The Portland daily press., 1882-03-22
SUNDAY LAWS.
HOW THEY WE'RE ENFORCED
LONG AGO.
Two Supreme Court Justices Indicted
for Travelling.

the files OF the MaSSacnuSetlS house VI Repfo-
sentatives for the January session. in 1892. 1t is
in the handwriting of Robert Treat Paine, one
of the signers of the Declaration of Independ-
ence. Increase Sumner, who also signs the
memorial, was afterward Governor OF Massa-
chusetts Maine was then and for twenty
eight years afterward part of Massachusetts:
To the honorable the Senate, and TO the honora-
bic the House Of representatives Of ne n con-,
naonDedlth of Massachusetts,, an General
Court assembled this thirtieth day o. Jdnatd-
~ AnnO Don1iai 1892.
humbly shew Robert Treat Paine u Increase
Sumner, two of the Justices OF the supreme
Judicial Court, that on the morning OF the
tenth day of July last, being Lords day, they
in company with Judge Gushing, the Attorney
General and the Clerk of the Court set out
very early, from Portland in order to arrive at
Pownelborough in Season to open the Court
there on the Tuesday following (the Court at
Portland not having finished till late the T, NJ.
before); that about eleven of the Clock a. nj.
they passed through Freeport & were there
Stop'd by Warden for Travelling on the
Lords day; that it was then fully a. repeatedly
explained to the said Warden that the COM
pany thus travelling were the Judges Oh lne
Supreme Judicial Court, the Attorney General
& the Clerk of the Court g. that it was neces-
sary they should thus travel in order to arrive
in season at Pownelborough TO hoia court
there; that the time was short enough II Inc
weather should continue good; q tnat II PAD
weather should arrive or accidents take place,
the court might fall through; and your Memo
rialists considered this as full & satisfactory
answer to the Warden q proceeded on ther
Journey; and with Industry and difficulty ar
rived at Pownelborough the END OF tne alteI-
noon of the Monday then next, and held Court
there the next day according to Law; not
withstanding this your Memorialists have
been unquestionably informed, that at the
County General Sessions held at New Gloces-
ter in & for the county OF Cumberland, on me
first Tuesday OF January, 1892, Complaint
was made to the Grand Jury Of the Sessions
of the said travelling, as being against the
Law of the Commonwealth q that that tney
found bills against your Memoriallsts Tor tne
same. Your Memorialists beg leave to say,
that if they could Suppose they had broken
the said Law by their said conduct. they
would readily make suitable acknowledge
ments, pay the fine and not trouble your
Honors it'll this Representation, Dpt peing
certain that they had ne intention OF breaking
the Law; & had no suspicion that they were
SO doing, & being well Satisfied that they did
not break the said Law, according to the true
intent and meaning OF 1t, they think II their
duty to have this Cause explained q settled III
a manner that will give the most satisfaction
to all parties and to the Government at large
Your Memorialsts therefore beg leave to OBJ
serve that the law for the due Observation OF
the Lords day, forbids travelling on that DAY,
except in Cases of necessity q Charity; and
the fine question that naturally arises here is,
who is to be the Judge of this necessity. The
answer is conceived to be, that the Traveller
in the first Instance must Judge of the neces-
sity; the next question is, what rules mas ne 10
judge by? 1t is presumed that. no other an.
swer can be given, than that it is a matter OF
reasonable discretion, judging [sicl on the
nature of the thing. In the present case
your Memorialists judged it necessary Tor
the business of the lGoyernment, in the exer-
else of their Office, to travel that day.
The Warden and Grand Jury say three
who may reasonably be supposed to be the best
Judges, or will it be said that the Jucg9s
shall in no case travel even tho court tall
through. If they may travel in any given
case, Must not they be the Judges OF the pro-
priety of the particular case? or will it be said
that they must use that discretion at their
peril? & if Warden complains and they are
indicted that they must neglect the duty OF
their office & travel to a distant county, to
learn from a Jury OF the Quarter Sessions
whether they exercised their discretion right,
(the said Jury having no other rule TO gude:
them but their own own particular Opinion TO
set in opposition to the opinion q dis
cretion of the Judges Of the Supreme
Judicial Court: Your Memoralists con-
ceive that business on public Service
has always been considered as coming within
the meaning of the exception in the Law ex-
pressed by the word Necessity Il that in their
present case the said Warden and Grand jury,
if they had exercised that candor and dIscre-
ton which public officers always ought to do,
could but now, that the distance the Judges
had to travel, the uncertainty of good weather,
the difficulty & precariousncss OF a passage Dy
water up Kennebec River made 1t necessary
that they should travel on that day to prevent
the Court at Pownelborough falling through.
where capital trial 81 much other business
was pending; & the Warden & grand jury
must have supposed that the Judges viewed II
in that light or they would never have travelled
on that day Your Memorialsts do not mean to
be considered as Sabbath breakers, they pro-
TESS as much regard to that day as the Christ
ian Religion requires, and that it is very disa-
greable to them to be under such necessity OF
travelling, & that nothing but sense OF duty
to the public in the Execution OF their once
induces them to it: and that having acted in
this particular, Sincerely according to their
best discretion, they are not willing (for oDvl-
GUS reasons) to have the propriety OF their
Judgment determined by the opinions (circum-
stanced as IL may be) of Jury of the Quarter
Session, nor can they think it very consistent
with the due administration of Justice, that
they should lay at the mercy of Warden,
who, under pretence of his office, without re-
garding the duties of it, shall undertake. TO
prosecute them merely to crafty his caprice:
Your Memorlalists therefore pray that the At
torney General may be indicted tsacl to enter
7aolle prosequi on these Indictments; and be-
cause your Memorialists have sincere regard
to the religious observance OF the LORDS day,
according to the sentiments expressed IN the
Preamble to the act for the due Observance OF
it drafted by one of them) they pray the ex-
PLANTATION of the honorable Legislative body on
the said Law, that so your Memorialists, being
Satisfactorily appraised, from the highest Au-
thority, of their duty in this respect, may be
able to comply with it, without running the
risque of being censured in one part OF the
Commonwealth for an action, which IN anoth-
er part OF it would be considered as necessary,
and ur Memorialists as in duty bound shall
ever pray.
INCREASE SUMNER.
Pownalborough (which Mr. Paine perss-
tently spells Pownelborough) is now Wiscasset.
The journey which then occupied two long
days, in favorable weather, may now be made
in three hours, rain or shine.
James Sullivan, who was Attorney General
in 1892, was afterwards Governor Of the State.
The clerk resided in Boston, where the records
and file of the Supreme Judicial Court were
kept, but travelled with the court through the
counties.
The cases were finally disposed of at the May
term of the Court of Quarter Sessions, at Port
land, as shown by the following copy of the
record:
At Court of General Sessions Of the Peace,
for the County of Cumberland, begun and hol-
den at Portland, in said county, on the last
Tuesday of May, A. D., 1892.
JUSTICES PRESENT.
David Mitchell, William Thompson,
William Gorham, John Lewis,
Joshua Fabyan, Richard Codnan,
Isaac Parsons Josiah Thatcher,
Stephen Hall, Nathaniel Larrabee