ATJ
THERE is almost an entire misapprehension in the public mind as to the Sunday law of Tennessee. AMS November 17, 1892, page 353.1
SEEING the despotic and persecuting proceedings of the State authorities in Henry County, Tennessee, as regards Sunday work by those who keep Sabbath, the public have gathered the idea that the Sunday law of that State is a rigid, fierce, and fire-breathing thing. This is a mistake. AMS November 17, 1892, page 353.2
OF course all Sunday laws are bad. But as a matter of fact that Sunday law of Tennessee is about as mild as any Sunday law could be. And as a further fact the Sunday law of Tennessee is entirely innocent, so far as the persecutions on this subject in that State are concerned. AMS November 17, 1892, page 353.3
THE truth is that the persecuting prosecutions that have been carried on by the authorities of the State of Tennessee, as regards Sunday work, for the last eight years, have been, and are, without any statutory authority whatever. The statute in relation to Sunday work is ignored, and has been ignored these eight years, and all these cases, and extra-statutory measures have been applied and carried through. This the public should understand. AMS November 17, 1892, page 353.4
THE Sunday law of Tennessee, the only statute on this subject in that State, provides only for prosecution “before any justice of the peace of the county;” and provides there, only that the person duly convicted (of performing any of the common vocations of life on Sunday), “before any justice of the peace of the county, shall forfeit and pay three dollars, one half to the person who shall sue for the same, the other half for the use of the county.” AMS November 17, 1892, page 353.5
THIS is the only provision of law on this subject in the State of Tennessee. And it is clear as words can say it, that there is in that State no provision of law for any prosecution for Sunday work, in any court but that of a “justice of the peace;” and no provision of law for any fine or penalty, but “three dollars.” Yet every case of prosecution for Sunday work in that State for the last eight years, has been before the Circuit Court, and the fine placed at whatever figure the jury or the Circuit Judge has chosen to levy. That is, the proceedings, instead of being an enforcement of the law, are simply an infliction of the arbitrary will of the court. And such procedure has been solemnly pronounced by the Circuit Court of the United States, to be “due process of law.” AMS November 17, 1892, page 353.6
THIS lawless course was begun in the case of W. H. Parker in the year 1885. Parker was tried before the Circuit Court, and duly convicted and imprisoned. Then nothing more was done in this line until the noted case of R. M. King in the summer of 1889. King was first prosecuted according to the law, and the fine provided in the law, was assessed and collected. A simple fine of three dollars, however, was not sufficient to satisfy the religious zeal of those who would prohibit the observance of any day but Sunday. Accordingly, these extra-statutory measures were adopted; the law was ignored; and Parker, King, and all others since, have been prosecuted before the Circuit Court, for the crime of “public nuisance,” whereby the jury can assess any fine they see fit above fifty dollars; under that sum the amount being left to the discretion of the judge. AMS November 17, 1892, page 353.7
BY this method, not only can the fine be assessed at any amount, but the court can convict without any evidence. This is precisely what was done last May in the cases of Dortch, Moon, Stem, and Lowry. They were prosecuted for the crime of public nuisance, committed by working on Sunday. And though not a soul had made any complaint against any one of them, and though not a single witness testified that anybody in the community had been disturbed by any one of the accused, or had complained of any one of them; yet all four were found guilty of having done that which “was and is a disturbance in the community in which done, was offensive to the moral sense of the public, and was and is a public nuisance.” And the fines were such as to keep them in jail from forty-five to sixty-four days. AMS November 17, 1892, page 353.8
Of course, as we have shown, there is no law in Tennessee making work on Sunday a public or any other kind of nuisance. That turn was made in this way: Some years ago the Supreme Court of that State set forth the doctrine that “Christianity is part of the common law” of Tennessee, and that offenses against Christianity were properly indictable, and punishable as common law offenses. This is the doctrine that was confirmed by the Circuit Court of the United States, which said that though there is “not any foundation for the ruling that it is a common law nuisance to work in one’s fields on Sunday;” that King was “wrongfully convicted;” and the court “wrongfully decided;” yet it was all “due process of law.” And this decision of the Circuit Court of the United States establishing as “due process of law,” the “wrongful decision” of the Supreme Court of Tennessee, which confirmed the “wrongful conviction” of a man, under a ruling for which there was “not any foundation”—this is to-day the authority, the only authority, and the only authority that is claimed, for the crusade in behalf of Sunday, that is now being carried on in the State of Tennessee. AMS November 17, 1892, page 353.9
