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VII

THE FREE COLONIES

Against the world-wide principle of union between Church and State, which found more or less of power in twelve of the colonial foundations in America, there were three colonies to protest from their beginnings, with no uncertain sound. They were Rhode Island, Pennsylvania, and Delaware. But there was as a marked difference between them. The voice of Rhode Island, under the tutelage of Roger Williams, was far more emphatic than that of the Quaker colonies. It not only decreed a complete severance of state from Church, but forbade to the magistrate any inquiry whatsoever into the views of the citizen on matters of religion. Pennsylvania, — out of which the independent colony of Delaware afterward sprang, founded and guided by Quaker influence, never attained to so broad a view of religious liberty; for, while denying the propriety of any religious establishment, it still incorporated in its fundamental law an invidious distinction founded on religious opinions — a part of which distinction remains to this day. This distinction is as to belief in the existence of God, upon which was and still is conditioned the right of inhabitancy and citizenship. It is but fair to add, however, that this distinction seems to have been made rather as an expression of opinion and desire on the part of the founders, than as a practical rule of exclusion. No instance of interference with an individual for atheistic opinion is recorded in the colonial history. Nor is it to be supposed that, to-day, the law would challenge an atheist’s right to all the privileges of a citizen. Practically, the liberty of the individual in religious matters was from the beginning

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nearly so well assured in Pennsylvania as in the colony of Williams. To the latter, however, belongs the signal honor of first defining that liberty in constitutional terms, untrammelled by any past or present prejudices, with a breadth of view and fulness of statement unsurpassed by any legal prescriptions of a later day.

I. Rhode Island

The history of Rhode Island, so far as concerns religious liberty, is both brief and illustrious. It began with Roger Williams, the fugitive from Massachusetts’ ecclesiasticism. Himself the first among philosophers and statesmen, since the day of Constantine, to proclaim the complete freedom of mind and conscience from all civil bonds, he became the founder of the first state in whose fundamental law that freedom was incorporated, not only as a charter of liberty, but as the actual reason and purpose of the state’s existence. In this latter particular, indeed, the colony of Rhode Island stands alone, owing its origin, not only to that desire for liberty which brought the Pilgrim and Puritan to New England, but to the set and acknowledged purpose, a purpose confessed by its founders and assented to by the king, “to hold forth a lively experiment, that a most flourishing civil State may stand and best be maintained, with a full liberty of religious concernments.”

The beginning of it may best be told in the words of Williams himself in a letter to Major Mason of Connecticut, written at Providence under date of June 22, 1670, thirty-four years after Williams’s flight from Salem.¹ The occasion of the letter was made by some suggested encroachments by the surrounding colonies on the territory of Rhode Island, and it reviews some of the writer’s early experiences. “When I was unkindly and unChristianly, as I believe, driven from my house and land and wife and children (in the midst of New England winter, now about thirty-five years ago) at

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Salem, that ever honoured Governor, Mr. Winthrop, wrote to me to steer my course to the Nahiganset Bay and Indians, for many high and heavenly and publick ends, incouraging me from the freenes of the place from any English claims or patents. I took his prudent motion as an hint and voice from God, and waving all other thoughts and motions, I steered my course from Salem (though in winter snow which I feel now) unto these parts, wherein I may say Peniel, that is, I have seene the face of God. . . . I first pitch’t and begun to build and plant at Secunk, now Rehoboth, but I received a letter from my antient friend, Mr. Winslow, then governor of Plymouth, (saying) . . . I was fallen into the edge of their bounds, and they were lothe to displease the Bay, but to remove to the other side of the water, and there I had the country free before me.”

This advice also Williams followed, and named his new settlement Providence. But Massasoit claimed that the land about Providence was his and therefore Plymouth’s, out of which claim came much disturbance to Williams, until Governor Bradford and others declared, “that I should not be molested and tost up and down againe, while their breath was in their bodies. And surely between those my friends of the Bay and Plymouth I was sorely tost for one fourteen weeks in a bitter winter season, not knowing what breach or bed did meane. . . . God knows that many thousand pounds can not repay the many temporary losses I have sustained. . . . It pleased the Father of Spirits to touch many hearts, clear to Him, with some relentings; amongst which that great and pious soule, Mr. Winslow, melted and kindly visited me at Providence and put a piece of gold into the hands of my wife for our support.”

Williams then relates the attempt of Massachusetts to establish a claim upon the land about Providence, and the disallowance thereof by the king, and goes on to declare the main object of the colony: “But here, all over this colonie, a great number of weake and distressed soules scattered are

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flying hither from Old and New England. The Most High and Only Wise hath in His infinite wisdom provided this country and this corner as a shelter for the poor and persecuted according to their several persuasions. And thus that heavenly man, Mr. Hains, Governour of Connecticut, though he pronounced the sentence of my long banishment against me at Cambridge, yet said unto me in his own house at Hartford, being then in some difference with the Bay, ‘I must now confesse to you that the most wise God hath provided and cut out this part of His world for a refuge and receptacle for all kinds of consciences.’”

Nothing could be sharper in contrast than the difference of view between the Puritans of the Bay and the Founder of Rhode Island. “The hostility of the Puritans,” says Doyle,¹ the Church of England was temporary and conditional. That of Williams was rooted in the nature of the institution. (The former) objected not to a secular control over the Church, but to secular control exercised for what the deemed wrong ends. To Williams a State-Church was an abomination, however it might be administered, and whether it abode in Rome, in England, or in Massachusetts.”

Thus to the Puritan of the Bay his own Church, in its purity of doctrine and discipline, represented the supreme function and duty of the state; conformity became a necessary law, and dissent was both criminal and revolutionary. To Williams there were no possible intersections of the Church with the state. The two institutions were as separate and distinct as though their local habitations were divided by the earth’s diameter: while the civil law had nothing to say about religion, save that each individual should be left free to the guidance of his own conscience and the Church, or Churches, should be moulded and controlled by the desires and preferences of those who should voluntarily associate themselves therein.

