“Is This a Prerogative of the United States Courts?” The American Sentinel 6, 46, pp. 361, 362.

November 26, 1891

LAMST week we showed by unquestionable proofs from public records, as well as personal and representative documents, that the statements made by Judge Hammond as to the beliefs and wishes of Mr. King and his “peculiar sect” are not true in any sense. This, however, is a very small matter compared with the principle which is involved, and which underlies this action of the Judge: that is, the assumption of the prerogative of defining, and passing judgment upon the beliefs and wishes of citizens of the United States.

For convenience, we insert again the passage referred to, which runs as follows:—

The petitioner cannot shelter himself just yet, behind the doctrine of religious freedom, in defying the existence of a law, and its application to him, which is distasteful to his own religious feeling or fanaticism, that the seventh day of the week, instead of the first, should be set apart by the public for the day of public rest and religious observances. That is what he really believes and wishes, he and his sect, and not that each individual should select his own day of public rest, and his own day of labor. His real complaint is, that his adversaries on this point have the advantage of usage and custom, and the laws founded on the usage and custom, not that religious freedom has been denied to him. He does not belong to the class that would abrogate all laws for a day of rest, because the day of rest is useful to religion, and aids in maintaining the churches, for none more than he professes the sanctifying influence of the fourth commandment, the literal observance of which by himself and all men, is the distinguishing demand of his peculiar sect.

As before shown, every material statement in this passage, as to the beliefs and wishes of the petitioner and his sect, is directly the reverse of the truth in the matter. And in view of this fact, it is evident that the Judge has presumed authoritatively to define for Mr. King and the people with whom he is religiously connected just what their “religious feeling” is, and what they really believe and wish. And it is evident that the Judge considers himself capable of defining for them what their religious feeling is and what they really believe and wish, better than they can do it for themselves; because that which he declares to be their religious feeling, and what they really believe and wish is directly contrary to what they themselves had formerly and officially declared upon the same points precisely.

Nor does the Judge stop here. Having officially declared for them what their religious feeling is and what they really believe and wish, and so having this point judicially settled he proceeded to judge their motives, and to declare them “disingenuous,“—“not noble or high-toned; mean, unworthy … unworthily or meanly artful,” in their “demand for religious freedom.” And not content with this he must needs apply to the religious feeling which he has falsely attributed to them the approbrious epithet of “fanaticism.”

This is a singular proceeding for a court of the United States. It strongly reminds us of certain court proceedings in times past, which are worth recalling in this connection. There are many of them, but one will suffice for this occasion. January 18, 1573, a certain Mr. White, a Puritan, and “a substantial citizen of London, who had been fined [362] and tossed, from one prison to another, contrary to law and justice [yet all in “due process of law”-EDITOR], only for not frequenting his parish church,” and for relinquishing the Church of England toggery, was prosecuted before an English court, the Lord Chief Justice presiding, who was assisted by the Master of the Rolls, the Master of the Requests, a Mr. Gerard, the Dean of Westminster, the Sheriff of London, and the Clerk of the Peace. The record is in part as follows:—

Lord Chief Justice. Who is this?

White. White, an’t please your honor.

L. C. J.—White? as black as the devil!

White. Not so, my lord; one of God’s children.

…. …. …. …….

Master of Requests. What scriptures have you to ground your conscience against these garments?

White. The whole Scriptures are for destroying idolatry, and everything that belongs to it.

M. Req.—These things never served to idolatry.

White. Shough! they are the same which were heretofore used to that purpose.

M. Req.—Where is the place where these are forbidden?

White. In Deuteronomy and other places … and God by Isaiah commandeth us not to pollute ourselves with the garments of the image.

Master of the Rolls.—These are no part of idolatry, but are commanded by the prince for civil order; and if you will not be ordered, you show yourself disobedient to the laws.

White.—I would not willingly disobey any law, only I would avoid those things that are not warranted by the word of God.

M. Req.—These things are commanded by an act of Parliament, and in disobeying the laws of your country you disobey God.

White. I do it not of contempt, but of conscience; in all other things I am an obedient subject.

L. C. J.—Thou art a contemptuous fellow and will obey no laws.

White. Not so, my lord: I do and will obey laws; … refusing but a ceremony out of conscience … and I rest still a true subject.

L. C. J.—The Queen’s majesty was overseen not to make you of her council, to make laws and orders for religion.

WhiteNot so, my lord; I am to obey laws warranted by God’s word.

L. C. J.—Do the Queen’s laws command anything against God’s word.

White. I do not so say, my lord.

L. C. J.—Yes, marry, do you, and there I will hold you.

White. Only God and his laws are absolutely perfect; all men and their laws may err.

L. C. J.—This is one of Shaw’s darlings. I tell thee what, I will not say anything of affection, for I know thee not, saving by this occasion; thou art the wickedest and most contemptuous person that has come before me since I sat in this commission.

