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JAMES M. POOL.

Mr. Pool, another observer of the seventh day, was indicted, at Fayetteville, for Sabbath-breaking, in September, 1885. The only witness in this case was a Mr. J. W. Cooper, a member of the Presbyterian church, who went to Mr. Pool's house on Sunday morning to buy some tobacco, and found Mr. Pool hoeing in his garden. At his trial, Judge Pittman pronounced Mr. Pool guilty, and fined him one dollar and costs, amounting to $30.90.

JAMES M. POOL, THE SECOND TIME.

Mr. Pool was indicted a second time at Fayetteville in September, 1886, and placed under bonds of two hundred fifty dollars for his appearance at court May 16, 1887. The clause exempting observers of the seventh day was restored before the day of the trial. He was tried, however, under the indictment, and fined one dollar and costs, amounting to $28.40, the court not being aware, it seems, of the restoration of the exemption.

JOE MC COY.

Mr. McCoy, of Magnet Cove, moved from Louisville, Kentucky, to Arkansas, in 1873. He served as constable seven years, and two terms as justice of the peace, in Hot Spring county. In 1884 he became a Seventh-day Adventist. August, 1885, he was indicted for Sabbath-breaking, the particular charge against him being plowing on Sunday. The witness against him was a Mr. Reatherford, a member of the Methodist church, who went into the field where Mr. McCoy was plowing, and spent several hours with him, walking around as he plowed. The work was done half a mile from any public road and entirely away from any place of public worship. In September Mr. McCoy was arrested and placed under bonds. Fearing that not only his small farm but his personal property would soon be consumed in paying fines and costs, he at first decided to leave the country; but a portion of his costs being remitted after his trial, and receiving some assistance from friends, he concluded to remain. With tears in his eyes, he said to a friend that while he was reckless and wicked he was not molested; but that as soon as he turned and began to live a religious life, he was prosecuted and fined for it.

JOHN NEUSCH.

February, 1886, Mr. Neusch, of Magnet Cove, a fruit raiser, was indicted for gathering early peaches which were overripe and were in danger of spoiling, on Sunday, June 21, 1885. He was half a mile from any public road and some distance from any place of public worship, and not in sight of either. The only ones who saw him gathering the fruit were a brother and a man who came to see him in settlement for some peaches which had been stolen by a young

The informer wished to buy tobacco on Sunday.

Prosecuting witness a Methodist.

Inclined

to leave country.

Picking peaches treated as

a crime.

A medical

student fined six

teen dollars.

Worked in shop.

Property

sacrificed for hauling rails on Sunday.

Board in prison charged.

man from Mr. Neusch's orchard on the preceding Sunday, and to ask that the young man be not prosecuted. Mr. Neusch refused to take pay for the peaches, and promised to say nothing about the offense on condition it was not repeated. Following the decision of the Supreme Court in the Scoles case, Mr. Neusch confessed judgment, and paid fine and costs, amounting to twenty-five dollars. Mr. Neusch was an observer of the seventh day.

ALEXANDER HOLT.

Mr. Holt, a Seventh-day Adventist of Magnet Cove, a medical student of the Memphis Hospital and Medical College, Memphis, Tennessee, was indicted in February, 1886, for having worked on a farm in the northern part of Hot spring county on Sunday, October 11, 1885. The work performed was one mile from any place of public worship. At his trial at Malvern in February, 1887, he was convicted, his fine and costs amounting to sixteen dollars, which he paid,

WILLIAM H. FRITZ.

Mr. Fritz, of Hindsville, Madison county, was indicted in April, 1886, for Sabbath-breaking, and placed under two hundred fifty dollar bonds. The offense charged was that of working in his wood shop on Sunday. The shop was in the country, and two hundred yards from the public road. His fine and costs amounted to twentyeight dollars. Mr. Fritz was a Seventh-day Adventist.

Z. SWEARINGEN AND SON.

Mr. Swearingen, a member of the Seventh-day Adventist church. had moved from Michigan to Arkansas in 1879, and settled on a small farm eleven miles south of Bentonville, the county seat of Benton county. He and his son Franz, seventeen years old, were indicted in April, 1886, upon the charge of Sabbath-breaking, the charge being that of hauling rails on Sunday, February 14, 1885.' Mr. J. W. Walker, attorney for the defendants, explained to the jury that the defendants conscientiously observed the seventh day of the week as the Sabbath, in accordance with the faith and practice of the church of which they were members. They were, nevertheless, assessed fines and costs amounting to $34.20. Not having the money with which to pay these, they were sent to jail October 1, 1886, until the money should be secured. October 13, the sheriff levied on and took possession of a horse belonging to Mr. Swearingen. October 25, the horse was sold at sheriff's sale for $26.50, leaving a balance against Mr. Swearingen of $7.70, yet both he and his son were released the same day the horse was sold. December 15, the sheriff appeared again on the premises of Mr. Swearingen, presenting a bill for $28.95, $21.25 of which, he said, was for the board of Mr. Swearingen and his son while in jail, and $7.70 the balance due on fine. 1 Seventeen days before the exemption clause was repealed. See page 654.

Mr. Swearingen had no money to pay the bill. The sheriff thereupon levied upon his horse, harness, wagon, a cow, and a calf. Before the day of the sale, however, Mr. Swearingen's friends raised the money by donations, paid the bill, and secured the release of his property.

