guttritait gmbgttriaiil
THURSDAY, OCTOBER 18, 1866
SUNDAY CAR QUESTION.
ARGUMENT FOR THE COMPLAINANTS,
la the Supreme Court of Pennsylvania, Oct.
3d and sth, Judge Strong upon the Bench.
CONCLUSION OF MK.McELROY'S ARGII-
MENT.
Having thus established that the acts of the
defendants are contrary to law, and shown
from the proofs in the case that these acts are
injurious to rights of property possessed by
the complainants, I pass on to consider the
question whether the complainants are en
titled to the relief prayed for.
They ask that the strong arm of this court
may be interposed by injunction to restrain
the defendants from further interference with
their rights.
Directing attention first to the bill of John
Sparhawk and others, and leaving that of
Mr. Kenton for s ubsequent remark, Isubmlt,
in the first place, that this court has jurisdic
tion to grant the relief by reason of the gene
ral equity powers possessed by itin cases of
nuisance, if this case is to be considered as
coming within that description.
We have the ground of this jurisdiction
pointed out . in the elementary treatises, 2
Eden on fivunction, p. 259 et seq. Story's
Equity Jurisprudence, Sec. 924 et seq. Al
though in cases of public nuisance, the ordi
nary course is for the Attorney-General to
sue as representing the public, yet is it
equally certain that individuals may ask the
aid of the court to prevent a public nuisance
from which the_v_have_inclivicivally sustained
damage. Attorney- General vs. Forbes, 3
Mylne and Craig, 123. Where in case of a
public nuisance , there is a special grievance
arising out of the common cause of injury
Which presses upon particular individuals more
than upen others not so immediately within
the influence of it, it seems that they would
be entitled to the interference of a court of
equity for the protection of their private
rights. 2 Eden on Injunction, 267. The
general ground of interference in private nui
sance is, that sort of material injury to pro.
Deily or health requiring the application to
prevent as well as remedy an evil for which
damages, more or less, would be given in an
action at law. Attorney- General vs. Nichol,
16 Vesey, 343. Or, where the injury is such,
as from its long continuance, occasions a
constantly recurring grievance, which cannot
be otherwise prevented than by an injunction.
Fishmonger's Company vs. East India Com
pany, 1 Dickens, 163. Or, where there is
that sort of material injury by one to the
comfort of another which requires the appli
cation of a power to prevent, as well as to
remedy, the evil. Earl of Bathurst vs.
Burden, 2 Brown's Chancery Cases, 64. Or,
where even there is a mere common trespass,
if it be continued so long as to become a nui
sance the court will undoubtedly interfere.
Coulson vs. White, 2 Atkyns, 21. And Lord
Chancellor Westbury, in the case of Jackson
vs. the Duke of _Newcastle, 10 Jurist N. S.,
689, says the foundation of the jurisdiction
appears to be that kind of injury to property
which renders it in a material degree unsuita
ble for the purpose to which it is now applied,
or which lessens considerably the enjoyment
which the owner now has of it. The court
.... _
considers that an injury of this nature does
not admit of being measured and redressed
by damages. And wherever the nuisance
causes substantial damages the court will not
refuse an injunction, even though the act
causing the nuisance may in its results be
beneficial to the public. Broadbent vs. The
Imperial Gas Company, 26 Law Journal
OW.) 276. .
There are very many reported cases where
injunctions have been granted to restrain
nuisances, on the application of individuals
injured. An instance of this is found in the
case of Corning vs. Lowere, 6 Johnson's
Chancery, Rep. 439, where Chancellor Kent
granted an injunction to restrain a party from
obstructing a street by building a house
thereon, it being not only a public nuisance,
but producing a special injury to the plain
tiffs by affecting the enjoyment of their pro
perty in the vicinity and the value of it. So
also, an injunction was granted to prevent a
voluntary religious association from being
disturbed in their burial ground. Beatty v.
Curtz, 2 Peter's Rep., 566. In the celebrated
case of So/tau v. De Held, 2 Simons' Rep.
N. S. 133, the trustees of a church were en
joined from causing a chime of bells to be
rung in such a manner as to interfere with
the enjoyment by the plaintiff of his dwel
ling-house ; and this injunction was granted
although other residents of the neighbor
hood testified that they were not disturbed
by the sound of the bells, and the Chancellor
admitted that such a sound might produce to
some persons a pleasurable sensation rather
than an injury. And in the case of Bostock
v. The _North Staffordshire Railway Com
pany, 2 Jurist N. S. 248, an injunction was
granted to restrain the defendants from issu
ing advertisements for holding a regatta on
Rudyard Lake, or letting out pleasure boats
on the same, upon the ground that they
would thereby interfere with the privacy of
the plaintiff, who resided on the shores of the.
lake.
