Over at The Volokh Conspiracy, Juan Non-Volokh just posted a couple of pieces, accompanied by hordes of peoples' comments, on the subject of “blue laws” — Massachusetts' in particular.

In this connection, let's take a look at what blue laws were like during their heyday, which, as profound French observer of early America, Alexis de Tocqueville, noted, ended not during the 1600 or 1700's as one might imagine, but extended far into the 19th century.  Aspects of these laws, as Tocqueville observes, are “well worth the reader's closest attention.”  Tocqueville wrote: ¹

Although the strict puritanism that presided at the birth of the English colonies in America is already much relaxed, one does still find extraordinary traces of it in habits and in laws.

In 1792, that very year in which the antichristian French republic began its ephemeral existence, the Massachusetts legislature promulgated the following law to enforce Sunday observance.  I quote the preamble and the main clauses of it, which are well worth the reader's closest attention.

“Whereas the observation of Sunday is in the public interest; inasmuch as it produces a useful suspension in labor, leads man to reflect upon the duties of life and the errors to which humanity is subject, permits the private and public worship of God the Creator and Ruler of the Universe, and dedication to the acts of charity which are the ornament and comfort of Christian societies;

“Whereas irreligious or light-minded persons, forgetting the duties which Sunday imposes and the advantages society derives from it, profane its sanctity by following their own pleasures or labors; inasmuch as this manner of acting is contrary to their own interests as Christians; that furthermore it is of such a nature as to upset those who do not follow their example, and being a real prejudice to the whole society by introducing there the taste for dissipation and dissolute habits;

“The Senate and the House of Representatives ordain that:

“1.  No one will be permitted on Sunday to keep open his shop or workshop.  No one on that day will occupy himself with any work or business whatsoever, attend any concert, dance, or entertainment, or indulge in any form of hunting, sport, or game, under penalty of fine.  The fine will be not less than ten shillings and will not exceed twenty shillings for each infraction.

“2.  No traveler, conductor, or driver, except in case of necessity, will travel on Sunday, under penalty of the same fine.

“3.  Tavern keepers, retailers, innkeepers, will prevent any resident of their township from coming to their establishment on Sunday to spend time there for pleasure or business.  In case of infraction, the innkeeper and his guest will pay the fine.  Furthermore, the innkeeper can lose his license.

“4.  Anyone who, being in good health and without sufficient reason, fails for three months to attend public worship, will be condemned to a fine of ten shillings.

“5.  Anyone who, within a church, behaves improperly will pay a fine of from five to forty shillings.

“6.  The tithingmen of the townships [Footnote:  These are annually elected officers whose duties resemble those of both the garde champêtre and the officier de police judiciaire in France] are responsible for the execution of the present law.  They have the right to visit all rooms of hotels or public places on Sunday.  The innkeeper who refuses them entrance to his establishment will be condemned to a fine of forty shillings for this act alone.

“The tithingmen will stop travelers and inquire the reason why they are obliged to travel on Sunday.  Whoever refuses to answer will be condemned to a fine which can be five pounds sterling.

“If the reason given by the traveler does not appear sufficient to the tithingman, he will prosecute the said traveler before the justice of the peace of the district.”  (Law of March 8, 1792, General Laws of Massachusetts, Vol. I, p. 410.)  [Tocqueville condensed the legal text; cf. op. cit., p. 407 ff.]

On March 11, 1797, a new law increased the rate of the fines, half of which was to go to the offender's prosecutor.  (Same collection, Vol. I, p. 525.)

On February 16, 1816, a new law confirmed these same measures.  (Same collection, Vol. II, p. 405.)

There are similar clauses in the laws of the state of New York, revised in 1827 and 1828.  (See Revised Statutes, Part I, chapter XX, p. 675.)  It is forbidden therein to hunt, fish, gamble, or frequent places where drink is sold on Sunday.  No one may travel except in case of necessity.

This is not the only trace left in the laws by the spirit of religion and the austere mores of the first immigrants.

In Vol. I, p. 662, of the Revised Statutes of the State of New York there is the following clause:

“Whosoever wins or loses the sum of twenty-five dollars within the space of twenty-four hours by gambling or betting shall be guilty of a misdemeanor, and on proof of the fact will be condemned to a fine equal to at least five times the value of the sum lost or won; the said fine shall be handed over to the overseer of the poor for that township.

