Front Page Titles (by Subject) CHAPTER VII.: RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN. - The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History
Return to Title Page for The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER VII.: RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN. - Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History 
The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History, by Georg Jellinek. Authorized translation from the German by Max Farrand, revised by the Author (New York: Henry Holt and Co., 1901).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.1 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.”2
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.3 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,4 which later, greatly enlarged and modified,5 was delivered to Parliament with the request that it be laid before the entire English people for signature.6 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.7 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.8
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.9
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.10
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.11 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.12 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.”13
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.14 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.15 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 1663.16 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.17 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.18 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.19 It was permitted every seven persons of any religion to form a church or communion of faith.20 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.21 All violence toward any religious assembly was strictly prohibited.22 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 1665.23 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,24 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,25 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.26 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;27 and Georgia was given a similar law in 1732 by George II.28
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,29 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.30
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.31
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.
[1.]Weingarten, Die Revolutionskirchen Englands, p. 21.
[2.]Ibid., p. 25.
[3.]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.”
[4.]First reproduced in Gardiner, History of the Great Civil War, III, London, 1891, pp. 607–609.
[5.]The final text in Gardiner, Constitutional Documents of the Purilan Revolution, Oxford, 1889, pp. 270–282.
[6.]Gardiner, History, III, p. 568.
[7.]“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.
[8.]Cf. the text in Gardiner, History, p. 609.
[9.]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.
[10.]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”.
[11.]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.
[12.]Samuel Greene Arnold, History of the State of Rhode Island, I, New York, 1859, p. 103.
[13.]Arnold, p. 124.
[14.]Fundamental Orders of Connecticut, Poore, I, p. 249.
[15.]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.
[16.]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.
[17.]“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.
[18.]Bancroft, I, p. 193, E. Lloyd Harris, Church and State in the Maryland Colony. Inaugural-Dissertation. Heidelberg, 1894, p. 26 et seq.
[19.]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.
[20.]Art. 97. Poore, II, pp. 1406, 1407.
[21.]Art. 101. Ibid.
[22.]Arts. 102, 106. Ibid.
[23.]C. Ellis Stevens, Sources of the Constitution of the United States, New York, 1894, p. 217.
[24.]Laws agreed upon in England, Art. XXXV. Poore, II, p. 1526.
[25.]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.
[26.]Art. VIII, section 3.
[27.]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.
[28.]Poore, I, p. 375.
[29.]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 Osnabriick, 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 II, §§ I et seq.).
[30.]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 Rüttiman, Kirche and Staal in Nordamerika (1871).
[31.]“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.