Christianity and the Government.
By T. D. Woolsey
Address of Pres. T. D. Woolsey, D. D., LL. D., before the Evangelical Alliance. The subject on which I have been requested to prepare a paper for this meeting of the Evangelical Alliance is “The Attitude of the Constitution and Government of the United States toward Christianity.” If these words were meant to include only the relations of the General Government toward Christianity, the answer would be short and easy. The Constitution of the United States is a written instrument conveying limited powers, among which is not included, either expressly or by fair interpretation, the power either to establish or to support any form of religion whatever. In fact, the first of the amendments to the Constitution, which was proposed in 1789, expressly provides “that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Hence, while it is on other accounts certain that no laws of the United States could establish or support religion in any of the States, it is equally certain from this amendment that no such legislation in a Territory not yet made a State would be constitutional. Congress could make laws touching marriage and divorce for a Territory, but it could not for a State. The control of the family relations falls entirely within the province of the immediate State power, as far as those are concerned who are under its jurisdiction. And, accordingly, no public act of Congress touching religion would have any validity within the borders of any one of the United States. Religion Independent of the General Government.
Such being the nature of the Constitution, the few points where Christianity and the General Government (not the Constitution) come into contact are of small importance. They are such as these: 1. The appointment of chaplains in the army and navy, in military and naval schools, and for the houses of Congress. 2. The recognition of Sunday as a holiday for the legislature and all employees in the civil service—a usage which in pressing cases might be violated. 3. The power of the courts to consider, on appeal, contracts for any religious or eleemosynary purpose with which it is alleged that the States have interfered—a power, be it remarked, which relates to contracts for such purposes because they are contracts, and not because they are religious. 4. The power under the general control exercised over Territories (which has been mentioned) of limiting the powers of ecclesiastical, together with other corporations. Thus, by an act of 1862, corporations and associations for charitable or religious purposes are not allowed to acquire and hold real estate in any Territory of greater value than $50,000, and all such property acquired and held by such body after this act are escheated to the United States. This statute is of the nature of statutes of mortmain, and implies not a jealousy of religion, but of overgrown religious corporations. Thus the Constitution of the United States has properly nothing whatever to do with religion. If the people were Mohammedans, under the same constitution, similar departures in minor points from the principle of absolute ignoring a particular religious faith would be possible. We pass over now to the attitude of the particular State toward the Christian religion. Here a wide field opens before us, to explore which thoroughly would require far more time than can be allowed to papers presented in this Conference. The subject may be looked at under three points of view. We may ask what were the earlier religious institutions and the feeling of the colonies before the Revolution; how the institutions and feelings were altered; what is the spirit shown in the constitutions and laws of the States within the present century; and what is the sober conviction of all denominations of Christians in the more recent times in regard to the relations of Church and State. Colonial Provisions for Churches.
All the earlier colonies—with the exception of Maryland (where the establishment of the Catholic Church would have been illegal according to English law) and of Rhode Island, where first equality of all Christian churches and faiths was a theory as well as a practice—followed the Mother Country in regarding it to be the duty of the State to set up some form of Christian worship and to recognize, nearly or remotely, some articles of Christian faith. Such was the case in most of the Puritan colonies—Plymouth, Massachusetts, Connecticut, and New Haven—and in Virginia, South Carolina, and New York, where the English Church was established. In New York, the attempt to create an establishment was made in 1793, at too late a day to produce much effect. According to Chief Justice William Smith, the Dutch colonists belonging to the Church of Holland and members of other denominations numbered fifteen to one Episcopalian, so that nowhere among the colonies was religious legislation so impolitic and so unreasonable. The Puritan colonies and Virginia supply us with the results of a nearly similar experience. They passed from the establishment of one exclusive form of church order, through toleration, to the recognition of entire religious equality. The leading Puritan colonies, however, after conceding religious freedom to all existing denominations, halted for a long time at the point of requiring all to contribute, according to general rules of taxation, to the support of their respective forms of church. Virginia passed, as if per saltum, from toleration to the voluntary system. First Established Church.
