“Divine Right and Precedent” The American Sentinel 5, 31, pp. 241, 242.

August 7, 1890

IN view of the proposed Amendment to the Constitution of the United States, making Christianity an essential part of the public-school curriculum, and also the Edmunds Bill for the establishment of a national university in which “Christian theology” shall be taught, the question of the Bible in the public schools anywhere in the country is a national question. The principles involved in the Wisconsin case, therefore, are just as much national as though it were a case in a Federal court itself. We have given the Supreme Court side of this case quite fully and repeatedly in THE SENTINEL; but what some would call the other side has not been noted so fully. There has been issued by the Rev. W. H. McAtee, D.D., of Madison, Wisconsin, a pamphlet of seventy-two pages, entitled, “Must the Bible Go? a Review of the Decision of the Supreme Court of Wisconsin in the Edgerton Bible Case,” which we must notice. In the beginning of the prefatory note he says:—

No American State has ever taken the attitude toward the Christian Scriptures and the worship of Almighty God, now assumed by Wisconsin. Five have expressedly refused to do so; and in no other has the question ever been raised.

This is just that much more to the credit of the State of Wisconsin. The attitude that has been taken by this State, is the attitude that properly belongs to every State on earth. It is the attitude of the United States Government, the Constitution of which forbids Congress to have anything to do with religion.

There is no State on earth, neither by executive, legislative, nor judicial process that has any means of discovering and deciding authoritatively what are “the Christian Scriptures,” or who is Almighty God. There is no executive, nor legislative, nor judicial power, or authority on earth that has any right to decide for anybody what system of religion that person shall study or read, or hear read; nor have the men who compose any of these departments of government any power to decide for anybody, but their own individual selves, what religion is, what “the Christian Scriptures” are, or who the Lord is. What means has any man, elected to office, of discovering after his election, what is the truth in religion, that he had not before? The men who oppose this decision, including, we are persuaded, Mr. McAtee himself, would deny the right of any one man, in his place simply as a man among men, to decide for anybody else what God it is he shall honor, or what religion it is which he shall receive. This being so in the case of men before they are elected to office, what is there in their election, or in the position to which they are elected which instantly clothes them with a power which neither they, nor those who elected them had before they were chosen to such office? The claim that men sitting in Supreme Court, or in any other court on earth, or in any department of government, are clothed with such power, or authority, or right, is in principle only the old claim of the divine right of kings, and of the present claim of the infallibility of popes. It is, in principle, a claim that there is a divinity that hedges the office itself, and that he who attains to the office becomes, by that means, clothed with the divine right to act authoritatively in the [242] place of God, and to decide the things of God for all the people.

The attitude assumed by the Supreme Court of Wisconsin, therefore, in which is denied the principles of the divine right, and the infallibility, of office, is the correct attitude. Its refusal to assume a power that by no possible means can belong to it, is altogether to its everlasting honor; and that it was done in the face of precedents, even though the precedents might have been much more numerous, is just so much more to the honor of the Court. To have followed the precedents of the five States referred to by Mr. McAtee, would have been only to follow precedents that are essentially wicked, because those precedents themselves follow other precedents which are an essential part of the Papal system of Church and State, which is the very “mystery of iniquity.” This in fact is virtually confessed by McAtee, in another place. On page sixty, he says:—

The very fact that it is without precedent in all history, is enough to startle the most indifferent. No other State in Christendom has ever dispensed with the Christian Scriptures in its educational system, much less in its penal, reformatory and charitable institutions.

Suppose it be so, that does not prove the decision to be wrong; because the same precedent which proves that no other State in Christendom has ever dispensed with this, will likewise prove that no other State has dispensed with an established religion, with injustice to its people in religious things, or with persecution for conscience’ sake. And these we all know are wrong. In short, the only way that the Court could be right in this, was to act contrary to all the precedents of Christendom and of history. And the safest thing for Wisconsin or any other State to do in this line, is always to go directly contrary to the precedents of Christendom and of all history.

But the idea that any court should decide any case upon the merit of precedents is just as far wrong as is the claim that a fallible court should assume the prerogative of infallibility, or that a power, that is merely the collective, representative will of the people, should assume to act by divine right. A court that decides any case upon precedent ceases to be a court of justice, in any true sense of the word, for that is simply to abdicate its own functions and its own reason as a court, and pass off upon the people the will of some other court, chosen by some other people and representing the will of an entirely different class from those who established the court. For any court of justice, or any lawyer, or any man, to al-low his honest convictions to be swayed by precedent, is to deny himself; and when he does so in a representative capacity, it is to deny the people whom he represents.

There is not a judicial crime, nor a form of governmental oppression that might be committed, that has not abundant precedent. There is not a step that has ever been taken in human progress that has not had to be taken against universal precedent. As a guide in human conduct, it is principle and not precedent that should be followed. The question can never be rightly asked in any such case, “What has been done?” but in every such case the question must be, “What ought to be done?” To rest upon what has been done, is precedent; and that is stagnation. To inquire what ought to be done, is principle; and that is progress.

We have not space to enlarge more at this time upon this point, we only say, precedent lawyers, precedent judges, and precedent courts are the bane of States and nations. And precedent preachers are the bane of the human race.

A. T. J.

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