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IX

THE PERIOD OF THE REVOLUTION

With the dawn of the Revolution all the colonies were substantially ready for the adoption of measures, which should make the severance of Church from State complete. Though each had gone through an experience peculiar to itself, in some instances presenting marked contrasts to the others, all were practically together in the general desire for a religious liberty entirely untrammelled by the civil law, in which the terms conformity and dissent would become forever inapplicable.

Some of the individual contrasts and peculiarities may well be recalled in brief review. To Rhode Island belongs the singular honor of completing the colonial era as it began. Starting with the definition of the largest liberty possible within the limits of social order, Rhode Island never receded from its fundamental principle and never admitted into statute or practice any spirit of repression. Its “lively experiment” found its way to a perfect success, fulfilling its early promise without the slightest deviation from the principle of its great founder.

In this respect the history of Pennsylvania, as already seen, stands in sharp contrast. We have already noted that the common understanding, that the colony of Penn was the chosen home of religious liberty, is very far from the truth. This it never was with its fundamental law limiting inhabitancy to believers in Almighty God, and confining both the franchise and office to believers in “Jesus Christ as the Saviour of the world”; and under pressure from England, excluding Romanists and disbelievers in the doctrine of the

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Trinity. Thus this colony entered the revolutionary period with a restrictive legislation unsurpassed by that of any other. No act of persecution, indeed, stains the records of Pennsylvania; nor can we suppose that, beyond this deprivation of civil rights, there was ever any danger that any person could be disturbed for reasons of religion. This fact in itself makes it still more remarkable that, so far as terms of law made definitions, there was less liberty in Pennsylvania than in theocratic Massachusetts and conforming Virginia. After 1665, Massachusetts made no so sharp inquiry into personal religious belief as a condition for the franchise; while Virginia, though prohibiting non-conformist worship until compelled to tolerate, yet never bound the franchise to individual faith.

In Massachusetts the beautiful dream of a state which should be as a City of God — an ideal so ardently loved and tenaciously held by the early Puritans — had vanished out of mind, more than one hundred years before the struggle for independence. While the form of the Church establishment remained, and the civil law made provision for its support, all bars to dissenting worship were down, and all dissenters could direct their rates to the Church of their choice.

Virginia had conceded a less degree of liberty. The principle of establishment, less from religious reasons than from considerations of state policy, retained to the end a strong grasp on the official mind. Each dissenting persuasion had been forced to conquer liberty for itself. The exception in favor of the Presbyterians did not make the way open for the Baptists, who were beaten and imprisoned at the very time when the continental congress was about to assemble. The fate of the Methodists was much more auspicious because of their affiliation with the English Church. Together with these conditions, the state of the general public mind was in strong contrast. Three-fourths of the people were outside of the established Church. But that Church numbered among its adherents the majority of the aristocratic portion of the

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people, of whom, however, many of the leading minds disapproved the principle upon which the Church was based. They were also disgusted by the immoral character of many of the clergy. They had not forgotten the “Parsons’ Cause,” which arrayed the clergy against the people, and they deeply resented the attitude of the clergy on the questions at issue between the colonies and parliament.

In regard to this latter feature the clerical statistics are very significant. At the opening of the struggle there were in Virginia ninety-five parishes and ninety-one ministers of the established Church. At the end of the war twenty-three parishes had become extinct, and thirty-four were vacant; while only twenty-eight of the clergy remained in the colony.¹ At least two-thirds of the clergy adhered to the king and found themselves out of place in patriotic Virginia.

Still another element entered into the question in this colony. By a curious anomaly, a large portion of the Presbyterians, while dissenting from the established order and worship, yet approved and desired a civil law which should provide for the maintenance of religion. This desire was formally presented in the legislature and entered strongly into the general discussion.

Thus various circumstances gave peculiar interest to the final settlement in Virginia. Indeed, the chief interest in all the union centred there; there the issue was at this time more sharply drawn than elsewhere, and the answer was more clearly and positively pronounced. In the other colonies the end of establishments came as a natural consequent upon national independence, and without much discussion. To this statement, however, there were two exceptions, found in the retention of Church rates in Massachusetts and Connecticut until long after the opening of the nineteenth century.

Meanwhile, another and most powerful influence on the whole question of Church and State had been making itself

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felt. This was the influence of Jonathan Edwards, who, more than any other man, settled the principle which fully justified to the American mind the complete severance of the state from ecclesiastical functions or concern. Of his influence there were two marked peculiarities; the first of which was, that he introduced into the question an element entirely new to the discussion. Until Edwards’s day that discussion had known but two parties: the state, asserting control over religious life; and the mind, asserting liberty of thought. Between the two the Church was in constant danger of losing either its freedom or its purity. Edwards lifted up the dignity of the Church itself, the eternal City of God, divinely founded and nourished by divine grace. Over it no human authority could hold sway. Into it no man could enter save as the grace of God opened for him the door. Thus, the Church was greater than the state, and in an entirely different sphere. It was not of this world and could not be subject to the kingdoms of this world. It was the holy household of the saints, where faith, love, and a spiritual mind, drawing their reason and life from the word of God and nurtured by the Holy Spirit, must characterize all its members. With such a constitution human policy and laws can have nothing to do, and a Church under the direction of the state becomes absurd and impossible.

