2. The Political Crisis and Its Significance for the Proclamation of Religious Freedom of Conscience. The First Sounds of Freedom. The Revolution in the Views of Congress and Its Causes. New Constitutions and the Paragraph on Religious Freedom of Conscience. The Limitation of Civil Rights of Catholics. The Federal Constitution and the Abolition of the Religious Test. Discussions on This at Conventions. The Significance of the Paragraph in the Federal Constitution. The Separation of Church and State

The population of the thirteen colonies, which would subsequently form the confederation of the United States, before the beginning of the war for independence was overwhelmingly Protestant. The Catholic population comprised but a trifling fraction, numbering only 25,000, and lived predominantly in Maryland. Thanks to its weakness, it, as has been said above, constantly fell victim to persecution and harassment by Protestants, who at the same time did not cease to wage war among themselves over differences in religious doctrine. The enmity arising from religious differences was so entrenched and intense that it could not be terminated simply by the consciousness of the inalienability of human rights to freedom of religious conscience, since on the contrary the consciousness of the ruling majority denied these rights. It could only be terminated through a general convulsive movement which would transform the entire social and political structure of the country that nourished the spirit of intolerance. Such a movement came to the country with the beginning of the struggle for independence. When the colonies, in their relations with the metropolis, saw the inevitable onset of a crisis which demanded extraordinary exertion of all their moral and physical strength, the very order of things forcibly summoned them to unity and cohesion so as to more successfully withstand the struggle with a common enemy. The religious enmity between Protestantism and Catholicism was particularly fierce in Maryland, the principal colony of Catholics, and it was in this very colony that the rights of religious conscience were destined to first receive legal recognition.

Already in the beginning of 1774 the relations of the colonies to England had reached such a tension that the crisis seemed inevitable. The discontent of the colonists was developing and growing into implacable hatred for the metropolis, and was waiting only for a cause to open hostile action. The crisis was dangerous, and for its preservation unity and cooperation of all members was necessary. The people gathered in conventions where, with united effort, they discussed their situation, and at a convention in Maryland the following appeal to the people was made: “Since our opposition to the settled plan of the British government to bring America into slavish subjection can be strengthened by the union of all classes of people in this province, we most earnestly recommend that all former differences in religion or politics, and all private disputes and enmities of every kind be now and forever buried in oblivion, and we ask, we entreat every man by his duty to God, country, and posterity to unite heartily in defense of our common rights and freedom”[1]. This was the first sound heralding the general freedom of religious conscience, which subsequently became the fundamental law of the country, but the origin of it shows clearly enough where the principal cause was that produced this law. It lay in the political circumstances which required the common union of people of diverse faiths to struggle against England. The subsequent history provides striking proof of this.