These cases have been selected from the
mass as being analagous to the one now un
der discussion, and I think they show con
clusively that wherever the injury com
plained of amounts to a positive disturbance
of, or interference with, the comfort and en
joyment of property, so as to render it in a
material degree unsuitable for any lawful
Purpose for which the owner uses it, an in
junction will be granted to protect his rights
and restrain the wrong-doer.
But there is another principle to be found
in the books, and abundantly sustained by
authority, upon which the complainants'
right in this case is still more clear. It will
be found well stated in Adams' Equity at
pages 211 and 212,
as extracted from the
cases there cited. Mr. Adams says:—"ln
junctions for the restraint of trespass and
nuisance are often issued against railway
companies and other bodies of a similar
nature, where the act complained of is done
without. authority in their charter. If they
assume to do that which the Legislature has
not said they may do, then, in so far as the
excess is concerned, they have no authority;;
and, if their acts be of a nature to warrant an
injunction, it will be granted against them."
The complainants are certainly in a position
to invoke this equitable principle in their be
half. Clearly, if the defendants, having in
jured them, would be restrained where such
injuries resulted from the prosecution of a
lawful business, (and this I have shown) they
will, a fortiori, be restrained where their con
duct of an unlawful business is producing the
injuries complained of here. The case is
brought directly within the equity powers of
this court under the Act 0f1836, to " restrain
acts contrsry rn law and prejudicial to the
rights of individuals."
Mr. J us, lee Baldwin , in the _great case of
Bonaparte vs. The Camden & Amboy R. R.
Co., reported in 1 Baldwin, 205, applied this
principle to its fullest extent, Mr. Bonaparte
ha I purchased two thousand acres of land in
the neighborhood of Burlington, New Jersey,
and bad erected thereon a'mansion, and laid
out a park, ornamental gardens and groves,
interspersing these with artificial lakes, fish
ponds and other things calculated to make
his residence attractive and contribute to
healthful recreation and enjoyment. The
railroad company, without his permission,
entered by their agents upon his property to
survey and stake out the line for their road,
intending to build this road over a portion of
his ground. For these acts they had no au
thority by their charter. He applied to the
court for an injunction to restrain them, and
it was held that as the company had no law
ful right to do the acts which they had done
and threatened to do, they must be restrained
by injunction. In the opinion of Judge Bald
win, he says that the purposes to which the
plaintiff had devoted his property, were law
ful purposes, the interference with which
might not be the subject of compensation
with money ; that his object was not profit,
but repose, seclusion, and a resting-place for
himself and his family, and that in the enjoy
ment of such rights, a court of Equity would
-protect him against all unlawful disturbance.
In our own case of The Commonwealth vs.
The Pittsburgh & Connellsville R. R. Co., 12
Harris, 159, Judge Lowrie decided that when
rail-road companies, or individuals, exceed
their statutory powers in dealing with other
people's property, no question of damage
is raised when an injunction is applied for,
but simply one of right. And to the same
effect is the case of The Commonwealth vs.
Rush, 2 Harris, 193. This is also the Eng
lish doctrine, as appears by the case of The
River Dun Navigation Company vs. The
North Midland Railway English Rail
way Cases, 135, where the Co., 'Chancellor uses
this strong language : "If these companies
go beyond the Towers which the Legislature
has given them, and in a mistaken exercise
of those powers, interfere with the property
of individuals, this court is bound to interfere:
that was Lord Eldon's ground in Agar vs.
giw Regent's Canal Company, and I see no
ground whatever to depart from the rule
there laid down and acted upon."
May it please the Court, there is no mista
ken exercise of power here ! I insist upon
it that this company, when they sought the
aid of the General Government to afford them
the disguise of a mail contract, so that they
might run their cars on Sunday under a mere
color of law, knew then as they know to-day,
that they were acting, not only without a
semblance of authority in their charter, but
in absolute defiance of our laws. It was a
positive and intended violation of theirtharter.
What right have they to use the public streets
of' this city on Sundays? None ! They
have no right to place a single car there on
that day ; much less to run nearly three hun
dred cars from north to south and east to
west of oar city, with noise and tumult, and
all the injurious consequences which flow
from their audacious and illegal course. They
are guilty of a purpresture of the highways,
and are trespassers on the rights of the citi
zens, who at least have the right to pass and
repass along these highways without any ob
struction or disturbance by the defendants.
