“Due Process of Law” and The Divine Right of Dissent

The Divine Right of Dissent

In the extracts which have so far been given from this dictum, there has been no recognition whatever of the right of the individual to differ from the majority in any question of religious belief or observance; no recognition whatever of any right of the individual to think for himself religiously, to believe according to convictions of his own conscience, or to worship according to his belief; if in such things he disagrees with the religious ideas of the majority, or dissents from the religious observances practiced by the majority. There is no recognition of any right of dissent. DPL 37.2

Nor have the extracts which we have presented, been selected for the purpose of making this feature especially prominent. Indeed, no such thing is necessary, because this is the prominent feature of the whole discussion. There is no recognition of any such thing in the whole course of the Judge’s opinion. And the source from which this discussion comes, will justify us in presenting further extracts, showing that such is the nature of the discussion throughout. DPL 37.3

This characteristic of the discussion is made the more prominent, too, by the fact that the Judge holds constantly that Sunday is a religious institution, and its observance is essentially religious observance. He gives no countenance whatever to the pretense that has recently been urged by the Sunday-law advocates, that it is “the economical value of the day of rest, and not its religious character, which they would preserve by civil law.” His statement as to the nature of Sunday observance is as follows:— DPL 37.4

“Sunday observance is so essentially a part of that religion [‘the religion of Jesus Christ’] that it is impossible to rid our laws of it.” DPL 38.1

This again utterly ignores the fact that according to American principles, as declared both in the Constitution of Tennessee and in the United States Constitution, religious observance can never rightly be made a part of the laws, nor any religion recognized by the laws. The supreme law of the United States declares in so many words that “the Government of the United States is not in any sense founded upon the Christian religion.” And the Supreme law of Tennessee declares that “no preference shall ever be given by law to any religious establishment or mode of worship.” DPL 38.2

Further, this statement, just as far as it is possible for Judge Hammond’s authority to go, sanctions that act by which he himself declares that the observers of Sunday have not only secured the aid of the civil law, but continue to hold it, in spite of every demand for religious freedom, and in spite of the progress which has been made in the absolute separation of Church and State. The Judge therefore knows that Sunday legislation is religious legislation, and that the enforcement of Sunday observance is the enforcement of a religious observance. He knows, also, that this is contrary to the individual freedom of religious belief, and that it is contrary to the principle of absolute separation of Church and State; for he plainly says that this “sort of factitious advantage” which the observers of Sunday have secured in the control of the civil law is “in spite of the clamor for religious freedom, and in spite of the progress which has been made in the absolute separation of Church and State,“ DPL 38.3

But as we have seen, he sanctions this pertinacious action of the Sunday observers, and now he justifies the sanction in the following words:— DPL 39.1

“Civil or religious freedom may stop short of its logic in this matter of Sunday observance.... Government leaves the warring sects to observe as they will, so they do not disturb each other; and as to the non-observer, he cannot be allowed his fullest personal freedom in all respects.... There is scarcely any man who has not had to yield something to this law of the majority, which is itself a universal law from which we cannot escape in the name of equal rights or civil liberty.” DPL 39.2

It may be indeed that men have been, and still are, required to yield something to this law of the majority in matters of religion; yet it is certainly true that no such requirement ever has been, or ever can be, just. It is certainly true that neither civil nor religious freedom can ever stop short of its logic in any question of religious belief or religious observance. DPL 39.3

Religious belief is a matter which rests solely with the individual. Religion pertains to man’s relationship to God, and it is the man’s personal relationship of faith and obedience, of belief and observance, toward God. Every man has therefore the personal, individual, and inalienable right to believe for himself in religious things. And this carries with it the same personal, individual, and inalienable right to dissent from any and every other phase of religious belief that is held by anybody on earth. DPL 39.4

This right is recognized and declared by Jesus Christ, not only in the words in which he has commanded every man to render to God that which is God’s, while rendering to Cæsar that which is Cæsar’s, but likewise in the following words: “If any man hear my words, and believe not, I judge him not; for I came not to judge the world, but to save the world. He that rejecteth me, and receiveth not my words, hath one that judgeth him: the word that I have spoken, the same shall judge him in the last day.” John 12:47, 48. DPL 39.5

The word which Christ spoke is the word of God. The one who is to judge, therefore, is God; and in the last day he will judge every man for the way in which he has acted. To this judgment the Lord Jesus refers every man who refuses to believe and rejects his words. If any man hears Christ’s words, and believes not, but rejects him and his words, Christ condemns him not, judges him not, but leaves him to the Judge of all, who in the last day will render to every man according to his deeds. DPL 40.1

