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INTRODUCTION

However sagaciously devised and balanced our national constitution of government may be, declared Rev. Samuel Austin of Worcester, Massachusetts, in 1811, it has one capital defect. It is entirely disconnected from Christianity.1 Austin was one of many Americans of his time who feared that the United States had abandoned its Christian heritage. James Blythe of Kentucky lamented the lack of explicit mention of Jesus Christ in presidential fast and thanksgiving day proclamations; he concluded that the religion of American rulers, if indeed they recognize God at all, resembles infinitely more the religion of heathens than of Christians.2 Samuel Brown Wylie of Philadelphia attacked Pennsylvanias criminal code for its failure to impose Old Testament punishments.3 In New York, James Renwick Willson denounced the Federal Constitution for failing to mention Christ and even condemned George Washington as an infidel.4 Such sentiments are striking to the modern reader: present-day believers that the United States was founded on Christian principles often claim the Founding Fathers for their cause, while advocates of churchstate separation often presume that the issue was a settled matter after the ratification of the First Amendment in 1791. This book will complicate such assumptions by exploring sixty years of contentious debate in American civic culture over the proper role of religion in public life. Between the 1780s and the 1840s, clergymen, legislators, jurists and pamphleteers argued over whether the government could fund Christian missionaries, whether the government should proclaim fast and thanksgiving days, whether it was proper for Christians to pledge to vote only for Christian candidates, whether there should be religious restrictions on who could serve in public office or testify in court, whether blasphemy prosecutions were legitimate, whether public schools could offer a religious curriculum, whether state legislatures should open each days session with prayer and many more such issues. Instances of the governments long-standing entanglement with religion, such as the funding of religiously affiliated schools among the Indian tribes, can seem startling today. In other areas, however, separation between religion and government was more strongly enforced than today. The mail was delivered on Sundays, and a nationwide petition campaign to end this practice not only failed
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but caused a strong backlash. Several state legislatures, at least for a time, abolished the position of chaplain and the practice of opening each days sessions with prayer. In short, debate over the proper relationship between religion and government was as divisive two hundred years ago as it is today and involved people from all denominations, parties and regions. Participants in these debates often viewed themselves as engaged in a struggle between the stark alternatives of an explicitly Christian nation and a completely secularized government, but the full story was more complicated. Before the American Revolution, nine of the thirteen colonies had had a state-supported church, and in several states these establishments continued to exist well into the Early Republic period. At the same time, however, there was a movement away from the idea of a Christian state. Most states did disestablish in the immediate aftermath of the Revolution. Known deists such as Benjamin Franklin, Thomas Jefferson and Thomas Paine and persons of ambiguous belief such as George Washington, John Adams and James Madison had been among the nations most important and influential leaders. Jefferson, Paine and many lesser-known figures embraced the ideal of a secular America free from the influence of explicit traditional Christian faith. Yet by the 1840s, both the advocacy of a formal establishment and the advocacy of a secular nation had become marginalized world views. While the last establishment was eliminated in 1833 in Massachusetts, religion had not been purged from public life, but had become organized around a non-denominational Protestant Christianity that had pushed aside both belief in a confessional Christian state and open infidelity. This book contends that by the end of the period an emergent consensus gave a privileged position to a quasi-official non-sectarian Protestant Christianity while avoiding the creation of an established church. Recent years have seen a resurgence of interest in the issues left unsettled after the adoption of the First Amendment. Works on this subject often have a primary focus on one or more of these three issues: when and why Americans began to conceive of the proper relationship between religion and government as being separation of church and state, whether the United States in the Early Republic was a Christian nation, and what was the definitive original intent of the framers of the First Amendment and the founding generation in general. Many valuable studies of these questions have been written, but the goal of this book is somewhat different. Thomas Jefferson and James Madison make their expected appearances and have their say, but the focus is not on the traditional Founders or the congressional debates on the First Amendment. The principal characters in the book are lesser-known figures such as Samuel Austin, James Blythe, John C. Coit, David Daggett, Henry DeSaussure, Ezra Stiles Ely, William J. Gaston, William Hawley, Thomas Herttell, Thomas Kennedy, Abner Kneeland, John Leland, Isaac McCoy, Caleb Strong, James Renwick Willson and Samuel Brown