And can it be said that these complainants
are not injured by these illegal acts of the
defendants? I maintain that the rights of
the citizen are in many respects superior on
Sunday to those which he possesses on other
days of the week. On a week-day he must
submit to disturbances and distractions
which arise from the lawful conduct of busi
ness and which are necessary incidents to
secular life in all its varied relations and con
ditions. On Sunday he has a right to be
relieved from these. On a week-day he
would not be protected in those particular
uses of his property to which he has a right
to devote it on Sunday. That day comes to
him, however, freighted with peculiar privi
leges and guarded by high and solemn sanc
tions. Those privileges have their root, not
only in our statute of. 1794 and the previous
enactments to which I have referred, but also
in the common law of the State brought here,
by William Penn and his fellow settlers, and
of which, by the, decision of our courts,
Christianity is a part. On that day he has a
right to enjoy the Sabbath, as a day of rest and
of religious exercise, free of all disturbance
from unnecessary and unauthorized world
ly employment; he has a right to engage
peaceably and without interruption in the
worship of Almighty God in his accustomed
place of public worship or in the privacy of
his own home ; and he has a right to the
lawful and unbroken peace and quiet of the
day, so well denominated by this court, "the
peace of the Sabbath."
It surely cannot be asserted, in view of the
proofs submitted in this case,' that these
rights, possessed by the complainants, have
not been invaded by this railway company.
It is no answer to their testimony, that other
persons have not been disturbed in their resi
dences or churches. These persons, it will
be noticed, have not stated the facts particu
larly, as our witnesses have done, so that we
can judge whether they were in such a posi
tion that they might have been disturbed.
This is the kind of testimony offered by the
defendant in the case of Soltau vs. Deßeld,
[ before cited, and the court disregarded it.
Our proofs stand entirely uncontradicted,
and the result of the testimony is conclusive
that the complainants have been materially
disturbed by the defendants in that enjoy
ment of their houses and pews to which they
are entitled by law, and that this disturbance
produces such an injury to their property as
renders it unsuitable for the 'lawful purposes
to which they have applied it, and of course,
diminishes its value to them.
I have not forgotten that this act of 1794
is a penal law, and that a fine of four dollars
is imposed for its violation. We will be told
by the counsel of the defendants that the im
position of this fine is our only remedy, be
cause the act of 1806 declares that where a
remedy is provided by any act of Assembly,
the directions of the act shall be strictly pur
sued. I shall say a few words upon this
point. In the first place, the act of 1806 has
been so construed by decisions of this court
that it cannot be set up here as a bar to this'
case. In Kelly vs. the Commonwealth, 11
S. & It., 345, it was held that the obstruction
of a highway is indictable at common law, '
although the act of April 6th, 1802, imposes
a penalty for that particular offence. In the
case of Smith vs. Shuler 12 S. & R, 242, it
was decided that the act o' f 17b5, providing a
remedy on a mortgage by writ of mire facias,
does not prevent the mortgagee from bring
ing an action of ejectment. And in Aycine
na vs. Penes, 6 W. & S., 257, it was held
that the grant of equity powers by statute to
the courts does not oust their common law
jurisdiction. So in the case of Common
wealth vs. Jeandelle, already cited, the de
fendant was held to answer for a breach of
the peace caused by his violation of the Sun
day law, although the act of 1806 was plead
ed in his defence. These aUthorities show
that this act regards only proceedings upon
the penal statute itself, not other and concur
rent remedies which the law has provided.
If we were proceeding here directly upon the
act of 1794 and seeking to hold these defend
ants liable for its infringement, we coupl do
no more than enforce its penalty. But we
are not so proceeding; we have availed our
selves of the statute no, further than to take
the aid which it affords us in showing that
the acts of the defendants are contrary to law.
Besides this; we cannot be debarred of
equitable relief unless the remedy at law is
adequate and complete. That the penalty
provided by this act is not such a remedy is
apparent. The fine imposed is not at all for
the benefit of the party, seeing ; it goes into
'the treasury of the Commonwealth, in settle
ment of the account between her and the
THE , AMERICAN PRESBYTMIAN, THURSDAY, OCTOBER 18, 1866.
transgressor of her law. It is there
= adequate remedy. Nor is it acl
one, for it would not prevent the m
These defendants will ask us to imp
fine—they are very willing to pay it, fe
can well afford to lose four dollars eve
day on every car they run—and the
spectacle for a court of justice is her
ed, of a contemner of the law expres'
willingness to pay its penalty from da
if hu be only permitted to continue ,
tion of it! But this point is fully
the case referred to by my collea_gue,
vs. The Yarmouth, & .Norwich Rails
3 English Railway Cases, 537, w
Chancellor decides that in cases w
only remedy given by an act is by re,
penalties de die in diem, in a swum.,
the court has the power of protectin
junction, the rights of the person in
an infraction of the act.
I can see nothing nothing therefor
objection that affects the title of thes•
to the remedy here sought. The un,
facts of, the case bring it fully wit
equitable powers of this court ; and i
the principles of law which I have mai
and which, I think, are abundantly
can have no doubt that the complain:
have promptly granted to them th
which they have shown to be needful
l
protection of their rights.
