dissenting. — It is always with distrust that I entertain an opinion different from my brethren, and with diffidence that a dissent is expressed. Being fearful that the principle necessarily involved in the decision that has just been made in this cause will not prove salutary, and it being an innovation upon what has heretofore been considered the law of the land, I deem it proper to express the reasons that lead me to a different conclusion from a majority of the judges present.
This decision, upon the face of it, goes no greater length, than that a contract for swaping horses, made on the Sabbath, cannot be enforced in a court of justice. This as an insulated *230position would receive my most cordial assent, as such a transaction is most shameful in any Christian community. But when it is considered, that the law is .a rule comprehending all cases of a similar description, and that the rule cannot bend to the case, but the case must yield to the rule; it follows, I suppose, of course,- agreeably to the analogy of the law, according to ■'this decision, that no recovery can be had upon contracts in general made ■ upon the Sabbath. And to. this there might be no objection in point of justice, as to contracts wholly executory; for this would leave the parties as they were; but as to contracts wholly executed on one side, as when cash or other property is delivered, and a contract taken to build a house or deed a farm, until the courts can devise some consistent mode of making the receiver disgorge, and thereby place the parties in statu quo, it seems to me the effect of this decision will be to permit a fraudulent party to violate a principle that is older than the Sabbath, and in the New Testament better defined and much more frequently enjoined than the observation of that holy day — eternal justice; and surely those who will profane the Lord’s day should have no restraints removed that tend to prevent their defrauding the unwary. Still the inquiry is, what is the law applicable to the question ? For if that is clear, there is no room for judicial policy. At common law it is believed there was no distinction as to contracts, between Sundays and week days. The national church had their holy week before Easter. But whether the Lord’s day was considered holy, and the profanation of it was left to be punished by ecclesiastical censure, I do not distinctly know. If we were to judge from the writings of Paley, who was an arch-deacon in the established church, and some part of whose works at least are so respectable that they are a classic in our- colleges, it would seem not; for he argues that the Sabbath was originally given to the Jews only, and that there is no precept for changing it from the seventh to the first day of the week, and the example in the New Testament is only of meeting to worship on the first, and therefore is no further binding on Christians. In Drury vs. Defontaine, 1 Taunt. 130, Best, Sergeant argued that no canon, no opinion to be found in any writers upon ecclesiastical law, treats bargains made on Sunday as illegal. The Jewish law prohibited them, but several of the councils have expressly declared that Christians shall not judaize ; and this was not contradicted. In Comyns vs. Boyer, Cro. Eliz. 485, *231it was ruled, “ that a fair holden on Sunday is well enough, for although by the statute of 27th Hen. 6th, there is a penalty inflicted by the party who sells on that day, it does not make it to be void.” And before this statute fairs were commonly holden on a Sunday, and Ch. J. Mansfield said, “that as business fairs were made by prescription and could not be held on any other days than those on which they had been immemorially held, and that is a very singular statute, for it alters the course of a prescription.” In McCulley’s case, Cro. Jas. 279, it was resolved that an arrest made'on Sunday was good, and McCully was executed for killing the officer who made the arrest on that day, if being before the statute of Charles II. In Waste vs. the Borough of Stoke, travelling is allowed to be lawful; that a writ bearing teste on Sunday is good, and that the chancellor may seal writs on patents on any day. And in Rex vs. Bretherton, 1 Strange, 702, an indictment at common law, not concluding against the statute for selling meat on Sunday, was held bad on demurrer; and indeed Ch. Just. Mansfield declared, “ It does not appear that the common law ever considered these contracts void that were made on Sunday.” It may, I believe, be considered as clear, that in England it is only the- statute o'f 29th Charles II. that has occasioned any question. Under that statute it was always decided that the service of any process on Sunday was bad, for the plain reason that the statute says, “ that the service of every such writ shall be void to all intents and purposes.” The other clause of the statute says, “ That no person whatever shall do or exercise any worldly labor, business or work of their ordinary callings upon the Lord’s day.” This part of the statute slept, for any case that I have seen, from the 27th Charles II. to the 48th of George III., before any attempt was made under it to impeach a contract.
