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Subject Area: Law
Topic: The American Revolution and Constitution

§ 62.: Church and State—Historical synopsis.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 62.

Church and State—Historical synopsis.—

Religious liberty, in all its completeness, is a plant of American growth. In no other country, and in no preceding age, was there anything more than religious toleration; and even toleration was not a common experience. Everywhere, the State was made the instrument for the propagation of the doctrines of some one religious sect, and all others were either directly prohibited, or so greatly discriminated against in the bestowal of State patronage, as to amount, in effect, to an actual prohibition. On the other hand, the State would secure the support of the church in the enforcement of its mandates. Before the American era, the gradual development of the human soul, under the workings of the forces of civilization, had long since done away with physical torture. Heretics were not burned at the stake, or put to the rack; but the same cruel intolerance exacted the creation of social and political distinctions, which were equally effective in oppressing those who differed in their religious faith with the majority. Protestant England and Germany oppressed the Catholics, and Catholic France and Italy oppressed the Protestants, while the infidel received mercy and toleration at the hands of neither. Most of the immigrants to the American colonies were refugees from religious oppression, driven to the wilds of America, in order to worship the God of the Universe according to the dictates of their conscience. The Puritans of New England, the Quakers of Pennsylvania, the English Catholics of Maryland and the Huguenots of the Carolinas, sought on this continent that religious liberty which was not to be found in Europe. I should not say “religious liberty,” for that is not what they sought. They desired only to be freed from the restraint of an intolerant and imposing majority. They desired only to settle in a country where the adherents of their peculiar creed could control the affairs of State. Notwithstanding their sad experience in the old world, when they settled in America, they became as intolerant of dissenters from the faith of the majority, as their enemies had been towards them. Church and State were not yet separate. Each colony was dominated by some sect, and the others fared badly. The performance of religious duties was enforced by the institution of statutory penalties. The clergyman, particularly of New England, was not only the shepherd of the soul, but he was likewise, in some sense, a magistrate. “The heedless one who absented himself from the preaching on a Sabbath was hunted up by the tithing man, was admonished severely, and, if he still persisted in his evil ways, was fined, exposed in the stocks or imprisoned in the cage. To sit patiently on the rough board seats, while the preacher turned the hour-glass for the third time, and with his voice husky from shouting, and the sweat pouring in streams down his face, went on for an hour or more, was a delectable privilege. In such a community the authority of the reverend man was almost supreme. To speak disrespectfully concerning him, to jeer at his sermons, or to laugh at his odd ways, was sure to bring down on the offender a heavy fine.”1 The religious liberty of the colonial period meant nothing more than freedom from religious restraint for the majority, while the minority suffered as much persecution as the immigrants had themselves suffered in Europe, a striking illustration of the accuracy of the doctrine that there are no worse oppressors than the oppressed; when they have in turn become the ruling class. It is no exaggerated view to take of the probabilities, that the grand establishment of religious liberty of to-day would not have been attained, at least in the present age, if the rapid increase in the number of religious sects, each one of which was predominant in one or more of the colonies, had not militated against the successful union of the colonies into one common country. “In some of the States, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, Congregationalists; in others, Quakers, and in others, again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power.”1 Congress was therefore denied by the first amendment to the Constitution of the United States the power to make any law respecting an establishment of religion or prohibiting the free exercise thereof. “Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and Protestant, the Calvinist and the Armenian, the Jew and the infidel, may sit down at the common table of the national councils, without any inquisition into their faith or mode of worship.”2

Proceeding from this limitation upon the power of the national government to regulate religion, there was ultimately incorporated into the constitutions of almost all of the States a prohibition of all State interference in matters of religion; thus laying the foundation for that development of a complete and universal religious liberty, a liberty enjoyed alike by all, whatever may be their faith or creed. Thus and then, for the first time in the history of the world, was there a complete divorce of church and State. But even with the enactment of the constitutional provisions, religious liberty was not assured to all. Legal discriminations, on account of religious opinions, exist in some of the States to the present day, and public opinion in most American communities is still in a high degree intolerant.3 The complete abrogation of all State interference in matters of religion is of slow growth, and can only be attained with the growth of public opinion.

[1]McMaster’s Hist. of People of U. S., vol. I., p. 31.

[1]Story on the Constitution, § 1879.

[2]Story on Constitution, § 1879.

[3]See post, § 67.