There are some other heads of statutable illegality which are frequently set up as affording an answer to any attempt to enforce contracts vitiated by them. I directed your attention on the last occasion, to the defences which arise under the laws enacted for prevention of gambling; noticing the invalidity of certain wagers not falling within the statutes against gaming, by reason of the Acts of Parliament which prohibit wagering insurances.
The first (a) class of cases to which I will now advert, consists of those contracts falling within the operation of the statute commonly known by the name of the Lord's Day Act. It is 29 Car. II., *c. 7, and it enacts that no tradesman, artificer, workman, labourer, or other person whatever shall do or exercise any worldly labour, or business or work of their ordinary callings, upon the Lord's day (works of necessity or charity only excepted), and that every person of the age of fourteen years offending in the premises, shall forfeit five shillings.1 The contracts prohibited by this
(a) The first class of contracts treated of in this lecture in the earlier editions were those falling within the prohibition of the Stockjobbing Acts: but the latter having been repealed by 23 Vict. c. 28, it seemed better to omit all mention of such contracts from the text, as being no longer amongst "the instances of most ordinary practical occurrence." See ante, p. *260.
1 At common law, judicial proceedings alone seem to have been forbidden statute are, you will observe, not every contract made on Sunday, but contracts made in the exercise of a on Sunday: Mackalley's Case, 9 Co. 66 b; Comyns v. Boyer, Cro. Eliz. 485; Story v. Elliot, 8 Cow. 28; Sayles v. Smith, 12 Wend. 59; Boynton v. Page, 13 lb. 429; Kepner v. Keefer, 6 Watts, 233; all other transactions, therefore, done on that day depend as to their illegality upon statutory prohibition. The history of the regulations gradually adopted on this subject was thus sketched by Gilchrist, J., in the recent case of Allen v. Deming, 14 N. H. 136. " It appears," said he, "that the ancient Christians used all days alike for the hearing of causes, not sparing (as it seemeth, the Sunday itself. One reason for this was, that they might not imitate the heathens, who were superstitious about the observance of days; and also, that by keeping their own courts always open, they might prevent Christian suitors from resorting to heathen courts: Spelman's Original of the Terms, c. 17; Swan v. Broome, 3 Burr. 1598. But the practice ceased with the reason fur it, and in the year 510, a canon was made, ' Quod nullus episcopus vel infra positus die dominico causas judicare proesu-niat.' This canon, with others of a similar character, was confirmed by William the Conqueror and Henry the Second, and so became part of the common law of England. But the canons extended no farther than to prohibit judicial business on Sundays; for fairs, markets, sports, and pastimes might still take place on the Sabbath : Comyns v. Boyer, Cro. Eliz. 485, decides that a fair held on Sunday is well enough, although by the 27 Hen. 6, ch. 5, a penalty was inflicted on him who sold on that day. The toleration of amusements, and the existence of fairs in England to a greater or less degree upon the Sabbath, are readily accounted for by their own accordance with the practice of Roman Catholic countries, among which was England until the Reformation in the reign of Henry the Eighth. With the spread of the reformed religion, and the consequent improvement in civilization, the views and manners of the people changed on the subject of the rational observance of the Sabbath, and in all Prostestant communities laws were enacted to secure it, varying in their provisions with the peculiarities of the people. Pastimes of various kinds were prohibited by the 1 Car. 1, c. 1, and by the 29 Car. 2, ch. 7. All persons were prohibited from 'doing or exercising any worldly labour, business, or work of their ordinary calling upon the Lord's day.'" In the opinion of Lord Mansfield in Swan v. Broome, 3 Burr. 1598, referred to in the above extract, the student will find much of the old learning on this subject.
It is believed that provisions, more or less similar to those of the statute of Charles, exist in all the United States. In Kew York, the statute refers only to "servile labour," and "exposing goods for sale." In South Carolina, New Hampshire, and Rhode Island, it has been nearly exactly copied. In many of the other States, such as Pennsylvania, Massachusetts, Maine, Vermont, and Connecticut, the provisions are more strict, interdicting all secular labour, whether in one's ordinary calling or not. Thus, no action can be maintained for a deceit in the exchange of horses on Sunday : Robeson v. French, 12 Metc. 24: or a breach of warranty: Lyon v. Strong, 6 Vt. 219; Adams v. Hamell, 2 Doug. 73; nor for any injury received while travelling on that day, by reason man's trade or ordinary calling; thus it has been decided in R. v. Wkitnash (b), that a contract made on of a defective highway (the journey not being one of necessity or mercy): Bosworth v. Swansey, 10 Metc. 365 (though it would be a work of necessity to repair the road on Sunday: Flagg v. Millbury, 4 Cush. 244); or on a note given on that day: Kepner v. Keefer, 6 Watts, 232; and the like. There was a rather early decision in Massachusetts (Geer v. Putnam, 10 Mass. 312), to the effect that a plea that a note was void because executed on Sunday, was bad on demurrer, but the case proceeded on the ground that the plea did not state on what part of Sunday the note was made, the act only extending between midnight on Saturday and the sunset of the next day; and though the authority of the case was more broadly applied in Clap v. Smith, 16 Pick. 247, yet the recent cases have explained the decision on the ground just stated: Bosworth v. Swansey, 10 Metc. 364, arg.; Robeson v. French, 12 lb. 24.
(6) 7 B. & C. (14 E. C. L. R.) 596; R. v. Silvester, 33 L. J. (M. C.) 79.