“Whosoever loses twenty-five dollars or more can bring an action to recover it.  If he fails to do so, the overseer of the poor can bring an action against the winner and make him pay the sum won, and threefold as much again, for the benefit of the poor.”  [Tocqueville summarizes the text of §§ 13, 14, 15, Article Third: cf. Betting and Gaming, Revised Statutes of the State of New York, Albany, 1829, Vol. I, pp. 662 f.]

The laws just quoted are recent ones, but who would be able to understand them without going right back to the origin of the colonies?  I do not doubt that nowadays the penal part of that legislation is very seldom applied; laws remain rigid when mores have already bent with changing times.  Nevertheless, Sunday observance in America is even now one of the things that strike a stranger most.

In one great American city in particular the whole movement of social life is suspended from Saturday evening on.  If you go through the streets at the hour when you would expect grown-up people to be going to their businesses, and young ones to their pleasures, you will find yourself in profound solitude.  It is not just that no one seems to be working; they do not even seem alive.  One can hear no sound of folk at work or at play, and not even that confused noise which constantly rises from any great city.  Chains are stretched around the churches, and the half-closed shutters reluctantly allow a ray of light to penetrate the citizens' houses.  You may at long intervals just see some isolated man gliding noiselessly through the thoroughfares or along the empty city streets.

At daybreak the next day you will hear again the rumble of carriages, the strokes of hammers, and the shouts of men; the city is waking up; a restless crowd hurries to office or to factory; everything around you is stirring, agitated, and jostling.  Feverish activity has succeeded after a sort of lethargic torpor; one might suppose that each man had but one day's chance of winning wealth and of enjoying it.

¹ Alexis de Tocqueville, Democracy in America, 12th Edition, 1848, edited by J. P. Mayer, translated by George Lawrence, Anchor Books, Doubleday and Co., Inc., New York, 1969; pp. 712-714.  For more on Tocqueville check out Impearls' previously published “Tocqueville acknowledgments and links.”

Labels: Alexis de Tocqueville, blue laws, Massachusetts, New York state

Yesterday was the bicentennial of the birth of profound French observer of early America Alexis de Tocqueville, born 1805-07-29 in Paris, died 1859-04-16 in Cannes in that country.  His monumental work Democracy in America is considered by many to belong among that small, select group of documents which constitute America's “Crown Jewels,” including such notables as the Declaration of Independence, the Constitution, and the Federalist Papers.  Impearls has had occasion to extract from Tocqueville's Democracy in America in the past, for instance, here and here; no doubt we will post from his work again in the future, including excerpts from his remarkable travel diary, published as Journey to America, but for now in celebration of Tocqueville's 200th birthday, we'll include the following little piece. 

Quoting Alexis de Tocqueville's Democracy in America: ^{1, 2}

It was in April, 1704, that the first American newspaper appeared.  It was published in Boston.  {…}

It would be a mistake to suppose that the periodical press has always been entirely free in America; there have been several attempts at establishing forms of anticipatory censorship and bail.

This is what appears in the legislative documents of Massachusetts under the date of January 14, 1722.

The committee appointed by the General Assembly (the legislative body of the province) to examine the affair of the newspaper called The New England Courant “thinks that the tendency of the said journal is to turn religion to derision and to bring scorn upon it; that the sacred writers are there treated in a profane and irreverent manner; that the conduct of the ministers of the Gospel is interpreted with malice; that his Majesty's government is insulted; and that the peace and order of his province are troubled by the said journal; in consequence, the committee proposes that James Franklin, the printer and editor, should be forbidden from printing or publishing in the future either the said journal or any other writing before he has submitted them to the secretary of the province.  The justices of the peace of the county of Suffolk shall be responsible for obtaining bail from Mr. Franklin, to answer for his good behavior during the coming year.”

The committee's proposal was accepted and became law, but its effect was nil.  The newspaper escaped the prohibition by putting the name of Benjamin Franklin instead of James Franklin at the bottom of its columns, and public opinion found the expedient fair.

¹ Alexis de Tocqueville, Democracy in America, 12th Edition, 1848, edited by J. P. Mayer, translated by George Lawrence, Anchor Books, Doubleday and Co., Inc., New York, 1969; p. 719.  For more on Tocqueville check out Impearls' previously posted “Tocqueville acknowledgments and links.”

² For more on Benjamin Franklin and his works, see also Impearls' “Benjamin Franklin and WMD.”

Labels: Alexis de Tocqueville, Benjamin Franklin, Boston, censorship, Democracy in America, free press, Massachusetts