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The Pamphlet Collection of Sir Robert Stout: Volume 9

The Law of the Sabbath Day

The Law of the Sabbath Day.

The tendency of modern legislation on this subject has been to deal with the negative, rather than with the positive aspect of the question. The earlier Acts were directed against the non-observance of the day by neglecting religious worship; whilst those of more recent date were intended to prevent open desecration, and to remove all obstructions to the keeping of the day by those persons disposed to observe it.

We shall endeavor to point out hereafter the grounds upon which legislation on this subject is justifiable by a State acknowledging and professing Christianity. By the abolition of the day, it is evident that the true religion, and all the advantages which flow from the proper page 36 observance of the day would be seriously imperilled, and probably soon cease to exist—except as matters of history.

Before referring to the most important Act in force in England and which is also in operation here, it may be proper to advert briefly to some of the earlier statutes, not already noticed. In the twenty-seventh year of the reign of Henry the Seventh, an Act was passed, the preamble of which alludes to the "abominable injuries and offences done to Almighty God, because of fairs and markets upon high and principal feasts, and of the people so specially withdrawing themselves and their servants from divine service."

In the year 1603, shoemakers were prohibited exposing for sale shoes or boots on this day, under a penalty of three shillings and four pence for every offence, and the full value of the same. In 1627, an Act came into existence which recites "Forasmuch as the Lord's Day, commonly called Sunday, is much broken by and profaned by carriers, &c., to the great disgrace of God and reproach of religion." It is thereby declared that no carrier, waggon-man, carman, wainsman, nor drover shall travel upon that day under pain of twenty shillings for every offence; and that any butcher killing or selling any victual on such day shall forfeit six shillings and eight pence.

The important statute to which reference has been made was passed in the twenty-ninth year (1676) of the reign of Charles the Second. Its provisions would have a salutary effect even at the present day in the Colony if the fines were more heavy. The reader cannot fail to observe the very gradual manner in which the several Acts bearing on this subject were brought into existence, and they bear intrinsic proof of having been called forth to meet the exigencies of the times. Instead of dealing with isolated wrongs to be redressed this enactment treats the subject in a somewhat comprehensive manner. Instances will be given of transactions which have been held void in consequence of their having been entered into on this day between persons against whom the Act was intended to operate.

It is a principle in all legislation that when a law becomes unsuitable, or is disapproved of, it should be repealed. The fact that this one is still in force, furnishes a somewhat cogent reason in support of its utility, and of its being held in favorable estimation by the legislators of the present day. The preamble states "For the better obsering and keeping holy the Lord's Day, commonly called Sunday, that page 37 all laws enacted and in force concerning the observation of the Lord's day, and repairing to the Church thereon, be carefully put in execution, and that all and every person and persons whatsoever shall on every Lord's Day apply themselves to the observation of the same, exercising themselves thereon in the duties of piety and true religion, publicly and privately." It is enacted "1st. That no tradesman, artificer, workman, laborer, or other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary calling upon the Lord's day, or any part thereof (works of necessity and charity only excepted)." A penalty of five shillings is imposed on every person of fourteen years of age offending. 2nd. "That no person or persons whatsoever shall publicly cry, show forth, or expose to sale any wares, merchandise, goods, or chattels whatsoever upon the Lord's Day, or any part thereof," upon pain of forfeiture of the same respectively. Provision is also made by which "no drover, horse, courser, waggoner, butcher, higgler, their or any of their servants, shall travel or come into his or their inn or lodging on the Lord's Day," under a penalty of twenty shillings for every offence; and also whereby persons are prohibited employing or travelling on this day "with any boat, wherry, lighter, or barge, except it be upon extraordinary occasion to be allowed by some Justice of the Peace of the County, etc," under a fine of five shillings for every offence. An exemption is made to the "dressing of meat in families, or dressing or selling of meat in inns, cook-shops or victualling houses for such as cannot otherwise be provided;" and also to the "crying or selling milk before nine o'clock in the morning or after four o'clock in the afternoon." It has been deemed proper to set forth fully the salient provisions of this statute in the hope that they might be better understood than had they been but briefly alluded to. The oldness of the enactment may be urged by some persons against its adaptability to the present time. This argument, if the law be good in itself, ought not to receive any weight; indeed, the circumstance that it has remained so long unrepealed, entitles it to much consideration—at least, so far as its object and spirit are concerned. The Home Parliament, moreover, has lately had the Act before it; and on the seventeenth August last an enactment intituled "The Sunday Observation Prosecution Act 1871,". was passed, by which prosecutions under the statute of Charles the Second must be, by and with the written consent of the chief officer page 38 of police, or with the consent of two Justices of the Peace. This recent Act, which is not to continue in force beyond the first September next, has no operation in the Colony. It shows, however, that the British Legislators still recognise the propriety and necessity of the provisions of the above statute.

From an Act passed in 1781, it would appear that a practice prevailed in and around London of holding on Sunday meetings whose tendency was irreligious and profane. The professed object of these meetings was to debate doctrines of religion, and to expound texts from the Scriptures. The proceedings were apparently conducted by "persons unlearned and incompetent" to do so. A penalty of £200 (exclusive of other punishment) was imposed on every person keeping a house for such purposes. The chairman, moderator, master of ceremonies, etc., was made subject to a fine of £100, and the person calling the meeting was liable in a sum of £50. A reference to this Act has been made to show that the Legislature will if necessary protect the Scriptures from abuse. Before concluding the observations on Home legislation it may be proper to mention that on the 25th May last, an Act (not in force here) came into existence whereby young persons professing the Jewish religion are, subject to certain conditions, exempted from penalties for working on Sunday in a workshop or manufactory, provided the same respectively is "in the occupation of a person professing the Jewish religion, is on Saturday closed until sunset, and is not open for traffic on Sunday." There are some statutes which have no special bearing on the Sabbath Day and to which, therefore, no allusion has been made.

