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providing that trustees had authority to settle "the expense of prosecuting suits, attorney's fees, etc."
Summary of this case from Nantkwest, Inc. v. IancuOpinion
(June Term, 1844.)
A profanation of Sunday, by performing labor on that day, is not an indictable offense in this State.
APPEAL from Bailey, J., at Fall Term, 1843, of MARTIN.
Attorney-General for the State.
Badger for defendant.
The defendant was tried upon the following indictment, to-wit:
"The jurors for the State, upon their oath, present. That Joseph J. Williams, late of Martin, being a common Sabbath-breaker and profaner of the Lord's day, commonly called Sunday, at and in the county of Martin, on 10 July, 1842, the said day being Sunday, and on divers others days, both before and since said 10 July, 1842, which other days were also Sundays, unlawfully, willfully, and with force and arms, for his own lucre and gain, and not for any charitable purpose or being induced thereto by any supposed necessity, did cause certain men slaves, to-wit, Elias, George, and Talbot, being the property of him, the said Joseph J. Williams, and being then and there under his control to work and labor on the farm of the said Joseph J. Williams in making and putting up enclosures and fences around and about the cornfield and whiskey distillery of him, the said Joseph J. Williams, to the common nuisance of the good people of North Carolina and against the peace and dignity of the State."
(401) To this indictment the defendant pleaded not guilty. On the trial, the witness for the State swore that he was the overseer for the defendant during 1841, 1842, and 1843; that some time in 1842 he, the defendant, having lost some corn and shoats, and suspecting his slaves, including those mentioned in the indictment, of stealing the property or knowing who had stolen it, directed the witness to put them to work on the Sabbath day, and continue them at work on the succeeding Sabbath days, until they confessed that they had stolen the property or discovered who were the thieves; that he (the witness) put all the negro men to work on the Sabbath day and worked them three Sabbaths in succession; that the work consisted in putting up fences round his field and whiskey distillery; that after working them the third Sabbath, the defendant, discovering who had stolen his property, did not compel them to work any longer.
The witness further stated that the negroes did not work the whole of the days, as before mentioned, but commenced work after breakfast and ended about 12 o'clock, or dinner-time, and that their work was not of much value to the defendant, and that he did not make them work for the profit arising therefrom, but as a punishment for not confessing that they had stolen his property or discovering who had done it. It was admitted that the place where the work was done was at such a distance from any public highway that the laborers could not be seen by persons passing to and fro.
The judge charged the jury that if they believed the witness introduced on the part of the State the defendant was guilty as charged in the bill of indictment. The jury found the defendant guilty, and judgment being rendered pursuant thereto, the defendant appealed.
The conduct of the defendant is contrary to the usages of North Carolina, the general welfare, and likewise to the law of the land. It seems to us to be very reprehensible, for we perfectly concur in the eloquent passage in the commentaries on the propriety and political necessity of keeping one day of the week for the purposes (402) of public worship, relaxation, and refreshment. 4 Bl., 63. The institution, where ever it has existed, has proved to be a great good, promoting private virtue and happiness among all classes, and the public morals and prosperity. It is, therefore, fit that every commonwealth, and especially one in which christianity is generally professed, should set apart by law a day for those purposes and enforce its due observance by such sanctions as may seem adequate.
By a statute in this State, the profanation of Sunday, by working in a person's ordinary calling, is punished by a pecuniary fine, recoverable by a summary proceeding before a justice of the peace. Rev. Stat., ch. 119, sec. 1. As that statute does not make the offense indictable, it is not punishable in that mode unless it be so at the common law. That we have now to inquire of, since, although we may unite with the great bulk of our fellow-citizens in reprobating an act bringing scandal on our own people and giving so much offense to the most moral and pious among us, we are, nevertheless, not to punish the act contrary to law.
The indictment is for compelling certain slaves belonging to the defendant to work on several Sundays in the ordinary calling of the defendant on his farm. It lays those acts to be to the common nuisance and concludes at common law.
