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The Pamphlet Collection of Sir Robert Stout: Volume 49

Part III. — The Lord's Day Legislation of Massachusetts. — The Lord's Day Legislation of Massachusetts

page 35

Part III.

The Lord's Day Legislation of Massachusetts.

page break page 37

The Lord's Day Legislation of Massachusetts.

When I received one of Mr. Potter's very winning letters inviting me, a few days ago, to furnish an essay for this afternoon, I expressed grave doubt whether the exactions of my profession would admit of my taking time for it. The result has proved that my fears were correct; and therefore, instead of giving an essay, as I find it announced, I shall only be able to give you some crude, desultory, extemporaneous remarks, helped out by some memoranda of statutes and laws passed heretofore in this Commonwealth, and in the province and colony of the Massachusetts Bay.

I regret all the more that I was unable to prepare a written essay, because upon this question it is necessary to observe great carefulness of expression. If one expresses liberal sentiments in regard to Sunday observance, or if he suggests that the law as it stands might be advantageously changed, on the one hand he is said to be attacking the institution of Sunday; on the other hand, if he is conservative, and a little careful that innovations shall not come too fast, is willing to observe the good and the blessings in the institution as it is, then he is likely to be called a bigot, or an unenlightened conservative, behind the time.

I believe in a secular Sunday. In this secular government of ours, and under its sway, laws should be secular, institutions should be secular, and so far as the statutes page 38 have anything to do with the observance of Sunday, or any other holiday,—for you recollect Sunday is but one of the holidays,—these laws should be strictly secular in their purport. And, having said this, I would also add that I believe in the observance of a secular Sunday; in the careful, social, moral, and religious observance of Sunday; and I believe that some laws are necessary for the preservation of an institution fraught with so much good and so much of blessing to the community, and of happiness both by the fireside and in the social public.

The Jewish Sabbath of the fourth commandment I understand to have been a special institution for the Hebrew race. The ceremonial observance of the Jewish Sabbath was discountenanced by Jesus and his disciples, and no other day was by them substituted in its place. The Jewish Sabbath occurred on the seventh day of the week, and the Lord's day, as we call it, or Sunday, occurs on the first day of the week; and therefore, both historically and Biblically speaking, I think it is to be agreed that we have no Scriptural foundation for the observance of the Lord's day, as it has been historically observed in this Commonwealth. It was not, as I understand the history of it, till about the year 321, under the rule of Constantine, that any civil law was passed recognizing the observance of Sunday. And it was not till the reign of Queen Elizabeth, in England, that any English statute was ever passed that I have been able to find respecting Sunday observance. Nor was the religious observance of the day a part of the common law. Sunday, therefore, is a human institution, and not a divine. It is a subject, not of moral law, but of statute law. Non observance of it is violation, not profanation: malum prohibitum, not malum in se.

I cannot go into these questions, however, which I have merely hinted at in these preliminary remarks. I page 39 must be limited to the historic legal aspects of Sunday and its observance in this Commonwealth; but I thought it necessary to sketch first this understanding which I have of the institution, this previous legal history of the day, before the English statutes, under which our forefathers were when they came to this country, that you might see what foundation there was behind our forefathers upon which they could plant their Sunday laws. It will be evident that they did not hold this view of the Lord's day.

Two hundred and fifty years ago, they used indiscriminately in the statutes, for a short period, the term "Sabbath" and the term "Lord's day." I don't find that "Sunday" was ever used in the statutes; and, as the: name of the day is significant, in passing I will call attention to it. The more careful of the colonists called it "the first day of the week," as the Quakers do; the more Biblical of them called it the "Sabbath,"—but always in the laws you will find it called the "Lord's day." I have no doubt that a legislature of Free Religionists, under a secular government, would give the day its secular name.

Our forefathers brought the Lord's day with them when, they came to this country; and as a creation of statute law it was then very recent. At the common law no such thing as the "Lord's day" is known. It has sometimes been stated erroneously in this country that Sunday is a part of the common law. As a matter of fact, the only recognition of Sunday at the common law was that it was, in law phrase, not a judicial day. The Lord's day-is not a judicial day. "Dies dominicus non est juridicus." Parliament sat on Sunday, festivals were held on Sunday, everything could be done on Sunday, but courts of law could not sit, and judicial processes could neither be issued nor served.

page 40

The first English statute which I find imposing any restraint or duty upon the observance of the day was passed in 1558, in Queen Elizabeth's reign; and that statute required all persons who had not reasonable excuse to resort every Sunday and other holiday to church for divine service and worship.*

But there came a time in the first quarter of the seventeenth century when the affluence of religious expression and the poverty of religious action were truly surprising. And from the year 1625 the day was referred to in English statutes as the Lord's day. In that a year a somewhat more stringent Sunday law was passed. And subsequently, under Charles II. and William III., statutes were passed which I believe are still in force in England, and which were quite as rigid as any of our early statutes, though not carried to so extreme detail. Under the latter, about 1693, all persons were required to apply themselves to the observation of the Lord's clay, by exercising themselves thereon in the duties of true religion, publicly and privately. No work, save of necessity or charity; no sport, game, or pastime; no travel, &c.,—was to be allowed. And all these English statutes were put upon a religious basis. They were passed for the honor of God and for the preservation of true religion.

