INTRODUCTION
2.1 In New South Wales and in many other communities around the world Sunday has special characteristics that set it apart from other days of the week. Those characteristics have been moulded by a variety of influences including religious and customary practices of ancient origin as well as more recent (but now well-established) social attitudes towards labour and leisure. Some understanding of the institutional nature of Sunday and Sunday observance and its background and history is necessary for a balanced consideration of the reform of law (even a relatively minor law such as the one here in question) that regulates a particular activity on that day. It is desirable to know why such law was enacted in the first place.
2.2 The purpose of this Chapter is to provide a perspective in relation to the diverse laws that control Sunday activities in New South Wales and in particular the laws relating to the service of legal process. For this reason it is necessary to devote some attention to the history of English legal developments, particularly from the early seventeenth century. For much of the material in paragraphs 2.3 to 2.12 we are indebted to the Ontario Law Reform Commission’s detailed and thorough Report on Sunday Observance Legislation, presented in 1970, and to assistance given us by Rabbi Raymond Apple of The Great Synagogue, Sydney.
HISTORICAL BASIS
Before Christianity
2.3 The concept of a regularly recurring Sabbath with special restrictions and rituals observed on that day, is of ancient origin. In his Introduction to the Critical Study and Knowledge of the Holy Scriptures, as quoted in the report of the Ontario Law Reform Commission T.H. Horne wrote:
One of the most striking collateral confirmations of the Mosaic history of the creation is the general adoption of the division of time into weeks, which ... has equally prevailed among the Hebrews, the Egyptians, Chinese, Greeks, Romans and northern barbarians, nations some of which had little or no intercourse with others, and were not even known by name to the Hebrews.1
However, the weeks into which time was divided did not always comprise seven days, nor were they always of equal length. Weeks were usually subdivisions of the lunar month; some communities divided the month into four, with three seven- day weeks and one eight- or nine- day week; others divided months into three, five or six parts, thereby obtaining ten-, six- or five- day weeks. A ten- day week was customary among ancient Egyptians, Greeks, Chinese and Japanese as well as some African and American Indian tribes, but almost everywhere it has long since been superseded by the Semitic seven-day week Some writers trace a link between the notion that the phases of the moon were critical days, and the institution of a weekly day of rest when certain types of activity are specially proscribed or prescribed.
2.4 The Greeks and Romans of antiquity named the days of the week in honour of planets and deities. The first day of the week was to them “the day of the sun”, the second “the day of the moon”’, and the seventh or last “the day of Saturn”.2 The names so given to days of the week have survived unchanged (except for literal translation) to the present time in many Western societies. Thus, “the day of the sun” became “Sunnandaeg” to the Anglo- Saxons, “Sonntag” to the Germans, and “Sondag” to the Swedes and Danes.3 Sunday was both the product of and the proper time for the pagan practice of sun worship.
2.5 In many societies the weekly Sabbath became a day of rest for man and beast and a day of religious worship, thus assuming a different character from the evil or unlucky days which was the character given by other societies to the phases of the moon In the Bible, the seventh-day Sabbath, independent of the phases of the moon is so firmly rooted an institution4 that in Genesis 2:2-3 (and elsewhere), its commencement is dated from the creation of the world:
And on the seventh day God ended his work which he had made; and he rested on the seventh day from all his work which he had made. And God blessed the seventh day and sanctified it: because that in it he had rested from all his work which God created and made.5
2.6 The fourth of the Ten Commandments given to Moses begins (according to the Book of Exodus) with the words:
Remember the sabbath day, to keep it holy.6
The word “remember” implies that the Sabbath is a long established institution.
Sunday Observance After Christianity
2.7 The observance of the Sabbath (on Saturday) had become a hallmark of Judaism by the beginning of the Christian era.7 Christian belief holds that Christ died on Good Friday and that his resurrection occurred two days later on the first day of the week Following his death Sunday soon came to be known among Christians as “the Lord’s day”.8 While the followers of Christianity remained identified with the Jewish faith the weekly commemoration of both the Sabbath (Saturday) and the Lord’s day (Sunday) by its adherents became established. It is to be remembered that the earliest centre of Christianity was Jerusalem and that the first Christians were also Jewish. It has been written that “without the Jewish heritage of observing one day in seven as holy, the weekly commemoration of the resurrection would hardly have arisen”.9
2.8 This pattern persisted whilst Christianity remained predominantly Jewish. As it became predominantly gentile the Saturday Sabbath was gradually abandoned and the Sunday Lord’s Day was emphasised.10 Judaism however, has continued to maintain its seventh-day Sabbath whilst Islam denominated Friday as the day of public worship and observance.