Introduction

Wylie. Other key figures, such as Lyman Beecher, William Ellery Channing, Stephen Girard, John Hughes, Richard M. Johnson, James Kent, Robert Dale Owen and Joseph Story, are perhaps better-known to historians, but they (and most of those in the previous sentence) represent a later generation than the Founders. They are not those who wrote the First Amendment, but those who fought for or against the creation of the Protestant non-sectarian consensus that came into being in the decades after it. The book also attempts to unearth the views of the ordinary Americans for whom the individuals just mentioned were spokesmen or antagonists. Many lesser-known and often anonymous authors clerical and lay, devout and freethinking, rural and urban, college-educated and self-taught wrote pamphlets on religious subjects. Prior to the Revolution, religious establishments of one form or another had been maintained in nine of the thirteen colonies. The five Southern colonies (Maryland, Virginia, North Carolina, South Carolina and Georgia) had had Anglican establishments that were meant to mirror the Church of England establishment in the mother country but were in fact much weaker, with no bishops and considerable power in the hands of the laity. A movement to establish an American episcopate in the years before the Revolution had met with strong opposition not only in New England, where the Congregationalists feared Anglican domination, but also in the South, where the Anglican gentry feared loss of control over the church. Anglicanism had also been established in four counties of New York (New York, Queens, Richmond and Westchester). In Massachusetts, Connecticut and New Hampshire (and later in Vermont), taxpayer funds supported the minister in each town in a system called the Standing Order. The usual result was the selection of a minister who adhered to traditional New England congregational principles. The Massachusetts authorities in the later colonial period allowed Anglicans, Baptists and Quakers to opt out of paying taxes to support the Congregational minister by filling out a certificate signed by their own minister that stated their membership in the alternative group. After the Revolution, this privilege was extended to all those outside the Standing Order. However, many Baptists and some others refused on principle to obtain certificates, believing that to do so would be recognition of state power over their religious beliefs and practices. Furthermore, those who wished to belong to no church at all had no legal recourse. Local authorities sometimes relaxed or ignored the official statewide rules. For example, in the late eighteenth century the Central Massachusetts towns of Charlton and Dudley exempted all non-Congregationalists from religious taxation unconditionally.5 However, the general assumption remained that every individual was an adherent of the Standing Order unless he could prove otherwise. After the Revolution, the states with Anglican establishments quickly abolished them. Although Maryland and South Carolina included provisions in their

