The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-13

M ~
nLK0ALlTy or THE SUNDAY NEwerAPKRs.
fKh. lz.-Ja"es Z. Smith, de-, us John N Wslyn, &C.
-hooSssxIr, J-In this case, the jury having rendered g
verdict for the plaintiff, Judgment upon it, according I'd
the new code, was reserved for the further consideration
Of the court, on the single question whether q contract,
however clearly proved, and hswever obligatory in hon
or, to advertiss in . Sunday paper. can, in this State, be
the subject Of a legal action.
TIE Sunday Act Il R. s., 675) declares that .there
shall be no ssrvile labor or working on that day, sxospt.
ing works of necessity and charity, and NO EXPOSING
'.to sale Of any wares, merchandise, &C., except meats
Sunday papers. It il said, are usually ..vorlsa m.
on saturday night-sometimss before and sometime,
after IL O'Clock. The printing, therefore, does not ne
cessarily involve q breach Of the law and there lie nc
proof that In this particular case there was any breach
in fact, or that any was contemplated. But to print
merely, il not TO advertise. Publication 10, and 10 Away
p uSiicssiOn the \ me more rs, valuable s1 to the the % aS"sr sh.sn'''s TIT
How, then, IL q newspaper to be published ON . Sun
day, except by a sale on . Sunday Can we presume
against all known usage, that 1t may be uiven away
and that the men or boys who aid in it's circulation Der
form their labor as an act of "chsrity?"
Both parties, It seems to me, in making this contract
paper was to be issued on Sunday, TO be distributed OF
Sunday, to be sold on Sunday, and to be read on Sunday
And although reading-unless it be of q very dull para
graph-a thing not to be presumed-may not Do an act o.
" servile labor, issuing and distributing certainly are
In the case Of Watts against Van Ness, q Hin, 76,) II
was held that the usual occupation OF q clerk in an at
torney's Office, Is q species of g servile labor" the ksr
formance Of which on Sun lay is unlawful, and that
g service, y could not be enforced by the clerk. And how
-as q mere question Of labor can we distinguish the
esrr Bes 81 c e rs : ae l ilS@ an, aDs' 'G % ,Ss % s.D = is Of e. r.
statute, both are servile labor. A magistrate, it would
seem, on one occasion fined a person for " circulating d
prepe Court in effect ratified his act, III wend, 562.) And
where q purchaser Of a house in Connecticut, complain
said it was . ~sufacient answer to his claim that The law
OF that State prohibited g all secular business on Sum
days" "a wend, 24s)
A newspaper, moreover, is clearly an article Of mer
chandise. Admitting, then, that the crying and carry
ing Of a newspaper about the streets were q mere pas
time, and not a dwork or labor, !" its sale, notwithstand
the prohibition which declares that : no person (witl
the exceptions above referred toy shall expose TO sakjAny
merchandise, wares, fruit, herbs, goods or shatties, OF
1t is this exposure to sale and consequent disturbanc,
OF the quiet of the day, and not the sale itself, which IN
this State constitutes the ~ilegality Of the transaction
And 1t was accordingly held in the case OF Boynton and
Page as wend 425) that a transfer Of personal pro
Sunday, was valid and passed q good title, notwrthstand
ing the prohibition. In this, our Legislation, as win b.
seen, differs from, and is less rigid than that Of our sis
ter State. Whether in a religious point OF view tn,
distinction between selling on Q Sunday and exposing 70
sale on a Sunday be a sound one, it is mot my purpos
ciary Is to expound and apply, and not to make laws.
The prohibition Of merchandising, as it was call
Of King Altheistan. In the time Of Henry the Sixth n
fair or market, it was enacted, should be held oH oAs
day, except during harvest, on pain OF forfeitink th'
goods exposed to sale. And in the reign OF Charles TIE Sc
cond-a monarch not particularly distinguished for re
Iigous austerity-the prohibition was extended TO "al
worldly labor, y and al exposing Of goods to sale,'' eX
cept meat and milk. Bakers-rather y strange associa
ton, according to our present ideas-were permittet
snbsequently-and in this we see the constitutional ten
depcy Of some Of our ancesters-to dress dinners on
Sunday as a work Of necessity. But, although the pre-
paration Of food for the body was thus excepted, NO SINH
lar exemption was extended to the preparation Of foo
for the mind. Indeed, in any view OF religious obiga .
ton, 1t would be difficult to contend that The reading o
advertisements in a sunday newspaper, or aiding . per
son to do so, is a work of either necessity or charity
The mind certainly on that day requires no such sps
tenance. And even as a mere matter Of taste, 1t mus
be admitted that common business advertisements c
buying and selling are a very unsuitable outfit for
''feast of reason" Six days, at all events, Of such die
are enough. Thought perpetually running in one chan
mel, like matrimony in one family, dwarfs the intellect
It is rather, therefore, a work Of charity in such case
to withhold than to give. Abstinence, not sustenauct
IL what is needed.
It is a strange mode, it will be said, to support reii
gion by sheItering bad faith. Laws involving publ
policy can seldom he made ~effectual Ia any other way
The gaming law, the usury law, the smuggling Law, an
other enaGtments Of like character, are fasilis
at defiance can claim no assistance from the law. tn
law in such cases generally frowns on both parties an
aids neither, unless it be to wrong the other.
My conclusion, then, is that the contract maAe by tn
plaintiffs to publish the defendants advertisement In
Sunday paper, was q contract TO do an act prohibited b
the statute, and that the price therefore stipulated 70 b
paid for the service, whatever may be the moral obligs
tion, cannot he recovered in any court OF this STATE
Judgment for the defendants.