The other peculiarity of Edwards’s influence was in the fact that it was exerted indirectly. In this respect he occupies a singular position among reformers. Other men, who have wrought great changes in human affairs, — such as Luther, Knox, Howard, Wilberforce, — give us no reason for doubt that the things they accomplished were those they had in view. Edwards, far beyond all men of his time, smote the staggering blow which made ecclesiastical establislunents impossible in America,¹ but we have no proof that he meant to do anything of the kind. In all his printed works there is not a single direct attempt to discuss the question of Church

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and State, and but one treatise, on the “Qualifications of Church-Members,” which makes room for the subject even as a side issue. It is one of the many evidences of Edwards’s profound influence on the minds of men — more profound than that of any other man since Luther — that by the enunciation of a religious doctrine, purely for the sake of religion, he should have revolutionized the minds of his countrymen as to the propriety of a civil institution of the Church.

Edwards was neither a professed statesman nor an agitator in public affairs. He was distinctly a theologian and preacher. Born in 1703, he early gave proof of marvellous intellectual powers, delighting to exercise themselves in the two fields of nature and revelation. Of most acute analytical mind and far reasoning powers, had he given his life to science, he would have rivalled the fame of Bacon or Cuvier. As it was, turning to theology, be made a place for his name along with these of Augustine and Calvin.

Nor was ho a theorist alone. Having a religious consciousness that seems fitly described by the old record of Enoch, who “walked with God,” his saintliness of character exerted an influence no less powerful and lasting than that of his intellectual power. Indeed, it may be said that his greatest influence on men was by reason of this marvellous religious personality. His entire being was permeated by the thought of God and His constant presence, while in pure holiness was his supreme delight. He had a genius for spirituality, which elevated and controlled all his thought, and made his life radiant of goodness. Though theological systems change under the influx of purer and larger light, so that the theological world has laid aside some of the doctrines on which Edwards strenuously insisted, yet this colossal personality endures, a constant object of reverence, and “the man himself grows greater and greater.”¹

When Edwards came to his charge in Northampton there faced him the special work made needful by the low religious

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condition of the time. The Half-Way Covenant had wrought its inevitable degradation of the Church. A wretched compromise between political expediency and religion, it had introduced into the Church a large number of people, who, though of outward morality, were utter strangers to vital piety. Against the evils of this condition Edwards struggled with all the energy of his mind and spirit.

Unlike the majority of preachers in his time and our own, he did not make direct attack upon the obnoxious covenant, as such, nor fulminate against special and individual sins. He went deeper and, after the manner of the gospel itself, exposed the principles of righteousness; sure, when received, to bring in their train correction of moral and religious ills. There were two chords continually struck by him: the sovereignty of the infinitely holy God, who could not look upon sin without abhorrence; and the exceeding sinfulness of man, who was helpless without divine grace. Man was entirely dependent upon God, and God’s grace alone could bring a soul into spiritual life and to the privileges of the Church, into which he could rightly come only through the avenue of sincere repentance and regeneration by the Spirit of God.

While Edwards remained silent on the relation of the civil law to the Church, his trumpet gave no uncertain sound as to the divine charter of the Church and the absolute necessity for its purity. “Christ and His Church,” he said, “like bridegroom and bride, rejoice in each other as having a special propriety in each other. All things are Christ’s but He has a special propriety in His Church. There is nothing in heaven or earth among all the creations, that is his in that excellent manner that the Church is His, . . . His portion and inheritance.”¹ As to membership in the Church, he plainly taught that it should be based only on gracious characteristics.² “It is not only . . . moral sincerity, which is the Scripture qualification of admission

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into the Christian Church, but . . . regeneration and renovation of heart.” “None ought to be admitted to the privileges of adult persons in the Church of Christ, but such as make a profession of real piety.”

His sentiment as to the custom which had come in vogue under the Half-Way Covenant was strongly adverse, describing it as injuring the Church, a “mere form and ceremony, as subscribing religious articles seems to have done in England; and, as it is to be feared, owning the covenant, as it is called, has too much done in New England; it being a prevailing custom for persons to neglect this until they come to be married, and then to do it for their credit’s sake and that their children may be baptized.”¹ “The effect of this method of proceeding in the Churches of New England, which have fallen into it, is this — some are received, under the notion of their being visible saints or professing saints, who yet at the same time are open professors of heinous wickedness; I mean the wickedness of living in known impenitence and unbelief . . . They do not profess to be as yet born again, but look on themselves as really unconverted, as having never unfeignedly accepted of Christ. . . . And accordingly it is known all over the town where they live, that they make no pretensions to any sanctifying grace already obtained; nor of consequence are they looked upon as other than unconverted persons. Now, can this be judged the comely order of the gospel? Or shall God be supposed the author of such confusion?”²

Once more:³ “The Church is represented in Scripture as the household of God. They are in a peculiar manner intrusted with the care of his name and honor in the world, the interests of His kingdom, the care of his jewels and most precious things and would not common sense teach an earthly prince not to admit into his household such as he had no reason to look upon as friends and loyal subjects in their hearts?”

