Church and State in the U.S. (Legal History): Colonial Period (1607-1776)

Thomas Hanley & Howard Bromberg. New Catholic Encyclopedia Supplement 2010. Editor: Robert L Fastiggi. Volume 1. Detroit: Gale, 2010.

The U.S. law of freedom of religion has evolved from many historical circumstances and often conflicting ideologies. The church-state arrangements of the colonial period were to require a new pattern when full union was finally attained. By a process of legislation and judicial decisions, continual adjustments were made to accommodate the needs and to meet the demands of a nation becoming ever more pluralistic in religion. The study of church and state in American law indicates that there is wide latitude for the solution of conflicts and problems still to come.

Church-state understandings in the United States had their origins in the colonial period between 1607 and 1776. The law of this period reflected a growing spirit of freedom and grew out of the colonists’ adjustment to New World opportunities. The colonists had always to reckon with the Church of England and the religious policy of the mother country. Great diversity came out of the experience in the three major regions, the Southern, Middle, and New England Colonies, which were to some extent distinct cultural groups. Certain legal landmarks in each of the colonies of these regions will be pointed out and an account taken of the forces behind them. Restrictions on dissenters from the varying versions of establishment had great implications even for Catholics, and these will be noted.

Virginia

The Church of England was officially maintained in Virginia from the very beginning. The 1606 Virginia Company Charter urged the colony to foster Christianity “according to the rites and doctrine of the Church of England.” The Royal Charter of 1624, in the era of Archbishop William LAUD, carried forward the design of Anglicanism without regard for dissenters. Novelties of doctrine were opposed, and the assembly passed laws applying Canon Law. The colonial government regulated the building of chapels, appointment of ministers, and ritual. It was in this environment that the first Lord Baltimore unsuccessfully attempted a settlement and saw the need of locating elsewhere. Catholics were soon disfranchised. Comprehensive legislation on these matters was passed in 1642.

The seventeenth century was marked by a successful move toward local vestry control of parishes. This involved conflict with the governor. Following the lead of a predecessor, William Berkeley (1605-1677) insisted on examining the credentials of ministers to make certain that they had the approval of the bishop of London. However, he won the power of presentation of ministers only in Jamestown; elsewhere, parish vestries, in the hands of the planter gentry, controlled appointments.

Puritans were unable seriously to modify this order of things, even during the commonwealth period. When Berkeley returned as governor in 1661, he made further provisions for the enforcement of Anglican liturgy; legal illegitimacy was imputed to children born of parents outside this rite of matrimony. Fines were levied on those failing to meet church obligations, and assessments were collected for support of the church. Quakers, Puritans, and Catholics were unwelcome during this era. Giles Brent (1600-1672), a wealthy Catholic planter, as an exception held a seat in the assembly.

The Declaration of Right 1689 compelled Virginia to give legal status to congregations that were not strictly in the Anglican tradition. Huguenots and German Lutherans organized churches between 1700 and 1730 with legal incorporation. The Hanover Presbytery legally placed itself under the Philadelphia Synod. Dissenters in time established their churches in this manner, but their practice of having itinerant preachers created legal difficulties that had to be remedied by other legislation. Francis Makemie first won a certificate to preach as a Presbyterian. In time, itinerant preachers came to enjoy the same legal rights, and Samuel Davies (1723-1761) among Baptists played a leading role in widening practices of toleration when his appeal to the royal government was upheld.

Methodists and Baptists, however, experienced de facto intolerance at the hands of local officials. Instances of imprisonment for alleged disturbance of peace and verbal attacks on the Church of England shortly before the Revolution created a rallying point for opposition to establishment. General taxes on nonconformists for the support of the Church of England now became a major issue. The laity from within the Church of England indirectly supported this trend when they opposed what was called the “Parson’s Cause.” They resented the clergy’s claim to greater income in the face of losses from fluctuation in tobacco prices. They now became militant in the traditional cause against a resident bishop who would claim more taxes and the very ecclesiastical power that the lay vestries had long retained. It was only with the Revolution, however, that the new form of the Protestant Episcopal Church brought what the laity wanted. Other denominations likewise had their remaining disabilities removed by this turn of events.

Carolinas

The Church of England was established in the Carolinas, even though dissenters soon constituted a majority of the inhabitants. The ecclesiastical law of England was applied by the Charter of 1663, and the lord proprietors soon made declarations in which religious freedom was promised. King Charles II, however, gave them discretionary power in limiting it in the interest of the establishment and civil order.