It is a mistake therefore to speak as some have of Tennessee’s “rigid Sunday law.” Tennessee has no rigid Sunday law. On the contrary she has a very mild law for a Sunday law, and even that is not enforced. It is somewhat wide of the mark also to call, as some papers have, for Tennessee to repeal her Sunday law. This is not the need just now; for Tennessee’s Sunday law is not hurting anybody. It is the Sunday law that she hasn’t that is doing the mischief—and that can’t be repealed. AMS November 17, 1892, page 354.1
What is urgently needed just now in that State is a rigid reform of her courts. There needs to be secured a set of judges who will have some respect for the laws, both constitutional and statutory; and who will be content to set forth the law as it is written, and not take it upon themselves to set forth their own arbitrary will for the law. Judges are wanted there who will keep within the bounds set by the Constitution for the judiciary, and who will not attempt to exercise also the prerogative of the legislative branch of the State government. This is a reform, too, that is sadly needed not only in Tennessee but clear from the Circuit Courts of that State all the way up to the Supreme Court of the United States. But lo! in this very fact of the widespread and deep-seated need, lies the hopelessness of any reformatory remedy ever being successfully applied. AMS November 17, 1892, page 354.2
Tennessee also needs attorneys-general who will be content to be prosecuting attorneys, without turning themselves into persecuting attorneys after the manner of that one down in Henry County—attorneys-general and not inquisitors-general. AMS November 17, 1892, page 354.3
A. T. J.
ATJ
IN another place in this paper it has been pointed out how that in Tennessee that statute is ignored and the theory of “Christianity as the Common law” is used as the authority for the persecutions there for Sunday work. This doctrine of “Christianity as the Common law” is worth of some attention on its own account; and as this Tennessee history furnishes a living example we take this opportunity to show what the doctrine really amounts to. AMS November 17, 1892, page 355.1
It is an undeniable principle of the law that the common law is superseded by the written law. A statute repeals the common law on the same subject: and a Constitution supplants the common law on all points upon which the Constitution speaks. AMS November 17, 1892, page 355.2
1. As a statute takes the place of the common law on the same subject, and as the State of Tennessee has a statute on the subject of Sunday work, it follows that any indictment or prosecution, at common law, for Sunday work, is therefore precluded, and is void. AMS November 17, 1892, page 355.3
2. As a Constitution supplants the common law in all points upon which the Constitution speaks; as the Constitution of Tennessee expressly declares that “no preference shall ever been given by law to any religious establishment or mode of worship;” and as Christianity is in its every intent and purpose a mode of worship; it follows that when the Supreme Court of Tennessee recognized and established Christianity as a part of the common law of that State, that court did thereby positively give preference by law to that religion and its modes of worship. But this, being in violation of the express provision of the Constitution, is in itself void. AMS November 17, 1892, page 355.4
It may be well to give some citations upon this point. The Constitution of California contains substantially the same provisions as does that of Tennessee. And upon this same question the Supreme Court of that State spoke as follows: AMS November 17, 1892, page 355.5
We often meet with the expression that Christianity is part of the common law. Conceding that this is true, it is not perceived how it can influence the decision of a constitutional question. The Constitution of this State will not tolerate any discrimination or preference in favor of any religion; and so far as the common law conflicts with this provision, it must yield to the Constitution. Our constitutional theory regards all religions, as such, equally entitled to protection, and all equally unentitled to any preference. Before the Constitution they are all equal. When there is no ground or necessity upon which a principle can rest, but a religious one, then the Constitution steps in and says that you shall not enforce it by authority of law.—9 Lee 513. AMS November 17, 1892, page 355.6
The Constitution of Ohio has the same provisions, almost word for word, as has the Constitution of Tennessee. And likewise upon this same question the Supreme Court of that State spoke thus:— AMS November 17, 1892, page 355.7
The Constitution of Ohio having declared “that all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority can, in any case whatever, control or interfere with the rights of conscience; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; and that no preference shall ever be given by law to any religious society or mode of worship, and no religious test shall be required as a qualification to any office of trust or profit,” it follows that neither Christianity nor any other system of religion is a part of the law of this State. We sometimes hear it said that all religions are tolerated in Ohio; but the expression is not strictly accurate; much less accurate is it to say that one religion is a part of our law, and all others only tolerated. It is not mere toleration that every individual here is protected in his belief or disbelief. He reposes, not upon the leniency of government, or the liberality of any class or sect of men, but upon his natural, indefeasible rights of conscience, which, in the language of the Constitution, are beyond the control or interference of any human authority.—2 Ohio Rep., 387. AMS November 17, 1892, page 355.8