Williams’s own distinctions were clearly drawn, and as

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noted in our opening chapter — despite some quaintness of expression — cannot be improved in statement. He insisted, far more strenuously than any men of his time, on the essential principle — a principle essential to true religion and true humanity — of the lordship of God alone over the conscience. His opponents declared the principle when striving for their own religious rights, and there stopped. “Yourselves pretend,” wrote Williams,¹ “a liberty of conscience; but alas! it is but selfe, the great god Selfe, only to yourselves.” Williams asserted the principle to be broad and universal, and to define “liberty for all kinds of consciences.”

He thence argued the complete separation of Church from State, both on the ground of pure religion and on that of the radical difference of nature and aim between the two. Thus,² “As it would be confusion for the Church to censure such matters and acts of such persons as belong not to the Church; so it is confusion for the State to punish spiritual offenses, for they are not within the sphear of a civil jurisdiction . . . The Civil State and Magistrate are meerly and essentially civil, and therefore can not reach (without transgressing the bounds of civility) to judge in matters spiritual, which are of another sphear and nature than civility is.” He further defines the quality of any action in Church matters by a magistrate as belonging, not to his civil office, but to his personal Church membership: “So far forth as any of this civil body are spiritual, or act spiritually, they and their actions fall under a spiritual cognizance and judicature.” He then deprecates the serious damage suffered by conscience and religion through the interference of the civil power:

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“Civil and corporal punishments do usually cause men to play the hypocrite and dissemble in their Religion, to turn and return with the tide, as all experience in the nations of the world do testifie now. This binding and rebinding of conscience, contrary or without its own persuasion, so weakens and defiles it, that it (as all other faculties) loseth its strength and the very nature of a common honest conscience. . . . This Tenent of the Magistrates keeping the Church from Apostatizing, by practicing civil force upon the consciences of men, is so far from preserving Religion pure, that it is a mighty Bulwark or Barricade to keep out all true Religion.”

Another suggestive utterance is in his letter to Governor Endicott,¹ after the shameful abuse of Clarke and Holmes at Lynn. He imagines Endicott soliloquizing; “I have fought against many several sorts of consciences: is it beyond all possibility and hazard that I have not fought against God, that I have not persecuted Jesus in some of them?” Then he proceeds, “Sir, I must be humbly hold to say, that ‘tis impossible for any man or men to maintain their Christ with a sword and worship a true Christ! to fight against all consciences opposite to theirs and not to fight against God in some of them, and to hunt after the precious life of the true Lord Jesus Christ.”

Certainly, in Williams’s mind there was thus ground enough for the challenge contained in his letter to Major Mason: “I have offered, and doe by these presents, to discuss by disputation . . . these three positions: 1. that forced worship stincks in God’s nostrils; 2. that it denies Christ Jesus yet to come; 3. that in these flames about religion, there is no other prudent, Christian way of preserving peace in the world but by permission of differing consciences.”

We have no record of any acceptance of this challenge, or of any such public discussion. Had such been possible under the circumstances, we may doubt whether the opponents of

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Williams would have been willing to meet him at so close quarters. He was a born fighter, with a superb dialectical skill and an indomitable courage and tenacity, by no means an easy man to face in debate. His insight of spiritual truth was far deeper than that of any contemporary; he detected on the instant any false premise or conclusion, and was both clear and crushing in reply. One cannot read, for instance, his discussion with Cotton without admiring his cogent straightforwardness, or at the same time wondering whether Cotton was not himself conscious of his own weakness in defence.

Yet Williams was far from being a litigious man. Though much of his life was spent in strife, he was no lover of fighting for its own sake. He was of gentle and placable disposition — a personality loving and lovable. The sweetness of that disposition never was soured by the injustice of his foes; he seldom fell into the mistake, so common to moral reformers, of reckoning personal abuse as a proper weapon in the arena of debate; nor does he seem to have ever harbored a single revengeful thought toward those who were prominent in the proceedings against him. Haines is “that heavenly man” and Winthrop, “that ever honoured Governor.” With the latter, indeed, he sustained a very tender friendship, writing to him in most affectionate terms.¹ Soon after going to Providence he sought advice from Winthrop in regard to organizing the new plantation, and began: “The frequent experience of your loving ear, ready and open towards me (in what your conscience hath permitted), as also of the excellent spirit of wisdom and prudence wherewith the Father of Lights hath endued you, embolden me to request a word of private advice.” Again he wrote: “I still wait upon your love and faithfulness.” In another letter: “You request me to be free with you, and therefore blame me not if I answer your request, desiring the like payment from your own dear hand at any time, in any place.” And once again: “I wish heartily prosperity to you all,

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Governor and people, in your civil way, and mourn that you see not your poverty, nakedness, &c in spirituals.” When he set out to reply to Cotton, whose pen had not failed in caustic qualities, he began: “I desire my Rejoynder may be as full of love as truth.”

Such equanimity and ability to keep sweet the fountains of friendship, even toward those who had been cruelly adverse, are rare among men. It is pleasing also to note that, despite the intense disapproval of his doctrines, this lovable character was not always without effect upon his foes. Of this there is a curious token in Scottow’s Narrative:¹ “This child of Light (Williams) walked in Darkness about Forty years . . . yet did not his Root turn into Rottenness. The Root of the Matter abode in him.”

Within two years after Williams’s settlement at Providence he was joined by various others, who had become dissatisfied with the conditions in the neighboring colonies; and probably by some who came almost directly from England, without staying to try conclusions in the Bay.

