CHAPTER VII.

RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA

OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN.

The democratic idea, upon which the constitution of the Reformed Church

is based, was carried to its logical conclusion in England toward the

end of the sixteenth century, and first of all by Robert Browne and his

followers. They declared the Church, which was identical with the

parish, to be a community of believers who had placed themselves under

obedience to Christ by a compact with God, and they steadfastly

recognized as authoritative only the will of the community at the time

being, that is, the will of the majority.[66] Persecuted in England

Brownism transformed itself on Dutch soil, especially through the

agency of John Robinson, into Congregationalism, in which the earliest

form of the Independent movement made its appearance. The principles of

Congregationalism are first complete separation of Church and State and

then the autonomy of each separate parish,--as a petition addressed to

James I. in 1616 expresses it: the right is exercised "of spiritual

administration and government in itself and over itself by the common

and free consent of the people, independently and immediately under

Christ."[67]

This sovereign individualism in the religious sphere led to practical

consequences of extraordinary importance. From its principles there

finally resulted the demand for, and the recognition of, full and

unrestricted liberty of conscience, and then the asserting of this

liberty to be a right not granted by any earthly power and therefore by

no earthly power to be restrained.

But the Independent movement could not confine itself to ecclesiastical

matters, it was forced by logical necessity to carry its fundamental

doctrines into the political sphere. As the Church, so it considered

the state and every political association as the result of a compact

between its original sovereign members.[68] This compact was made indeed

in pursuance of divine commandment, but it remained always the ultimate

legal basis of the community. It was concluded by virtue of the

individual's original right and had not only to insure security and

advance the general welfare, but above all to recognize and protect the

innate and inalienable rights of conscience. And it is the entire people

that specifically man for man concluded this compact, for by it alone

could every one be bound to respect the self-created authority and the

self-created law.

The first indications of these religious-political ideas can be traced

far back, for they were not created by the Reformation. But the

practice which developed on the basis of these ideas was something

unique. For the first time in history social compacts, by which states

are founded, were not merely demanded, they were actually concluded.

What had until then slumbered in the dust-covered manuscripts of the

scholar became a powerful, life-determining movement. The men of that

time believed that the state rested upon a contract, and they put their

belief into practice. More recent theory of public law with only an

imperfect knowledge of these events frequently employed them as examples

of the possibility of founding a state by contract, without suspecting

that these contracts were only the realization of an abstract theory.

On October 28, 1647, there was laid before the assembled Council of

Cromwell's army a draft, worked out by the Levellers, of a new

constitution for England,[69] which later, greatly enlarged and

modified,[70] was delivered to Parliament with the request that it be

laid before the entire English people for signature.[71] In this

remarkable document the power of Parliament was set forth as limited in

a manner similar to that later adopted by the Americans, and particulars

were enumerated which in future should not lie within the legislative

power of the people's representatives. The first thing named was matters

of religion, which were to be committed exclusively to the command of

conscience.[72] They were reckoned among the inherent rights, the

"native rights", which the people were firmly resolved to maintain with

their utmost strength against all attacks.[73]

Here for the first and last time in England was an inherent right of

religious liberty asserted in a proposed law. This right is recognized

to-day in England in legal practice, but not in any expressly formulated

principle.[74]

The religious conditions in England's North American colonies developed

differently.

The compact is celebrated which the persecuted and exiled Pilgrim

Fathers concluded on board the Mayflower, November 11, 1620, before the

founding of New Plymouth. Forty-one men on that occasion signed an act

in which, for the glory of God, the advancement of the Christian faith,

and the honor of their king and country, they declare their purpose to

found a colony. They thereupon mutually promised one another to unite

themselves into a civil body politic, and, for the maintenance of good

order and accomplishment of their proposed object, to make laws, to

appoint officers, and to subject themselves to these.[75]

Therewith began the series of "Plantation Covenants" which the English

settlers, according to their ecclesiastical and political ideas,

believed it necessary to make on founding a new colony. Here they are

only to be considered in their connection with religious liberty.

In 1629 Salem, the second colony in Massachusetts, was founded by

Puritans. Unmindful of the persecutions they themselves had suffered in

their native land, they turned impatiently against such as did not agree

with them in their religious ideas. Roger Williams, a young Independent,

landed in Massachusetts in 1631 and was at once chosen by the community

in Salem to be its minister. But he preached complete separation of

Church and State, and demanded absolute religious liberty, not only for

all Christians but also for Jews, Turks, and heathen. They should have

in the state equal civil and political rights with believers. A man's

conscience belongs exclusively to him, and not to the state.[76] Exiled

and in danger, Williams forsook Salem and with a faithful few founded,

1636, the city of Providence in the country of the Narragansett Indians,

where all who were persecuted on account of their religion should find a

refuge. In the original compact the seceders promised obedience to laws

determined by a majority of themselves, but "only in civil

things"--religion was to be in no way a subject of legislation.[77] Here

for the first time was recognized the most unrestricted liberty of

religious conviction, and that by a man who was himself glowing with

religious feeling.

