October 8, 1891
REFERENCE has been “made in these columns to the decision of United States District Judge Hammond, in the case of King, appealed from the State of Tennessee. The leading papers of the country have also mentioned it, and have commented more or less upon it. Yet, both in these columns and by the papers referred to, that which has been said has been but little more than to mention the decision, with one or two points touched in it. From the nature of the case, however, and the principles involved, the decision is worthy of more extended notice than has been given it anywhere, and for these reasons, we propose a review of the decision in detail.
The Constitution of Tennessee, Article I, Section 3, says:—
No human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given by law to any religious establishment or mode of worship.
R. M. King reads the Bible for himself, and believes it as he reads, as he has the inalienable, and the constitutional right to do. Accordingly, he believes, as the fourth of the ten commandments teaches, that the seventh day is the Sabbath of the Lord. Holding this as an obligation which he owes to the Lord, he renders it to the Lord. Then, having rendered to God that which is God’s, he exercises his God-given right to work the other six days of the week.
But there are some people in Tennessee who choose to keep Sunday, as they have the right to do. Yet not content with the exercise of their own right to do this, they go about to compel everybody else to do it, whether he believes in it or not. Therefore, for working on his own premises on Sunday—hoeing corn, harrowing, etc.—King was prosecuted for committing a nuisance at common law. He was convicted and fined seventy-five dollars and costs.
The case was appealed to the Supreme Court of the State, and there the judgment was confirmed by a decision declaring Christianity to be the common law of Tennessee, and that offenses against it were properly indictable and punishable as common law offenses. Such a decision is clearly a violation of that clause of the Constitution, which declares that n preference shall ever be given by law to any religious establishment or mode of worship.” For when the Supreme Court recognizes and establishes Christianity as a part of the common law of that State, it does positively give preference by law to that religion; and to its modes of worship.
By a writ of habeas corpus, the case was carried to the Circuit Court of the United States, upon the plea that the Fourteenth Amendment of the United States Constitution was violated in that King was deprived of his liberty “without due process of law;” and Judge Hammond’s decision, now to be noticed, is the result so far.
Those who have seen the decision, know, and to those who have not seen it, it is proper to say, that it is really composed of two parts, namely: the law of the case and the dictum of the Judge. As to the point of law, the Court decided that the proceeding by which King was convicted was due process of law, and that as it exclusively the province of the State Court of Tennessee to declare what is the law in that State, the only thing that is left for the United States Court to do under such a plea, is to inquire whether the procedure has been regular, and whether the law itself is lawful. 
In fact, the Judge plainly says, that if it were within his province to decide that question, he would have no difficulty in thinking that King was wrongfully convicted, and that there is not any foundation for the ruling of the Supreme Court of Tennessee that it is a common law nuisance to work in one’s fields on Sunday. But, although he distinctly says that King was wrongfully convicted, and the State Court wrongfully decided when it confirmed his conviction, yet, as it rests exclusively with the State Court to decide what is common law in the State, and as the State court has decided that such is common law, it does not belong to the United States Court to overrule the State decisions; and therefore he must decide that though the thing was wrongfully done, yet it is due process of law.
As the case is to be reviewed by a higher court, it is not necessary for us to spend any time now discussing the point of law. And even though we should take the time to discuss it, we should not feel disposed to differ from the conclusion reached by the Judge.
Not so, however, with the other part of the decision. After having examined the point of law, he turns to a discussion of the principles which were involved in the arguments of counsel. And it is with the Judge’s dictum, thus set forth, that we propose to deal. And it is necessary to do this, quite largely too, because the positions taken, and the propositions set forth, by the Judge, are so sweeping, and are so directly opposed to Christian and American principles, that it becomes the duty of THE AMERICAN SENTINEL to review the dictum in detail.
The Judge proceeds to give his views as to what is the true measure of freedom of religions liberty, which is contemplated and guaranteed by the Constitution of Tennessee. He says that in the State of Tennessee—
sectarian religious belief is guaranteed by the Constitution, not in the sense argued here, that King, as a Seventh-day Adventist, or some other as a Jew, or yet another, as a Seventh-day Baptist, might set at defiance the prejudices, if you please, of other sects having control of legislation in the matter of Sunday observance; but only in the sense that he himself should not be disturbed in the practices of his creed; which is quite a different thing from saying that in the course of his daily labor … he might disregard laws made in aid, if you choose to say so, of the religion of other sects.
That is to say, a man may belong to a sect; that sect may have a creed; they may practice according to that creed, and may not be disturbed in such practice. But at the same time, they must conform to the laws made in aid of the religion of other sects, who have control of legislation.
For instance, a man may be a Baptist. He may practice the precepts of the Baptist creed, but if the Methodists should oblige the Baptists by law to conform to the precepts of the Methodist creed. Or one company of people might be Methodists, another Baptists, another Quakers, and so on; but if the Roman Catholics only had control of legislation, and should enact laws enforcing Roman Catholic doctrines and precepts, then the Baptists, Methodists, Quakers, etc., would all be obliged to conform to the Roman Catholic precepts, as by law required. And although protected in the undisturbed practice of their own creeds, none of these dissenting sects would be in any wise at liberty to disregard the laws made in aid of the religion of the Roman Catholic sect.
