Judge Gaynor And Individual Rights., Daily Racing Form, 1908-08-20


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JUDGE GAYNOR A1D INDIVIDUAL RIGHTS It is always refreshing to discover a judge who is not afraid to defy the wild clamoring of i public which docs not always know what it is clamoring for It is a sign of better things when the decisions of a judge begin to be based on common sense and sound principles instead of upon their possible effect on liis political chances In the opinion of Justice Gaynor of the Supreme Court of New York in which he distinguishes between gambling as n legal crimi and the ordinary passing of wagers l etwceu individuals there is much of good sense and sound thought packed into a few words He says saysOrdinary Ordinary betting has never been made a crime The law has never descended to thrusting its nose Into the personal conduct Of a niaii or woman t that extent and ithose who try to make out tbat it lias only tend to create a disrespect for It But if you hold yourself out to bet and bet with all comers or gehcrally or become the general recorder of such bets between others you are guilty of a crime s to the writing of n memorandum of the bet on n Vard b the relator it is enough to say that section 51 f the iioiial code Is confined in plain terms to the case of persons who engage In the recording or registering of the bets of all comers as a practice or business Thkt Is common gambling or aldhig and abetting common gambling which the law does not tolerate This opinion was enunciated in deciding the case or a man wlto bet a set of Kolt balls with a friend on a game of golf which they were playing together on a iirivate course To any person of sound sense and unDIascd mind the arrest of a man for iucU a thing was not only ridiculous but an outrage upon his personal liberty If there was a law on the Now York statute books upholding such an action t mt Ittrt would have been better Ignored as a det finlLtlt to society rather than as an aid to justice lu humait eoildiich Justice Gaynors doclsion between ordinary betting and gambling may be strtftchril In lt apDllcallou beyond the exact question comprehended in the case Itefore him It simply declares that individuals in their conduct of matters purely private and between themselves as Individuals have a lawful right to perform certain actions which as public agents It would be unlawful for them to perform It Is one nt tlio soundest principles la jurisprudence that a man has a right to do anything he pleases with nis own as long as what he docs works no Injury to t he community It is only upon this theory that the law Ihny rightfully punish a man for attempting rto commit suicide he has sought to deprive society Of Ills services arid as society has both preserved aiid OrOtCctCd him it ha8 a claim upon him at least equal to thdt lid has upon himself Gambling according to Justice Gaynors lucid ae cisiou therefore is not mere bettlnx Betting is a mans private disposal of his own property In a manner that pleases him Gambling is a practice or business which the law declares Inimical to the community welfare and which it therefore concludes is a crime In doing this the law contemplates no encroachment upon the inalienable rights of the liumHIl being It does not threaten the liberty of the indiivdual ilOr make lils conduct conform to anything more than the consfinsus of the communitys opinion as to what the conduct of the ttnlt should be in Its relations to the whole It does not limit and nullify anv of the powers specifically inherent in the unit Itself ItselfBut But a law which made it a crime for a man to bet toothpicks with his grandson on the length of the family cats afterdinner snooze would be n direct trespass upon the rights of the Individual It would really menace society in menacing the social unit unitJustice Justice Gaynors decision will have the effect of checking a recent dangerous tendency in New York that of overzealousness In taking care of the Other Fellows conduct Cincinnati Enquirer edi ¬ torial

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Library of Congress Record: https://lccn.loc.gov/unk82075800