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original state constitutions permitting the government to fund religious activities, these provisions were short-lived.6 In Virginia, a movement led by Patrick Henry to create a general assessment fund to pay clergymen of all denominations failed. Instead, the state adopted the Statute for Religious Freedom. Written by Thomas Jefferson and shepherded through the legislature by James Madison, this was probably the strongest statement of religious liberty adopted by any American government in the eighteenth century.7 In New England, however, establishments were retained and survived into the nineteenth century. They were not abolished until 1807 in Vermont, 1818 in Connecticut, 1819 in New Hampshire, 1820 in Maine (when the new state separated from Massachusetts) and 1833 in Massachusetts. In Connecticut in the 1810s, non-Congregationalists mobilized politically as the Toleration Party and eventually brought about the end of the establishment. The New Hampshire and Maine establishments were similarly ended by organized political mobilization of those who belonged to other churches. The Massachusetts establishment, however, came to an end in a very different way. The roots of its demise lay in the technical distinction in the Standing Order between the church, which comprised those persons who had publicly professed an experience of regeneration and had been admitted to communion, and the parish, which theoretically included all residents of the town. Both groups were supposed to approve the selection of the minister, and the assumption was that there would always be harmony between the two. In the pre-Revolutionary period, this assumption had generally proved true, but in the nineteenth century, disagreements occurred in town after town. For example, the parish of the town of Dedham wanted to hire a minister of Unitarian views while the church preferred an adherent to the traditional doctrine of the Trinity. When this case (Baker v. Fales) reached the Massachusetts Supreme Judicial Court, the court, dominated by Unitarians, ruled in favour of the parish. This situation was repeated in many other towns over the next decade, as one by one many of the once-Trinitarian churches of Massachusetts fell into the hands of the Unitarian parish.8 This led the Trinitarian Congregationalists of Massachusetts to withdraw their support from the policy of taxpayer funding of religion. This eventually led to the collapse of the Massachusetts Standing Order in 1833.9 During this period, the relative weakness of the federal government meant that the state governments were often more important theatres for the resolution of disputes over church and state. The Supreme Courts 1833 decision in Barron v. Baltimore ruled that the Bill of Rights in the federal Constitution did not apply to the states.10 That case did not deal with the First Amendment directly, but in the 1845 case Permoli v. New Orleans, the Court ruled against Father Bernard Permoli, a Catholic priest who had objected to city ordinances regulating funerals, and made an explicit affirmation that the First Amendment did not apply to the states.11

Introduction

These decisions did not make groundbreaking new law; they reflected the general consensus of legal interpretation in the era. Indeed, the First Amendment, with its explicit assertion that Congress shall make no law, was the amendment (other than the Tenth) whose orientation toward limiting the federal government alone was most explicit. As a result, for most Americans, the state governments played a more prominent role than the federal government in religious matters. In some states, religious minorities were able to win the right to hold office or testify in court more easily than others. Furthermore, state or regional identities, especially in New England and the South, could be more powerful than allegiance to the Union. A dominant metaphor in the modern public mind describing the process of disestablishment is that it constituted separation of church and state or, in the full version of the phrase from Thomas Jeffersons famous letter to the Danbury Baptists, a wall of separation between Church & State.12 In the seventeenth century, Roger Williams, the founder of Rhode Island and one of the first thinkers in history to advocate complete religious freedom for all, had similarly written of the hedge or wall of Separation between the Garden of the Church and the Wildernes of the world.13 This metaphor was enshrined in modern constitutional law in the 1947 case of Everson v. Board of Education. The Supreme Court permitted Ewing Township, New Jersey, to provide public buses for parochial school students but nonetheless endorsed Jeffersons metaphor of a wall of separation as the correct interpretation of the First Amendment. Justice Hugo Black declared that we could not approve the slightest breach of the wall.14 This opinion laid the foundations for the next several decades of churchstate jurisprudence, notably the Engel v. Vitale case that outlawed school prayer. As a result of this trend, many modern-day debates about religious freedom have centred on this phrase and the extent to which it is or is not an accurate summation of the attitudes of the Founders toward the appropriate relationship between religion and government. Scholarly works such as Separation of Church and State by Philip Hamburger have attempted to trace the history of the phrase from colonial times to the present. Hamburger has argued that the phrase did not enter the general public consciousness until the middle third of the nineteenth century; he sees anti-Catholicism as the key catalyst in this development.15 The research for the present work, with the aid of READEX, Google Scholar and other online databases, has generally reinforced Hamburgers conclusion. Separation of church and state was a phrase that was very rarely used before the 1820s. It was somewhat more commonly used beginning in the 1820s, but a striking increase in popularity occurred in the 1850s. One of earliest post-Jeffersonian uses of this exact metaphor that the present author has found comes from Jeffersons close colleague James Madison, who referred to total separation of the church from the state in an 1819 letter.16 In

