November 5, 1891
OF Sunday observance enforced by law, Judge Hammond remarks:—
The fact that religious belief is one of the foundations of the custom [of Sunday observance] is no objection to it, as long as the individual is not compelled to observe the religious ceremonies others choose to observe in connection with their rest days.
This argument has been made before, by several of the Supreme Courts of the States, but it is as destitute of force as is any other attempt to sustain the Sunday institution. If the argument be legitimate, there is no religious observance known that could not be enforced by law upon all the people, simply by the observers of the institution securing control of legislation. Certain people believe in and practice a certain religious observance, and have sufficient influence to control legislation, enforcing it in their own behalf. Thus the custom is made a part of the law, and as the laws are made presumably for the public good, it is then but a short and easy step to the position that the laws enforcing such observances are for the public good, and not particularly to favor religion; and that, there-fore, though religious belief be the foundation of the custom, and though the observance be in itself religious, this cannot be suffered to be any objection to it, so long as the individual is not compelled to observe other religious ceremonies that have not yet been fixed in the law.
Yes, this is all very pretty, and it seems always to have been eminently-satisfactory to those who make the argument, for it is not by any means new or peculiar to this day or generation. It is as old as the contest for the right of the free exercise of religious belief. It is the very position occupied by Rome when the disciples of Christ were sent into the world to preach religious freedom to all mankind Religious observances were enforced by the law. The Christians asserted and maintained the right to dissent from all such observances; in fact, from every one of the religious observances of Rome, and to believe religiously for themselves, though, in so doing, they totally disregarded the laws, which, on the part of the Roman State, were held to be beneficial to the population. Then it was held that though religious belief was the foundation of the custom, yet this was no objection to it, because it had become a part of the legal system of the government, and was enforced by the State for its own good. But Christianity then refused to recognize any validity in any such argument.
When Paganism was supplanted by the Papacy, in the Roman Empire, the same argument was again brought forth to sustain the Papal observances, which were enforced by imperial laws, and through the whole period of Papal supremacy, Christianity still refused to recognize any validity whatever in the argument.
Under the Calvinistic theocracy of Geneva, the same argument was again used in behalf of religious oppression. In land the same argument was used under the Puritans, and other dissenters, in behalf of religious oppression there. In New England, under the Puritan theocracy, the same argument was used in behalf of religious oppression, and to justify the Congregationalists, who had control of legislation, in compelling the Baptists and the Quakers, under “penalty of banishment, and even of death, to conform to the religious observances of the Conregationalists, but through it all,  Christianity always refused to recognize any validity whatever in the argument, and will.
The rulers of Massachusetts put the Quakers to death, and banished the Antinomians and “anabaptists,” not because of their religious tenets, but because of their violations of the civil laws. This is the justification which they pleaded, and it was the best they could make. Miserable excuse! But just so it is: wherever there is such a union of Church and State, heresy wad heretical practices are apt to become violations of the civil code, and are punished no longer as errors in religion, but infractions of the laws of the land. So the defenders of the Inquisition have always spoken and written in justification of that awful and most iniquitous tribunal.—Baird’s “Religion in America,” page 94, note.
The truth of the matter is, that the fact that religious belief is one of the foundations of the custom is the strongest possible objection that could be made to its being recognized and enforced by the civil power. This is demonstrated by several distinct, counts.
1. Jesus Christ has commanded, “Render to Cesar the things that are Cesar’s; and to God the things that are God’s.” In this the Lord has distinctly and positively separated that which pertains to Cesar from that which pertains to God. Things religious, are due to God only; things civil, are due to Cesar. When the civil power—Cesar—exacts that which is due to God, then it puts itself in the place of God, and so far as this exaction is recognized, God is denied; civil and religious things are confounded; the distinction which Christ has made is practically thrown aside; and the things which he separated are joined together. Upon another subject, he declared, “What God hath joined together, let not man put asunder.” And upon this subject, it may be declared with equal force,—what God hath separated, let not man join together. When the civil power legally adopts a religious custom, and enforces the observance thereof, it does put itself in the place of God. But no power has any right to put itself in the place of God. Therefore, no civil power can of right ever legally adopt and enforce any religious custom or religious observance. And wherever such a thing is done, he who regards God the most will respect such action the least.
