HABEAS CORPUS AND BASEBALL
Published in slightly abridged form in Res Ipsa, p. 1 (Spring Finals
Edition 2006). For additional information on the history of
criminalizing Sunday baseball playing, see 73 Am. Jur.2d Sundays and
Holidays § 29 (2005); 7 C.J. Baseball (1916); 9 C.J.S. Baseball
(1938); 83 C.J.S. Sunday § 39 (2005); Annot., 4 A.L.R. 382 (1919).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
In the late 19th and early 20th centuries playing baseball on Sundays
was a criminal offense in many states, where police often aggressively
intervened to prevent or stop baseball games from being played on the
Sabbath. In 1894, “the police of the city of Brooklyn took it
upon themselves to chase, club and lock up all boys and men found
playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc.
510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two
consecutive Sundays in July 1910, two professional baseball teams
attempting to play in Chemung County, New York were “prevented from
doing so by [sheriff’s] deputies,” Southern Tier Baseball Ass’n of
Elmira v. Day, 69 Misc. 53, 125 N.Y.S. 733, 733 (N.Y. County Ct.
Chemung County 1910); and on Sunday, May 17, 1925, two professional
baseball teams endeavored to play a game before 5,000 fans in Norfolk
County, Virginia, whereupon “[a]t the end of the first inning the
[police] officers stopped the game and arrested the players and the
umpires, who were tried and convicted and sentenced,” Crooks v.
Commonwealth, 147 Va. 593, 136 S.E. 565, 566 (1927).
Some states specifically prohibited Sunday baseball; thus, an Indiana
statute, Act of Mar. 10, 1905, ch. 169, § 468, 1905 Ind. Laws 693,
made it a misdemeanor to play Sunday baseball “where any [admission]
fee is charged;” see Carr v. State, 175 Ind. 241, 93 N.E. 1071
(1911). Sometimes persons playing Sunday baseball were charged
with breach of the peace or other crime even though they might be boys
or young men simply playing a friendly game; see, e.g., State v.
Prather, 79 Kan. 513, 100 P. 57 (1909); Commonwealth v. Meyers, 1890 WL
2866 (Pa. Common Pleas Northampton County 1890). But most of the
criminal prosecutions for playing baseball on Sunday involved
professional baseball players performing to paying spectators, and were
founded on then-widespread Sunday Observance Laws, which criminalized
operating certain businesses or engaging in certain occupations or
various leisure activities on the Sabbath but did not specifically
mention baseball; see, e.g., Crooks v. Commonwealth, supra; Hiller v.
State, 124 Md. 385, 92 A. 842 (1914); Territory v. Davenport, 17 N.M.
214, 124 P. 795 (1912); Territory v. Hart, 17 N.M. 206, 124 P. 798
(1912); Cheeves v. State, 5 Okla. Crim. 361, 114 P. 1125 (1911); People
ex rel. Hart v. Demerest, 56 Misc. 287, 107 N.Y.S. 549 (N.Y. Sup. Ct.
N.Y. County 1905); State v. O’Rourk, 35 Neb. 614, 53 N.W. 591 (1892);
State v. Williams, 35 Mo. App. 541 (1889).
Amazingly, there are seven reported cases where persons jailed for
being involved in playing baseball on Sunday sought relief by filing a
petition for a writ of habeas corpus. This famous writ, the Great
Writ of Liberty, is the most celebrated of all writs because it
provides a procedure by which the judiciary may inquire into whether an
imprisoned person’s custody is lawful and, if it is not, to release
that person. In two of these seven cases, preconviction habeas
corpus relief was denied and the petitioner remanded to custody.
Seay v. Shrader, 69 Neb. 245, 95 N.W. 690 (1903); Ex parte Carroll,
1884 WL 4674 (Ohio Common Pleas Franklin County 1884). In the
other five cases, the imprisoned person was discharged from custody by
the court, either prior to trial or after conviction. Ex parte
Roquemore, 60 Tex. Crim. 282, 131 S.W. 1101 (1910) (postconviction);
People ex rel. Poole v. Hesterberg, supra (preconviction); People ex
rel. Bedell v. De Mott, 38 Misc. 171, 77 N.Y.S. 249 (N.Y. Sup. Ct.
Kings County 1902) (preconviction); Ex parte Neet, 157 Mo. 527, 57 S.W.
1025 (1900) (postconviction); Commonwealth v. Meyers, supra
(preconviction). In each of these five cases, the habeas corpus
relief was granted on the ground that the conduct charged–playing
baseball on Sunday–was not a criminal offense under the laws of the
state. These cases where habeas relief was granted are
significant because they substantially advanced the cause of
decriminalizing Sunday baseball. They demonstrate how the Great
Writ contributed to completely legalizing America’s greatest sport.
These five cases are important for additional reasons. They show
how recurring the problem of lawlessness in law enforcement is.
Just as police of today routinely violate individual rights to enforce
drug laws and other vice crimes, so a century ago police commonly
trampled on people’s rights while endeavoring to suppress the
victimless crime of Sunday baseball. In People ex rel. Poole v.
Hesterberg, supra, for example, the court, referring to a
Brooklyn police captain responsible for numerous illegal arrests of
Sunday baseballers, wrote: “[The captain’s] action seems to be in
defiance of the decisions of our courts. He sets himself above
the law; a thing grown very common with the police of this city in late
years .... It cannot be said too often to those who rule the
police that our government, like all free governments, is a government
of laws and not of men. Those who turn it into one of men and not
of laws are more dangerous to society than any other class of law
breakers. They would destroy our system of government, and
substitute one of arbitrary power and unlawful force.”
Furthermore, these cases remind us that baseball has
been a beloved American institution for a very long time. Thus,
in People ex rel. Poole v. Hesterberg, supra, the court observed “that
it is practically the unanimous sentiment of the religious and
God-fearing people of the community that it is far better for our grown
boys and young men who have to work indoors all the week for a living,
to go into the fields on Sunday afternoon after attending church, and
participate in or witness good, elevating, healthy physical exercise
[playing baseball] than to be driven instead to dance gardens, drinking
places, pool rooms, and worse places;” and in Ex parte Roquemore,
supra, the Texas court announced: “It is known, of course, that
baseball is the most generally practiced, patronized, and approved of
all the games of exercise, and that it is the cleanest and fairest of
all manly sports, and that every village and hamlet has its favorite
nine, and that in every village and hamlet many ambitious youth dream
of the day when they shall equal if not excel Mathewson, Speaker, Cobb,
Napoleon La Joie, and Honus Wagner.”
However, we also learn from these cases that in some
circles playing baseball on Sunday was once regarded as atrocious
misconduct. Thus, in Commonwealth v. Meyers, supra, the court,
while granting habeas relief to someone who had played baseball on the
Sabbath, nonetheless said this: “I yield to no man in readiness to
condemn the conduct of this defendant and his associates in their
desecration of the Sabbath. That they did that which was morally
wrong there can be no doubt, and ... [was] ... an outrage upon the
moral sentiment of our religious community.... I have no sympathy
with these people who are desecrating the Sabbath in this way ....
[What the defendant has done in playing baseball on Sunday] shocks the
moral sentiment of all the good people of our city ... and ... is
contrary to the wishes of and the moral sense of the entire community