Meanwhile another settlement, part of the colony that was soon to be, had been made on the island of Rhode Island, at Aquidneck. Thither had repaired some of the banished followers of Mrs. Hutchinson with other sympathizers, chief among them Coddington and Aspinwall.² They were soon followed by the Hutchinsons, and were prompt to make for themselves institutions of free government. In January, 1638, the settlers adopted the following covenant:³—

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The first act of legislature, passed March 13, 1638, ordered that, “None shall be received as inhabitants or freemen, to build or plant upon the Island, but such as shall be received in by the consent of the body, and do submit to the government that is, or shall be, established according to the word of God.” In 1641 this government was legally defined by the legislature as “a Democracy, or popular government,” and it was ordered that, “none be accounted a delinquent for doctrine, provided that it be not directly repugnant to the government or laws established.” At the next session it was “ordered, that that law of the last Court, made concerning liberty of conscience in point of doctrine, be perpetuated.”

At Providence Williams also was casting about to devise means for the organization of government. He took counsel with Winthrop, and decided that the first thing to be done was to procure a colonial charter. For this he turned to England, intending a personal visit, and wrote to the Massachusetts authorities for permission to embark at Boston, that he might “inoffensively and without molestation pass through your Jurisdiction, as a stranger for a night, to the ship.”¹ The desired permission does not appear to have been given, and Williams sailed for England, 1643, probably from Plymouth. The same year, he obtained from the Earl of Warwick a charter for the “Incorporation of the Providence Plantations in the Narraganset Bay in New England.”² The charter was in 1644 confirmed by the parliament, and with it Williams sailed from England direct to Boston, bringing also an official letter to the general court of Massachusetts.

This letter he relied upon as a protection, and in virtue of the official character it put upon him as a governmental messenger he was suffered to pass unmolested through the colony to Providence. The letter undoubtedly contained some reflections on — if not reproofs for the past treatment of Williams; for,³ “Upon the receipt of the said letter, the

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governor and Magistrates of the Massachusetts found upon the examination of their hearts they saw no reason to condemn themselves for any former proceedings against Mr. Williams: but for any offices of Christian love and duties of humanity they were very willing to maintain a mutual correspondency with him. But as to his dangerous principles of separation, unless he can be brought to lay them down, they see no reason why to concede to him, or any so persuaded, free liberty of ingress or egress, lest any of their people should be drawn away with his erroneous opinions.”

The charter of 1644 was silent on matters of conscience and worship, probably because Williams did not wish to raise the question with the English authorities, and also held that religious liberty was an indefeasible right which no charter could grant. There was no objection, however, to the declaration of that right in a statute. At the first legislative assembly a code of laws was adopted.¹ The preamble defined the form of government as “Democratical, that is to say, A government held by the free and voluntary consent of all, or the greater part, of the free inhabitants“; and then proceeded to declare, as fundamental to that government, the broadest conceivable liberty of conscience and of worship. Its notable words run: “And now to the end that we may give each to other (notwithstanding our different consciences touching the truth as it is in Jesus) as good and hopeful assurance as we are able, touching each man’s peaceable and quiet enjoyment of his lawful right and liberty.” Thereon in the act followed the code of civil law, which concluded with the words: — “And otherwise than this (what is herein forbidden) all men may walk as their consciences persuade them, every one in the name of his God. And let the lambs of the most high walk in this Colony without molestation, in the name of jehovah their God, for ever and ever.”²

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The declaration of so complete freedom was attended in its first years with some disadvantages. Most men of the day could not understand it, unable to make the distinction, which to Williams was clear as the day, between freedom of mind from spiritual tyranny and freedom of conduct from the restraint of civil law. So it fell out that the new plantations, for a little space, became, not only “a refuge for all sorts of consciences,” but a resort for all classes of discontent; a Cave Adullam, to which fled many, who under the cloak of conscience shielded a desire for general lawlessness. The idea of personal liberty was exaggerated into a positive danger to all civil order.

Upon this untoward tendency the enemies of Rhode Island seized with abundant disposition to make the most of it. As already noted, when Rhode Island applied for admission into the New England Confederacy the request was refused, because “Your present state and condition are full of confusion and danger.”¹ We may take it that such charge was readily seized upon by the Massachusetts commissioners, who were supreme in the federal council, to disqualify a colony founded on a principle so opposite to their own. This is the more evident from the further reply, that the island of Rhode Island belonged to Plymouth, and therefore the jurisdiction of that colony must be acknowledged before the applicant could be admitted.

Another indication of this hostile sentiment is contained in a bitter letter from William Arnold, of Pawtucket, to Governor Endicott, 1651.² It was written with the avowed design to inform the governor of what was “doing in the parts about Providence and Rhode Island,” and tells of a movement toward sending Williams to England to obtain a second charter, which should include both settlements. “If they should get them a charter,” he wrote, “off it there

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may come some mischeive and trouble upon the whole country, if their project be not prevented in time; for, under the pretence of liberty of conscience, about these partes there comes to lieve all the scume, the runne-awayes of the country, which in tyme for want of better order may bring a heavy burden on the land. . . . We that live heere neere them . . . humbly desire God their purpose may be frustrated. I humbly desire my name may be conceled, lest they will be enraged against me.”¹

Still another token of this unfriendly regard, founded on the stories of Rhode island disorder, may be quoted for its characteristic expression from the Wonder-Working Providence of Zion’s Saviour.² The passage concludes the account of the Hutchinson episode at Boston, and recounts: “Those sinful erroneous persons, being banished, resorted to a place more Southward . . . where having elbowe-roome enough, none of the Ministers of Christ, nor any other to interrupt their false and deceivable doctrines, they hampered themselves foully with their owne line, and soone shewed the depthlesse ditches that blinde guides lead into. . . . Some of the female sexe . . . from an ardent desire of being famous, especially the grand Mistresse of them all, who ordinarily prated every Sabbath day, till others who thirsted after honor in the same way with herselfe, drew away her Auditors, and then she withdrew herself, her husband and her family also, to a more remote place.”³

