Swann v. Swann

• Decision Date: 01 January 1884
• Citation: 21 F. 299
• Parties: SWANN v. SWANN.
• Court: U.S. District Court — Eastern District of Arkansas

21 F. 299

SWANN v. SWANN.

United States Circuit Court, E.D. Arkansas.

April Term, 1884

Ratcliff & Fletcher, for plaintiff.

Clark &amp Williams, for defendant.

CALDWELL J.

This suit is founded on a promissory note of which the defendant is the maker and the plaintiff the payee. The defense is that the note was executed on the Lord's day. The proof shows the note was executed on that day in the state of Tennessee where the parties to it then resided, for the consideration of a valid pre- existing debt due from the defendant to the plaintiff. There is no place of payment fixed in the note.

In Tucker v. West, 29 Ark. 386, a note executed in this state on the Lord's day was held to be void under the statute. This court takes judicial notice of the laws of the several states. Owings v. Hull, 9 Pet. 607; Railroad Co. v. Bank of Ashland, 12 Wall. 226.

By the law of Tennessee, where the note was executed, it is a valid obligation. In Amis v. Kyle, 2 Yerg. 31, the supreme court held that the statute of that state only prohibited labor and business in the 'ordinary calling' of the parties; and that isolated private contracts, made by parties outside of their ordinary calling, are not invalidated. This rule was carried to a great length in the case cited. An obligation, to be discharged in horses, was made payable on the Lord's day, and the court held the contract valid and that a tender of the horses, to have the effect of discharging the obligation, must be made on that day. This was held upon the ground that the sale and delivery of horses was not the ordinary calling of either of the parties. The attention of the court has not been called to any later exposition of the law of that state than is contained in this decision, and it will be assumed that there is none.

Under the rule established in Amis v. Kyle, it is obvious the note, which is the foundation of this suit, was valid in Tennessee. The execution of a note for a pre-existing debt was probably not the ordinary calling of either of the parties. If it was, the burden of proof was on the defendant to show it. Roys v. Johnson, 7 Gray, 162; Bloxsome v. Williams, 3 Barn.& C. 232. The doctrine of the supreme court of Tennessee is the doctrine of the early English cases under the statute of 29 Chas.II.c. 7, which prohibited labor only in the 'ordinary calling' of the parties. Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, supra; Rex v. Whitnash, 7 Barn.& C. 596; Fennell v. Ridler, 5 Barn.& C. 406; Rex v. Brotherton, 2 Strange, 702. It is also the doctrine of some of the American cases. Hellams v. Abercrombie, 15 S.C. 110; Bloom v. Richards, 2 Ohio St. 387; George v. George, 47 N.H. 27; Hazard v. Day, 14 Allen, 487. Of course, the law of this state has no extraterritorial operation, and cannot affect the validity of contracts executed elsewhere on the Lord's day. And the general rule is that a contract valid by the law of the place where it is made is valid everywhere, and will be enforced by the courts of every other country. But there are exceptions to this general rule, and among them contracts against good morals, and that tend to promote vice and crime, and contracts against the settled public policy of the state, will not be enforced, although they may be valid by the law of the place where they are made. Story, Confl. Laws, Sec. 244; Westl. Int. Law, Sec. 196; Whart. Confl. Laws, Sec. 490.

The contention of the learned counsel for the defendant is that a court of this state ought not to enforce a contract made on the Lord's day in another state, though valid by the law of that state, because the contract is the result of an immoral and irreligious act, and its enforcement here would shock the moral sense of the community and violate the public policy of the state. Assuming, but not deciding, that the determination of this question must be the same in this court that it would be in a court of the state, we will proceed to inquire whether there is any principle upon which a court of the state could refuse to enforce the contract in suit.

The common law made no distinction between the Lord's day and any other day. Contracts entered into on that day were as valid as those made on any other day. The contract in suit was voluntarily entered into, between parties capable of contracting, for a lawful and valuable consideration. It had relation to a subject-matter about which it was lawful to contract, and was a valid contract when and where it was made. No court ought to refuse its aid to enforce such a contract on doubtful and uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of this state, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the state, or what would be shocking to the moral sense of its people, are not to be indulged in. The law points out the sources of information to which courts must appeal to determine the public policy of a state. The term, as it is often popularly used and defined, makes it an unknown and variable quantity,--much too indefinite and uncertain to be made the foundation of a judgment. The only authentic and admissible evidence of the public policy of a state on any given subject are its constitution, laws, and judicial decisions. The public policy of a state, of which courts take notice, and to which they give effect, must be deduced from these sources.

In Vidal v. Girard's Ex'rs, 2 How. 127, 198, it was objected by Mr. Webster that the foundation of the Girard college, upon the principles prescribed by the testator, was 'derogatory and hostile to the Christian religion, and so is void as being against the common law and public policy of Pennsylvania. ' In replying to this argument the court said:

'Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its constitution and laws and judicial decisions made known to us. * * * '

What is there, then, in the constitution, laws, and decisions of this state evincing a public policy hostile to the enforcement of contracts lawfully made in other states on the Lord's day? The constitution of the state declares:

'No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given by law to any religious establishment, denomination, or mode of worship above any other. * * * No religious test shall ever be required of any person as a qualification to vote or hold office; nor shall any person be rendered incompetent to be a witness on account of his religious belief. ' Const. 1874, Secs. 24, 26.

So much of the statute of the state as has any bearing on this question reads as follows:

'Sec. 1614. Every person who shall, on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to labor or perform other services than customary household duties of daily necessity, comfort, or charity, or conviction thereof shall be fined one dollar for each separate offense. * * * '

'Sec. 1617. Persons who are members of any religious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society.'

It is obvious the statute does not attempt to compel the observance of the first day of the week, as a day of rest, as a religious duty. It would be a nullity if it did so.

In Bloom v. Richards, 2 Ohio St. 287, the court-- THURMAN, J., delivering the opinion-- said:

'Thus the statute upon which defendant relies, prohibiting common labor on the Sabbath, could not stand for a moment as a law of this state, if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty.'

And see, to the same effect, Specht v. Com. 8 Barr, 312; City Council of Charleston v. Benjamin, 2 Strob. 508.

In this country legislative authority is limited strictly to temporal affairs by written constitutions. Under these constitutions there can be no mingling of the affairs of church and state by legislative authority. All religions are tolerated and none is established. Each has an equal right to the protection of the law, whether Christians, Jews, or infidels. Andrew v. Bible Society, 4 Sandf.(N.Y.) 182; Ayres v. Methodist Church, 3 Sandf.(N.Y.) 377; Cooley, Const. Lim. 472. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a religious duty. The old idea that religious faith and practice can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observances whereas, religion consists in a temper of heart and conscious faith which force can neither implant nor efface. History records the mischievous consequences of all efforts to propagate religion, or alter man's relations to his Maker, by penal statutes. In religion no man is his neighbor's keeper, and no more is the state the keeper of the religious conscience of the people. The state protects all religions, but espouses none. Every man is individually answerable to his God for his faith and his works, and must therefore be left free to imbibe and practice any faith he chooses, so long as he does not interfere with the rights of his neighbor. The statute, then, is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. Slaughter-house Cases, 16 Wall. 36, 62,...