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

Is This a Prerogative of the United States Courts?

The question, however, as to whether these statements are true or false, is a very small matter compared with the principle which is involved, and which underlies this action of the Judge: that is, the assumption of the prerogative of defining and passing judgment upon the beliefs and wishes of citizens of the United States. DPL 67.1

For convenience, we insert again the passage referred to, italicizing the words which touch the principles:— DPL 67.2

“The petitioner cannot shelter himself just yet behind the doctrine of religious freedom in defying the existence of a law and its application to him, which is distasteful to his own religious feeling or fanaticism, that the seventh day of the week, instead of the first, should be set apart by the public for the day of public rest and religious practices. That is what he really believes and wishes, he and his sect, and not that each individual shall select his own day of public rest, and his own day of labor. His real complaint is, that his adversaries on this point have the advantage of usage and custom, and the laws founded on that usage and custom, not that religious freedom has been denied to him. He does not belong to the class that would abrogate all laws for a day of rest, because the day of rest is useful to religion, and aids in maintaining its churches; for none more than he professes the sanctifying influence of the fourth commandment, the literal observance of which, by himself and all men, is the distinguishing demand of his own peculiar sect.” DPL 67.3

By this it is evident that the Judge has presumed authoritatively to define for Mr. King and the people with whom he is religiously connected, just what their “religious feeling” is, and what they really believe and wish. And it is evident that the Judge considers himself capable of defining for them what their religious feeling is and what they really believe and wish, better than they can do it for themselves; because that which he declares to be their religious feeling and what they really believe and wish, is directly contrary to what they themselves had formerly and officially declared upon the same points precisely. DPL 67.4

Nor does the Judge stop here. Having officially declared for them what their religious feeling is, and what they really believe and wish, and so having this point judicially settled, he proceeds to judge their motives, and to declare them “disingenuous,”—“not noble or high-toned; mean, unworthy ... unworthily or meanly artful,” in their “demand for religious freedom.” And not content with this, he must needs apply to the religious feeling which he has falsely attributed to them, the opprobrious epithet of “fanaticism.” DPL 68.1

This is a singular proceeding for a court of the United States. It strongly reminds us of certain court proceedings in times past, which are worth recalling in this connection. There are many of them, but two will suffice for this occasion. Jan. 18, 1573, a certain Mr. White, a Puritan, and “a substantial citizen of London, who had been fined and tossed from one prison to another, contrary to law and justice [yet all in “due process of law.”—a. t. j.], only for not frequenting his parish church,” and for renouncing the Church of England forms and ceremonies, was prosecuted before an English court, the Lord Chief Justice presiding, who was assisted by the Master of the Rolls, the Master of Requests, a Mr. Gerard, the Dean of Westminster, the Sheriff of London, and the Clerk of the Peace. The record is in part as follows:— DPL 68.2

“Lord Chief Justice.—Who is this? DPL 68.3

“White.—White, an’t please your honor. DPL 68.4

“L. C. J.—White! as black as the devil! DPL 68.5

“White.—Not so, my lord; one of God’s children.... DPL 68.6

“Master of Requests.—What scriptures have you to ground your conscience against these garments? DPL 68.7

“White.—The whole Scriptures are for destroying idolatry, and everything that belongs to it. DPL 68.8

“M. Req.—These things never served to idolatry. DPL 68.9

“White.—Shough! they are the same which were heretofore used to that purpose. DPL 69.1

“M. Req.—Where is the place where these are forbidden? DPL 69.2

“White.—In Deuteronomy and other places; ... and God by Isaiah commandeth us not to pollute ourselves with the garments of the image.... DPL 69.3

“Master of the Rolls.—These are no part of idolatry, but are commanded by the prince for civil order; and if you will not be ordered, you show yourself disobedient to the laws. DPL 69.4

“White.—I would not willingly disobey any law, only I would avoid those things that are not warranted by the word of God. DPL 69.5

“M. Req.—These things are by an Act of Parliament, and in disobeying the laws of your country, you disobey God. DPL 69.6

“White.—I do it not of contempt, but of conscience; in all other things I am an obedient subject. DPL 69.7

“L. C. J.—Thou art a contemptuous fellow, and will obey no laws. DPL 69.8

“White.—Not so, my lord: I do and will obey laws, ... refusing but a ceremony out of conscience; ... and I rest still a true subject. DPL 69.9

“L. C. J.—The Queen’s majesty was overseen not to make you of her council, to make laws and orders for religion. DPL 69.10

“White.—Not so, my lord; I am to obey laws warranted by God’s word. DPL 69.11

“L. C. J.—Do the Queen’s laws command anything against God’s word. DPL 69.12

“White.—I do not so say, my lord. DPL 69.13

“L. C. J.—Yes, marry, do you, and there I will hold you. DPL 69.14

“White.—Only God and his laws are absolutely perfect; all men and their laws may err. DPL 69.15

“L. C. J.—This is one of Shaw’s darlings. I tell thee what, I will not say anything of affection, for I know thee not, saving by this occasion; thou art the wickedest and most contemptuous person that has come before me since I sat in this commission. DPL 69.16

