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

Whence Came It All?

From the extracts which we have made and discussed in this review, we have no doubt that the reader has wondered where in the world a judge of a United States Court ever could have got such an abundance of such strange principles. He was sitting in the place, and speaking officially from the bench, of a judge of a court of the Government of the United States. It were to be expected, therefore, that he would announce the principles of that Government. Instead of this, however, he boldly sets forth propositions and principles that are utterly subversive of every principle of the Government of the United States, as that Government was originally established, and as the people have supposed it was being maintained. DPL 90.1

Where did he get them? We are not left to answer this question ourselves, nor in a way in which there need be any fear of making a mistake. The answer is already and abundantly made, and furnished ready to our hand. All we need to do is to transcribe such portions as may be required to answer the inquiry that has been raised. DPL 90.2

The decision of the court and the dictum of the Judge were filed at Memphis, Tennessee, Aug. 1, 1891, and were printed in full in the Memphis Appeal-Avalanche of the next day, August 2. Then in the same paper, under date of August 30, there is a communication nearly four columns in length, entitled, “The Sunday Habit,” upon the same subject, covering the same ground, signed “E. S. Hammond,” and dated “Aug. 12, 1891.” The head-lines of the communication show that the E. S. Hammond whose name is signed to it is the same one, who, as Judge E. S. Hammond, filed the dictum August 1, which was printed August 2. And every line of the communication plainly shows that it was from Mr. E. S. Hammond, the individual, that Hon. E. S. Hammond the judge, obtained the principles and propositions which are set forth in the dictum. DPL 90.3

Nor were they simply gotten up for the occasion, or prepared on short notice. By Mr. Hammond’s express statement they are shown to have been of long standing, if not inherent in the individual. After stating again some of the leading thoughts of the dictum of the judge, Mr. Hammond, with a satisfaction that is clearly apparent, announces that:— DPL 91.1

“Upon this line of argument, the writer some years ago, being invited to lecture before his Jewish fellow-citizens upon the question whether Christianity can be a part of the law of the land, sought to reconcile them to the civic doctrine of obedience to a dominant though distasteful custom, even at the economic sacrifice of another day of labor, rather than attempt to overthrow a habit so fixed as the Sunday habit, by the comparatively weak process of individual defiance of the custom, and to agitate the incorporation of an exception in the Sunday laws in favor of him who conscientiously had abstained from labor on Saturday.” DPL 91.2

This shows that the doctrine of obedience to a dominant religious party, which, by “a sort of factitious advantage” may control the civil power, and by it compel conformity to their religious opinions or dogmas, is an old and favorite doctrine of Mr. Hammond’s. And he seems to be so smitten with his despotic principles that he not only seizes every opportunity to air them and parade them before the public, but must needs use the judicial office of the United States to create an opportunity. DPL 91.3

As for his effort to reconcile his Jewish fellow-citizens to his doctrine, we can say: First, unless his Jewish fellow-citizens of Tennessee are much more financially liberal than they are in any other part of the country, they would hardly appreciate his request that they pay sixteen and two thirds per cent of their income for the privilege of being reconciled to “the civic doctrine” of obedience to a dominant and distasteful religious custom; and, secondly and above all, unless they are entirely lost to the religious integrity that has always characterized their race, they would still less appreciate his invitation to surrender to a dominant party and to a distasteful custom, all their rights of conscience, for the privilege of being so reconciled. DPL 91.4

For to surrender all their rights of conscience is just what he asks them to do. For when an exception is either asked or granted, upon the condition that those who are excepted shall “conscientiously” abstain from labor on another day, it then becomes a matter of judicial decision as to what is conscientious abstinence or observance. This has already been declared by the courts of those States which have exemption clauses in their Sunday laws. The decisions have declared that the burden of proof of conscientious action rests upon him who makes the claim of exception on account of conscientious observance of another day, and the proof must be such as will satisfy the court. DPL 92.1

Thus it is demonstrated that Mr. Hammond’s proposition, of which he seems to be so proud, is simply a proposal that citizens of the United States and of the State of Tennessee shall surrender to the control of courts and juries their conscientious convictions, their conscientious beliefs, and their conscientious observances; that they shall no longer observe the Sabbath according to the dictates of their own consciences, but only according to the dictates of the courts. DPL 92.2

