November 17, 1892
THERE is almost an entire misapprehension in the public mind as to the Sunday law of Tennessee.
SEEING the despotic and persecuting proceedings of the State authorities in Henry County, Tennessee, as regards Sunday work by those who keep Sabbath, the public have gathered the idea that the Sunday law of that State is a rigid, fierce, and fire-breathing thing. This is a mistake.
OF course all Sunday laws are bad. But as a matter of fact that Sunday law of Tennessee is about as mild as any Sunday law could be. And as a further fact the Sunday law of Tennessee is entirely innocent, so far as the persecutions on this subject in that State are concerned.
THE truth is that the persecuting prosecutions that have been carried on by the authorities of the State of Tennessee, as regards Sunday work, for the last eight years, have been, and are, without any statutory authority whatever. The statute in relation to Sunday work is ignored, and has been ignored these eight years, and all these cases, and extra-statutory measures have been applied and carried through. This the public should understand.
THE Sunday law of Tennessee, the only statute on this subject in that State, provides only for prosecution “before any justice of the peace of the county;” and provides there, only that the person duly convicted (of performing any of the common vocations of life on Sunday), “before any justice of the peace of the county, shall forfeit and pay three dollars, one half to the person who shall sue for the same, the other half for the use of the county.”
THIS is the only provision of law on this subject in the State of Tennessee. And it is clear as words can say it, that there is in that State no provision of law for any prosecution for Sunday work, in any court but that of a “justice of the peace;” and no provision of law for any fine or penalty, but “three dollars.” Yet every case of prosecution for Sunday work in that State for the last eight years, has been before the Circuit Court, and the fine placed at whatever figure the jury or the Circuit Judge has chosen to levy. That is, the proceedings, instead of being an enforcement of the law, are simply an infliction of the arbitrary will of the court. And such procedure has been solemnly pronounced by the Circuit Court of the United States, to be “due process of law.”
THIS lawless course was begun in the case of W. H. Parker in the year 1885. Parker was tried before the Circuit Court, and duly convicted and imprisoned. Then nothing more was done in this line until the noted case of R. M. King in the summer of 1889. King was first prosecuted according to the law, and the fine provided in the law, was assessed and collected. A simple fine of three dollars, however, was not sufficient to satisfy the religious zeal of those who would prohibit the observance of any day but Sunday. Accordingly, these extra-statutory measures were adopted; the law was ignored; and Parker, King, and all others since, have been prosecuted before the Circuit Court, for the crime of “public nuisance,” whereby the jury can assess any fine they see fit above fifty dollars; under that sum the amount being left to the discretion of the judge.
BY this method, not only can the fine be assessed at any amount, but the court can convict without any evidence. This is precisely what was done last May in the cases of Dortch, Moon, Stem, and Lowry. They were prosecuted for the crime of public nuisance, committed by working on Sunday. And though not a soul had made any complaint against any one of them, and though not a single witness testified that anybody in the community had been disturbed by any one of the accused, or had complained of any one of them; yet all four were found guilty of having done that which “was and is a disturbance in the community in which done, was offensive to the moral sense of the public, and was and is a public nuisance.” And the fines were such as to keep them in jail from forty-five to sixty-four days.
Of course, as we have shown, there is no law in Tennessee making work on Sunday a public or any other kind of nuisance. That turn was made in this way: Some years ago the Supreme Court of that State set forth the doctrine that “Christianity is part of the common law” of Tennessee, and that offenses against Christianity were properly indictable, and punishable as common law offenses. This is the doctrine that was confirmed by the Circuit Court of the United States, which said that though there is “not any foundation for the ruling that it is a common law nuisance to work in one’s fields on Sunday;” that King was “wrongfully convicted;” and the court “wrongfully decided;” yet it was all “due process of law.” And this decision of the Circuit Court of the United States establishing as “due process of law,” the “wrongful decision” of the Supreme Court of Tennessee, which confirmed the “wrongful conviction” of a man, under a ruling for which there was “not any foundation”—this is to-day the authority, the only authority, and the only authority that is claimed, for the crusade in behalf of Sunday, that is now being carried on in the State of Tennessee. 
It is a mistake therefore to speak as some have of Tennessee’s “rigid Sunday law.” Tennessee has no rigid Sunday law. On the contrary she has a very mild law for a Sunday law, and even that is not enforced. It is somewhat wide of the mark also to call, as some papers have, for Tennessee to repeal her Sunday law. This is not the need just now; for Tennessee’s Sunday law is not hurting anybody. It is the Sunday law that she hasn’t that is doing the mischief—and that can’t be repealed.
What is urgently needed just now in that State is a rigid reform of her courts. There needs to be secured a set of judges who will have some respect for the laws, both constitutional and statutory; and who will be content to set forth the law as it is written, and not take it upon themselves to set forth their own arbitrary will for the law. Judges are wanted there who will keep within the bounds set by the Constitution for the judiciary, and who will not attempt to exercise also the prerogative of the legislative branch of the State government. This is a reform, too, that is sadly needed not only in Tennessee but clear from the Circuit Courts of that State all the way up to the Supreme Court of the United States. But lo! in this very fact of the widespread and deep-seated need, lies the hopelessness of any reformatory remedy ever being successfully applied.
Tennessee also needs attorneys-general who will be content to be prosecuting attorneys, without turning themselves into persecuting attorneys after the manner of that one down in Henry County—attorneys-general and not inquisitors-general.
A. T. J.