In regard to the bill filed by Levi iton,
I shall have only a brief argument to ake,
because I consider that it will req but
little argument to support it. This ntiff
is a stockholder of this company—a tner
in the concern, though not a partner heir
illegal acts. i
He asks to restrain them from a h
ante of their unlawful_ conduct, in
titulars ; first, in running their cars
day, and secondly, in performing a
made with the Government for ear
mails within this city.
As to his right to this kind of reli
can be no difficulty, if the acts comp
are illegal, as regards this company.
fendants contest his right because
chased his stock after they comme
run their cars on Sunday and to c
mails, and because the stock of the
has increased in value by reason o
doing this,
from $32 to $42.25 per sh
that need be said about these objet
that they cannot affect, his right. Tld. In
will not look at his mdtives, but only hi._
title. Even if it were shown that ad
bought the stock for the express pur of
bringing this suit, it would not have a h-
er's weight in its determination. y
judgment, it would, in such a ease as t e
an act of honor instead of demerit, a n
title him to thanks rather than reprots.
But it makes no difference how, or for; t
purpose he became possessed of his stoc r
how valuable it may have become b ice
unlawful conduct of the company. "-
court will not compel him to accept the
fits of an illegal business, but will justify;: -
in interposing to prevent the directors,
are his trustees, from continuing a wr
which, however profitable it may b
stockholders in the way of dividends, en
gers the whole stock and the very life of
corporation by imperilling its charter.
English books have many decisions to
• effect, and our own authorities are ample.
need only refer to one, where the plain
bought the stock for the purpose of bringi
the suit, and did it in the interest of a ri
company. Even this did not prevent his o
1 taining an injunction. Sanford vs. Ti
, Catawissa, Williamsport & Erie R. R. a
'l2 Harris, 378. The only question in
these cases is, whether the plaintiff is
stockholder; and that being conceded he
I need go no farther to establi3h his righ
As to the first injunctionwhich he asks
restrain the company from running their
on Sunday—l need say no more than to r
to the argument which I have made in
case of Mr. Sparhawk and others. If I h
succeeded there in convincing the court t,
running cars on Sunday is contrary to I
generally, and not embraced within the po
of this company, then this plaintiff's righ
an injunction is clear.
His second prayer is to have the coin
I restrained from further performanpe of
mail contract. The proofs show that on
Bth, 1864, the Postmaster-General a
' tised for proposals for the Local Messe
Service for carrying the mails in this ci
and from the post-office and the local
stations. William Walters was the acce
'bidder for this service, and a contract
accordingly made with him for four y
from July Ist, 1864. This contract requ
him to make five trips each way daily
one trip each way on Sunday. The U
Passenger Railway Company secured an
signment of this contract from Mr. Wal
on the 26th of March, 1866, and this assi
ment was approved by the Post-office
partment on March 31st, 1866, and the co
tract extended for four years from the
day of May, 1866. Some alterations wei
made in the contract, but the Sunday nui
service remained the same as before—" on
trip each way on Sunday." This is the ma
service which this company has been per
forming for more than four months past, ani
in the performance of which they have beer
running 253 trips each way on Sunday! Wer
ever mails so zealously carried before ? Wa
ever a Government so well served before ?
am sure I need only state these facts to jus
tify the assertion which I made that thi
montract was a mere subterfuge. Coul
this company really conceive that such a dis
guise as this would serve them in any court
of law or equity?
But the question here is, whetherthey had
any power to make this contract. Mr. Ken
ton says they had not. Now I reed not re
fer to the numerous decisions of this court to
show that if they had such power, they must
prove it by their charter. They are only a
creature of law, having just that life which
the Legislature gave them, and no more.
They take- nothing by implication ; and the
powers given them, being in derogation of
common right, *must be construed strictly.
They must leave nothing in doubt, nor trust
to inference, but must point to the grant of
power in their charter. In the expressive
words of Chief-Justice 'Black, irk. the case of
The Commonwealth vs. The Erie & North
East R. R. Co. 3 Casey, 351, " A doubtful
charter does not: exist; because whatever is
doubtful, is decisively- certain against the
corporation."•
There is, however, no doubt here upon
this question. Not only cannot this company
show in their charter any power enabling
them to make this contract, but that instru
ment expressly limits their powers so that
they cannot lawfully make it. Ist. It is not
embraced in the purposes for which they
were incorporated. They are by their title,
a passenger railway, and this does not mean
a railroad, on which passengers freight or
mails, may be carried, but simply and exclu
sively a road for the conveyance of passen
gers. This was decided by this court in the
recent case of The Commonwealth vs. The
Central Passenger Railway Co., which is not
yet reported, but the opinion of the court in.
which I have here in pamphlet form. Sec
ondly. By the fourth section of their char
ter (Pamphlet Laws of 1864, p. 297) they are
prohibited from carrying _freight and given
power only to equip their road for the con
veyance of passengers. Thirdly. By the Bth
section of the charter, they are expressly
made subject to all ordinances of this city re
gulating the running of passenger railway
oars. And the city ordinance of April Ist,
1859, section Ist, clause sth, is in these
words: "No passenger railway shall at any
time be used for any other purpose than
passenger travel." This ordinance is a part
of their charter, and by it they were, in plain
words, forbidden to do this very thing which
for months past they have been doing.
