LAW

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• RELATING

RELATING TO  SUNDAY The earliest recognition of the observance of Sunday as a legal duty is a constitution of Constantine in 321 A.D., enacting that all courts of justice, inhabitants of towns, and workshops were to be at rest on Sunday (venerabili die solis), with an exception in favour of those engaged in agricultural labour . This was the first of a long series of imperial constitutions, most of which are incorporated in the Code of Justinian, bk. iii. tit . 12 (De feriis) . The constitutions comprised in this title of the code begin with that of Constantine, and further provide that emancipation and manumission were the only legal proceedings permissible on the Lord's day (die dominico), though contracts and compromises might be made between the parties where no intervention of the court was necessary . Pleasure was forbidden as well as business . No spectacle was to be exhibited in a theatre or circus . If the emperor's birthday fell on a Sunday, its celebration was to be postponed . The seven days before and after Easter were to be kept as Sundays . In Cod. i . 4, 9, appears the regulation that prisoners were to be brought up for examination and interrogation on Sunday . On the other hand, Cod. iii . 12, 10, distinctly directs the torture of robbers and pirates, even on Easter Sunday, the divine pardon (says the law) being hoped for where the safety of society was thus assured .

After the

time of Justinian the observance of Sunday appears to have become stricter . In the West, Charlemagne forbade labour of any kind . A century later in the Eastern Empire No. liv. of the Leonine constitutions abolished the exemption of agricultural labour contained in the constitution of Constantine; but this exemption was specially preserved in England by a constitution of Archbishop Meopham . The canon law followed the lines of Roman law . The decrees of ecclesiastical councils on the subject have been numerous . Much of the law is contained in the Decretals of Gregory, bk. ii. tit . 9 (De feriis), c . 1 of which (translated) runs thus: " We decree that all Sundays be observed from vespers to vespers (a vespera ad vesperam), and'that all unlawful work be abstained from, so that in them trading or legal proceedings be not carried on, or any one condemned to death or punishment, or any oaths be administered, except for peace or other necessary reason." Works of necessity (especially in the case of perishable materials or where time was important, as in fishing) were allowed, on condition that a due proportion of the gain made by work so done was given to the church and the poor . The consent of parties was in-sufficient to give jurisdiction to a court of law to proceed on Sunday, though it was sufficient in the case of a day sanctified by the ecclesiastical authority for a temporary purpose, e.g. a thanksgiving for vintage or harvest . In England legislation on the subject began early and continues down to the most modern times . As early as the 7th century the laws of Ina, king of the West Saxons, provided that, if a " theowman " worked on Sunday by his lord's command, he was to be free and the lord to be fined 3os.; if a freeman worked without his lord's command, the penalty was forfeitureof freedom or a fine of 6os., and twice as much in the case of a priest . The laws of /Ethelstan forbade marketing, of 'Ethelred folkmoots and hunting, on the Sunday .

In almost all the pre-

Conquest compilations there are admonitions to. keep the day holy . The first allusion to Sunday in statute law proper is in 1354 (28 Edw . III. c . 14 rep.), forbidding the sale. of wool at the staple on Sunday . The mass of legislation from that date downwards may be conveniently, if not scientifically, divided into five classes—ecclesiastical, constitutional, judicial, social and commercial . The terms " Sunday " and " Lord's day" are used in the statutes, but the term " Sabbath " occurs only in ordinances of the Long Parliament . " Sabbath-breaking " is sometimes used to describe a violation of the Sunday observance acts, but is objected to by Blackstone as legally incorrect . Good Friday and Christmas Day are as a rule in the same legal position as Sunday . In English law Sunday is reckoned from midnight to midnight, not as in canon law a vespera ad vesperam . The acts to be mentioned are still law unless the contrary is stated . Ecclesiastical.—Bef ore the Reformation there appears to be little or no statutory recognition of Sunday, except as a day on which trade was interdicted or national sports directed to be held . Thus the repealed acts of 1388 (12 Ric .

