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.]