In all, the territory was divided into four parishes, where the doctrine and discipline either of the Church of England, as in Virginia, or of Congregationalism, as in the other colonies, were protected. Glebes were set apart in every parish of Virginia, and manses built. Things were left in the Puritan colonies more to the separate churches. In all, at first, other sects were not endured. In Virginia, before 1643, certain ministers from New England, sent for by some of the inhabitants, were remanded. In Massachusetts, two of the early colonists were sent back to England because they favored the worship of the Church of England. All the colonies agreed with the Mother Country in protecting Sunday by law. Attendance at church was required in Virginia, and, if I mistake not, in New England. Sectaries, especially Quakers, were frowned upon by the laws of all the colonies, and their assemblage for worship forbidden. In Virginia, baptism was so far compulsory that every person refusing to have his child baptized by a regular minister was amerced in 2,000 pounds of tobacco. In two of the New England colonies—in Massachusetts and in New Haven, until its union with Connecticut, in 1665—church members alone could be citizens with full powers. In the colonies of New England, while the ministers were held in great respect, marriage was exclusively a civil ordinance until 1692 in Massachusetts and 1694 in Connecticut. Virginia being within the diocese of the Bishop of London, the legislature of the colony had no independent legislation. It was otherwise in the New England colonies. Synods were called by advice of the legislatures, as we now call them. The synod called in this way to meet at Saybrook, in Connecticut, in 1717, prepared a confession of faith and scheme of discipline, which was accepted by the legislature as the legally enacted church order in the colony. Free Worship Established.
The toleration act of the first William and Mary was binding in all parts of the dominions of England. Under and after this act, all sectarians included within its provisions could have free worship. But toleration grew everywhere, in the colonies as in the Mother Country; and finally the actual equality of the social systems of the colonies, as well as the principles of freedom of which the Revolution was an outgrowth, carried the colonies beyond the more fixed habits of Old England. Thus, for example, in Connecticut, in 1729, two years after the first Episcopal church was founded, the laws were altered so as to exempt them from contributing to the parish worship, and the same privilege was extended to the Baptists two years afterward. In Virginia, Quakers were allowed to testify on affirmation in the eighteenth century, and even acquired the right of voting for burgesses. Still, marriages could be celebrated only according to the forms in the Prayer Book. The century was marked here, as everywhere, by increasing toleration. The important act of 1776 abolished all past acts which made religious opinions criminal or made absence from church penal. It declared that to be compelled to support a church contrary to conscientious convictions is unjust, and ordained that all dissenters should be free and exempt from all taxes and impositions for the support of the Established Church whatever. Another clause suspended the old act for supporting the clergy by parish levies, and in 1779 this act was repealed. This was followed the next year by an act disavowing all vestries and appointing overseers of the poor to discharge one of their functions. Thus the last cord was cut which tied religion to the State. As already said, the legislation in the New England colonies did not go quite so far; but made all denominations nearly equal by allowing every taxpayer to have his tax, so far as it went to the support of religion, go to the minister of his choice. Power and Spirit of the States.