Williams’s own reply to the malignant aspersions of his colony, and to those individuals in the colony who presumed

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that license and disorder were justified by his views of religious liberty, is well expressed in a letter to the magistrates and town of Providence. “That ever I should speak or write a tittle that tends to such an infinite liberty of conscience is a mistake.” He then compares the commonwealth to a ship with all sorts of people, Papists, Protestants, Jews, Turks, of whom one should be forced to prayers or worship but if any should be mutinous and refuse duty or help toward the common charges, or “preach that there ought to be no commanders because all are equal in Christ, I say, the commander may judge, resist, compel, and punish such transgressors, according to their deserts and merits.”¹

The movement, alluded to in Arnold’s letter to Endicott, toward obtaining a charter which should merge Providence and Rhode Island in one colony, was the natural outcome from the similar aims and close neighborhood of the two settlements. The desire for this union seems to have found expression, and to have met with general approval, almost immediately on the granting of the Providence charter of 1644. The scheme, however, had some opponents, chief among whom was Coddington, the governor of the island settlement.² In 1650 he went to England to forestall the plans of the union, and succeeded in obtaining an order for the separate government of Rhode Island. With this he returned home, and the people at first submitted, but after a few months disowned him and his government and again united with Williams in efforts for the charter. John Clarke was joined with Williams in an embassy to England, whither the two men went in 1651.

Williams remained in England for three years, having much converse with Cromwell, Milton, and others, and steadily pressing his suit. For some unexplained reason, unless it be the influence of Coddington, he failed in securing the object of his mission, and in 1654 went back to Providence,

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leaving Clarke as agent for their joint interests. “Plead our cause,” he wrote to Clarke in 1658, “in such sort as we may not be compelled to exercise any civil power over men’s consciences.” But Cromwell neither granted nor denied the application, and presently his death made room for the restoration of the kingdom. To Charles, therefore, a new petition was presented in 1662, and to that king, “who never said a foolish thing, and never did a wise one,” save this present action, belongs the honor of granting the broadest charter of human liberties ever issued under a royal seal — a noble exception of wisdom in his deed. The character of it is so averse to all the ordinary principles controlling his government of Great Britain, and the liberties granted by it are so contradictory to his cherished prerogatives, that we can account for his concessions only by one of those inconsistent moods of complacency, to which he gave occasional sway in the earlier years of his reign.

The king seems to have been attracted, not from any love of liberty, but from sheer curiosity, by the novelty of the purpose expressed by the petitioners in that famous sentence, already quoted “It is much in our hearts to hold forth a lively experiment that a most flourishing civil State may stand, and best be maintained, with a full liberty of religious concernments.” It is a strange thing that the royal mind should be affected favorably to so unheard-of proposition, and stranger still that Clarendon should have exerted himself to obtain for the petitioners the full extent of their desire, and more. Others of the king’s ministers opposed the grant, as appears from Williams’s letter to Major Mason.¹ He there justly described the charter as “The King’s extraordinary favor to this Colony, in which his Majesty declared himself that he would experiment, whether civil government could exist with such liberty of conscience.” Thus Charles adopted the petitioners’ experiment as his own. Williams proceeds, “This

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his Majesty’s graunt was startled-at by his Majesty’s high officers of State . . . but, fearing the lyon’s roaring, they (were) couchant against their wills in obedience to his Majesty’s pleasure.”

The charter was issued in 1663.¹ Its section on religious matters reads: “No person within the said colony, at any time hereafter, shall be any wise molested, punished, disqualified, or called in question for any difference of opinion in matters of religion: every person may at all times freely and fully enjoy his own judgment and Conscience in matters of religious concernments.” Beside this the charter bestowed upon the people of Rhode Island a civil liberty greater than that conceded to any other colony. Even the oath of allegiance was not required; and the demand, that the laws passed by the colonial legislature should be “agreeable to the laws of England,” was qualified by a “reference to the constitution of the place and the nature of the people.”²

Thus was constituted, and by a king whose tendencies and desires were all toward despotism, a genuine republic — the first thoroughly free government in the world, where the state was left plastic to the moulding will of the citizen; the conscience at liberty to express itself in any way of doctrine and worship; the Church untrammelled by any prescription or preference of the civil law. In this little colony of Rhode Island was first set up this “ensign for the people,” the model for that sisterhood of states which was yet to possess the continent.

With such a beginning the further history of religious liberty in Rhode Island presents little matter for comment.³ The battle was already won, the colony started at the point which the most of her sisters reached only at the Revolution.

The “Great Charter” was received by the people with joy, and the legislature in its first session (1664) organized the

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government anew, repealing all laws inconsistent with the charter, and in its very words establishing religious liberty. In the next year the legislature renewed its declaration, asserting that, “liberty to all persons as to the worship of God had been a principle maintained in the colony from the very beginning thereof; and it was much in their hearts to preserve the same liberty forever.”

From this principle the people and government of Rhode Island never departed, and no religionist was ever questioned, or subjected to struggle or distress, in respect to faith and worship. The royal commissioners, who visited New England in 1665, reported of Rhode Island: “They allow liberty of conscience to all who live civilly: they admit of all religions.”

In the after history of the colony there appear but two doubtful exceptions to the reign of this perfect freedom, one relating to the Quakers, and the other to Roman Catholics. The alleged action against the Quakers was in a bill of outlawry, 1665, because they would not bear arms. But this bill, it would appear, never became law, the people in general protesting against it and not suffering its enactment.¹ In the same year the royal commissioners attempted to supply a lack in the charter by demanding the oath of allegiance, but the legislature would concede nothing beyond an engagement of fidelity and obedience to the laws, on pain of forfeiture of the franchise; and, when the Quakers complained that the requirement was irksome, the law was repealed.