II. c . 6) and 1409 (11

Hen . IV. c . 4) enjoined the practice of archery on Sunday . The church itself by provincial constitutions and other means declared the sanctity of the day, and was strong enough to visit with its own censures those who failed to observe Sunday . At the Reformation it was thought necessary to enforce the observance of Sunday by the state in face of the question mooted at the time as to the divine or merely human institution of the day as a holy day . Sunday observance was directed by injunctions as well as by statutes of Edward VI. and Elizabeth . The second Act of Uniformity of 1551 (5 & 6 Edw . IV. c .. I.) enacted that all inhabitants of the realm were to. endeavour themselves to resort to their parish church or chapel accustomed, or upos. reasonable let thereof to some usual place where common prayer is used every Sunday, upon pain of punishment by the censures of the church . The same principle was re-enacted by the Act of Uniformity of 1558 (I Eliz. c . 2), with the addition of a temporal punishment, viz. a fine of twelve pence for each offence .

This

section of the act is, however, no longer law., and it appears that the only penalty now incurred by non-attendance at church is the shadowy one of ecclesiastical censure . Protestant dissenters, Jews and Roman Catholics were in 1846 (9 & 10, Viet . C . S9) exempted from the act, and the pecuniary penalties were abrogated as to all persons; but the acts as to Sundays and holy days are still binding on members of the Church of England [Marshall v . Graham, 1907, 2 K.B . 112] . An act of 1551 (5 & 6 Edw . VI. c . 3) directed the keeping of all Sundays as holy days, with an exception in favour of husbandmen, labourers, fishermen and other persons in harvest or other time of necessity . Canon 13 of the canons of 1603 provides that " all manner of persons within the Church of England shall celebrate and keep the Lord's day, commonly called Sunday, according to God's holy will and pleasure and the orders of the Church of England prescribed in that behalf, that is, in hearing the word of God read and taught, in private and public prayers, in acknowledging their offences to God and amendment of the same, in reconciling them-selves charitably to their neighbours where displeasure hath been, in oftentimes receiving the communion of the body and blood of Christ, in visiting the poor and sick, using all godly and sober conversation." The Long Parliament, by an ordinance of 1644, C, 51, directed the Lord's day to be celebrated as holy, as being the Christian Sabbath . Ordinances of 165o, c . 9, and 1656, c .

15, contained various

minute descriptions of crimes against the sanctity of the Lord's day, including travelling and " vainly and profanely walking." These ordinances lapsed at the Restoration . The Act of Uniformity of 1661 (13 & 14 Car . II. c . 4) enforced the reading on every Lord's day of the morning and evening prayer according to the form in the Book of Common Prayer--a duty which had been previously enjoined by canon 14 of 1603 . By the Church Building Act 1818, the bishop may direct a third service, morning or evening, where necessary, in any church built under the act (s . 65) . By the Church Building Act 1838, he may order the performance of two full services, each if he so direct to include a sermon (s . 8) . The Burial Laws Amendment Act 188o, which authorizes burials in churchyards of the Church of England without the use of the funeral office of that church, does not allow such burials to take place on Sunday, Good Friday or Christmas Day if the parson of the church objects . Under the Metropolitan Police and Streets Acts, the Town Police Clauses Act 1841 and the Public Health Acts, street traffic may be regulated during the hours of divine service . Constitutional.—Parliament has occasionally sat on Sunday in cases of great emergency, as on the demise of the Crown . Occasionally divisions in the House of Commons have taken place early on Sunday morning .

