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the Lord’s Day hath been greatly and frequently prophaned" all the laws relating to the observance thereof were repealed and a new chapter enacted, one section of which, and the only one in which we are now interested, was the same as the law of 1727, above quoted.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.