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With such principles, the dominant factor in the question of Church and State is neither civil polity nor individual liberty, but that which is higher than both, the Church of the living God, the Ark of the everlasting covenant which no man must touch with unhallowed hands. Into this Church none can enter save those whom God’s grace shall “call.” Over such a divinely constituted thing it becomes forever impossible that human governors and legislators shall attempt control. It is forever the imperial City of God, where grace alone shall reign and God’s word is the only law.

It does not appear that Edwards himself by any direct argument applied these consequents to existing religious establishments. Occupied with zeal for the religious elevation of his people, his intent was to so preach that souls should be converted and the Church made pure. He welcomed the “Great Awakening” as fulfilling the chief desire of his heart. But at the same time he put into the hand of his countrymen the key, which was to solve their greatest, and the age-long, problem. There was, indeed, widespread revolt against the old theory of Augustine, but not until Edwards spoke were men able to demonstrate its falsity. Augustine, Hooker, Williams, and Edwards — all spoke controlling words: Augustine, for a Church mistakenly longing for the buttress of human law; Hooker, for a comprehensiveness that reduced religion to nationality; Williams, for the inalienable rights of the human conscience; and Edwards, best of all, for God’s sole prerogative in the Kingdom of Grace and, in the Church, “which He had purchased with His own blood.” It is only in the understanding that the principles of Edwards had profoundly affected the minds of his generation, that we can account for the ready and almost universal acceptance of the measures for disestablishment in America.

Of the events attending those measures it is first in place to note a congressional action, which illustrated the progress of liberty. This was the effort made by the colonial congress

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in 1774 to enlist the province of Quebec in resistance to England. The immense majority of the people of that province were Roman Catholics, but it was greatly desired that they should make common cause with the revolting colonies. To this end the congress adopted a “masterly address, drawn by Dickinson,” inviting their adhesion to the colonial cause, and in which “all old religious jealousies were condemned as low-minded infirmities.”¹ This was the sole national reference to the subject of religion, until the Convention of 1787 embedded in the Federal Constitution the principle of full religious liberty.

In Virginia, the whole question of establishment and liberty was forced on the immediate attention of the new state by the actual presence of that religious persecution noted in our sketch of that colony. In the counties of Orange, Spotsylvania, and Culpepper Baptist preachers were beaten and imprisoned. On January 27, 1774, Madison wrote to Bradford:² “That diabolical, hell-conceived principle of persecution rages among some. . . . There are at this time in the adjacent county not less than five or six well-meaning men in close jail, for publishing their religious sentiments, which in the main are very orthodox. . . . I have squabbled and scolded, abused and ridiculed so long about it, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.” This well illustrates the spirit of the man, to whom, even more than to Jefferson, Virginia was indebted for her clear definition of religious rights.

The state convention met in 1776, and received many petitions from various parts of the state, expressing in different phrases the widespread desire for relief from all burdens on conscience and worship.³ They asked “protection in the full exercise of their modes of worship,” exemption from “payment

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of all taxes for any Church whatever,” the disestablishment of the Church of England, and the removal of all restraints on the “right of private judgment.” The presbytery of Hanover presented an elaborate memorial, demanding the repeal of all laws of establishment or religious preference; that all sects should be equally protected, and that the maintenance of the Churches should be left to voluntary contributions. “We conceive,” said the memorial, “that when our blessed Saviour declares His kingdom not of this world, He renounces all dependence on state power. . . . We are persuaded that, if mankind were left in quiet possession of their unalienable rights and privileges, Christianity, as in the days of the apostles, would continue to prevail and flourish in the greatest purity by its own native excellence and under the all-disposing providence of God.”¹ In these petitions all varieties of religious persuasion were represented, with the exception of the Church of England and Methodists. The latter had not as yet separated from the Church, and joined the Episcopalians in petitioning against all measures of disestablishment.