The Constitution of New York is substantially the same; and the Supreme Court of that State annihilates the proposition that Christianity is part of the common law, in the following masterly reasoning:— AMS November 17, 1892, page 355.9
The maxim that Christianity is part and parcel of the common law has been frequently repeated by judges and text writers; but few have chosen to examine its truth or attempted to explain its meaning. We have, however, the high authority of Lord Mansfield, and his successor, the present Chief Justice of the Queen’s Bench, Lord Campbell, for stating as its true and only sense, that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, that blasphemy is an indictable offense at common law. The truth of the maxim in this very partial and limited sense may be admitted. But if we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning or untrue. If Christianity is a municipal law, in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil power, who refuses to embrace its doctrines and follow its precepts. And if it must be conceded that in this sense the maxim is untrue, it ceases to be intelligible, since a law without a sanction is an absurdity in logic and a nullity in fact. AMS November 17, 1892, page 355.10
Let it be admitted, however, that Christianity is a part of the common law, in any sense of the maxim which those who assert its truth may choose to attribute to it. The only effect of the admission is to create new difficulties, quite as impossible to overcome as those that have already been stated. How, we would then ask.... are we to apply the test which Christianity is said to furnish? It will not be pretended that the common law has supplied us with any definition of Christianity. Yet without a judicial knowledge of what Christianity is, how is it possible to determine whether a particular use, alleged to be pious, is or is not consistent with the truths which Christianity reveals? AMS November 17, 1892, page 355.11
No religious use has been or can be created, that does not imply the existence and truth of some particular religious doctrine; and hence, when we affirm the validity of a use as pious, we necessarily affirm the truth of the doctrine upon which it is founded, In a country where a definite form of Christianity is the religion established by law, the difficulty to which we refer is not felt, since the doctrines of the established church then supply the criterion which is sought; but with us if can readily be shown that the difficulty is not merely real and serious, but insurmountable.—4 Sandford’s Superior Court Reports, pp. 181, 182. AMS November 17, 1892, page 355.12
All of this Judge Cooley confirms in these words:— AMS November 17, 1892, page 356.1
It is frequently said that Christianity is a part of the law of the land.... But the law does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin. Some of these precepts, though we may admit their continual and universal obligation, we must nevertheless recognize as being incapable of enforcement by human laws. That standard of morality which requires one to love his neighbor as himself, we must admit is too elevated to be accepted by human tribunals as the proper test by which to judge the conduct of the citizen; and one could hardly be held responsible to the criminal laws, if in goodness of heart and spontaneous charity he fell something short of the good Samaritan. The precepts of Christianity, moreover, affect the heart and address themselves to the conscience; while the laws of the State can regard the outward conduct only; and for these several reasons Christianity is not a part of the law of the land in any sense which entitles the courts to take notice of and base their judgments upon it, except so far as they can find that its precepts and principles have been incorporated in and made a component part of the positive laws of the State.—Constitutional Limitations, p. 584. AMS November 17, 1892, page 356.2
3. This provision of the Constitution of Tennessee is a part of the title, “Bill of Rights.” Now another principle of law and government is, that— AMS November 17, 1892, page 356.3
Everything in the declaration of rights contained, is excepted out of the general powers of government, and all laws contrary thereto shall be void.—Idem., p. 46. AMS November 17, 1892, page 356.4
As, therefore, the “Declaration of Rights” of the State of Tennessee has provided that “no preference shall ever be given by law to any religious establishment or mode of worship;” as all matters of conscience, religion, and worship are thereby “excepted out of the general powers of government;” and as “all laws contrary thereto shall be void,” it is clearly demonstrated that the preference given to Christianity as by common law is the State of Tennessee, is void. AMS November 17, 1892, page 356.5