This is precisely the doctrine of the dictum of Judge Hammond, and it is evident that it was derived from Mr. E. S. Hammond, the individual; for it is in open contradiction to both the Constitution of the United States and of the State of Tennessee, both of which were specifically before the Judge when he set forth his dictum. DPL 92.3

The Constitution of the State of Tennessee, whose citizens Mr. Hammond was endeavoring to reconcile to the dictates of a dominant religious party, by asking them to surrender to the courts their rights of conscience, plainly declares that “no human authority can in any case whatever control or interfere with the rights of conscience.” Therefore it is plain that in the proposal which Mr. Hammond made to his Jewish fellow-citizens of Tennessee, he spoke in open contradiction to the Constitution of that State, as well as in total oblivion of every principle of the rights of conscience; and actually advised his Jewish fellow-citizens to surrender their explicitly declared Constitutional rights, as well as their own individual and divine rights of conscience. DPL 92.4

The Constitution of the United States, which Judge Hammond is empowered to construe, which he is sworn faithfully to maintain, and which is intended to be the supreme guide in all the deliverances which he renders from the bench upon which he sits—“the American Constitution, in harmony with the people of the several States—withholds from the Federal Government the power to invade the home of reason, the citadel of conscience.” It is evident, therefore, that the principles of that dictum were not derived in any sense from the Constitution which the Judge is sworn to maintain, and which is intended to be his guide; nor were they derived from the Constitution of Tennessee, which at the time was subject to his cognizance. DPL 93.1

Therefore, as the principles of Judge Hammond’s dictum are not the principles of either the Constitution of the United States or of the State of Tennessee, both of which were the direct subject of his judicial cognizance; and as they are explicitly the principles of Mr. E. S. Hammond, the individual, as expressed in his communication of Aug. 12, 1891, to the Appeal-Avalanche, and set forth “some years ago” from the lecture platform, it logically follows that the principles announced in the dictum of Hon. E. S. Hammond, the judge, were derived solely from Mr. E. S. Hammond, the individual. And from this it follows inevitably that upon the question of religious right, Hon. E. S. Hammond, of the Circuit Court of the United States, has not hesitated to set forth, from the judicial bench of the United States, his own personal and individual opinions, to clothe them as far as possible with the authority that attaches to such a position, and to pass them off upon the American people as the principles of the Government of the United States. DPL 93.2

This illustrates another point, and one which all history emphasizes: that is, that whenever religion becomes in any way connected with the civil power, it is always the personal opinions as to religion, of those who happen at the time to be in power, that are given the force of law which all are expected to accept, and to which all are obliged by authority of Government to submit. And the first essay of the kind by a court of the United States ought to be enough to awaken the people of this nation to the wisdom of the Constitution and of the governmental fathers who made it, in straitly forbidding the Government to take cognizance of religious things in any way whatever. DPL 94.1

Mr. Hammond presumes to announce for the Jews, that which of course he declares to be to their “credit,” that “they adopt this [his] plan of compliance.” But we are very happy to know and to publish that he also announces that the “Anglo-Saxon who follows the tenet of the Jews as to the Sabbath, is more irreconcilable to the sacrifice he is called to make.” DPL 94.2

All honor to such Anglo-Saxons then! May their tribe increase abundantly! And we sincerely hope that every one of them will forever remain completely irreconcilable to any such sacrifice or compliance. Better a thousand times to die as poor King, the victim in this case, did, condemned by such “process of law” and under a $1,000 bail, or even in a dungeon, than to comply with the bigoted demands of a religious party, who, “in spite of the clamor for religious freedom and the progress that has been made in the absolute separation of Church and State,” and by “a sort of factitious advantage,” “have secured the aid of the civil law!” Better to die the freemen of Jesus Christ, than to live the slaves of a religious despotism! DPL 94.3

R. M. King, the victim of this persecution, is dead. He died as he had lived, a humble, harmless man, and a sincere Christian. He died condemned by the courts of Tennessee and the Circuit Court of the United States, and bound in $1,000 bail on appeal to the Supreme Court of the United States. By his death his case has passed from earthly courts, and stands appealed to the Supreme Court of the Universe. DPL 95.1

That Court will surely sit, for God “hath appointed a day in the which he will judge the world in righteousness.” In that day there will sit a Judge with whom neither “factitious advantage” nor “public opinion,” but only justice, shall have any weight. And in that day we would far rather stand in Mr. King’s place than in that of his persecutors; for He who shall sit as Judge in that day, has long ago declared, “Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me;” and, “Whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.” DPL 95.2