Nineteen settlers from Providence in 1638 founded Aquedneck, the second

colony in the present state of Rhode Island, after having concluded a

most remarkable compact: "We whose names are underwritten do here

solemnly, in the presence of Jehovah, incorporate ourselves into a Bodie

Politik, and as he shall help, will submit our persons, lives and

estates unto our Lord Jesus Christ, the King of Kings and Lord of Lords,

and to all those perfect and absolute laws of his given us in his holy

word of truth, to be guided and judged hereby.--Exod. xxiv, 3, 4; 2

Chron. xi, 3; 2 Kings xi, 17."[78]

But such as did not go so far as Roger Williams in the recognition of

liberty of conscience were yet dominated by the idea of the necessity of

a social compact in founding a new colony. In the Fundamental Orders of

Connecticut, a colony founded by Puritans who also had emigrated from

Massachusetts, the settlers in 1638 declared that they united themselves

in a body politic in pursuance of the word of God in order to guard the

liberty of the Gospel and the church discipline to which they were

accustomed, and in order also in civil affairs to be ruled according to

the laws.[79] In the opposition in which they stood to the religious

conditions in England, the Puritans, although themselves little inclined

to toleration, proceeded invariably upon the idea that their state had

first of all to realize religious liberty, which was for them the free

exercise of their own religious convictions.

The idea that state and government rested upon a compact--so significant

for the development of the American conceptions of individual

liberty--was strengthened by the force of historical circumstances. A

handful of men went forth to found new communities. They began their

work of civilization scattered over wide stretches in the loneliness of

the primeval forest.[80] And so they believed that it was possible to

live outside of the state, in a condition of nature, and that when they

stepped out of that condition of nature they did it of their own free

will and were not constrained by any earthly power. With their small

numbers, representation was at first unnecessary, and the decisions were

reached in the town meetings of all belonging to the community,--the

form of a direct democracy grew naturally out of the given conditions

and strengthened the conviction, which does not correspond to the old

English conception, that the sovereignty of the people is the basis of

legislation and of government. To a generation that could point to such

beginnings for their state, the political ideas which later animated

the men of 1776 seemed to bear their surety in themselves: they were

"self-evident", as it reads in the Declaration of Independence.

The inherent fundamental right of religious liberty, for which Roger

Williams had striven so earnestly, found also in the seventeenth century

its official recognition in law, first in the laws of 1647 of Rhode

Island, and then in the charter which Charles II. granted the colony of

Rhode Island and Providence Plantations in 1663.[81] It was therein

ordered in fulfilment of the colonists' request, in a manner ever

memorable, that in future in the said colony no person should be

molested, punished or called in question for any differences of opinion

in matters of religion; but that all persons at all times should have

full liberty of conscience, so long as they behaved themselves peaceably

and did not misuse this liberty in licentiousness or profaneness, nor

to the injury or disturbance of others.[82] Thus a colony was granted

that which in the mother-country at the time was contested to the

utmost. Similar principles are found for the first time in Europe in the

Practice of Frederick the Great in Prussia. But the principles of

religious liberty were recognized to a greater or less extent in other

colonies also. Catholic Maryland in 1649 granted freedom in the exercise

of religion to every one who acknowledged Jesus Christ.[83] Also that

remarkable constitution which Locke prepared for North Carolina and that

went into force there in 1669, and which agrees so little with the

tenets of his _Two Treatises on Government_, is based upon the principle

not, it is true, of full equality of rights, but of toleration of

Dissenters, and also of Jews and heathen.[84] It was permitted every

seven persons of any religion to form a church or communion of

faith.[85] No compulsion in matters of religion was exercised, except

that every inhabitant when seventeen years of age had to declare to

which communion he belonged and to be registered in some church,

otherwise he stood outside of the protection of the law.[86] All

violence toward any religious assembly was strictly prohibited.[87] It

was not the principle of political liberty that lay on Locke's heart,

but the opening of a way to full religious liberty. In spite of the fact

that in his treatise _On Civil Government_ there is not a word upon the

right of conscience, which he had so energetically defended in his

celebrated _Letters on Toleration_, the constitution of North Carolina

shows that in his practical plans it held the first place. And so with

Locke also liberty of conscience was brought forward as the first and

most sacred right, overshadowing all others. This philosopher, who held

freedom to be man's inalienable gift from nature, established servitude

and slavery under the government he organized without hesitation, but

religious toleration he carried through with great energy in this new

feudal state.