We do not find it anywhere stated that doing secular work on Sunday is per se an offense at common law. There is, indeed, in the Crown Circuit Companion a precedent (which is also adopted in 2 Chitt, Cr. L., 20) of an indictment against a butcher as a common Sabbath-breaker and profaner of Sundays for having, within certain times, kept a common public and open shop in a town on Sunday and sold therein meat to divers persons. Mr. East, also, speaking of offenses against God and religion, remarks that the profanation of Sunday is by a variety of statutes punishable, in particular instances, by summary process (403) before magistrates, and then adds that "it is also said to be indictable at the common law," and he cites the precedent just mentioned. In the precedent, the act is laid as a nuisance, as it is in the indictment before us. There is, however, a marked difference between the cases: the work here not being in a town, nor such as in itself is likely to annoy any person, except as the want of a decent respect for the sentiments of our citizens generally and their sense of religious duty might render it offensive to them, whether they saw it or heard of it. It was in a rural situation, gathered no crowd, disturbed nobody; for working on a farm would not seem in itself a molestation to others, more than cooking meals on that day at one's home or taking a journey either to or from one's home, the latter being all customary acts in all Christian countries, including our own. The truth is, that it offends us, not so much because it disturbs us in practicing for ourselves the religious duties or enjoying the salutary reposes or recreation of that day as that it is in itself a breach of God's law and a violation of the party's own religious duty. But we do not perceive how it can become an offense at law even when the labor is both openly and publicly performed, as in a town, for example, except upon a process of reasoning of this kind: That the Christian religion is a part of the common law; that it forbids work on Sunday, not only as a sin in itself, but as a disturbance to others and an injury to the State, and therefore that the law prohibits such profanation and punishes it. But we cannot believe that such a principle was established at the common law. In the first place, the extent of the obligation of the Sabbath, under the Gospel, is a point on which the professors and teachers of christianity have been far from agreeing. Some contended for a strict exclusive dedication of Sunday to public worship and private devotion, while others thought it not inconsistent with the duties of religion, but rather as promoting their cheerful and hearty discharge to employ a part of the day in sports and pastime which are commonly deemed innocent; and others, again, (404) professed to hold that the Fourth Commandment was addressed to the Jews only, and, not being of moral obligation, is now abrogated. It seems, however, to be generally agreed that the rigor of the Mosaic law, at least according to Pharisaic strictness, was much softened under the Christian dispensation as well as the day of rest charged. We know, too, that very liberal, perhaps lax, sentiments on this point prevailed among those in authority in Church and State in the ancient days when the foundations were laid of the common law of England. It would not then be likely that the temporal judges would, without the enactment of Parliament, assume to punish the violation of Sunday as being a breach of Christian or of religious duty. We should rather expect them to leave that to the censure of the Spiritual Judge, who was charged peculiarly with the office of enjoining on all subjects the duties of religion and obedience to the canons of the Church. Such was the course of both Parliament and of the temporal courts in respect to some acts, which are, at least, as scandalous as that now before us. For example, the act of 1 Car. 1 c. 1., prohibits certain sports on Sunday under pecuniary penalties, and then provides that the ecclesiastical jurisdiction shall continue, and those offenses be punished as if the act had not been made. To this day the crimes of personal impurity have been left to ecclesiastical censure alone; and though all agree that incontinence is opposed both to the Christian and Mosaic dispensations, neither Parliament has to this day enacted that it shall be punished by the temporal judge, nor have those judges ventured to assume the jurisdiction without the authority of Parliament.
Although it may be true that the Christian religion is part of the common law, it is not so in the sense that an act contrary to the precepts of our Saviour or of Christian morals is necessarily indictable. Those which are merely against God and religion were left to the correction of conscience or the religious authorities of the State. Such, necessarily, must be the character of acts which are criminal only in respect of the day on which they are done, being a day set apart by the (405) author of our religion for his peculiar services. As offenses against religion merely, they were the subjects of ecclesiastical jurisdiction, unless Parliament interfered and by an act made them the subjects of the jurisdiction of the temporal judges. That, to some extent, would follow from the establishment of a particular religion or church in the State, as it thereby would be criminal to deny and deride the establishment made by law or its distinguishing doctrines. But we do not find that, at the common law, the holiness of the Sabbath was held to be one of those doctrines of the established churches, so far as to make its violation a crime by the municipal law.
In Rex v. Brotherton, 1 Str., 702, it was held, upon demurrer, that selling meat on Sunday was not indictable at the common law. In Rex v. Cox, Bur., 785, an information was moved for because the defendant, as a magistrate, had refused to receive an information against a baker who baked pies and puddings on Sunday; but the court refused it because that sort of baking did not come within the St. 29, Car. II, c. 7, and it was not pretended that it was punishable without the statute. Indeed, that statute itself, besides the exceptions under the general terms, "works of charity or necessity," expressly provides that the act shall not extend to the dressing meat in families, nor dressing nor selling meat in inns and cooking shops, nor the crying of milk between, certain hours, which shows that before the act — that is, at common law — those acts were not deemed offenses against God and religion or the establishment or the civil government, so as to be indictable; and if they were not so, why are we to hold that any other labor was, unless it might be such as to actually interfere with the rights of conscience and worship of others, as by disturbing congregations assembled in churches in their devotions, or the like? At all events, it clearly appears therefrom, and from many other acts of Parliament, that Sunday was not regarded in the law as a Sabbath, to be kept strictly, and that its violations were to be punished or tolerated according to the legislative will, as the (406) sole rule for acting on that day, as a civil duty, and not according to particular interpretations of Holy Scripture.