Roman Laws for Sunday Observance
2.9 The first formal laws requiring Sunday observance under pain of punishment “are attributed by virtually all authorities to the Roman Emperor Constantine in 321 A.D.”11 Constantine’s edicts were more consistent with pagan sun worship than with Christian beliefs and began with the words “Let all judges and all city people and all tradesmen rest upon the venerable day of the sun.”12 At that time Christians numbered only about 5 per cent of the population of the Roman Empire.
2.10 However Christianity spread with such rapidity that in 380 A.D.it was made the official religion of the Roman Empire. Six years later the first civil legislation to use the term “Lord’s day” was published in Rome. It began with the words:
On the day of the sun, properly called the Lord’s day by our ancestors, let there be a cessation of law-suits, business and indictments ...13
Sunday Observance Laws Under the Holy Roman Empire
2.11 From the fifth century onwards most of Europe was under the sway of Christendom and laws requiring the observance of Sunday as part of the Christian religion became normal.14
ENGLISH EXPERIENCE
Sunday Observance Laws in England Before and After the Norman Conquest
2.12 In Saxon England laws regulating behaviour on Sunday were inspired by the edicts of the Holy Roman Empire and were in force at the time of the Norman Conquest in 1066. Thereafter Sunday observance in England (and Europe generally) declined and it was not until the fifteenth century that strong legislation began to reappear.15
Sunday Observance Laws in England After the Reformation
2.13 After the appearance of Protestantism post-Reformation Europe saw the assertion of a stricter and more authoritarian attitude to religious practice. From the sixteenth to the nineteenth century England created extremely restrictive Sunday observance legislation. These laws not only curtailed work commercial activities and recreation on Sunday but required open adherence to the practice and doctrines of the established Church of England.16
Sunday Observance Laws in England - the Seventeenth Century
2.14 The first “modern” Sunday observance legislation was enacted in the early seventeenth century. It was a time of intense political-religious controversy between those politicians who combined with Protestant non-conformists (Calvinists) on the one hand, and those who combined with orthodox Anglicans and Roman Catholics on the other. This had a powerful effect upon legislation Holdsworth writes:
it is true that there is no necessary connection between the theories at the root of Calvinistic Protestantism and parliamentary government, any more than there is between the theories at the root of high Anglican tenets and prerogative government But ... as the reign [of James I after 1603] went on ... the successes of Roman Catholics on the Continent ... and the relaxation of the penal laws against the Roman Catholic gave to [the Calvinists] ... a greatly increased strength. [Their] demands were met not by concession but by repression. The order to read the Declaration of Sports, which struck at widespread views as to the manner of keeping holy the Sabbath day, raised so great a resistance that it was necessary to withdraw it ... religious questions took a place of constantly increasing importance in the debates of the House of Commons.17
[W]e can trace Puritanical influences in legislation directed against profane swearing, and against the profanation of the Lord s day either by doing certain kinds of work or by meetings of persons for sport out of their own parishes.18
2.15 The Sunday Observance Act 162519 was the earliest of these “modern” statutes, Originally entitled “An Act for punishing of divers abuses committed on the Lords day called Sunday”, it forbade
meetings, assemblies or concourse of people out of their own parishes on the Lord s day within this realm of England, or any dominions thereof for any sports or pastimes whatsoever.
It also prohibited bear- baiting, bull- baiting, common plays, and other pastimes by all persons ,. within their own parishes”.
2.16 The 1625 Act was followed two years later by another unofficially called The Sunday Observance Act of 1627,20 which imposed additional restrictions on Sunday activity. The 1627 Act was entitled “An Act for the further reformation of sondry abuses committed on the Lords Day comonlie called Sunday”, and was aimed at “carriers, waggoners, carters, waynemen, butchers and drovers of cattle”, who were all forbidden to travel or carry on their trades on Sunday.
2.17 The statute that achieved the most far-reaching effect was The Sunday Observance Act 1677.21 Section 1 of this Act related to Sunday trading and labour generally, prohibiting every tradesman, artificer, workman, labourer, “or other person whatsoever” from doing or exercising any “worldly labour, business, or work of their ordinary callings upon the Lords day”. The section also imposed restrictions upon retail trading, as did section 2 upon the behaviour of drovers, horsecoursers, waggoners, butchers and higlers. The Act (section 3) made concession to a few of the facts of ordinary life by permitting on Sunday the sale of milk before 9am and after 4pm, and the sale of meat in “inns, cookeshops or victualling houses” for people who were unable to provide their own.