2. The history of more than eighteen centuries demonstrates that the very worst bane of government is for religionists to have control of the civil power. The legal recognition and enforcement of religious customs, or of customs of which religion is the foundation, is to give religionists control of the civil power just to that extent. And the doing of the thing to any extent justifies the doing of it to every conceivable extent. It was this that for taxed` Christians to death under Pagan Rome, and in later centuries under Papal Rome. It was this that burnt John Huss at Constance, and Servetus at Geneva; and that whipped and banished the Baptists, and banished and hanged the Quakers, in New England.
The fathers of the American Republic having before them the whole of this dreadful history, proposed that the people of this Nation should be profited by the fearful example, and should be forever free from any such thing. They therefore completely separated the national Government from any connection whatever with religion, either in recognition or in legislation. And in this they set to the States the perfect example of human government, which example has been followed in the Constitutions of the States, and by none more thoroughly than by Tennessee.
Yet, it has ever been the hardest thing to get the courts of the States to recognize the principle, though distinctly declared in the State Constitutions. And here, in the very first instance in which a United States Court has had opportunity to notice it, instead of the principle being recognized, it is revolutionized. And instead of the American doctrine of the nineteenth century, the Roman doctrine of the third century is inculcated.
.3. We have proved by the express words of Christ, the divine right of dissent in all religious things; that any man has the divine right to dissent from any and every religious doctrine or observance of any body on earth. So long as civil government keeps its place, and requires of men only those things which pertain to Cesar, things civil, so long there will be neither dissent nor disagreement, but peace only, between the Government and all Christian sects or subjects. But just as soon as civil government makes itself the partisan of a religious party, and sets itself up as the champion of religious observances, just so soon this right of dissent in religious things is extended to the authority of the Government, in so far as that authority is thus exercised. And so far there will be dissent on the part of every Christian in the Government.
Sunday observance is in itself religious, and religious only. The institution is wholly ecclesiastical. The creation of the institution was for religious purposes only. The first law of government enforcing its observance was enacted with religious intent; such has been the character of every Sunday law that ever was made; and such its character is recognized to be in the case at bar in the decision under discussion. The Sunday institution is of ecclesiastical origin only, and its observance is religious only. It is the divine right of every man utterly to ignore the institution; to disregard its observance; and to dissent from the authority which instituted or enjoins it. And when any State or civil government makes itself the partisan of the ecclesiastical body which instituted it, and the champion of the ecclesiastical authority which enjoins it, and enacts laws to compel men to respect it, and observe it, this divine right of dissent is then extended to the authority of the Government, so far as it is thus exercised.
The fact that religious belief is the foundation of the custom, is the one grand objection to its observance by any law of any government on earth. And as for the Government of the United States, or of the several States, so entirely is this true, and so certainly and firm does the principle hold, that even an act which might otherwise be deemed expedient or valuable as a municipal regulation, would be positively precluded by the Constitution, if it forbade or enjoined any religious observance; that is, if it infringed the free exercise of religion. This point is well stated by the Supreme Court of California, in these words:—
Had the Act been so framed as to show that it was intended by those who voted for it, as simply a municipal regulation; yet, if, in fact, it contravened the provision of the Constitution securing religious freedom to all, we should have been compelled to declare it unconstitutional for that reason.—9 Lee, 515.
Therefore, the simple truth is, that, that which the Judge pronounces no objection is in itself the strongest possible objection. “The fact that religious belief is one of the foundations of the custom”—this fact is in itself the one supreme objection which sweeps away every excuse, and annihilates every argument that ever can be made in favor of any Sunday law, or in favor of any other law recognizing or enforcing any religious observance, or any custom founded upon any religious observance.
A. T. J.