From some attentive perusal of the early statutes, enactments, and orders in this land, I have come to the conclusion that the same affluence of religious expression and poverty of religious doing prevailed with our forefathers when they came here and brought the Sunday laws with them. The colony charter was granted in 1628, as you will remember. The first colonists were then under the English statutes, which I have read extracts from; but these seem not to have been sufficiently strict; for as

* 2 Eliz. c. 2.

1 Car. 1. c. 1. 3 Car. 1. c. 1.

29 Car. 2. c. 7.7 Will. 3. c. 17.

page 41 early as the 17th of April, 1629, we find the first Sunday law of the colony to read thus :—

"And to the end the Saboth may bee celebrated in a religious mannr, we appoint, that all that inhabite the plantacon, both for the gen'all and pticuler imploymts, may surcease their labor every Satterday throughout the yeare at 3 of the clock in the afternoone, and that they spend the rest of that day in catichising and pparacon for the Saboth, as the ministers shall direct."*

That is the first Sunday law. In 1634 they passed a second one, which read as follows:—

"Whereas complainte hath bene made to this Court that dyvers psons within this jurisdiccon doe vsually absent them-selves from church meetings vpon the Lord's day, power is therefore given to any two Assistants to heare and sensure, either by ffyne or imprisonmt (att their discrecon), all misdemeanrs of that kind comitted by any inhabitant within this jurisdiccon, provided they exceed not the ffyne of vs for one offence."

In 1644, the law-makers put certain questions to the elders, for the purpose of being guided thereby in passing laws, very much as our General Court sometimes propounds questions to the Supreme Judicial Court, for its opinion to guide in passing laws,—and among these questions was this: "Whether a judge be bound to pronounce such sentence as a positive law prescribes, in case it be apparently above or beneath the merit of the offence ?" And the elders answered, among other things, and this is particularly notable:—
"2. In case variable circumstances of an offence do so much vary the degrees of guilt, that the offence is raised

*

Records of the Governor and Company of the Massachusetts Bay in New England, vol.—., app. 395.

1d., p. 140.?

page 42 to an higher nature, then the penalty must be varied to an higher answerable proportion. The striking of a neighbor may be punished with some pecuniary mulct, when the striking of a father may be punished with death. So any sin committed with an high hand, as the gathering of sticks on the Sabbath day, may be punished with death, when a lesser punishment might serve for gathering sticks privily, and in some sore need."*

It is to the credit of the law-makers, however, that they did not pass any law in conformity with the judgment of the elders.

On the 4th of November, 1646, I find that this law was put on the statute book:—

"It is therefore ordered and decreed by ye Corte, yt if any Christian wthin this jurisdiction shall go about to subvert and destroy the Christian faith and religion [by other things, and] by denying ye morallity of ye 4th comandemt [&c.], evry such pson continuing obstinate therein, after due meanes of conviction, shall pay to ye comon treasury during ye first six months 20s. a month, & for ye next six months 40s. p mo, and so to continue dureing his obstinacy; & if any such pson .shall endeavr to seduce others to ye like heresy & apostacy from ye faith & religion of or Lord Jesus Christ, he shall forfeit to ye comon treasury, for every severall offence therein, rfive pounds."

And in that year there was a fine of 5 shs decreed for each absence from "hearing ye publike ministery of ye word, on the Lord's days & fast & thanksgiving days."

A little later than that—I don't know but I ought to .bespeak your patience while I read so many of these extracts; but I thought in no other way could I get the exact historical state of the law in Massachusetts before

*

Ancient Charters and Colony and Province Laws, &c., app. 731.

2 Records of Massachusetts, p. 177

.

1d., p. 178.?
page 43 you so directly, as to read you the statutes themselves; and with your permission I will go on and read a few more:—

"Att a Generall Court of Election, held att Boston the 30th of the 6th month 1653 [30 Aug.]. Vppon information of sundry abuses & misdemeanors committed by severall psons on the Lords day, not only by children playinge in the streetes & other places, but by youthes, mavdes, & other psons, both strangers and others, vnciuilly walkinge the streetes and fields, travelling from towne to towne, goeing on shipboard, frequentinge common houses and other places to drinke, sport, & otherwise to mispend that p'cious time, whiche things tend much to the dishonr of God, the reproach of religion, & the pphanation of his holy Saboath, the sanctification whereof is sometime put for all dutyes imediatly respectinge the service of God conteined in the first table, it is therefore ordered by this Court and the authoritie, that no children, youths, mayds, or other psons, shall transgress in the like kind, on penalty of beinge reputed great pvokers of the high displeasure off Almighty God, and further incurringe the poenaltyes hereafter expressed; namely, that the parents and governors of all children above seven years old (not that we approve of younger children in evill), for the first offence in that kind, vppon due profe before any magestrate, towne commissionor, or select man of the towne where such offence shalbe committed, shalbe admonished; for a second offence, vppon due profe as aforesd, shall pay as a fine five shillings; & for a third offence, vppon due profe as aforesd, 10s; and if they shall agayne offend in this kind, they shalbe psented to the County Court, who shall augment punishment according to the meritt of the fact; & for all youths and maydes above foorteen yeares of age, & all elder psons whatsoever that shall offend and be convict as afforsd, either for playing, uncivilly walking, drinkinge, travillinge from towne to towne, goeing on shipboard, sportinge, or any way mis-pending that pcious time, shall for the first offence be admonished, vppon due profe as afforesd; for a second offence shall pay as a fine five shillings; & for a third offence, ten shill page 44 ings; & if any shall farther offend that way, they shalbe psented to the next county court, who shall augment punishment accordinge to the nature of the offence; & if any be vnable or vnwillinge to pay the afforesd fines, they shalbe whipped by the cunstable not exceeding five stripes for 10 s fine; & this to be understood of such offences as shalbe committed dureing the daylight of the Lord's day."*