There appears in the Revised Statutes a law purporting to have been passed “at some time after 1688,” denying citizenship to Roman Catholics.² This law Bancroft argues was never the act of the people, or of the legislature, but that the committee of revisal, preparing the record for printing (the earliest extant copy bearing date of 1744), interpolated this law,

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“for which the occasion grew out of English politics.” The clause, “passed at some time after 1688,” is a footnote in the revision of 1744, and clearly shows that the revisers had before them no official minutes of the act, and were guided by prejudice, or policy, or a memory more or less at fault, or yet, tradition.

Strangely enough, Professor Fiske, in his “Dutch and Quaker Colonies,”¹ founds upon this very doubtful bit of legislation a comparison between Rhode Island and Pennsylvania, with regard to their respective attitudes on the question of religious liberty, which is quite disparaging to the former. He not only assumes that the doubtful law was enacted, but makes the surprising statement that in Pennsylvania “all Christian sects stood socially and politically on an equal footing;” and that what Pennsylvania specially “stood for was liberty of conscience.” This is robbing Peter to pay Paul, with a vengeance. One might well hesitate to make a stain upon the fair fame of Rhode Island out of a record so dubious and so diverse from all else in her history; while, as to Pennsylvania, it will presently be shown that she never stood for full liberty of conscience, and that through her entire colonial history the Jew and the Socinian were disfranchised, while from 1702 to the Revolution the Roman Catholic was made incapable of holding office.

It remains to be said of this doubtful act that, supposing the law to have been passed, it could have wrought no hardship, for there were no Roman Catholics in the colony. When the first professors of that faith came to Rhode Island, in the persons of the officers and men of the French fleet aiding the colonies in the Revolution, the legislature, “to efface any semblance of opprobrium,” at once caused the law to be expunged, as not belonging to the record.

In the earlier day there were plenty of people to circulate stories to the discredit of the colony. The magistrates of Boston thought ill of Williams because, while he did not

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approve the restlessness of Gorton, he refused to join them in action against him. Williams in his letter to Mason refers to tales told to the king, “that we are prophane people and do not keep the Sabbath . . . But you told him not how we suffer freely all other perswasions, yea, the Common-prayer which yourselves will not suffer . . . Generally all this whole colonie observe the first day; only here and there one out of conscience, another out of covetousness.”

It is true that some disorders existed in the earlier years, by reason of which the example of Rhode Island did not exert upon the other colonies the effect that should have attended its illustrious definition and establishment of a perfect liberty.¹ But the actual effects were to be expected. The doctrine was too broad for general comprehension and to many seemed pregnant of destructive license — a conclusion not dispelled by the tendency toward Rhode Island of such persons as found themselves uncomfortable in neighboring colonies.

It may be said also, that for the most of the Rhode Island men themselves the principle was at first too broad. The sense of the individual right inculcated by it went far to weaken the sense of that principle of association which is necessary, with mutual concessions and limitations, to the perpetuity of the institutions of liberty itself. Hence in the colony there was often an altogether unreasonable impatience at the proper restraints of law, and in the Church there was so positive assertion of the individual conscience, that years passed away before the people found a method of voluntary association in which difference of view and unity of action could coexist.²

But all these things marked but the ferment caused by a new and vital spirit. The principle had to be learned by degrees in its practical applications The “lively experiment” had to be put upon its trials, until men should discover

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that liberty and law must go hand in hand; that faith, freedom, and union are needful to the “civil” and spiritual man.

This lesson little Rhode Island was the first of all states in the world to set herself to learn. She learned and gave it as an object lesson to her sisters and the earth at large. Her experiment was a success. As the result of it, when the Revolution came, shattering the established Church in other colonies, and demanding for them new constitutions suitable to changed conditions, Rhode Island passed into the American Union, still under the old charter of King Charles, to keep it as her fundamental law for two generations afterward.

II. Pennsylvania and Delaware

These two colonies may well be considered together. They were originally one until 1702, and afterward showed little difference in their treatment of religious matters. The colony owed its origin to the benevolent, broad-minded, and politic William Penn. As a Quaker, he was devoted to the cause of religious liberty and desired to make for it a secure abiding place. As a statesman, he was well fitted for the task of founding and guiding a commonwealth. Becoming personally interested in American colonization by the purchase of West Jersey in 1674, his ambition expanded to the creation of a distinct and larger colony, of which himself should be the sole proprietor. Though a Quaker of very decided type, he was yet a friend of Charles II. and his brother James, and through this friendship found easy work in obtaining from the king the charter creating the province of Pennsylvania, to which the duke of York added by gift that part of his own American possessions, which had received the name of Delaware.

There can be no doubt that King Charles was aware of Penn’s purpose to establish religious liberty in the colony, or,

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at least, of his desire to retain in his own power the direction of the colonial attitude on matters of religion. Thus the charter, which was given in 1681, makes no attempt to decide anything in regard thereto. There is no clause of Church establishment, and no provision for liberty of conscience. The only allusion to the Church is the stipulation that, “if any of the inhabitants to the number of Twenty signify in writing to the bishop of London their desire for a preacher, such preacher or preachers as may be sent by him shall be allowed to reside and exercise their function in the colony, without any deniall or molestacon whatsoever.”¹

² Penn’s avowed object in his public “Address” was to make a “holy experiment,” to found a commonwealth on the corner-stone of freedom. It was like the “lively experiment” of Roger Williams, except that the Quaker’s vision of freedom was somewhat narrower than that of the great founder of Rhode Island. By a singular infelicity of statement Penn declared to his friends his desire “to establish a precedent in government, and to furnish an example.” That precedent had already been existent for forty years in the colony of Williams, on which Penn’s expression was an unjust reflection, not to be fully explained by the early disorders in Rhode Island by reason of the heterogeneous character of the early settlers. But Penn’s addiction to the cause of liberty was true and life-long. For it he had suffered, and for this colonizing experiment he ventured his all. “We must give the liberty we ask,” he said. “We cannot be false to our principles. We would have none to suffer for dissent on any hand.” “I abhor two principles in religion,” wrote Penn to a friend, “and pity them that own them; the first is obedience to authority without conviction; and the other is destroying them that differ from me for God’s sake. Such a religion is without judgment, though not without teeth.”

