of an executory devise at a future period, and after the death of the testator. The feudal principle of taking per capita, was in the way in the case of the lessee of Smith v. Folwell, 1 Bin. 546.

It would seem to me that the legislature are but little in the way of reading our decisions; otherwise their attention could not have been but drawn to this subject long before this time.

"But by Stat. 22 Car. II. c. 7. no person is allowed to work on the Lord's day," &c. IV Bl. Com. 63.

"To work" is not an expression in the statute; though it is in the 8th commandment given to Moses; "shalt not do any work." Exod. c. 20, sec. 10. The words of the statute Chas. II. c. 7. are that, "no tradesman, artificer, workman, or labourer, or other person whatsoever, shall do or exercise any worldly labour, business or work of their ordinary calling on the Lord's day." It has been holden that it is not unlawful, under this statute, to bargain for the sale of a horse, the vendor not being a horse-jockey; and so, not in the way of his ordinary calling. 1 Taunt. 130. The punishing the offendor in Connecticut for letting his beer work, was carrying the matter to the other extreme.

Our act of assembly of 1705, copied in part from that of Cha. 2d. c. 7. judiciously omits the words ordinary calling, and steers clear of this difficulty, or rather absurdity, in distinguishing work done in the way of a man's ordinary calling, from that of work done in any other way; and in the act of assembly 22d Ap. 1794, which is the last act, and supplies all antecedent, as to this particular, the words are, if any per

E E

son do, &c. such persons so offending shall, &c. By these acts all wordly lalour is prohibited, whether in the way of a man's ordinary calling or otherwise; and which, doubtless, also was the intent of the statute, Cha. II. c. 7; but, as penal laws are to be construed strictly, the judges have thought themselves warranted in taking the distinction, or bound to take it. For it is under the statute alone that it could be cogniz able not being a misdemeanor at common law; though as to this, there has been some contrariety of opinion. It depends upon the question whether the commandment given to Moses is in force under the christian dispensation. It cannot be denied but that the reason of the institution goes some length in extending it to all times, and under all dispensations; ." In six days the Lord made heaven and earth, &c. and rested the seventh; wherefore the Lord blessed the Sabbath day and hallowed it."* But the author of our religion, would seem to have claimed the authority of dispensing with the keeping it; at least, with the Jewish strictness.

"The son of man is lord also of the sabbath." Mark 2. sec. 28. Certain it is that the Jewish Sabbath does not appear to have been kept, or at all attended to under his immediate disciples; but whatever respect was paid in the observance of any day, it was to the first day of the week, the hebdom of the resurrection, and so called the Lord's day. On this day the brethren met to "break bread," as appears from Acts 20. sec. 7; "upon the first day of the week when the disciples came to break bread," &c. and this day appears to have been regarded, and no other day, from that time forward, whether for the purpose of meeting, and confirming each other in the faith, making charitable collections for the poor brethren; or settling matters of order and discipline in the church; or for the purpose of joining in religious devotion.

In the case in Taunton, 130, the counsel on one side argue that, “no canon, no opinion is to be found in any writer upon Ecclesiastical law, treating bargains made on a Sunday as illegal. The Jewish law prohibited them, but several of the councils have expressly declared that christians shall not

* Exod. 20. sec. 11.

judaise." On the other side it was contended "that a sale on Sunday was illegal at common law, that in christianity as well as judaism, the 4th commandment is retained; and that which is an offence against it, when committed by a Jew, is equally such when committed by a Christian; that no case had been cited where a contract made on a Sunday has been enforced by law."

The court take notice that it is said by Lord Coke, that the Christian Religion is part of the common law; 2 Inst. 220. Where he cites a law of King Athelstan, dic autem dominico nemo mercaturam facito; id si quis egerit, et ipsa merce et trigenta præterea solidis mulctatur; and note that no merchandise should be on the Lord's day. But it does not appear, say the court, that the common law ever considered those contracts void which were made on a Sunday.

That the contract should not be void, and yet the act a misdemeanor as contra bonos mores would seem to be an inconsistency. But the legislature in England, as well as here having legislated on the subject, it can only be according to the prohibitions that it is a misdemeanor or the act void.

The Stat. Cha. 2. c. 7. goes farther than merely prohibiting secular work and employment, and enjoins what is to be done on that day; "Every person or persons, shall on the Lord's day, apply themselves to the observance of the same, by exercising themselves thereon in the duties of piety and true religion publicly and privately." But by our act 22 April, '94, it is left to the conscience of the party, or the censure of the religious society to which they belong, if they belong to any, as to the duties in which they may employ themselves. It restrains only the doing worldly labour on that day. The compact of our political association embracing jews, or seventh day baptists, or others who do not use that day for the purposes of devotion, must be comprehended, 50 far as respects the exercise of public employment of a worldly nature.

It may be observed that whether of divine or civil institution merely, the observance of one day in seven, is a great political good; and it cannot interfere with the rights of

conscience in jew or others, who are left at liberty to observe other days of their own chusing. If it is even at the expence of being thrown out of a portion of time for their occupa tions, in addition to that out of which they throw themselves, private convenience must give way to general good.

IV Bl. Com. 136.

THE Commonwealth v. Dennis and others. At the trial of this indictment, the testimony for the commonwealth being closed, it was moved on behalf of one of the defendants, that the jury pass upon him (that defendant) in the first instance, nothing having been proved against him. But the court would not say that there was no evidence; on the contrary, there was evidence upon which it was not impossible but that the jury might convict. But why not let the jury pass upon him that in case even of conviction; the of fence charged, not being of such a nature as to exclude his testimony even on conviction, he might be sworn a witness for the other two defendants. They had an interest in his testimony, and it had deprived them of it in joining them in the same indictment. The inclination of my mind, at first, on general principles of justice, was to let the jury pass upon this defendant, against whom the least was proved, and in whose case some doubt of his acting might be thought to exist. But more advised, I thought proper to refuse the motion, and directed the verdict to be taken against the

whole.

I saw a difficulty in the particular case. For the indict ment being for a riot, if the first was convicted it would be of a riot; and yet by his testimony, I mean the convicted, the remaining two might be acquitted of the riot, by his tes timony, an assault and battery only proved, which would involve an inconsistency upon the record.

The same in the case of conspiracy, where two being necessary to constitute the offence, the conviction of one and