In 1658, finding this statute not sufficient to answer the purpose, we have the following: "Whereas by too sad experience it is observed, the sunn being sett, both every Saturday & on the Lord's day, young people & others take liberty to walke and sporte themselves in the streets or fields in the seuerall townes of this jurisdiction, to the dishonor of God," &c., a fine or corporal punishment is decreed for the like on Saturday evening or Sunday evening after sun set.

Still later, Oct. 14, 1668 :—
"For the better prevention of the breach of the Saboath, it is enacted by this court & ye authority thereof, that no servile worke shall be doun on that day; namely, such as are not workes of piety, of charity, or of necessity; & when other works are done on that day, the person so doing, upon complaint or presentmt, being legally convicted thereof before any magistrate or county court, shall pay for the first offence ten shillings fine, & for every offence after to be doubled; & in case the offence herein be circumstanced with prophaners or high handed presumption, the penalty is to be augmented at the discretion of the judges. As an addition to the law for preventing prophaning of the Saboath day by doing servile worke, this Court doth order, that whatsoever person in this jurisdiction shall travell vpon the Lords day, either on horseback or on foote, or by boats from or out of their oune toune to any vnlawful assembly or meeting not allowed by lawe, are hereby declared to be prophaners of the

* 3 Records of Massachusetts, p. 316; 4 1d., pt. i., p. 150.

4 Id., pt—., p. 347.

page 45 Sabath, & shall be proceeded against as the persons that prophane the Lords day by doing servile worke."*

In May, 1677, a cage was ordered to be erected in Boston in which to confine "Saboath breakers."

Tythingmen were also appointed to inspect houses, and discover Sabbath breakers,

In 1679, a ward was ordered to be set, from sunset to nine o'clock on Saturday night, both at the town's end and at the fortifications, to prevent passing out of town, with authority to stop every person passing.

Such were most of the colony laws respecting the Lord's day. They show that its observance was based upon purely religious and superstitious grounds. They were for a people who feared to profane the day, lest the dreadful judgments of God should fall on the colony for their disobedience. In some official editions, the laws were annotated with references to Old Testament texts.

To show further the bigotry and intolerance of the people, from their own solemn enactments, let me cite a passage or two. In 1653 it is enacted broadly, "And every person that shall publish and maintain any heterodox or erroneous doctrine, shall be liable to be questioned and censured by the County Court where he liveth, according to the merit of his offence."§ And in 1665 it is re-enacted from an older law that they who are to be admitted as freemen (that is, entitled to vote, hold office, &c.) must present a "certificate from the ministers or minister of the place where they dwell, that they are Orthodox in religion," &c.| And we have already had a more striking specimen of their promptness in the pursuit of heresy and apostacy.

* 4 Records of Massachusetts, pt. ii., p. 395.

5 1d., pp. 133, 155.

5 Id., P-239.

§ Ancient Charters, &c., p. 123.

| Id., p. 117.

page 46

The measure of the prevalent ideas of liberty of conscience in 1691 when the Province Charter was granted, and the colony became a province, is indicated pretty clearly by a clause in that charter itself, which establishes and ordains "that forever hereafter there shall be liberty of conscience allowed in the worship of God to all Christians except Papists" in said province or territory.*

In 1692, the old colonial laws were substantially re-enacted; and in that statute occur these words: "That all and every person and persons whatsoever, shall, on that [the Lord's] day, carefully apply themselves to duties of religion and piety, publicly and privately.". In 1727, "the solemnizing of funerals on the Lord's day," or evening following, is prohibited.*

From this examination of the statutes, I think we can get a pretty fair view of what the Massachusetts Sabbath was up to the time Massachusetts became a Commonwealth. Others have supplied, or will supply, the details which show how it was practically observed; but so far as we can discern from these statute books, that is what it was. I think it is related of a chaplain of the Count de Rochambeau, who was here in Boston about 1780, writing letters home to France, that the strictness of the day's observance astonished him. It looked very strange to him to see everything so still, the streets deserted, no entertainment, nothing for diversion, except to go to church. The most innocent recreations and pleasures prohibited. If he met a person on the street he scarcely dared to stop and speak with him. Attempting to take a little walk for health and fresh air, he and his friend were met at the door by their landlord, who warned them that he would be liable to a heavy fine if he allowed them,

* Ancient Charters, &c., p. 31.

Massachusetts Perpetual Laws, p. 14.