“White.—Not so, my lord; my conscience witnesseth otherwise.... DPL 69.17

“Dean of Westminster.—You will not, then, be obedient to the Queen’s commands? DPL 69.18

‘White.—I would only avoid those things which have no warrant in the word of God; that are neither decent nor edifying, but are flatly contrary.... DPL 70.1

“L. C. J.—You would have no laws. DPL 70.2

“White.—If there were no laws, I would live a Christian and do no wrong; if I received any, so it were. DPL 70.3

“L. C. J.—Thou art a rebel. DPL 70.4

“White.—Not so, my lord: a true subject. DPL 70.5

“L. C. J.—Yes, I swear by God, thou art a very rebel; for thou wouldst draw thy sword, and lift up thy hand against thy prince, if time served. DPL 70.6

“White.—My lord, I thank God my heart standeth right toward God and my prince; and God will not condemn, though your honor hath so judged. DPL 70.7

“L. C. J.—Take him away. DPL 70.8

“White.—I would speak a word which I am sure will offend, and yet I must speak it; I heard the name of God taken in vain; if I had done it, it had been a greater offense there than that which I stand here for. DPL 70.9

“Mr. Gerard.—White, White, you don’t behave yourself well. DPL 70.10

“White.—I pray your worship show me wherein, and I will beg pardon and amend it. DPL 70.11

“L. C. J.—I may swear in a matter of charity.... DPL 70.12

“White.—Pray, my lord, let me have justice. I am unjustly committed; I desire a copy of my presentment. DPL 70.13

“L. C. J.—You shall have your head from your shoulders. Have him to the Gatehouse. DPL 70.14

“White.—I pray you to commit me to some prison in London, that I may be near my house. DPL 70.15

“L. C. J.-No, sir, you shall go thither. DPL 70.16

“White.—I have paid fines and fees in other prisons; send me not where I shall pay them over again. DPL 70.17

“L. C. J.—Yes, marry, shall you; this is your glory. DPL 70.18

“White.—I desire no such glory. DPL 70.19

“L. C. J.—It will cost you twenty pounds, I warrant you, before you come out. DPL 70.20

“White.—God’s will be done.”—Neal’s “History of the Puritans,” Vol. I, chap. V. DPL 70.21

When the Puritans of New England had established their theocracy, they inflicted the same things upon dissenters there that the Government of England had inflicted upon their religious kindred in England. A single scene from their judicial(?) procedure will serve to illustrate the point before us. It is from the condemnation-we do not say the trial-of Mrs. Hutchinson. DPL 70.22

Anne Hutchinson was an honorable woman, a Christian. She believed in the abiding presence of the Holy Spirit, according to the word of Christ. She believed also the promise of Christ, that the Spirit will guide the Christian, especially in the understanding of the Scriptures. She accordingly thought that “the Holy Ghost dwells in a justified person,” and that it is the duty of Christians to “follow the bidding of the Holy Spirit.” And as “there was nothing which the orthodox Puritan so steadfastly abhorred as the anarchical pretense of living by the aid of a supernatural light,” she was denounced as “weakening the hands and hearts of the people toward the ministers,” and as being “like Roger Williams or worse.” DPL 71.1

She had said that there was a broad difference between the preaching of Mr. Cotton and that of the rest of the ministers, that they did not preach the covenant of grace as clearly as did Mr. Cotton, and that they were not able ministers of the New Testament. This set all the preachers against her, except Cotton, and as the governmental machinery was but the tool of the preachers, she was condemned and prosecuted. DPL 71.2

The court was large. The governor, John Winthrop, was presiding judge and prosecuting attorney, both in one. He upbraided her with having spoken things prejudicial to the honor of the ministers, and other things of like enormity. In her defense she had said that she expected to be delivered out of the hands of the court, and referred to some passages in the book of Daniel. DPL 71.3

“The Governor.—Daniel was delivered by a miracle. Do you think to be delivered so too? DPL 71.4

“Mrs. H.—I do here speak it before the Court. I look that the Lord should deliver me by his providence. DPL 72.1

“Deputy Governor.—I desire Mr. Cotton to tell us whether you do approve of Mrs. Hutchinson’s revelations as she hath laid them down. DPL 72.2

“Mr. Cotton.—I know not whether I understand her; but this I say, If she doth expect a deliverance in a way of providence, then I cannot deny it. DPL 72.3

“Governor.—I see a marvelous providence of God to bring things to this pass.... God by a providence hath answered our desires, and made her lay open herself and the ground of all these disturbances to be by revelations. DPL 72.4

“All the Court.—We all consent with you. DPL 72.5

“Gov.—Ey! it is the most desperate enthusiasm in the world. DPL 72.6

“Mr. Endicott.—I speak in reference to Mr. Cotton.... Whether do you witness for her or against her? DPL 72.7

“Mr. Cotton.—This is that I said, sir, and my answer is plain, that if she doth look for deliverance from the hand of God by his providence, and the revelation be ... according to a word [of Scripture], then I cannot deny it. DPL 72.8