I. L. BENSON.

Prosecu

tion of non

Mr. Benson was not at the time of his alleged offense a member of any church, made no pretensions of religious faith, and did not observe any day. He had a contract for painting the railroad bridge across the Arkansas River at Van Buren, Arkansas. He worked a set of hands on the bridge all days of the week, Sundays included. In May, 1886, Mr. Benson and one of his men were arrested on the charge of Sabbath-breaking. They were taken to Fort Smith, and arraigned before a justice of the peace. The justice did not put them Sabbatathrough any form of trial, nor even ask them whether they were guilty or not guilty, but read a section of the law to them, and told them he would make the fine as light as possible, amounting, with costs, to only $4.75 each. They refused to pay the fines, and were placed in custody of the sheriff. The sheriff gave them the freedom of the place, only requiring them to appear at the justice's office at a certain hour. Mr. Benson telegraphed to his attorney to attend to the cases.

rians.

Light fine.

Bonds not required.

Mr. Benson and his men appeared before the justice for a hearing. It was granted, with some reluctance. The attorney, Mr. Bryolair, told the justice it was a shame to arrest men for working on the bridge at the risk of their lives to support their families, when the public work in their own town was principally done on Sunday. The trial was set for the next day. The accused were not placed under any bonds, but were allowed to go on their own recognizance. The following day a jury was impaneled, and the trial begun. The deputy sheriff was the leading witness, and swore positively that he saw the men at work on Sunday. The jury brought in a verdict to the effect that they had "agreed to disagree." This was on Wednesday. The following Monday was set for a new trial. No bonds were required. The defendants appeared at the time appointed, and pleaded not Case guilty. The justice, after giving them a brief lecture, dismissed the dismissed.

case.

Later Mr. Benson became a Seventh-day Adventist. He doubtless would not have fared so well had he been of this faith when arrested, as the prosecution against members of this church clearly indicated.

SAVORS OF RELIGIOUS PERSECUTION.

Commenting on this Sunday-enforcement crusade in Arkansas, and the character of the people being prosecuted, an article in the St. Louis Globe-Democrat," of November 30, 1885, said:

66

"They have been from the first apparently an industrious and God

Charac

ter of Adventists.

Repeal of exemption clause.

Adventists

alone prosecuted.

Baptists persecuted in Virginia.

Henry's

entrance into court.

His speech.

fearing people, the chief difference between them and other Christian bodies being that they observe the seventh day as the Sabbath, according to the commandment. But it seems that sectionalism cannot lay down its arms even when the sacred precincts of religion are entered, so among the first things performed by the Legislature at its session last winter, less than a year after these people had come into the State, was the repeal of the clause which gave them the liberty to keep the day of their choice. . . . It is a little singular that no one else has been troubled on account of the law, with perhaps one minor exception, while members of the above denomination are being ar rested over the whole State. It savors just a trifle of the religious persecution which characterized the dark ages."1

SPEECH OF PATRICK HENRY.

Similar prosecutions to the foregoing occurred in Virginia in its early history. From 1768 to 1775 Baptists were frequently arrested on the charge of "disturbing the peace." Jefferson, Madison, and Henry were all radically opposed to any interference in matters of religion, and were zealous supporters of the rights of conscience. So in this case Mr. Henry came fifty miles to defend some Baptist ministers who had been arrested. The only difference in the two cases is that those ministers were arrested for preaching the gospel as they believed the Bible commanded them, and Rev. Scoles was arrested for keeping the commandments of God, as he believed the Bible commanded him. In relating the case, the historian says:

"He [Mr. Henry] entered the court-house while the prosecuting attorney was reading the indictment. He was a stranger to most of the spectators; and being dressed in the country manner, his entrance excited no remark. When the prosecutor had finished his brief opening, the new-comer took the indictment, and glancing at it with an expression of puzzled incredulity, began to speak in the tone of a man who has just heard something too astounding for belief:

"May it please your Worships, I think I heard read by the prosecutor, as I entered the house, the paper I now hold in my hand. If I have rightly understood, the king's attorney has framed an indictment for the purpose of arraigning and punishing by imprisonment these three inoffensive persons before the bar of this court for a crime of great magnitude,— as disturbers of the peace. May it please the court,

1 The Supreme Court of the State confirmed the decision of the lower court, and in this case, as in the case of Shover v. the State, ante page 414 et seq., the Sunday law was held to be constitutional. The decision, however, was not written out.

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Similarity 2 There are some striking similarities in the indictments of the Baptists in the eightof present eenth century and those of the Sabbatarians now. Baptists were arrested for disturband past persecutions. ingithe peace: "Sabbatarians are now arrested because they "perform labor... againsų the peace and dignity of the State." Judging from present appearances, dis

665

exclamations.

what did I hear read? Did I hear it distinctly, or was it a mistake of Henry's my own? Did I hear an expression as of crime, that these men, whom your Worships are about to try for misdemeanor, are charged withwith with what?'

turbing the peace" will prove as convenient (though on account of the penalties being so much less severe, will not prove as effectual) a charge on which to arrest persons whose opinions are troublesome, as the charge of "treason" formerly did in England.

In the proposed Blair Sunday bill, and in many of the State Sunday laws, provision is made for the exemption of "conscientious" Sabbatarians from the penalties of the law for labor upon Sunday, "provided such labor be not done to the disturbance of others." The worthlessness of any such provision as this, however, is manifest; for some people are "disturbed" even when they hear of a Sabbatarian working upon the day which they regard as holy, though such person be plowing or hoeing, and that, too, miles away from any place of meeting. The unreasonableness and injustice of any such provision, even in purely civil matters, was illustrated in San Francisco a few years ago; and in a religious question like that of Sabbath observance the evil would be increased a hundredfold.

In 1887 the city of San Francisco had an ordinance reading 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."

Under that ordinance one Ferdinand Pape was arrested for "annoying" some one by distributing circulars on the street. 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 case is reported as follows:

"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 evidences 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. 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 tables that it can be discerned alike by all

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