And such, according to Judge Hammond’s views, is the freedom of religious belief guaranteed by the Constitution of Tennessee. That we have not misconstrued the Judge’s meaning, is made clear by a further extract, as follows:—
If a non-conformist of any kind should enter the church of another sect, and those assembled there, were required, every one of them, to comply with a certain ceremony, he could not discourteously refuse, because his mode was different, or because he did not believe in the divine sanction of that ceremony, and rely upon this constitutional guarantee to protect his refusal.
This is precisely the measure of freedom of religious belief that was “guaranteed” or allowed under the Puritan theocracy of New England. The Congregational Church had control of legislation. It embodied Congregationalist doctrines in the law, and required every one to conform to them. And every one was required to go to church. The Baptists and Quakers did not believe in the divine sanction of those ceremonies. They therefore refused to comply. Their refusal, of course, was counted “discourteous.” This discourtesy was made criminal, because it was indeed a violation of the law. They were first fined, but they refused either to pay the fines, or to-comply with the required ceremonies. They were then whipped; still they refused. They were then banished, and yet they refused, and the Quakers even refused to be banished. Then they were hanged, and yet those who still lived would not comply with the required ceremonies. And they had no constitutional guaranty to protect them in their refusal.
And now says Judge Hammond, in Tennessee, “If a non-conformist of any kind refuses to comply with a certain ceremony required of every one by another sect which has control of legislation, there is no constitutional guaranty to protect his refusal.” That is to say, according to this view, in Tennessee to-day, there is no constitutional guaranty of any freedom of religious belief beyond that which was allowed in New England two hundred and fifty years ago.
And thus would Judge Hammond throw open the field of legislation to whatever religious denomination may secure control of it, and justifies such denominations in the use of this power thus gained to compel every one to conform to the religious ceremonies in which that sect believes, and which it practices. In fact, the very expressions used contemplate an established religion. The Judge uses the phrase, “If a non-conformist of any kind,” etc. The term “non-conformist” implies an established religion, which creates conformists, and whoever refuses assent, thereby becomes a “non-conformist.” And in the view of this dictum, such non-conformist has no constitutional guaranty of protection.
The logical deduction from the two extracts which we have here presented is that enforced conformity to religious observances is just. These two extracts would logically justify persecution by any sect that can secure control of legislation. Nor are we left to make this logical deduction ourselves. The Judge himself plainly declares it, as follows:—
If the human impulse to rest on as many days as one can have for rest from toil is not adequate, as it usually is, to secure abstention from vocations on Sunday, one may, and many thousands do, work on that day, without complaint from any source. But if one ostentatiously labors for the purpose of emphasizing his distaste for, or his disbelief in, the custom, he may be made to suffer for his defiance BY PERSECUTIONS, if you call them so, on the part of the great majority, who will compel him to rest when they rest.
This is about the clearest statement of the doctrine of persecution that we have ever seen. We have read considerably on the subject of religion and the State. We have read the account of persecutions through all the ages from the cross of Christ until this day, and we do not remember any instance in which the doctrine of persecution was positively avowed in words. Enforced religious observance and all those things, have been advocated, defended, and justified, of course, but those who did it, would not allow that it was persecution. In this day of the nineteenth century, however, and in this case, all pretense of denial is thrown aside, and the doctrine of persecution itself, as such, is distinctly avowed and justified, both in arguments and in words.
The doctrine of persecution is bad enough in all conscience, when it is advocated as something else than what it really is; but when it is distinctly avowed and justified in so many words, intentionally and by authority, then it is far worse. The doctrine of persecution is bad enough when it is preached by religious bigots under cover of something else; but when it is openly set forth in words, and justified, from the judicial bench of the Government of the United States, then it is infinitely worse.
From the extracts here given, it is evident that the freedom of religious belief contemplated in the dictum of Judge Hammond, is entirely compatible with a legitimate despotism. And it is equally evident that the position therein taken, justifies all persecution from the crucifixion of Christ to the case at bar. 
And these views are set forth as the legitimate expression of public opinion in Tennessee! That is to say, that public opinion in Tennessee upon the question of religious belief stands just where it stood in New England two hundred and fifty years ago. We are free to say, however, that we do not believe that such is public opinion in Tennessee. We are not ready, just yet, to confess that in Tennessee there has been no progress in this respect within the last two hundred and fifty years. That on the part of certain individuals there has been no such progress we freely admit; but that such is the state of public opinion in that State to-day, we do decidedly doubt. It is in order for the press of Tennessee to speak much more plainly than it has yet done, as to whether Judge Hammond has correctly gauged public opinion, or whether he has mistaken his own views for public opinion in that State, on the question of the constitutional freedom of religious belief.
Our readers may for themselves form an estimate of the correctness of Judge Hammond’s views, so far as the Constitution of Tennessee itself is concerned, by reading again the extract from that document, quoted near the beginning of this article.
From these extracts, which are a correct outline of the theory of the whole dictum, it is seen that in the whole range of the document, there is no recognition of any such thing as the individual freedom of religious belief, the individual right of conscience, but of “sectarian freedom” only. The discussion of this point is reserved to our next issue.
A. T. J.