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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Phillips v Innes [1835] CA 13_778 (19 May 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0778.html
Cite as: [1835] CA 13_778

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SCOTTISH_Shaw_Court_of_Session

Page: 778↓

Phillips

v.

Innes
No. 241.

Court of Session

2d Division T.

May 19 1835

Ld. Jeffrey, Lord Justice-Clerk, Lord Meadowbank, Lord Glenlee, Lord Medwyn

David Phillips and William Phillips,     Advocators.— D. M'Neill— Patton. Daniel Innes,     Respondent.— Robertson— A. M'Neill.

Subject_Profanation—Sabbath—Apprentice.—

Held, that exercising the trade of a barber, by shaving on the Sabbath morning, is not contrary to law; and that an apprentice who, in his indentures to a barber, had bound himself not to absent himself from his work “holiday or week-day,” was compellable to work on Sabbath morning, between the hours of seven and ten.

In July, 1833, the advocator, William Phillips, a minor, entered into the service of the respondent, Innes, a barber in Dundee, who, according to a practice common there, was in use to have his shop open on Sabbath mornings, for the purpose of shaving customers whose convenience it suited to be shaved at that time. Phillips continued to serve for several months, conforming to that practice; and, in March, 1834, he, alongst with his father (the other advocator, David Phillips), as cautioner, entered into an indenture of apprenticeship with Innes, whereby he bound himself to serve him as a faithful and obedient apprentice, and to pay proper attention to his master's business, “and not to absent himself therefrom holiday or week-day, late hours or early, without leave asked and obtained,” under a penalty of £10, over and above performance. William Phillips continued to attend, and do what he was required in his business on Sunday mornings, till Sunday, the 4th of May, when he declined further working on the Sabbath. On this, Innes presented a petition to the magistrates of Dundee, praying them to “Find that the petitioner is entitled to the services of his said apprentice at his trade and business on the mornings of Sunday, and until ten o'clock at least, and ordain him to attend to the petitioner's trade and business accordingly; and, failing his so attending, to decern and ordain him, the said apprentice, and the said David Phillips, as his cautioner, to make payment to the petitioner of the foresaid sum of £10 sterling, of penalty, stipulated by the said indenture; reserving to the petitioner to claim the services of the said apprentice, on the issue of the said indenture, for four days in lieu of the two Sundays before-mentioned, as stipulated in the said indenture; and, in either event, to find the said William Phillips and David Phillips liable in the expenses of this application, warrants, procedure, and decree hereon to follow.”

In support of his petition, Innes contended that the indenture having been entered into with a full knowledge of the practice of his trade, and after personal experience by the apprentice, he could not now refuse to implement the obligation undertaken by him, and that there was nothing in the public law to render such an obligation illegal, inasmuch as from the impossibility of many of the labouring classes, who could not shave themselves, having their beards shaved on Saturday evening it was truly a work of necessity, to enable them to attend divine service with decency and propriety, and inasmuch as this practice was sanctioned by general usage.

To this it was answered—

1. The terms of the indenture do not necessarily imply an obligation to work on the Sabbath, since, if “holiday” be construed to include “Sunday,” then the obligation would be to work equally on that day as on other days, which is not pretended to have been the intention of the parties. But,

2. Even supposing the indenture to be clear, such an obligation would be pactum illicitum, and not enforcible by law. By the act 1579, c. 70, all “handi-labouring” and “working” on the Sabbath-day is discharged without any exception, and by the act 1661, c. 18, “every profanation” of that day is prohibited. The pretext of necessity is obviously absurd; as, although it may be inconvenient, or may keep work-people from the public house, to have their beards shaved on Saturday night, there is no real difficulty in this, and no real necessity for having it done on the Sabbath; and farther, the exception of necessity, can only have a permissive effect, but cannot warrant compulsion. Then, as to the alleged usage, it cannot render legal a practice in itself illegal; while, besides, the usage is local, and is merely that of not interfering to prevent such work; but there is no usage of compelling by force of law the exercise of handicraft working for hire on the Sabbath, in violation of the statutes, and of the law of God, which is also the law of the land.