* Id-. P-265.

page 47 while stopping with him, to disport themselves on that day in public. Somewhat disappointed, they .returned to their rooms, and his friend, thinking to beguile part of the time in that way, took up his flute and commenced to play some pious air. He had played but a few bars before the enraged populace collected round the house, and would have given him other bars to play had not his excited landlord put his head in at the unlatched door to give him timely warning. A great many instances of that sort could be produced to show the extreme rigidity of the Sunday laws and Sunday observance at that time. I suppose, too, that at that time they were in great part sustained by the prevailing public opinion, because you generally find that the laws of a community are not very far behind the prevailing popular ideas. They are a little behind; once fixed, it takes some time to change them, and public opinion is always a little in advance of the statute book; but when you find, as we have found here, that for a period of time from 1628 to 1780 such statutes as these existed upon the statute books in Massachusetts,—and you have only to look into the records further to find that there were convictions under these laws, that they were actually put in force,—it is pretty safe to infer that the public opinion of Massachusetts, up to that time sustained such laws.

Now, about 1780 the present constitution of the State was adopted, and Massachusetts became a Commonwealth. And I suppose it is true that about that time there were more liberalizing influences brought to bear on Massachusetts than there had been at any time before. About that time the intercourse between the several provinces and colonies in this country became general and frequent. They had been obliged for protection in war, and for increase in their commercial prosperity, to ally themselves with the outlying provinces and states, and to page 48 increase their mercantile and social relations with France and other foreign nations. Something of the same liberalizing influence poured into Massachusetts, and sprung up in Massachusetts, as was at that time at work in Pennsylvania, in Virginia, New York, and elsewhere, and as culminated in our secular constitution of the United States,—a constitution which could not have been drawn in Massachusetts, I will venture to say, up to the year 1850, by Massachusetts freemen. But, under the influences of these liberalizing institutions and teachings which they obtained from the outside, and which they had learned from their own experience, from the time Massachusetts became a State the Sunday laws began to be mollified. The first laws passed were in 1782. All prior statutes respecting the observance of the Lord's day were then repealed, and a long statute enacted by the General Court, reciting that "the observance of the Lord's day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labor and the cares of business; for moral reflections and conversation on the duties of life, and the frequent errours of human conduct; for publick and private worship of the Maker, Governour and Judge of the world, and for those acts of charity which support and adorn a Christian society." There is an advance upon the old preambles! This statute prohibits keeping open shop, &c.; doing any labor or business except of necessity or charity; being present at any concert or entertainment; using any sport or game; traveling; assisting at or tolling bell for any funeral, or digging grave; entertaining or suffering to stay any except travelers or permanent lodgers, &c. "And although it is the sense of this court that the time commanded in the sacred Scriptures to be observed as holy time includes a natural day, or twenty-four hours, yet, whereas there is a differ page 49 ence of opinion concerning the beginning and ending of the Lord's day among the good people of this commonwealth, and this court being unwilling to lay any restrictions which may seem unnecessary or unreasonable to persons of sobriety and conscience," therefore it is enacted that the time to be observed be from "midnight preceding" to "the sun sitting the same day." All recreation, &c., is then prohibited on the evenings preceding and following; so entertaining, &c. The act then enjoins "the worship of Almighty God" as "an essential part of the due observance of the Lord's Day," and imposes a fine of ten shillings upon any able person not necessarily prevented who shall absent himself for a month together from "the publick worship of God on the Lord's Day." That is in 1782; and they spell the "Day" with a capital D. This statute also provides for wardens to enforce the law, and gives them power to enforce it by stopping travelers, and by entering all places where they may find, or think they may find, Sabbath-breakers.

This law continued until the revision of the statutes, in 1836, when it was substantially re-enacted, without the preambles j fines made not exceeding ten dollars; concerts of sacred music allowed on the evening preceding; and this clause added: "No person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day, shall be liable to the penalties of this chapter for performing secular business or labor on that day, or first day of the week, provided he disturbs no other person."* March 16, 1844, the term "Lord's day" in that part of the statute relating to innholders, keepers of public houses, &c., is extended to include the time from midnight to midnight,

* Revised Statutes, ch. 50, sec. 10.

Statutes, 1844, ch. 160.
page 50 That takes the statute law up to 1860, when our edition of the general statutes in common use was adopted. It is a maxim of law that everyone is presumed to know the law; and, taking advantage of that maxim, I will presume that to nearly every one of you the present state of the law, so far as it is expressed in the statute book, is perfectly well known. For present comparison, however, I may be permitted to summarize the general statute as of the subject at present as follows:—

