“Civil Law and the Rights of Conscience” American Sentinel 10, 21, pp. 162, 163.

THE following letter from the editor of the American Monthly Microscopical Journal will be read with interest by all. Mr. Smiley’s position is unique; he insists upon obedience to laws which he confesses are unjust. But his candid tone leaves no doubt of his entire sincerity; hence his views are entitled to respectful consideration:—

Washington, D. C., May 6, 1895.

EDITORS AMERICAN SENTINEL: I have read carefully your issue of April 11, upon the Sunday question and freedom of conscience. Your people ought not to overlook, as they do, that human laws are to be obeyed whether right or wrong by the people who choose to live under them. Society is dependent for its maintenance on the execution of the will of the majority as expressed in laws. When those laws come into serious conflict with the views of certain citizens, as in the case of the Seventh-day Adventists and others, the liberty of conscience cannot rightfully be set up as a justification for breaking the laws. Your only resort is to submit under protest or go away from a society which tolerates such oppressive laws and establish or find one that is not so. Take the Mormon doctrine of polygamy as parallel. Many Mormons hold as conscientiously to plural marriages as you do to Saturday rest. But their religious views, however conscientious, cannot be set up as a defense for violating law (just or unjust is not the question at all). For my own part I consider all Sabbath laws (Saturday or Sunday) as infringements of personal liberty and would gladly vote to abolish all such laws; but while they exist they must be respected. To defy them is anarchy. Elder Colcord is an anarchist to the extent of defying one human law, and he can have no word to utter against the thief who says and does steal conscientiously. Many now believe that property laws are contrary to God’s laws and could as conscientiously defy them as did the Adventists defy the Sunday law. I would join them in seeking to undo wicked laws of which we have hundreds, but so long as these infamous laws stand, Elder Colcord and the rest do wrong in violating them. He will not say that two wrongs make one right. If our nation is so foolish as to adhere to wicked laws, and it doubtless will to many of them, you and I owe it to humanity to go away, as did our forefathers, to a new land and establish an asylum for the oppressed of all peoples. America once was. To-day it is not. It is more cruel than France in its religious oppressions and is going to be worse than it is now after a few years. I hope you will submit these views to the calm and careful consideration of your readers, and cease to put your people forward as justified in violating (bad) laws.

Yours truly,


Mr. Smiley’s first proposition is more in keeping with the theory of law and government that prevailed in Rome under the Cesars than with the principles of the Declaration of Independence. According to Mommsen “the whole duty of man, with the humblest and greatest of Romans, was to keep his house in order, and be the obedient servant of the State.” But the American theory of government makes the State the servant of the people, created by them for the conservation of their rights. The Declaration of Independence sets forth as a self-evident truth the proposition that all men are by their Creator endowed “with certain unalienable rights;” and that “to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.” Now was this conception of government and of human rights original with the framers of the Declaration of Independence. As quoted in this paper last week, Blackstone had, eleven years previous to the signing of the Declaration, published to the world a very similar statement of the same principle, in these words:—

Those rights which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable.

An inalienable right cannot be destroyed or alienated by any law. It may be invaded by despotic power, its exercise may be denied, but it is none the less a right; and this has been recognized as preëminently true of rights of conscience.

January 19, 1829, the Senate of the United States adopted a report by the committee on post offices and post roads, in which this truth is set forth in the following stirring words:—

What other nations call religious toleration we call religious rights. They are not exercised in virtue of governmental indulgence, but as rights, of which government cannot deprive any portion of citizens, however small. Despotic power may invade those rights, but justice still confirms them.

About a year later, March 5, 1830, the National House of Representatives concurred in a similar report from the House Committee on post offices and post roads, in which occurs this passage:—

The framers of the Constitution recognized the eternal principle that man’s relation with his God is above human legislation, and his rights of conscience inalienable. Reasoning was not necessary to establish this truth; we are conscious of it in our own bosoms. It is this consciousness which in defiance of human laws, has sustained so many martyrs, in tortures and in flames. They felt that their duty to God was superior to human enactments, and that man could exercise no authority over their consciences. It is an inborn principle which nothing can eradicate. The bigot, in the pride of his authority, may lose sight of it; but strip him of his power, prescribe a faith to him which his conscience rejects, threaten him in turn with the dungeon and the fagot, and the spirit which God has implanted in him rises up in rebellion and defies you.

Observe that the Constitution did not create this right, but merely recognized it; therefore it exists wherever man exists, whether recognized or not by anybody. Constitutional law may deny it, statutory law may override it, as it does in Tennessee, but it is none the less a right, and he who through fear of consequences fails to assert this right and to exercise it, is disloyal alike to true manhood and to God who claims his highest allegiance.

Thomas Jefferson, than whom no man ever better understood the principles of free government, said:—

The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men. It is unalienable, also, because what is here is right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the universe.

But even were the rights in question merely constitutional rights instead of being as they are, both constitutional and natural rights, any invasion of them would still be a nullity, and the individual might still violate any law made in contravention of them without becoming thereby an anarchist. Hon. James Brice, M. P., from Aberdeen, author of “The [163] Holy Roman Empire,” says of acts of Congress, in his recent work, “The American Commonwealth“:—

Their validity depends on their being within the scope of the law-making power conferred by the superior authority [the Constitution] and as they have passed outside that scope they are invalid…. They ought not to be obeyed or in any way regarded by the meanest citizens, because they are not law.