The magistrates pronounced this interlocutor:—“Finds, that it is matter of public notoriety, that among the great body of mechanics, common labourers, and sea-faring men, residing in, and frequenting this town and its port, a very considerable number are not in the use of shaving their beards with their own hands, but resort to barbers' shops in order to be shaved, many on the evenings of Saturday, but some on the mornings of Sunday: Finds, that however desirable it may be, that the resorting to shaving-shops on the mornings of Sunday should be discontinued, if that could be effected without greater evil, yet it does not appear to be either necessary or expedient, for a due observance of the Sabbath, to forbid the existing usage, so long as the shops continue, as at present, open early in the morning, and closed before the time fixed for the commencement of divine service; for on no occasion have the authorities of the town seen any cause to regard the conduct of the barbers in their vocation, or the conduct of those resorting to their shops on the mornings of the Sundays, as other than decent and orderly, or as apt to give reasonable cause of offence to any man; and it appears very obvious that if working men, who are not themselves accustomed to shave, were forbidden the aid of the barbers in their shops on the Sunday mornings, many decently disposed men would be prevented from frequenting places of worship, and from associating in a becoming manner with their families and friends, through want of personal cleanness; and the attempt to reduce the minor evil might lead to some more serious: Finds, therefore, that in so far as the defender, the apprentice, is called upon to aid his master in shaving his customers on the mornings of Sunday, before ten o'clock, it is not contrary to the spirit of the statutes regarding the Sabbath, nor contrary to the recognised usages under them, that the apprentice should give such aid: But, finds, that the apprentice is not bound, nor is it lawful for him to work in the making of wigs, or in similar employment, not immediately necessary for the day; and, with this explanation, ordains the defender, the apprentice, to aid his master on the mornings of Sunday, when his master has occasion for his services in shaving his customers, the work not continuing after ten o'clock in the morning: Finds the defenders liable to the pursuer in the expenses of process; appoints that an account thereof be lodged; remits the same, when lodged, to the clerks of court to be taxed: Reserves action for all penalties incurred by the apprentice and his cautioner, and to them their defences: Finds the defenders also liable in the dues of extract, to be ascertained at extracting, and decerns.”

The apprentice and his father having reclaimed, the Magistrates further pronounced as follows:—“Finds it admitted by the defenders that the apprentice entered to the pursuer's service on or about the 1st day of July, 1833, and that he attended at the pursuer's shop, and did what was required of him on the morning of every Sunday from that date until the 4th day of May last, being for a period of ten months: Finds also, that it was not until the 18th of March last, that is to say, after an experience of more than eight months, that the indenture was entered into, and by it the apprentice, with his father's consent, became bound not to absent himself from his master's service, ‘holiday or week-day:’ Finds, therefore, that it is now too late for the apprentice and his father and cautioner to allege, that, though not contrary to law, the service on the mornings of Sundays is not according to their own sentiments, and on that ground to seek to be relieved of their civil engagement so deliberately made; and, with this explanation, adheres to the interlocutor of 13th August current, complained of; and decerns.”

In an advocation the Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Advocates the cause; alters the interlocutors of the magistrates complained of; sustains the defences, and assoilzies the defenders from the conclusions of the action, and decerns; finds the advocators entitled to their expenses, both in this Court and before the magistrates; allows an account thereof to be given in, and remits the same, when lodged, to the auditor for his taxation, and report.”

Innes reclaimed.

_________________ Footnote _________________

* “This is the first instance, in so far as the Lord Ordinary is aware, in which a court of law has directly and positively ordained a handicraftsman (without any pretence of necessity, or serious urgency) to work at his handicraft on a Sunday; and he certainly is in no way anxious to establish such a precedent.

“The cases of apothecaries' shops, Sunday travelling, and others that were cited, are evidently quite inapplicable. These exceptions have been admitted (with more or less scruple and reluctance) on the ground, that they may frequently be requisite for purposes of necessity and mercy, and that it would be impracticable to investigate cases of occasional abuse. But it is ridiculous to speak of a public shaving-shop as an establishment of such necessity as not to admit of interruption for a single day in the week. If the advocator had refused to shave the head of a lunatic, or one whose skull had been fractured, the cases would have been parallel. The pretence of usage—especially such a partial usage as is alleged—is irrelevant in a question of illegality, by violation of a public law. That, and the mitigated nature of the offence, may account for the connivance of the civil and ecclesiastical authorities, and may raise a doubt as to the wisdom of proceedings for interdict and penalties. But it is impossible to connive, when these authorities enjoin what they may have blamelessly permitted, and actually subject a man to penalties for not doing what the law has forbidden.

“As to the alleged contract of the parties, it was admitted by the respondent at the bar, that if what was required was illegal, the contract must go for nothing. The words are ambiguous; and the whole argument of the respondent imported that his sense of them could not be maintained. If holidays meant Sundays (which is his construction), then the contract must have meant that the apprentice should serve on Sundays exactly as he did on week-days, and that there should be no distinction between them. Yet he admits that he could not require him to work, even at shaving, during divine service, nor at wig-making, even on the Sunday morning. If he says he should only work when consistent with law and decency, then the Lord Ordinary is of opinion that he should not work on that day at all.”

1 Feb. 13, 1828 (ante VI. 533).

Lord Justice-Clerk.—I have listened to the arguments against the interlocutor, but am for adhering. My opinion is not new, as I expressed it in the case of Learmonth v. Blackie. 1 I still entertain that opinion, from which none of the other Judges then dissented. The case here is very simple. The boy binds himself not to be absent “holiday or week-day,” but he says, I will not work on Sunday; and the question is, if he can be compelled to work at his trade on that day. The interlocutor of the magistrates cannot be held as establishing the inveterate usage of Dundee, nor, if established, could it over-rule the public law. Then, as to the general question, I cannot hold, either on the phraseology of the statutes, or at common law, that it is lawful to keep a shop open for this purpose on the Sabbath day. This is certainly a species of “handicraft,” and comes under the express words of the act, 1579, which, in the enacting words, is absolutely unqualified. Farther, it is certainly inconsistent with the principles of the Confession of Faith. But the Christian religion is part of the public and common law, and, if we sanction this, we would have to sanction all shops being kept open, unless this can be made out to be a work of necessity or mercy. Now, I can see no evidence of that, or ground to hold, that there is any necessity here. There is no trade but what ceases on Saturday in time to allow the operation in question to be performed in the evening, instead of spending it in dissipation. Can we find, then, that the boy acted illegally in refusing to work, and that we are compelled to force him? On the grounds stated in the note of the Lord Ordinary, I think we cannot, and I am for adhering.

