December 10, 1891
IN our study of the opinion of the Circuit Court of the United States for the Western District of Tennessee, as expressed in Judge Hammond’s dictum we have had to dwell upon the subject of the rights of the individual with respect to religion and religious observances enforced by law. We have found that in the whole dictum there is nowhere any recognition whatever of any such thing as the rights of the individual conscience; no right of the individual to choose for himself in religion or religious observances. Everything must be submitted to the dictates of, the majority, it matters not what that majority may declare or demand. In short the will of the majority is made absolute in all things. The State is made supreme and absolute, and the individual is completely swallowed up and absorbed therein. The majority alone have rights, and these are bestowed by the State.
This point was merely referred to in the quotation and discussion last week. The point is worthy of fuller examination, therefore we quote:—
The crime is in doing the thing forbidden by law, harmless though it be in itself. Therefore, all that part of the argument that it is not hurtful in itself to work on Sunday, apart from the religious sanctity of the day, is beside the question. It may be that the courts would hold that repeated repetitions of a violation of a law forbidding even a harmless thing, could be a nuisance as tending to a breach of the peace…. That is to say a nuisance might be predicated of an act harmless in itself, if the will of the majority had lawfully forbidden the act, and rebellion against that will would be the gravamen of the offense.
Now in view of this statement, please read carefully the following:—
We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
In declaring that governments derive their just powers from the consent of the governed, there is declared not only the sovereignty of the people, but the entire capability of the people. And in declaring the equal and inalienable right of all men to life, liberty, and the pursuit of happiness, there is declared the entire capability of every man to enjoy life, and liberty, and to pursue happiness as he may think best, and he may choose for himself, so long as he interferes with no other man’s equal right to the enjoyment of life, liberty, and the pursuit of happiness. This is the only limit that ever can rightly be set to the exercise of this right, and this limit is set in the very declaration itself. Indeed the declaration, in itself, presupposes that men are men indeed, and that as such they are fully capable of deciding for themselves as to what is best for their happiness, and how they shall pursue it.
Therefore no government, no law, can ever of right forbid the doing of anything that is harmless in itself.
Governments are not formed to interfere with or to restrict inalienable rights; but to secure, to guard; to make firm the  enjoyment thereof. These rights men already possess as men, by virtue of being men in society, and not by virtue of government. These rights were theirs before government was; they were their own in the essential meaning of the term. These rights men “do not hold,” says Stanley Matthews, “by any sub-infeudation, but by direct homage and allegiance to the owner and Lord of all,“—their Creator, who has endowed them with these rights.
It is not the prerogative because it is not the purpose of government to put any restriction, limitation, or qualification, upon these rights, but solely to secure them.
For the rights of man, as man, must be understood in a sense that can admit of no single exception; for to allege an exception is the same thing as to deny the principle. We reject, therefore, with scorn, any profession of respect to the principle which, in fact, comes to us clogged and contradicted by a petition for an exception…. To profess the principle and then to plead for an exception, let the plea be what it may, is to deny the principle; and it is to utter a treason against humanity. The rights of man must everywhere, all the world over, be recognized and respected.—Isaac Taylor.
The plea that the doing of a harmless thing, or even the repeated repetition of it, to an infinite extent, could ever tend to a breach of the peace is most puerile, and is as despotic as it is puerile. The idea is this: You are going quietly on your way doing something which is harmless in itself. But I see you. And I am of so splenetic, irritable, and despotic, a disposition, that out of sheer wickedness I attack you. A breach of the peace has been committed; but lo, instead of punishing me for the breach of the peace, a law must be enacted forbidding you ever again to do that harmless thing! And this, forsooth, because it tends to a breach of the peace! You must submit to be robbed of your inalienable right, and be compelled to surrender it a tribute to the overbearing demands of my tyrannical disposition. The innocent citizen must be made a slave, and the tyrannical meddler must be clothed with power. Such an idea is the very essence of despotism. In such a conception there is no recognition of any such thing as inalienable right. Such a government would be an unmitigated tyranny.
Therefore, let it be forever repeated, that no law can ever justly be made forbidding the doing of anything that is harmless in itself. Such a law is wrong and essentially tyrannical in itself. Such a law is—not simply an utterance but—an enactment of a treason against humanity. And it is no less so when formulated by judicial or parliamentary legislation, than by the arbitrary decree of a despot. Such ideas of law and government have no place under the Declaration of Independence or the United States Constitution.
The jurisdiction of the Government is both derivative and limited. It is limited with regard to the co-ordinate departments; more necessarily is it limited with regard to the constituents. The preservation of a free government required not merely that the metes and bounds which separate each department of power be invariably maintained, but more especially that neither of them he suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by any authority derived from them, and are slaves.—James Madison.
The truth and the sum of this whole discussion is that the views propounded in the dictum of Judge Hammond in the King case, are all the way from one hundred to nineteen hundred years behind the times; they are as though history had never been written; they are a parody upon progress; a travesty upon justice, and are subversive of every principle of the Declaration of Independence and the United States Constitution—they would sweep away every right either civil or religious that is therein declared or secured, and would again establish the same old despotism both civil and religious which cursed the world for seventeen hundred years, and against which the Declaration and the Constitution are, and were intended to be, an everlasting protest.
A. T. J.