The Constitution of the United States has these provisions:
“No religious test shall ever be required as a qualification to any office or public trust under the United States.”—Art. VI.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”—First Amendment.
It is thus the case that, as originally framed, the Constitution simply provided that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” but did not, in terms, prohibit Congress from erecting a state religion or interfering with the free exercise of religion otherwise than as regards office. The First Amendment was therefore adopted, in order that, as amended, the Constitution should forbid Congress from intermeddling in any way whatever with religious matters; and it has hence passed into the general understanding that the government of the United States has no religious character or powers whatsoever, but is purely a secular organization, contrived and devised for purely secular ends. As stated in the eleventh article of the treaty of Jan. 3, 1797, between the United States and Tripoli, “the government of the United States of America is not in any sense founded on the Christian religion” (Rev. Stats. U. S., “Treaties,” p. 756).
It being thus the case that religious liberty, as we now understand it, did not spring full-orbed and complete into existence in the United States, it may be of interest to trace the stages of its development. The provision that “Congress shall make no law respecting an establishment of religion” owes its immediate origin to the representations of the conventions of a number of the States upon adopting the Constitution of the United States (1 Stats. 97), such States being New Hampshire, New York, and Virginia (4
Journ. Cong., 1782-8, App. pp. 52, 53, 55). Back of these representations lay a first cause which can only be understood by a reference to the condition of the colonies at the outbreak of the Revolution. From A View of the Constitution of the British Colonies in North America and the West Indies, at the time the Civil War broke out on the Continent of America—a work published in London in 1783 by Anthony Stokes (a loyalist Welshman, who, as a barrister in the British West Indies from 1762 to 1769, and the royal Chief-Justice of Georgia from 1769 to 1783, had peculiar opportunities of becoming conversant with his topic)—we learn that the Church of England was established by law in most of the colonies in 1776. The View says: “The clergy in America do not receive tithes, but in most of the colonies before the civil war (except the New England provinces, where the Independents had the upper hand) an Act of Assembly was made to divide the colony into parishes, and to establish religious worship therein according to the rites and ceremonies of the Church of England; and also to raise a yearly salary for the support of each parochial minister” (p. 199). With the exception of South Carolina, our author does not specify by name the colonies in which this system obtained, but from other sources we have that information. The charter of New Hampshire provided “that liberty of conscience shall be allowed to all Protestants, and that such especially as shall be conformable to the rites of the Church of England shall be particularly countenanced and encouraged,” which substantial establishment existed in that colony up to the Revolution
(Town of Pawlet v. Clark, 9 Cr. 292). The first constitution of New York, that of April 20, 1777, recognizes a like establishment by providing for the abrogation of “all such parts of the common and statute law, and acts of Assembly, as establish any denomination of Christians or their ministers.” Dr. David Ramsay, the contemporary historian of the Revolution, says: “In Connecticut all persons were obliged to contribute to the support of the church as well as the commonwealth.… The Congregational churches were adopted and established by law” (1 Hist. U. S., p. 150); also: “The Church of England was incorporated simultaneously with the first settlement of Virginia, and in the lapse of time it also became the established religion of Maryland. In both these provinces, long before the American Revolution, that church possessed a legal pre-eminence, and was maintained at the expense not only of its own members but of all other denominations” (id. p. 220). As to the establishment of the Church of England in Virginia, see also Terrett v. Taylor, 9 Cr. 43. From art. 34 of the first constitution of North Carolina, that of Dec. 18, 1776, which inhibits taxation “for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry,” it is inferrible that a like establishment existed in that colony. In South Carolina Chief-Justice Stokes mentions the Church of England as established by law (View, p. 199), and the constitution of that State of March 19, 1778, secured “the churches, chapels, parsonages, glebes, and all other property now belonging to any societies of the Church of England, or any
other religious societies” (art. 38). In Georgia the Church of England was established by colonial statute of March 15, 1758 (Watkins’ Dig. 52). In Massachusetts a colonial statute of 1716 established a compulsory religious establishment which remained up to the framing of the State constitution in 1780, the Assembly providing all towns declining to do so for themselves with “a minister qualified as by law is provided”—namely, “an able, learned, orthodox minister, of good conversation”—and imposing taxes for his support (Chalmers’ Colonial Opinions, p. 49; I Ramsay, Hist. U. S., p. 150).
From the foregoing it will be gathered that at the outbreak of the American Revolution some form of church establishment ordained by law was familiar to the people of Massachusetts, Connecticut, New Hampshire, New York, Maryland, Virginia, North Carolina, South Carolina, and Georgia. “In Rhode Island, Pennsylvania, Delaware, and New Jersey there never was any established religion” (I Ramsay, Hist. U. S., p. 232). One of the incidents of the religious establishments in the colonies where they existed was that the clergy thereunder were governmental appointees. In Massachusetts, under the act of 1716, the Assembly settled ministers in the unprovided towns; in Maryland the proprietary had the advowsons (Chalm. Col. Op., 42); and in the provincial establishments or king’s governments, as New Hampshire, New York, Virginia, North Carolina, South Carolina, and Georgia, the royal governor had the right of collation or appointment (Stokes’ View, p. 199). Another incident was the church rates or taxes, above referred to.
At the outbreak of the Revolution, then, two-thirds of the colonies were face to face with a religion established or favored by law; with a clergy appointed by government; and a general taxation to uphold one and maintain the other. The dissatisfaction thus engendered is best evidenced by the care which the people of the colonies, then States, took, in framing their constitutions, to forbid the continuance of such a system where it then existed, or to prevent its adoption where it was not as yet known.