There is then the case before citéd, of Drury vs. Defontaine. This defence was set up against the recovery of the price of a horse sold on the Sabbath, and the court decided that a “ sale of goods made on a Sunday; which is not made in the exercise of the ordinary calling of the vendor or his agent, is not void at common law nor by the statute of 29th Charles II.” The next case was Bloxom vs. Williams, 10 C. L. R. 60. This was assumpsit for breach of the warranty of a horse, and Bay ley, J. who delivered the opinion of the comí, approves of the decision in the last case, but doubted whether the statute applied at all to a bargain of this description, and “ inclined to *232think that.it applied to manual labor, and other work visible and laborious, and the keeping of open shops.” The case was ' decided for the plaintiff, on the ground that the contract was not finished on Sunday, and also that the purchaser did not know that the seller was a horse dealer. Then came the case of Fennel et al. vs. Ridler, 11th C. L. R. 261. This also was an action for the sale and warranty of a horse. The plaint-tiff was a horse dealer, and the contract was made on Sunday ; and here the court for the first time decide that no action can be sustained on such contract. And Bayley, J. who again delivered the opinion of the court, said his doubts were entirely removed, and gave the act the construction he formerly intimated it would not bear. He quotes no decided case to support his opinion, but cites a dropping of Ch. J. Mansfield, in Drury vs. Defoniaine, as to his view of the statute. He says also, “ that it does not indeed apply to all persons, but to such only as have some ordinary calling.” Next was Smith vs. Sparrow, 12 C. L. R. 253. This was assumpsit upon a contract for the purchase of a quantity of nutmegs, tried- before Best, Ch. J. The defence was, 1st. Statute of frauds; and 2nd. That the contract was made on Sunday. The judge was for defendants on both points. On the second point the judge said, “ There are different opinions on that point. I think the question has been decided too narrowly. I should have considered, that if two persons act so indecently as to carry on their business on a Sunday, if there had been no statute on the subject, neither should recover.” The points were saved and argued at the full bench, and the decision of the court is concise. They only say, “The court were of opinion that the decision at nisi prius was right upon both the points, and therefore they discharged the rule.” Then was Smith vs. Sparrow, 13th C. L. R. 351, where it was decided that an action will not lie on a contract entered into on a Sunday, although entered into by an agent, and although the objection is taken by the party at whose request the contract was entered' into. And Park, J. says he thinks the expression, “ any worldly labor,” cannot be confined to a man’s ordinary calling, but applies to any business he may carry on, whether in his ordinary calling or not. Lastly, the cause of Williams vs. Paul, 19th C. L. R. 193. The case was, a drover sold some cattle to an innkeeper on the Sabbath, and he not paying for a heifer, defendant was sued; The defence was, contract-on Sunday: but the *233defendant had eaten the beef, and the court were staggered at the injustice of the defence. But the same judges, (and they alone, I believe) had sustained such defences; and they held that defendant, having kept the heifer, was liable at all events on the quantum, meruit; and the plaintiff having proved that defendant had afterwards, on such a day, promised to pay, Park, J. said, “ here it appears that the defendant kept the animal, and made a new promise to pay subsequent to the Sabbath, and his present refusal is not consistent with the practice of a very sincere Christian!”