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These views Penn endeavored to express in his regulations for the new colony, though not without some regrettable restrictions. On receipt of his charter, he composed in 1682, while still in England, and there published, a “Frame of Government,”¹ whereof the Preface recites: “We have to the best of our skill contrived and composed the frame and laws of this government, to the great end of all government, viz.: to support power in reverence with the people, and to secure the people from abuse of power; that they may be free by their just obedience, and the magistrates honorable for their just administration; for liberty without obedience is confusion, and obedience without liberty is slavery.” Nothing, surely, could be filler or more just than this declaration and definition.

There is something of a departure from its broad principle in the religious sections of the frame of government. These are:² —

“34. That all Treasurers, Judges, Masters of Rolls, Sheriffs, Justices of the Peace, and other officers and persons whatsoever, relating to courts or trials of causes, or any other service in the government; and all Members elected to service in the provincial Council and General Assembly, and all that have right to elect such Members, shall be such as profess faith in Jesus Christ.

35. That all persons living in this province, who confess and acknowledge the one Almighty and Eternal God to be the Creator, Upholder, and Ruler of the world; and that hold themselves obliged in conscience to live peaceably and justly in civil society, shall in no ways be molested or prejudiced for their religious profession or practice in matters of faith and worship; nor shall they be compelled, at any time, to frequent or maintain any religious worship, place, or ministry whatever.”

The first colonial assembly met at Chester in 1682, and

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enacted, “The Great Law or Body of Laws”¹ of which the first chapter was “Of Religion.” Its prescriptions harmony with those of Penn’s composition, just cited, but contain peculiarities and additions of a unique character. The chapter begins: —

“Almighty God, being the only Lord of Conscience, father of Lights and Spirits, and the author as well as object of all divine knowledge, faith, and Worship, who can enlighten the mind and persuade and convince the understanding of people: In due reverence to his Sovereignty over the Souls of Mankind, Be it enacted, That no person, now or at any time hereafter, Living in this Province, who shall confess and acknowledge one Almighty God to be the Creator. Upholder and Ruler of the world; And who shall profess him, or herself, Obliged in Conscience to Live peaceably and quietly under the civil government, shall in any case be molested or prejudiced for his, or her, conscientious persuasion or practice. Nor shall hee or shee at any time be compelled to frequent or maintain anie religious worship, place, or Ministry whatever, contrary to his or her mind; but shall freely and fully enjoy, his or her, Christian liberty in that respect, without any Interruption or reflection. And if any person shall deride or abuse any other for his or her different persuasion or practice in matters of religion, such person shall be lookt upon as a Disturber of the peace and be punished accordingly.

But to the end, That Looseness, irreligion, and Atheism may not Creep in under any pretense of Conscience in this Province, Be it further enacted, That according to the example of the primitive Christians, and for the ease of the Creation, Every first day of the week, called the Lord’s day, People shall abstain from their usual and common toil and labor, That whether Masters, Parents, Children, or servants, they may the better dispose themselves

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to read the Scriptures of truth at home, or frequent such meetings for religious worship as may best sute their respective persuasions.”

Furthermore, the assembly of 1682 defined in Chapter II. the qualifications for office and the franchise, requiring that all civil officers of the Province, all deputies to the assembly, and all electors of deputies, “shall be such as profess and declare that they believe in Jesus Christ to be the Saviour of the world.” The assembly declared these laws to be fundamental; and when they were annulled by William and Mary in 1693, the assembly immediately reënacted them.

From these statutes alone judging, it is evident that the boasted liberty of Pennsylvania was not so broad as has usually been supposed. In the colonies its restrictions were surpassed for narrowness only by Massachusetts, Virginia, and Maryland in the latter half of her colonial government. According to the fundamental law of Pennsylvania, a Jew or any sort of a non-Christian Theist could live in the province, but neither hold office nor vote. For the Atheist or Deist not even a right of residence was conceded by the fundamental law, the expressed desire of winch was to prevent atheism and irreligion from “creeping in.” A notable feature of the law, differing greatly from other colonial prescriptions, was the complete enfranchisement of Roman Catholics. Under this early constitution a Romanist could both vote and hold office. This exceptional favor was due to the sentiment of Penn, who in England in his arguments and influence had grouped the Romanists with the Quakers, as classes from whom civil disabilities should be removed.

This liberty of the Romanist, however, was not long continued. It was too broad for a province depending largely on royal favor, and too much in opposition to the toleration act of England. The restriction of it was not in the first instance imposed by colonial statute, or in any new definition as to the quality of settlers. It came as a natural consequence

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of orders from England prescribing the form of oath to be taken by office-holders. These orders were from the government of William and Mary, and required that the form of oath used in England, under the toleration act should be used also in Pennsylvania.¹ This order was made in 1693 and was repeated in 1701. The government of Queen Anne in 1703 again repeated the order and embraced “judicial and all other offices.”² The oath was designed in England as a test, discriminating against Romanists, Jews, and Unitarians. It expressly abjured the Roman doctrines of transubstantiation, the adoration of Mary or other saints, and the sacrifice of the mass; and expressly acknowledged the Triune Godhead of Father, Son, and Holy Spirit, and the divine inspiration of the Scriptures.

