October 22, 1891
IN further notice of Judge Hammond’s decision, we find the following:—
By a sort of factitious advantage, the observers of Sunday have secured the aid of the civil law, and adhere to that advantage with great tenacity, in spite of the clamor for religious freedom, and the progress that has been made in the absolute separation of Church and state… And the efforts to extirpate the advantage above mentioned by judicial decision in favor of a civil right to disregard the change, seem to me quite useless. The proper appeal is to the Legislature. For the courts cannot change that which has been done, however done, by the civil law in favor of the Sunday observers.
This passage is in perfect harmony with the extracts which have been made previously and discussed in these columns. It justifies the believers in any religious observance in securing control of legislation, and in compelling all others to conform to such religious observance, and denies dissenters any appeal, refuge, or resource, other than to do as the oppressors are already doing. That is, by political means to turn the tables, and, themselves become the oppressors. It completely ignores, if it does not specifically deny, any such thing as the individual right, of religious belief or of conscience.
The Judge states quite plainly a truth upon which THE SENTINEL has always insisted, and which we have endeavored to make, plain to all, that is, that the Sunday observers have secured the aid of the civil law, and adhere to that advantage in spite of the clamor for religious freedom, and in spite of the progress which has been made in the absolute separation of Church and State. We have shown over and over again, and have demonstrated by every proof pertinent to the subject, that the American principle of government is the absolute separation of religion and the State, and that therefore Sunday legislation to any extent whatever is directly opposed to American principles, not only in the abstract, but as specifically defined in the Constitution of the United States, and in the Constitutions of the several States following this example.
We have shown, not only according to the fundamental American principle, but according to the principles and express declarations of Christianity, that religious freedom is the inalienable right of every individual, and that therefore Sunday legislation is not only contrary to American principles, but to the principles and precepts of Christianity itself. And we have abundantly shown that although all this be true, yet the Sunday observers, in utter disregard of the lessons of the whole history of the Christian era; in spite of the principles of the Declaration of Independence and the precepts of the United States Constitution; in defiance of the Christianity which they profess; and in face of the direct statements Jesus Christ; have not only fastened iniquitous practice upon almost all States, but are doing their utmost to turn the national Government and laws also into the same evil tide.
To expose this practice, and the essential evil of the practice, has been the work of THE AMERICAN SENTINEL from the first day of its existence. Our work has sneered at. Our opposition to the thing has been counted as fighting a man of straw. Our warnings have been counted as but bugaboo cries. And all this because of “the great enlightenment of this progressive age.” And now the proofs, the warnings, and the position, of THE SENTINEL stand completely confirmed from a  judicial bench of the United States, which not only says that the observers of Sunday hold to their advantage in spite of the arguments for religious freedom, and in spite of all the progress that has been made in the absolute separation of Church and State, but justifies the whole proceeding; and in the face of the Constitution of the United States, and of the State of Tennessee, refuses to relieve a citizen of the United States from this spiteful church oppression, and which declares that an effort to obtain a judicial decision in favor of a civil right to disregard an enforced religions, observance is quite useless.”
It is therefore certain that so far as the jurisdiction of the United States Court, in which Judge Hammond presides, extends, the warnings and the position of THE AMERICAN SENTINEL in regard to the coming denial of the free exercise of religion in the United States are completely confirmed.
We do not present this as proof that the position of THE SENTINEL is correct, for we have known that just as well from the first day of THE SENTINEL’S existence as we know it now; but we present it for the purpose, if possible, of awaking those who have counted the efforts of THE SENTINEL as misdirected, to the fact that recognition of the civil right of the free exercise of religious belief, is almost, if not altogether, a thing of the past whenever that question is brought to a positive test.
“The proper appeal is to the Legislature,” says the Judge. Well, suppose Mr. King should make his appeal to the Legislature. And suppose the Legislature, in order to take the broadest and, strongest ground that it were possible to take, and to settle the question forever, should enact a law declaring in so many words that in the State of Tennessee, “no human authority can in any case whatever, control or interfere with the rights of conscience; and no preference; shall ever be given by law to any religious establishment or mode of worship.”