The

Ballot Act 1872 enacts that in reckoning time for election proceedings Sundays are to be excluded . A similar provision is contained in the Municipal Corporations Act 1882, as to proceedings under that act . Judicial.—As a general rule Sunday for the purpose of judicial proceedings is a dies' non juridicus on which courts of justice do not sit (g Co . Rep . 66b) . By s . 6 of the Sunday Observance Act 1677 legal process cannot be served or executed on Sunday, except in cases of treason, felony or breach of the peace . Proceedings which do not need the intervention of the court are good, e.g. service of a citation or notice to quit or claim to vote . By s . 4 of the Indictable Offences Act 1848 justice may iesue a warrant of apprehension or a search warrant on Sunday . The rules of the Supreme Court provide that the offices of the Supreme Court shall be closed on Sundays, that Sunday is not to be reckoned in the computation of any limited time less than six days allowed for doing any act or taking any proceeding, and that, where the time for doing any act or taking any proceeding expires on Sunday, such act or proceeding is good if done or taken on the next day . In the divorce rules Sundays are excluded from compilation .

In the

county court rules they are excluded if the time limited is less than forty-eight hours, and the only county court process which can be executed on Sunday is a warrant of arrest in an Admiralty action . Where a time is fixed by statute, the Sundays are counted in . Where a term of imprisonment expires on Sunday, Christmas Day or Good Friday, the prisoner is entitled to discharge on the day next preceding (Prison Act 1898, s . Is') . Social.—Under this head may be grouped the enactments having for their object the regulation of Sunday travelling and amusements . The earliest example of non-ecclesiastical interference with recreation appears to be the Book of Sports issued by James I. in 1618 . Royal' authority was given to all but recusants to exercise themselves after evening service in dancing, archery, leaping, vaulting, May-games, Whitsun-ales, morrisdances and setting up of Maypoles; but bear and bull-baiting, interludes and bowling by the meaner sort were prohibited . The Sunday Observance Act 1625 (I Car . I. c . I), following the lines of the Book of Sports, inhibited meetings, assemblies or concourse of people out of their own parishes on the Lord's day for any sports and pastimes whatsoever, and any bear-baiting, bull-baiting, interludes, common plays or other unlawful exercises and pastimes used by any person or persons within their own parishes, under a penalty of 3s . 4d. for every offence . The right to enforce ecclesiastical censures is left untouched by the act .

The act impliedly allows sports other than the excepted ones as long as only parishioners take

part in them . In 1897 some lads were prosecuted at Streatley under this . act for playing football in an adjoining parish, but the justices dismissed the charge, treating the act as obsolete . But in 1go6 the Society for the Prevention of Cruelty to Animals instituted a prosecution under the act with the object of preventing extra-parochial rabbit-coursing on Sundays . The Game Act 1831 (i & 2 Will . IV. c . 32, s . 3) makes it punishable to kill or take game, or to use a dog, net or other instrument (e.g. a snare), for that purpose on Sunday . The prohibition only applies to game proper and does not extend to rabbits . There is no law in England against fishing on Sunday except as to salmon . Fishing for salmon on Sunday by any means other than a rod and line is prohibited by the Salmon Fishery Act 1861, and free passage for salmon through all cribs, &c., used for fishery is to be left during the whole of Sunday . The Sunday Observance Act 1781 (21 Geo . III. c .

49),

drawn by Dr Porteus, bishop of London, enacts that any place opened or used for public entertainment and amusement or for publicdebate upon any part of the Lord's day called Sunday, to which persons are admitted by payment of money or by tickets sold for money, is to be deemed a disorderly house . The keeper is to forfeit 200 for every day on which it is opened or used as aforesaid on the Lord's day, the manager or master of the ceremonies boo and every doorkeeper or servant £5o . The advertising or publishing any advertisement of such an entertainment is made subject to a penalty of £5o . Proceedings under this act for penalties may be instituted by a common informer within six months of the offence . It was held in 1868 that a meeting the object of which was not pecuniary gain (though there was a charge for admission), but an honest intention to introduce religious worship, though not according to any established or usual form, was not within the act . The hall used was registered for religious worship . On this principle, forms of worship such as Mormonism or Mahommedanism are protected . In 1875 actions were brought against the Brighton Aquarium Company and penalties recovered under the act . As doubts were felt as to the power of the Crown to remit the penalties in such a case, an act was passed in 1875 to remove such doubts and to enable the sovereign to remit in whole or in part penalties recovered for offences against the act of 1781 . The substantive effect of the act is to hit all Sunday exhibitions or performances where money is charged for admission . In 1895 it was decided that the chairman of a meeting held to hear a lecture was not liable as manager of the meeting, and the solicitor of the liquidator of a company was held not to be liable for merely letting the hall for the meeting . In 1906 an attempt was unsuccessfully made to apply the act of 1781 to open-air meetings for rabbit-coursing .

