The opinion of the court was delivered by
Lowrie, J.
The declaration that Christianity is part of the law of the land, is a summary description of an existing and very obvious condition of our institutions. We are a Christian people, in so far as we have entered into the spirit of Christian institutions, and become imbued with the sentiments and principles of Christianity; and we cannot be imbued with them, and yet prevent them from entering into and influencing, more or less, all our social institutions, customs, and relations, as well as all our individual modes of thinking and acting. It is involved in our social nature, that even those among us who reject Christianity, cannot possibly get clear of its influence, or reject those sentiments, customs, and principles which it has spread among the people, so that, like the air we breathe, they have become the common stock of the whole country, and essential elements of its life.
It is perfectly natural, therefore, that a Christian people should have laws to protect their day of rest from desecration. Regarding it as a day necessarily and divinely set apart for rest from [348]*348worldly employments, and for the enjoyment of spiritual privileges, it is simply absurd to suppose that they would leave it without any legislative protection from the disorderly and immoral. The sentiment that sustains it must find expression through those who are elected to represent the will of their constituents.
So far as relates to the criminality of the act which we are now to consider, the mind of the state is expressed in the law that forbids all worldly employment on the Lord’s day, under a penalty of four dollars. Being a law to enforce and protect a general and most valuable custom, it is not to be subjected to a narrow interpretation. But does the law, besides the penalty which it expresses, involve another, that he, who, while breaking the Sabbath, suffers wrong from the act of another, shall be without remedy ? This would seem to be contrary to the rule that required that penal statutes shall be construed strictly as to the punishment, so that it shall not be enlarged by construction.
It is supposed, however, that this rule does not apply to this law, seeing that, where contracts are made on the Lord’s day, the parties incur the penalty, and besides this neither of the parties can recover on the contract. But this instance falls under another rule that executory contracts made under forbidden circumstances, or on forbidden subjects, institute no legal duty, and therefore a legal claim for a breach of duty must have some other foundation. They are not in fact void, if the parties perform them in good faith. They are then executed contracts, and the state will protect title thus created, against all wrong-doers: 15 Shepley 463. An assignment for the benefit of creditors is void so far as executory, if not recorded according to law; but valid, so far as executed, before it is objected to by any one having a right: 5 W. & Ser. 100. A deceit practised in making a forbidden contract is remediless, because the incident goes with the principle: 12 Met. 24. So, of an insurance on a prohibited voyage: 1 Doug. 241; In such cases, if there be any relation between the parties, it depends upon the facts, and not upon the contract.
But the defence here is mainly put upon another principle, that if a man, by his own fault, contribute to the accident, he cannot recover. Even this rule has some qualifications. A sailor getting an excessive flogging for an offence, or one who gets an excessive beating in an affray begun by himself, or the excessive abatement of a nuisance, or one who is injured by a spring-gun, while trespassing on another man’s ground, 4 Bing. 628, is not without remedy; for the law requires him, who takes upon himself the remedy of retaliation or punishment, even in cases of apparent necessity, to see that the measure of it be not excessive. Apply the same reasoning to the present case, and the defendant is not justified — for he occasioned a penalty much more severe than that of the statute.
[349]*349There are, no doubt, cases wherein an injured party will be remediless, because of his own fault, even when that fault does not contribute to the accident. A vessel engaged in the slave trade, piracy,. or smuggling, and injured by another, — or the keeper of a gambling-house, injured in his business by a neighbouring nuisance, could have no remedy. Not, however, because the persons are out of the protection of the law for their offences, nor because their illegal business brought them to the place of danger; but because their business itself, with all its instruments, is outlawed. Prohibited contracts, prohibited trades, and prohibited things, receive no legal protection; but persons are never outlawed, and their lawful property'is under the protection of the state, even when used improperly.
It is very apparent, therefore, that in considering this case, we must be careful in our distinctions. The fourth and eighth commandments are not confounded, because a man steals on the Sabbath day, — and on a conviction for Sabbath breaking, we do not punish for theft. And so the penalties for carelessness and for Sabbath breaking, are totally distinct, and the laws out of which they arise, are distinct' in all their purposes and features.
The law relating to the Sabbath defines a duty of the citizen to the state, and to the state only; and hence it may be very proper for the state to refuse a remedy against itself or against any of its subdivisions, where an injury arises from bad roads, to one who is unlawfully travelling on the Lord’s day: 10 Met. 363. But we should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he too is a public offender: 34 Maine 116; 5 Porter 208. An insurer of a ship is not relieved from his contract, because the master started on his voyage in violation of the law for the protection of sailors’ rights: 7 Man. & G. 457. Nor can a buyer of spirits refuse payment, because the seller violated the revenue laws in the form of the sale: 3 Barn. & Ad. 221. A man may be punished for getting drunk, or for riding furiously along the street; and yet, if in such circumstances, and not because of any carelessness, he fall into a ditch, the man who improperly dug it could have no excuse. A breach of duty to the state does not necessarily involve a breach of duty to the defendant in such cases, and when it does not, it is simply an irrelevant fact, unless the law gives it relevancy in some express form.
