Chapter 1

passengers should no longer escape liability for their negligence in case of accidents to passengers, by reason of the injury being received on Sunday. This act marked a long step forward in the policy of this Commonwealth, and made it no longer possible for a corporation openly violating the law to escape the consequences of its illegal acts by saying to the injured passenger, "You were breaking the law yourself, and therefore you have no redress against us."

This was a condition of things which worked a confusion of relations, and lent "doubtful aid to morality;" resting on "no principle of justice" or law, and creating a "species of judicial outlawry which ignored alike the principles of humanity and the analogies of the law."

The provisions more particularly referred to in these Acts are those relating to travelling on the Lord's day, found in the Statutes as follows:--

"Whoever travels on the Lord's day, except from necessity or charity, shall be punished by fine not exceeding ten dollars for each offence."--Pub. Stat., Chap. 98, sect. 2. It is an interesting and curious study to follow the changes made in the Sunday law, so called, with the accompanying judicial decisions, as one by one the hindrances to the attainment of simple justice by travellers injured on the Lord's day have been swept away.

The Pilgrims brought many strange ideas with them to their new home, as we all well know, and we find these reflected in their statute books in the form of many "blue laws," some of which may yet be found in changed garb in the form of constantly disregarded "dead letter" laws in our own Public Statutes. Interesting as a general discussion of this subject is, as showing the character and purposes of the founders of the Republic, we can follow but one division of the Sunday law in its various forms since it was first framed by our "Puritan ancestors, who intended that the day should be not merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and repose, undisturbed by secular cares or amusements," and among whom were found some who thought death the only fit punishment for those who, as they considered it, "prophaned" the Lord's day.

As early as 1636 it was enacted by the Court of the Plymouth Colony that, "Whereas, complaint is made of great abuses in sundry places of this Government of prophaning the Lord's day by travellers, both horse and foot, by bearing of burdens, carrying of packs, etc., upon the Lord's day to the great offence of the Godly welafected among us. It is, therefore, enacted by the Court and the authoritie thereof that if any person or persons shall be found transgressing in any of the precincts of any township within this Government, he or they shall be forthwith apprehended by the Constable of such a town and fined twenty shillings, to the Collonie's use, or else shall sit in the stocks four hours, except they can give a sufficient reason for theire soe doeing; but they that 'soe transgresse' must be apprehended on the Lord's day and 'paye theire fine or sitt in the stockes as aforesaide' on the second day thereafter." It seems, however, that in spite of the pious sentiments of the framers of the law it was not, or could not be enforced, for in 1662 it was further enacted that "This Court doth desire that the transgression of the foregoing order may be carefully looked into and p'r'vented if by any due course it may be."

But even now it seems that the energies of the law-makers were of no avail in preventing prophanation of the Holy day by "foraignors and others," so that twenty years later, in 1683, we find that "To prevent prophanation of the Lord's day by foraignors or any others unessesary travelling through our Townes on that day. It is enacted by the Court that a fitt man in each Towne be chosen, unto whom whosever hath nessessity of travell on the Lord's day in case of danger of death, or such necessitous occations shall repaire, and makeing out such occations satisfyingly to him shall receive a Tickett from him to pas on about such like occations;" but, "if he attende not to this," or "if it shall appeare that his plea was falce," the hand of the law was likely to fall upon him while he contributed twenty shillings "to the use of the Collonie."

In the Massachusetts Bay Province it was early enacted that "no traveller ... shall travel on the Lord's day ... except by some adversity they are belated and forced to lodge in the woods, wilderness, or highways the night before, and then only to the next inn," under a penalty of twenty shillings.

In 1727 it was found that notwithstanding the many good and wholesome laws made to prevent the "prophanation of the Lord's day," this same "prophanation" was on the increase, and so it was enacted that the penalty for the first offense should be thirty shillings, and for the second, three pounds, while the offender, presumably a "foraignor," was to be put under a bond to observe the Sabbath day and keep it holy according to the ideas of the straight-laced Puritans.

Even this did not put an end to the good fathers' troubles, for in 1760, "whereas, by reason of different constructions of the several laws now in force relating to the observation of the Lord's day or Christain Sabbath, the said laws have not been duly executed, and notwithstanding the pious intention of the legislators, the Lord's Day hath been greatly and frequently prophaned" all the laws relating to the observance thereof were repealed and a new chapter enacted, one section of which, and the only one in which we are now interested, was the same as the law of 1727, above quoted.

Thirty-one years later all these laws were again erased from the statute book and a new attempt was made to frame a law which should leave no loop-holes for foraignors or others, as follows: "Whereas 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 errors of human conduct; for public and private worship of the Maker, Governor, and Judge of the world; and for those acts of charity which support and adorn a Christian society. Be it enacted that no person shall travel on the Lord's day except from _necessity_ or _charity_, upon penalty of a sum not exceeding twenty shillings and not less than ten." Notice what an interesting and moral tone is given to the otherwise dry statute book by these sermonizing preambles which reflect so well the motives and aims of the men who moulded and formed the statute laws of the Commonwealth.

In this act appears for the first time that "charity" which since then has truly "covered a multitude of sins," while it has as often been a strong tower of defence to corporations clearly shown to have been careless of their obligations to the public. One of the first cases to arise in which these words "necessity or charity" must be judicially construed was Commonwealth vs. James Knox, 6 Mass., 76.

