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supplied, and all social advantages must be open to him. Until these things are achieved his action must be more or less imperfect and base. You may, indeed, frighten him into some show of decorum by representations of God as an infallible policeman, intent always on evil-doers, but success in this way is very partial. The church itself, in fact, which authorizes these representations, incessantly defeats their force by its doctrine of absolution, or its proclamation of mercy to the most successful villainy, if only repentant at the last gasp. Not only the church, but the whole current of vital action defeats these safeguards. Thus, our entire system of trade, as based upon what is called "unlimited competition," is a system of rapacity and robbery. A successful merchant like Mr. A. or B. is established only on the ruins of a thousand unsuccessful ones. Mr. A. or B. is not to be blamed individually. His heart is destitute of the least ill-will towards the man whom, perhaps, he has never seen, but whom he is yet systematically strangling. He acts in the very best manner society allows to one of his temper, or genius. He feels an unmistakably divine aspiration after unlimited power; a power, that is, which shall be unlimited by any outward impediment, being limited only by his own interior taste or attraction. He will seek the gratification of this instinct by any means the constitution of society ordains: thus, by the utter destruction of every rival merchant, if society allows it.

So much for Mr. A. or B. regarded as in subjection to nature and society, or as still seeking a field for his personality. But this is not the final and divine Mr. A. or B. The final and divine Mr. A. or B. will have subjected both nature and society to himself, and will then exhibit, by virtue of that very force in him, which is now so destructively operative, a personality of unmixed benignity to every one. The voice of God, as declared in his present instincts after unlimited power, bids him as it bade the Israelites of old, to spoil the oppressor, to cleave down every thing that stands in the way of his inheri tance. But suppose him once in possession of that inheritance; suppose him once established in that good land which flows. with milk and honey, and which God has surely promised him, and you will immediately find the same instinct manifested in measureless and universal benediction.

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The Artist, then, is the Divine Man, the only adequate image of God in nature,- because he alone acts of himself, or finds the object of his action always within his own subjectivity.

He is that true creature and son of God, whom God pronounces very good and endows with the lordship of the whole earth. It would not be difficult, in the writer's estimation, to show the reason why the evolution of this man has required the whole past physical and moral experience of the race, nor yet to show how perfectly he justifies all the historic features of Christianity, standing symbolized under every fact recorded in the four gospels concerning the Lord Jesus Christ. In some レ other place, or at least on some future occasion, the writer will undertake these tasks.

ART. IV. VALIDITY OF INSTRUMENTS AND CONTRACTS EXECUTED ON SUNDAY.

It is often said, especially when conversation takes a jocular turn, that among the old "Blue Laws" of Connecticut, or rather of New Haven, was one which forbade husbands to kiss their wives, or mothers to caress their children, on Sundays. The prohibition to eat mince pies on Christmas is perfectly authentic, but no such Sunday act as that above referred to anywhere now appears of record. The circulation of the story must be explained as what the Germans call a myth, embodying the popular idea of the special stringency of Connecticut Sunday legislation. That species of legislation, however, was and is by no means confined to Connecticut, or even to New England. There is no more lasting and widely diffused memorial of the partial, but by no means inconsiderable, success of the Puritans, in their memorable effort to reconstruct society upon the Jewish model, than the laws for the observance of "the Lord's day," which still maintain their place in the English and Scottish statute books, and which are yet to be found, in all their Jewish glory, among the existing legislative enactments of nearly every state in our American union. We must except, however, French Louisiana, and possibly one or two of the

newer states.

It does not appear that before the time of the Puritans, any Christian community ever found it necessary to enforce by law so strict an observance of the Sabbath. Christianity, as it gradually supplanted Paganism, adopted many of its forms. Instead of imitating the austere, unsocial, unproductive Jewish

observance of Sunday, which consisted, so far, at least, as the law of Moses goes, in mere idleness, the more agreeable custom of the Pagans was adopted, among whom the solemn days were festivals, in which to religious worship were added games, amusements, and social intercourse. For an observance of Sunday like this, the natural disposition of men towards worship and social enjoyments was a sufficient guarantee without laws. To enforce an observance according to PuritanicoJewish ideas, it is no wonder that laws became necessary. We are not aware, indeed, that any of our Anglo-Saxon communities, whose natural temperament, by the way,- harsh, domineering, rapacious, enthusiastic, and exclusive, peculiarly adapted them for imbibing and reproducing Jewish ideas, ever went the length of enacting that the man who gathered sticks on the Sunday should be stoned, though "the great Cotton' did go the length of proposing such a law for Massachusetts; but they did provide, by enactments sufficiently stringent, for the exclusive devotion of the day to the propagation of Puritan ideas. By being put into the stocks on Sunday,- to say nothing of the discipline of week-days, children, under this system, were gradually tormented into sufficient harshness of disposition and unfeeling austerity to qualify them for keeping up the system by inflicting on their own children what they, as children, had suffered.

