.”
Can it be supposed, that the Aimightv, declaring his commandment from Sinai, and prescribing the same order and distribution of time, which he did in the creation, intended, that this seventh day should be wanting in measure, arid destitute of proportion ? Indeed, on this point, Exodus xxiiL 10 — 12. I think, is conclusive. “ Six years shalt thou sow thy land, &c, but the seventh thou shalt let it rest,” &c. “ Six days thou shalt do thy work ; and on the seventh, thou shalt rest.” Can there be a question, but that this seventh year was an entire year ; and this seventh day, an entire day ?
If this be the Jewish, what is the Christian Sabbath ?
On the authority of the resurrection of our Saviour, the day of the Sabbath, in the view of Christians, generally, is altered ; but the portion of time, not varied : the Christian Sabbath, in point of duration, is the same as the Jewish.
On this great and miraculous event, the resurrection of our Saviour, the seventh day was postponed, and the first substituted. The seventh day, or Jewish Sabbath, receded, and gave place to the first day, or Christian Sabbath.
To determine when the first day, or Christian Sabbath, commenced, it is necessary to determine when the seventh day, or Jewish Sabbath, closed. Settling this point,! think, settles the question ; for when the one ends, the other begins.
I think, it is apparent, that those who visited the sepulchre of our Saviour, on the morning of his resurrection, did not do it, until after the expiration of the Jewish Sabbath ; and that they calculated to visit it as soon after as they could, consistently with a due observance of the Sabbath. No mortal approached the sepulchre until after the end of the Sabbath.
From nothing I have ever read, not from the Evangelists themselves, cun I ascertain the precise time of the resurrection of our Suviuur ; and I presume it was not given for mortals to know it. “ An angel rolled away the stone from the door of the sepulchre.” From the Whole tenour of the Evangelists, although there is not a perfect coincidence, as to the time of going to the sepulchre, (nor is it necessary, for any Christian
“ In the end of the Sabbath, as it began to dawn toward the first day of the week, came Mary Magdalene, &c. to the sepulchre.’9
** And when the Sabbath was past, Mary Magdalene, &c. very early in the morning, the first day of the week, came unto the sepulchre.”
“ Now upon the first day of the week, very early in the morning, they came unto the sepulchre.”
« The first day of the week, came Mary Magdalene, early, while it was yet dark, unto the sepulchre.”
From a full view of the subject, I think we may fairly conclude, that, in point of quantity, and measure of time, the Jewish and Christian Sahbath are the same ; each consisting of an entire day of twenty-four hours; one seventh part of a week; that the Christian Sabbath commenced, when the Jewish Sabbath closed — at midnight.
Having examined and seen what is a Jewish, and what a Christian Sabbath ; it remains to enquirf, what is the Sabbath in Connecticut; whether it be still a Christian, or an artificial Sabbath — a day without morning or evening.
It is said, that although the Christian Sabbath, in point of duration, is morally commensurate yvith the Jewish ; yet it is not, in the same extension, legally binding in Connecticut. To this distinction, if true, I must submit; but it is a distinction I cannot subscribe to : it is a distinction, which I cannot believe our pious ancestors ever intended to make, or countenance. They intended to embrace, and did, in fact, embrace, the whole Christian Sabbath. They not only adopted, but, in legislative phraseology, enacted, the Sabbath. They passed “ An act for the due observation of the Sabbath, or Lord's day.” By this, I understand the Christian Sabbath ; that portion of time, known and acknowledged as such, by professing Christians. The language of the statute is, “ No person shall do any manner of secular business on the Lord's day, nor any part thereof.” « No civil process shall issue, or be served, on the Lord's day." I would ask, if a magis
There are, however, exceptions in the statute, to a strict and rigid observance of the whole time, as to some things. These are founded on the claims of necessity and mercy.
An exception proves the rule. The statute says, “ That no vessel, on the Lord’s day, between the morning light and the setting sun, shall unnecessarily depart,” Ac. That is, no vessel shall unnecessarily depart on that portion of the Lord’s day, which is between the morning light and the setting sun ; plainly declaring, that the Lord’s day comprehended more time, than ■“ between the morning light and the setting sun.”
I am aware, that the principles I have adopted, with regard to the precise time of the Sabbath, do not perfectly agree with the practice of our ancestors ; I mean, the first settlers of Connecticut, and New-England generally; but they do not vary as to quantity and portion. They, in general, commenced the observance of the Sabbath, at the setting of the sun, and continued it an entire day, with a decent regard to the evening succeeding.
