October 15, 1891
LAMST week, in our notice of Judge Hammond’s discussion of the subject of freedom of religious belief, we found that “sectarian freedom of religious belief” is that only which, according to his view, is guaranteed by the Constitution. In the whole discussion, there is not the slightest appearance of any such thing as the individual right of conscience, or of religious belief. Yet the individual right is the American idea, and is the one that is contemplated in the United States Constitution, and the Constitutions of the States, so far as they have followed the example of the national Constitution.
So entirely is the individual right of religious belief excluded from Judge Hammond’s view, that he actually refused to entertain or give any credit to a certain plea, because he said the petitioner had not proved that the point was “held as a part of the creed of his sect.” His words were as follows:—
Although he testifies that the fourth commandment is as binding in its direction for labor on six days of the week as for rest on the seventh, he does not prove that that point is held as a part of the creed of his sect, and religiously observed as such.
By this it is clear that the Judge’s idea of sectarian freedom of religious belief led him to ignore, yea, even to deny, the individual right of religious belief. For in demanding that the prisoner should prove that his plea is held by a sect, and religiously observed as such by that sect; and in refusing to entertain the plea, because the accused had not proved that it was a part of some creed, and was so religiously observed, the Court did, in fact, deny the right of the individual to believe for himself, and to practice accordingly, without reference to any creed, or belief of any sect as such. And this is only to deny the right of individual belief, and of the individual conscience. Such, however, is neither the American nor the Christian principle, of the rights of religious belief.
The Christian and the American principle is the individual right of conscience—the right of the individual to think for himself religiously, without reference to any sect; and without any interference on the part of anybody, much less on the part of the Government. The idea of the national Constitution on this point is clearly expressed in the following words of Mr. Bancroft, which have often been quoted in these columns, but which cabin be quoted too often:—
No one thought of vindicating religion for the conscience of the individual until a voice in Judea, breaking day for the great epoch in the life of humanity, by establishing a pure, spiritual, and universal religion for all mankind, enjoined to render to Cesar only that which is Cesar’s. The rule was upheld during the infancy of the gospel for all men. No sooner was his religion adopted by the chief of the Roman Empire, than it was shorn of its character of universality and enthralled by an unholy connection with the unholy State. And so it continued until the new Nation…. when it came to establish a Government, for the United States, refused to treat faith as a matter to be regulated by a corporate body, or having a headship in a monarch or a State. Vindicating the right of individuality even in religion, and in religion above all, the new Nation dared to set the example of accepting in its relations to God the principle first divinely ordained of God in Judea.
And then, as though to emphasize the specific statements thus made, the writer declares that thus “perfect individual is secured to conscience” by the United States Constitution. As a matter of fact, in the realm of conscience there is other right than the right of the individual conscience. There is no such thing as a collective or corporate conscience. There is no such thing as a sectarian conscience. Conscience pertains solely to the individual. It is the individual’s own  view of his personal relation of faith and obedience to God, and can exist only between the individual and God. Thus the right of religious belief inheres in the individual and is only the exercise of the belief of the individual, as his own thought shall lead him with respect to God, and his duty toward God, according to the dictates of his own conscience. And as this is the inherent, absolute and inalienable right of every individual, as many individuals as may choose, have the right of associating themselves together for mutual aid and encouragement.
If Mr. Bancroft’s views of the national Constitution, as expressed in the above extract, need any confirmation, it can be furnished to any reasonable extent. It may, indeed, be well to give n few facts further in this line, showing that as Mr. Bancroft has expressed the sense of the Constitution in this respect, so upon this question the Constitution expresses the sense of those who formed it.
During the whole time in which the preliminary steps were being taken to the formation of the national Constitution, the question of the freedom of religious belief was being thoroughly discussed, and especially by the one man who had more to do with the making of the Constitution than any other single individual, except perhaps George Washington. That man was James Madison.
June 12, 1776, the Virginia Assembly adopted a Declaration of Rights, section 16 of which contained the following words:—
That religion, or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.
July 4, following, the Declaration of Independence of all the Colonies was adopted. Shortly afterwards, the Presbytery of Hanover, in Virginia, aided by the Baptists and Quakers, presented a memorial to the Assembly of Virginia, asking that the Episcopalian Church be disestablished in that State, and that the example set by the Declaration of Independence should be extended to the practice of religion according to section 16 of the Bill of Rights. In this memorial, they said:—
The duty that we owe to our Creator, and the manner of discharging it, can only be directed by reason and conviction, and is nowhere cognizable but at the, tribunal of the universal Judge. To judge for ourselves and to engage in the exercises of religion agreeable to the dictates of our own conscience is an inalienable right, which upon the principles on which the gospel was first propagated, and the reformation from Popery carried on, can never be transferred to another.
