Untitled article by W. H. M.

Pacific Press Publishing Company · New York · March 17, 1892

FromThe American Sentinel, Vol. 7, No. 11

Sunday Contracts in Tennessee.

By W. H. M.

It has been seen that in extending the sphere of indictment to offenses against religion by Sunday labor and profanity, and in importing into the practice of the courts the principle of the exclusion of witnesses for lack of religious belief, the progress of judicial legislation on religious questions in Tennessee has been quite rapid, and apparently without any impediment whatever to its advancement. On the subject of Sunday contracts, however, the courts have hesitated, unwillingly, yet compelled from lack of precedent and definite authority, either ancient or modern. The opinions of the judges in the cases reported show that they have in each case regretted the absence of such shadow of precedent as might have enabled them to have still further strengthened and extended religious law in Tennessee, by adding to it the decree that all contracts made on Sunday are void. It would have required no wider latitude of interpretation than has been indulged in through the desire to make profanity and Sunday labor indictable, but the judges, to whom the cases in reference to Sunday contracts have fallen, have lacked the boldness necessary to establish such an innovation in the law, however desirable it may have seemed to them, and this dishonor is left to some religiously irreligious enthusiast who is yet to come.

The cases reported are of interest as showing the manifest desire to declare Sunday contracts void, and a disappointment amounting almost to chagrin, that a sufficient color of law or precedent could not be found to support such a decision.

The first recorded case appears to be that of Amis vs. Kyle, 2 Yerger 31, May, 1820, which was an action upon a written agreement, under seal, to deliver and pay for a number of horses six months after date, time being an essential element of the contract. It happened that the fixed date of delivery fell on Sunday and tender of the horses was made on the Monday following. The tender was refused and action brought. The plea was made that as Sunday was not a day for the transaction of worldly business, therefore the day next following, or next preceding, must in law be considered proper days for the fulfillment of the contract. Upon this the judge says:—

It is correct, as was advanced by the defendant's counsel, that no worldly labor or business ought to be carried on on the Sabbath day. It is at the least unseemly, subversive of good morals, and as it appears to me, not in unison with the principles of our holy religion. But however reprehensible such conduct may be in the general estimation, however injurious to the social state, by inducing a laxity of manners, and thereby lessening the weight of religious obligation, yet the only question in this court can be, could this payment and delivery of horses, from the facts appearing on this record, be legally made on the Sabbath day by the defendant to the plaintiff.

In support of the negative of this proposition, the maxim, dies dominus non est dies juridica, was cited and relied upon. And it was inferred that from the spirit of this rule of the common law, the payment and delivery of the horses on Sunday, were within its prohibition. The application of that maxim upon the present occasion, would be giving it too wide a field of operation. It is properly applicable to the ordinary proceedings of courts of justice. Lord Mansfield in the case of Swann vs. Broome has given a history of the law on the point. He says that anciently, courts of justice did sit on Sundays; the ancient Christians using all times alike. This was for two reasons, first in opposition to the Heathens, who were superstitious about the observance of days and times, conceiving some to be lucky, and others to be unlucky; secondly, to prevent Christian suitors from resorting to the Heathen courts. But these canons were made, one in the year 517, another in 895, and a third in 932, prohibiting the holding pleas and adjudging causes on the Lord's day. These canons were received and adopted by the Saxon kings, were confirmed by William the Conqueror and Henry the Second, and so became part of the common law of England. . . . Lord Mansfield in the case above cited, observes that fairs, markets, sports, and pastimes, were not unlawful to be holden and used on Sunday at common law, and therefore it was requisite to enact particular statutes to prohibit the use and exercise of them upon Sundays, as there was nothing else that could hinder their being continued in use.

The judge then quotes Lord Coke, who, in his comment on the Statute of Westminster, said that the ancient English law prohibiting legal proceedings on Sunday extended also to the making of contracts; but also cites a decision of Lord Coke himself, and a number of other English decisions in which contracts made on Sunday were held good. From these he draws a conclusion that—

These adjudged cases prove, that at the common law, acts not expressly prohibited, might be done on a Sunday; and that contracts made on that day were not, on that account, ever considered by it as illegal.

This brings us to our act of 1741, ch. 14. sec. 2.