Of the other colonies New Jersey had proclaimed extensive toleration in

1664, and New York in 1665.[88] In the latter, which had already

declared under Dutch rule in favor of liberal principles in religious

matters, it was ordered in 1683 that no one who believed on Jesus Christ

should on any pretext whatever be molested because of difference of

opinion. In the same year William Penn conferred a constitution with

democratic basis upon the colony granted to him by the Crown and which

he had named after his father Pennsylvania, in which it was declared

that no one who believed on God should in any way be forced to take part

in any religious worship or be otherwise molested,[89] and in the

constitution, which Penn later (1701) established and which remained in

force until 1776, he emphasized above all that even when a people were

endowed with the greatest civil liberties they could not be truly happy,

unless liberty of conscience were recognized,[90] and at the close he

solemnly promised for himself and his heirs that the recognition of this

liberty, which he had declared, should remain forever inviolable and

that the wording of the article should not be changed in any

particular.[91] The constitutional principle was thus given at once the

force of a _lex in perpetuum valitura_.

In 1692 Massachusetts received a charter from William III. in which,

following the example of the Toleration Act of 1689, full liberty was

granted to all Christians except Catholics;[92] and Georgia was given a

similar law in 1732 by George II.[93]

Thus the principles of religious liberty to a greater or less extent

acquired constitutional recognition in America. In the closest

connection with the great religious political movement out of which the

American democracy was born, there arose the conviction that there

exists a right not conferred upon the citizen but inherent in man, that

acts of conscience and expressions of religious conviction stand

inviolable over against the state as the exercise of a higher right.

This right so long suppressed is no "inheritance", is nothing handed

down from their fathers, as the rights and liberties of Magna Charta and

of the other English enactments,--not the State but the Gospel

proclaimed it.

What in Europe at that time and even much later had received official

expression only in scanty rudiments,[94] and aside from that was only

asserted in the literature of the great intellectual movement which

began in the seventeenth century and reached its height in the

clearing-up epoch of the century following, was in Rhode Island and

other colonies a recognized principle of the state by the middle of the

seventeenth century. The right of the liberty of conscience was

proclaimed, and with it came the conception of a universal right of

man. In 1776 this right was designated by all the bills of rights,

mostly in emphatic form and with precedence over all others, as a

natural and inherent right.[95]

The character of this right is emphasized by the bill of rights of New

Hampshire, which declares that among the natural rights some are

inalienable because no one can offer an equivalent for them. Such are

the rights of conscience.[96]

The idea of legally establishing inalienable, inherent and sacred rights

of the individual is not of political but religious origin. What has

been held to be a work of the Revolution was in reality a fruit of the

Reformation and its struggles. Its first apostle was not Lafayette but

Roger Williams, who, driven by powerful and deep religious enthusiasm,

went into the wilderness in order to found a government of religious

liberty, and his name is uttered by Americans even to-day with the

deepest respect.

FOOTNOTES:

[Footnote 66: Weingarten, _Die Revolutionskirchen Englands_, p. 21.]

[Footnote 67: _Ibid._, p. 25.]

[Footnote 68: The connection of the Puritan-Independent doctrine of the

state-compact with the Puritan idea of church covenants is brought out

by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the

Independents, "The right of every separate religious community freely

and alone to decide and conduct their affairs was the foundation of the

doctrine of the sovereignty of the people, which they introduced into

the political consciousness of the modern world."]

[Footnote 69: First reproduced in Gardiner, _History of the Great Civil

War_, III, London, 1891, pp. 607-609.]

[Footnote 70: The final text in Gardiner, _Constitutional Documents of

the Puritan Revolution_, Oxford, 1889, pp. 270-282.]

[Footnote 71: Gardiner, _History_, III, p. 568.]

[Footnote 72: "That matters of religion and the ways of God's worship

are not at all entrusted by us to any human power." Gardiner, _History_,

p. 608.]

[Footnote 73: _Cf._ the text in Gardiner, _History_, p. 609.]

[Footnote 74: _Cf._ Dicey, _loc. cit._, pp. 229, 230, where several laws

are mentioned restricting the liberty of expressing religious opinion

which are, however, obsolete, though they have never been formally

repealed.]

[Footnote 75: The complete text in Poore, I, p. 931. That it was far

from the intentions of the settlers to found an independent state is

evident from the entire document, in which they characterize themselves

as "subjects of our dread Sovereign Lord King James".]

[Footnote 76: On Williams, _cf._ Weingarten, pp. 36 _et seq._, and 293,

Bancroft, I, pp. 276 _et seq._, Masson, _The Life of John Milton_, II,

pp. 560 _et seq._ The advance of the Independent movement to

unconditional freedom of faith is thoroughly discussed by Weingarten,

pp. 110 _et seq._]

[Footnote 77: Samuel Greene Arnold, _History of the State of Rhode

Island_, I, New York, 1859, p. 103.]

