Gillies No Title

• Publication year: 2002
• Citation: Vol. 2002 No. 06

Vermont Bar Journal 2002.

June 2002. Gillies No Title

RUMINATIONS - A Different Kind of Sunday

Paul S. Gillies, Esq.

One now almost shudders to reflect how short a period of time intervenes between us and them.

Judge Isaac Redfield, in Arnold v. Arnold's Estate (1841)(Fn1)

In the Bible, a man gathers sticks on a Sunday, is discovered, accused, convicted and then immediately put to death by stoning, with the approval of the law.(Fn2)That story irritated Ethan Allen, Vermont's favorite deist. It was just another "arbitrary imposition of Moses, (as many other of his edicts were)," he wrote, "and not included in the law of nature." What really set Ethan's teeth on edge was the fact that at some point in history the observance of the Sabbath changed from the last to the first day of the week.(Fn3)What better evidence was there, Ethan argued, to show that there was no moral force behind established religion?

God rested on the seventh day.(Fn4)The stone tablets Moses carried down from the mountain included "Remember the seventh day, and keep it holy" as the fourth Commandment.(Fn5)Proscriptions against work, play, and travel on some day of the week are older than history.(Fn6)

Ethan's ambition was to undercut the authority of the Bible and so the churches, but as with many things Ethan's position was not adopted by the founders. Article 3 of the Vermont Constitution, untouched since it was first adopted in 1777, observes: "Nevertheless, every sect or denomination of christians ought to observe the sabbath or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God."

"Ought to," as Brigham has taught, is a mandate.(Fn7)So in our history there were laws enforcing this ideal. These statutes did not punish those who failed to attend Sunday services. They punished those who worked, traveled, made contracts and played on that day. Rarely were these laws upheld from some pious motive. Judge Isaac Redfield, in Adams v. Gay (1847), explained it this way:

Now nothing is more absurd, to my mind, than to argue the existence ofany such universal moral sentiment, in regard to the observance of Sunday.

It is in no just sense a moral sentiment at all, which impels us to the observance of Sunday, for religious purposes, more than any other day. It is but education and habit in the main, certainly. Moral feeling might dictate the devotion of a portion of our time to religious rites and solemnities, but could never indicate any particular time above all others.(Fn8)

Redfield did not hide his own religious findings, nor deny the religious nature of the world he knew. "For whatever might be the feelings of any member of the court, in regard to the propriety of observing other days also, as religious fasts, or festivals, there could be but one opinion in regard to the strict observance of the Lord's day, among consistent christians," he wrote.(Fn9)He called Sunday the Lord's day.

Chief Judge Charles K. Williams described the risk a court faced in enforcing the Sabbath laws, in Lyon v. Strong (1834):

We are aware, however, that the subject under consideration is one which is liable to be viewed too much on either side through the medium of feeling; and any judicial investigation of it may be regarded as treading upon forbidden ground. A decision one way may be regarded as promoting irreligion, licentiousness and immorality; and a decision the other way be considered as encroaching upon religious freedom.(Fn10)

There is a foundation of ancient law within modern statutes. Many of our present laws on descent, marriage, crime, and commerce have biblical origins. Vermont's early laws were often adamantly religious, Christian and protestant. A 1783 law required all taxpayers to pay for the building of a church, regardless of their religious sentiments, unless they filed a certificate with the town clerk testifying that they were of a different religious persuasion than the majority.(Fn11)In 1779, the law punished blasphemy and swearing with death.(Fn12)Even the constitutional oath of office for legislators required them to swear that they believed in "one God, the Creator and Governor of the universe, the rewarder of the good and punisher of the wicked" and that they acknowledged "the scriptures of the old and new testament to be given by divine inspiration," and that they "own and profess the Protestant religion."(Fn13)

Things changed. The world became more secular. In State v. Corologos (1928), Justice Harlan Slack explained that, changing conditions have caused "many things that were formerly deemed luxuries, or did not exist at all are now regarded as necessaraies."(Fn14)Sunday slipped from its former self. As Chief Justice Albert Barney described it in State v. Giant of St. Albans (1970), the law underwent a "complete transformation from a religious to a recreational statute directing a day of rest and relaxation."(Fn15)Through statutory changes, Vermont loosened up its Sabbath laws and eventually repealed nearly everything, leaving on the books only a vestige of that time in history when a man could not collect firewood on a Sunday without risking capital punishment.

Evolution of the Sunday laws

The first Vermont Sabbath law was adopted in 1779. It prohibited all labor, business, work, all games, sport, play, and recreation on Sunday. It prohibited all travel except to attend public worship or for acts of "necessity and mercy."(Fn16)The penalty included fines and public whipping. Parents were made to punish their children for these offenses in the presence of an officer of the law.

In 1797, the legislature adopted laws prohibiting civil process or other legal actions on the setting of the sun on Saturday night until after midnight on Sunday. Perhaps from the influence of this law, the Sabbath laws were amended in 1801 to prohibit any game, play, or work from the setting of the sun on Saturday, moving up the prohibition from midnight.(Fn17)In other words, from 1801 until the law was changed in 1840, there were no Saturday night parties or dances. You stayed home. Of course, many did not, but the law was there and people were arrested and fined for violating that law.

The first reported case invoking the Sabbath laws was Selectmen of Cavendish v. Weathersfield Tpk. Co. (1830). The selectboard attempted to serve a petition on a turnpike company to remove a toll gate on a highway, but service was made after the sunset on Saturday. Chief Judge Titus Hutchinson ruled the service null and void. "The legislature intended, by this statute, that no person should have his meditations, at this hour, consecrated by the statute as holy time, disturbed by the intrusions of worldly cares; especially such as would tend to create an anxious solicitude, till advice could be obtained."(Fn18)

The granddaddy of all Sunday cases is Lyon v. Strong (1834). A farmer swapped an ox, a cow, and three dollars for a horse, only later to discover the horse had been graveled.(Fn19)He sought damages. The defendant claimed the contract was void, as it was made on a Sunday. Chief Judge Charles K. Williams, after wrestling with the idea of enforcing such laws, agreed that the contract was void. Entering the contract was secular labor, and the law would not enforce it.(Fn20)

Lyon v. Strong, the first important articulation of the law, was also its highwater mark as applied to contracts. Soon the exceptions began. A note signed on a Sunday, but not delivered until another day of the week, was valid in Lovejoy v. Whipple (1846).(Fn21)A year later, the Court...