Lord Meadowbank.—I always regret when I differ from the head of the Court, and particularly in a case of this importance. But here I have formed a directly opposite opinion. No doubt the Confession of Faith is statute law, and the Christian religion is part of the common law; but I can find as little authority for the judgment of the Lord Ordinary on religious grounds as in the statutes. There is, undeniably, a distinction between the Jewish Sabbath and the Christian; and perhaps one of the most beautiful provisions of the Christian religion is the leaving such matters, in a certain degree, to be accommodated to the different states of society. It is therefore necessary, in determining what duties may be required from a servant, to look to the necessities of society. I may be a paralytic, and cannot shave myself—could my servant refuse to shave me on Sundays? I apprehend it would be entirely out of the question. In like manner, an apothecary takes an apprentice. It might equally in such a case be said, Is there any necessity for keeping his shop open on Sunday? An individual case comes to be a work of necessity, but not keeping the shop open to encourage customers. Milk-dealers, in the same way, supply milk; they minister to our necessities; and is your Lordship prepared to say that they are acting unlawfully in bringing milk to your Lordship's house and mine? I cannot enter into such views. In dealing with these cases, we must take into view the state and necessities of society, in considering if there is a violation of what is duo to God. The case before us, as limited in the interlocutor of the magistrates, does not interfere with the due order of society or the law. It is a work of necessity to secure the more due observance of the Sabbath. Every thing to enable people to go to the worship of God in a decent condition, is a work of necessity. Unless they could get their beards shaven, they would not go to the church at all, and so it is a work of necessity, though handicraft, and for hire; and, when this person bound himself to a trade to be exercised to a certain extent on Sundays, he may be compelled to exercise it to the extent that is necessary. I am, therefore, for altering.

Lord Glenlee.—I concur with Lord Meadowbank. The interlocutor of the magistrates limits the service to shaving. I can find nothing in the statutes against this. The first question is, if the act in itself is lawful. Now, I have no doubt that the act of shaving is lawful. If it were an unlawful act, you could not have your servant to do it for yourself. When we come to the exception of necessity and mercy, we are not to take merely the imminent necessity of life or the like. Then, is not the putting a person in a condition to go to church necessary. The ordinary business of a blacksmith would be a violation of the Sabbath; but if, in going to church, my horse loses a shoe, would it be unlawful for him to put it on for me? Could the minister who is to preach, but who could not shave himself, not have a barber to shave him to enable him to preach. In the same way, for others who go to church to hear, it is necessary. I concur with Lord Meadowbank.

Lord Medwyn.—I regretted the occurrence of this case. No one is more desirous of seeing the Sabbath properly observed. It is the law of the land, and it is the duty of Courts to see that carried into effect. This is a question of degree. We have to consider, 1. If the act is unlawful; and, 2. If it is contrary to decency. It is of importance to remember, that the apprentice was not ignorant of the practice of this shop. He knew what was required of him. If I had observed it stated that his father had commenced religious services on the Sabbath morning, or if it had been alleged by the boy that it was contrary to his conscience, it might have influenced my feelings. But there is nothing of the kind stated. Then, all the master requires of him is, that he should work at shaving during the morning between seven and ten. Now when I recollect, that, by a recent act as to ale-houses, no fault could be found with sitting in ale-houses except during the hours of service, it would be a strange state of the law if we prevented this, which enables others to attend divine service. I am not for giving people any apology for absenting themselves from church, particularly here from what I have seen of the character of the population of Dundee at a late circuit. As to the statutes, I do not think this case can fall under the handicraft mentioned in the act 1579, there intended, which is, I think, “as on other days.” Here he does not work as on other days. The leading act I always considered to be the one of Charles II. 1661, c. 18, and in it there is nothing touching a case of this kind. There is nothing in the law of this country interfering with the operation allowed by the interlocutor of the magistrates, and I can make no distinction between it and the domestic services of servants. It may not be a matter of absolute physical necessity. It is, however, very near, at least, one of moral necessity. It is important that none should be kept from church from want of this, and none be obliged to go without that decency which this gives; and I therefore concur with Lords Glenlee and Meadowbank.

The Court accordingly altered, and remitted simpliciter, with expenses.

Solicitors: C. F. Davidson, W.S.— C. Fisher, S.S.C.—Agents.

 SS 13 SS 778 1835

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