The Rise and Fall of Religious Liberty in America
By C. M. S.
State Constitutions and Freedom of Conscience
RHODE ISLAND was the real birthplace of religious liberty in America, its charter of 1663 having been drawn upon that basis as “a livelie experiment” to demonstrate “that a most flourishing civil state may stand and best bee maintained . . . with a full liberty in religious concernments.” This State, says Arnold, was “a pure democracy, which for the first time guarded jealously the rights of conscience by ignoring any power in the body politic to interfere with those matters that alone concern man and his Maker.” The code of laws adopted by her first legislature closes thus:—
And otherwise than this [what was therein forbidden] all men may walk as their consciences persuade them, every one in the name of his God. And let the lambs of the Most High walk in this colony without molestation, in the name of Jehovah their God, forever and ever. When Rhode Island joined the confederation of the thirteen colonies, she did so under the charter of 1663, and continued that charter as the fundamental law of the State until 1842. Its section on religious “concernments” reads:—
No person within the said colony at any time hereafter, shall be anywise molested, punished, disqualified, or called in question for any difference of opinion in matters of religion: every person may at all times freely and fully enjoy his own judgment and conscience in matters of religious concernments. When, in 1842, a constitution was adopted to replace the charter of 1663, the religious liberty of Rhode Islanders was thus guarded by Section 3 of Article I of that document:—
> Whereas, Almighty God hath created the mind free, and all attempts to influence it by temporal punishment, or burdens, or civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerated ancestors, in their migration to this country and their settlement of this State, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we therefore declare that no man shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfilment of his own voluntary contract; nor enforced, restrained, molested, or burdened in his body or goods; nor disqualified from holding any office; nor otherwise suffer on account of his religious belief; and that every man shall be free to worship God according to the dictates of his own conscience, and to profess and by argument to maintain his opinion in matters of religion; and that the same shall in nowise diminish, enlarge, or affect his civil capacity. Rhode Island never in any way made religion a test of qualification for any office. Connecticut also considered her charter a sufficient constitution on entering the confederation of American colonies, and her legislation in 1776 declared it to be the civil constitution of Connecticut. That charter was silent in regard to freedom of conscience; but Connecticut as a colony maintained the closest union between the church and the state, her first general court declaring that—
the civil authority here established hath power and liberty to see that the peace, ordinances, and rules of Christ be observed in every church according to his Word. It was not until 1818, when a new constitution was adopted, that Connecticut disestablished her hierarchical form of government. Sections 3 and 4 of Article I of the constitution read:—
The exercise and enjoyment of religious profession and worship, without discrimination,5shall forever be free to all persons in this State, provided that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify practises inconsistent with the peace and safety of the State.
No preference shall be given by law to any Christian sect or mode of worship. Maryland, the Roman Catholic colony, furnishes a unique spectacle in the annals of Catholic history; for it seems to have been the purpose of her founder to grant religious toleration—in a measure. It was unique because it was utterly unlike any other Catholic commonwealth existing at the time, was out of harmony with the spirit of the Catholicism of the day, and is out of harmony with the rules and practises of the Roman Catholic Church in all countries dominated by her even at the present day. Catholics to-day frequently refer to the history of Maryland to prove that Catholics are the friends of religious liberty, and were the original exponents of it in this country; but it is a singular coincidence that they never refer to the history of Mexico, of Peru, of Bolivia, of the Philippines, or of any other Catholic country to prove the Catholic Church the parent and protector of freedom of conscience. Maryland’s charter bears date of 1632, four years earlier than the founding of Rhode Island by Roger Williams, eleven years earlier than the granting of the first patent for the Rhode Island territory, and thirty-one years earlier than the granting of the memorable charter which governed Rhode Island from 1663 to 1842. But there was a vast difference. Rhode Island was founded upon the true principles of religious liberty. Maryland was not. She tolerated Protestants on condition that they said nothing disparaging of the Catholic religion and kept Sunday strictly. To speak aught against the Virgin Mary, the apostles, or evangelists was to subject one’s self to a fine of five pounds sterling; to deny the trinity or to blaspheme was punishable by death, and there were pains and penalties for other infractions of