Sunday law in the nineteenth century.

• Author: King, Andrew J.

1. INTRODUCTION

   Since the late nineteenth century the grip of Sunday laws on American behavior has slowly relaxed. Even in states that retain these regulations, the "blue laws" are now a pale reminder of a time when legislation banned Sunday work, travel, and recreation.(1) Urbanization and secularization have long since eroded support for enforcement of traditional sectarian Sunday observance. Although enforced Sabbath observance was always controversial, its modern erosion began after the Civil War, when governments began to display a distaste for vigorous enforcement of the Sunday laws, especially in the cities.(2) While legislatures left penalties for Sabbath-breaking at their late-eighteenth century levels, enforcement was often relaxed.(3) An Eastern court observed that "[t]here is more walking and riding done on the first day of the week than any other.... [t]he whole population is in motion."(4) Treatise writers noted the lax enforcement. A.H. Lewis wrote that "these laws are `dead letter.' Whoever wishes to disobey them, does so. Many of them which seem to be stringent, are open enough to `drive a coach and four through without touching.'"(5) George Harris noted that enforcement of Sunday laws depended "to a greater or less extent upon the state of public sentiment as to the strictness with which the Sabbath should be observed."(6) And, in 1882 a California court remarked that there had been little effort to enforce California's Sunday law since its enactment twenty years earlier.(7) "Many have devoted the day to religious exercises, some to recreation, and others to labor, and all apparently ignorant of the existence of this law."(8)

   In their approach to Sunday matters, nineteenth-century judges displayed both religious and secular outlooks. The religious approach reflected a commitment to a de facto Protestant establishment.(9) These judges believed that America was a Christian nation, that Christianity was a source of the country's common law norms, and that the judges guarded this religious heritage.(10) To them "religious liberty" meant toleration of groups that deviated from normative Protestantism.(11) Toleration meant freedom from coercion but it did not mean equality for all religious groups or untrammeled free exercise.(12) During the nineteenth century this position became increasingly difficult to maintain in the face of criticism.(13) Thomas Cooley, for example, wrote that the "laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments the force of which will be felt and admitted by all."(14) The editor of the Federal Reporter pointed to a Georgia court's "obvious error" when it rested enforcement of a Sunday law on the Bible.(15)

   Judicial secularism manifested itself in two ways. First, the courts responded to the American doctrine of religious freedom by adopting a police power rationale for Sunday legislation.(16) The courts' discomfort with the sectarianism of re-enacted eighteenth century statutes demanded a non-religious justification.(17) Separation of church and state made a secular justification for Sunday statutes necessary;(18) the police power made it plausible.(19) The courts were able to treat Sunday laws as an aspect of the police power's protection of health.(20) By rooting their justification in a biological imperative that used a "one-day-in-seven" formula, the courts believed they had established a non-sectarian basis for Sunday rest.(21) Judges rarely questioned the biblical derivation of the one-day-in-seven formula.(22) Nature, not God, they asserted, dictated the need for a cessation of labor.(23) As a New York court said, humanity is "so constituted, physically, that the precise portion of time indicated by the decalogue must be observed as a day of rest and relaxation, and nature, in the punishment inflicted for a violation of our physical laws, adds her sanction to the positive law promulgated at Sinai."(24) Moreover, with respect to the choice of Sunday as the day of rest, some courts have explained that they followed majority custom.(25) An Alabama court; added that "the legislature is not prohibited from making municipal regulations, because they have the sanction also of a religious society."(26) Thus the courts could claim that enforcement of Sunday restrictions was a police power matter that did not involve them in religion.(27)