White.—Not so, my lord; my conscience witnesseth otherwise.

…. …. …. …. …. .

Dean of Westminster. You will not, then, be obedient to the Queen’s commands?

White. I would only avoid those things which have no warrant in the word of God; that are neither decent nor edifying, but are flatly contrary.

L. C. J.—You would have no laws.

White.—If there were no laws I would live a Christian and do no wrong; if I received any, so it were.

L. C. J.—Thou art a rebel.

White.—Not so, my lord: a true subject.

L. C. J.—Yes, I swear by God, thou art a very rebel; for thou wouldst draw thy sword, and lift up thy hand against thy prince, if time served.

White. My lord, I thank God my heart standeth right toward God and my prince; and God will not condemn, though your honor hath so judged.

L. C. J.—Take him away.

White. I would speak a word which I am sure will offend, and yet I must speak it; I heard the name of God taken in vain; if I had done it, it had been a greater offense there than that which I stand here for.

Mr. Gerard. White, White, you don’t behave yourself well.

White. I pray your worship show me wherein, and I will beg pardon and amend it.

L. C. J.—I may swear in a matter of charity.

…. …. …. …. …. .

White.—Pray, my lord, let me have justice. I am unjustly committed; I desire a copy of my presentment.

L. C. J. You shall have your head from your shoulders. Have him to the Gatehouse.

White. I pray you to commit me to some prison in London, that I may be near my house.

L. C. J.—No sir, you shall go thither.

White. I have paid fines and fees in other prisons; send me not where I shall pay them over again.

L. C. J.—Yes,marry, shall you: this is your glory.

White. I desire no such glory.

L. C. J.—It will cost you twenty pounds, I warrant you, before you come out.

White. God’s will be done.Neals History of the Puritans,Vol. I. chap. V.

Hitherto, it has been supposed by the American people that we had been delivered from such judicial procedure as is here represented, and that citizens of the United States were free from attacks and abuse from the judicial bench on account of their religious beliefs and feelings. But when we are confronted with the fact that from a judicial bench of the United States thousands of citizens of the United States are fasely charged, to their reproach, and denounced as “disingenuous,” and branded with the epithet of “fanaticism” solely on account of their “religious feelings,” and their beliefs and wishes, with respect to religious observances, then it is certainly time for the people of the United States to look about them and inquire whether the rights and liberties bequeathed to us by our fathers, are indeed all a delusion and a snare?

Of course, this is all consistent with the Judge’s views of the relationship of religion and the civil power, and the prerogatives of those religionists who can secure control of legislation, and thus enforce upon all, their own religious beliefs and observances. But, in this as in every other point of his dictum, the Judge’s ideas become a court of the Dark Ages more than any court of the nineteenth century; and a country dominated by papal principles, instead of one dominated by the principles of the Declaration of Independence, and the United States Constitution. If the jurisdiction of the courts of the United States, stands indeed in things religious as well as things civil, and if the judges of those courts really sit in the place of God, and enjoy the infallibility that belongs to such position, then it is proper enough, of course, that they should exercise that prerogative in deciding for individuals and sects what their religious beliefs and wishes really are, and whether a religious feeling is fanaticism or not. But if such be not the jurisdiction of the courts, nor the position of the judges, then they are entirely out of place when they assume to themselves such jurisdiction and exercise such prerogatives.

And that such is not the jurisdiction of any court of the United States, nor the position of any judge thereof, is evident from every principle of the Declaration of Independence and of the Constitution of the United States, and also from the whole history of the formation of that Constitution.

In closing we cite a passage from a decision of the Supreme Court of California, in a case involving the identical question and principle that was before the Circuit Court of the United States for the Western district of Tennessee. The principles set forth by the California Court are fully as applicable to the United States as they are to that State. We are sure that upon a comparison between this extract and that from Judge Hammond at the beginning of the article, no reader will have the slightest difficulty in deciding which has the true ring, or which sets forth the true American doctrine. The California Court said:—

The protection of the Constitution extends to every individual or to none. It is the individual that is to be protected. The principle is the same, whether the many or the few are concerned. The Constitution did not mean to inquire how many or how few would profess or not profess this or that particular religion. If there be but a single individual in the State who professes a particular faith, he is as much within the sacred protection of the Constitution as if he agreed with the great majority of his fellow-citizens.

We cannot therefore inquire into the particular views of the petitioner, or any other individual…. The Constitution protects the freedom of religious profession and worship, without regard to the sincerity or insincerity of the worshipers. We could not inquire into the fact whether the individual professing to hold a particular day as his Sabbath was sincere or otherwise. He has the right to profess and worship as he pleases, without having his motives inquired into. His motives in exercising a constitutional privilege are matters too sacred for judicial scrutiny. Every citizen has the undoubted right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State.—Cal. Rep. 9 Lee. 515.

And let all the people forever say, Amen.

A. T. J.

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