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the late 1820s and early 1830s, the phrase was used by such diverse authors and orators as James B. Sheys of New Jersey, Job R. Tyson of Pennsylvania, Rev. Benjamin B. Wisner of Massachusetts and Thomas S. Grimk of South Carolina.17 For example, Grimk, brother of Angelina and Sarah Grimk, praised the total separation of church and state in America. The full context of his speech shows the complicated nature of churchstate relations in the Early Republic. Grimks address was not anti-Christian or even anti-clerical in tone. It was just the opposite a call for adopting the Bible as a class book, in every scheme of education, from the primary school to the university, which Grimk apparently regarded as compatible with the separation of church and state.18 A use of the phrase in a less surprising context is in an 1831 petition from Greensborough, Alabama, which defended the delivery of the mail on Sunday and referring in passing to the great fundamental principles, which SEPARATES [sic] CHURCH AND STATE.19 By 1840, Australian Presbyterian minister Rev. John Dunmore Lang could report after a visit to the US that [T]he Americans regard the entire separation of Church and State not only as a matter of expediency, but as being in strict accordance with the demands of righteousness and justice.20 In 1843, President John Tyler assured a complainer about the religious activities of General Winfield Scott that the United States have adventured upon a great and noble experiment, which is believed to have been hazarded in the absence of all previous precedent that of total separation of church and state. He added that this meant that a Mohammedan was guaranteed the right to worship according to the Koran and the East Indian was permitted to erect a shrine to Brahma.21 Although these examples show that the phrase was gradually gaining popular currency, it still appeared rarely in print before the 1850s, only becoming truly in common usage after that time.22 However, while opponents of entanglement between government and religion did not often speak of desiring a separation of church and state, they did speak fairly frequently of their fear of the opposite, a union of church and state.23 This phrase seems to have originated in Jeffersonian circles; the oldest use of the phrase found by the present author is in 1799 in the Philadelphia Aurora, a strongly Jeffersonian paper.24 The Connecticut Jeffersonian Abraham Bishop also frequently referred to the union of church and state in New England.25 By 1802 the phrase was common enough to be viewed as a Jeffersonian clich; the pro-Federalist Savannah Advertiser observed that denunciations of the union of church and states [sic] were a regular theme of Jacobinic harangue.26 Such accusations again became popular in the 1820s due to Ezra Stiles Elys speech advocating a Christian party in politics and the controversial petition drive against transportation and delivery of the mail on Sunday. Ministers arguing for greater religious influence on government often felt the need to assure their hearers that they did not believe in a union of church and state. It was a union

Introduction

which all enlightened republican legislators abhor, declared Rev. William S. Perkins of Vermont in 1832.27 It was an alliance [that was] unnatural, asserted Rev. John F. Schroeder of New York in 1841, even as he argued that the state is essentially dependant upon religion.28 Hamburger also sees anticlericalism and anti-Catholicism as going hand in hand. This was often true in Europe, but the situation in the US was more complicated. At times anticlericals defended Catholics, seeing evangelical Protestantism as a greater threat and Catholics as a fellow enemy of the evangelicals. One anti-Catholic writer complained that [a]mong non-professing Protestants the Catholics are popular, and thousands consider them the only bulwark against a union of church and state.29 At the same time, however, anticlerical writers often relied on the tropes of anti-Catholicism in assembling arguments for their own anti-evangelicalism, especially in their use of the term priestcraft to describe the alleged machinations of the Protestant clergy. When Catholics did begin to enter the US in large numbers in the 1840s and 1850s, both devout Protestants and anticlerical freethinkers often reacted with suspicion and hostility. Churches in the Early Republic often required incorporation as legal bodies to hold property, receive bequests and make legally binding rules for the appointment of ministers, and they therefore needed the support of the state. As a result, some in the Early Republic regarded incorporation as a form of government support for religion and therefore as a form of establishment. Virginia banned all church incorporations on these grounds, a ban that remained in place until 2002.30 Virginian James Madison carried this attitude toward incorporation to the national level in 1811 when he vetoed a bill to incorporate a Protestant Episcopal Church in Alexandria (then part of the District of Columbia).31 The idea that incorporation was a form of establishment persisted elsewhere as well. At the Massachusetts Constitutional Convention of 18201, Cyrus Stowell, delegate from the town of Peru, asserted that advocates of ending the establishment mistook their interest. Religious societies could not enjoy their rights without being incorporated, and Stowell claimed that to end the Standing Order would mean the end of all religious incorporations: Take away the right of the Legislature to support religion, and they are left without any provisions for their security. Stowells claim was based on traditional ideas about corporate law, but his statement would have been incomprehensible just a few decades later.32 The coming into being of general incorporation laws and the underlying idea that incorporation was more a right than a privilege made it more difficult to make arguments that incorporation was a kind of establishment. Congressman Laban Wheaton of Massachusetts foreshadowed the new attitude with his mocking question in reply to Madisons 1811 veto: Were the people of the District never to have any religion? Was it to be entirely excluded from the ten miles square?33 As Wheatons question implied, incorporation was coming to