On the whole, I take the Sabbath, or Lord’s day, to he, ír Connecticut, a natural day, consisting of twenty-four hours ; that the Christian Sabbath, is, by law, here recognized ; and whether the whole of the night preceding the artificial day— or only that, portion immediately succeeding midnight, is to be comprehended, as respects the present case, is immaterial.
I think the charge wras correct; and that a new7 trial ought not to be ad vised.
The plaintiff was arrested on execution, a few minutes before the break of day, on Sabbath morning. He complains of this as having been an unlawful arrest. Whether it is of this description, depends, entirely, on the statute relating to the Sabbath.
It is unnecessary to discuss the question, when the Christian Sabbath actually commences. On this subject, there exists much diversity of opinion ; and this, probably, was the reason for the peculiar provision made by the act “ for tho duo observation of the SabbathAll Christians in this stale, consider the solar day, that is, from the rising to the
The Court is not called on to limit the time, which the inhabitants of the state are to consider as comprising the Sabbath. Undoubtedly, whenever this period commences, it must include twenty-four hours, or one-seventh part of the week. Neither is the question here to be settled, whether a person may, consistently with a good conscience, transact secular business the evening before the Sabbath day, or the evening after. Every person must decide, on this subject, for himself. The question before us, is not, what is the duty of a Christian, but, what is the construction of a law ? The statute has defined its own most operative expression, the Lord’s dayit lias, in compliance with the conscientious
With respect to the question, at what hour, or season, of the natural day, the 'Sabbath, or holy time, commences, different rules are adopted, by Christians of different persuasions, even in one and the same country, or state — as is the case here. The question, which has grown out of these discordant rules, has occasioned, as is well known, much clashing of opinion, and no small controversy. But this question, considered as involving matters of conscience, or as a froblem in theology, is, in my judgment, entirely unconnected with the construction of the statute for the observance of the Sabbath, and therefore entirely foreign to the subject before us.
The 12th section of the act, (the section upon which the present question immediately arises), provides, that “ if any civil process shall be issued, or served, on the Lord’s day ; it shall be void, and of no effect.” Neither this provision, nor any other, contained in the statute, expressly points out, at what period of the natural day, that portion of time, denominated she “ Lord's day,” shall commence : but it is very manifest, I think, upon various grounds, that, by the term (i Lord’s day,” as used in this section, and several others of the same statute, is meant, not that portion of time, which constitutes anyone natural, or mean solar da#, as distinguished from another ; but that part of a natural day, which is distinguished from night, and which is exclusive of the seasons of morning and evening twilight : (since night, in the comprehensive sense of the word, includes both those seasons.) For it was, evidently, no more the object of the legislature, to prescribe what portion of each week ought, in a religious view-, to be observed, as holy time, than it was to point out, at what hour, on each Sunday, considered as a natural day, that portion of time ought to commence : but, to prevent the transaction of secular business, and the disturbance, which
That this was the only object of the clause in question, is evident, in the first place, from the practical construction; which, by the immemorial and universal usage of the state» has been given to the term “ Lord’s day,” as used in several other parts of the same statute. The 3d section enacts, among other things, that no person shall “ do any manner of secular business, work, or labour, (works of necessity and mercy, excepted,) nor use any sport, &c. or recreation, on the Lord’s day, or any part thereof.” And no one will deny, I trnst, that the term, “ Lord’s day,” in this section, has the same meaning, as in that, which relates to the service of civil process. But it is a fact of universal notoriety, that, though the practice of all Christian denominations, as to the hours, to be observed, as holy time, is not the same 5 yet, secular employments of any kind, and most ordinary recreations, are openly and freely pursued, as convenience, or inclination dictates, by all persons, not prevented by religious scruples, or habits ; and in every part of thé state, as well on that, as on any other, day, except in the day season. And this, so far as we have any knowledge upon the subject, has always been the case.