One Josiah Paine had contracted with the Post Master General of the United States to carry the public mail between Portland and Boston on each day of the week for two years from October 1, 1808, and Knox, his servant, was indicted for unlawfully travelling while carrying the mail with a stage carriage through the town of Newburyport on November 20, 1808, the same being Sabbath or Lord's day, and the said travelling not being from necessity or charity. Chief Justice Parsons in delivering the opinion of the Supreme Court, after showing the authority of Congress under the Constitution to establish post-offices and post-roads, and the consequent legality of Paine's contract, the statutue of his State notwithstanding, says that "necessity ... cannot be understood as a physical necessity ... and when this travelling is necessary to execute a lawful contract it cannot be considered as unnecessary travelling, against the prohibition of the Statute." But fearing that this decision may open too wide the gate to Sabbath breakers the Chief Justice hastens to add: "But let it be remembered that our opinion does not protect travellers in the stage coach, or the carrier of the mail in driving about any town to discharge or to receive passengers; and much less in blowing his horn to the disturbance of serious people either at public worship or in their own houses. The carrier may proceed with the mail on the Lord's day to the post-office; he may go to any public house to refresh himself and his horses; and he may take the mail from the post-office and proceed on his route. _Any other liberties on the Lord's day our opinion does not warrant_."

The report naively says, that after this opinion the Attorney General entered a _nolle proscqui_.

In Pearce vs. Atwood, 13 Mass., 324, a case which arose in 1816 and which attracted a great deal of notice at the time, Chief Justice Parker says: "It is not necessary to resort to the laws promulgated by Moses, in order to prove that the _Christian Sabbath_ ought to be observed by _Christians_, as a day of holy rest and religious worship; and if it were it would be difficult to make out the point contended for from that source;" and then goes into a long disquisition upon the Mosaic law and the precepts of the Saviour and finally says that "cases often arise in which it will be both innocent and laudable for the most exemplary citizen to travel on Sunday. Suppose him suddenly called to visit a child, or other near relative, in a distant town laboring under a dangerous illness; or suppose him to be a physician; or suppose a man's whole fortune and the future comfort of his family to depend upon his being at a remote place early on Monday morning, he not having known the necessity until Saturday evening; these are all cases which would generally be considered as justifying the act of travelling." Certainly a somewhat broader view than that taken by the Court seven years earlier.

The law remained thus and was re-enacted in the Revised Statutes of 1836, the penalty being raised, however, to ten dollars. In civil cases arising out of damages sustained by travellers upon the Lord's day, corporations defendant were quick to take advantage of the law and to rely upon the illegality of the plaintiff's act of travelling, as a good defence to his action.

In 1843 arose the case of Bosworth vs. Inhabitants of Swansey, 10 Metcalf, 363. Bosworth was travelling on the eleventh of June of that year, being Sunday, from Warren, Rhode Island, to Fall River on business connected with a suit in the United States Court, and was injured by reason of a defect in a highway in Swansey.

The defendant town admitted that it was by law required to keep the highway in repair. And plaintiffs counsel argued that as the statute provided a penalty of ten dollars for travelling on Sunday it could not be further maintained that there was the additional penalty that a man could have no legal redress for damages suffered by reason of the neglect or refusal of defendants to do that which the law required them to do. But the court ruled, Chief Justice Shaw delivering the opinion, "that the plaintiff was plainly violating the law and that since he could recover from the town only, if free from all just imputation of negligence or fault," in this case he could recover nothing. In deciding this case, however, the Court was not called upon to construe the terms "necessity or charity," as affecting the liability of corporations plainly shown to be negligent in the performance of their duties to others; but many such cases soon arose.

In Commonwealth vs. Sampson, Judge Hoar said, "the definition which has been given of the phrase necessity or charity ... that it comprehends all acts which it is morally fit and proper should be done on the Sabbath may itself require some explanation. To save life, or prevent or relieve suffering; to prepare useful food for man and beast, to save property, as in case of fire, flood, or tempest ... unquestionably fall within the exception ... But if fish in the bay, or birds on the shore, happened to be uncommonly abundant on the Lord's day, it is equally clear that it would furnish no excuse for fishing or shooting on that day. How it would be if a whale happened to be stranded on the shore we need not determine." It is needless to remark that this was a decision affecting the interests of a town upon the coast.

In Feital vs. Middlesex R.R. Co., 109 Mass., 398, plaintiff was injured while returning from a Spiritualist meeting in Malden, and counsel for defendant maintained that the meeting was attended for idolatry and jugglery, and while it might be the right of the plaintiff to be an idolater and to attend shows, yet she could not do so in violation of the Statute, which was intended to protect the conscience of the majority of the people from being offended upon the Lord's day. But the Court ruled that it could not be said as matter of law that travelling for such a purpose was not within the exception, and that it must be left to the jury to say if the plaintiff was in attendance in good faith for devotional exercise as matter of conscience.

In How vs. Meakin, 115 Mass., 326, the court held that it was not a violation of the law to hire a horse and drive to a neighboring town to attend the funeral of plaintiff's brother.

But it was held in a later case that plaintiff, who had been to a funeral on the Lord's day and was returning therefrom by a somewhat _circuitous_ route for the purpose of calling upon a relative, was not entitled to recover for damages sustained by reason of a defect in the highway. This was the opinion of a divided court as has been the case in several decisions where the question of "necessity or charity" has been a close one.

Such are a few of the interesting cases which have arisen in our Courts involving discussion of the law originally framed in 1636, and which still makes it a criminal offence punishable by a fine of ten dollars to walk or ride upon the Lord's day, save from necessity or charity, while our cities furnish free concerts and license all sorts of performances in places of public amusement under the guise of "sacred" concerts, upon the day which our fathers thought and meant should be set apart for moral reflection ... on the duties of life ... and for public and private worship of the Maker, Governor, and Judge of the world.

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ELIZABETH.

A ROMANCE OF COLONIAL DAYS.

BY FRANCES C. SPARHAWK, Author of "A Lazy Man's Work."