I said that this case of Mr. Kenton . would
require but little argument. As to it, I have
made rather a statement than an argument,
feeling that I ought to be brief, by reason of
the length of time which my argument on
the other case had already occupied. But
can anything be more conclusive than this
mere statement ? How could argument make
it more clear ? His right to question this
mail contract, and, if illegal, to have it prac
tically annulled by preventing its further
performance, is beyond doubt. That it is
illegal, so far as this companyis concerned,
is no less plain ; not only from the want of
power to make it, but also because there is a
positive prohibition against exercising such a
power.
I feel that it is unnecessary for me to say
more. I leave this case with your Honor
with the same confidence, in which I sub
mitted the other, that you will grant the re
lief prayed for • thanking, you at the same
time for the patient attention which you have
given to the argument of these important
questions.
• the
e the
• ering
way,
by in
ed by
n this
t arties
puted
the
ew of
fined,
-ar I
s will
,relief
l.r the
ARGUMENT OF JUDGE PORTER.
May it please your Honor, a question
was asked at the close of the remarks of the
opposing counsel, which struck me with
a good deal of force, and to which I think I
an able to respond. This was, whether I
could seriously stand up before this court
and advocate the views which these parties,
the complainants, here present?
May it please your Honor, I can do it seri
ously. If I ever was serious in my life, sir,
it will be in expressing the sentiments which
I am about to express to your Honor in this
case. For, as Heaven is my judge this day,
Ido believe that the sanctity of the Sab
bath, as we have enjoyed it in this commu
nity for nearly two centuries, is just the ques
tion before this court.
It is in vain to disguise it, sir. The inge,
nuity of counsel cannot answer me this ques
tion : Where is this thing to stop f If these
passenger cars are to run, where is to be the
limit? What are you to do with the mer
chant? What are you to do with the
butcher? What are you• to do with the
baker? What are you to do with the Sun
day theatres? What are you to do with all
those appliances of evil which every one
who has visited the European cities has so
fully informed us of?
blow, sir, it is necessary in the discussion
of a question like this, to bear in mind this
simple fact—l am afraid we are in danger of
forgetting it—that we are neither more nor
less than a Christian people. I do not advert
to the distinctions between sects. I do,not
mean to introduce anything of a sectarian
character, as to the minute distinctions of
theological opinion ; but we are here to dis
cuss, to settle, and to decide this question for a
Christian people. We are not Mohammedans,
and we are not Turks, and we are not Bud
dhists, and we are not Mormons. We are a
Christian people, sir ; it could not have been
otherwise. No lawyer, no judge, can get
'd of that fact which the subject here pre
, .ents:
!I I mu
• par-
Sun
ntract
lig the
This country was settled for a specific pur
-1 lose, and no other. The German,
the Hu
nenot, the Puritan, the Roman Catholic
r
. be Swede, the Scotchman, every species and
kid of emigration which took place to this
ountry for the purpose of settling it, and
aunding here these Commonwealths, came
flor the specific object of laying the foundations
of Christian commonwealths. And therefore,
may it; please your Honor,
it need not sur
prise anybody when he finds that it is now a
maxim of our jurisprudence, that Christian
ity is a part of the law of the land.
This horrible mixture, did I hear, of spir
itual matters and legal matters? No, sir,
not at all a horrid mixture ! Christianity
is so interlaced, with our whole system of
jurisprudence, that we cannot separate one
from the other. It need not surprise any
one to find that this country was not settled
upon pagan principles, nor heathen, nor Mo
hammedanprinciples, but upon Christian
principles. The first announcement of that
kind was made by one of the most remark
able men the State has ever produced, the
great Judge James Wilson.
He was a member of the convention that
adopted the Constitution of the United
states; he was a member of the convention
chat adopted the Constitution of Pennsylva
iiia,• he was one of the first judges selected
y General Washington when he made the
ppointments of Judges of the Supreme
itirt of the United States. He sat with
ohn Jay, although in my opinion he was
eater, ranking with the illustrious Camden.
I ou will find these doctrines announced by
in on page 112 of the 3d vol . . of his works.