Of course, the oath excluded from office every Roman Catholic, Socinian, and Jew, but it does not appear to have been a condition for the right of suffrage. The order imposing it was not grateful to the colonial legislature, or to the proprietor. Much consultation was given to it, but the situation of affairs seemed to require submission. Penn was in England at the time and in hiding. His relations to James II. exposed him to the suspicion of William, while his recent actions in regard to the imprisoned Quakers had brought upon him the maledictions of the people. In order to set them free, there was appeal made to the famous “Declaration of Indulgence” issued by James in 1687, a declaration execrated by every English Protestant as an entering wedge for the introduction of Romanism. According to the general Protestant view it was better to suffer persecution than to accept liberty through such an instrument.³ Penn and his liberated brethren became marks for passionate denunciation. “Papist,” “Jesuit in disguise,” were among the milder terms flung at Penn’s devoted head; and not long after the accession

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of William he was thrown into prison for several months. The action against him went to the extreme of a trial for treason, which resulted in acquittal and discharge from prison. But for some months afterward he found it wise to retire from public observation. While thus in retirement his enemies prevailed on the government to set aside the charter of Pennsylvania and to join its government to that of New York. Instructions to that end were issued to Fletcher, the governor of the latter province, under date of 1693, and carried the order imposing the test oath.

Immediately on Fletcher’s assumption of the government, the general assembly addressed to him a petition, reciting the provincial laws already in force and desiring his ratification thereof. Among them were the religious provisions just quoted. The governor’s reply was a proclamation requiring all “officers of the province . . . to put in execution the above said laws, until their majesties’ pleasure shall be more fully known.”¹ This ratification did not do away with the test, which was still required, though inconsistent with the “Laws.”

But this union of Pennsylvania and New York was very brief. Penn in some way found means of propitiating William, who in 1694 restored to him the charter and government of the province; and the reinstated proprietor sent out as governor his cousin, William Markham. But Penn could not venture at once on setting aside the test, and accordingly the first assembly (1696) under Markham, in reëstablishing the proprietary government, passed “A New Act of Settlement,” which required the religious tests of the toleration act to be administered to all office-holders.

The situation of Penn was difficult, and it is clear that his assent to such legislation was under a compulsion of circumstances, at the time irresistible. As Stillé says, “The more we study his life and career, the grander and more heroic his character becomes.” He had not, indeed, that

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broad catholicity of view which made Roger Williams the most unique figure in colonial history, but he was far removed from that narrowness which made the boasted toleration of England an instrument of oppression. Evidently he considered the concession of 1696 as only a temporary sop to Cerberus, for on his own return to the colony in 1699 he set himself to put away the hated restriction. This effort he introduced by a series of laws, making a fourth and final “frame of government,” among which were two bearing on the question of religion. The one was an “Act concerning Liberty of Conscience”; and the other an “Act in regard to Attests of certain officers.” These were brought in and passed by the legislature in 1700, and their effort was to restore the definitions of the fundamental law of 1682.

The news of this action was ill-received in England, where the queen in council in 1702 annulled it and sent to Pennsylvania peremptory orders, that the religious tests of the toleration act should be restored, and furthermore that every person then in office should subscribe the test on penalty of losing his place. To this order the colonial officers at first demurred, but afterward yielded, to Penn’s great indignation.

In an evil hour and with wrong judgment Penn, on the threat of adverse action in London, had taken himself thither in hopes of conciliating the government and so forestalling the order. But this he was unable to do, and was absent from his province at the very moment when his presence was the most needed, in the acute crisis of the cause which he had most at heart. Had he been on the ground he might have braced up the spirits of his colonists to resist the royal demand. As it was, the cause of religious liberty was then lost in Pennsylvania, never in colonial times to reassert itself. In 1703 the entire assembly followed the example of the officers and subscribed the test, and in 1705 passed an act legalizing by colonial legislation all the religious tests

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demanded by the queen’s orders! This act remained in force until 1776. Thus the Quakers went back on their record as champions for human freedom, and established for their chosen colony the principle, which elsewhere they had resisted, that the full enjoyment of civil rights should be confined to professors of a specified religious creed.

At the same time with this submission the legislature took special action in relation to affirmation by the Quakers. The new oath seemed to demand a reassertion of their privileges. This act for the relief of Quakers was set aside in 1705 by the queen in council, “not with design to deprive Quakers of that privilege, but solely on account of its making the punishment for false affirming greater than the law of England required for false swearing.”¹

The Quaker attitude toward oaths was a constant annoyance to English authorities, some of whom thought that it portended ruin to the social fabric. This is illustrated in a letter from Lord Cornbury to the board of trade in 1703 “I have some letters from Philadelphia, which inform me that they have lately held Courts of Judicature there, in which they have condemned people to death by Judges that are Quakers, and neither Judges nor Jury under any oath. These proceedings have very much startled the Gentlemen of the Church of England in Pennsylvania.”² Not until 1725 could a law covering the matter be made satisfactory to both the Quakers and the king. In 1743 religious societies, other than Quakers, were admitted to the benefit of the

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act; and in 1772 its relief was extended to “any persons” having scruples against oaths.¹

The test oath was also administered to persons seeking to be naturalized in the colony, and the use of it was frequently spoken of as “taking the test.” Thus it appears both in the records and in the certificates given to the persons making oath. Once the phrase occurs in relation to two members admitted to the assembly, who made “profession of the Christian belief and took the test,”² Similar notes appear about persons naturalized, as “having taken the oath appointed by act of parliament and subscribed the test”; “having subscribed the Declaration” (against Roman doctrines); “having taken the sacrament of the Lord’s Supper within three months.”³ This last was so late as 1765.⁴

So far, then, as terms are concerned, Pennsylvania was much less liberal than most of the colonies, and is not to be classed with Rhode Island on her broad platform of full religious liberty. The one point of close resemblance is in the absence of a religious establishment. Pennsylvania never made any attempts toward establishing a Church. This fact makes the rigid insistence on religious tests one of the strangest things in colonial history, for in all other cases of such insistence the oath has been in the interest of some State-Church. With the Quakers of Pennsylvania its demand was in the interests simply of Protestantism. Protestantism was established, in a sense. There at least, if not

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elsewhere, the Quakers shared the general view of Protestant Christendom, that only Christians of the Protestant persuasion were fit for public office or citizenship.

