COMMONWEALTH vs. EDWIN M. WHITE.

HAMMOND, J. The main question is whether the evidence would warrant a finding that the work in question was one of "necessity" within the meaning of that word as used in the statute, (St. 1904, c. 460, §2,) which, with certain exceptions not here material, makes it a criminal offence to do on the Lord's day "any manner of labor, business or work, except works of necessity and charity."

In construing this statute it is to be borne in mind that so far as material to the question before us, it is simply the continuation of a law which from a very early time in the history of the Colony has been constantly upon our statute books. It is one of a series of statutory provisions enacted to secure the proper observance of the Lord's day, as understood by our forefathers. Their idea of the Lord's day, the manner in which it should be spent, and the object of the system of statutes passed from time to time to secure its proper observance are set forth in the various preambles to those statutes. One of these is in the following language: "Whereas it is the duty of all persons, upon the Lord's Day, carefully to apply themselves, publickly and privately, to religion and piety, the prophanation of the Lord's Day is highly offensive to Almighty God, of evil example, and tends to the grief and disturbance of all pious and religiously disposed persons; therefore," etc. See Prov. St. 1760-61, c. 20, § 1; 4 Prov. Laws, (State ed.) 415. Perhaps the most instructive preamble is that which precedes St. 1791, c. 58, which was the first

Page 581

general statute passed on this subject after the adoption of our State Constitution. It reads as follows: "Whereas the observance of the Lord's Day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labor and the cares of business; for moral reflections and conversation on the duties of life, and the frequent errors of human conduct; for public and private worship of the Maker, Governor and Judge of the world; and for those acts of charity which support and adorn a Christian society: And whereas some thoughtless and irreligious persons, inattentive to the duties and benefits of the Lord's Day, profane the same, by unnecessarily pursuing their worldly business and recreations on that day, to their own great damage, as members of a Christian society; to the great disturbance of well disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life: Be it therefore enacted," etc. Such was the idea of the Lord's day for the observance of which this system was devised.

It is argued by the defendant that the times have changed and with them have also changed ideas, manners and customs, and that what was formerly regarded as unnecessary may now be regarded as necessary. To a certain extent this may be true. In so far as changes in physical matters affect the question of necessity, they may be properly considered. But changes in the view of people as to the nature of the Lord's day, or as to the manner in which it should be spent, whether such changes are for the better or for the worse, are not to be considered. So far as respects such changes alone the word "necessity" has the same meaning as when first inserted in this system of statutes. It was originally inserted to secure the observance of the Lord's day in accordance with the views of our ancestors, and it ever since has stood and still stands for the same purpose. In interpreting it, the precepts set forth in the preambles above quoted must still be borne in mind. As said by Ames, J. in Davis v. Somerville, 128 Mass. 594, 596, in speaking of a similar statute: "Our Puritan ancestors intended that the day should be not merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and repose, undisturbed by secular cares or amusements. They saw

Page 582

fit to enforce the observance of the day by penal legislation, and the statute regulations which they devised for that purpose have continued in force, without any substantial modification, to the present time [1880]. Whatever inconveniences might result at the present day from the literal and general enforcement of the Lord's day act, and whatever hard cases may have arisen under it, it is still the law of the land, to be judicially interpreted and administered according to its true intent and meaning, and upon the same rules as would govern us in the interpretation of any other statute." If any changes are to be made they should be made by the Legislature.

In this spirit must this statute be interpreted, and in the light of this method of interpretation it is clear that the defendant has not shown that his work was one of necessity. Without going over the evidence in detail, it is sufficient to say that here there was no extraordinary, sudden and unexpected emergency. The crop was large, it is true, but that it was likely to be large had been known for weeks. The weather was only what might have been expected. The substance of the testimony was simply that in gathering the crop it was somewhat less expensive and more convenient to work seven days in the week rather than six. That is not enough. Such testimony falls far short of showing "necessity" within the meaning of the statute. The case must be classed with Commonwealth v. Sampson, 97 Mass. 407; Commonwealth v. Josselyn, 97 Mass. 411; McGrath v. Merwin, 112 Mass. 467, and similar cases.

The question whether the defendant was engaged in the work was left to the jury under proper instructions. We see no error in the manner in which the court dealt with the defendant's requests for instructions. In view of the nature of the exception to the exclusion of the evidence as to the advice of counsel, we understand it to be waived. [Note p582]

Exceptions overruled.