WAGGONERS AND SABBATH OBSERVANCE.

Evening Star, Issue 2820, 2 March 1872, Page 2

WAGGONERS AND SABBATH OBSERVANCE.

The case of the Police v. Lockwood, which was brought to test the question whether carriers can legally drive their waggons on tho Sabbath-day, was resumedintheMayor’s Court tins morning. At the first hearing, on the 27th ult., Mr Stout, who appeared for the defendant, submitted as non-suit points, that the Sunday .'Observance Ordinance, under which the information was laid, was ultra vires , inasmuch as the Provincial Council had no authority to pass it ; that it attempted to overrule 29 Car. 11., chapter 7, if that statute was iu force in the colony ; that driving a waggon was not “transacting business, the offence created by the Ordinance. On that occasion the Commissioner of Police undertook to have the case for tho prosecution represented by counsel, and to-day Mr W. D. Stewart appeared for that purpose. He said ho understood the object of the prosecution was to ascertain whether there was any law in force applicable to a case of this kind. He thought it must be at once conceded that the Ordinance of 1863 was not applicable ; the object of that Ordinance was to meet a number of offences which were not provided for by previous legislation at home, and he had to ask his Worship to amend the information in such a way as to raise the real question at issue. His Worship observed that having carefully considered the case he was prep rred to give judgment on the points submitted by Mr Stout. He was clearly of ©pinion that the present information would not lie, although it could be made in another form He thought the better plan would be to give judgment, which he was prepared to do, and allow the police to use their own judgment in any future cases which might crop up Mr Stewart thought that undesirable, as the prosecution had no desire to press a fine He thought it would be well to at once settle the point whether or not there was any law to meet a case of this kind—on which point he did not think there could be the slightest doubt. His Worship : I don’t think there is any doubt upon that point. Mr Stout : But I have very grave doubts. Mr Stewart again pointed out that by amending the information, which power his Worship held, the question could be satisfactorily disposed of. Mr Stout pointed out that if his friend wished to raised tho question, he could get up another case ; and. if the Government were anxious to have the point settled, they could afford to pay counsel on both sides. Without the consent of his client, which be had not, he could not consent to an amendment, nor could his Worship now amen I the information. Mr Stewart, in intimating his intention to withdraw the case, pointed his Worship to the case of Collier v. Milburn, to show that the Ordinance was not ultra vires. He referred to that ease because the Ordinance might get a reputation which it did not deserve. Mr Stout, in Citing the Cons.itution Act, had overlooked the fact that by it Provincial Councils were empowered to create Ordinances for the punishment of offences under felonies, and the Ordinance being for a misdemeanor, did not exceed that power. His Worship then gave judgment as follows :—“ In my opinion the Provincial Ordinance, so fai as it deals with the offence of Sunday trading, is not ultra vires , and does not create a new offence, but only provides a new punishment for an offence already created by the Act 29, Car. 11, c. 7, which in my opinion is in force in this Colony. The omission in the Provincial Ordinance of all reference to the exception in favor of ‘ works of necessity ’ and charity, does not, in my opinion, produce any conflict between the two enactments. Both bc-iug in pari materie, they must, according to a well-known rule of construction, be read together, and thus the full benefit of the exception can be claimed by an alleged offender. I am also of opinion the Act of Charb-s does apply to this Colony. The object of that Act, as far as I can see, was to prevent the desecration of the Lord’s Day, the observance of which is inculcated by the Christian religion, which, it seems to me, is part of the law of England I see nothing iu such a law to make it inapplicable to the circumstances of a British Colony in 1840 that being the tost furnished by the English Laws Act, 1858. With regard, however, to tho present information, it appears to me it should have been laid (in somewhat different language) under the Act of Charles ; because, iu my opinion, driving a waggon through the streets on Sunday is not within the purview of the Provincial Ordinance, not coming. I think, fairly within the definition of 1 trading,’ ” Mr Stewart mentioned that a case had been decided iu Victoria under the Act of Charles. A wool sorter had been fined, notwithstanding hie i lea that ho had to attend

to his wool the Sabbath day in order to prevent spontaneous combustion. If the Act was in force in Victoria, it must be held to be in force hpre. Mr Stout observed that after bis Worship’s decision that Christianity was the law of the land, he feared the police would have enough to do, for there was an Act of William in force, by which it is enacted “th it if any person or persons having been educated in, or at any time having made profession »f the Christian religion within this realm shall, by writing, printing, teaching, or advised speaking, deny anyone of the holy persons in the Trinity to be God, and shall ft’-sert or maintain that there are more gods than one, or shall deny the Chritiau religion to be true, or the Holy Scriptures of the Old and New Testament to be of Divine authority, and shall, upon indictment and information in any one of His Majesty’s Coui-ts at Westminister or at the assizes be thereof lawfully convicted by the oath of two or more credible witnesses, such person or persons shall” be subject to certain penalties. He expected that the Provincial Government, seeing that Christianity was the law of the laud, would have to get a new police force at once. The case was withdrawn, his Worship declining to award the defendant c >sts.