The law requiring care in avoiding accidents, defines a duty to individuals only. It is most frequently applied to travel upon highways of land or water; though it applies to all cases in which persons are so near together that they are liable to injure each other by accident. It recognises the relation thus naturally arising, and declares the law of that relation to be mutual care. [350]*350The rule that the party who sues must be without fault himself, has no other object than to prevent such fault, in circumstances of danger, as may contribute to the injury. It does not allow a party who does not take proper care of himself in such circumstances, to demand from another compensation for an injury which he may have himself occasioned.
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The opinion of the court was delivered by
Lowrie, J.
The declaration that Christianity is part of the law of the land, is a summary description of an existing and very obvious condition of our institutions. We are a Christian people, in so far as we have entered into the spirit of Christian institutions, and become imbued with the sentiments and principles of Christianity; and we cannot be imbued with them, and yet prevent them from entering into and influencing, more or less, all our social institutions, customs, and relations, as well as all our individual modes of thinking and acting. It is involved in our social nature, that even those among us who reject Christianity, cannot possibly get clear of its influence, or reject those sentiments, customs, and principles which it has spread among the people, so that, like the air we breathe, they have become the common stock of the whole country, and essential elements of its life.
It is perfectly natural, therefore, that a Christian people should have laws to protect their day of rest from desecration. Regarding it as a day necessarily and divinely set apart for rest from [348]*348worldly employments, and for the enjoyment of spiritual privileges, it is simply absurd to suppose that they would leave it without any legislative protection from the disorderly and immoral. The sentiment that sustains it must find expression through those who are elected to represent the will of their constituents.
So far as relates to the criminality of the act which we are now to consider, the mind of the state is expressed in the law that forbids all worldly employment on the Lord’s day, under a penalty of four dollars. Being a law to enforce and protect a general and most valuable custom, it is not to be subjected to a narrow interpretation. But does the law, besides the penalty which it expresses, involve another, that he, who, while breaking the Sabbath, suffers wrong from the act of another, shall be without remedy ? This would seem to be contrary to the rule that required that penal statutes shall be construed strictly as to the punishment, so that it shall not be enlarged by construction.
It is supposed, however, that this rule does not apply to this law, seeing that, where contracts are made on the Lord’s day, the parties incur the penalty, and besides this neither of the parties can recover on the contract. But this instance falls under another rule that executory contracts made under forbidden circumstances, or on forbidden subjects, institute no legal duty, and therefore a legal claim for a breach of duty must have some other foundation. They are not in fact void, if the parties perform them in good faith. They are then executed contracts, and the state will protect title thus created, against all wrong-doers: 15 Shepley 463. An assignment for the benefit of creditors is void so far as executory, if not recorded according to law; but valid, so far as executed, before it is objected to by any one having a right: 5 W. & Ser. 100. A deceit practised in making a forbidden contract is remediless, because the incident goes with the principle: 12 Met. 24. So, of an insurance on a prohibited voyage: 1 Doug. 241; In such cases, if there be any relation between the parties, it depends upon the facts, and not upon the contract.
But the defence here is mainly put upon another principle, that if a man, by his own fault, contribute to the accident, he cannot recover. Even this rule has some qualifications. A sailor getting an excessive flogging for an offence, or one who gets an excessive beating in an affray begun by himself, or the excessive abatement of a nuisance, or one who is injured by a spring-gun, while trespassing on another man’s ground, 4 Bing. 628, is not without remedy; for the law requires him, who takes upon himself the remedy of retaliation or punishment, even in cases of apparent necessity, to see that the measure of it be not excessive. Apply the same reasoning to the present case, and the defendant is not justified — for he occasioned a penalty much more severe than that of the statute.
[349]*349There are, no doubt, cases wherein an injured party will be remediless, because of his own fault, even when that fault does not contribute to the accident. A vessel engaged in the slave trade, piracy,. or smuggling, and injured by another, — or the keeper of a gambling-house, injured in his business by a neighbouring nuisance, could have no remedy. Not, however, because the persons are out of the protection of the law for their offences, nor because their illegal business brought them to the place of danger; but because their business itself, with all its instruments, is outlawed. Prohibited contracts, prohibited trades, and prohibited things, receive no legal protection; but persons are never outlawed, and their lawful property'is under the protection of the state, even when used improperly.