The convention, formally severing political relations to England, set about the organization of a state government, and adopted the famous Bill of Rights.² The bill was drawn by George Mason, but the sixteenth section, referring to religion, was proposed by Patrick Henry. The draft of the section presented by Henry read: “That Religion, or the duty that we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence; and, therefore (that all men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless under color of religion any man disturb the peace, the happiness, or safety of society; and), that it is

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the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

To that portion of the section here put in brackets Madison objected, on the ground that there was a “dangerous implication” the word toleration, as well as in the clause referring to the magistrate. “Toleration belonged to a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace; while the interposition of the magistrate might annul the grant.” The argument of Madison effected the striking out of this obnoxious portion and substituting for it the sentence, “all men are equally entitled to the full and free exercise of religion, according to the dictates of conscience.” He also secured the addition of a restraining clause: “No man, or class of men, ought on account of religion to be invested, with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty and the existence of the State are manifestly endangered.” Thus the definition of the Virginia Bill of Rights took its final shape, expressing the best conception of religious liberty that had as yet found utterance outside of Rhode Island. Rives justly says: “The amendment by Madison itself forms an era in the history of American liberty. In discarding a term hitherto consecrated in some degree as a symbol of liberty, but intrinsically fallacious, it erected a new and loftier platform for the fabric of religious freedom.”

This was the beginning of disestablishment, and laid down the broad principle according to which, one after another, the various perquisites of the Church of England in Virginia were in the following years taken away by law, until the work was completed in the “Declaratory Act” of 1785. The legislature of 1776, meeting soon after the convention, proceeded at once to give partial effect to the action of the latter in a law exempting dissenters from the support of the Church established by law.¹ Another act suspended the laws which fixed

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the salary of the clergy, but did not disturb the Church in the possession of the glebes. This act of suspension was repeated at each successive session until 1779.¹ These acts and many petitions for and against the establishment gave rise to long and impassioned debate. Edmund Pendleton, the speaker, was a strenuous advocate for establishment, and was ably seconded by Robert Carter Nicholas. Jefferson was their great opponent and carried the assembly with him.² Jefferson in his Autobiography describes the debates as “the severest struggles in which I have ever been engaged. . . . Although the majority of our citizens are dissenters, a majority of the legislature were Churchmen. Among them, however, were some reasonable and liberal men, who enabled us on some points to obtain feeble majorities. . . . In the bill now passed was inserted an express reservation of the question, Whether a general assessment should not be established by law on every one to the support of the pastor of his choice.” This was disputed “from session to session until 1779, when the question against a general assessment was finally carried, and the establishment of the Anglican Church entirely put down.”³ The agency of Jefferson in the movement toward disestablishment was that of a leader. His description of the previous condition of “religious slavery,” which had obtained in Virginia, is almost impassioned, and abounds in sentences which have become proverbial.⁴ “It is error alone that needs the support of government. Truth can stand by itself.” “Government has nothing to do with opinion.” “Comprehension makes hypocrites, not converts.” “Why subject it (religion) to coercion? To produce uniformity. But is uniformity of opinion desirable? No more than of face and of stature. Difference of opinion is an advantage in religion; the several sects perform the office of a Censor Morum over each other.”

The work was not completed by the legislature of 1776.

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The Church of England was still spoken of as established. Some of its perquisites remained. The clergy of that Church alone could marry without a special license; while the vestry still remained in possession of civil functions. Down to 1781 legislation was concerned with vestries, and with dividing and uniting parishes. Instances of such action are found scattered through the ninth volume of Hening. Two other actions are worth noting.¹ One was the exclusion by the constitution of 1776 of all ministers from membership in the legislature or privy council. The other was a law allowing members of “some religious societies, particularly Methodists and Baptists, to serve (in the army) under officers of like faith.”

In 1779, the question of ministers’ salaries was met by an act repealing all acts providing salaries, save as affecting arrearages.² An act of 1780 created the office of overseer of the poor, to succeed to the powers and duties of vestries touching the poor, as under former laws.³ In the same year dissenting ministers, Quakers, and Mennonites were empowered to celebrate marriages, without license or publication of banns.⁴

The immediate effect of disestablishment was disastrous to the Episcopal Church. Most of its clergy were deprived of support, and, as many of them were loyal to the king and continued to pray for the royal family, they were subjected to much trouble and danger.⁵ The more thoughtful of the Church, and those who sympathized with the colonial cause, sought to retrieve its fortunes by obtaining incorporation by the state. This they secured in an act of 1784 for Incorporating the Protestant Episcopal Church.”⁶ The act contained a curious proviso that if the revenue of any Church exceeded £800, the fact was to be reported to the general assembly. But the act was short-lived. The proviso savored of civil interference with the Church, and gave to the Episcopal

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Church a legislative preference. On this account the act was almost immediately repealed, and made place for another act which annulled all laws favoring the Church of England, dissolved all vestries as related to the state, and left to the Church itself the entire regulation of its own affairs.¹ This was final and complete disestablishment, and from the passage of the act the State-Church of Virginia ceased to exist.