The law prohibits (1) keeping "open his shop, warehouse, or workhouse; " (2) doing "any manner of labor, business, or work, except works of necessity and charity;" (3) being "present at any dancing, or public diversion, show, or entertainment;" (4) taking part in or being present at "any sport, game, or play on the Lord's day," under penalty of a "fine not exceeding fifty dollars for every offence;" (5) traveling, "except from necessity or charity," under penalty of a fine not exceeding ten dollars; (6) entertaining in a "house, shop, cellar, or place of public entertainment or refreshment," "any persons not being travelers, strangers, or lodgers," or suffering "such persons on said day to abide or remain therein, or in the yards, orchards, or fields appertaining to the same, drinking, or spending their time idly or at play, or in doing secular business," under penalty of "a fine not exceeding fifty dollars for each person so entertained or suffered so to abide or remain," for the first offence, and severer penalties for after convictions; (7) being "present at any game, sport, play, or public diversion, except a concert of sacred music, upon the evening of the Lord's day, or upon the evening next preceding," "unless such game, sport, play, or public diversion is licensed by the persons or Board authorized by law to grant licenses in such cases," under penalty of a "fine not exceeding five dollars for each offence;" (8) persons "licensed to keep page 51 a place of public entertainment" from entertaining or suffering "to remain or be in his house, yard, or other places appurtenant, any persons not being travelers, strangers, or lodgers in such house, drinking and spending their time there, on the Lord's day, or the evening preceding the same," under penalty of fine not exceeding five dollars for each offence; (9) any person "keeping or suffering to be kept in any place occupied by him implements such as are used in gaming, in order that the same may, for hire, gain, or reward, be used for purposes of amusement," is prohibited from using or suffering to be used "any implements of that kind," on the Lord's day, under penalty of forfeiting a sum not exceeding one hundred dollars, or imprisonment not exceeding three months, for first offence, &c.; (10) serving or executing civil process; (11) behaving rudely or indecently within the walls of any house of public worship, under penalty of fine not exceeding ten dollars; (12) discharging any firearms for sport, or in the pursuit of game, or attempting to take or catch any fish, &c., on the Lord's day, under penalty of a fine not exceeding ten dollars.

There are limitations of time for instituting prosecutions under these statutes; sheriffs and constables are empowered to prevent violations; and the day is declared to include the time from midnight to midnight;. and "whoever conscientiously believes that the seventh, day of the week ought to be observed as the Sabbath, and actually refrains from secular business, travel, or labor on that day, shall not be liable to the penalties of this chapter for performing secular business, travel, or labor on the Lord's day, or first day of the week, provided that he disturbs no other persons."

I have throughout omitted all reference to the Sunday-clauses in the laws, respecting intoxicating liquors, that have from time to time been passed. Nor, in connection page 52 with the colonial laws, did I cite those of Plymouth Colony; because they were similar to those of the Massachusetts Bay.

It may seem that progress, in this last hundred years, towards a secular Sunday, has been slow; and, so far as the statute regulation is concerned, it has been rather small. But, notwithstanding, it has been a real progress; and I think we can see, by comparing statutes, and comparing also the judicial decisions under the statutes, that the progress of the Sunday idea in Massachusetts has been constantly, since the province became a state, toward a wiser freedom and a more consistent liberty. Some of the gains are these,—I find I am overrunning my time and will try to be brief,—some of the gains I note in the statute law are these:—
1.The observance of the day has been put on a secular and moral basis, instead of a solely religious basis.
2.Inquisitorial provisions for enforcing that observance have been dropped.
3.Liberty to seventh-day observers, Hebrews and others, who "naturally observe Saturday as the Sabbath," has been allowed, providing they do not disturb other persons.
4.The time of the observance of Sunday has been shortened, so that it only extends from midnight to midnight, instead of from three o'clock Saturday afternoon, except in the case of public entertainments, &c., which must be specially licensed for Saturday evening still, and one or two other exceptions.
5.Somewhat greater latitude in traveling, entertaining, and being entertained is to be observed in the present statute than was ever found before.
6.Sacred concerts are allowed on Sunday evening; and other entertainments may be licensed on Saturday evening.page 53
7.There is no compulsion to attend church or other religious service, or in any other way to religiously observe Sunday, on the statute books at present.

There are some minor betterments in the law, which perhaps others who are present may think of. I have not time to go into these in detail. With the exception of these gains,—important as I think,—with the exception of these, and a few minor points, the statute law remains the same to-day that it was. The statute law to-day, as we have just before seen, prohibits almost everything, though it directly compels the active performance of nothing. It prohibits all recreation, amusement, exercise, walking, riding, driving, traveling, hospitality, social intercourse, educational or scientific or literary occupation,—in short, all that is not of religion or charity or absolute necessity or—sacred music. And it not only prohibits so much on "the Lord's day," but it also prohibits very much upon Saturday evening.

I am persuaded that public opinion, as expressed in public action, does not sustain all these restrictions, and does encourage a larger latitude in the uses of the day,—and so is in advance of the statute book. It is true, that, in 1864, certain fines were increased. The fine, for instance, to be imposed on an inn-keeper who allows persons to stay around his inn that are neither strangers nor permanent lodgers, on Sunday, was increased to fifty dollars; and, in 1865, shooting and fishing on the Lord's day were prohibited. And here we find the ancestral type recurring in a later generation; for among the first recorded acts of the colonial government, entered Nov. 30, 1630, was this: "It is ordered that John Baker shalbe whipped for shooteing att fowle on the Sabboth day, &c."* And I have no doubt he was whipped; for, not much later in the record, I find that a sheriff was under charge of

* 1 Records of Massachusetts, p. 82.

page 54 manslaughter for whipping a man to death in his faithful execution of a judicial sentence.