It was announced by Chancellor Kent, in
it memorable case in Bth Johnson ; it was
munced by this court in the' suit of Upde
if against the Commonwealth. It has
ome so incorporated into our laws that it
not be separated. Ido not doubt to-day,
t if we had not a statute on the subject,
•e is sufficient in the common law to pre
a man from blaspheming the Christian
ion. I have no doubt that if there was
statute on the subject, we could prevent
t, bigamy, perjury. • You can scarcely
up a book of jurisprudence, in which
loctrine is not maintained.
the case of 6th Barr, page 96, Judge
per advocates the same view. There
int was that the case of Speke and the
onvvealth, that of the Seventh Day
its, has been utterly repudiated; that
'tate protected Sunday and intended
itect it as merely a civil institution.
notorious fact that when that opinion
ad from the bench, Judge Coulter at
1 issenteil from it. The venerable Judge
de stepped down and said, that would
ry good opinion in Turkey, occasioning
great breach between himself and the 6
vim delivered the opinion, It was re
d at once by Judge Lewis; it never has
nstained, and never can be. Judge
land never retracted or recanted his
s! - Not at all, sir. I do not know of
which that judge has recanted or
.übject has received, perhaps, one of
t thorough discussions that it could
ceived. In a Case decided in the
New YorkHt will be found in tie
n Law Register, page 591 ; I refer to
uller's case—the Christian religion
Icknowledged law of the people, by
t int of the community, is entitled to
P , for Christianity is a part of the
1: gland.
fa !when the legislature, in a statute,
fa
nday theatres—aye,Sunday thea
tr.; .
ry next thing whic you will see
• your sanction to these doctrines
7", ‘ legislature declared Sunday thea
tire'!ince, indictments were daily found
ted against the lessees, and it
fcra4 be within the power of the legis
ilatinl t such a law.
at, the decision of Judge Thomp-
I s" lleague, will be found, in which
) 110 — 1 these cars could not run. But
ewe dant statute laws, 28th Edward,
III•
VI. dto selling wool; 27th Henry
to fairs and markets on Sunday.
Th ';E to of 4th Edward, loth chap
ter, ' shoemakers from selling their
wares or merchandize on Sunday ; the stat
ute of Ist Elizabeth imposed a penalty for not
going to church 7
• the statute of the Ist
Charles referred to sports and diversions on
that day ; and another did not allow butchers to
sell their meat on Sunday. Then came the
statute of Charles 11., which prevented a
man 'from doing any work in the line of his
own business. Our forefathers started with
the thoughts and principles impressed on
their minds which are in these statutes; upon
them Penn founded his charter. His very
object was stated to be to reduce the
savages to the Christian religion ; and before
he started, he made a body of laws in Eng
land. It was provided that those only should
vote and exercise the elective franchise who
professed their faith in Jesus Christ. When
they got to Chester, they made, on the
7th of December, 1682, that act which is
called " the great law," or body of laws,
and which has been referred to by my col
league, the object of which was announced to
be to prevent infidelity and atheism from
creeping in.
This is not the way in which a pagan com
monwealth would have been founded. The
whole object was to found a Christian Com
monwealth. In 1705 an act was framed,
which is very slightly quoted, and of which
very little is known. It is a most remark le
act and could hardly be found unworthy of tny
Commonwealth. It provided that nobody
then or hereafter residing in the province,
who should not profess faith in God the
Father, and in Jesus Christ his only Son,
should enjoy such and such rights. [Here
the Act was read.
You cannot touch this subject that you
do not see this distinctive mark impressed
upon it—this idea that it was to be a Chris
tian Commonwealth. Imagine a Christian
Commonwealth without a Sabbath! Who
ever heard of such a thing? It is the very
blood of Christian life. Just where the Sab-.
bath is best kept there religion best flourishes.
Let any one go to Edinburgh and then to
Madrid ; let any one go to Switzerland and
then to Paris. Everywhere it is the test. Just
as the Sabbath is observed, and men refrain
from worldly labor on that day, just so is re
ligion pure.
This very same principle was carefully put
into all our Constitutions.
Take the Constitution of 1776 ; it pro
claims "the natural and inalienable right to
worship God." This change of one word
between the Constitutions of 1838 and those
of 1776 and 1790, makes our present Constu
tion read " natural and indefeasible." A
right that cannot be denied or taken away
or abridged. The right to worship God in
church and hold up the hands in prayer ; to
join in the psalms of praise. To go there
when the preacher cannot be heard, and the
congregation cannot hear the psalms ; when
the preacher has to stop in the midst of his
prayers,-is
that the Christian right guaran
teed in this provision of our Constitution ?
What was the history of the .act of 1794?
It is well we should look at the foundation of
this case. The act of 1786 having been
passed, had been' put to experiment, and
why did they change it? It was because of
the progress of events on the other side of
the Atlantic, through the French Revolution.
That produced these acts. It happened in
the month of November, 1793, that the Sab
bath was abolished in France, and the tenth
day substituted ; this is matter of history.
According to the state in which navigation
was then, it took this news two months to
reach here, arriving in January, 1794; and
it shocked the world.