   Second, the common law's commitment to corrective justice gave the courts a non-religious lens through which to view the impact of Sunday statutes on common law contracts and torts. By mid-century these courts began applying a formalistic public-private analysis to Sunday legal issues.(28) The courts took the position that a government's primary concern was with the preservation of the public order on the traditional Sunday.(29) Private activities that did not disturb the public fell outside the range of the Sunday laws.(30) These courts concluded that since the legislatures had left statutory fines for Sunday violations at low early-nineteenth century levels, it signaled the courts to take Sunday infractions less seriously.(31) According to one court, a fine was a "trivial punishment."(32) The occasional penalty for violating a Sunday law became a cost of doing business.(33) Moreover, concern for a state's economic development often persuaded courts to take a liberal approach when asked to enforce Sunday bans on work.(34) These courts decided that the common law should not treat Sunday as a special day when it came to assessing behavior.(35)

   In seeking to demarcate the area in which statutory and common law regulations operated, secularist courts turned to the law of nuisance. Nuisance law allowed courts to distinguish publicly regulated behavior from private activity.(36) In their use of nuisance law, the secularist courts argued that Sunday was no different from any other day of the week.(37) Private activity was non-disruptive and thus did not merit supervision.(38) This view followed John Locke's influential distinction between conduct and belief.(39) While government could regulate conduct without taking minority religious practice into account, it had no business dictating to "conscience."(40) Courts linked the conduct-belief dichotomy with the formalist view that Sunday statutes only controlled the relationship between the individual and the state (public law) and should have nothing to do with relationships between individuals (private law).(41) This debate between public and private paralleled the state constitutional doctrine of separation of church and state.(42) In this formalist approach courts drew a distinction between the state, which represented the "public," and the church, which stood for the "private."(43) Likewise, relations between individuals and the state fell on the "public" side of the line, and were distinguished from "private" relations between individuals.(44)

   Courts cabined criminal prosecutions for Sunday violations from private law's more relaxed standards.(45) In the later nineteenth century the courts further separated Sunday law from its religious roots when they asserted the distinction between law and morality.(46) Where an antebellum court castigated the parties to a Sunday deed for partaking in "the sin of violating the Sabbath,"(47) or referred to illegal contracts as "pollution which soils,"(48) a post-Civil War court, deciding whether to enforce a Sunday promissory note, remarked: "whatever may be our opinion as to the moral or religious aspects ... this case cannot be decided upon considerations of that character. The question is strictly a legal question and must be determined upon legal principles."(49)

   Colonial Sunday laws were both paternalistic and punitive.(50) On the one hand, they protected laborers by banning work;(51) on the other, they prohibited recreation and travel,(52) and often required church attendance.(53) The earliest restrictions came with the seventeenth century Puritan settlers of New England.(54) During the reign of Charles I, Parliament adopted a statute banning various recreational activities, including sports and hunting.(55) This law applied to all the colonies.(56) After the end of the Puritan-led Commonwealth in 1660, the Restoration Parliament adopted the statute of Charles II in 1677, the model for the eighteenth century.(57) This statute banned work and travel, with exceptions provided for sales of perishable foodstuffs.(58) While New England practice reflected the strict religious ethos of the English Puritans, and their desire to create communities that conformed to Puritan norms, other colonies were more tolerant of Sunday recreation.(59)

   After the American Revolution most states adopted constitutions that banned government preference for any particular denomination and guaranteed some form of the "free exercise" of religion.(60) At the same time the states re-enacted their colonial Sunday laws, often lumping them together with other statutes intended to control "vice and immorality."(61) While Sunday laws excused "works of necessity and charity,"(62) less than half the states exempted religious groups who observed a Saturday Sabbath.(63) Not surprisingly, when communities enforced these non-exemption Sunday laws, both seventh-day observers and non-believers took exception.(64) While most antebellum judges valued the Sunday laws as a pillar of both religion and the republic,(65) they faced the question whether a constitutional command of non-preference precluded enforcement of Sunday restrictions.(66)

   Although the post-Revolutionary War era witnessed lax Sunday enforcement, the early-nineteenth century upsurge in religious activity that culminated in the Second Great Awakening brought the issue of Sunday observance to the front.(67) In 1812, Protestant minister Lyman Beecher organized the Society for the Suppression of Vice and the Promotion of Good Morals;(68) his widely noted...