The Fundamental Constitution of 1670, attributed to John Locke, showed greater toleration while retaining establishment. All, save atheists, were allowed, although tax benefits went only to the Church of England. The freedom granted to non-Christians was intended to aid the conversion of the native peoples. A law of 1696 specifically excluded Catholics from full citizenship and religious freedom. This occurred during a period of Quaker influence; a governor of that faith took office in 1694. As in Virginia, Protestant dissenters struggled for full freedom in the eighteenth century in the face of a more firmly established Church of England. The assembly began to supervise them strictly, and they were for a time disfranchised by a law of 1704. Assemblymen had to conform to the Anglican communion ritual. Dissenting ministers were not recognized and were excluded from congregations petitioning them. Joseph Boone, however, appealed successfully to the Crown and the Fundamental Constitution. Particularly in North Carolina, which became a separate colony in 1691, Quakers fought against the established church and the Vestry Act of 1704. It was some time before they were relieved of disabilities implied in oath requirements. Marriages before non-Anglican clergymen were not legal in North Carolina until 1766.

Georgia

The Charter of George II in 1732 assured all inhabitants except Catholics “a free exercise of Religion,” and Quakers were allowed to substitute an affirmation for the usual oaths. The trustees in their “Design” encouraged European Protestant settlers and later offered material support to clergy who would minister to new communities. When the colony was put under direct royal control in 1752, formal establishment of the Church of England came about. Its parishes received support and stipends for their clergy.

Massachusetts

The founders of Massachusetts Bay brought with them the belief that the true church was the individual congregation. A group of such churches could, however, be viewed collectively as within the Church of England. The New Englanders, following the teaching of William Ames (1576-1633) and in opposition to Thomas Cartwirght, rejected the idea that the congregation existed by authority of the Church of England.

A second principle produced what has been called a “Bible State,” or Theocracy, in Massachusetts. The Hebraic concept of covenant as a relationship between the soul and God found legal application. Persons who enjoyed such a relationship were the only full citizens, or saints. Their status was verified by the elders of the local congregation. Such covenanted souls and congregations collectively formed a covenanted state. The civil magistrates and judges ruled as the counterpart of the congregation elders. While clergymen were not civil officials, they were their authentic guides in fashioning laws, which all assumed would conform to the BIBLE. Such godly magistrates were guardians both of public morals and church discipline. Because both religious and civil authority derived immediately from the rule of divine revelation in the Bible, the commonwealth was properly called a theocracy.

Using to advantage the vague language of the Massachusetts Bay Company Charter, the founders, through the general court, limited control and full benefits to settlers “such as are members of some of the Churches.” Four years later, in 1635, such churches had to be approved by the general court. Within three years, assessments were levied for the support of these congregations. Fines were soon imposed for nonattendance, and in 1646 the Act Against Heresy listed punishments that would be meted out for denial of justification, immortality of the soul, and other orthodox beliefs.

Adjustment of authority was made within this framework of law. The clergy, as learned divines, were earnestly consulted by all magistrates to see that the actions of the latter conformed to the directives of Holy Scripture. Nathaniel Ward (1578-1652) wrote a code of laws for this purpose in 1641. Controversy over the manner of forming and approving true congregational churches  led to the Cambridge Platform, and a general court act of 1651 put down the Westminster confession of Faith as a criterion of orthodoxy. Thus an aristocracy of magistrates and church elders was preserved by the balance of authority that these prescriptions established.

Judicial decisions fell harshly upon dissenters from these laws. The magistrates expelled Anne Hutchinson (1591-1643) for the heresy of antinomianism and Roger Willliams for his notion of separation of church and state. Quakers were executed when they defied decrees of expulsion, and the Salem witchcraft trials at the end of the seventeenth century were the result of this legal system. Catholics were singled out by specific laws as being even more unwelcome than Quakers. The Christmas festival was forbidden as a manifestation of popery.

Reaction against such harshness, the pressures of a growing secularization and religious diversity, forced concessions. The half-way covenant as a law relaxed requirements for church membership and full citizenship. The strict rule of baptism for children born only of parents in full communion no longer held. Forms of “communion in spirit” were applied as norms. Anglicans were increasingly receiving the Lord’s Supper, and in time their churches were legally recognized.

Yet Congregationalism combined with other denominations in stopping the spread and influence of these churchmen, lest an Anglican establishment be imposed on New England. The Declaration of Rights of 1689 urged Massachusetts to extend freedom to all Christians except Catholics. Financial support of Congregationalism became the bone of contention. The Five Mile Act of 1727 allowed Anglicans to apply their assessment to one of their churches or ministers provided they were within that distance. The eighteenth century saw the gradual extension of this practice, even to the benefit of Anabaptists. Through the Revolution, incidental inequities were a continual object of attack by Baptists, Presbyterians, and others.