At the same time of the passage of this act, the legislature was urged to provide “for the support of some sort of worship.”² Many petitions were presented praying for a general assessment for the support of religious teachers, and many opposing the prayer and asking “that no steps be taken in aid of religion, but that it be left to its own superior and successful influence.” The committee to which the petitions were referred brought in a “Bill for establishing a provision for teachers of the Christian religion.” Their report emphasized two principles: 1st, That the state ought to give support to the general diffusion of Christianity; and 2d, That the state ought not to give any preeminence among differing sects. With these in view, the bill provided for a general assessment by civil authority, and allowed each ratepayer to indicate the Church which should receive the amount of his tax. In this latter respect the proposed law resembled the enactments in New England for the relief of those not of the “established order.” The bill was approved by Washington, Henry, R. H. Lee, and Marshall, and strongly opposed by Madison and Jefferson. “Chiefly through the influence of Patrick Henry” (Hawks) it passed to the second reading, when final action was postponed, that the popular mind might be discovered. For this purpose it was ordered that the bill be printed for general distribution, and the people be desired to send up to the next legislature the expression of their opinions.

The effect of this appeal to the people was a flood of petitions,

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both for and against the bill, presented to the legislature of 1785. In their petitions the advocates for the bill dwelt upon the “decay of public morals,” and with regard to it the Episcopal and Presbyterian clergy found their first point of union. Of course the former were expected to favor the bill, but the support of the latter was a surprise. Madison so regarded the address from the “united clergy of the Presbyterian Church — that a general assessment ought to be extended to those who profess the public worship of the Deity.” Madison wrote to Monroe: “The Episcopal people are generally for it, though I think the zeal of some of them has cooled. The laity of the other sects are generally unanimous on the other side. So are all the clergy except the Presbyterians, who seem as ready to set up an establishment which is to take them in as they were to pull down that which shut them out. I do not know a more shameful contrast than might be found in their memorials on the latter and former occasions.” This critic of Presbyterian inconsistency took pleasure in one memorial “from certain inhabitants of the county of Rockbridge (apparently Presbyterian laymen) deprecating the interference of the legislature in aid of religion as unequal, impolitic, and beyond their power.” In another place he wrote, “In the present form it (the bill) excludes all but Christian sects. The Presbyterian clergy have remonstrated against any narrow principles, but indirectly favor a more comprehensive establishment.”

The effect of the measure, if it had passed into law, would have been to establish Christianity as the religion of the state, making all Christian Churches stipendiaries on legislative support, and thus, by reason of the public tax involved, oppressing all non-Christians, whether Jews or infidels. This suited neither Madison nor Jefferson, who desired the civil law to entirely refrain from all discriminations, and to accord an equal liberty to all varieties of religious belief and unbelief.

In the midst of the discussion Madison, at the instance of

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Mason and others and for a direct appeal to the people, drew up his famous “Memorial and Remonstrance,” in which he argued, on the basis of the Bill of Rights, that religion did not come within the cognizance of government, for either the support of worship or inquiry into individual faith. This remonstrance, being circulated among the people for signature, was returned to the legislature with so overwhelming demonstration of popular opinion that the pending bill was at once abandoned without further struggle.

On this the champions of liberty, not satisfied with a merely negative victory, proceeded to secure such action as would render impossible all future attempts at civil interference with religion. Immediately on the failure of the bill for support of religious teachers, there was brought up the “Declaratory Act,” which was drawn up by Jefferson and ably advocated by Madison. The act deservedly ranks among the great charters of human liberty.¹ It was made law in October, 1785, and is entitled “An Act Establishing Religious Freedom.” Jefferson says, “I prepared the act in 1777, but it was not reported to the assembly till 1779, and not passed until 1785, and then by the efforts of Mr. Madison.”² It thus appears that this great measure lay on the table of the assembly throughout the vexing debates of the past six years, waiting until the discussions should prepare the legislature for the adoption of its broad principles.

When it came up for final action, according to Jefferson,³ it “still met with opposition, but with some mutilations in the preamble it was finally passed.” This preamble dwelt on the injustice and immorality of all interference by the magistrate with the religion of the individual, and of all civil regulation of ecclesiastical affairs, as contrary to the spirit of Christianity and its Author. Jefferson records: “A singular proposition proved that its protection was meant to be universal. Where the preamble declares that coercion is a

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departure from the plan of the holy author of our religion, an amendment was proposed by inserting the words, ‘Jesus Christ,’ so that it should read, ‘The plan of Jesus Christ, the holy author, &c.’ The insertion was rejected by a great majority, in proof that they meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindu and Infidel of every denomination.”¹

After the exhibition of principles in the preamble the act proceeds: —

“Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatever; nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

A curious attendant upon this act arose from the consciousness that it was legislative, and not a part of the fundamental constitution. To meet this condition, and the possibility of a future repeal, the assembly adopted another section, which was rather a declaration of opinion than an enactment of law. After disclaiming, in view of the equal powers of future assemblies, that the act was passed as irrevocable, the section asserts: “yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that, if any act shall hereafter be passed to repeal the

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present or to narrow its operation, such act will be an infringement of natural right.”