I might perhaps have better improved my time, if, instead of reading so many statutes, I had saved a little of it, and discussed with you two or three points of the law as it now exists. But that can quite as well be done by others, and better than I could do it extemporaneously. I have supplied now somewhat of a definite basis for any remarks that may follow. I should have called attention, if to anything in addition, to the provisions that Hebrews may be allowed to pursue their secular occupations on Sunday, providing they disturb nobody else,—it being a debatable question, I think, whether the law could not be well amended so that any man could do as he pleases on Sunday, providing he don't disturb anybody else, or compel anybody else to do otherwise than he pleases; or at least that he might have liberty of conscience in the matter. But the point which I think of most importance to be considered is that with reference to traveling on "the Lord's day." It is not a very long time since the question became one of a good deal of warfare in the courts, and outside of the courts, as to whether the street-cars and steam-cars and excursion-boats should be allowed to run on Sunday; and some of the most interesting literature upon this subject is to he found in the carefully rendered and considered opinions of some of the judges. For instance, the opinion of Mr. Justice Read, of Pennsylvania, in the case of Spar-hawk and others against the Union Passenger Railway Company, in which he goes over the subject of Sunday law against traveling in Pennsylvania very carefully, is one of the most interesting pieces of reading upon this subject, I think. We all see, of course, that practically there is all the travel anybody wants on Sunday; and that is just a strong reason, with me, why public opinion page 55 should be aroused to the propriety of making the statute come up to public opinion in that respect, so that the public conduct may correspond with the public law. Everybody travels all he wants to on Sunday. All the railroad and all the street-car lines and all the boats run as many trips on Sunday as they want to; and every one of them causes the law to be violated every Sunday. The people who travel on the railroads and in the street-cars and in carriages on Sunday, in Massachusetts, violate, and see the letter of the law violated, a million times every Sunday; and there is nobody to take notice of it, except in some instance of ill-will or oppression, or when some careless corporation would escape the consequence of its negligence. And when it comes to that pass with respect to a law, it is better that it should be amended than that it should remain on the statute book. But, further than this, although, as I have said, every man is supposed to know the law, as a matter of fact I should have to beg your pardon, and say that nobody knows the law.

So august and dignified a tribunal as our Supreme Judicial Court of Massachusetts has declared itself unable to express in words any general rule which could be a guide to a person with respect to traveling on the Lord's day. The learned Chief-Justice Gray, of our Supreme Court, in rendering an opinion in the case of "Hamilton vs. Boston,"—not a very old case,—went over this subject of traveling on the Lord's day, and with his accustomed liberality endeavored to render a decision which should be perfectly just according to the law, and morally just and liberal; and in order to do it he was obliged to resort to the feat of reviewing all the prior statutes, and putting a technical meaning into the word "travel" as used in the statute. And then, after declaring that he could not lay down in definite language any rule by which a man could be guided as to traveling page 56 on Sunday without violating the law, he uses this language: "We are of opinion that a person walking with a friend on Sunday evening less than half a mile, with no apparent purpose of going to or stopping at any place but his own home, much less of passing out of the city, and no object of business or pleasure, except open air and gentle excercise, is not guilty of traveling, or liable to punishment, under this act." And that is the best he could say for it.

What harm do the Sunday laws do as they stand? Every day in the week, except Sunday, we travel; and every day in the week, when we do travel, except Sunday, we are protected by all the force of the state, under the law that common carriers are responsible and required to be responsible for using care and diligence in carrying passengers safely, and if through their neglect or that of their employ—s any accident happens, they are bound to respond in damages for injury caused by that neglect. The consequence is that the railroad companies and the street-car companies and the hackmen and the steamboat companies and the ferry companies,—every one, who, in this commonwealth, undertakes to carry on the business of transporting passengers from one place to another,—are bound to use their best endeavors to have proper cars, proper accommodations, properly qualified officers and servants, to see to it that the passenger receives no damage. On one day,—on Sunday,—they may do as they please; and if we travel with them we do so at our own risk. Suppose a steamboat company chooses to start an excursion steamer down the harbor on Sunday, and invites the public to go down on the excursion, and the public goes down, just as it goes now every Sunday in summer weather. They may put on a steamer that is unfit for the water, they may put on an inefficient engi page 57 neer and a drunken pilot, and they may run two thousand people into Boston Bay, and nobody can hold them for damages in one cent. All the cases are decided—and you will find the reports full of them—principally upon these two points, that a man shall not be allowed to prove a case, when to prove it he must prove his own unlawful acts, and a man shall not recover damages for an injury to which his own unlawful act contributed. And it is upon this rule that the courts refuse to grant any compensation to a man who suffers injury when traveling on Sunday, unless he be traveling from necessity or charity.