These are all the cases that I have seen in the English reports bearing upon this question, and to my mind they show that anciently in England, as in most countries in Europe, except perhaps' Scotland, the Sabbath was considered a day for people to attend mass or church, and then to amuse themselves as they pleased, until some statutes were made forbidding particular transactions, as holding fairs on that day; until, at last, in the tyrannical reign of Charles I., or the voluptuous reign of Charles II., (for the cases cited differ in the quotations of the statute, though most of them call it 29th Charles II., and I have no certain means of knowing which is right) the last and only important statute was passed on the subject, unless the late parliament have enacted the bill that was lately brought in. That act did pretend to prohibit all business on the Sabbath; it was at most to prevent persons from laboring in their vocation, not touching noblemen and gentlemen, who do nothing by prescription. This statute inflicted a small penalty of 5d, for the breach of it; and during all the succession of great and profound judges that have graced the English bench, was never suspected to mean more than the penalty, until within a few years, one set of judges in one of the four superior courts in Westminster hall have contrived to put a new construction on that statute; but have not settled the question, it appears, whether all contracts, or only those of a man’s “ ordinary calling,” are void; and in the last case cited, they incline to think that though the contract was void, the plaintiff might recover on a quantum meruit. Yet Bayley, J. in Bloxsome vs. Williams, said, “ If the contract be void as falling within the statute, then the plaintiff, who is not a pariiceps criminis, may recover back his money, because it was paid on a consideration that has failed.” This must be on the ground of an implied *234contract. On this ground implied contracts are raised from dealings on Sunday, as of any other day, but express ones void— leaving the .parties to revoke as to the terms of the bargain, and opening an additional topic of dispute about the price or value. And in the same case they seem to hold that a new promise afterwards, on a week day, would be binding; upon what known principle we are not informed. In what case is a contract, originally unlawful and void, made, lawful and valid by a subsequent naked promise ?
I infer from reading these late cases, that the judges, in some horse dealing cases which came before them, being struck with the.scandalous nature of such transactions upon the Sabbath, hastily put a moral construction upon the statute that was unwarrantable by law. But in the last case of the heifer, where they saw the gross injustice that their own decisions would lead to, they were obliged to halt and make a lame retreat, not by professedly retracing their steps, but by giving very loose and unsatisfactory reasons for saving that case from their own rule of construction of the statute; and as neither in the exchequer chamber nor house of lords, nor by the other superior courts, has any such decision been made as before quoted, I consider that at this moment it is not the law of England, that contracts in general made on Sunday are void.
. I come now to our statute. The last clause of the preamble says, “ To the end, therefore, that the good people of this state may be enabled, as well on that day (Sunday) as on all proper occasions, freely and without disturbance, to perform those great and necessary duties (public worship) with that decency and solemnity which is suitable to their importance.” Therefore it is enacted, “ That no person shall exercise any secular labor, business, or employment, except such as necessity and acts of charity require,” under a penalty of two dollars. The second section inflicts a penalty of not over forty dollars for disturbing public worship, Sunday or week-day; and the seventh section limits, all prosecutions to thirty days. It is argued, that as- this statute makes all secular business unlawful, the general principle applies, that no action can be founded on a contract prohibited by law; because the prohibition makes the act or business unlawful, and the contract about that unlawful business is unlawful. Of course, perhaps this is correct, where a specific act is prohibited by statute. That- clause of the statute of Charles the II, that declared it unlawful to serve *235legal process on Sunday, was from its passage construed to make all such service perfectly void, and placed all concerned as if there was no writ; and modern cases probably are, that actions cannot be supported on contracts growing out of acts made unlawful by a statute, as the case read from Mass. Rep. and others. But there are no other statutes any where, save the Sabbath acts, that prohibit all business transactions or contracts on a given day or days; and so far as I know, when our act was passed, there was no intimation in any law book, Eng-lish or American, that all contracts made on that day were void. And the main object of the act, as appears by the preamble, was, to enable the people, without disturbance, to attend public worship, and every justice of the peace was allowed to give permits to travel with “ teams and droves” on the Sabbath, and the penalty for any breach was “ not exceeding two dollars,” and this limited to a prosecution in thirty days; and the first clause of the third article of the constitution seems intended to secure religious freedom. In Smith vs. Sparrow, Park