Suppose the Legislature should do this, what would it amount to? Just nothing at all, and for two reasons. First: The whole people of Tennessee, in their State Constitution, their supreme law, which is above the Legislature itself, have already made this declaration. And yet “in spite” of it the Sunday observers have secured control of legislation and by this have presumed to interfere with and control the rights of conscience, and to give preference by law to their mode of worship. And if the Legislature, should enact a similar or any other law on the subject they would do the same thing in spite of that. Despising the supreme law, they certainly would not hesitate to despise an inferior law.
Secondly: Any such law would amount to nothing, because the Sunday observers would not despise and override it, but the courts both State and United States, so far, are partisans of the Sunday observers and justify their spiteful procedure. Consequently if the Legislature were to enact such a law, application of the law would certainly be disputed by the Sunday observers. And no appeal could be made to the courts, for the Judge has already decided that an appeal to the court is “quite useless.” Any wish or attempt to appeal to the court would therefore be met again by the Judge’s dictum, “the proper appeal is to the Legislature.”
In view of this doctrine, therefore, it is proper to inquire, What is either court or Constitution for? If the Legislature is supreme, and if the only proper appeal in any question of rights is to the Legislature, then what is the use of either court or Constitution? This point once more sets forth Judge Hammond’s dictum as utterly contrary to the American principle of government, and as inculcating in its stead the British principle of the omnipotence of the legislative power. But such is not the American principle. The American principle is the supremacy of the people, not the supremacy of the Government; the omnipotence of the people, not of the legislative power.
Rights and liberties belong to the people. In their Constitutions the people have set limits to the legislative power, that the rights of the people may not be invaded. And the State Supreme Courts and the United States Courts are established to stand between the Legislature and the people, and to decide upon the constitutionality of the acts of the Legislature. In other words, to decide whether the Legislature has kept within the limits: which have been set by the people in the provisions of the Constitution; to decide whether the rights of the people have been respected or invaded.
Therefore, as it is the province of the State Supreme Courts, and of the United States Courts, to review the acts of the Legislature, it follows that these courts are the sources of appeal, and the only sources. The proper appeal, therefore, is not to the Legislature, but to the courts.
The Constitutions of the several States and of the United States declare the rights of the people, as citizens of the United States, and of the several States, and in no case is it proper to appeal to the Legislature, in any question as to the rights thus declared. To appeal to the Legislature is in itself to surrender the free exercise of the right; that moment the free exercise of the right is admitted to be a matter to be regulated solely by the majority, and is surrendered entirely,to the dictates of the majority.
It is true this is entirely consistent with the other statements of the Judge’s dictum, and is in harmony with his view of “sectarian freedom of religious belief.” That is, that the majority may rule in religious things, and that there is no right of dissent from the religious views and opinions enforced by law, in favor of whatever denomination may secure control of legislation. But such is not the American idea of the civil right of dissent.
As we have before proved, the American principle is the principle of the individual right of religious belief; of the individual right of the free exercise of conscience; of the right of the individual to dissent from every religious view of anybody else, and utterly to disregard every religious ceremony, however such ceremony may be regarded by others; the right to refuse to comply with any requirement of any sect, or to conform to any religious ceremony, by whomsoever required. It is the individual right of freedom from any and every provision of law that anybody would invoke for the recognition or enforcement of any religious observance whatever.
This is the right asserted in the Constitution of Tennessee when it declares that “no human authority can in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishment or mode of worship. It is the right asserted in the United States Constitution, where it is declared that “no religious test shall ever be required as a qualification to any office of public trust under the United States,” and that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Such is the American idea of the individual right to disregard the religious observances of the majority. But when the very courts, both State and United States, which have been established to protect the constitutional rights of the citizen from invasion by an impudent and spiteful majority, abdicate their functions and take the side of the oppressors and justify the oppression, what refuge remains to the citizen? What protection to the minority? None whatever. Every protective barrier is broken down; every urge is swept away.
Happily there is yet an appeal to the Supreme Court of the United States. But suppose that Court confirms the doctrine of the Circuit Court, WHAT THEN?
A. T. J.