This being true of acts invading merely constitutional rights in civil things,—substantial rights to be sure, but not trenching upon the domain of conscience,—how much more is it rue of inalienable, God-given rights of conscience!

Nor is it alone by statesmen and publicists that this principle has been seen and enunciated. President Fairchild, of Oberlin College, says:—

It is too obvious to need discussion, that the law of God, the great principle of benevolence, is supreme, and that, “we ought to obey God rather than men,” in any case of conflict between human law and the divine…. It is often urged that the right of private judgment, as now maintained, in reference to obedience to the laws of the land, will subvert government, and introduce confusion and anarchy…. The danger, however, is greatly over-estimated. Government is never the gainer in the execution of a law that is manifestly unjust…. Conscientious men are not the enemies, but the friends, of any government but a tyranny. They are its strength, and not its weakness. Daniel, in Babylon, praying, contrary to the law, was the true friend and supporter of the government; while those who, in their pretended zeal for the law and the constitution, would strike down the good man, were its real enemies. It is only when government transcends its sphere, that it comes in conflict with the consciences of men.

But it is objected that the example is corrupting, that a bad man will violate a good law, because the good man refuses to obey a wicked law. The cases are just as unlike as right and wrong, and any attempt to justify the one by the other, is gross dishonesty. Unquestionably, the principle can be abused by the wicked, and so can any truth whatever, but the principle of unquestioning obedience to human law is false, and needs no perversion to make it mischievous. Practically, the cases are few, in well-established governments, where the law encroaches upon the rights of conscience; but if the principle be surrendered, the cases will multiply…. The most grievous of all imperfections in government, is the failure to secure the just and good result. Injustice and oppression are not made tolerable by being in strict accordance with the law. nothing is surer, in the end, than the reaction of such wrong, to break down the most perfectly constituted government.—Fairchilds Moral Philosophy, pp. 178-186.

The Adventists of Tennessee, as well as of other States, act upon this principle. They refuse to obey Sunday laws, not from reckless disregard of civil authority, but from conscientious conviction of sacred duty. No matter how utterly at variance with their ideas of justice a law might be if it did not invade the realm of conscience, if to obey it did not involve disobedience of the law of God, no Adventist would disobey. They would submit even, as did the Saviour, to the imposition of an unjust tax (Matthew 17:24-27); but they, like “Peter and the other apostles” (Acts 5:29), feel that they must “obey God rather than men.”

It is very true that government cannot permit men to do whatever they may claim is done by them conscientiously. As our correspondent says, some men are conscientiously opposed to laws guarding property rights, and some are conscientious in the matter of plural marriages. But there is a touchstone to which all such questions can be brought and by which they can be infallibly settled; it is the rule given by Christ himself: “Render therefore unto Cesar the things which are Cesars; and unto God the things that are God’s.”

This draws the line between our duties to God and our duties to our fellow-men, and that is just where all just government must draw it. Whatever trenches upon the equal right of another may be forbidden, and everything else is outside the domain of human legislation. Said Abraham Lincoln: “I believe each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as it in no wise interferes with any other mans rights.”—Political Debates, page 83.

Lincoln’s words are in exact accord with these words from Thomas Jefferson:—

Our legislators are not sufficiently apprised of the rightful limits of their power, that their true office is to declare and enforce only our natural rights and duties and to take none of them from us. No man has a natural right to commit aggressions on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce upon him.—American State Papers Bearing on Religious Legislation, p. 69.

Jefferson’s rule, which is first of all the divine rule, and secondly the American rule, would exclude all laws requiring the observance of real or supposed holy days; but it would not exclude from the domain of proper civil jurisdiction laws prohibiting polygamy; because the marriage relation necessarily involves the rights not only of the contracting parties but of their offspring and of society. It would be impossible to permit polygamy anywhere in the United States without thereby jeopardizing the rights of every woman in every State in the Union, and in every country in the world; for with plural marriages legalized anywhere, any man who wished to do so might go to that place and there marry other wives without regard to the rights of his first wife who had married him with no thought of any such thing. This is but one point of the many at which polygamy trenches upon civil rights that civil government is in duty bound to safeguard, and to vindicate when infringed.

We take our stand on this question with the Fathers of the Republic and declare with Alexander Hamilton that “justice is the end of government. It is the end of civil society…. In a society, under the form of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secure against the violence of the stronger.”—Federalist LI.

Professor Colcord is not an anarchist, nor is any man an anarchist simply because he enters a practical protest against tyranny. President Fairchild well says: “Conscientious men are not the enemies but the friends of any government but a tyranny. They are its strength, and not its weakness. Daniel, in Babylon, praying contrary to the law, was the friend and supporter of the government; while those who in their pretended zeal for the law and the constitution, would strike down the good man, were its real enemies.” And so to-day Elder Colcord and his brethren are the real friends of law and order in Tennessee, while those who would prostitute the law to the base ends of bigotry and intolerance are the enemies of all just law, the betrayers of soul liberty.

“Who dares not follow Truth where’er

Her footsteps lead,

But says, ‘Oh, guide not there nor there,

I have not strength to follow where

My feet would bleed;

But show me worn ways, trodden fair

By feet more brave’—

Who fears to stand in Truth’s broad glare,

What others dared not will not dare,

Is but a slave.” [163]

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