What did these venerable men do, such as
Benjamin R. Morgan, Wm. Bingham, An
thony Morris and others, all great men of
their day in the State of Pennsylvania? In
framing that act did they provide in the title
of the act in regard to the way in which
Sunday should be observed ? Not at all, sir.
Every one of those previous statutes referred
in its title to Sunday, the way in which it
should be kept. But this act is termed "An
Act for the Prevention of Vice and Immor
ality." Well did these men know what
went on in the human heart, that in the very
week in which the Sabbath was abolished in
France a notorious prostitute was crowned as
the goddess of reason. They saw that no
man was safe in his property or life outside
of this institution. They adopted this act for
the prevention of vice and immorality, to
prevent these things here.
May it please your Honor, that act is on
trial to day. It has existed for seventy
it has never been altered because it could not
be improved upon. This case is a very sim
ple one. It is easy in one moment to brush
aside all the cobwebs thrown over it.
That act says no work or employment shall
be done on that day at all. Is not every act
divisible into its declaratory part and its yin-.
aleatory part ? •
Why, may it please your Honor, when
this company took out its charter they
knew of this law upon the statute book.
If the Legislature had put that act of
1794 into their charter, they could not have
subjected them more completely to that law.
Here is a company that produces the statute
book of Pennsylvania ; on this leaf is their
charter, and on this a statute which says you
shall not do any work on Sunday of whatever
nature.
May it please your Honor, the moment the
company drove their first car on Sunday, it
was a trespasser from that moment. The
streets do not belong to the company. The
streets belong to the owners of the adjacent
houses up to the middle of the streets. The
company has received from the Legislature
the right to run over the streets on certain
conditions, provided only that they shall not
run on Sunday, because it is in violation of
the law. When they do that, they are vio
lating the law, therefore it is an illegal act
which the Legislature has said you shall not
do at all.
Elevate the poor man ! A work of chari
ty ! The directors of this company to be con
sidered as trustees of a charitable foundation,
or something in that way ! Why don't they
put this thing to the test, and carry the poor
man for nothing 1 What sort of charity is
this? No, sir; their charity consists in put
ting-this stock up from $27 to $42. It is the
sort of charity they had in view when this
company was organized. I am sure the
President of the company would almost
smile if this question was submitted to him.
Elevate the poor man I Very "serviceable
in the case of summer complaints!" There is
certainly one form of that disease wlrich the
rhetoricans talk about, which does not seem
to have been much effected—the diarrho3a
verborum.
Again, the horse railroad ear is a work of
necessity. I admire the way in which
Mr. Biddle argues his case and the extreme
clearness of his statements. It seems to
me it shows the poverty of the case when
he claims to do it on the doctrine of ne
cessity. The physician may go to see a
sick man, an apothecary may supply him
with medicine. If an ox falls into a pit, his
owner may.take him out; but the idea that
a - horse car should be started and run because
it is a necessity, is certainly a most novel
though not very ingenious doctrine.
But this act imposes a penalty. The
company says, go then and fine us. Let
each car make $2O on Sunday,, pay a fine of
$4, and pocket $l6. That is the sort of
charity the company likes. NV - by-should we
be content with fining them as the fine does
not go into our pockets but to the State.
The man whose pew is reduced in value does
not get anything for it. In that act the
dressing of victuals is permitted ; but sup-
pose a man should undertake to establish a
resturant opposite Rev. Mr. Barnes' church
to feed several hundred people, and the fumes
of the cooking should pass into the church,
there is no penalty attached. Could they
submit to that? The delivering of milk is
not punishable; but suppose the man should
insist on delivering all the milk of his wagon
on my step, there is no penalty attached, yet
I could not submit to that. Suppose a man,
a drover, says he can travel on Sunday, and
then he takes a thousand mules that he has
bought into the city and drives them up and
down Walnut street all the day, could not
that be stopped ? Suppose a man establishes
a saw-mill with a circular saw next door to
me; it is nothing like a nuisance, and as
useful to the city is to be encouraged. He
conducts that business during the week, and
on Sunday he can be fined no doubt four
dollars for conducting worldly employment,-
but that act renders my house untenable. I
cannot hear a word inside of my house nor
engage in worship. Can I not stop that,
though it is not a nuisance? Can a man
carry on an establishment by my house and
run it on Sunday in such a way that I cannot
enjoy my property at all, and shall I then be
told I can do nothing but fine him ? Take
the case of a storage of gunpowder punisha
ble by penalty. A man says he knows such a
storehouse is punishable, and that it will cost
him one hundred dollars. He knows this
and puts one thousand barrels in his house
next to mine ; cannot I stop that? If he
goes to the city treasurer and pays the fine,
is my house nevertheless to be destroyed?
Take that case twice referred to by Mr.
Miller, the case of partridge shooting. It
was introduced on Thursday and this morning
also, and I must suppose there is something
in it; perhaps the season of the year has'
suggested the introduction of this subject.