2.18 As mentioned in paragraph 1.3 current New South Wales legislation governing the subject matter of this report stems from the provisions of section 6 of The Sunday Observance Act 1677, which was in the following terms:
6. Service of process on the Lords day (exception) void- Persons serving the same liable to action - Provided also that no person or persons upon the Lords day shall serve or execute or cause to be served or executed any writt, processes warrant, order judgment or decree (except in cases of treason felony or breach of the peace) but that the service of every such writt, processes warrant, order judgment or decree shall be void to all intents and purposes whatsoever and the person or persons soe serveing or executeing the same shall be as lyable to the suite of the partie grieved and to answere damages to him for doeing thereof as if he or they had done the same without any writt, processe warrant order judgment or decree at all.
2.19 The 1677 statute remained in force in England until 1969,22 and was a model for legislation in many countries including Australia, where parts of it remain in force by one means or another to this day.23
Sunday Observance Laws in England - the Eighteenth and Nineteenth Centuries
2.20 Restriction by law of Sunday entertainments and performances was introduced in England in the eighteenth century by The Sunday Observance Act 1780.24 Prohibitions under this act forbade public entertainment including the practice of opening places of amusement on Sunday evenings and holding debates upon biblical texts “by incompetent persons”.25 Places kept for these purposes for which an admission fee was charged were deemed to be disorderly houses and their keepers were liable to pay a fine of 200 for each day that the place was kept open Other penalties, down to 50, were imposed on their managers, door- keepers, and persons concerned in advertising them.26 The gravity of these offences as seen by Parliament, may be gauged from the fact that 100 was some three hundred times more than a typical average weekly wage of an agricultural or industrial worker (six or seven shillings).
2.21 Statutory reform in the nineteenth century removed some of the inconveniences to society caused by the 1677 Act. The Sunday Observation Prosecution Act 187127 was passed for the express purpose of limiting prosecutions under the 1677 Act. Section 1 made prosecution more difficult by requiring the previous consent in writing either of the chief officer of the police district in which the offence was committed, or of two justices of the peace, or of a stipendiary magistrate having jurisdiction in the place where the offence was committed. A justice of the peace or a magistrate who gave such a consent was prohibited from hearing the case itself.28 The 1871 Act has been described as having the effect of virtually abolishing the Sunday Observance Acts of the seventeenth century insofar as Sunday trading was concerned.29
2.22 Sunday observance statutes also had an effect upon the laws of contract. At common law a contract made on a Sunday is valid, but it was held in 1827, pursuant to The Sunday Observance Act 1677, that contracts made and completed on Sunday in relation to “any business” were unlawful void and invalid.30 On the other hand, contracts not within the ambit of the Act could, in principle, be enforced even though made on a Sunday.
Sunday Observance Laws in England - the Twentieth Century
2.23 In England the strictness of the Sunday observance statutes was gradually relaxed in the twentieth century. However, a deal of regulation by statute still persists in relation to retail trading, entertainment sport and working conditions.31 In 1906 a joint Select Committee of both Houses of Parliament inquired into Sunday trading.32 In 1947 the Gowers Committee reported on the closing hours of shops.33 In 1964 another Government Committee, under the chairmanship of Lord Crathorne, produced a substantial report on the Law of Sunday Observance.34 Following the Crathorne report the British Parliament in 1969 repealed the bulk of the Sunday observance statutes enacted prior to the twentieth century. The Statute Law (Repeals) Act 1969 specifically repealed,35 so far as unrepeated to that time, The Sunday Observance Act 1625, the so-called Sunday Observance Act of 1627, The Sunday Observance Act 1677 and The Sunday Observation Prosecution Act 1871.