So Virginia settled for herself the principle of religious freedom on the broadest possible basis; and, two years after, in the celebrated “Ordinance of 1787,” extended it to the Northwestern Territory, by the section: — “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” The necessary readjustment of affairs, owing to the claims of the Episcopal Church to the property of the old State-Church, and also to various constructions of the law and of legislative power under it, entailed future legislative and judicial action, which will be noted hereafter. At present we turn to the action of the other colonies during the period of the Revolution.

In none of them was there such various and sustained discussion as in Virginia. In most of them a few words of constitutional provision, with more or less of freedom, settled the question for the time. That which is most marked by the comparison of the different actions is the varying degree of ability to understand the true nature of religious freedom. No other colony, save Rhode Island, equalled Virginia’s broad and comprehensive statement, while some of them fell far short of that standard.

In New Hampshire the constitution of 1776 made no provision in regard to religious matters. A state convention in 1779 submitted another constitution to the people, which was not adopted, but its utterance on the rights of conscience may be noted here as indicating the growth of sentiment. The section read: “The future legislation of this state shall make no laws to infringe the rights of Conscience, or any other of the natural, unalterable Rights of Men, or contrary to the laws of God, or against the Protestant religion.”¹ Another convention in 1781 adopted a Bill of Rights similar to that of the Massachusetts convention of 1780, and in an address

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thereon remarked: “We have endeavored to ascertain and define the most important and essential rights of man. We have distinguished between alienable and unalienable rights. For the former of which men may receive an equivalent; for the latter, or the rights of conscience, they can receive none: The world itself being wholly inadequate to the purchase. ‘For what is a man profited, though he should gain the whole world and lose his own soul?’ The various modes of worship among mankind are founded in their various sentiments and beliefs concerning the Great Object of all religious worship and adoration . . . therefore, to Him alone, and not to man, are they accountable for them.”

This seems to reach far enough, but in spite of it, the constitution of 1781, as also that of 1784, left unchanged the old colonial law which made the Church a town institution and its support a matter of public tax, and discriminated also in favor of the Protestant religion.¹

In Massachusetts the first state constitution was formed in 1780, in which the Bill of Rights contained the following language: “As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality, . . . the legislature shall from time to time authorize and require the several towns and parishes . . . to make suitable provision, at their own expense, for the institution of the public worship of God.”² Thus the state retained the old colonial principle which gave to the Church a civil status. Every ratepayer was, as in the past fifty years, allowed to indicate his preference as to the Church which should be benefited by his tax, while those, who had no choice, were required to pay taxes for the support of the State Congregational Church. In the end, it will be seen that, the system worked special damage to the Church thus preferred by the law.

In Connecticut and Rhode Island no state constitutions

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were formed. Without formal action the colonies passed into states of the American Union under their old charters, and no changes were made affecting the civic relations of the Church. Rhode Island continued in the way of the broad liberty which had obtained from its foundation; while Connecticut retained its State-Church until the second decade of the nineteenth century. The records of Connecticut contain religious and ecclesiastical legislation during and after the revolutionary period.¹ An act in 1778 exempted Separates (though Congregationalists) from taxes for support of the established Church. Many Churches and “societies” were authorized at different times. In 1784 was passed an “Act for securing the Rights of Conscience.” The law enacted, that no persons professing the Christian religion, who soberly dissented from the worship and ministry established by law, and attended worship by themselves, should incur a penalty by not attending the established worship: that Christians of every denomination, who attended and helped maintain worship according to their consciences, should not be taxed for the support of other worship; that those who did not belong to any other society were to be taxed for the support of the State-Church; and that all Protestant dissenters should have liberty to use the same powers for maintaining their respective societies as belonged to societies established by law.

The effect of this last provision was to continue the colonial practice by which all church support was collected by town officers and distributed according to the indicated preferences of the taxpayers. The act is further notable as restricting liberty to Protestants, and insisting that every person should attend and help maintain some form of Christian worship. The liberty of Connecticut did not yet make room for the Jew or the Romanist, and lagged far behind the new-found freedom of Virginia.

The action in New York makes but a short tale. The people of the colony, in the proportion of fifteen to one, were

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opposed to all forms of civil restriction on religion, and disowned the fiction so sedulously maintained by the government, that the act of 1693 had established the Anglican Church. The nameless Church instituted by that act went down with the first assault of war: and the state convention of 1777 guarded the rights of conscience and religious worship from interference by the civil power. The 35th Article expressly abrogated all laws and parts of law, common or statute, which “might be construed to establish or maintain any particular denomination of Christians or their ministers.” The 30th Article ordained that “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind.” The legislature of 1784 repealed the “Settling Act” of 1693 and all subsequent acts “which do grant certain emoluments and privileges to the Episcopal Church.”

The liberty thus asserted was, however, qualified by two restrictions. The one was a provision that all persons naturalized by the State should take an oath of abjuration of all foreign allegiance and subjection in all matters, “ecclesiastical as well as civil.” There can be but one interpretation of the ecclesiastical reference.¹ It was intended to exclude Roman Catholics from citizenship. The other restriction was the exclusion of clergymen from public office, on the ground that they “ought not to be diverted from their great duties of the service of God and the care of souls.” This, the 31st Article, was an infringement upon the rights of a certain class of men on account of religion, while the reason alleged was one of which a political convention could not properly take cognizance.² Later New York constitutions did away with both these restrictions.