Under the penalty for shooting partridges, a
man will be fined ; but suppose he brings ten
gunners and insists upon shooting the part
ridges at my window—must that be allowed?
In 3d Barnwell, page 184, is mentioned the
case of a man who pursued what he thought
the very respectable occupation of shooting
matches for pigeons. He would tie the pigeon
by the neck and the hunters would shoot at it.
There would be fifty or a hundred hunters
gathered together ; the sport was restrained
in that case. Take the case of a regatta
which brought a large crowd to the house of
a widow and annoyed her ; that was restrain
ed. Why not in the case of a lottery? Be
cause it does not affect the value of the ad
joining property; that may be a case which
you cannot reach.
By the act of 1806, the remedy must be
strictly pursued undoubtedly according to the
course of common law; but this system of
equity has grown up beside the common law.
There are two bills here. Do you find in
either of them the word nuisance ? Not a
particle of it. I would take great discredit
to myself and my colleagues if we had not
had our eyes too wide open for that. The
word nuisance does not occur in either bill ;
we did not intend it should. What then is
this discussion about the matter of a nuisance
for so many hours. Have we for one single
moment put this upon the ground of a
nuisance ? It is very easy for these gentle
men to conjure up grounds of their own and
then turn them over. But then where is
the head? My friend, Mr. Miller, several
times asked for a head—the head in equity of
course, as his head is too good to need any
other at all. Here it is:—
"The prevention or restraint of the commis
sion or continuance of acts contrary to law,
prejudicial to the interests of the community,
or prejudicial to the rights of individuals."
---Purdon.
Therefore the moment I can show you,
that here is a thing by law contraband,
contrary to law, illegal, I cannot express it
better than that act of assembly has done,
"contrary to law," and then show yon I
have a distinct piece of property which by
that act against the law of the land is in
jured, I certainly bring myself •within the
clause provided 'by the act of assembly by
asking you to restrain it.
May it please your Honor, Judge King
wrote twenty years ago, when this subject
of equity was in its infancy. He threw out
some observations about this treatment of
nuisances, declaring you must bring it within
this construction; but a great deal of his
reasoning would not be held as practical now.
A great deal of the arguments which have
been before you for several years past have
been cases which did not embrace a nuisance
at all.
Judge Strong—The word nuisance has a
double meaning. In the ordinary sense, it is
something which is injurious to the public;
but the word nuisance is equally applicable
to any wrong which affects a man's real
estate, anything contrary to law.
Judge Porter resuming his argument—Yes,
if it comes within the popular sense I am
willing to take it; but .1. am not bound to
bring it within the legal meaning. Here is
the law which says you cannot engage in
labor on the Sabbath day; here is a piece of
property which you have reduced from $6OO
to $lOO, or made it unsaleable at all, then I
ask for a remedy. What is the use of all
these pleading and arguments? There is
such a thing as splitting a hair infinitesimally,
but then you must have the hair before yon
can divide it. From the necessity of the case
they have involved the question in a maze
which is really of little use. If I am mis
taken in supposing that this act of 1794 de
signed to forbid this labor on the Lord's day,
then I am mistaken in my argument; if not,
the argument is conclusive.
Now these gentlemen have a house.
Judge Now,
himself referred to that in
10th Harris; but my time is too precious to
give you the citation. These gentlemen
have a house. They are not accustomed to
make these social compromises that these
defendants advise. I have not, as a lawyer,
advised my clients to make any compromise,
socially, politically or morally, with the devil.
I have read of the terms old father Adam
made with him, and it has satisfied me en
tirely. These gentlemen have a house, and
they say, as Judge Woodward said, they have
a right, on the Lord's day, to convene their
children, read the Scriptures to them, and
expound the Scriptures to them. It seems
to me to be reasonable in a Christian corn.
munity—perhaps not in a Pagan or Turkish
one—to have the right to call them together
to engage in acts of devotion with them.
They say they have been driven from
the rooms in which' they have been accus
tomed to assemble, into other rooms, and
thus the value of their property has been
diminished. There is just a line here on
this subject, from a very venerable gentleman
who is known to the whole community, Mr.
George W. Mears:—" I own the house in
which I live. -I believe it has depreciated
in value since the cars have been running on
Sundays. I would now sell it for less than I
would have done before the cars commenced
running on that day, in order that I might
move to a street where the. quiet of the Sab
bath-day is not broken by the running of the
car's."
A gentleman of the bar, well known to you
all, Mr. John Hanna, voluntarily gave us ins
sworn testimony :
" I own the house I live in. Since the
cars commenced to run on Sunday, I have
concluded to sell it; if I were about to pur
chase a house now, I certainly would not buy
one for a residence on a street where the cars
run on Sunday."
Here are gentlemen who testify to a depre
ciation. What matters it if the other side