The Plymouth settlement, founded before Massachusetts and joined to it in 1691, did not strive so strenuously for theocracy. The Mayflower Compact made no specific provision for theocracy, although Puritans predominated in drafting it and applying it to civil life. Laws gave civil officials power to keep peace in the churches and promote attendance at worship without specifying any denomination. Financial support of some clergy was enforced. In 1671 freemen came to be limited to those of orthodox belief. Quakers were unwelcome, as were Catholics, and oaths created a problem for both groups.

Connecticut

New Haven, which was joined to Connecticut in 1662, was a pure theocracy. Under the leadership of John Davenport (1597-c. 1669) and the Fundamental Agreement of 1639, unorthodox views were suppressed. Those who were not Congregational Church members had to apply for a certificate if they wished to remain in the colony, and even then they were without full citizenship. All settlers were put under the government of magistrates, who were pillars of the church. These men chose a governor who had a similar standing.

Connecticut was not so strict a theocracy. Thomas Hooker, who formed its principles, disagreed with John Winthrop’s (c. 1588-1649) aristocratic theory of magistracy. Church membership was not a requirement for citizenship. The assembly was therefore more open. The governor, possessed of less authority than in Massachusetts, was required to have church standing. The substance of theocracy was found in the authority of the assembly over church discipline. It chartered Congregational and all other churches, and in disputes it might sit as a quasi-ecclesiastical court. After 1656 Connecticut was guided by Massachusetts’s Half-Way Covenant and its own Saybrook Platform of 1708 in relaxing requirements for congregations and membership. Assessments of all for the support of the official Congregational Church prevailed throughout the period.

The religious homogeneity of Connecticut in the seventeenth century had minimized the difficulty of dissent, but this condition of homogeneity soon changed. However, Quakers, once viewed as unwelcome, now found some protection. A law of 1708 made further concessions to liberty when Anglican churches were authorized. In the Act of 1727 to protect dissenters, one provision allowed Anglicans to apply their religious assessment to their own ministers and churches. After 1750, Presbyterians and others were given a similar benefit.

New Hampshire

When John Wheelwright (c. 1592-1679) was banished from Massachusetts, he successfully established the foundations of what would become in 1679 the independent colony of New Hampshire. The Agreement of 1639 put down no religious requirement for citizenship, officeholding, and voting. Massachusetts agreed to this and admitted New Hampshire delegates to its general court. At the same time, New Hampshire early on passed laws of assessment for the support of the clergy without specifying to what denomination they must belong.

Beginning in 1680, steps were taken to make a royal colony of New Hampshire. Past practices continued. Except for a few intervals before 1700, the mother country effectively formed a policy that protected, and at times favored, the Church of England. Freedom of Protestants was decreed, and dissenter churches were not opposed.

Rhode Island

The only truly radical departure from the prevailing conviction that church and state should be united was made by Rhode Island. Roger Williams, its founder and guiding genius, argued against Massachusetts laws within the framework of Calvinistic theology. Rhode Island’s first charter contained only customary statements on religious freedom. A fundamental code was soon drawn up that denied civil magistrates authority over spiritual matters. Persons of all religious persuasions were granted citizenship, and no levy of taxes for the support of any church was permitted. In his oversimplified analysis, the church must stand before the law as any other corporation, free of any complicated characteristics that might put it beyond the nation or with a purely spiritual existence. Williams’s own adjustments of theory to practice were confined to the task of dealing with Quakers and others where freedom of conscience might disrupt public order. In 1662 Charles II approved the original charter. The eighteenth century saw departures from the full measure of toleration. In 1729 Roman Catholics were disfranchised. Jews were disbarred on religious grounds from public office.

New York

The 1638 Articles of Colonization made it clear that Dutch companies were responsible for promoting the Dutch Reformed religion. This arrangement, however, never resulted in a very strict establishment, and dissenters were generally respected.

These conditions continued to a great extent when the Catholic Duke of York, later King James II, took over control with his laws of 1665. Liberty of conscience was specifically granted, and the Catholic governor, Thomas Dongan (1634-1715), reasserted more forcefully in 1683 the provision for religious freedom for Christians. An attempt was made in 1693 to compel appointment of Anglican ministers only, but these efforts failed. Dissenting congregations and their clergy were recognized. The Presbyterian Francis Makemie and others were allowed to preach throughout the province.

Concessions were made to Quakers regarding oath taking in 1734, but no concessions ever clearly freed Moravians. Catholics were specifically denied benefits of toleration, and instructions from the Crown and the governors reinforced this measure.