Now, to show that these terms in the law are not very broad : it has been held, for instance, that the hoeing of corn or crops in a garden, which were suffering for the want of hoeing, on Sunday, was not a work of necessity; that to gather seaweed on the beach, which would be swept away by the next tide, and which was of value and an apparent necessity to a poor man needing to save it, was not a work of necessity,—and I might cite a good many instances to show that the matter of necessity and charity was narrowed down to a very close compass. One or two instances occur to me where courts have found a way to favor the side of equity and justice outside of the law, or at least in conformity to the law, by straining a point. One of these was a case of a woman who worked all the week, in Lowell, for sustenance for herself and family, whom she had to support; but she lived in a town north of Lowell,—I think in Chelmsford,—and she went home Saturday night to take care of her children, and particularly of one child who was sick. Possibly some of you may remember the case, for it is not a very old one. She took care of her sick child all day Sunday, till evening, and the child was better, yet still in need of some medicine; and she went to Lowell to procure the medicine prescribed for her child, intending to send it page 58 back by a neighbor, and to remain in Lowell over night herself, so as to be ready for her task Monday morning. On her way, on Sunday evening, to Lowell, she met with a very serious accident, which disabled her for a long time. The accident was caused by a defect in the highway, for which the town was responsible, and would have been held responsible, if the accident had occurred on any other day in the week. She brought a suit to recover damages; the town refused to pay, on the ground that she was traveling on Sunday, and not from necessity or charity. And before the case went to the jury,—she had put in her case,—the Court ruled, under the statute, the Sunday law which we have cited to-day, that she was not traveling from necessity or charity, and therefore she could not recover, and refused to let it go to the jury. The case was taken to the Supreme Court, and all that the Supreme Court could say to help her was, that, from the facts disclosed in the case, it was a fair question to leave to the jury to say whether or not she was traveling from necessity or charity. So they sent her back to have a third trial, in the Superior Court, before she could recover her measure of damages. Now, I say that a Sunday law that is so close as that,—that will put a poor person to the expense and delay and the trouble incident to three suits before he can recover his due and fair damages for an injury caused by the town's neglect, on the simple pretence that it was not a work of necessity or charity,—needs reforming somewhere.

To the instances which Mr. Pratt has cited it may be well to add a few more in answer to the question, What harm do the Sunday laws do as they stand ?

1. The defencelessness of the Sunday pleasure-traveler against the carelessness of the railroad or steamboat com page 59 pany, to which reference above is made, is maintained by the Supreme Court's decision in the case of "Stanton vs. Metropolitan Railroad Company" (Allen's Reports, xiv. 485, January term, 1867), where the plaintiff received an injury by being thrown from one of the defendant's horse-cars, while on the way to visit a companion's friend in Roxbury. He could recover no damages; for the Court properly held him to be traveling in violation of the Sunday statute, his errand being neither "necessity" nor "charity."

2. A case occurred only a few months ago, where a person, injured by the alleged Sunday carelessness of the Boston and Maine Railroad, lost his claim for damages on the same ground.

3. On the evening of Sunday, Oct. 6, 1872, at nine o'clock, a laborer, Michael Connolly, walked off Dover-Street Bridge, the draw having been left open without guards or barriers; and, as he claimed, received severe and permanent injury. He was a night-laborer, and expected to work on Monday night; and his errand that Sunday evening was to see his employer, and get his night-work changed to day-work. The judge ruled it secular business, neither "necessity" nor "charity," so that the crippled man could not maintain an action against the city. (Mass. Reports, cxvii. 64.)

4. For the Lowell case of the mother and sick child, see Mass. Reports, cxvii. 65.

5. In the seaweed case cited by Mr. Pratt, the seaweed was gathered at ten o'clock Sunday night, and carried just up the beach beyond the reach of the incoming tide. (Mass. Reports, xcvii. 407.)

From 1791 to 1844 "the Lord's Day" in Massachusetts closed at sundown. Since the latter year, by a revision of the statute, it goes from midnight to midnight. So that Connolly and our seaside farmer were unfortunate in their day only because so unfortunate in their generation.

6. The hoeing case referred to was one in which a man, after hoeing late on Saturday evening, trying to get through the job, finished it by an hour's work on Sunday morning before nine o'clock. (Mass. Reports, xcvii. 411.)

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7. One Sunday, May 12, 1874, a citizen of Brookline helped his wife change a passion-flower from a small pot to a bigger pot, and, having screwed a hook into a water-spout to hang it on, was just about to hang it up, when a policeman threatened to arrest him for a violation of the Sunday law if he did not stop. Mr. W. stopped at once, expressing, however, an intention to test the matter after a consultation with a lawyer. The policeman next day complained of him to a magistrate, obtained a warrant for his arrest, and obliged him to appear before a trial justice, who fined him two dollars and costs, amounting to three dollars and ninety-five cents,—the police-man's share being one dollar and sixty cents. From this judgment Mr. W. appealed. The proceedings naturally excited the indignation of his fellow-citizens; and a petition, signed by eighteen of the most influential of them, was presented to the Selectmen of Brookline, together with a circumstantial statement of the whole matter. These petitioners requested the town authorities to see that the fine and costs should be paid by the town itself, or to assess them upon the petitioners; to stay the proceedings where they were; and to forbid the police for the future to make any further voluntary complaints on account of infraction of the Sunday law. To this petition the Selectmen returned answer by the Town Clerk, a few days later, that they had voted "that it is inexpedient to take any action upon the subject."

8. A few months ago the editor and proprietor of "The Springfield Sunday Telegram" was fined two dollars by the District Court for issuing his paper on Sunday. The motive of the prosecutor is supposed to have had no connection with the thought that he was doing God service. But the law, of course, was operative,—while policemen, court-clerk, and justice, all probably sided with the offender every Sunday in violations of the statute which their hands had to enforce on him.