It is very apparent, therefore, that in considering this case, we must be careful in our distinctions. The fourth and eighth commandments are not confounded, because a man steals on the Sabbath day, — and on a conviction for Sabbath breaking, we do not punish for theft. And so the penalties for carelessness and for Sabbath breaking, are totally distinct, and the laws out of which they arise, are distinct' in all their purposes and features.
The law relating to the Sabbath defines a duty of the citizen to the state, and to the state only; and hence it may be very proper for the state to refuse a remedy against itself or against any of its subdivisions, where an injury arises from bad roads, to one who is unlawfully travelling on the Lord’s day: 10 Met. 363. But we should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he too is a public offender: 34 Maine 116; 5 Porter 208. An insurer of a ship is not relieved from his contract, because the master started on his voyage in violation of the law for the protection of sailors’ rights: 7 Man. & G. 457. Nor can a buyer of spirits refuse payment, because the seller violated the revenue laws in the form of the sale: 3 Barn. & Ad. 221. A man may be punished for getting drunk, or for riding furiously along the street; and yet, if in such circumstances, and not because of any carelessness, he fall into a ditch, the man who improperly dug it could have no excuse. A breach of duty to the state does not necessarily involve a breach of duty to the defendant in such cases, and when it does not, it is simply an irrelevant fact, unless the law gives it relevancy in some express form.
The law requiring care in avoiding accidents, defines a duty to individuals only. It is most frequently applied to travel upon highways of land or water; though it applies to all cases in which persons are so near together that they are liable to injure each other by accident. It recognises the relation thus naturally arising, and declares the law of that relation to be mutual care. [350]*350The rule that the party who sues must be without fault himself, has no other object than to prevent such fault, in circumstances of danger, as may contribute to the injury. It does not allow a party who does not take proper care of himself in such circumstances, to demand from another compensation for an injury which he may have himself occasioned.
In cases of this kind, the law does not inquire at all into the plaintiff’s fault, except on proof that the defendant did the act from which the injury arises. Then, if it appear that the injury was not wilful, 5 W. & Ser. 24, and then only is it relevant to inquire whether the plaintiff, with due care, might not have avoided the injury, and this shows the only kind of fault which is admitted to silence his complaint. It must be a failure of duty under the circumstances of danger; a failure of duty to the party who caused the danger, so that it may be said that he brought the injury on himself.
We cannot see that Sabbath breaking is a fault of this description. If there is any secret and mysterious connexion between such a fault and the event here complained of, then it falls under the rule eausa próxima, non remota speetatur, for the law judges of such causes only “ by the outward appearance.” It is only when we can discover no human fault contributing to the accident, that the law calls it an act of Providence.
It is said, however, that had it not been for the plaintiff’s transgression of the law, his boat would not have been at the defendant’s dam when it was. True enough; and so might it be said of boats and rafts arriving at Pittsburgh on Monday, — they would not have been there on Monday, had they not run on Sunday, and would have been saved from a certain accident then happening them. But when we are investigating the causes or conditions of an event, we investigate all the circumstances of the time and place, and ascertain their influence. But the time is not one of the circumstances of itself, and time cannot be a cause of anything except figuratively.
We acquire no additional light by the suggestion that the plaintiff had no right of highway on the Lord’s day, for his worldly business; for this is only asserting one of the incidental results of the law. It could just as truly be said that a man’s right to his farm, or factory, or boat, undergoes a similar qualification ; yet no doubt he would have redress against any one injuring them wilfully or carelessly. Besides, it was not for the protection of roads, but of the Lord’s day, that the law was passed, and the plaintiff could not have been punished a^ for an unlawful use of the road.
The maxim of the Roman law, in pari delicto, &c., has no influence in the case. As the Romans applied it, it is a mere logical rule that, where the judgment of the law is balanced on the evi[351]*351denee, that suit must fail. Then, quare non potentior sit, qui teneat, quam qui persequitur ? Dig. 45, 1, 91, 3.
It is admitted here, that in a ease of wilful trespass, this defence could not be allowed; and we may take this admission as indicating a definition of the rule. Then, in any other case, it will be allowed, and all freight and wages earned by or on steamboats, are tainted with illegality, if partly earned on the Lord’s day; no insurance covers the risks of running on that day on inland highways, and all accidents must be absolutely charged to the carriers. Perhaps, if these and other consequences had been suggested to the counsel, they would have accepted them ; but we cannot, for this would be adding penalties to the law that were not thought of when it was passed. Important as is the day of rest for man ; important as are the religious institutions connected with it,.and the civilization and moral refinement that grow out of and depend upon it and its institutions; important and necessary for all man’s highest and noblest aims as is the religion, which, bn that day, sends forth its strongest influence, we cannot protect it by any such latitudinarian interpretation of the law we are appointed to administer as is expected of us here.
Judgment reversed, and a new trial awarded.