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.

In 1843 arose the case of Bosworth vs.  Inhabitants of Swansey, 10 Metcalf, 363.  Bosworth was travelling on the eleventh of June of that year, being Sunday, from Warren, Rhode Island, to Fall River on business connected with a suit in the United States Court, and was injured by reason of a defect in a highway in Swansey.

The defendant town admitted that it was by law required to keep the highway in repair.  And plaintiffs counsel argued that as the statute provided a penalty of ten dollars for travelling on Sunday it could not be further maintained that there was the additional penalty that a man could have no legal redress for damages suffered by reason of the neglect or refusal of defendants to do that which the law required them to do.  But the court ruled, Chief Justice Shaw delivering the opinion, “that the plaintiff was plainly violating the law and that since he could recover from the town only, if free from all just imputation of negligence or fault,” in this case he could recover nothing.  In deciding this case, however, the Court was not called upon to construe the terms “necessity or charity,” as affecting the liability of corporations plainly shown to be negligent in the performance of their duties to others; but many such cases soon arose.

In Commonwealth vs.  Sampson, Judge Hoar said, “the definition which has been given of the phrase necessity or charity ... that it comprehends all acts which it is morally fit and proper should be done on the Sabbath may itself require some explanation.  To save life, or prevent or relieve suffering; to prepare useful food for man and beast, to save property, as in case of fire, flood, or tempest ... unquestionably fall within the exception ...  But if fish in the bay, or birds on the shore, happened to be uncommonly abundant on the Lord’s day, it is equally clear that it would furnish no excuse for fishing or shooting on that day.  How it would be if a whale happened to be stranded on the shore we need not determine.”  It is needless to remark that this was a decision affecting the interests of a town upon the coast.

In Feital vs.  Middlesex R.R.  Co., 109 Mass., 398, plaintiff was injured while returning from a Spiritualist meeting in Malden, and counsel for defendant maintained that the meeting was attended for idolatry and jugglery, and while it might be the right of the plaintiff to be an idolater and to attend shows, yet she could not do so in violation of the Statute, which was intended to protect the conscience of the majority of the people from being offended upon the Lord’s day.  But the Court ruled that it could not be said as matter of law that travelling for such a purpose was not within the exception, and that it must be left to the jury to say if the plaintiff was in attendance in good faith for devotional exercise as matter of conscience.