There is yet another defect in this theory that Christianity is part of the common law. The theory is drawn from the English courts. But “even in England, Christianity was never considered as a part of the common law so far as that for a violation of its injunctions, independent of the established laws of man, and without the sanction of any positive act of Parliament made to enforce these injunctions, any man could be drawn to answer in a common law court,” as was done in this case by the courts of the State of Tennessee. AMS November 17, 1892, page 356.6
But Judge Hammond himself goes even further than this, and in a communication printed in the Appeal-Avalanche, Aug. 30, 1891, shows that “in one of the latest cases in England the Lord Chief Justice pronounced former expressions that Christianity is part of the law of the land, as dicta, and not true now.” AMS November 17, 1892, page 356.7
True enough! It is not true now, and it never was true by any principle of justice or right. We have not space here to go into the details of this matter. It must suffice here simply to observe that it was introduced by fraud, it was established by falsehood, and it has been perpetuated by imposture. And query: As it is “not true now” in England that Christianity is part of the law of the land, how can it be true that it is true now in Tennessee, which professedly derives the doctrine from England? And further and doubly, How can it be true now in Tennessee in face of the State Constitution, which expressly prohibits it in the declaration that “no human authority 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?” AMS November 17, 1892, page 356.8
Thus it is demonstrated by the living principles of American law and government, that the procedure of the Tennessee courts in the case of Mr. King instead of being of absolute authority, as the United State Circuit Court decided, is absolutely void and of no valid authority at all. And the demonstration is complete, the decision of the United States Circuit Court to the contrary, notwithstanding, that King, and Dortch, and Moon, and Stem and Lowry, were deprived of their liberty and property “WITHOUT DUE PROCESS OF LAW.” AMS November 17, 1892, page 356.9
A. T. J.
ATJ
THE President, in his role of official high priest of this “Christian” Nation, has issued the following proclamation:— AMS November 17, 1892, page 352.1
The gifts of God to our people during the past year have been so abundant and so special that the spirit of devout thanksgiving awaits not a call, but only the appointment of a day when it may have a common expression. He has stayed the pestilence at our door; he has given us more love for the free civil institutions, in the creation of which his directing providence was so conspicuous; he has awakened a deeper reverence for law; he has widened our philanthropy by a call to succor the distress in other lands; he has blessed our schools and is bringing forward a patriotic and God-fearing generation to execute his great and benevolent designs for our country; he has given us great increase in material wealth, and a wide diffusion of contentment and comfort in the homes of our people; he has given his grace to the sorrowing. AMS November 17, 1892, page 352.2
Wherefore, I Benjamin Harrison, President of the United States, do call upon all our people to observe, as we have been wont, Thursday, the twenty-fourth day of this month of November, as a day of thanksgiving to God for his mercies and of supplication for his continued care and grace. AMS November 17, 1892, page 352.3
In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. AMS November 17, 1892, page 352.4
Done at the city of Washington this 4th day of November, one thousand eight hundred and ninety-two, and of the independence of the United States the one hundred and seventeenth. AMS November 17, 1892, page 352.5
By the President, BENJAMIN HARRISON. AMS November 17, 1892, page 352.6
JOHN W. FOSTER, Secretary of State. AMS November 17, 1892, page 352.7
IT is a little strange that while such proclamations are issued, professedly, because this is a “Christian” Nation, this particular proclamation, like many others before it, bears no internal evidence of being a Christian document, or that it is issued by a Christian ruler. The veriest pagan might be the author of such a proclamation. Deioces or Cyaxares might have issued a proclamation in the exact words of this one issued by the President of this “Christian” Nation, and nobody would have even suspected that it was not designed to honor the god of Persia. AMS November 17, 1892, page 352.8
If this is, as the Supreme Court holds that it is, a “Christian” Nation, the President certainly ought to issue Christian proclamations; if it is a pagan Nation, the proclamation in question will answer every purpose; but if the Nation is simply a civil government, organized for civil purposes, and as President Washington asserted, “is in no sense founded upon the Christian religion,” we should at once and forever be done with the force of professing something which only a small per centage of the people really feel, and which causes a professedly Christian man, an elder in a Christian church, to deny his Lord by issuing as a Christian act, a proclamation which fails to recognize our Lord even in the date which it bears. AMS November 17, 1892, page 352.9