By the 3d section, it is provided, that “ no traveller, &c. shall travel on the Lord’s day, except from necessity, or charity by the 4th, that “ no persons shall convene and meet together, in companies, in the streets, or elsewhere; nor go from his or her place 0/ abode, on the Lord’s day and the 19th contains a special provision, for the arrest of all persons, “ unnecessarily travelling, on the Sabbath, or Lord’s day.” But it is as notorious as any matter of common experience, that by a universal practical construction, in which the wholé people, and the whole body of the magistrates, of the state, have concurred, these several provisions have been limited, like those of the former section, to the artificial day % i. to that part of the natural day, which begins at the rising, and ends at the setting, of the sun. And as to the 12th sec - tion, out of which the present action has arisen, there is cer-tianly no novelty, in serving civil process in the night season, either of Saturday, or Sunday ; nor does it appear, that
All our judicial decisions, also, which relate to the question, conform to this general understanding and usage. Th# execution of a written instrument of any kind, on Sunday, between sun-rise and sun-set, has always been holden to be within the second section of the act, as falling within the description of “ secular business and the instrument so executed, has, therefore, always been adjudged void. But in the case of Mumford v. Buell, 1 Root 145. the superior court held a note, executed between the hours of eleven and twelve, on Saturday night, to be valid. In Carpenter v. Crane, 1 Root 98. the decision was the same way, as to a note executed at 2 o’clock, on Sunday morning. And in Sheldon v. Hunt, determined by the same court, in the year 1812, in the county of Litclifield, the rule, laid down in the direction to the jury, was, that a note, made after sun-set, on Sunday, was good. Now, presuming, as we certainly must, and as I have done, that the term, “ Lord's day," means the same thing in the 1.2th, as in the 2d section, these cases appear to me decisive of the question.
But a still stronger ground, (if any can be so,) for the construction I have adopted, is furnished by the 5th section, which professedly extends its provisions beyond the Lord's day ; and which enacts, that “ no inn-holder, &c. shall entertain, or suffer any of the inhabitants of the respective towns, where they dwell, to abide, or remain in their houses, drinking, or idly spending their time, on Saturday night, after sun-set, or on the Lord’s day, or on the evening following, upon the penalty,” &c. This phraseology furnishes complete demonstration, 1st, that the « Lord’s day," as the term is used in this section, does not signify a natural, or Mean solar, day, of twenty-four hours ; and, 2dly, that it docs not include any part of Saturday night, or of Sunday evening : both these being expressly distinguished from it. But the word, <( evening,” according to its popular, and only prevailing, acceptation, here, denotes that season of the natural day, which commences at sun-set, and comprehends the first part of the night: and by “ Saturday night,” is evidently meant, that period, jyhich extends from the setting of
This last section, I confess, appears to me sufficient to remove all grounds of doubt, if any might otherwise remain. The arrest in question w7as, therefore, according to every view that I have been able to take of the subject, a lawful one. And the defendant is, of course, entitled, in my opinion, to a new trial.
As our decision must depend on the construction of a statute, I lay out of the case all arguments drawn from the Sabbatism of Jews and Christians. “ If any civil process be issued, or served, on the Lord’s day, it shall be void.”
The object of the legislature was not to establish an article of faith, but a rule of practice j to preserve the peace of society j and protect its members from disturbance, on a day usually devoted to public worship. When our ancestors separated from the church-and state of England, a notion prevailed, sanctioned expressly by royal authority, and implied by an act of parliament,
It is contended, that the prohibition of the sailing of ves - sels <s between ths morning light and the setting sun,”
But the universal and immemorial usage of our country seems to have settled this question. Who ever heard of a prosecution for Sabbath-breaking, by secular business done in the night P Though the learned counsel have retraced the history of the Sabbath, from the reports of our late Chief Justice, to the “ first reporter/’
Bit we need not rely on usage. The repeated adjudications of our courts, and the acquiescence of counsel, are “ confirmation strong” of professional and public opinion.
indeed, informed by the Chief Justice, who was of counsel in that case, that this doctrine was not then promulgated. But, with due deference, his Honour’s recollection seems at variance with the record, as well as the report. The idea certainly was not then new j as in the summary of the laws of Massachusetts, printed in 1672, it is said, that “ by the Lord’s day is meant day-light.” In Mumford & al. v. Buell, in 1789,
I, therefore, advise a new trial.
New trial to be granted,,
X 'Stat. Conn., tit. 140.
1 Car. 1. e. 1,
8 Hume 277. 9 Hume 191.
Revision of 1702. p. 105.
Revision of 1672.p. 58.
Editionof 1672. p. 133.
Revision of 1702, p. 149.
Bailey.
4 Black. Comm. 224.
Moses — “ Primus juris Relator.” 6 Rep. Pncfqi.
1 Moot 98.
⅛) 1 Moot 145.
MS.
Vid. Numb. xv, 32.
JYew-Hamen Colony,