In this, therefore, the Author of Christianity, the Saviour of the world, has clearly recognized and declared the right of every man to dissent from every religion known to mankind, and even from the religion of Christ itself, being responsible only to God for the exercise of that right. He wants every man to believe and be saved, but he will compel none. Christ leaves every man free to receive or reject, to assent or dissent, to believe or disbelieve, just as he chooses: his responsibility is to God alone, and it is the individual who must answer for himself in the last day. “So then every one of us shall give account of himself to God.” Romans 14:12. DPL 40.2

Whoever, therefore, presumes to exercise jurisdiction over the religious belief or observances of any man, or would compel any man to conform to the precepts of any religion, or to comply with the ceremonies of any religious body, or would condemn any man for not believing or complying,-whoever would presume to do any such thing puts himself above Jesus Christ, and usurps the place and the prerogative of God, the Judge of all. DPL 40.3

Such is the doctrine of the free exercise of religion, as announced by Jesus Christ himself. And such is the doctrine upon this point that will ever be held by every one who respects that glorious Being. Thus is declared and established by the Author of all true religion, the inalienable, the divine, right of dissent. And such is the divine right of the freedom of religious belief. DPL 40.4

Now, as it is the inalienable, the divine, right of every man to dissent from any and every church doctrine, and to disregard every church ordinance, institution, or rite, it follows that whenever the State undertakes to enforce the observance of any church ordinance or institution, it simply makes itself the champion of the church, and undertakes to rob men of their inalienable right to think and choose for themselves in matters of religion. Men are therefore and thereby compelled either to submit to be robbed of their inalienable right of freedom of thought in religious things, or else to disregard the authority of the State. And the man of sound principle and honest conviction will never hesitate as to which of the two things he will do. DPL 41.1

When the State undertakes to enforce the observance of any church ordinance or institution, and thus makes itself the champion and partisan of the church, then the inalienable right of men to dissent from church doctrines and to disregard church ordinances and institutions, is extended to the authority of the state in so far as it is thus exercised. And that which is true of church doctrines, ordinances, and institutions, is equally true of religious doctrines and exercises of all kinds. DPL 41.2

Nor is this all in this connection. The makers of the Government of the United States recognized this divine right as such, and established the exercise of it as an inalienable civil right, “by refusing to treat faith as a matter of government, or as having a headship in a monarch or a State;” by excluding all religious tests; and by forbidding Congress ever to make “any law respecting an establishment of religion, or prohibiting the free exercise thereof.” In short, by prohibiting the law-making power from making any law whatever upon the subject of religion, DPL 41.3

The people of Tennessee, following this example of the makers of the national Government, established in that State this divine right, as also an inalienable civil right, by declaring that “no human power can in any case whatever control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishment or mode of worship.” DPL 42.1

And thus “the people of the United States, in harmony with the people of the several States, adopted the principle first divinely ordained by God in Judea.” DPL 42.2

Therefore, it can never be true in the United States, that either civil or religious freedom may of right stop short of its logic in this matter of Sunday observance, nor in any other matter of religion or religious observance. DPL 42.3

Now Sunday as an institution, with its observance, is of the Church only. Its origin and history are religious only. Yet of Sunday observance enforced by law, Judge Hammond speaks thus:— DPL 42.4

“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.” DPL 42.5

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 giving the observers of the institution 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 therefore, 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. DPL 42.6

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 is the contest for the right of the free exercise of religious belief. It was 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; and 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. DPL 43.1

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. DPL 43.2

Under the Calvinistic theocracy of Geneva, the same argument was again used in behalf of religious oppression. In England the same argument was used against 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 Congregationalists. But through it all, Christianity always refused to recognize any validity whatever in the argument, and it always will. DPL 43.3

“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 and 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. DPL 44.1

The truth of the matter is, 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. DPL 44.2

1. Jesus Christ has commanded, “Render to Cæsar the things that are Cæsar’s; and to God the things that are God’s.” In this the Lord has distinctly and positively separated that which pertains to Cæsar from that which pertains to God. Things religious are due to God only; things civil are due to Cæsar. When the civil power-Cæsar-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 put 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 ever of right legally adopt and enforce any religious custom or observance. And wherever such a thing is done, he who regards God the most will respect such action the least. DPL 44.3

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 tortured 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. DPL 45.1

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 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. DPL 45.2

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 the United States Court has had opportunity to notice it, instead of the principle’s being recognized, it is revolutionized; and instead of the American doctrine of the nineteenth century, the Roman doctrine of the first century is inculcated. DPL 45.3

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 Cæsar,-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. DPL 46.1

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. DPL 46.2

The fact that religious belief is the foundation of the custom, is the one great 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 firmly 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:— DPL 47.1

“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. DPL 47.2

The principle is that it would be impossible for as much damage to accrue to the State or society through the loss of the supposed benefit, however great, as would certainly accrue to both State and society by thus giving to religionists the control of the civil power. DPL 47.3

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. DPL 47.4