religious requirements. Unitarians, Jews, infidels, and pagans were not to be tolerated in the colony. In the Maryland constitution, adopted Nov. 11, 1776, Article XXXIII of the Declaration of Rights guarantees freedom of religious belief and practise; yet incorporated in that same article is a provision empowering the legislature to “lay a general and equal tax for the support of the Christian religion,” leaving to each individual the right to designate to what denomination his religious tax should be apportioned. This was a union of church and state, the church depending upon the state for its support; and Article XXXV of the same document makes “a declaration of belief in the Christian religion” a necessary qualification for holding any office. In 1810 the constitution was so amended as to abolish compulsory support of religion, but the religious test on office-holders remained. The new constitution adopted in 1851 incorporated the anti-tax clause into its article guaranteeing religious freedom (Article XXXIII), but it retained (Article XXXIV) the religious test for all office-holders. The same is true of the constitution adopted in 1864, and of the one adopted in 1867, with the exception of the religious-test clause, which in the latter merely requires a belief in the existence of God. These facts, with the legislation enacted upon religious matters, show that Maryland never has stood upon the true grounds of religious liberty. North Carolina adopted her constitution Dec. 18, 1776. Article XIX of the Declaration of Rights declares—
that all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences. But this did not grant equality in matters of religious faith and practise; for Article XXXII declares—
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 Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. In 1835 this article was amended by substituting the word “Christian” for “Protestant;” but the religious test, of course, still remained. Section 5 of Article VI of the constitution of 1868 disqualifies for office “all persons who shall deny the being of Almighty God,” and this same disqualification is taken over into the constitution of 1876. Article XXXIV of the constitution of 1776 declares the equality of all religions within the State, and the freedom of all persons from the compulsory support of religion. The later constitutions are silent upon this point, but repeat the declaration that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences,” and add that “no human authority should, in any case whatever, control or interfere with the rights of conscience.” — Section 26, Article I, Constitutions of 1868 and 1876. The constitution of Georgia was adopted Feb. 5, 1777. Article LVI of that constitution reads:—
All persons whatsoever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State; and shall not, unless by consent, support any teacher or teachers except those of their own profession. Section 5 of the constitution of 1865 reads:—
Perfect freedom of religious sentiment be, and the same is hereby, secured, and no inhabitant of this State shall ever be molested in person or property, nor prohibited from holding any public office or trust, on account of his religious opinions. The constitution adopted in 1868 incorporates this section, with the provision that this religious liberty must not be construed to permit acts of licentiousness or practises inconsistent with the peace or safety of the people. On April 20, 1777, New York adopted her constitution, and it speaks in no uncertain terms in the matter of religious rights. Article XXXVIII reads:—
And whereas we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind, this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare 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 article closes with the same provision as noted above in the remarks regarding the constitution of Connecticut. The substance of the above provision was reproduced in the constitutions of 1821 and 1846. The constitution of Massachusetts was not adopted until 1780. Article I declares the equality of men; Article II provides for liberty of worship for all men; but Article III provides for the compulsory support of religion, and the maintenance of public Protestant teachers of religion and morality. It also declares in its closing sentence that all denominations shall be equal before the law, and that there shall be no subordination of one sect or denomination to another. Nevertheless, it was not until 1833 that Massachusetts abolished the compulsory support of religion. Massachusetts also required of her governor that he “declare himself to be of the Christian religion.” She also required (Chapter VI, Article I) that her governors, lieutenant-governors, councilors, senators, and representatives should take oath that they believed the Christian religion, and had “a firm persuasion of its truth.” It is thus seen that all the thirteen original States of the Union by some sort of declaration sought to guarantee freedom of conscience, even though in most cases the constitutions were inconsistent with that declaration because of provisions which infringed the rights of a portion of the inhabitants. The next article will show the position6taken by the framers of the national Constitution, and the failure of all the States to live up to their constitutional declarations in the matter of the separation of church and state. C. M. S.