Persecution Judicially Justified

As already quoted, the Judge says that it was a belief of Madison and other founders of the national Government, that “they had practically established absolute religious freedom and exemption from persecution for opinion’s sake in matters of religion;” that in this they set a good example, which has been substantially followed by the States; and that the example has been followed “by no State more thoroughly than Tennessee.” Yet in the rest of that same sentence, and throughout all the rest of his dictum, he renders definitions and lays down propositions that are not only utterly subversive of every principle of religious freedom, but which do in plain words declare and justify the doctrine of persecution for religious dissent.DPL 18.1

In stating what, according to his view, is the true measure of the freedom of religious belief which is contemplated and guaranteed by the Constitution of Tennessee, he says:—DPL 18.2

“Sectarian freedom of 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 should not himself 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.”DPL 18.3

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.”DPL 19.1

For instance, a man may be a Baptist, and may practice the precepts of the Baptist creed; but if the Methodists should have control of legislation, they could 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.DPL 19.2

Such, according to Judge Hammond’s view, is the freedom of religious belief guaranteed by the Constitution of Tennessee. But it seems to us that this is hardly the idea of “absolute religious freedom” which the founders of our Government believed they had practically established. That we have not misconstrued the Judge’s meaning, is made clear by a further extract, as follows:—DPL 19.3

“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 guaranty to protect his refusal.”DPL 19.4

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.DPL 20.1

And now, says Judge Hammond, in Tennessee, if a nonconformist 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.DPL 20.2

And thus would a judge of a United States court throw open the field of legislation to whatever religious denomination may secure control of it, and would justify such denomination in the use of the 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 view of this dictum, such non-conformist has no constitutional guaranty of protection.DPL 20.3

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:—DPL 21.1

“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.”DPL 21.2

This is about the clearest statement of the doctrine of persecution that we have ever seen. We have read considerable on the subject of religion and the State. We have read the accounts of persecutions through all the ages from the cross of Christ till 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.DPL 21.3

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.DPL 21.4

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 religious despotism. And it is equally evident that the position therein taken, justifies all persecution from the crucifixion of Christ to the case at bar.DPL 22.1

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, however, 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.DPL 22.2

The reader may for himself 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 review (page 4).DPL 22.3

We might here inquire also, whether Judge Hammond, or anybody else, really believes that the doctrine thus set forth by the judge is in accord with the “belief of Mr. Madison and other founders of our Government that they had practically established absolute religious freedom and exemption from persecution for opinion’s sake in matters of religion”? and whether in this, either he or the State of Tennessee is indeed thoroughly following the example set by those founders of our Government?DPL 23.1