Commonwealth v. Has
| Decision Date | 04 January 1877 |
| Citation | 122 Mass. 40 |
| Parties | Commonwealth v. Gehring Has |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 27, 1876; November 29, 1876
Suffolk. Complaint on the Gen. Sts. c. 84, § 1, charging the defendant with unlawfully keeping open his shop on the Lord's day.
At the trial in the Superior Court, before Gardner, J., the defendant admitted keeping the shop open to do lawful secular business and traffic with the public therein, and testified that, when he did so, he conscientiously believed that the seventh day of the week ought to be observed as the Sabbath and that he so observed it, and disturbed no person. But the judge ruled that the Gen. Sts. c. 84, § 1, contained two classes of offences so far as the ninth section was concerned: 1. Keeping open a shop, warehouse or workshop; 2. Doing labor, business or work, &c.; that § 9 of the same chapter relieved only the second offence from punishment, and made the first offence absolute; and instructed the jury that they must find the defendant guilty if they believed that he kept an open shop on the Lord's day for the purpose of doing business with the public therein, whatever his conscientious scruples about the seventh day might be. The jury returned a verdict of guilty and the defendant alleged exceptions.
Exceptions overruled.
G Sennott, for the defendant.
W. C Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.
The Gen. Sts. c. 84, §§ 1, 2, provide for the punishment of five distinct offences as violations of the Lord's day. These are: 1. Keeping open a shop, warehouse or workhouse. 2. Doing any manner of labor, business or work, except works of necessity or charity. 3. Being present at any dancing or public diversion. 4. Taking part in any sport or play. 5. Travelling on the Lord's day, except from necessity or charity. The ninth section of the same chapter provides that, "whoever conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business, travel and labor on that day, shall not be liable to the penalties of this chapter for performing secular business, travel or labor on the Lord's day, or first day of the week: provided, that he disturbs no other person."
The ruling of the presiding judge was, in effect, that the provisions of the 9th section could not be extended so as to permit the act of keeping open a shop upon the Lord's day. This interpretation was correct. That the 9th section is not intended to permit, to the persons therein described, all the acts expressly forbidden in the previous sections, such as being present at dances or public diversions or taking part in sports or plays, is quite clear. The defendant contends that, as he is a shopkeeper and as the doing of secular business is permitted to him, he may properly keep open his shop on the Lord's day. This act is, however expressly forbidden by the first clause, and the secular business which is permitted is of the character described in the second clause of the first section. It is so apparent...
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