The rules for the

government of theatres and places of public entertainment, and the terms of the licences issued, usually prohibit performances on Sundays . The lessees of certain places of public resort in London have in some cases obtained their licences from the London County Council on condition that they do not hold Sunday concerts, but the recent policy of the Council has been not to interfere with or restrict the giving of Sunday concerts unless they are given for private gain or by way of trade . The Council has no legal authority to dispense with the Sunday Observance Act 1781, which enforces penalties on giving entertainments to which persons are admitted by payment of money or by tickets sold for money . The law has been judicially interpreted, however, to mean that charges for reserved seats are not incompatible with free admission . In consequence of this ruling Sunday concerts have been regularly given at the Albert Hall, which is not under the licensing jurisdiction of the London County Council, and at the Queen's Hall and other places within that jurisdiction . No charge is made for admission, but those who wish for seats must pay for them, and the proceeds of the concerts are not made the subject of profit . At the licensing sessions conflicts have annually arisen on this subject between the advocates and opponents of Sunday music . Bands play on Sundays in most of the parks in London, whether royal or under municipal control; and it is said that local authorities cannot make bylaws forbidding bands of music in the streets on Sunday (Johnson v . Croydon Corporation, 1886,16 Q.B.D . 708) . Libraries, museums and gymnasiums maintained by local authorities may, it would seem, be lawfully opened on Sundays, and the national galleries and museums are now so open for part of Sunday . Commercial.—At common law a contract made on Sunday is not void, nor is Sunday trading or labour unlawful, and enlistment of a soldier on a Sunday has been held valid .

At an early

period, however, the legislature began to impose restrictions, at first by making Sunday trade impossible by closing the places of ordinary business, later by declaring certain kinds of trade and labour illegal, still later by attempting to prohibit all trade and labour . 28 Edw . III. c . 14 (1354, now repealed) closed the wool market on Sunday . An act of 1448 (27 Hen . VI, c . 5) prohibits fairs and markets on Sunday (necessary victual only excepted), unless on the four Sundays in harvest—an exemption repealed in 1850 (by 13 & 14 Viet . C . 23) 4 Edw . IV. c . 7 (1464 rep.) restrained the shoemakers of London from carrying on their business on Sunday . An act of 1627 (3 Car .

I. c . 2) imposes a penalty of 20S. on any

carrier, wagoner or drover travelling on the Lord's day, and a penalty of 6s . 8d. on any butcher killing or selling on that day . The act does not apply to stage coaches . Both this and the act of 1625 were originally passed only for a limited period, but by subsequent legislation they have become perpetual . Next in order is the Sunday Observance Act 1677 (29 Car . II. c . 7), " An act for the better observance of the Lord's day, commonly called Sunday." After an exhortation to the observation of the Lord's day by exercises in the duties of piety and true religion, publicly and privately, the act provides as follows: No tradesman, artificer, workman, labourer or other person (ejusdem generis) whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings upon the Lord's day or any part thereof (works of necessity and charity only excepted) ; and every person being of the age of fourteen years or upwards offending in the premises shall for every such offence forfeit the sum of 5s.; and no person or persons whatsoever shall publicly cry, show forth or expose to sale any wares, merchandises, fruit, herbs, goods or chattels whatsoever upon the Lord's day or any part thereof upon pain that every person so offending shall forfeit the same goods so cried, or showed forth, or exposed to sale (s . I) . A barber was held in 1900 not to be a trades-man, artificer, &c. within the act, and to be free to shave customers on Sunday'; nor is a farmer . No drover, horse-courser, wagoner, butcher, higgler or any of their servants, shall travel or come into his or their lodging upon the Lord's day or any part thereof, upon pain that each and every such offender shall forfeit 20s. for every such offence; and no person or persons shall use, employ or travel upon the Lord's day with any boat, wherry, lighter or barge, except it be upon extraordinary occasion to be allowed by some justice of the peace . &c., upon pain that every person so offending shall forfeit and lose the suns of 5s. for every such offence .