Such was the progress of legislation and of public feeling influencing legislation in the principal colonies where there had been laws for the maintenance of religion. We are led to ask, next, What are the powers and what the spirit of the States in regard to religion? The answer in regard to the powers of the States is simple and brief. They lost no power in this respect by the formation of the Constitution of the United States. They could have had religious establishments and laws sanctioning religion before (some of them carried such laws and establishments over and beyond the Revolution); they could have the same now. Nothing has altered in this respect on account of the institution of a general government. A Catholic State like Mexico, and with a privileged clergy, could be admitted into the Union to-morrow. It is true that quite a number of constitutions of States lay down in their provisions the widest possible religious freedom and the most entire separation between church and State. But the power that made such constitutions could unmake them and set up others of an opposite character. The only restraint outside of the popular will in any given State would be retaliatory legislation, and the Constitution would be amended to meet the difficulty. But such a state of things as a return to the old feelings and institutions of the seventeenth and first part of the eighteenth centuries is hardly conceivable, and would be as great a wonder almost as a change in the order of Nature. It might come when ranks of society and another form of government are introduced; but certainly not before. The feeling of the country is now, and for the last generation or two has been, that the true idea of government among us involves the entire and absolute separation of Church and State; the complete liberty and exact equality of all denominations of Christians, yea, of all religionists, whether their views accord or not with the Scriptures; the freedom of all who wish to propagate any doctrine or system of religion whatever; and the inexpediency as well as the injustice of restraining any one from publishing his opinions on any religious, moral, or political subject whatever, so long as private rights are not violated. A man may inveigh openly, if he please, against this policy, and seek to change the convictions on which it is founded. But it cannot be denied that such is the condition of a vast mass of the thinking persons of the country. There are many who doubt whether we are religious, moral, and steady enough to bear our prosperity and our freedom. But probably there is almost no one—at least, among Protestants—who would dream that we are to be saved by surrendering these convictions. Such are the settled convictions of the country. If, now, one were to ask the religious men of all Protestant denominations whether they would accept of State support to religion, given in the least objectionable form—that of a general tax, to be devoted in the ratio of numbers to all denominations, or even to all Protestant ones—they would, I think, with one voice, say, No. This fixed sentiment of American Christians may, I think, be expressed under the following heads with fairness and exactness:— 1. That if it were admitted that in some forms and conditions of society the church might, without evil to itself, have a connection with the State, the various forms of faith and worship in this country calling themselves Christians could never agree or consent to any other relation except one in which all would be equal. Nay, if any one of the Protestant sects could attain to the178rank of a State religion, the voice in every one of them would be, I am convinced, most decidedly, against superiority over the rest, both as an evil to itself and as unjust toward them. Still further, that not one of them would consent to have Romanism forced upon them by State law. 2. That the absolutely voluntary system answers to our political system, and best serves the spread of religion in a country ever enlarging itself, like this. 3. That the evils of this system, such as competition of sects, increased sectarian spirit, proselyting, and encroachment upon one another’s provinces; the weakness of new churches in new settlements, consequent upon the number of sects, and the stiffness and narrowness of religious prejudices, while they are felt to be evils and great ones, are not to be compared with the impotence and deadness of exclusive State churches. 4. That our system lays a great and salutary responsibility on Christian people for spreading the gospel, and that much of the religious life of the nation expresses itself in this way. The power to act, the duty to act, the feeling that instant action is necessary to preserve and extend Christendom in the land into which emigrants of all sorts and from all parts press, are motives of immense power. 5. That no other but one voluntary system is possible, because those who have no religion and those who have suspicion or dislike of even the remotest tie between it and the State would utter such complaints as to make it believed that their rights were injured. Separation of Church and State Beneficial.
I have intended in what has been said to express the convictions of the great mass of thoughtful religious men. It ought to be said, however, that these feelings have not always existed with equal strength since the days when full religious equality began. In the earlier parts of the century, it was the opinion of many in one or two of the States that the Commonwealth ought by law to provide for the support of ministers, in such sort that all pastors of all sects in the towns could have their proportionate share in the taxes laid for that purpose. Dr. Dwight, President of Yale College, a wise and large-minded man, died in 1816, while an agitation was going on in Connecticut, which destroyed in 1818 the last faint trace of State religion in that Commonwealth. I can remember, as a boy, that he thought that the foundations of religion were giving way, and in this feeling of his there were mingled no elements of sectarianism. So Dr. Lyman Beecher, also one of his scholars, a hopeful, courageous, self-relying man. Of the crisis, he writes, being then a pastor of an important church in the State: “It was as dark a day as ever I saw. The injury to the cause of Christ, as we then supposed, was irreparable. For several days I suffered what no tongue can tell for the best thing that ever happened to the churches. It cut the churches loose from dependence on State support. It threw them wholly on their own resources and on God. They say ministers have lost their influence; the fact is, they have gained. By voluntary efforts, societies, missions, and revivals, they exert a deeper influence than ever they could by queues, and shoe buckles, and cocked hats, and gold-headed canes.” While it provokes a smile to think that so small a change as that from the parish laws then existing to perfect freedom in supporting public worship should have awakened great alarms, we admire those strong religious convictions and energies which very soon converted the apprehended curse into a blessing. For that it was a blessing to religion all unite in believing, and all facts show. Religion Outside the State but Within the Law.
