“The Savor of Tyranny” American Sentinel 3, 9, pp. 67, 68.

SENATOR BLAIR’S National Sunday Bill declares that no person shall “engage in any play, game, or amusement, or recreation, to the disturbance of others on the first day of the week, commonly called the Lord’s day, or during any part thereof.” Some of the States already have the same sort of Sunday laws as this. California has no Sunday law, much less one of this kind. But not long ago the city of San Francisco had, on another subject, an ordinance of the same nature as this passage in the National Sunday Bill. San Francisco has no such ordinance now, however; the merit of the ordinance came up before the Superior Court, and the whole thing was treated with the contempt which all such statutes only deserve.

The ordinance read as follows:—

“No person shall in any place indulge in conduct having a tendency to annoy persons passing or being upon the public highway or upon adjacent premises.”

A man by the name of Ferdinand Pape was distributing some circulars on the street, which had “a tendency to annoy” somebody; he 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. The rival tradesman who passes one’s store with an observant eye as to the volume of business is guilty of a crime, because the very thought of rivalry and reduction of business has a tendency to annoy. The passing of the most lenient creditor has a tendency to annoy, because it is a reminder of obligations unfulfilled. The passing of a well-clad, industrious citizen, bearing about him the evidence of thrift, has a tendency to annoy the vagabond, whose laziness reduces him to a condition of poverty and discontent. The importunities of the newsboy who endeavors with such persistent energy to dispose of his stock, has a tendency to annoy the prominent citizen who has already read the papers, or who expects to find them at his door as he reaches home. He who has been foiled in an attempted wrong upon the person or property of another, finds a tendency to annoy in the very passing presence of the person whose honesty or ingenuity has circumvented him. [68] And so 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 tablets 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 Senator Blair’s proposed National Sunday law. Under that 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, or game, or amusement, or recreation, on Sunday, because there are many of those rigid National Reformers who would be very much “disturbed” by any such amusement or recreation, however, innocent it might be in itself. And it is left entirely to the whim or the caprice of the “disturbed” one, or of the judge or jury, to say whether the action has really disturbed him or not.

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.” It is very likely that should Senator Blair’s Bill be enacted into a law, the United States courts would decide in the same way as did the Superior Court of California. But it is an exceedingly ominous sign, and one most startling in the danger which it displays, when a bill which so “savors of tyranny,” and which embodies a principle so “subversive of liberty,” can be introduced into the National Legislature, can be received and reported favorably, can pass two readings, can be spread broadcast throughout the land, and only one single voice—that of the AMERICAN SENTINEL—be raised against it.

The American people have so long enjoyed the liberty, which has been justly their boast, that they seem, from appearances, to think that now they can lie down safely and hibernate undisturbed for all time to come. We wonder what can ever awaken them. “Eternal vigilance is the price of liberty;” but “corrupted freemen are the worst of slaves.”

A. T. J.

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