In

default of distress or non-payment of forfeiture or penalty the offender may be set publicly in the stocks for two hours (s . 2), a punishment now obsolete . Nothing in the act is to prohibit the dressing of meat in families, or the dressing or selling of meat in inns, cooks' shops—which include fried fish shops (Bullen v . Ward, 1905, 74 L.J.K.B . 916)—or victualling houses for such as cannot be otherwise provided, nor the crying or selling of milk before nine in the morning or after four in the afternoon (s . 3) . Prosecutions must be within ten days after the offence (s . 4) . The hundred is not responsible for robbery of persons travelling upon the Lord's day (s . 5) . This act has frequently received judicial construction . The use of the word " ordinary " in section 1 has led to the establishment by a series of decisions of the principle that work done out of the course of the ordinary calling of the person doing it is not within the act .

Thus the sale of a horse on Sunday by a horse-dealer would not be en-forceable by him and he would be liable to the penalty, but these results would not follow in the case of a sale by a person not a horse-dealer . Certain acts have been held to fall within the exception as to works of necessity and charity, e.g.

baking provisions for customers (but .ot baking bread in the ordinary course of business), running stage-roaches, or hiring farm-labourers . The legislature also intervene) to obviate some of the inconveniences caused by the act . By to Will . Ill. c . 13 (1698) mackerel was allowed to be sold before and after service . By 11 Will . III. c . 21 (1699), forty watermen were allowed to ply on the Thames on Sunday . By 9 Anne, c . 23 (1710), licensed coachmen or chairmen might be hired on Sunday . By an act of 1794 (34 Geo .

III. c . 61), bakers were allowed to

bake and sell bread at certain hours . These acts are all repealed . Still law are the acts of 1762 (2 Geo . III. c . 15 s . 7), allowing fish carriages to travel on Sunday in London and Westminster; 1827 (8 Geo . IV. c . 75), repealing s . 2 of the act of 1677 as far as regards Thames boatmen . The Bread Acts of 1822 (3 Geo . IV. c .

106) allow bakers in London, and of 1836 (6 & 7 Will . IV. c . 37) allow bakers out of London, to carry on their trade up to 1.30 p.m . Since 1871, by an act annually continued (34 & 35 Viet . C . 87), no prosecution or proceeding for penalties under the act of 1677 can be instituted except with the consent in

writing of the chief officer of a police district or the consent of two justices or a stipendiary magistrate, which must be obtained before beginning the prosecution, i.e. before applying for a summons (Thorpe v . Priestnall, 1897, 1, Q.B . 159) . The act of 1871 does not apply to breaches of the Bread Acts (R. v . Mead, 1902, 2 K.B . 212) . A good many bills have been introduced with respect to Sun-day trading .

Most have been directed to the closing of public-houses on that day; but the

Shop Hours Bill introduced in 1907 contained clauses for closing shops on Sundays, with the exception of certain specified trades . The result of the act of 1871 in London has been in substance to make the Lord's Day acts a dead letter as to Sunday trading . The commissioner of police rarely if ever allows a prosecution for Sunday trading . Sunday markets are usual in all the poorer districts, and shopkeepers and hawkers are allowed freely to ply their trades for the sale of eatables, temperance drinks and tobacco . But the conditions ' It is curious that by an order in council of Hen . VI. to regulate the sanctuary of St Martin-le-Grand it was provided that all artificers dwelling within the said sanctuary (as well barbers as others) keep holy the Sundays and other great festival days without breach or exercising their craft as do the citizens of London (Gomme, Governance of London, 1907, p . 329) .