While thus religion is entirely divorced from the State, it is not altogether outside of law. Worship in church organizations needs houses of worship that are common property; the minister must be supported out of a fund or by a contribution generally stipulated beforehand; subsidiary religious institutions, such as cemeteries and parish schools, need special funds. Thus the rights of property and of contract, to which we may add that of protection against disturbance of worship, and others, come under the control of public laws. Again, there is a jealousy of large religious corporations and of ministers representing them, and thus another class of laws may be called forth, and still again the State may judge that certain truths of natural or revealed religion in their separate forms, independently of any church or ecclesiastical power, are necessary for the well-being of the civil community, and may ingraft them in some shape into its constitution. I shall devote a few words to each of these points, beginning with the last, and referring those who wish to look at them more at large to Dr. Joseph P. Thompson’s “Church and State in the United States of America,” published in Berlin in the German language a few months since, and more recently in English in this country. I. While most of the States say nothing of religion, even of what is called natural religion, in their constitutions, several withhold civil offices from atheists, from disbelievers in future rewards and punishments, and even from disbelievers in the Christian religion (Mississippi, Tennessee, Arkansas, North Carolina, Pennsylvania, and perhaps others). One, a few years since, disqualified Jews from holding civil office. But, if I am not in error, every new revision obliterates all these old recognitions of religious truth from the constitutions as being a dead letter, or as inconsistent with the political equality of persons against whom no criminal charge can be brought. II. In many constitutions a jealousy is shown of organized religious power, and precautions are taken against the disturbance of religious equality. Sixteen constitutions at least declare, in different forms of words, that no preference shall be given to any religious establishment or mode of worship. In others, the Legislature is restrained from passing any law requiring or authorizing any religious society, or the people of any district, to levy any tax for the repair of any house of public worship, or the support of any church or ministry. Others, again, forbid the Legislatures to compel any one to attend, erect, or support any place of religious worship, or pay tithes, taxes, or other rates for the support of any minister of the gospel. In one or two States, no money can be constitutionally appropriated to any religious society or theological or religious seminary (Michigan, Wisconsin, Minnesota). The constitutions of two States provide that no gift or devise to any ecclesiastical person as such shall be valid (Maryland, Missouri). So also one State limits the amount of real property which a church, parsonage, or burial-ground can hold, to five acres. Again, the amount of income from real and personal property which the trustees of any religious denomination can acquire and hold is limited by an act of New York, of 1813, to $3,000 per annum. A few exceptions were made to the operation of this act in the act itself, and in 1863 a general exception was made in favor of Roman Catholic churches or congregations, excluding church buildings, parsonages, schools, with land for the same, and burying-places from the provisions of this act, but otherwise conforming to the earlier law. It is probable that such limitations of the power of holding property will become extensive through the States, owing partly to jealousy of the Roman Catholics, partly to a still less defensible jealousy of all religious organized power, partly to that regard for the right of family inheritance which has introduced the principle of the Roman querela in officio testamenti into the legislation of France and Prussia. An unjust discrimination is made or was made in the earlier constitutions of the States—all of them Southern—against clergymen or ministers of the gospel. They were made incapable of serving in the Legislature, on the ground that such service calls them away from their proper duties. This disqualification of old standing received a sarcastic rebuke from Dr. Witherspoon, president of Nassau Hall. He suggested an amendment to the constitution of the State: “That, if the clergyman should be deprived of his clerical character by those who invested him with it, on account, for instance, of cursing and swearing, drunkenness or uncleanness, he should thereupon be fully restored to all the privileges of a free citizen, and become eligible to the Senate or House of Representatives, and be treated with all the respect due to his brethren and the other members of the assembly.”