The New Jersey constitution of 1776 decreed to every one “the inestimable privilege of worshipping God according to the dictates of his own conscience, but at the same time

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imposed a religious test for office, which was confined to “persons professing a belief in the faith of any Protestant sect.”¹

The constitution adopted by Pennsylvania in 1776 declared that “all men have a natural and inalienable right to worship God, according to the dictates of their own conscience and understanding.” But while denying all civil interference with worship and all public taxation for religion, the constitution restricted civil rights to persons “who acknowledge the being of a God.” In addition to this, the oath imposed for all office-holders required them to affirm, “I do believe in one God, the Creator and Governor of the Universe, the rewarder of the good and the punisher of the wicked; and I do acknowledge the Scriptures of the Old and New Testaments to be given by divine inspiration.”² Against these restrictions Franklin fought earnestly in the convention, but he was forced to content himself with the abandonment of the more severe test against Roman doctrine. Certainly, in spite of the spirit of its great founder, Pennsylvania had not yet learned the lesson of full liberty of mind.

And Delaware was a close parallel. Its constitution of 1776 declared that “all persons professing the Christian religion ought forever to enjoy equal rights and privileges,” and in the oath of office put a declaration of faith in the doctrine of the Trinity and in the divine inspiration of the Scriptures. This was narrower than Pennsylvania.

The Maryland convention of 1775 took the first step toward freedom in the extension of the franchise to “all freemen having an estate of £40, without religious distinction.”³ But this absence of distinction was applicable only to differences within the Christian religion. This was specially defined by the Bill of Rights in 1777,⁴ which specifies those “persons professing the Christian religion (as) equally

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entitled to protection in their religious liberty.” The bill forbids compelling any persons to attend or support any particular form of worship, and then says, “yet the legislature may in their discretion lay a general tax for the support of the Christian religion, leaving to each individual the power of indicating the direction of his own tax, to any church or to the poor. By a happy clause the bill avoided an issue, which afterward plagued Virginia, decreeing that “the property now held by the Church of England” should remain theirs forever; and consulted charity in ordering that the clergy of that Church should be paid until the following November.

This was the Maryland act of disestablishment, and in addition to the removal of the State-Church it made also distinct advance in enfranchising Roman Catholics, for whom as yet New England, outside of Rhode Island, had made no room. The constitution copied New York in excluding clergymen from the legislature, and for office imposed an oath of allegiance and of belief in the Christian religion. A unique incident in Maryland was the appointment of a form of public prayer for the new government. The majority of the clergy of the Church of England refused to use the form, and were required to pay a “treble tax” or leave the country. The most of them chose the latter alternative, and their Churches were closed or used by other religious bodies.¹

The constitution of North Carolina used a negative form — in that respect peculiar — to the effect that, “No person who shall deny the being of God, or the truth of the Protestant religion, or the divine authority of either the Old or New Testament, or shall hold religious opinions incompatible with the freedom or safety of the State, shall be capable of holding any office or place of trust in the civil government of this State.” Beyond this definition of religious qualification for office, the state made no further deliverance on the subject of religion, save the guarantee of freedom of conscience. The

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old establishment died of inanition, and no provision was made to support any Church or religious teaching.

The constitutional action of South Carolina was a most curious mingling of political and religious ideas, having in part the ordinary expressions of civil law, and in other part assuming the attitude and motive of a superior spiritual court or confession of faith. The constitution of 1776 contained no religious provisions, but the omission was more than supplied by the constitution of 1778.¹ Its first provision having reference to religion was one excluding from the office of governor, lieutenant governor, and membership in the privy council or legislature all clergymen, “until two years after demitting the ministry.”

Chapter XXXVIII. enters into most extensive definitions, as follows: “All persons and religious societies, who acknowledge that there is one God, and a future state of reward and punishment, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be the established religion of this State. All denominations of protestants in this State . . . shall enjoy equal religious and civil privileges.” The chapter ordains the security of ownership by the Episcopal Churches in the property already held by them, and provides for incorporating other religious bodies, “whenever fifteen male persons, not under twenty-one years of age,” shall agree together for religious worship. Each such society “shall have agreed to and subscribed in a book the following five articles, without which no agreement or union of men, upon pretence of religion, shall entitle them to be incorporated and esteemed as a Church of the established religion of this State —

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The chapter then ordains that pastors must be chosen by the majority of the Church, and that no minister can enter upon a pastorate until he has subscribed a declaration, “that he is determined by God’s grace out of the Holy Scriptures to instruct the people committed to his charge, and to teach nothing as required or necessary to eternal salvation, but that which he shall be persuaded may be concluded and proved from the Scriptures; that he will use both public and private admonitions, as well to the sick as to the whole within his care, as need shall require and occasion shall be given; and that he will be diligent in prayers and in reading of the Scriptures, and in such studies as help to the knowledge of the same; that he will be diligent to frame and fashion his own self and his family according to the doctrine of Christ, and to make both himself and them, as much as in him lieth, wholesome examples and patterns to the flock of Christ; that he will maintain and set forward, as much as he can, quietness, peace and love among all people, and especially among those that are, and shall be, committed to his charge.”