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be viewed not as a form of state support for an institution and therefore a quasiestablishment when applied to a church, but as a necessary precondition for a private institution, which a church was now conceived to be, to have a legally recognized existence. Mark Douglas McGarvie has argued that the demarcation of a thick black line of separation between the public and private spheres, with the private sphere protected from government interference by the commerce clause of the Constitution, helped create a framework by which church and state could also be separated.34 After the end of the Anglican and Congregational establishments, Methodists and Baptists, although sometimes still distrustful of their former enemies, often showed a willingness to cooperate with them on matters of morality and even on those matters of doctrine on which there was broad agreement. These areas of agreement became the foundation of the Protestant non-sectarian consensus. This development has been analysed by many historians. William McLoughlin observed in 1971 that by the end of the 1830s, the New England Baptists were no longer dissenters. They belonged to the new establishment the Evangelical Protestant establishment which dominated the national morality, directed the nations destiny, and fostered its culture for the rest of the century.35 Recent historians have reached similar conclusions. Jonathan Sassi has analysed the public Christianity of the New England clergy that took new forms after the end of the establishment. After 1833, clergymen could no longer invoke the classic metaphor of a hand-in-hand partnership between Moses (the political leader) and Aaron (the religious leader), but an evangelical coalition arose in which formerly antagonistic churches cooperated for common moral goals.36 Nathan Rives has traced a similar evolution in New England from the state-supported religion in which the government gave financial support to the Standing Order to the religion-supported state in which believers must leverage the influence of religious individuals and organizations in a republican society so that right religion would shape the state and fashion a godly nation.37 Although these authors focused on New England, similar trends took place elsewhere. This book will show the many ramifications of the new vision of the proper relationship between religion and government. The emergence of this non-sectarian Protestant consensus was the most important development in churchstate relations during this period. Chapter 1 examines the relationship between religion and government at the federal level. Several historians have shown the heavy entanglement of the federal government with religion in this period.38 Numerous government buildings in the new capital of Washington, including the House of Representatives chamber in the Capitol, were used for religious services. Even Thomas Jefferson was known to attend these services on occasion. Perhaps even more surprisingly, the federal government funded schools among the Indians that were owned and operated by Christian missionaries. On the other hand, at times the government