One noticeable attendant upon this legal supremacy of Protestantism was, so far as the records and archives show, an entire absence of outspoken opposition to its principle. Objection seems to have contented itself with the first official demur of 1705, after which the people rested in quiet content that Romanist, Jew, and Socinian should be denied all civil rights, until the Revolution came and exhibited the meanness of that rule. But even then Pennsylvania could not shake herself loose from all restrictive measures. Nor yet in this year of grace 1902 has she fully done it.

All through the seventy years of proscription no public remonstrances were heard. None seem to have been excited by an invidious law of 1730 for the “Protection of Church Property,” which restricted its benefits to Protestant Churches.

It needs, however, to be noted that Pennsylvania never proceeded against persons. There were no instances of persecution, or of personal hardships for religion’s sake, unless exclusion from office can be so termed. Men were not hindered the free exercise of what religion they preferred. Stillé quotes from Hildreth the statement, that the Roman Church of Saint Joseph in Philadelphia was the only place in the thirteen colonies where the mass was allowed to be publicly celebrated prior to the Revolution. In theory, indeed, Pennsylvania, after 1700, lagged behind even the once theocratic Massachusetts, but in her treatment of persons we find no harshness. During the Seven Years’ War with the French and Indians the assembly passed a law for disarming Roman Catholics, but the motive of the act was not religious oppression, but a fear lest the religious sympathy of the Romanists might cause them to aid the French. The fear was the result of an unjust suspicion, and the law, due to a moment of panic, was never put in force.

Of all the religious legislation in the colonies nothing was

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more absurd than that against Roman Catholics. One would suppose that the Roman Church was a constant and threatening foe to colonial institutions. The fact was far otherwise. With the opening of the Revolution, it is estimated that there were not more than thirteen hundred Romanists between Canada and Florida. And this is not to be understood as the effect of “anti-papist” laws. For some other reason, not clearly discernible, the people of that faith were not drawn toward America. The opening of Maryland, as a refuge for them from the proscriptions of England, did not attract many. At the beginning of that colony, the majority of settlers were Protestants, and in the following years the disproportion increased steadily, so that by 1700 the Romanists were less than one-sixth of the inhabitants. With all circumstances to attract, and with the sure prospect of possessing the controlling power, the Roman Catholics declined to come in any larger numbers to their own colony. In the face of such a fact, and in face of the still more remarkable fact that, during the half century in which the Romanists governed Maryland, they were not guilty of a single act of religious oppression, the legislation against them was specially unwarranted and base. In the Maryland of the eighteenth century it was the voice, of a monstrous ingratitude. In the other colonies it was so needless as to be ridiculous.

Of course, we recognize it as but a reflection from the baleful fires that burned so long in England; and much of the blame for it must be laid at the door of the English government, insisting without reason that the distinctions, which meant so much in English law and society, should be perpetuated in America, where they could not properly apply. This was specially the case in Pennsylvania. The Quakers would never have moved such restrictive measures, if left to themselves ; and it is their peculiar disgrace that, unlike themselves, they quailed before the voice of regal authority demanding an action which all their professed principles detested. In so judging, however, it needs always to be

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remembered that this invidious legislation was never followed by oppression of persons for their religion, and that, while Romanists were excluded from civil rights, yet in the private and public exercise of their faith they were possessed in Pennsylvania of larger liberty than in any other colony. In this regard they were perfectly free. No law “excepted Papists” from the category of intending inhabitants, or made the colony dangerous ground for “Popish Priest” or Jesuit. Coming to Pennsylvania, they were unmolested, and seemed content to rest under the civil ban, so long as their religious worship was not forbidden or hindered.

With regard to DELAWARE after its separation from Pennsylvania, it only remains to note that its records show much less concern about religious affairs than those of the parent colony. The law of 1700 in regard to naturalization made necessary only a “solemn engagement to be true and faithful to the King and the Proprietary,” without any reference to religion. This was passed two years before the separation, but seems to have remained in force in Delaware; for the “Laws of Delaware” contain no statute similar to the Pennsylvania act, which subjected would-be citizens to the toleration test. Strangely enough, by a law of 1704 the Delaware legislature required that test to be taken by “attorneys and solicitors,” in addition to the ordinary oath touching their duties as members of court, but required it from such officers only. This was, doubtless, modified by the act of 1719, which required that “Justices, judges, inquests, and witnesses (should) qualify themselves according to their conscientious persuasions respectively.”¹

It would appear that the pressure from England on the legislation of Delaware was much less than upon that of Pennsylvania, for the laws contain but one instance of discrimination against Romanists. This was an act — 17 George II. — empowering Protestant Churches and societies to receive and hold real estate.² The original requirements of the

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fundamental law, confining the franchise and office to persons who believed “that Jesus Christ, the Son of God, is the Saviour of the world,” was still in force in Delaware after the setting up of its own colonial government; but beyond this Delaware did not much concern itself with inquiring into men’s religious opinions, and I find no instance of molestation for conscience’ sake.