—(Works, IV. 423.) With a few such, for the most part not unreasonable, restrictions, the States, by their laws and courts, protect the outward forms of religion. Churches or relief societies can hold property, make contracts with ministers, exercise discipline according to the rules of the denomination, in short, do everything necessary for the purposes for which outward and associated religion is necessary and actually exists—in all this, the courts protect, interpret, restrain, and do all acts which the nature of such co-operation requires. They will enforce the payment of salaries, prevent the members of a church, it may be, from transferring the church property to another denomination, protect the right of church censures, recognize even the authority of bishops and of presbyteries within their spheres, and the like. It is unnecessary to enlarge here, although many interesting cases have come up; for the general theory of the relations of law and equity to cases that may arise in the affairs of religious bodies seems to be tolerably clear. Having looked briefly at the main points of our subject, we close with the inquiry whether the United States can be called a Christian nation. Can a State or constitution be called a Christian one, which separates religious interest as far as possible from civil interests, although there may be a few vestiges of public respect for religion, such as chaplains of Legislatures, fasts and thanksgivings appointed by public authority, religious instruction in the army, navy, public prisons, hospitals, and the like? Or in other words, when a community, believing that religion in an independent sphere becomes purer and pervasive; that perfect equality between denominations is the only just and peaceful policy; that Christ’s kingdom will grow and stand in its true qualities and in its power, when unfettered by State laws; provides for such a relation between State and church or churches—in its ground, law or constitution does the instrument of Government, or the State thus created, give origin to an unchristian State? We deny this. It is no more so than an academy of science is unchristian without a creed, or a mercantile firm without daily prayers in the counting-house. In what sense can this country, then, be called a Christian country? In this sense, certainly, that the vast majority of the people believe in Christ and the gospel, that Christian influences are universal, that our civilization and intellectual culture are built on that foundation, and that the institutions are so adjusted as in the opinion of almost all Christians to furnish the best hope for spreading and carrying down to posterity our faith and our morality. But can Christianity be said to be in any sense the law of the land? So Daniel Webster argued in the great Girard case of 1844. He says: “General, tolerant Christianity, independent of sects and parties, that Christianity to which the sword and the faggot are unknown, is the law of the land,” and he refers to a judgment of the highest court of Pennsylvania—the State where the case had its seat—that general Christianity is, and always has been, the common law of that Government, whether in its colonial or its State condition, and the Constitution of that Commonwealth, framed in 1838, declares that no person, acknowledging the being of a God, and a future state of rewards and punishments, shall be disqualified from office, thereby implying that those who do thus deny may be disqualified. But we fail to see the cogency of Mr. Webster’s argument. At the most, theism is sanctioned by such constitutional provisions as that which is cited. As for general tolerant Christianity, it is protected in its outward expression of worship, its morality (except in the matter of divorce, where most of the States are exceedingly loose) is honored. Some few customs have mingled themselves up with public life; but how can it be called the law of the land? What points of contact are there between the law and the abstract conception of Christianity which the great advocate speaks of, unless it may be in the matter of laws against blasphemy? Where they exist, what change would be needed? If the people should all turn Mohammedans or Mormons, what material change would be needed in the laws, except in those relating to the marriage union and to intestate estates? The true statement, then, seems to be that, Christianity being the religion of the mass of the people, its usages and ideas cannot be separated from legislation by a mathematical line. Sunday, for instance, must differ from other days in the eye of the law; but the law has as little to do with Christianity and Christianity with the law as possible.