9. And a news-selling case has lately occurred in Worcester in this wise. Some of the newsdealers there thought there would be a sale for papers on Sunday morning. So the boys went along the streets crying them noisily. The police page 61 men quickly hushed the noise,—but did more : acting under orders from the City Marshal, they bade the boys stop selling "The New York Graphic," and confine their Sunday trade to certain Boston Sunday papers, "The Herald" and "The Times"! Next, this City Marshal published an official notice : "Hereafter the peddling of newspapers on the Sabbath day will be strictly prohibited in this city, and the newsrooms will not be allowed to remain open for the delivery of papers, except from II o'clock A.M. to 2 o'clock P.M. All persons found violating the law in this respect will be dealt with as the law directs." Among the newsdealers were two brothers who could not understand a City Marshal's power to authorize a violation of the Sunday statute and to limit his exemptions to certain hours and papers; and they presently went on selling beyond the "2 o'clock." One of them was soon arrested and sentenced (June 26, 1876), in the District Court, to pay fines and costs amounting to more than twenty-five dollars. He appealed to the Superior Court. On the following Sunday the other brother, at the news-shop, transgressed as usual the Marshal's "2 o'clock; " and he likewise was notified by an officer to appear at court. He appeared there,—but meanwhile had called at the Marshal's office with a long list of prominent stable-keepers, railroad-directors, druggists selling cigars and soda-water, newspaper publishers, &c., all honorable men, who for the convenience of the public were constantly violating the Sunday laws; and, offering witnesses to prove the violation in each case, he had requested their arrest. The suggestion apparently closed the case against himself; he was not prosecuted, and from that day onwards sold his papers on Sunday, during what hours he would, unmolested. And boys with "Sunday Herald" on their badge have been allowed to reappear upon the streets. The first brother's case has just come up before the Superior Court, Feb. 2, 1877. It was known that, if fined, he would have to be sent to jail, as he would not pay the fine. He pleaded guilty and—went home : "sentence was deferred."

10. A Jewish citizen of Boston—a poor man, with eleven children to support, and who observed his Jewish Sabbath, page 62 Saturday—has kept a second-hand clothing store on Salem Street, for eight years past, under a license from the Board of Aldermen. The municipal regulations covering transactions in old clothes, junk, &c., provide that business can be done between certain hours on all week-days, and extend the time on Saturdays into the night. On applying, last March, for a renewal of his license, he was informed that he could not receive it because he kept his store open on Sundays. The Alderman who had ultimate jurisdiction, and to whom the matter was referred, said that, as this was a Christian country, the keeping open of a store on Sunday was offensive to the people, and was, besides, contrary to the laws and usages of the country. Hence he refused the license, pleading the fact of the law as his justification. The matter was later referred to the Board of Aldermen and laid upon the table.

11. And the Supreme Court has just rendered a decision ("Boston Evening Traveler," Jan. 5, 1877) in the case of the Commonwealth, by complaint, vs. Gehring Has. Has, who conscientiously observed the seventh day of the week as Sabbath, was complained of in the Roxbury District Court, in June last, for keeping an open shop on "the Lord's Day." The case went to the Superior Court, and Has was convicted; because the statute reads, "Whoever keeps open his shop, ... or does any manner of labor, business, or work, ... on the Lord's Day, shall be punished by a fine," &c., and the Court ruled that two offences are thereby constituted, and that the clause which exempts Seventh Day Sabbatarians from the penalties of "performing secular business, travel, or labor, on the Lord's day," only exempts them in regard to the latter of the two offences,—that is, for doing such business, but not at all for keeping open a shop in order to do the business! And the Supreme Court sustains this ruling as the fair construction.

The cases of Sunday oppression are probably much more numerous over the State than one is apt to think; but, as few go up to the Supreme Court, they are chiefly matters of town notoriety and memory, and a special investigation would be page 63 needed to learn how many times a year this "harmless" law really grasps a victim. Similar statutes rule and similar decisions are rendered in other States than Massachusetts,—in New York, Pennsylvania, Ohio, and Missouri, for instance. In such cases the Courts uniformly claim that the statute is enacted from no religious motive and in no sense ordains a religious institution, but simply prescribes a uniform day of rest as a civil or police regulation from motives of public policy. But, in view of the history of Sabbath legislation in our land, it is straining common sense to make this claim. Till comparatively recent years the day has been ostensibly protected as holy time, as a religious institution; and, although Church and State have been more and more dissevered in laws and constitutions within the last half-century, we still think and feel and fear, and therefore half-unconsciously—only half-unconsciously—legislate and interpret legislation, in this matter under the ancestral bias. The law in its extreme provisions evidently goes far beyond the point at which disorderly disturbance of religious worshippers begins, and even far beyond the average obedience yielded to it by the conscientious "evangelical" himself: and this excess marks the depth of "Sabbatarian" sentiment in which the statute is actually rooted. Again, the very provision by which some States exempt the Jews and Seventh-day Baptists from the Sunday-labor clause, on the ground that they conscientiously keep the Saturday "as holy time, and do not labor on that day," shows clearly that there is a religious element also, and not a mere rest-policy alone, for which the legislators have regard in the present Sunday laws.

W.C.G.

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