There is nothing like this in any other state provision. It strongly resembles the provision for toleration in the colonial law of Carolina, but carries it much further, while its concern for pastoral purity and faithfulness is far more in the spirit of episcopal jurisdiction than that of civil legislation. It makes a curious revival in Carolina, of the puritanic forms of early Massachusetts. At the same time, these South Carolina Puritans of the Revolution were more liberal than the Massachusetts of their day. This establishment of the Christian

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religion, and this concern for pastoral faithfulness, must be regarded as little more than expressions of opinion and desire. Beyond exclusion from office, non-Christians were not subjected to imposition; no penalties were carried by the terms of the constitution, while that instrument expressly ordained that: “No person shall by law be obliged to pay towards maintenance and support of a religious worship, that he does not freely join in, or has not voluntarily engaged to support.”

In Georgia the constitution of 1777 briefly declared freedom of conscience, but required that “all members of the legislature shall be of the Protestant religion.”¹

It will thus be observed that, when the American Union was formed, there was great variety of legal expression on the subject of religion and its civic relations in the different states. By brief grouping of them it appears, that in only two out of the thirteen was full and perfect freedom conceded by law. These were Rhode Island and Virginia. Six of the states, viz., New Hampshire, Connecticut, New Jersey, the two Carolinas, and Georgia insisted on Protestantism. Two were content with the Christian religion; Delaware and Maryland. Four, Pennsylvania, Delaware, and the Carolinas, required assent to the divine inspiration of the Bible. Two, Pennsylvania and South Carolina, demanded a belief in heaven and hell. Three, New York, Maryland, and South Carolina, excluded ministers from civil office. Two, Pennsylvania and South Carolina, emphasized belief in one eternal God. One, Delaware, required assent to the doctrine of the Trinity. And five, New Hampshire, Massachusetts, Connecticut, Maryland, and South Carolina, adhered to a religious establishment, in one, South Carolina, the obnoxious term toleration found a constitutional place.

But with this great variety of legal expression the unanimity of sentiment for full liberty was soon made manifest in the adoption of the Federal Constitution. That instrument, submitted to the states by the convention of 1787, contained

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the following sole utterance on the subject of religion: “VI. 3. No religious test shall ever be required as a qualification to any office or public trust under the United States.”

When the constitution came before the state conventions, this section gave rise to much debate. On the one hand, it was not regarded as furnishing a sufficient guarantee of religious freedom; and on the other, it was feared as giving entrance to a liberty which might endanger the commonwealth. New York, New Hampshire, Virginia, and North Carolina insisted on a larger statement for religious liberty. The minority in the Pennsylvania convention wished to reject the constitution until such larger guarantee was incorporated. A similar demand was made in Virginia by Patrick Henry. But Madison prevailed on the convention to adopt the constitution on his personal pledge to obtain the amendment afterward made, carrying his point by a majority of eight in a vote of one hundred and sixty-eight.

In Massachusetts alone was a dread of liberty expressed. Major Lusk “shuddered at the idea that Roman Catholics, Papists, and Pagans might be introduced into office and that Popery and the Inquisition may be established in America.” “Who,” answered the Rev. Mr. Shute, “shall be excluded from natural trusts? Whatever answer bigotry may suggest, the dictates of candor and equity, I conceive, will be, None. Far from limiting my charity and confidence to men of my own denomination in religion, I believe there are worthy characters among men of every denomination — among Quakers, Baptists, the Church of England, the Papists, and even among those who have no other guide in the way to virtue and heaven, than the dictates of natural religion.”¹ The spirit of Puritanism must have travelled a long way to permit such an utterance by the lips of one of its established clergy.

The first Congress of the United States found among its

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duties the consideration of various amendments demanded by different state conventions. Madison maintained that those who had opposed the constitution, disliked it only because it failed in effectual provisions against encroachments on particular rights. Among these were the rights of conscience. Of the ten amendments proposed by the congress, sent down to the states, by them adopted, and so made part of the national constitution, the first is in these words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

This amendment and the section already quoted are the only utterances of the federal constitution on the subject of religion. Their brevity is in marked contrast with the diffuse and elaborate verbiage of many of the state constitutions. But they cover the entire ground, and pronounce the national government for the largest liberty of conscience and worship, and restrain the national magistracy from all interference in “matters of religious concernment.”

Thus from the beginning of national life, the United States ordained throughout the land, so far as its constitutional power could reach, full liberty of mind, conscience, and worship.