Introduction

seemed resistant to entanglement with religion. Thomas Jefferson and Andrew Jackson refused to issue thanksgiving day and fast day proclamations. The delivery of the mail on Sunday was mandated by the federal government and, despite a massive petition campaign against it, the government insisted on continuing the practice. Sometimes single individuals embodied the contradictions of federal attitudes on the subject. Richard M. Johnson, who became a national hero to anti-clericals as the author of both the Senate and House reports in defense of Sunday mail, was also the chief backer of the Choctaw Academy, a governmentfunded, Baptist-affiliated Indian school in his home state of Kentucky. The key to understanding many of these contradictions may be found in re-examining attitudes toward federalism (meaning the system of divided powers between the federal and state governments, not the political party of that name) in the period. The First Amendment was viewed as a limitation on the federal governments power in relation to the states. Much of the opposition to the calls in 1832 for a fast day proclamation was on federalist rather than First Amendment grounds, and in fact there was pre-First Amendment opposition to George Washingtons 1789 thanksgiving proclamation on federalist grounds. The idea that Congress had broad control over the District of Columbia and the territories may help explain why what might appear to modern eyes as flagrant First Amendment violations generally went by without objection. Chapter 2 examines competing attempts to formulate the proper relationship between religion and government and the movement of Americans toward the non-sectarian Protestant consensus that had become the dominant view on churchstate relations by the end of the period. It examines questions of how the religious basis (or lack thereof ) of the government was debated and analysed and how religion interacted with politics. It focuses to some extent on New England, but it takes note of developments in other regions of the country. It also analyses organized deism and anticlericalism, which were the flipside of a belief in governmental support for religion. The second half of the chapter analyses two important sermons of the 1820s attempting to articulate a Protestant non-sectarian consensus Lyman Beechers The Faith Once Delivered to the Saints and Ezra Stiles Elys call for a Christian party in politics and the strong backlash to the latter. Chapter 3 examines the issue of religious tests limiting public office holding to members of particular religious denominations. During the colonial period, most colonies limited office holding to Protestants and in some cases to members of the established Church. During and after the Revolution, these tests were often liberalized to open public office to all Christians or all believers in God. During the following decades, movements in a number of states resulted in further liberalization and sometimes complete elimination of these tests. Typically, the issue would lie dormant for years or decades. Then one of two things would happen: either a member of a proscribed group would be elected to office, forc-

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ing a crisis, or a state constitutional convention would provide an opportunity for opponents of the test to make their case. This chapter discusses the history of tests in several states but focuses on Maryland, Massachusetts and North Carolina, the states where the documentary record is fullest and where debaters staked out their positions most clearly. Although religious tests had been abolished or weakened in most states by the end of this period, those outside the Protestant non-sectarian consensus often faced unequal or outright hostile treatment in the courts. Chapter 4 explores these controversies. Anti-Christian speech or writing, particularly if it questioned the virginal conception of Christ in a sexually graphic way, could lead to prosecution of the speaker or writer for blasphemy. Various states also faced the question of whether those who did not believe in eternal punishment after death (not only deists and atheists but also the new Christian group the Universalists) should be allowed to testify in court. Many believed that those who did not believe in eternal punishment in hell were incapable of respecting the sanctity of an oath. Chapter 5 is a case study of a dispute in New York state in the 1830s and 1840s over whether the state Assembly and Senate should open each day of their sessions with prayer. It centres on two figures, James Renwick Willson and Thomas Herttell, whose strong views and lack of lasting success in implementing them epitomized the world views in favour of, respectively, a confessional Christian state and a completely secular state. Willson became a controversial figure after writing a pamphlet that denounced the federal Constitution for its failure to mention Jesus Christ and that argued that all seven presidents up to that time had been ungodly. He was officially condemned by the New York Assembly. Herttell fought in favour of the elimination of legislative prayer by the same Assembly. He met with temporary success but long-term failure. The New York legislature, like the legislatures of most other states, rejected both the theocracy of Willson and the secularism of Herttell. A brief Epilogue analyses the form the Protestant non-sectarian consensus had taken by the mid-1840s and the challenges caused by the coming to America of Catholic immigrants who could not easily be integrated into the consensus. The smaller Catholic minority of earlier decades had been small enough to be ignored or even treated as a merely theoretical issue, but their increasing numbers and particularly their entrance into the public schools jeopardized the Protestant non-sectarian consensus just when it had seemed to triumph. The history of church and state in the Early Republic did not end with the ratification of the First Amendment. It was a long and complicated story that had many facets and developed in different ways in the different states. It is a story that can perhaps shed light on the controversies of our own time, but it is also a story worth studying on its own terms.