While that San Francisco ordinance was in force, a man by the name of Ferdinand Pape was distributing some circulars on the street, which not only had a tendency to annoy, but actually "annoyed" a business man across the street. Pape was arrested. He applied to the Superior Court for a writ of habeas corpus, claiming that the offense charged against him did not constitute a crime, and that the ordinance making such action an offense was invalid and void, because it was unreasonable and uncertain. The report of the case says: --
"The writ was made returnable before Judge Sullivan, and argued by Henry Hutton in behalf of the imprisoned offender. Disposing of the question, the Judge gave quite a lengthy written opinion, in which he passed a somewhat severe criticism upon the absurdity of the contested ordinance, and discharged Pape from custody. Said the Judge: --
"`If the order be law, enforceable by fine and imprisonment, it is a crime to indulge in any conduct, however innocent and harmless in itself, and however unconsciously done, which has a tendency to annoy other persons. . . . Instances might be multiplied indefinitely in which the most harmless and inoffensive conduct has a tendency to annoy others. If the language of the ordinance defines a criminal offense, it sets a very severe penalty of liberty and property upon conduct lacking in the essential element of criminality.
"`But it may be said that courts and juries will not use the instrumentality of this language to set the seal of condemnation on unoffending citizens, and to unjustly deprive them of their liberty and brand them as criminals. The law countenances no such dangerous doctrine, countenances no principle so subversive of liberty, as that the life or liberty of a subject should be made to depend upon the whim or caprice of judge or jury, by exercising a discretion in determining that certain conduct does or does not come within the inhibition of a criminal action. The law should be engraved so plainly and distinctly on the legislative tables that it can be discerned alike by all subjects of the commonwealth, whether judge upon the bench, juror in the box, or prisoner at the bar. Any condition of the law which allows the test of criminality to depend on the whim or caprice of judge or juror, savors of tyranny. The language employed is broad enough to cover conduct which is clearly within the Constitutional rights of the citizen. It designates no border-line which divides the criminal from the non-criminal conduct. Its terms are too vague and uncertain to lay down a rule of conduct. In my judgment, the portion of the ordinance here involved is uncertain and unreasonable,'"
This decision applies with full force to this proposed national Sunday law. Under this law, all that would be necessary to subject any person to a criminal prosecution, would be for him to engage in any sort of play, game, amusement, or recreation on Sunday; because the National Reformers are as much in favor of this Sunday law as is anybody else, and there are many of those rigid National Reformers who would be very much "disturbed" by any amusement or recreation indulged in on Sunday, however innocent it might be in itself. And it is left entirely to the whim or caprice of the "disturbed" one, or of the judge or jury, to say whether the action really has or has not disturbed him.
The California decision is, that such a statute "sets a very severe penalty of liberty and property upon conduct lacking in the essential element of criminality." California courts "countenance no such dangerous doctrine, countenance no principle so subversive of liberty," or which so "savors of tyranny," as that which is embodied in these words of this Sunday bill.
Nor is this confined to this particular section; the same principle is found in Section 5. This section provides that if any person works for any other person on Sunday, and receives payment for it at any time, then any person in the wide world, except the parties concerned, can enter suit, and recover the money so paid. If you work for me on Sunday, and I pay you for it, then the first man that finds it out can sue you and get the money. That is what the bill says. When wages are paid for Sunday work, "whether in advance or otherwise, the same may be recovered back by whoever shall first sue for the same." Whoever is a universal term. Therefore, this bill deliberately proposes that when any man who is subject to the exclusive jurisdiction of the United States, receives payment for work done on Sunday, except for work of necessity or mercy, he may be sued for that money by whoever first learns that he has received it, and that person shall get the money.
So much for this bill as it reads. Now, as to the work for which the Seventh-day observers of Arkansas were prosecuted. It was not to the disturbance of others. Let me state some of the facts, the authentic record of which I have, but it is too voluminous to present in detail.
With two exceptions, all the arrests and prosecutions were of people who observed the seventh day of the week as the Sabbath. And in these two exceptions, those who were held for trial were held without bail, -- simply on their own recognizance, -- and although the testimony was direct and positive, the jury "agreed to disagree," and the cases were both dismissed; while in every case of a Seventh-day Adventist, the least bail that was accepted was $110; the most of them were held under bonds for $250, and some for as high as $500. There was not a single case dismissed, and in all the cases the complaint was never made that what was done had disturbed the worship or the rest of any one. But the indictments were all for the crime of "Sabbath-breaking" by the performance of labor on Sunday.
The statute of Arkansas at that time ran thus: --
"Section 1883. Every person who shall on the Sabbath, or Sunday, be found laboring, or shall compel his apprentice or servant to labor or perform service other than customary household duties of daily necessity, comfort, or charity, on conviction thereof shall be fined one dollar for each separate offense.
"Section 1884. Every apprentice or servant compelled to labor on Sunday shall be deemed a separate offense of the master.
"Section 1885. The provision of this act shall not apply to steamboats and other vessels navigating the waters of the State, nor such manufacturing establishments as require to be kept in continual operation."
In the case of Mr. Swearingen, mentioned by Senator Crockett, the conviction was upon the testimony of a witness who swore that the work for which he was convicted was done on a day which proved to be seventeen days before the law was enacted, thus by its enforcement making the law ex post facto. The Constitution of the United States forbids the making of ex post facto laws. But when a law not being ex post facto in itself, made so by its enforcement, it is time that something was being done to enlighten courts and juries upon that subject, even though it should be by an amendment to the Constitution of the United States, providing that no law not being ex post facto in itself shall be made so by its enforcement. Then, no the other hand, several cases were tried, and the men convicted and fined after the law was repealed, though for work done before.
In almost every case the informer, the prosecuting witness, or perhaps both, were men who were doing work or business on the same day, and sometimes with the very persons accused; yet the man who kept the seventh day was convicted in every instance, while the man who did not keep the seventh day, but did work or business with the man who did, was left entirely unmolested, and his evidence was accepted in Court to convict the other man. I give some instances: --
First, a man by the name of Millard Courtney, who was the prosecuting witness against two men, Armstrong and Elmore, had taken a man with him to where these men were working, and there they made a contract for roofing a school-house; and yet Courtney's evidence convicted these two men of Sabbath-breaking at the very time he was doing business with them.
Second, J. L. Shockey was convicted upon the testimony of a man by the name of Hammond, who went to him on Sunday where he was at work, and bargained with him for a Plymouth Rock rooster.
Third, J. L. James, who worked in the rain for nothing on Sunday that a poor widow, a member of another church, might be sheltered, was convicted of Sabbath breaking upon the evidence of a man who carried wood and chopped it up that same day within seven rods of the man who was convicted by his testimony.
Fourth, one La Fever and his wife went to Allen Meeks's house on Sunday to visit. They found Meeks planting potatoes. Meeks stopped planting potatoes, and spent the rest of the day visiting with them; and yet Meeks was convicted of Sabbath-breaking and fined upon the evidence of La Fever.
Fifth, the second case of Mr. Meeks. Riley Warren went to his house on Sunday, to see him about hiring a teacher for the public school. In the social, neighborly conversation that passed between them, Meeks incidentally mentioned that he had mended his wagon-brake that morning; and yet he was convicted of Sabbath-breaking upon the evidence of that same Riley Warren. Meeks was thus virtually compelled to be a witness against himself, -- clearly another violation of both the State and United States Constitution.