The Congress of 1774, in its address to the British people, expressed, as we have seen, terrible indignation against the act of parliament that granted Catholics in Canada freedom of religious conscience. Circumstances soon changed dramatically; a rupture with the mother country followed. On May 10, 1775, another Congress convened. Blood had already been shed and it was clear that the sword would settle the matter. Congress sought means and allies for the struggle. All colonies united for it. Canada remained aloof. It was now critically important for Congress to win Canada over to its side as an ally, and so it abruptly reversed its position. It began to court Canada and through repeated appeals to the Canadian people asked them to unite with the other colonies, declaring that “the fate of the Protestant and Catholic colonies must be firmly united with each other” in this cause, and assuring them of the complete inviolability and security of their religious rights. In instructions given by Congress to its ambassadors for negotiations with Canadians on November 8, 1775, it was stated, among other things: “And you may and are hereby authorized to declare that we consider the rights of conscience sacred and will never restrict them in the free exercise of their religion”[2]. Such appeals were made twice in 1775, but without success. In the following year Congress attempted a third time to approach Canada with the same request, and in instructions to its ambassadors dated May 20, 1776, it again instructed: “You must declare that we consider the rights of conscience sacred, and you may promise to all the people, solemnly in our name, the free and inviolable exercise of their religion; and to the clergy the complete, perfect, and peaceful possession and enjoyment of all their properties; that all matters relating to religion and the clergy should be left entirely in the hands of the good people of that province and of such legislation as they themselves shall establish; provided, however, that all other confessions of Christians be equally empowered to hold public offices and enjoy civil privileges and the free exercise of their religion, and be wholly exempt from the payment of tithes or taxes for the maintenance of any religion”[3]. Considering these assurances insufficiently persuasive, the Protestant-majority Congress even invited the Jesuit John Carroll as ambassador, hoping that he could better influence the Catholic clergy of Canada[4]. But this embassy also failed. Canada looked suspiciously upon these assurances, considering them forced by political circumstances, and remembered too vividly the Congress’s own indignant protests against the law by which Parliament had granted Canadian Catholics freedom of religious conscience. In this distrust of the Catholic Canada toward the Protestant colonies lay the main reason why it remained apart from the general movement toward independence and thus did not become part of the United States. A historian contemporary with the struggle for independence affirms that the Canadian masses were inclined in favor of union with the other colonies, but “the legal privileges which the Roman Catholic clergy possessed forced it to resist change, as it feared for them from a closer connection with its Protestant neighbors”[5]. The unsuccessful outcome of negotiations with Canada soon made clear to the colonial representatives what a mistake they had made in allowing their Protestant prejudice against Catholics to be expressed so sharply in their protest against the parliamentary act. It was an important lesson, showing that religious differences could be the strongest obstacle to union for struggle against a common enemy. And it proved not fruitless. When in 1776 the “Declaration of Independence” was proclaimed and colonies gathered in private conventions to draft new constitutions, the people’s representatives sought in every way to consolidate the organism of the newly born state by removing from it elements of discord, namely differences in religion, and as a result placed religious questions outside the state, leaving religion to individual freedom. The constitutions of the different colonies express this principle of freedom of religious conscience differently. The Virginia Constitution of July 5, 1776, declares that “religion, or the duties which we owe our Creator, and the manner of performing them, can be directed only by reason and conviction, not by force or compulsion; and therefore all people equally have the right to the free exercise of religion, according to the dictates of conscience, and that mutual obligation of all to exercise Christian patience, love, and charity toward one another”[6]. The New Jersey Constitution of July 2, 1776, defines not only freedom of religious conscience, but the separation of religion from the state. It declares that “in this province there shall be established no religious sect in preference to another”; “no person shall be obliged to pay tithes, taxes, or other dues for the purpose of building or repairing a church or churches, place or places of worship, or for the support of a priest or clergy, contrary to what he considers right, or which he shall not freely and voluntarily perform himself”[7]. The Delaware Constitution of September 20, 1776, provides: “No person shall be compelled to attend any religious worship, to pay for the building or maintenance of any place of worship, or for the maintenance of the clergy, against his free will and consent… And no preference shall be given by law to any religious society, profession, or form of worship”[8]. The North Carolina Constitution of December 18, 1776, provides: “that there shall be no establishment of any one religious church or confession in this state in preference to others; and no person shall be, under any pretext whatever, compelled to attend any place of worship against his own faith or judgment, or be obliged to pay for the purchase of land or the building of a house of prayer, or for the support of a priest or clergy, against what he considers right or has freely and personally consented to perform”[9]. The Georgia Constitution of February 5, 1777, says: “All persons shall have the free exercise of their religion, provided it is not repugnant to the peace and safety of the state; and should not, except by consent, support a teacher or teachers, except of his own profession”[10]. The New York Constitution of April 20, 1777, abolishes “all such parts of the public and state law and acts of assembly which establish any Christian confession or its priests”[11]. Similar principles were laid at the foundation of the constitutions of other states, though some of them do not entirely sever the connection between religion and government. The Maryland Constitution of August 14, 1776, says: “As the duty of every person is to worship God in such manner as he thinks most beneficial to Him, all persons professing the Christian religion equally have the right to the protection of their religious conscience; therefore no person shall be injured by law in his person or status because of his religious profession or belief, or because of his religious activity, unless under the guise of religion some person violates the good order, peace or safety of the state, or violates the laws of morality, or harms others in their natural, civil, or religious rights. And no person shall be compelled to attend, support, or pay, except by consent, for any particular place of worship or any particular clergy; but the legislative assembly may at its discretion impose a general and equal tax for the support of the Christian religion, allowing each person the right to designate the application of money collected from him for the support of a particular place of worship or priest, or for the poor of his own profession, or for the poor generally of some separate district”[12]. The South Carolina Constitution of March 19, 1778, says: “No person shall be required by law to pay for the support and maintenance of religious worship to which he does not freely attach himself or voluntarily consent to support”; but the same article provides that “the Christian Protestant religion shall be deemed, and is hereby determined and declared to be, the established religion of this state”, extending this determination to “all confessions of Christian Protestants in the state”[13]. The Massachusetts Constitution of March 2, 1780, says: “No subordination of one sect or profession to another shall be established by law,” but it is permitted to make taxes for the support of public, Protestant teachers of piety, religion and morality in all cases where this is not done voluntarily, with this condition, however, that “all money paid by subjects for the support of public worship and said public teachers shall be, if they require it, uniformly applied to the support of the public teacher or teachers of his own religious sect or profession, if there is such one at whose instruction he attends; otherwise the payment may be made for the support of a teacher or teachers of the parish or district in which said money is collected”[14].

Footnotes

[10] 56 article of the constitution of Georgia; ibidem, p. 724. The Constitution of the same state, from May 30, 1798, more fully defines the same principle: No person in this state shall on any pretext be deprived of the invaluable privilege of worshiping God in a manner most agreeable to his own conscience, or be compelled to attend a place of worship contrary to his faith or judgment, and never shall be obliged to pay tithes, taxes, or any other dues for the building or repair of any place of worship contrary to what he considers right or has voluntarily agreed to do. And no religious society shall be established in this state in preference to another; and no person shall be deprived of the enjoyment of his civil rights merely on account of his religious principles. See Constitutions of the Thirteen states. Constitution of Georgia, IV art., 10 section, p. 207. This edition of the constitution of the first thirteen states in the Mercantile Library catalog is dated 1783. But it is obviously later. The title page is missing.

[14] Noteworthy is the very text of this article: Since the happiness of the people, good order, and the preservation of civil government essentially depend on piety, religion, and morality; and since these can be spread in a community only through the institution of public worship of God and public instruction in piety, religion and morality: therefore, for the promotion of its well-being (happiness) and to ensure good order and the preservation of its government, the people of this republic have the right to vow to their legislative assembly the authority to empower and require, and the legislative assembly from time to time should empower and require, that the various cities, parishes, counties, and other political communities or religious societies take appropriate measures, at their own expense, for the institution of public worship and for the maintenance and support of public Protestant teachers of piety, religion and morality in all cases where such shall not be adopted voluntarily. Constitution of Massachusetts from March 2, 1780. I part, 3. The Constitutions of the Thirteen states, p. 34–35.