The Episcopalian Church was disestablished, but in its place a move was made to establish a system by which a general tax should be levied in support of the Christian religion. Again the Presbytery of Hanover, the Baptists and the Quakers came up with a strong memorial in behalf of the free exercise of religious belief, according to the dictates of conscience. Jefferson and Madison gladly and powerfully championed their cause, yet the movement in favor of the general tax was so strong that it was certain to pass if the question came to a vote. Therefore Madison and Jefferson offered a motion that the bill be postponed to the next Assembly, and that meantime it be printed and circulated among the people. The motion was carried. Then Madison drafted a memorial and remonstrance in opposition to the bill, and this memorial was circulated and discussed more largely among the people than was the bill which it op-posed. One passage reads as follows:—
We remonstrate against the said bill: First, Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men. It is unalienable also, because what is here a right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time, and in degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the universe; and if a member of civil society who enters into any subordinate association must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular civil society do it with a saving of his allegiance to the universal Sovereign. We maintain, therefore, that in matters of religion no man’s right is abridged by the institution of civil society, and that religion is wholly exempt from its cognizance.
Because, finally, the equal right of every citizen to the free exercise of his religion, according to the dictates of conscience, is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it can not be less dear to us; if we consult the declaration of those rights which pertain to the good people of Virginia as the basis and foundation of government, it is enumerated with equal solemnity, or rather with studied emphasis. Either, then, we must say that the will of the Legislature is the only measure of their authority, and that in the plenitude of that authority, they may sweep away all our fundamental rights, or that they are bound to leave this particular right untouched and sacred. Either we must say that they may control the freedom of the press, may abolish the trial by jury, may swallow up the executive and judiciary powers of the State; nay, that they may despoil us of our very rights of suffrage, and erect themselves into an independent and hereditary assembly, or we must say that they have no authority to enact into a law the bill under consideration.
This remonstrance created such a tide of opposition to the governmental favors to religion that the bill was not only overwhelmingly defeated, but there was adopted in its place, Dec. 26, 1785, “the act for establishing religious freedom,” declaring that as “Almighty God hath created the mind free,” “all acts to infuence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his almighty power to do;” and that—
the impious presumption of legislators and rulers, civil as well as ecclesiastical … have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time…. Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation, have no power to restrain the acts of succeeding assemblies, constituted with the powers equal to our own, and that therefore to declare this act irrevocable, would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
Immediately following this splendid campaign, direct steps were taken for the formation of a national Constitution, in which movement Madison was one of the leading spirits; and the experience which he had gained in his campaign in Virginia was by him turned to account in the making of the national Constitution, and appeared in that document, in the clause declaring that “no religious test shall ever be required as a qualification to any office of public trust under the United States.” But even this was not sufficient to satisfy the great majority of the people, whose views had been broadened, and whose ideas had been sharpened, by the memorable contest and victory in Virginia. Therefore an amendment was demanded by many of the States, more fully declaring the right of religious belief, and as a consequence, the very first Congress that ever assembled under the Constitution, proposed, and there was adopted, by the approval of the requisite number of States, that which is now the first Amendment to the national Constitution, declaring that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Thus it is demonstrated that the words of Bancroft expressed precisely the ideas of the national Constitution upon this question, and that the freedom of  religious belief contemplated and guaranteed by that Constitution is the freedom of the individual, and not in any sense such as Judge Hammond contemplates, and calls “sectarian freedom of religious belief.”
And from this, it further follows that when the Constitution of Tennessee, following, as Judge Hammond himself says, the example of the national Constitution, declares that “no human authority can in any case whatever control or interfere with the rights of conscience,” it means the rights of the individual conscience, and in no sense refers to or contemplates any such thing as the rights of a “sectarian” conscience; and that when that same Bill of Rights declares that no preference shall ever be given by law to any religious establishment or mode of worship, it means precisely what it says.
Therefore, nothing can be clearer than that when the Supreme Court of Tennessee gives preference by “common law” to the Christian religion, and its modes of worship, it distinctly violates the Constitution of Tennessee, and invades the rights of the people of Tennessee, as by that Constitution declared. Likewise, nothing can be clearer than that Judge, Hammond in setting forth and defining what he calls “sectarian freedom of religious belief,” as the meaning of either the United States Constitution or of the Constitution of Tennessee, misses in toto the American idea of freedom of religious belief.
According to the proofs here given, it is evident that Mr. King occupied the American and constitutional position, and asserted and claimed only his constitutional right, when he presented the plea which Judge Hammond refused to entertain. And it is equally clear that Judge Hammond exceeded the jurisdiction of a Court of the United States, when he refused to entertain the plea, and demanded that the prisoner should prove that the point pleaded was a part of some creed, and was religiously practiced by some sect.
Further than this, and as a matter of literal fact, it is but proper and just to say that the sect to which King belongs not only has no creed, but utterly repudiates any claim of any right to have a creed. The sect to which Mr. King belongs occupies the Christian and constitutional ground, and holds the Christian and American idea, that it is every man’s right to believe for himself alone, exercise of his own individual conscience as directed by the word of God; worship accordingly.
Therefore, when the Court, either State or United States, demanded that Mr. King should prove that his plea was held as it part of the creed of his sect, it not only demanded what it was impossible for him to prove, but it demanded what he has the inalienable and constitutional right to refuse to prove.
A. T. J.