England - Effect of Sunday on Parliamentary and judicial Proceedings
2.24 Parliament in England has on occasions sat on Sunday in times of national emergency, and Saturday sittings have taken place which have extended into the early hours of Sunday.36
2.25 The courts developed their own principles concerning the validity of judicial activities on Sunday. In 1966, in proceedings entitled In re “N” (INFANTS),37 Mr. Justice Stamp of the Chancery Division of the High Court of justice, traced the history of English common law and equitable rules governing judicial acts on Sunday. The particular litigation involved a parental dispute over the custody of two schoolchildren who, by agreement between their parents, had been at school in Switzerland. On Saturday, 15 October 1966, the father removed them from the school and took them to Australia. On the next day, Sunday, the mother applied in England as a matter of urgency to a High Court Judge at his private residence, for an order that the father return the children to the school or bring them into England. The judge made the order sought Subsequently, doubt was expressed by officers of the court as to the validity of the order because it had been made on a Sunday. An application for directions was then made by the wife to the Chancery Division to determine the question Mr. Justice Stamp held that the interlocutory injunction was not invalid or defective because it had been made on a Sunday. In the course of his judgment His Lordship made the following observations:
The authorities show, beyond doubt, that at common law, Sunday, like other holy days, was a dies non juridicus:38 see Mackalley’s Case a case decided in 1611, which was considered to be of so much importance that all the judges in England were called together to consider whether a man could lawfully be arrested on Sunday and where, according to the report, it was held that “... no judicial act ought to be done on that day, but ministerial acts may be lawfully executed on the Sunday, for otherwise peradventure they can never be executed”, Swann v. Broome, where Lord Mansfield held that by law a valid judgment could not possibly be given on a Sunday and, therefore, a judgment could not be supposed to have been given. See also Lord Coke: “Dies non juridici sunt dies Dominici”,39 the Lords days, throughout the whole year.” See Blackstone’s Commentaries, 16th ed. (1825), Vol III, at p.276:.. no proceedings can be held, or judgment can be given or supposed to be given on the Sunday and see also Harrison v. Smith, where it was held that a judgment for want of a plea could not be signed on a dies non juridicus at common law. It is clear that at common law Sunday was not to be profaned by the tumult of forensic litigations.
I accept the submission that acts whick in the language of common lawyers, were described as judicial acts could not, and subject to statute providing to the contrary, cannot, now be lawfully done on Sunday.40
2.26 Mr Justice Stamp held that although Sunday was a dies non juridicus at common law, the equitable jurisdiction of the Lord Chancellor was historically a separate jurisdiction that could be exercised on Sunday. He also found that this jurisdiction could still be exercised by judges whose powers include applying the rules of equity. The power to make the orders sought in the instant case was derived from equitable jurisdiction and could therefore be properly exercised on Sunday.
2.27 It will be seen from In re “N” (INFANTS) that at common law “ministerial acts” (which include the service of court process) may be lawfully be carried out on Sunday. This reservation justifies the limited meaning given to the expression dies non juridicus as “a day on which no judicial act can lawfully be done”. Without such an interpretation the word juridicus might well extend to more acts than judicial acts, for example to the service of process, which some might regard as covered by the expression “judicial administration”. In the case in question the court decided that although Sunday was a dies non juridicus at common law the development of the equitable jurisdiction of the Lord Chancellor had taken a course under which when rules of equity are applicable, an injunction may be granted on Sunday.
England - Sunday and Labour Laws
2.28 In 1788 Parliament enacted the first of the statutes that were to be woven into another strand in the thread of Sunday observance- the regulation of Sunday labour conditions aimed to preserve the interests of employees. In that year “An Act for the Better Regulation of Chimney Sweepers and their Apprentice”41 provided that every master chimney sweep was obliged to cause his “apprentice to be thoroughly washed and cleansed from soot and dim ... and to attend the public worship of God on the Sabbath Day......”
2.29 In paragraph 5.2 we comment on the changed character of Sunday to day as compared with the past three centuries, and the recurrent social habit of moulding existing social conventions to new circumstances. Comparable adaptation of Sunday observance is disclosed by paragraphs 2.3 to 2.11. In England the development of the industrial revolution saw the emergence of new and positive industrial attitudes towards Sunday and existing rules of Sunday observance. There was an increasing demand for Sunday retail trading. As the Crathorne Report observes, many workers did not receive their wages until Saturday night and because of the long working day their only opportunity for shopping was on Sunday.42 At the same time, the need for at least one day of rest or leisure for workers led to pressure to restrict work on Sunday by means of laws that controlled retail trading, delivery of goods, and other activities and imposed “penalty” rates for Sunday work. In the result a great deal of industrial law and regulation has evolved around Sunday over the past 150 years.43
OTHER COUNTRIES - SUNDAY AND LABOUR LAWS
2.30 The 1921 Convention of the international Labour Organisation relating to weekly rest in industrial undertakings recognised the possibility of decentralisation of laws relating to the requirement of one days rest in seven when it provided in Article 2(3) that the day of rest “shall wherever possible be fixed so as to coincide with the days already established by the traditions or customs of the country or district”. As pointed out by the Law Reform Commission of Canada in its report Sunday Observance in 1976, it was conceivable (but not probable) that the day of rest should be stipulated as a day other than Sunday. The Canadian Commission continued:
In fact only one of the many nations which are signatories of the 1921 ILO Convention the State of Israel has specified a day other than Sunday, although clearly there are federal countries like the United States, Australia and Germany where the substantive rules of Sunday regulation are determined at the local rather than the national level.44
2.31 In its lengthy historical review of international Sunday observance in 1970 the Ontario Law Reform Commission observed that
[t]he principle of a weekly rest of at least one day in seven is provided by law in practically every country in the world. The International Labour Organisation has established weekly rest conventions for industry and for commerce and offices.45
There are very few countries in the world in which Sunday has not been chosen as the uniform pause day by legislation.46
The Ontario report cites secular and non-Christian societies such as Soviet Russia, Yugoslavia, and Japan as examples of those who have selected Sunday for this purpose.47