In practice, as Puritanism has gradually faded out, these laws have lost a good deal of their efficacy, and are more and more, every day, disregarded with impunity. Massachusetts, especially, is greatly indebted to her Supreme Court for obstacles put in the way of those fanatics, who, from time to time, filled with new impulses of zeal, strive to avail themselves of existing enactments to go back towards the old theocracy which ruled this goodly state during the first sixty years of its colonial existence. In the year 1816, or thereabouts, at a time when Parker and Jackson sat together on the bench, shocked by the increase of Sunday travelling, some of our modern Puritans undertook to arrest all Sunday travellers, and, under a statute still in force, to subject them for their sins to certain penalties. But the Supreme Court put a damper on these proceedings by deciding, (13 Mass. R., 324, Pearce vs. Atwood,) in spite of the able argument on the other side by the late Governor Strong, that to issue a warrant and make arrests on Sunday for breach of the Sunday laws were just as much prohibited under the statute as any other

species of secular labor. They accordingly sustained an action for damages against a justice who had undertaken to issue these Sunday warrants, thus giving a very fair specimen of judicial adroitness in hanging fanaticism with its own rope. Two or three years before, while Parsons still sat on the bench, a person who had been cheated out of a debt in Connecticut, by the decision of the Supreme Conrt of that state that contracts made on Sunday were not binding, undertook to profit by his experience of Connecticut law and gospel, by setting up the same defence in Massachusetts, to a note which he himself had signed on Sunday, very likely with the intention, at the time of signing, of thereby escaping payment. The lawyer who set up this defence-Lincoln, afterwards himself a judge, and subsequently Governor of the state, — (10 Mass. R., 312, Geer vs. Putnam,) seemed rather ashamed of it, excusing himself by the express instructions of his client, founded on his experience in Connecticut; and the Court, apparently without any argument,-Parsons recollecting that the same defence had been raised and overruled in another county,summarily disposed of the matter by deciding against the objection. This decision was expressly approved in a subsequent case, (16 Pick., 247, Clap vs. Smith); and so in this commonwealth, until very recently, the law was supposed to stand.

There is, in fact, no little need, in democratic as well as in aristocratic or monarchial governments, for learned, judicious, and liberal courts gradually to make those modifications in the law which enlightenment requires. If English jurisprudence has been gradually changed from a system of barbarous usages into a code which, on the whole, will stand favorable compar ison with any that ever existed, that change is far more due to the courts than to the legislators. In spite of the ignorance, the negligence, in many cases in spite of the obstinate prejudices and opposition of the legislators, the English courts have gradually transfused into the dry, narrow, technical body of the Saxon-Norman feudal law, those comprehensive principles of equity first clearly expounded by the Roman jurisconsults and transmitted to us in Justinian's code, and along with them the usages of modern commercial Europe, not less admirable for their justice and good sense, which constitute the mass of our mercantile law. To accomplish beneficent purposes like these, and at the same time to escape the imputation of setting the legislative will at defiance, the courts have often been

obliged to resort to pretty sharp constructions, indeed to lay down a system of rules for judicial interpretation liable, in certain respects, to the charge of quibbling and hair-splitting; sometimes sadly abused; but generally made use of for the defence of right and justice against the brute force of absurd or ignorant legislation. Craft, indeed, in the order of nature, is the weapon of the shrewd and weak against the tyranny of the ignorant and strong. But our courts, if they have often been as subtle as serpents, have also, for the most part, to their honor be it said, been as harmless as doves.

There was and is, in the case of the Sunday laws now under consideration, the more justification for the employment of a little legal craft,-just as much a vested right and constitutional authority on the part of the courts, as that of making statutes is on the part of the legislature, because our legislators are actually afraid to do that in the matter to which their own sense of propriety, their own private inclination, and the inclination, in fact, of the great mass of the public, would naturally lead them. Which party soever happens to be in power, it does not choose, by proposing the repeal of these laws and others of a like character, to give to its opponents the opportunity to open against it the floodgates of religious prejudice and objurgation. The fear of party leaders to draw down upon themselves the furious assaults of a small band of fanatics actually keeps on our statute books a very considerable number of laws, unhappy legacies of times past, which, if now attempted to be enacted for the first time, could not get one voice in ten in their favor. A court which supplies the timidity of the legislature by substantially nullifying such laws, does in reality but carry out the will of the people. It is, indeed, this carrying out of the popular will, this embodying into the law the enlightened public sentiment of the day, which forms the true justification of that which some "pseudo-democrats" have denounced under the name of "judicial legislation," but which, notwithstanding, belongs to the best legislation we have had, and making, as it does, a part of our legal and constitutional system, is just as legal and constitutional as any other.

Timidity, however, is not exclusively the fault of legislators. Judges, notwithstanding the life term for which they hold their offices, are apt to be affected by it. A man of great and surpassing genius,-a Mansfield for instance, will sometimes march boldly ahead and draw the public after him, but it is very seldom that a Mansfield sits upon the bench; and

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