J. says., “ The common law is founded on our holy religion, and no law can be good which is not;” and other judges there often express the same sentiment. Hence their national church, their tithes, and their requiring the officers of government to partake of the sacrament. Whether religion is a safer basis to found a government and the laws upon, than liberty and the voice of the people, it is not for us to decide. But it is well known, that our government and laws are not founded upon religion, as we have no test or standard of belief by law established; and because our government, they believe, is not founded upon the word of God, a portion of the Scotch emigrants in this State, although they submit to, yet refuse to qualify and vote, or participate in the government, and have made several unsuccessful attempts, before different councils of censors, to have the constitution amended in this particular. Could it then have been '• the intention of the legislature, in 1797, when this act was passed, to visit with such tremendous consequences all classes of Christians, jews and gentiles, as to make all contracts void, and thereby inflict the greatest injustice upon the least guilty of the practice, by allowing the most guilty, who adds dishonesty to his profanation, to escape with his ill-gotten gains. I think the silent but significant construction of the act for forty years proves most potently that this was not their intention. If the penalty in the act is too trifling to suppress the evil, lei *236a more'adequate one be inflicted by the legislature; but let the penalty fall equally on those equally guilty, and let it go to the ’ public, like other fines, and not in effect to him who is at least parliceps criminis. Besides, there will be, I apprehend, other practical difficulties growing out of the decision. The statute excepts all acts of necessity and charity. These are lawful, and who is to judge what are such ? If the jury, it will depend on the religious opinions of each jury, and of course be pregnant with the utmost uncertainty. If the court decide as matter of law, then it will nearly convert a bench of laymen into an ecclesiastical council; for “necessity and charity,” in connexion with the Sabbath, must very much depend upon the creed or religious belief of the individual to whom the question is submitted. Although the holy-observance of the Sabbath is á positive duty, yet like charity it is undefined; and different denominations of Christians even, as well as individuals, vary much in the degree of strictness with which it ought to be observed ; and though an admitted duty, yet the manner of its observance is perhaps described with less certainty than almost any other gospel requirement. How ungracious then for a court to mark the law upon this duty for all denominations to be governed by, and with judges’usually belonging to different religious societies! It would be like a synod composed of the dignitaries of several sects. Unanimity could scarcely be expected. And if it was to be regarded as a mixed question of law and fact, it still would be a vexed one, as the propensities for travelling on Sunday have formerly shown, when scarcely two justices or two juries would agree upon the validity of an excuse, or what constituted' a necessity for travelling. So much confusion was there upon the subject, that it is believed most pious people think that prosecutions do religion more harm than good, and suppose the question of what was necessity or charity was to be decided independent of sectarian views. How extremely embarrassing many cases would be. For instance: a man borrows a considerable sum of money on the Sabbath. It was perhaps to pay a debt at a distance on Monday and save a bill of cost; to redeem a mortgage and save an estate, or. be so represented, but it was not so. Another sends to a butcher on Sunday for meat. Are these matters of necessity ? Or should the money have been procured before ? Or if it was expected and the person disappointed, will that be an excuse ? Or if he lied to the lender, will that be as if necessity existed ? *237Should the meat have been prepared on Saturday, like the manna ? And how difficult to arrive at all the facts and motives. And what cases shall per se be adjudged necessary or charitable ? How with marriage, the greatest of all contracts here among protestants ? It is no sacrament or other religious rite, but a mere civil contract. Is this void or voidable, or does it come under the saving clause ?
Finally, I believe with the pilgrims, that the Sabbath was given to the whole world, and not to the jews exclusively; and that in the New Testament, by fair inference, if not by express command, it was changed to the first day of the week, and that its observance is commanded in the Old and inculcated in the New Testament. Yet I believe to adjudge contracts void made on that day will not tend to the better observance of the day; that neither the common nor statute law, nor any former _ decisions in this state authorize, nor does sound policy require, the decision which my learned brethren have made in this cause, from the best of motives most certainly. But for myself I am not able to view the subject as they do; and I hope it is not for lack of respect for religion, or its institutions; for I believe with the Scotch covenanters, in my own neighborhood, that the law as well as a man “ may like the kirk well enough without riding in the rigging.”
Upon the whole, I most respectfully dissent from the opinion of the court in this case.