New Jersey

Both East and West Jersey came under the force of New York law between 1702 and 1738. Before this time, official “Concessions” of the lord proprietors gave toleration to Scotch Presbyterians, Quakers, and Dutch Reformed, and in 1693 to other Christians, except Catholics. No full establishment was found after 1738, when New Jersey became a royal colony.

Pennsylvania

The proprietary form of colonial charter provided the foundation upon which Pennsylvania developed, free of an established religion. As an exercise of personal power, Charles II repaid an old debt of money, services, and friendship to Admiral William Penn (1621-1670) through the admiral’s son of the same name. Young William Penn’s deep involvement with the Quakers, who were laboring under legal disabilities, made it natural to seek in the charter issued to him in 1681 a remedy for his religious troubles. Its only reference to the Church of England was an assurance to its adherents that they might freely petition and receive preachers.

The year following the issue of the charter brought a fuller public statement of the colony’s legal structure. In keeping with the “Holy Experiment” characterization he had given the colony, Penn’s Frame of Government clearly acknowledged God as the author and end of society. Liberty was assured to any believer in God. The Sabbath and Scriptures were to be honored. When Penn’s first colonial assembly met, representatives saw fit to require that voters and officeholders profess Christianity. No reservations were made in reference to Roman Catholics.

In 1693 King William III (1650-1702) and Queen Mary II (1662-1694) annulled all the Pennsylvania laws, but the colonial assembly immediately passed them anew. Apparently, their legality needed to be established, since the legality of Stuart provisions may have been questioned. Certainly the broad provision for freedom in Pennsylvania would have been narrowed if the Declaration of Rights of 1689 had been applied to it. As it was, public worship, even by Roman Catholics, continued all through the colonial period. Unlike practices in England, one need not take the oath of supremacy nor perform prescribed acts of worship in the Church of England.

The oath, however, was required in connection with voting and officeholding in Pennsylvania. William Penn failed in his own efforts to relieve Americans of this burden, particularly to the consciences of Quakers and Catholics. Under pressure, the first assembly passed in 1696 “A New Act of Settlement,” which practically had the effect of excluding many Quakers and all Catholics from voting and holding public office. It was not until 1725 that Quakers obtained relief, when the Crown finally ceased to disallow action in their favor by the assembly. Benefits of this law were extended to other societies in 1743 and in 1772 to any person who objected to the practice of oaths. Oaths and declarations against Catholic doctrines were demanded of immigrants and do not seem to have been removed during the colonial period, although they may not have been applied consistently.

Delaware

A Swedish Lutheran Church was established in the period before the Dutch attached the colony of Delaware to New Netherlands in 1663. Initially part of Pennsylvania when English rule began, it continued after 1701 as a separate colony with toleration similar to that in Pennsylvania. Oaths in particular were mitigated to the advantage of immigrants and others during the next twenty years. Church property rights were recognized. Neither benefit, however, came to Catholics.

Maryland

The Maryland Charter of 1634 freed George Calvert, First Lord Baltimore (c. 1579-1632), and his colonists from the requirements of the Church of England, though George Calvert died shortly before the Charter was sealed. The grant was given to his son, Cecil Calvert, Second Lord Baltimore (1605-1675). The general references to religion in the charter and his own instructions secured freedom of conscience for all—probably including non-Christians. The Maryland Toleration Act in the ordinance of 1639 made this freedom even more certain. The act of 1649 gave special force to the Christian’s claim to toleration. This legislation was repealed in 1654 when the Puritans came to power, but was restored again when Cecil Calvert recovered full control as proprietor in 1660.

Cecil Calvert had two legal controversies with the Jesuits during this early period of the colony. He refused to exempt laymen on church property from civil law and its courts. A Jesuit title to land received from the native peoples was successfully challenged, and legislation against mortmain followed.

An Act for the Establishment of the Protestant Religion was passed by the assembly following the overthrow of the Stuarts by William and Mary. Catholic proprietary government was thereafter illegal. In 1700 taxes for support of the Church of England were voted. Benedict Leonard Calvert (1679-1715) won back proprietary rights after he had conformed to the Church of England in 1714.

The governor’s powers of presentation and induction of clergy were a source of continual controversy. Attempts at obtaining a resident bishop, or a permanent commissary to supervise the clergy, failed. As late as 1769, the governor prevented the clergy of the Church of England from holding a convention to deal with their affairs.

While concessions to Quakers and other Protestants came in the eighteenth century, penalties continued to be imposed on Catholics. There was an Act to Prevent the Growth of Popery that ruled out public officeholding and public worship. Catholic immigrants found obstacles in coming to Maryland, and possession by a Catholic widow of children by a Protestant husband was declared unlawful.