FOOTNOTES
1. Ontario Law Reform Commission Report on Sunday Observance Legislation (1970), p.73.
2. Oxford English Dictionary, (1933), vol X. p.156: Id., vol VI, p.601: Id., vol IX, p.125.
3. Id., vol X p.156.
4. Ontario Law Reform Commission note 1 above, p.71.
5. Id., p.69.
6. Old Testament Exodus 20:8-11: see also Deuteronomy 5:12 for an alternative beginning of the Fourth Commandment.
7. See New Testament, Mark 2:23-28; Luke 6:6-11; John 5:1-16.
8. New Testament first reference in Revelations 1: 10: see note 1 above, p.72.
9. Ontario Law Reform Commission note I above, p.72.
10. Ibid.
11. Id., p.383.
12. Ibid.
13. Id., p.385.
14. Id., pp.74, 387, 388
15. Id., pp.391, 392.
16. Law Reform Commission of Canada, Report on Sunday Observance (1976), p.8.
17. Sir William Holdsworth, A History of English Law (1966 reprint), vol VI, pp.129-130.
18. Id., vol IV, p.514: see also vol Vl, p.404.
19. 1 Charles 1 c.l. The modern title was given by the Short Titles Act 1896 (Eng.) (59 & 60 Vic. c.14).
20. 3 Charles 1 c.2.
21. 29 Charles 2 c.7: “An Act for the better Observation of the Lords day commonly called Sunday.”
22. See para-2.23.
23. See Chapter 4 generally.
24. 21 Geo.3 c.49: “An Act for preventing certain abuses and Profanations on the Lord’s Day, called Sunday.”
25. Sir William Holdsworth, note 17 above, vol Xl, p.547.
26. The Sunday Observance Act 1780, ss. 1,3; see also para. 3.5.
27. 34 & 35 Vic. c.87.
28. Id., c. 1.
29. Encyclopaedia Britannica (1962 ed), vol 21, p.566.
30. Smith v. Sparrow (1827) 4 Bing 84:130 ER 700, per Best C.J., Park Burrough and Gaselee JJ. Respectively at pp.701-702.
31. For summary of English law, see note 1 above, Appendix 111, at pp. 419-424.
32. Report of the joint Select Committee (House of Commons) (1906), p.275.
33. Report of Committee of Inquiry into the Closing Hours of Shops (Cmnd. 7105, 1947).
34. Report of the Departmental Committee on the Law on Sunday Observance (Cmnd. 2528, 1964).
35. See s.1 and Part IV of the Schedule to the act. The repealed acts include the whole of the Sunday Observance Act 1677 “so far as unrepealed” and other Acts of the fifteenth, seventeenth nineteenth and twentieth centuries.
36. Encyclopaedia Britannica (1962 ed), Vol 21, p.566.
37. [1967] CLD. 512.
38. “Dies non juridicus” means “a day on which no judicial act or act involving judicial administration maybe performed”.
39. “Dies non juridici sunt dies Dominici” means “Sundays are days on which no judicial act or act involving judicial administration may be performed”.
40. [1967] Ch.D. 512, at p.523.
41. 28 Geo.3 c.48 (1788), see note 1 above, p.401.
42. Crathorne Report note 34 above, p.4.
43. See note 1 above, p.419 et seq.
44. Law Reform Commission of Canada, note 16 above, p.56.
45. Ontario Law Reform Commission note 1 above, p.265.
46. Id., p.269.
47. Id., p.270.