Turning to local legislation on this subject, we find that the Provincial Council of Otago on the 8th day of December 1862 passed an Ordinance whose objects were to prevent transactions in business, shooting and playing respectively, on Sunday, under a penalty of £10. The Ordinance, which was somewhat general in its language, and which professed to repeal all laws in Otago repugnant to its provisions, was disallowed by the Governor. The Ordinance (No. 124, Sess. XVII) dated Sep. 4, 1863, in operation recites that "it is expedient to discourage trading and other practices inconsistent with the public observance of Sunday," and provides that "any person who shall on Sunday in or in view of any road, street, or public place, trade, deal, transact business, or expose goods for sale, or keep open to public view any house, store, page 39 shop, bar, or other place for the purpose of trading, dealing, transacting business or exposing goods for sale therein, or play at any game or pastime in any road, street or public place, or discharge any firearms, shall for every such offence be liable to a penalty not exceeding ten pounds." The sale of medicines, the keeping open of druggists' or apothecaries' shops, and the sale of spirits, etc., between one o'clock and seven o'clock P.M., are exempted. It is also provided that the Licensing Ordinance in force shall not be interfered with.

The only other Ordinance of the Otago Provincial Council which affects this subject is the Licensing Ordinance of 1865, the thirty-third section of which prohibits the sale and drinking on the premises of liquors on Sunday, except to bona fide lodgers or travellers, by licensees of an hotel or an accommodation house.

Under regulations framed in pursuance of the Marino Board Act 1863, passed by the Colonial Legislature, it was provided by rule 17 that "no vessel not being a mail-steamer shall be unmoored on Sunday from her anchorage, and no work is to be done on board any vessel in harbor on Sunday (except such as may be necessary for cleanliness and safety of the vessel) without the express permission in writing of the Harbor Master, under a penalty not exceeding ten pounds." Had this provision, which was a sensible one, been in the Act, or been thereby authorised, it would have proved very efficacious, and no doubt as to its validity would have arisen. In proceedings instituted for a breach of the above quoted regulation, the presiding magistrate decided that it was ultra vires. The said Act and the Regulations thereunder have been repealed, and the only law on the same point affecting the subject under consideration is contained in rule sixteen of the regulations framed under the Marine Act 1867, and which is as follows: "No pilot shall be bound to take a vessel to sea on a Sunday." It is difficult to conceive on what principle a pilot, of all mariners, has been exempted from working on the Sabbath. If it be wrong to leave port on that day, and the regulation gives color to this view, a comprehensive law should be made preventing a departure. If on the other hand it be right to go to sea, it is of the highest importance that the knowledge and skill of the pilot should be available in preserving the lives of the crew and the passengers, and in preventing the loss of the ship and the cargo.

Except what has been already shewn, neither the Colonial nor any page 40 of the Provincial Legislatures has hitherto legislated specially on the observance of the Sabbath Day. This may have arisen from any one of three causes—first, that the common and the statute laws of England applicable to the circumstances of the Colony have been considered sufficient; second, That there has been no Sabbath desecration, or none so great as to render it necessary to invoke the aid of the legislative authority of the State; or third, that it has not been thought desirable to interfere either in repealing or amending the present law.

An objection has frequently been started involving the right to regulate by municipal law the observance of this day. It has been urged that every person should be at liberty to judge for himself how and to what extent it ought to be kept. An argument of this kind obviously disputes the right of the government to carry out by enactment its views on this subject. The question not unnaturally arises, In whom does the government reside? Unquestionably, in the people at large, who by their representatives enact such laws as are proper, or necessary, they possess the real as distinguished from the nominal power, and the ruling authority has been brought into existence, or is sanctioned or tolerated, by them. It may be accepted as a rule founded on an equitable principle and carried out in daily practice, that the voice of the majority prevails and governs the general body of the people. This rule is observed in every public meeting, in our municipal and political elections, in all ecclesiastical courts and by the various legislative bodies, whether of a Provincial or a Colonial character. By extending the same principle it may with propriety be urged that whatever religious views the great body of the people holds, respect should be paid thereunto, at the same time doing no violence, or as little as the circumstances admit, to the opinions and feelings of the minority. Toleration in thinking is of the highest importance, and should therefore ever be sacredly protected, but so long as the Government professes the Christian religion, it is not only entitled but bound to suppress all conduct which tends openly to imperil the existence, obstruct the observance, prevent the spread or mar the usefulness of that religion.

In civil society it is well known that there does not exist liberty in its full import, although in another sense of the word the persons constituting such a society possess greater freedom and more exemption from tyranny than they would amongst a barbarous people. For whose page 41 benefit ought the laws to be made? Clearly for the wellbeing of all the people; but if this cannot be accomplished, then for the good of the greater number. If we inquire into the religious beliefs of the intelligent portion of the population, we shall find only a comparatively small number who do not profess Christianity. Why, therefore, should the Sabbath, whose object now is to commemorate the greatest event recorded in the New Testament, and whose evident result is to perpetuate and extend the teachings and principles of the Bible, not only be protected, but most jealously guarded? Space will not permit this part of the subject to be treated at greater length than has been done.

In the next paper reference will be made to the views of some of the legal writers, and the opinions of several of the Judges. Some suggestions also will be given, showing what ought to be done in reference to this matter.