It says, “that all and every person and persons whatsoever, shall on the Lord's day, commonly called Sunday, carefully apply themselves to the duties of religion and piety, and that no tradesman, artificer, planter, laborer, or other person whatsoever, shall, upon the land or water, do or exercise any labor, business or work of their ordinary callings (works of necessity and charity only excepted), nor employ themselves in hunting, etc., nor use any game, sport, or play, on the Lord's day, aforesaid, upon pain, etc., . . . to forfeit ten shillings, etc.”

The professed object of this statute, was to further the observance of the Sabbath day, pursuant to the spirit of its original institution. This object is fully and forcibly expressed in its words, “that all persons whatsoever, shall apply themselves to the duties of religion and piety,” and certainly the actions disclosed upon this record, comport not with its injunction, but are directly contrary to the tenor of conduct contemplated by it. It would therefore seem to have been the intention of the framers of this statute, to have totally interdicted all worldly labor whatsoever. Yet the rules of construction adopted and constantly adhered to by the courts, in the case of penal statutes, will narrow down this intention so far as not to render all acts illegal and void, it having been decided, that to do so, there must be an express prohibitory clause. Now, in our act, the expressed prohibition is against work and labor of one's ordinary calling and extends not to all kinds of labor indiscriminately, under any circumstances.

The case of Drury vs. Defontaine, in Taunton's Reports, shows the construction of the English judges upon their statute of 29 Ch. II ch. 7; an act similar to ours, having substantially the same enactment and in nearly the same words.

An English case is then cited which is almost parallel in all its attendant facts, wherein the court held that as the sale of horses was not the ordinary calling of either party to the case, therefore, the case did not fall within the statute and the contract was consequently good. Upon this, the judge in the Tennessee case concludes his opinion:—

So in the case before the court, there is nothing to show that the work and labor and business stated in the record was of the ordinary calling of either of the parties, but in the nature of the transaction, quite the reverse—a private matter. However much, therefore, it is to be regretted, yet the act covenanted to be done on Sunday, might have been lawfully performed on that day, and not being done, the plea is no answer to excuse the non-performance.

The next case which appears in the reports is that of Berry vs. the Planters' Bank, brought in 1875; in this it is held that where a contract on Sunday is executed, each party is in equal fault, and relief cannot be granted on the plea that the contract was made by one of the parties in exercise of his ordinary calling. The petitioner in this case had deposits, of the issue of the Planters' Bank, in the Bank of Tennessee at Nashville, held at par, and when, on February 16, 1862, the news of the fall of Fort Donelson reached him, it being Sunday, he went immediately to the bank to withdraw his deposits. In the language of the report,—

He went to the bank to make inquiry about his deposit, and arrived there in the afternoon, and found—Sunday as it was—all the bank officers at their post, attending to their usual avocations, with the bank doors open, and paying off the depositors in Confederate treasury notes. The Confederate notes he accepted under protest and afterward brought suit for indemnity. The position was taken by the petitioner that the transaction took place on Sunday and was void. Of this, the judge says, in considering the grounds relied on for relief—

One of these grounds is that the payment to the petitioner of his deposit was made to him on Sunday, in the exercise, by the bank, of its “common avocation,” and therefore void. Code sec. 1723. . . . But the contract was clearly executed, and each party in pari delicto, and no relief can on this ground be granted to either.

The plea is consequently good in itself, but the parties in this case were not in a position to take advantage of it, not being able to come before the court with “clean hands.”

Again at December term 1880 occurred the case of Mosely vs. Vanhooser, 6 Lea 286, where it was attempted to break a contract because it was made, as claimed, on Sunday. But it was shown that the agreement was not fully complete on Sunday, only negotiations entered into, and the judge said:—

If a contract is to be held void because made on Sunday, it certainly should be technically complete on that day. If it had been technically complete on that day, a question of great gravity would have been presented to the court. That is not, however, pretended, and we think it not proper, upon a hypothetical case, to decide a matter of so much importance.

In these cases the gradual progress of judicial sentiment towards a decision that all contracts entered into on Sunday are void, is manifest. In the first case the judge, although he deplored the necessity of such a decision, was still very certain that Sunday contracts were valid, while in the last the judicial feeling is that it is a question of “great gravity” and of “much importance,” not yet satisfactorily decided. The inference from this is that in Tennessee the judicial mind is still open to conviction that all Sunday contracts are invalid.

It has proved upon other similar questions that the wish has brought forth the desired decision, and the evident teaching of the spirit of the reported cases is that the same thing is not impossible in the matter of Sunday contracts whenever another case shall come up for adjudication.

W. H. M.