“Mr. Endicott.—You give me satisfaction. DPL 72.9

“Deputy Governor.—No, no; he gives me none at all. DPL 72.10

“Mr. Cotton.—I pray, sir, give me leave to express myself. In the sense that she speaks, I dare not bear witness against her. DPL 72.11

“Mr. Nowell.—I think it a devilish delusion. DPL 72.12

“Governor.—Of all the revelations that ever I heard of, I never read the like ground laid as is for this. The enthusiasts and Anabaptists had never the like. DPL 72.13

“Mr. Peters.—I can say the same; ... and I think that is very disputable which our Brother Cotton hath spoken. DPL 72.14

“Governor.—I am persuaded that the revelation she brings forth is delusion. DPL 72.15

“All the Court (except two or three).—We all believe it; we all believe it.... DPL 72.16

“Governor.—The Court hath already declared themselves satisfied ... concerning the troublesomeness of her spirit and the danger of her course among us, which is not to be suffered. Therefore if it be the mind of the Court that Mrs. Hutchinson ... shall be banished out of our liberties, and imprisoned till she be sent away, let them hold up their hands. DPL 72.17

“All but three responded. DPL 73.1

“Governor.—Those contrary-minded hold up yours. DPL 73.2

“Two only responded. DPL 73.3

“Governor.—Mrs. Hutchinson, the sentence of the Court you hear is that you are banished from out of our jurisdiction as being a woman not fit for our society, and are to be imprisoned till the Court shall send you away. DPL 73.4

“Mrs. H.-I desire to know wherefore I am banished. DPL 73.5

“Governor.—Say no more; the Court knows wherefore, and is satisfied.”—“Emancipation of Massachusetts,” pp. 72-75; “The Two Republics,” pp. 612-618. DPL 73.6

Hitherto it has been supposed by the American people that we had been delivered from such judicial procedure as is represented in these two court scenes, and that citizens of the United States were free from attacks and abuse from the judicial bench on account of their religious beliefs and feelings. But when we are confronted with the fact that from a judicial bench of the United States thousands of citizens of the United States are falsely charged, to their reproach, and denounced as “disingenuous,” and branded with the epithet of “fanaticism,” solely on account of their “religious feelings,” and their beliefs and wishes with respect to religious observances, then it is certainly time for the people of the United States to look about them, and inquire whether the rights and liberties bequeathed to us by our fathers are indeed all a delusion and a snare. DPL 73.7

Of course, this is all consistent with the Judge’s views of the relationship of religion and the civil power, and the prerogatives of those religionists who can secure control of legislation, and thus enforce upon all their own religious beliefs and observances. But in this, as in every other point of his dictum, the Judge’s ideas become a court of the Dark Ages more than any court of the nineteenth century; and a country dominated by papal principles, instead of one dominated by the principles of the Declaration of Independence, and the United States Constitution. DPL 73.8

If the jurisdiction of the courts of the United States stands indeed in things religious as well as things civil, and if the judges of those courts really sit in the place of God and enjoy the infallibility that belongs to such position, then it is proper enough, of course, that they should exercise that prerogative in deciding for individuals and sects what their religious beliefs and wishes really are, and whether a religious feeling is fanaticism or not. But if such be not the jurisdiction of the courts nor the position of the judges, then they are entirely out of place when they assume to themselves such jurisdiction and exercise such prerogatives. DPL 74.1

And that such is not the jurisdiction of any court of the United States, nor the position of any judge thereof, is evident from every principle of the Declaration of Independence and of the Constitution of the United States, and also from the whole history of the formation of that Constitution. DPL 74.2

We may here well cite a passage from a decision of the Supreme Court of California, in a case involving the identical question and principle that was before the Circuit Court of the United States for the Western District of Tennessee. The principles set forth by the California Court are fully as applicable to the United States as they are to that State. We are sure that upon a comparison between this extract and that from Judge Hammond at the beginning of this division, no reader will have the slightest difficulty in deciding which has the true ring, or which sets forth the true American doctrine. The California Court said:— DPL 74.3

“The protection of the Constitution extends to every individual or to none. It is the individual that is to be protected. The principle is the same, whether the many or the few are concerned. The Constitution did not mean to inquire how many or how few would profess or not profess this or that particular religion. If there be but a single individual in the State who professes a particular faith, he is as much within the sacred protection of the Constitution as if he agreed with the great majority of his fellow-citizens. DPL 74.4

“We cannot, therefore, inquire into the particular views of the petitioner, or any other individual.... The Constitution protects the freedom of religious profession and worship, without regard to the sincerity or insincerity of the worshipers. We could not inquire into the fact whether the individual professing to hold a particular day as his Sabbath was sincere or otherwise. He has the right to profess and worship as he pleases, without having his motives inquired into. His motives in exercising a constitutional privilege are matters too sacred for judicial scrutiny. Every citizen has the undoubted right to vote and worship as he pleases, without having his motives impeached in any tribunal of the State.”—Cal. Rep. 9 Lee, 515. DPL 75.1

And let all the people forever say, Amen. DPL 75.2