Beyond the requisitions of the statutes, each person was left to his conscience and understanding of the divine law and the judgment and censure of his spiritual superiors. It is clear, for example, that the making of bargains on Sunday was not a crime against the State, for contracts made on that day are binding. It has been often so ruled in this State, and after elaborate argument and time to advise, it was contrary to the inclination of the court at first. So held by the court of common pleas in Drury v. Defontain, 1 Taunt., 130. Now, it would be a solecism to hold the contract valid and at the same time to hold that the making of it was, by the common law, against good morals or religion, and therefore an indictable crime. In that case several earlier ones were cited, which occurred before the statutes, in which it was held that open fairs might be held on Sunday by prescription. Consequently, the common law could not have deemed it an offense, for no prescription could be good which involves in its enjoyment a crime. Then our own statute and the numerous statutes which have been passed in England from that of 27 Hen. VI, prohibiting fairs on Sunday, down to the present times, and various other which punish divers acts of vice and immorality, all under small pecuniary penalties, form a body of evidence not to be resisted that, without such legislative authority, the temporal courts could not punish such acts.
We do not perceive that laying the act as a common nuisance can vary the result if, per se, the profanation of Sunday be not an offense. If the act of the accused in fact disturb others in the performing of their duties of piety, that will itself be a specific offense, whether committed on Sunday or any other day. If the particular work or trade be not in its nature a nuisance, as prejudicial to the health or comfort of the public, it does not become so by being performed or carried on one day more than another. If the precedent of the indictment against the butcher at common law can be supported at all, it must be on (407) the ground that in England the Christian religion, is established by law, and that according to its principles, as established, the profanation of Sunday is criminal. There is reason to doubt, as before said, whether work on Sunday was held to be contrary to the Christian dispensation as early held in the English Church; but if it was, it became an offense against the State by being contrary to the religion which the State had established; and since the introduction of christianity in England, or very soon afterwards, there has been no time in which it has not been established as the national religion, in some form, held, for the time being, to be the true religion of Christ. In this State, however, although recognized as an existing and as a prevalent religion, it is not, and cannot be, established by law in any form, nor as consisting of any particular doctrines, or imposing any special duties of worship or of worship at particular places or periods. Therefore, however clearly the profanation of Sunday might be against the Christian religion, it is not and could not here be made, merely as a breach of religious duty, an offense; and much less can it be held an offense at common law. The Legislature, deeming it, as it does many other violations of Christian duty, detrimental to the State, may prohibit it, and then it will be punishable to the extent and in the manner pointed out by the Legislature. There are many offenses against God which are not offenses against the State. An act is punishable in the temporal courts, not as being prohibited by ecclesiastical authority, or even by the Divine Head of the Church, but as being forbidden by the civil power of the State residing in the Legislature. The Legislature has hitherto thought the penalties given in the act of 1741, sustained by public sentiment, adequate securities for the decent observance of the day. The even has, upon the whole, justified that opinion. There are very few examples of such acts as those of the defendant in this case; for even the few persons whose own principles, as moral and religious persons, might not have restrained them from the profanation of the day have been restrained by a willingness to obey the law as enacted in the statute of 1741, or (408) by a just respect for the opinions and feelings of their fellow-citizens, to whom, as a body, secular labor on Sunday is a scandal and offense. Probably the very few cases of flagrant violations of this law and of the customs of our times and the difficulty of laying down any precise rule on the subject that might not, on the other hand, be abused and distorted, as the traditions were by the Pharisees, may lead to the conclusion that no change of the law is called for; but that is with the Legislature. If they think it needful, higher penalties may be laid, or the profanation of Sunday may be prohibited in general terms, and thereby it will become a misdemeanor, and indictable. Until that shall be done, however, the courts can only exact the penalties the Legislature has been pleased already to impose.
PER CURIAM. Venire de novo.
Cited: S. v. Brooksbank, 28 N.C. 74; Melvin v. Easley, 52 N.C. 361, 370; S. v. Drake, 64 N.C. 591; S. v. Ricketts, 74 N.C. 192; Rodman v. Robinson, 134 N.C. 507.
(409)