[Footnote 78: Arnold, p. 124.]

[Footnote 79: _Fundamental Orders of Connecticut_, Poore, I, p. 249.]

[Footnote 80: The entire number of immigrants in New England amounted in

1640 to 22,000 at the highest. Of these New Plymouth had 3000,

Connecticut less than 2000 souls. Masson, _loc. cit._, pp. 548-550.]

[Footnote 81: The wide separation of the colonies from the

mother-country did not make this liberty appear dangerous though it was

in such contradiction to the conditions in England. Charles II. sought

further, in his aversion to the Puritans, to favor as much as possible

the colonies that had separated from Massachusetts.]

[Footnote 82: "Our royall will and pleasure is, that noe person within

the sayd colonye, at any tyme hereafter, shall bee any wise molested,

punished, disquieted, or called in question, for any differences in

opinione in matters of religion, and doe not actually disturb the civill

peace of our sayd colony; but that all and everye person and persons

may, from tyme to tyme, and at all tymes hereafter, freelye and fullye

have and enjoye his and their owne judgments and consciences, in matters

of religious concernments, throughout the tract of lande hereafter

mentioned; they behaving themselves peaceablie and quietlie, and not

useing this libertie to lycentiousnesse and profanenesse, nor to the

civill injurye or outward disturbeance of others; any lawe, statute or

clause, therein contayned, or to bee contayned, usage or custome of this

realme, to the contrary hereof, in any wise, notwithstanding." Poore,

II, pp. 1596, 1597.]

[Footnote 83: Bancroft, I, p. 193, E. Lloyd Harris, _Church and Slate in

the Maryland Colony_. Inaugural-Dissertation. Heidelberg, 1894, p. 26

_et seq_.]

[Footnote 84: Carolina had already had religious toleration in the

Charter of 1665. Poore, II, p. 1397. Locke himself wished to grant full

religious liberty. _Cf._ Laboulaye, I, p. 397.]

[Footnote 85: Art. 97. Poore, II, pp. 1406, 1407.]

[Footnote 86: Art. 101. _Ibid._]

[Footnote 87: Arts. 102, 106. _Ibid._]

[Footnote 88: C. Ellis Stevens, _Sources of the Constitution of the

United States_, New York, 1894, P. 217.]

[Footnote 89: Laws agreed upon in England, Art. XXXV. Poore, II, p.

1526.]

[Footnote 90: Charter of Privileges for Pennsylvania, Art. I. Poore, II,

p. 1537. For holding office the confession of belief in Jesus Christ as

the Saviour of the world was necessary, but no special creed.]

[Footnote 91: Art. VIII, section 3.]

[Footnote 92: Poore, I, p. 950. On this point _cf._ Lauer, _Church and

State in New England_ in _Johns Hopkins University Studies, 10th

Series_, II-III, Baltimore, 1892, pp. 35 _et seq._]

[Footnote 93: Poore, I, p. 375.]

[Footnote 94: In England the Toleration Act, I. Will. and Mary, c. 18,

first granted toleration to Dissenters. This was again restricted under

Anne and restored under George I. Since George II. they have been

admitted to all offices. As is well known, however, the restrictions

upon the Catholics and Jews have been done away with only in our

century. In Germany after the scanty concessions of the Peace of

Osnabrueck, a state of affairs similar to that earlier in America was

first created by the Toleration Patent of Joseph II. of 1781, the Edict

of Frederick William II. of July 9, 1788, that which codified the

principles of Frederick the Great, and above all by the Prussian

_Allgemeines Landrecht_ (Teil II, Titel 11, Sec.Sec. 1 _et seq._).]

[Footnote 95: To be sure the carrying out of this right, in the

direction of full political equality to the members of all confessions,

differed in the different states. New York was the first state after

Rhode Island that brought about the separation of church and state.

Virginia followed next in 1785. For some time after in many states

Protestant or at least Christian belief was necessary to obtain office.

And even to-day some states require belief in God, in immortality, and

in a future state of rewards and punishments. Massachusetts declared in

her bill of rights not only the right but the duty of worship, and as

late as 1799 punished neglect of church attendance. In the course of the

nineteenth century these and other restrictions have fallen away except

for a very small part. For the Union the exercise of political rights is

made entirely independent of religious belief by Art. VI of the

Constitution, and also by the famous First Amendment the establishment

of any religion or prohibiting the free exercise thereof is forbidden.

On the present condition in the separate states, _cf._ the thorough

discussion by Cooley, Chap. XIII, pp. 541-586; further Ruettiman, _Kirche

und Staat in Nordamerika_ (1871).]

[Footnote 96: "Among the natural rights, some are in their very nature

unalienable, because no equivalent can be given or received for them. Of

this kind are the RIGHTS OF CONSCIENCE." Art. IV. Poore, II, 1280.]

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